exv4w6






Exhibit 4.6




	 	 	 

	After recording this Deed of Trust

should be returned to:

	 	Jeffrey N. Anderson

Latham & Watkins LLP

233 South Wacker Drive

Suite 5800

Chicago, IL 60606 





Notice of Confidentiality Rights: If you are a natural person, you may remove or strike any or
all of the following information from any instrument that transfers an interest in real property
before it is filed for record in the Public Records: your Social Security Number or your Driver’s
License Number.




 





DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING




FROM



GREAT WOLF LODGE OF GRAPEVINE, LLC, as Trustor,



TO



PETER S. GRAF, as Mortgaged Property Trustee



FOR THE BENEFIT OF



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



Executed as of April 5, 2010

Dated and Effective as of April 7, 2010



	 	 	 	 	 

	 	 	Relating to Premises at:
	 

	 	Location:
	 	1400 State Highway 26 
	 

	 	Municipality:
	 	Grapevine
	 

	 	County:
	 	Tarrant
	 

	 	State:
	 	Texas






 




ATTENTION: COUNTY CLERK — THIS DEED OF TRUST COVERS GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE
REAL PROPERTY DESCRIBED HEREIN AND IS TO BE FILED FOR RECORD IN THE RECORDS WHERE DEEDS OF TRUST ON
REAL ESTATE ARE RECORDED. ADDITIONALLY, THIS DEED OF TRUST SHOULD BE APPROPRIATELY INDEXED, NOT
ONLY AS A DEED OF TRUST, BUT ALSO AS A FINANCING STATEMENT COVERING GOODS THAT ARE OR ARE TO BECOME
FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN. THE MAILING ADDRESSES OF THE TRUSTOR (DEBTOR) AND
BENEFICIARY (SECURED PARTY) ARE SET FORTH IN THIS DEED OF TRUST.






 









 








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
	 	 	8	 
	 
	 	 	 	 
	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
	 	 	11	 
	 
	 	 	 	 
	ARTICLE III.
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES OF TRUSTOR
	 	 	 	 
	 
	 	 	 	 
	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 Trustor
	 	 	14	 
	SECTION 3.7. Insurance
	 	 	14	 
	SECTION 3.8. Environmental
	 	 	14	 
	 
	 	 	 	 
	ARTICLE IV.
	 	 	 	 
	 
	 	 	 	 
	CERTAIN COVENANTS OF TRUSTOR
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.1. Payment
	 	 	15	 






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	 	 	Page
	SECTION 4.2. Title
	 	 	16	 
	SECTION 4.3. Maintenance and Use of Mortgaged Property
	 	 	16	 
	SECTION 4.4. Notices Regarding Certain Defaults
	 	 	18	 
	SECTION 4.5. Access to Mortgaged Property, Books and Records; Other Information
	 	 	18	 
	SECTION 4.6. Limitation on Liens; Transfer Restrictions
	 	 	18	 
	SECTION 4.7. Environmental
	 	 	18	 
	 
	 	 	 	 
	ARTICLE V.
	 	 	 	 
	 
	 	 	 	 
	CONCERNING ASSIGNMENT OF LEASES AND RENTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.1. Present Assignment; License to the Trustor
	 	 	18	 
	SECTION 5.2. Collection of Rents by the Beneficiary
	 	 	19	 
	SECTION 5.3. No Release
	 	 	20	 
	SECTION 5.4. Irrevocable Interest
	 	 	20	 
	SECTION 5.5. Amendment to Leases
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VI.
	 	 	 	 
	 
	 	 	 	 
	TAXES AND CERTAIN STATUTORY LIENS
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.1. Payment of Charges
	 	 	20	 
	SECTION 6.2. Stamp and Other Taxes
	 	 	20	 
	SECTION 6.3. Certain Tax Law Changes
	 	 	21	 
	SECTION 6.4. Proceeds of Tax Claim
	 	 	21	 
	 
	 	 	 	 
	ARTICLE VII.
	 	 	 	 
	 
	 	 	 	 
	CONTESTING OF PAYMENTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.1. Contesting of Taxes and Certain Statutory Liens
	 	 	21	 
	 
	 	 	 	 
	ARTICLE VIII.
	 	 	 	 
	 
	 	 	 	 
	DESTRUCTION, CONDEMNATION AND RESTORATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.1. Destruction and Restoration
	 	 	22	 
	SECTION 8.2. Condemnation
	 	 	22	 
	SECTION 8.3. Availability of Proceeds
	 	 	22	 
	 
	 	 	 	 
	ARTICLE IX.
	 	 	 	 
	 
	 	 	 	 
	EVENT OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.1. Events of Default
	 	 	22	 






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	 	 	Page
	SECTION 9.2. Remedies in Case of an Event of Default
	 	 	22	 
	SECTION 9.3. Sale of Mortgaged Property if Event of Default Occurs; Proceeds of Sale
	 	 	23	 
	SECTION 9.4. Additional Remedies in Case of an Event of Default
	 	 	25	 
	SECTION 9.5. Legal Proceedings After an Event of Default
	 	 	25	 
	SECTION 9.6. Remedies Not Exclusive
	 	 	26	 
	SECTION 9.7. Costs of Enforcement
	 	 	27	 
	SECTION 9.8. Rescission of Notice of Default
	 	 	27	 
	SECTION 9.9. Effect of Judgment
	 	 	27	 
	 
	 	 	 	 
	ARTICLE X.
	 	 	 	 
	 
	 	 	 	 
	SECURITY AGREEMENT AND FIXTURE FILING
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.1. Security Agreement
	 	 	28	 
	SECTION 10.2. Fixture Filing
	 	 	28	 
	 
	 	 	 	 
	ARTICLE XI.
	 	 	 	 
	 
	 	 	 	 
	MORTGAGED PROPERTY TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.1. Acceptance by Mortgaged Property Trustee
	 	 	29	 
	SECTION 11.2. Compensation
	 	 	29	 
	SECTION 11.3. Action in Accordance with Instructions
	 	 	29	 
	SECTION 11.4. Resignation
	 	 	29	 
	SECTION 11.5. Substitute Trustee
	 	 	29	 
	 
	 	 	 	 
	ARTICLE XII.
	 	 	 	 
	 
	 	 	 	 
	FURTHER ASSURANCES
	 	 	 	 
	 
	 	 	 	 
	SECTION 12.1. Recording Documentation To Assure Security
	 	 	30	 
	SECTION 12.2. Further Acts
	 	 	31	 
	SECTION 12.3. Additional Security
	 	 	31	 
	 
	 	 	 	 
	ARTICLE XIII.
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 13.1. Trust is Irrevocable
	 	 	31	 
	SECTION 13.2. Covenants To Run with the Land
	 	 	31	 
	SECTION 13.3. Environmental Indemnity
	 	 	31	 
	SECTION 13.4. No Merger
	 	 	32	 
	SECTION 13.5. Secured Obligations to Include Judgments; Other Collateral
	 	 	32	 
	SECTION 13.6. Concerning Beneficiary
	 	 	33	 






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	 	 	Page
	SECTION 13.7. Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact
	 	 	34	 
	SECTION 13.8. Continuing Security Interest; Assignment
	 	 	34	 
	SECTION 13.9. Termination; Release
	 	 	34	 
	SECTION 13.10. Assignment in lieu of Reconveyance
	 	 	35	 
	SECTION 13.11. Modification in Writing
	 	 	35	 
	SECTION 13.12. Notices
	 	 	36	 
	SECTION 13.13. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL
	 	 	36	 
	SECTION 13.14. Severability of Provisions
	 	 	37	 
	SECTION 13.15. Limitation on Interest Payable
	 	 	37	 
	SECTION 13.16. Business Days
	 	 	37	 
	SECTION 13.17. Relationship
	 	 	38	 
	SECTION 13.18. Waiver of Stay
	 	 	38	 
	SECTION 13.19. No Credit for Payment of Taxes or Impositions
	 	 	38	 
	SECTION 13.20. No Claims Against the Beneficiary
	 	 	38	 
	SECTION 13.21. Obligations Absolute
	 	 	39	 
	SECTION 13.22. Beneficiary’s Right To Sever Indebtedness
	 	 	39	 
	SECTION 13.23. Multi-Site Real Estate Transaction
	 	 	40	 
	 
	 	 	 	 
	ARTICLE XIV.
	 	 	 	 
	 
	 	 	 	 
	ADDITIONAL STATE OF TEXAS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 14.1. Compliance with Applicable Law
	 	 	41	 
	SECTION 14.2. Additional Provisions
	 	 	41	 
	SECTION 14.3. Texas Foreclosure Provisions
	 	 	42	 
	SECTION 14.4. NOTICE OF FINAL AGREEMENT
	 	 	43	 
	SECTION 14.5. Waiver of Deficiency Statute
	 	 	44	 
	 
	 	 	 	 
	SIGNATURE
	 	 	 	 
	 
	 	 	 	 
	ACKNOWLEDGMENT
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE A            Legal Description
	 	 	 	 
	SCHEDULE B            Leases
	 	 	 	 






-iv-









 






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

AND FIXTURE FILING




     DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
“Deed of Trust”), executed as of April 5, 2010 and dated and effective as of April 7, 2010
(the “Effective Date”), made by GREAT WOLF LODGE OF GRAPEVINE, 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 trustor, assignor and debtor (in such capacities and
together with any successors in such capacities, the “Trustor”), to PETER S. GRAF, a
resident of Texas, having an office at c/o Republic Title of Texas, Inc., 2626 Howell Street,
10th Floor, Dallas, Texas 75204 (the “Mortgaged Property Trustee”), for the benefit 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 “Beneficiary”).



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




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




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




          F. This Deed of Trust is given by the Trustor to Mortgaged Property Trustee for the benefit of
the Beneficiary 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, the Trustor hereby
covenants and agrees with the Beneficiary as follows:




ARTICLE I.




DEFINITIONS AND INTERPRETATION



          SECTION 1.1. Definitions. (i) 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:




          (a) The following terms in this Deed of Trust shall have the following meanings:




          “Act” shall mean Chapter 51 of the Texas Property Code as from time to time amended.




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




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




          “Allocation Notice” shall have the meaning assigned to such term in Section
13.22(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.




          “Beneficiary” shall have the meaning assigned to such term in the Preamble 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’




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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.




          “Condemnation Awards” shall mean all of Trustor’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.




          “Deed of Trust” shall have the meaning assigned to such term in the Preamble hereof.




          “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.




-3-









 





          “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, regulatory
or administrative functions of or pertaining to government, having jurisdiction over the Trustor 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 Beneficiary.




          “Insurance Policies” means the insurance policies and coverages required to be
maintained by the Trustor 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
Trustor.




          “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 Deed of
Trust, together with all of the Trustor’s rights in and to any and all easements, rights-of-way,




-4-









 




strips and gores of land, waters, water courses, water rights, mineral, gas and oil rights and
all rights of 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 Trustor, 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 14.3(i)
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.




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




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




          “Notes Documents” shall mean the Indenture, the Notes, this Deed of Trust, the other
Security Documents and each of the other agreements, documents and instruments executed 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 Deed of Trust, as applicable.




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




          “Other Collateral” shall have the meaning assigned to such term in Section
13.22 hereof.




-5-









 





          “Other Mortgages” shall have the meaning assigned to such term in Section
13.23 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
Beneficiary or to the Trustor 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 Trustor 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 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 Trustor under any Lease or otherwise, and any award in the event of the
bankruptcy of any Tenant under or guarantor of a Lease.




-6-









 





          “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 Trustor, Mason Family Resorts, 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 Deed of Trust, 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 Trustor’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.




          “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 Trustor.




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




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




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







-7-









 








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




          “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 Deed of Trust, 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 Deed of Trust 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 Deed of Trust, 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 obligations of the Trustor
hereunder shall be satisfied by the Trustor at the Trustor’s sole cost and expense. The use of the
word “lien” in this Deed of Trust shall in no way reduce or detract from the grant, bargain, sale,
assignment, transfer and conveyance to the Mortgaged Property Trustee contained in Section
2.1 of this Deed of Trust.




          SECTION 1.3. Resolution of Drafting Ambiguities. The Trustor 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.,
Beneficiary) shall not be employed in the interpretation hereof.






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ARTICLE II.




GRANTS AND SECURED OBLIGATIONS



          SECTION 2.1. Grant of Mortgaged Property. The Trustor hereby grants, bargains, sells,
assigns, transfers and conveys to the Mortgaged Property Trustee in trust for the benefit and
security of Beneficiary, and hereby grants a first priority security interest to the Beneficiary in
and upon, all of the Trustor’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, Trustor, or constructed, assembled or placed by Trustor or by others for
Trustor’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 any further conveyance,
assignment or other act by Trustor, shall become subject to the lien of this Deed of Trust
as fully and completely, to the extent of Trustor’s interest therein, and with the same
force and effect, as though now owned by Trustor 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 Trustor and anyone claiming by, through or under the Trustor in and to the Mortgaged Property
and all rights and appurtenances relating thereto, unto the Mortgaged Property Trustee, its
successors and assigns, in trust with power of sale, for the benefit of






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Beneficiary 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 Trustor absolutely, presently,
unconditionally and irrevocably assigns, transfers and sets over to the Beneficiary, and grants to
the Beneficiary, for the benefit of the Beneficiary and the Secured Parties, all of the Trustor’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 “Trustor’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 Trustor, 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 Trustor or otherwise, to enforce,
collect, receive and receipt for any and all of the foregoing and to take all other actions
whatsoever which the Trustor, as Landlord, is or may be entitled to take under the Leases.



          SECTION 2.3. Secured Obligations. This Deed of Trust secures, and the Mortgaged
Property is collateral security for, the performance of the covenants and agreements of Trustor and
the other Principal Property Subsidiaries contained in the Indenture, this Deed of Trust, 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 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 Trustor 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 Trustor 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



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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 Trustor 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 Deed of Trust, 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 Trustor or any other Principal Property Subsidiary or any combination
thereof is or may become indebted or obligated under the terms of this Deed of Trust, the
Indenture and the other Notes Documents and related documents to which Trustor 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 Beneficiary in obtaining performance of,
or in collecting any payments due under, the Indenture and the other Notes Documents and
related documents to which Trustor 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.



          Each and every such indebtedness, liability and obligation of any kind of Trustor or any
Principal Property Subsidiary described and included in this Deed of Trust, whether such item is
absolute or contingent, due or not due, liquidated or unliquidated, arising under or in connection
with the Indenture, this Deed of Trust 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 Deed of Trust, and all such items so secured
(now or hereafter existing or arising) plus the other items described in Section 13.5
hereof are hereinafter collectively referred to herein as the “Secured Obligations.”




          SECTION 2.4. No Release. Nothing set forth in this Deed of Trust shall relieve the
Trustor from the performance of any term, covenant, condition or agreement on the Trustor’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 Beneficiary or any other Secured Party to perform or observe any such term, covenant,
condition or agreement on the Trustor’s part to be so performed or observed






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or shall impose any liability on the Beneficiary or any other Secured Party for any act or
omission on the part of the Trustor relating thereto or for any breach of any representation or
warranty on the part of the Trustor contained in this Deed of Trust 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 TRUSTOR



          SECTION 3.1. Due Authorization and Execution. The Trustor represents and warrants
that Trustor 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) Trustor has full
right, authority and power to enter into this Deed of Trust, 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 Deed of Trust on behalf of Trustor is
authorized to do so, and (iv) this Deed of Trust constitutes a valid and legally binding obligation
of Trustor enforceable against Trustor 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 Trustor represents and warrants as of the
Effective Date that:





     (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 Trustor 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 Deed of Trust 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 Mortgaged
Property Trustee for the benefit of the Beneficiary and other Secured Parties, and, to the



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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 Trustor 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 Trustor 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 Trustor has not received notice of any Taking or the commencement or pendency
of any action or proceeding therefor;




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



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          SECTION 3.4. Leases. The Trustor 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 Deed of Trust;




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




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




     (iv) to Trustor’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 Trustor 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.




          SECTION 3.6. Benefit to the Trustor. The Trustor 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 Trustor 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 Trustor has not received notice
of violation or cancellation thereof, (iv) all Insurance Policies or Insurance Certificates have
been delivered to Beneficiary, and (v) the Premises are insured in accordance with the Insurance
Requirements.




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





     (i) Trustor 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;



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




Notwithstanding the foregoing, Trustor 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) Trustor 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 Beneficiary 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 TRUSTOR



          SECTION 4.1. Payment. The Trustor 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
Trustor in respect of the Secured Obligations.







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          SECTION 4.2. Title. The Trustor 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 Beneficiary and Mortgaged Property Trustee
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
Beneficiary or Mortgaged Property Trustee 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




          (iii) promptly upon obtaining knowledge of the pendency of any proceedings for the
eviction of the Trustor from the Mortgaged Property or any part thereof by paramount title
or otherwise questioning the Trustor’s right, title and interest in, to and under the
Mortgaged Property as warranted in this Deed of Trust, or of any condition that is
reasonably likely to give rise to any such proceedings, notify the Beneficiary thereof. The
Beneficiary may participate in such proceedings and the Trustor will deliver or cause to be
delivered to the Beneficiary all instruments reasonably requested by the Beneficiary to
permit such participation. In any such proceedings, the Beneficiary may be represented by
counsel satisfactory to the Beneficiary at the reasonable expense of the Trustor. If, upon
the resolution of such proceedings, the Trustor 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 Beneficiary to be applied to the payment of the Secured Obligations.



          SECTION 4.3. Maintenance and Use of Mortgaged Property.





          (i) Maintenance of Premises. The Trustor 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. Trustor 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. Trustor 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



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any part thereof which is likely to have a materially adverse impact upon the Mortgaged
Property.




          (ii) Permits. The Trustor 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 Trustor in accordance
with the provisions of Article VII hereof, the Trustor 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 except
where the failure to comply singly or in the aggregate would not have a Material Adverse
Effect.




          (iii) Zoning. The Trustor 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. Trustor will maintain or cause to be maintained, with
financially sound and reputable (in each case, in the judgment of the Trustor) 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, and 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 Trustor 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, Trustor 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 Trustor)








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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 Trustor and adequate and
appropriate for the conduct of the business of the Trustor 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 provide for at least 15 days’ prior written
notice to the Collateral Agent of any modification or cancellation of such policy.




For the avoidance of doubt, the Trustor 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 Trustor shall, promptly upon
receipt of any written notice regarding the failure to discharge any of the Trustor’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 Beneficiary.




          SECTION 4.5. Access to Mortgaged Property, Books and Records; Other Information. Upon
reasonable prior notice to the Trustor, the Beneficiary, its agents, accountants and attorneys
shall have access to visit and inspect the Mortgaged Property, at reasonable times and accompanied
by a representative of Trustor 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 liens of this Deed of Trust and the
other Security Documents, the Trustor may not, without the prior written consent of the
Beneficiary, 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 Trustor may not, without the prior
written consent of the Beneficiary, sell, convey, assign, mortgage, lease, pledge or otherwise
transfer all or any part of the Mortgaged Property.




          SECTION 4.7. Environmental. Trustor 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 Trustor.







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          (i) Section 2.2 of this Deed of Trust constitutes a present, absolute, effective,
irrevocable and complete assignment by Trustor to Beneficiary of the Leases and Rents and the
right, subject to applicable law, to collect all sums payable to Trustor thereunder and apply the
same after payment of any costs and expenses arising under Section 13.7 of this Deed of
Trust in accordance with Section 9.3(iv) of this Deed of Trust, which is not conditioned
upon Beneficiary being in possession of the Premises. The Beneficiary hereby grants to the
Trustor, 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 Trustor or
waived in writing by Beneficiary, the license granted to Trustor will thereupon be reinstated.




          (ii) Trustor acknowledges that Beneficiary has taken all reasonable actions necessary to
obtain, and that upon recordation of this Deed of Trust, Beneficiary 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. Trustor acknowledges and agrees that upon recordation of this Deed of Trust, Beneficiary’s
interest in the Rents shall be deemed to be fully perfected, “choate” and enforced as to Trustor
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 Deed of Trust, 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,
Trustor and Beneficiary agree that (a) this Deed of Trust shall constitute a “security agreement”
for purposes of Section 552(b) of the Bankruptcy Code, (b) the security interest created by this
Deed of Trust extends to property of Trustor 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 Beneficiary.





          (i) Any Rents received by the Beneficiary hereunder, after payment of all proper costs
and expenses arising under Section 13.5 of this Deed of Trust, shall be applied in
accordance with the provisions of Section 9.3(iv) of this Deed of Trust. The
Beneficiary shall be accountable to the Trustor only for Rents actually received by the
Beneficiary. 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 Trustor 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 Beneficiary for payment of



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



          SECTION 5.3. No Release. Neither this Deed of Trust nor any action or inaction on the
part of the Beneficiary shall release any tenant under any Lease, any guarantor of any Lease or the
Trustor from any of their respective obligations under such Leases or constitute an assumption of
any such obligation on the part of the Beneficiary. No action or failure to act on the part of the
Trustor shall adversely affect or limit the rights of the Beneficiary under this Deed of Trust or,
through this Deed of Trust, under such Leases. Nothing contained herein shall operate or be
construed to (i) obligate the Beneficiary to perform any of the terms, covenants or conditions
contained in any Lease or otherwise to impose any obligation upon the Beneficiary 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 Beneficiary 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
Beneficiary 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 Trustor 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 Trustor
in accordance with the provisions of Article VII hereof, the Trustor 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 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






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Beneficiary may advance the same and the amount so advanced shall accrue interest at the
Default Rate and be payable by the Trustor to the Beneficiary.




          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 Deed of Trust, the Trustor shall pay
such taxes in accordance with Section 7.1 or if such taxes are assessed against the
Beneficiary, shall promptly pay to the Beneficiary 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
Beneficiary, or would constitute usury or render the indebtedness wholly or partially usurious
under applicable law, the Trustor shall pay or reimburse Beneficiary 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 Beneficiary has exercised its right to judicial foreclosure or non-judicial
foreclosure of the lien hereof, such proceeds shall be paid to the Beneficiary to satisfy any
deficiency remaining after such foreclosure. The Beneficiary 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 Beneficiary shall in a reasonably prompt manner be released to the
Trustor.




ARTICLE VII.




CONTESTING OF PAYMENTS



          SECTION 7.1. Contesting of Taxes and Certain Statutory Liens. The Trustor 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) Trustor 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 Trustor’s books.







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ARTICLE VIII.




DESTRUCTION, CONDEMNATION AND RESTORATION



          SECTION 8.1. Destruction and Restoration. Trustor or its affiliates shall have the
right to retain the Proceeds received by the Trustor 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 Trustor shall promptly notify the Beneficiary upon receiving notice of
such Taking or commencement of proceedings therefor. The Beneficiary may participate in any
proceedings or negotiations which are reasonably likely to result in any Taking, and the Trustor
shall deliver or cause to be delivered to the Beneficiary all instruments reasonably requested by
it to permit such participation. The Beneficiary may be represented by counsel satisfactory to it
at the reasonable expense of the Trustor in connection with any such participation. The Trustor
shall pay all reasonable fees, costs and expenses incurred by the Beneficiary in connection with
any Taking and in seeking and obtaining any award or payment on account thereof. Trustor 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 Trustor 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 Beneficiary may at its option, in addition to any other action
permitted under this Deed of Trust 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:





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



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     (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 Trustor relating thereto and, exclude the Trustor, 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 Beneficiary
may deem advisable, (E) manage, lease and operate the Premises and carry on the business
thereof and exercise all rights and powers of the Trustor with respect thereto either in the
name of the Trustor or otherwise or (F) collect and receive all Rents. The Beneficiary
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 or through the
Mortgaged Property Trustee, (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 Deed of Trust and the other Notes Documents, or in aid of
the execution of any power granted in this Deed of Trust, or for any foreclosure hereunder,
or for the enforcement of any other appropriate legal or equitable remedy or otherwise as
the Beneficiary shall elect.



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





     (i) If an Event of Default has occurred and is continuing, Beneficiary may, at its
election and by or through the Mortgaged Property Trustee, any substitute trustee, or any
nominee, assignee or otherwise, institute proceedings for the complete foreclosure of this
Deed of Trust, in which case the Mortgaged Property may be sold for cash or credit in one or
more parcels. In addition, Beneficiary may deliver to Mortgaged Property Trustee a written
declaration of default and demand for sale, to cause Trustor’s interest in the Mortgaged
Property or any portion thereof to be sold, which notice Mortgaged Property Trustee or
Beneficiary shall cause to be duly filed for recording in the official records of the county
in which the Mortgaged Property is located. With respect to any notices required or
permitted under the UCC, Trustor agrees that five (5) business days’ prior written notice
shall be deemed commercially reasonable. At any such sale by virtue of any judicial
proceedings or any other legal right, remedy or recourse, the title to and right of
possession of any such property shall pass to the purchaser thereof, and to the fullest
extent permitted by law, Trustor shall be completely and irrevocably divested of all of its
right, title, interest, claim and demand whatsoever, either at law or in equity, in and to
the property sold and such sale shall be a perpetual bar both at law and in equity



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against Trustor, and against all other persons claiming or to claim the property sold
or any part thereof, by, through or under Trustor. Mortgaged Property Trustee, Beneficiary,
the Secured Parties or their respective nominee may be a purchaser at such sale and if such
Person is the highest bidder, may credit the portion of the purchase price that would be
distributed to Beneficiary against the Secured Obligations in lieu of paying cash.




     (ii) If Beneficiary elects to foreclose by exercise of the power of sale contained
herein, Beneficiary shall notify Mortgaged Property Trustee and upon receipt of such notice,
Mortgaged Property Trustee, or a Successor Trustee shall conduct such sale in accordance
with the provisions of Section 14.3.




     (iii) 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 Beneficiary, immediately become due and
payable, anything in this Deed of Trust to the contrary notwithstanding.




     (iv) 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 Beneficiary under this Deed of
Trust, 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 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
Trustor or to whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.




     (v) The Beneficiary (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 Beneficiary 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 Beneficiary is authorized to deduct under this Deed
of Trust.




     (vi) The Beneficiary 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 Beneficiary, without further notice or








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publication, may make such sale at the time and place to which the same shall be so
adjourned.




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




     (viii) To the fullest extent permitted by law, Trustor, for itself and all who may
claim through or under Trustor, 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 Deed of Trust, 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 Trustor 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.





     (i) The Beneficiary 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 Beneficiary 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 Deed of Trust. In case of proceedings against the Trustor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the liquidation of its
assets, the Beneficiary 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 Beneficiary 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 Trustor.




     (ii) Any recovery of any judgment by the Beneficiary 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
Beneficiary hereunder, but such conveyances, powers, rights and remedies shall continue
unimpaired as before.




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



          SECTION 9.5. Legal Proceedings After an Event of Default.







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     (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 Trustor
shall enter its voluntary appearance in such action, suit or proceeding.




     (ii) If an Event of Default has occurred and is continuing, Beneficiary may, at its
election and by or through the Mortgaged Property Trustee, any substitute trustee, or any
nominee, assignee or otherwise, make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice to Trustor or
regard to the adequacy of the Mortgaged Property for the repayment of the Secured
Obligations, the appointment of a receiver of the Mortgaged Property, and Trustor
irrevocably consents to such appointment. Any such receiver shall have all the usual powers
and duties of receivers in similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may be approved by the court,
and shall apply such Rents in accordance with the provisions of Section 9.3(iv).




     (iii) The Trustor 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 Deed of Trust, 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 Trustor hereby
expressly (W) waives all benefit or advantage of any such law or laws, including, without
limitation, any statute of limitations applicable to this Deed of Trust, (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 Deed of Trust 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 Beneficiary by this Deed of Trust but
to suffer and permit the execution of every such power as though no such law or laws had
been made or enacted. The Beneficiary 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
Beneficiary by this Deed of Trust 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 Deed of Trust or now or hereafter existing at law or in






-26-









 







equity. Any delay or omission of the Beneficiary 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 Deed
of Trust may be exercised from time to time concurrently or independently, when and as often as may
be deemed expedient by the Beneficiary in such order and manner as the Beneficiary, in its sole
discretion, may elect. If the Beneficiary accepts any monies required to be paid by the Trustor
under this Deed of Trust 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 Deed of
Trust or to declare an Event of Default with regard to subsequent defaults. If the Beneficiary
accepts any monies required to be paid by the Trustor under this Deed of Trust in an amount less
than the 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 Trustor to pay the entire
sum then due, and the Trustor’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 Beneficiary 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. Trustor shall pay all expenses
(including reasonable attorneys’ fees and expenses) of or incidental to the perfection and
enforcement of this Deed of Trust and the other Security Documents, or the enforcement, compromise
or settlement of the Secured Obligations or any claim under this Deed of Trust and the other
Security Documents, or for defending or asserting the rights and claims of Beneficiary or the
Secured Parties in respect thereof, by litigation or otherwise.




          SECTION 9.8. Rescission of Notice of Default. Beneficiary (on behalf of the Secured
Parties) may from time to time rescind any notice of default or notice of sale before any Mortgaged
Property Trustee’s sale as provided above, by executing and delivering to Mortgaged Property
Trustee a written notice of such rescission, which such notice, when recorded, shall also
constitute a cancellation of any prior declaration of default and demand for sale. The exercise by
Beneficiary of such right of rescission shall not constitute a waiver of any breach or default then
existing or subsequently occurring, or impair the right of Beneficiary to execute and deliver to
Mortgaged Property Trustee, as above provided, other declarations or notices of default to satisfy
the obligations of this Deed of Trust or the obligations secured hereby, nor otherwise affect any
provision, covenant or condition of any Notes Document or any of the rights, obligations or
remedies of Mortgaged Property Trustee, Beneficiary or other Secured Parties hereunder or
thereunder.




          SECTION 9.9. Effect of Judgment. The obtaining of any judgment by Beneficiary 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 of this Deed of Trust upon the Mortgaged Property or any part thereof, or
any liens, powers, rights and remedies of Beneficiary hereunder, but such liens, powers, rights and
remedies shall continue unimpaired as before until the judgment or levy is satisfied.







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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 Deed of Trust 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 Beneficiary 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 Beneficiary’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 Beneficiary in any other manner permitted under applicable law.
The Beneficiary may require the Trustor to assemble such personal property and make it available to
the Beneficiary at a place to be designated by the Beneficiary. The Trustor acknowledges and
agrees that a disposition of the personal property in accordance with the Beneficiary’s rights and
remedies in respect to the Mortgaged Property as heretofore provided is a commercially reasonable
disposition thereof; provided, however, that the Beneficiary shall give the Trustor 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 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:


The Trustor having the address described
in the Preamble hereof. 


The Trustor is a limited liability
company organized under the laws of the
State of Delaware whose Organization
Number is 4035122.

	 	Name and Address of the
secured party:


The Beneficiary 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 Deed of Trust 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 Trustor.






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




ARTICLE XI.




MORTGAGED PROPERTY TRUSTEE



          SECTION 11.1. Acceptance by Mortgaged Property Trustee. Mortgaged Property Trustee
accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record
as provided by law.




          SECTION 11.2. Compensation. Mortgaged Property Trustee waives any statutory fee and
shall accept reasonable compensation from Beneficiary in lieu thereof for any services rendered by
it in accordance with the terms hereof.




          SECTION 11.3. Action in Accordance with Instructions. Upon receipt by Mortgaged
Property Trustee of instructions from Beneficiary at any time or from time to time, Mortgaged
Property Trustee shall (a) give any notice or direction or exercise any right, remedy or power
hereunder or in respect of any part or all of the Mortgaged Property as shall be specified in such
instructions, and (b) approve as satisfactory all matters required by the terms hereof to be
satisfactory to Mortgaged Property Trustee or to Beneficiary. In addition, at any time or from
time to time, upon request of Beneficiary and presentation of this Deed of Trust for endorsement,
and without affecting the liability of any Person for payment of the Secured Obligations, Mortgaged
Property Trustee may, upon such request, reconvey all or any part of the Mortgaged Property,
consent to the making of any map or plat thereof, join in granting an easement thereon, or join in
any extension agreement or any agreement subordinating the lien and estate hereof.




          SECTION 11.4. Resignation. Mortgaged Property Trustee may resign at any time upon
giving not less than 60 days prior written notice to Beneficiary, but shall continue to act as
trustee until its successor shall have been qualified and appointed pursuant to Section
11.5 hereof.




          SECTION 11.5. Substitute Trustee. In case of the resignation of Mortgaged Property
Trustee or any subsequent substitute trustee or trustees, or the inability (through death or
otherwise), refusal or failure of Mortgaged Property Trustee or any subsequent substitute trustee
or trustees to act, or at the option of Beneficiary for any other reason (which reason need not be
stated), a substitute Mortgaged Property Trustee, or, if preferred, multiple substitute Mortgaged
Property Trustees (herein referred to as the “Substitute Trustee”) may be named, constituted and
appointed by Beneficiary, without other formality than an appointment and designation




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in writing, which appointment and designation shall be full evidence of the right and
authority to make the same and of all facts therein recited, and this conveyance shall vest in the
Substitute Trustee (whether one or more) the title, powers and duties herein conferred on Mortgaged
Property Trustee originally named herein, and the conveyance of the Substitute Trustee to the
purchaser(s) at any sale of the Mortgaged Property or any part thereof shall be equally valid and
effective. If multiple Substitute Trustees are appointed, each of such multiple Substitute
Trustees shall be empowered and authorized to act alone without the necessity of the joinder of the
other multiple Substitute Trustees, whenever any action or undertaking of such Substitute Trustees
is requested or required under or pursuant to this Deed of Trust or applicable law. The right to
appoint one or more Substitute Trustees shall exist as often and whenever from any of said causes,
Mortgaged Property Trustee, or any Substitute Trustee, resigns or cannot, will not or does not act,
or Beneficiary desires to appoint a new Mortgaged Property Trustee. No bond shall ever be required
of Mortgaged Property Trustee, or any Substitute Trustee. The recitals in any conveyance made by
Mortgaged Property Trustee, or any Substitute Trustee, shall be accepted and construed in court and
elsewhere as prima facie evidence and proof of the facts recited, and no other proof shall be
required as to the request by Beneficiary to Mortgaged Property Trustee to enforce this Deed of
Trust, or as to the notice of or holding of the sale, or as to any particulars thereof, or as to
the resignation of Mortgaged Property Trustee, or any Substitute Trustee, or as to the inability,
refusal or failure of Mortgaged Property Trustee, or any Substitute Trustee, to act, or as to the
election of Beneficiary to appoint a new Mortgaged Property Trustee, or as to appointment of a
Substitute Trustee, and all prerequisites of said sale shall be presumed to have been performed;
and each sale made under the powers herein granted shall be a perpetual bar against Trustor and the
heirs, personal representatives, successors and assigns of Trustor. Mortgaged Property Trustee,
original or Substitute Trustee, is hereby authorized and empowered to appoint any one or more
persons as attorney-in-fact to act as Mortgaged Property Trustee under him and in his name, place
and stead in order to take any actions that Mortgaged Property Trustee is authorized and empowered
to do hereunder, such appointment to be evidenced by an instrument signed and acknowledged by said
Mortgaged Property Trustee, original or Substitute Trustee; and all acts done by said
attorney-in-fact shall be valid, lawful and binding as if done by said Mortgaged Property Trustee,
original or Substitute Trustee, in person.




ARTICLE XII.




FURTHER ASSURANCES



          SECTION 12.1. Recording Documentation To Assure Security. The Trustor shall,
forthwith after the execution and delivery hereof and thereafter, from time to time, cause this
Deed of Trust 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 Beneficiary therein.





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          SECTION 12.2. Further Acts. The Trustor shall, at the sole cost and expense of the
Trustor, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers, financing statements, continuation
statements, instruments and assurances as the Beneficiary shall from time to time request, which
may be necessary in the reasonable judgment of the Beneficiary from time to time to assure,
perfect, convey, assign, mortgage, transfer and confirm unto the Beneficiary, the property and
rights hereby conveyed or assigned or which the Trustor may be or may hereafter become bound to
convey or assign to the Beneficiary 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 Beneficiary desires to exercise any
remedies, consensual rights or attorney-in-fact powers set forth in this Deed of Trust 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 Beneficiary, the Trustor agrees to reasonably
assist and aid the Beneficiary 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 Trustor shall fail
after demand to execute any instrument or take any action required to be executed or taken by the
Trustor under this Section 12.2, the Beneficiary, upon notice to Trustor, may execute or
take the same as the attorney-in-fact for the Trustor, such power of attorney being coupled with an
interest and is irrevocable.




          SECTION 12.3. Additional Security. Without notice to or consent of the Trustor and
without impairment of the lien and rights created by this Deed of Trust, the Beneficiary may accept
(but the Trustor shall not be obligated to furnish) from the Trustor 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 Beneficiary from resorting, first, to such
additional security, and, second, to the security created by this Deed of Trust without affecting
the Beneficiary’s lien and rights under this Deed of Trust.




ARTICLE XIII.




MISCELLANEOUS



          SECTION 13.1. Trust is Irrevocable. The Trust created hereby is irrevocable by the
Trustor.




          SECTION 13.2. Covenants To Run with the Land. All of the grants, covenants, terms,
provisions and conditions in this Deed of Trust shall run with the Land and shall apply to, and
bind the successors and assigns of, the Trustor. If there shall be more than one trustor with
respect to the Mortgaged Property, the covenants and warranties hereof shall be joint and several.




          SECTION 13.3. Environmental Indemnity.







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          (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 solely with Trustor.
Accordingly, Trustor 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. Trustor 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, Trustor shall not be liable under such
indemnification to the extent such Liabilities result directly from Collateral Agent’s gross
negligence or willful misconduct.



Trustor’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 Beneficiary 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 13.4. No Merger. The rights and estate created by this Deed of Trust shall
not, under any circumstances, be held to have merged into any other estate or interest now owned or
hereafter acquired by the Beneficiary unless the Beneficiary shall have consented to such merger in
writing.




          SECTION 13.5. Secured Obligations to Include Judgments; Other Collateral. The term
“Secured Obligations” as defined in this Deed of Trust shall include, without limitation, any
judgment(s) or final decree(s) rendered to collect any money obligations of Trustor to Beneficiary
and/or any Secured Parties and/or to enforce the performance or collection of all rights, remedies,
obligations, covenants, agreements, conditions, indemnities, representations,






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warranties, and other liabilities of the Trustor under this Deed of Trust or any or all of the
other Notes Documents. Furthermore, Trustor acknowledges and agrees that the Secured Obligations
are secured by the Mortgaged Property and various other collateral at the time of execution of this
Deed of Trust. Trustor 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, Trustor acknowledges that it is in Beneficiary’s
contemplation that the other collateral pledged to secure the Secured Obligations may be pursued by
Beneficiary in separate proceedings in the various states and counties where such collateral may be
located and additionally that Trustor will remain liable for any deficiency judgments in addition
to any amounts Beneficiary 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 Deed of Trust, 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 13.6. Concerning Beneficiary.




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




          (ii) The Beneficiary 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 Beneficiary, in its individual capacity,
accords its own property consisting of similar instruments or interests, it being understood that
neither the Beneficiary 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 Beneficiary
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 Beneficiary in its capacity as Collateral Agent and as a Secured Party. The Beneficiary may
accept deposits from, lend money to, and generally engage in any kind of banking, trust or other
business with the Trustor or any Affiliate of the Trustor to the same extent as if the Beneficiary
were not acting as Trustee and Collateral Agent.




          (iv) If any portion of the Mortgaged Property also constitutes collateral granted to the
Beneficiary 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 Security Agreement,
the provisions of the Security Agreement shall control, and (y) in all other cases the Beneficiary,
in its sole discretion, shall select which provision or provisions shall control.







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          SECTION 13.7. Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact. If the
Trustor shall fail to perform any covenants contained in this Deed of Trust (including, without
limitation, the Trustor’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 Trustor with respect to any Mortgaged Property), the Beneficiary may
(but shall not be obligated to) (x) following the occurrence of an Event of Default, or (y) after
delivery of notice to Trustor 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 Deed of Trust; provided,
however, that the Beneficiary shall in no event be bound to inquire into the validity of any tax,
lien, imposition or other obligation which the Trustor fails to pay or perform as and when required
hereby and which the Trustor does not contest in accordance with the provisions of Article
VII hereof. Any and all amounts so expended by the Beneficiary shall be paid by the Trustor in
accordance with the provisions hereof. Neither the provisions of this Section 13.7 nor any
action taken by the Beneficiary pursuant to the provisions of this Section 13.7 shall
prevent any such failure to observe any covenant contained in this Deed of Trust nor any breach of
representation or warranty from constituting an Event of Default. The Trustor hereby appoints the
Beneficiary its attorney-in-fact, with full authority in the place and stead of the Trustor and in
the name of the Trustor, or otherwise, from time to time in the Beneficiary’s discretion to take
any action and to execute any instrument consistent with the terms hereof and the other Notes
Documents which the Beneficiary may deem reasonably necessary to accomplish the purposes hereof if
Beneficiary reasonably believes the security afforded by this Deed of Trust 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 Trustor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue
hereof.




          SECTION 13.8. Continuing Security Interest; Assignment. This Deed of Trust shall
create a continuing lien on and security interest in the Mortgaged Property and shall (i) be
binding upon the Trustor, its successors and assigns and (ii) inure, together with the rights and
remedies of the Mortgaged Property Trustee and the Beneficiary hereunder, to the benefit of the
Mortgaged Property Trustee and the Beneficiary for the benefit of the Secured Parties,
respectively, 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 Deed of Trust to any other person, and such other person shall thereupon become 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 13.9. 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 Deed of Trust pursuant to the Indenture, the lien of this Deed of Trust shall






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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
Beneficiary shall, upon the request and at the sole cost and expense of the Trustor, forthwith
deliver to Mortgaged Property Trustee a written request for reconveyance, and will surrender to
Mortgaged Property Trustee for cancellation this Deed of Trust; however, Beneficiary will have no
obligation to deliver the written request until Beneficiary and the other Secured Parties have been
paid by Trustor, in immediately available funds, all escrow, closing, and recording costs, the
costs of preparing and issuing the reconveyance, and any trustee’s or reconveyance fees. Upon
Mortgaged Property Trustee’s receipt of the written request by Beneficiary and any other required
documents, Mortgaged Property Trustee will reconvey, without warranty, the Mortgaged Property or
that portion then held. To the extent permitted by law, the reconveyance may describe the grantee
as the Person or Persons legally entitled and the recitals of any matters or facts in any
reconveyance will be conclusive proof of the truthfulness of them. Neither Beneficiary nor
Mortgaged Property Trustee will have any duty to determine the rights of Persons claiming to be
rightful grantees of any reconveyance and the terms of any grant, reconveyance or assignment shall
be without recourse to Beneficiary and without any representation or warranty (express, implied or
otherwise) on behalf of Beneficiary, and Beneficiary shall not enter into or issue any other
estoppels, agreements or other instruments in connection therewith. When the Mortgaged Property
has been fully reconveyed, the last reconveyance will operate as a reassignment of all future Rents
of the Mortgaged Property to the Person legally entitled.




          SECTION 13.10. Assignment in lieu of Reconveyance. In lieu of reconveyance or
satisfaction, Beneficiary will provide an assignment of this Deed of Trust and related indebtedness
as Trustor may designate provided that (i) Trustor pays all reasonable costs and fees associated
with assignment, (ii) assignment is without representation or warranty by, or recourse to,
assignor, except that, assignor will represent that it is the holder of this Deed of Trust, that it
has not otherwise encumbered this Deed of Trust, and that it has full right and authority to
assign, (iii) assignor obtains an indemnification from Trustor reasonably acceptable to assignor in
favor of assignor for all liability arising from assignor’s having provided an assignment in lieu
of a reconveyance or satisfaction, and (iv) Trustor otherwise complies with assignor’s reasonable
requests in connection with the assignment in accordance with commercially reasonable practices in
the jurisdiction in which the property is located.




          SECTION 13.11. Modification in Writing. No amendment, modification, supplement,
termination or waiver of or to any provision hereof, nor consent to any departure by the Trustor
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 Beneficiary. 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 Trustor 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 Deed of Trust or any other Notes Document, no notice to or demand on
the Trustor in any case shall entitle the Trustor to any other or further notice or demand in
similar or other circumstances.







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          SECTION 13.12. 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 Mortgaged Property Trustee:
	 
	 	 	 	Peter S. Graf

c/o Republic Title of Texas, Inc.

2626 Howell Street, 10th Floor

Dallas, Texas 75204
	 
	 	(ii)	 	If to Trustor:
	 
	 	 	 	Great Wolf Lodge of Grapevine, LLC

c/o Great Wolf Resorts, Inc.

122 West Washington Avenue

Suite 600

Madison, WI 53703

Attention: General Counsel

Phone: (608) 661-4700

Fax: (608) 661-4701
	 
	 	(iii)	 	If to Beneficiary:
	 
	 	 	 	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 13.13. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS DEED OF
TRUST 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. TRUSTOR 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 TRUSTOR AT ITS ADDRESS SET FORTH IN SECTION
13.12 HEREOF OR AT SUCH OTHER ADDRESS OF WHICH THE BENEFICIARY SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO. IF ANY AGENT APPOINTED BY






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TRUSTOR REFUSES TO ACCEPT SERVICE, TRUSTOR 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 BENEFICIARY TO BRING PROCEEDINGS AGAINST
TRUSTOR 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 DEED OF TRUST OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          SECTION 13.14. 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.




          SECTION 13.15. 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 Deed of Trust is a part. All agreements between the Trustor and the
Beneficiary 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 Trustor 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 Trustor
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 Trustor. All sums paid or agreed
to be paid for the use, forbearance or detention of the principal under any extension of credit by
the Beneficiary 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 13.16. Business Days. In the event any time period or any date provided in
this Deed of Trust 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.







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          SECTION 13.17. Relationship. The relationship of the Beneficiary to the Trustor
hereunder is strictly and solely that of lender and borrower and trustor and beneficiary and
nothing contained in the Indenture, this Deed of Trust, 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 Beneficiary and the Trustor other than as lender
and borrower and trustor and beneficiary.




          SECTION 13.18. Waiver of Stay.




          (i) The Trustor agrees, to the full extent that it may lawfully do so, that in the event that
the Trustor or any property or assets of the Trustor shall hereafter become the subject of a
voluntary or involuntary proceeding under the Bankruptcy Code or the Trustor 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 Beneficiary has
commenced foreclosure proceedings under this Deed of Trust, the Beneficiary 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 Beneficiary as
provided in this Deed of Trust or in any other Security Document.




          (ii) The Beneficiary shall have the right to petition or move any court having jurisdiction
over any proceeding described in Section 13.18(i) hereof for the purposes provided therein,
and the Trustor agrees not to oppose any such petition or motion and at Trustor’s sole but
reasonable cost and expense, to assist and cooperate with the Beneficiary, as may be reasonably
requested by the Beneficiary from time to time, in obtaining any relief requested by the
Beneficiary, 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 Beneficiary or any such court.




          SECTION 13.19. No Credit for Payment of Taxes or Impositions. The Trustor 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 Trustor 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 13.20. No Claims Against the Beneficiary. Nothing contained in this Deed of
Trust shall constitute any consent or request by the Beneficiary, express or implied, for the
performance of any labor or services or the furnishing of any materials or other property in
respect of the Premises or any part thereof, nor as giving the Trustor 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
Beneficiary 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.




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          SECTION 13.21. Obligations Absolute. All obligations of the Trustor hereunder shall be
absolute and unconditional irrespective of:




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




          (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 13.11 hereof; or




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




          SECTION 13.22. Beneficiary’s Right To Sever Indebtedness.




          (i) The Trustor 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 Trustor, and property of the Trustor’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 Deed of Trust 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 Trustor intends that the Beneficiary have the same rights with respect to the
Mortgaged Property, in foreclosure or otherwise, that the Beneficiary 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 Trustor agrees that the
Beneficiary may at any time by notice (an “Allocation Notice”) to the Trustor 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 Trustor 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




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proceeds on any foreclosure of the Mortgaged Property shall exceed the Allocated Indebtedness,
such proceeds shall belong to the Trustor and shall not be available hereunder to satisfy any
Secured Obligations of the Trustor other than the Allocated 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 Deed of Trust commenced after the giving by the Beneficiary of an
Allocation Notice, the Allocation Notice shall be conclusive proof of the limits of the Secured
Obligations hereby secured, and the Trustor may introduce, by way of defense or counterclaim,
evidence thereof in any such action or proceeding. Notwithstanding any provision of this
Section 13.22, the proceeds received by the Beneficiary pursuant to this Deed of Trust
shall be applied by the Beneficiary in accordance with the provisions of Section 9.3(iv)
hereof.




          (ii) The Trustor 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 Deed
of Trust constitutes the exclusive means for satisfaction of the Secured Obligations or which makes
unavailable a deficiency judgment or any subsequent remedy because the Beneficiary elected to
proceed with a power of sale foreclosure or such other remedy or because of any failure by the
Beneficiary 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 Beneficiary is not entitled to a deficiency judgment, the Trustor shall not
(A) introduce in any other jurisdiction such judgment as a defense to enforcement against the
Trustor 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 13.22, including, without limitation, any
amendment to this Deed of Trust, any substitute promissory note or affidavit or certificate of any
kind, the Beneficiary may execute, deliver or record such instrument as the attorney-in-fact of the
Trustor. 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 13.22 shall be effective only to the maximum extent permitted by law.




          SECTION 13.23. Multi-Site Real Estate Transaction. Trustor acknowledges that this
Deed of Trust is one of a number of mortgages and other security documents (“Other
Mortgages”) that secure the Secured Obligations. Trustor agrees that the lien of this Deed of
Trust shall be absolute and unconditional and shall not in any manner be affected or impaired by
any acts or omissions whatsoever of Beneficiary, and without limiting the generality of the
foregoing, the lien hereof shall not be impaired by any acceptance by Beneficiary of any security
for or guarantees of the Secured Obligations, or by any failure, neglect or omission on the part of
Beneficiary to realize upon or protect any Secured Obligation or any collateral security therefor
including the Other Mortgages. The lien of this Deed of Trust shall not in any manner be impaired
or affected by any release (except as to the property released), sale, pledge, surrender,
compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or
disposition of any of the Secured Obligations or of any of the collateral security therefor,
including




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the Other Mortgages or any guarantee thereof, and, to the fullest extent permitted by applicable
law, Beneficiary may at its discretion foreclose, exercise any power of sale, or exercise any other
remedy available to it under any or all of the Other Mortgages without first exercising or
enforcing any of its rights and remedies hereunder. Such exercise of Beneficiary’s rights and
remedies under any or all of the Other Mortgages shall not in any manner impair the indebtedness
hereby secured or the lien of this Deed of Trust and any exercise of the rights and remedies of
Beneficiary hereunder shall not impair the lien of any of the Other Mortgages or any of
Beneficiary’s rights and remedies thereunder. To the fullest extent permitted by applicable law,
Trustor specifically consents and agrees that Beneficiary 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 XIV.




ADDITIONAL STATE OF TEXAS PROVISIONS



          To the extent of any conflict between the provisions of this Article XIV and any of
the other provisions of this Deed of Trust, the provisions of this Article XIV shall
control.




          SECTION 14.1. Compliance with Applicable Law. Notwithstanding anything else herein to the
contrary,




          (i) In the event that any provision in this Deed of Trust shall be inconsistent with any
provision of Texas law regarding judicial foreclosure or non-judicial foreclosure, including the
Act (the “Texas Foreclosure Law”), the provisions of the Texas Foreclosure Law shall take
precedence over the provisions of this Deed of Trust, but shall not invalidate or render
unenforceable any other provision of this Deed of Trust that can be construed in a manner
consistent with Texas Foreclosure Law; and




          (ii) If any provision of this Deed of Trust shall grant to Beneficiary (including Beneficiary
acting as a mortgagee-in-possession) or a receiver appointed pursuant to the provisions of this
Deed of Trust, any rights or remedies prior to, upon or following the occurrence of an Event of
Default which are more limited than the rights that would otherwise be vested in Beneficiary or
such receiver under the Texas Foreclosure Law in the absence of said provision, Beneficiary and
such receiver shall be vested with the rights granted under the Texas Foreclosure Law to the full
extent permitted by law.




          SECTION 14.2. Additional Provisions.




          (i) To the extent the highest lawful rate is determined by reference to the laws of the State
of Texas, same shall be determined by reference to the indicated (weekly) rate ceiling (as defined
and described in Tex. Finance Code § 303.002, as amended) at the applicable time in effect.







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          (ii) In consideration of the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Trustor hereby confirms and agrees that this Deed
of Trust (including the Exhibits hereto), the Indenture and any other Notes Documents related
hereto or thereto executed by any of the parties hereto or thereto substantially concurrently
herewith together constitute a written “loan agreement” as defined in Section 26.02(a) of the Texas
Business and Commerce Code.




          SECTION 14.3. Texas Foreclosure Provisions. Notwithstanding any term or provision
otherwise set forth in this Deed of Trust, the following terms and provisions shall govern and
control:




          (i) If an Event of Default has occurred and is continuing, Mortgaged Property Trustee, its
successor or substitute, is authorized and empowered and it shall be his special duty at the
request of Beneficiary to sell the Mortgaged Property, or any part thereof, in compliance with the
applicable requirements, at the time of sale, of Section 51.002 of the Texas Property Code, at
public auction to the highest bidder for cash between the hours of 10 o’clock a.m. and 4 o’clock
p.m. on the first Tuesday in any month after having given notice of such sale in accordance with
the statutes of the State of Texas then in force governing sales of real estate under powers
conferred by this Deed of Trust. Such sale shall be made at the courthouse of the county in which
the Mortgaged Property (or any of that portion thereof to be sold) is located (whether the parts or
parcels thereof, if any, in different counties are contiguous or not, and except as otherwise set
forth under applicable law, and without the necessity of having any personally present at such
sale) in the area designated by the county commissioners for foreclosure sales (or, if no area has
been designated, at the location at the courthouse designated by Beneficiary by or through Trustee
in the notice hereinbefore described). Any sale made by Mortgaged Property Trustee hereunder may
be as an entirety or in such parcels as Beneficiary may request, and any sale may be adjourned by
announcement at the time and place appointed for such sale without further notice except as may be
required by law. The sale by Mortgaged Property Trustee of less than the whole of the Mortgaged
Property shall not exhaust the power of sale herein granted, and Mortgaged Property Trustee is
specifically empowered to make successive sale or sales under such power until the whole of the
Mortgaged Property shall be sold; and, if the proceeds of such sale of less than the whole of the
Mortgaged Property shall be less than the aggregate of the Secured Obligations secured hereby and
the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof
shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as
though no sale had been made; provided, however, that Trustor shall not have any right to require
the sale of less than the whole of the Mortgaged Property but Beneficiary shall have the right, at
its sole election, to request Mortgaged Property Trustee to sell less than the whole of the
Mortgaged Property. After each sale, Mortgaged Property Trustee shall make to the purchaser or
purchasers at such sale good and sufficient conveyances in the name of Trustor, conveying the
property so sold to the purchaser or purchasers in fee simple with general warranty of title, and
shall receive the proceeds of said sale or sales and apply the same as herein provided. Payment of
the purchase price to Mortgaged Property Trustee shall satisfy the obligation of purchaser at such
sale therefor, and such purchaser shall not be responsible for the application thereof. The power
of sale granted herein shall not be exhausted by any sale held hereunder by Mortgaged Property
Trustee or his substitute or successor, and such power of sale may be exercised from time to time
and as many




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times as Beneficiary may deem necessary until all of the Mortgaged Property has been duly sold
and all Secured Obligations have been fully paid. In the event any sale hereunder is not completed
or is defective in the opinion of Beneficiary, such sale shall not exhaust the power of sale
hereunder and Beneficiary shall have the right to cause a subsequent sale or sales to be made
hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by
Mortgaged Property Trustee or any successor or substitute appointed hereunder as to nonpayment of
the Secured Obligations secured hereby, or as to the occurrence of any default, or as to
Beneficiary having declared all of such indebtedness to be due and payable, or as to the request to
sell, or as to notice of time, place and terms of sale and of the properties to be sold having been
duly given, or as to the refusal, failure or inability to act of Mortgaged Property Trustee or any
substitute or successor, or as to the appointment of any substitute or successor trustee, or as to
any other act or thing having been duly done by Beneficiary or by such Mortgaged Property Trustee,
substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated
and recited. Mortgaged Property Trustee, its successor or substitute, may appoint or delegate any
one or more persons as Beneficiary to perform any act or acts necessary or incident to any sale
held by Mortgaged Property Trustee, including the posting of notices and the conduct of sale, but
in the name and on behalf of Mortgaged Property Trustee, its successor or substitute.




          (ii) Beneficiary shall have the right to become the purchaser at any sale held by any
Mortgaged Property Trustee or substitute or successor or by any receiver or public officer, and
Beneficiary purchasing at any such sale shall have the right to credit upon the amount of the bid
made therefor, to the extent necessary to satisfy such bid, the Secured Obligations owing to
Beneficiary.




          (iii) At any sale held by any Mortgaged Property Trustee or a Substitute Trustee, Mortgaged
Property Trustee or such Substitute Trustee shall deliver to the purchaser or purchasers at such
sale its good and sufficient deed or deeds conveying the property so sold, with a general warranty
of title, made on behalf of Trustor. The recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any Person, including, without limitation, Mortgaged
Property Trustee, Beneficiary, or other Secured Parties, may purchase at such sale, and Trustor
hereby covenants to warrant and defend the title of such purchaser or purchasers.




          (iv) Mortgaged Property Trustee may postpone the sale of all or any portion of the Mortgaged
Property by public announcement at the time and place of the scheduled sale, and from time to time
thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement or subsequent notice of sale, and without further notice may make such sale at the
time fixed by the last postponement, or may, in its discretion, give a new notice of sale.




          (v) Trustor hereby expressly waives any right which it may have to direct the order in which
any of the Mortgaged Property shall be sold in the event of any sale or sales pursuant to this Deed
of Trust.




          SECTION 14.4. NOTICE OF FINAL AGREEMENT.




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               THIS DEED OF TRUST, THE INDENTURE AND OTHER NOTES DOCUMENTS BETWEEN THE PARTIES REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.




THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.




          SECTION 14.5. Waiver of Deficiency Statute.




          (i) Waiver. In the event an interest in any of the Mortgaged Property is foreclosed
upon pursuant to a judicial or nonjudicial foreclosure sale, Trustor agrees as follows:
notwithstanding the provisions of Sections 51.003, 51.004, and 51.005 of the Texas Property Code
(as the same may be amended from time to time), and to the extent permitted by law, Trustor agrees
that Beneficiary shall be entitled to seek a deficiency judgment from Trustor and any other party
obligated on the Notes Documents equal to the difference between the amount owing on the Notes
Documents and the amount for which the Mortgaged Property was sold pursuant to judicial or
nonjudicial foreclosure sale. Trustor expressly recognizes that this Section constitutes a waiver
of the above-cited provisions of the Texas Property Code which would otherwise permit Trustor and
other persons against whom recovery of deficiencies is sought or Guarantors independently (even
absent the initiation of deficiency proceedings against them) to present competent evidence of the
fair market value of the Mortgaged Property as of the date of the foreclosure sale and offset
against any deficiency the amount by which the foreclosure sale price is determined to be less than
such fair market value. Trustor further recognizes and agrees that this waiver creates an
irrebuttable presumption that the foreclosure sale price is equal to the fair market value of the
Mortgaged Property for purposes of calculating deficiencies owed by Trustor, Guarantors, and others
against whom recovery of a deficiency is sought.




          (ii) Alternative to Waiver. Alternatively, in the event the waiver provided for in
subsection (i) above is determined by a court of competent jurisdiction to be
unenforceable, the following shall be the basis for the finder of fact’s determination of the fair
market value of the Mortgaged Property as of the date of the foreclosure sale in proceedings
governed by Sections 51.003, 51.004 and 51.005 of the Texas Property Code (as amended from time to
time): (i) the Mortgaged Property shall be valued in an “as is” condition as of the date of the
foreclosure sale, without any assumption or expectation that the Mortgaged Property will be
repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure;
(ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a
resale of the Mortgaged Property for cash promptly (but no later than twelve (12) months) following
the foreclosure sale; (iii) all reasonable closing costs customarily borne by the seller in
commercial real estate transactions should be deducted from the gross fair market value of the
Mortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey
of the Mortgaged Property, tax prorations, attorneys’ fees, and marketing costs; (iv) the gross
fair market value of the Mortgaged Property shall be further discounted to account for any
estimated holding costs associated with maintaining the Mortgaged Property pending sale, including,
without limitation, utilities expenses, property management fees, taxes and assessments (to the
extent not accounted for in (iii) above), and other maintenance, operational and ownership




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expenses; and (v) any expert opinion testimony given or considered in connection with a
determination of the fair market value of the Mortgaged Property must be given by persons having at
least five (5) years experience in appraising property similar to the Mortgaged Property and who
have conducted and prepared a complete written appraisal of the Mortgaged Property taking into
consideration the factors set forth above.




[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




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




NOTICE OF INDEMNIFICATION:




          TRUSTOR HEREBY ACKNOWLEDGES AND AGREES THAT THIS DEED OF TRUST CONTAINS CERTAIN
INDEMNIFICATION PROVISIONS WHICH, IN CERTAIN CIRCUMSTANCES, COULD INCLUDE AN INDEMNIFICATION BY
TRUSTOR OF BENEFICIARY AND/OR MORTGAGED PROPERTY TRUSTEE FROM CLAIMS OR LOSSES ARISING AS A RESULT
OF BENEFICIARY’S AND/OR MORTGAGED PROPERTY TRUSTEE’S OWN NEGLIGENCE.




	 	 	 	 	 	 	 

	 	 	GREAT WOLF LODGE OF GRAPEVINE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	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:

Name:
	 	/s/ J. Michael Schroeder
 

J. Michael Schroeder
	 	 
	 

	 	Title:
	 	Secretary	 	 






S-1









 






ACKNOWLEDGMENT




	 	 	 	 	 	 	 

	STATE OF WISCONSIN

	)	 		 	 	 
	 

	 	) ss.	 	 	 	
	DANE COUNTY

	)	 		 	 	 






          This
instrument was acknowledged before me on April 5, 2010 by J. Michael Schroeder of 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 Grapevine, LLC, a Delaware limited liability company, on behalf of said
company.




	 	 	 

	 

	 	/s/ Nikki Rockstroh
	 

	 	 
	 

	 	Notary Public’s Signature

(Personalized Seal)
	 
	 	 
	 

	 	Commission Expires 8/11/2013








 









 








Schedule A




Legal Description


BEING tract of land situated in the W. K. Payne Survey, Abstract No. 1211, City of Grapevine,
Tarrant County, Texas, being all of Lots 1R through 4R, Block 1R, Great Wolf Addition, an addition
to the City of Grapevine, Tarrant County, Texas, recorded in D210042449, Plat Records of Tarrant
County, Texas (P.R.T.C.T.), and being more particularly described by metes and bounds as follows;



BEGINNING at DFW Airport concrete monument No. 35 found on the westerly line of a tract of land as
described in instrument to DFW International Airport, recorded in Volume 5283, Page 791, Deed
Records of Tarrant County, Texas, said monument being the southeast corner of Lot 1R, Block 1 of
said Great Wolf Addition, and being on the northerly right-of-way line of Coppell Road (a variable
width right-of-way);



THENCE South 89 degrees 47 minutes 14 seconds West along the northerly right-of-way line of said
Coppell Road, a distance of 1,810.81 feet to a 5/8 inch iron rod found with a cap stamped
“Huitt-Zollars” on the easterly right-of-way line of Spur 382 (Old State Hwy. 114 a variable width
right-of-way);



THENCE along the easterly right-of-way line of said Spur 382 the following:



North 34 degrees 07 minutes 26 seconds West a distance of 48.30 feet to a TxDOT brass monument
found, being the beginning of a non-tangent curve to the right having a radius of 430.68 feet;



along said curve to the right through a central angle of 18 degrees 02 minutes 07 seconds, an arc
distance of 135.57 feet and being subtended by a chord bearing, North 25 degrees 03 minutes 29
seconds West, a distance 135.01 feet a 5/8 inch iron rod set with a cap stamped “Huitt-Zollars”;



North 00 degrees 46 minutes 44 seconds West a distance of 194.22 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 25 degrees 47 minutes 00 seconds East a distance of 145.79 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars” on the southeasterly right-of-way line of State Highway No. 26,
a variable width right-of-way as defined in instrument to the State of Texas, recorded in Volume
9616, Page 1993, Deed Records of Tarrant County, Texas and being the beginning of a non-tangent
curve to the left having a radius of 2,341.90 feet;



THENCE along the southeasterly right-of-way line of said State Highway No. 26 the following:



along said curve to the left having a central angle of 5 degrees 57 minutes 31 seconds, an arc
distance of 243.55 feet and being subtended by a chord bearing North 63 degrees 50 minutes 05
seconds East, a distance 243.44 feet to a 5/8 inch iron rod found with a cap stamped
“Huitt-Zollars”;



North 66 degrees 17 minutes 10 seconds East a distance of 103.13 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 60 degrees 27 minutes 10 seconds East a distance of 103.13 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;







 









 







North 50 degrees 49 minutes 15 seconds East a distance of 103.04 feed to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 51 degrees 59 minutes 00 seconds East a distance of 103.26 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 48 degrees 47 minutes 22 seconds East a distance of 310.04 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 42 degrees 20 minutes 56 seconds East a distance of 100.00 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 50 degrees 15 minutes 22 seconds East a distance of 36.34 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 42 degrees 20 minutes 26 seconds East a distance of 64.01 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 28 degrees 18 minutes 08 seconds East a distance of 107.78 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 42 degrees 20 minutes 56 seconds East a distance of 959.63 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars” on the southerly line of a right-of-way dedication as shown on
the plat of Great Wolf Addition, as recorded in Cabinet A, Slide 11261, Plat Records of Tarrant
County, Texas;



THENCE, along the southerly and the easterly of said right-of-way dedication the following:



South 47 degrees 38 minutes 24 seconds East a distance of 26.72 feet to a 5/8 inch iron rod set
with a cap stamped “Huitt-Zollars”;



North 89 degrees 26 minutes 41 seconds East a distance of 157.39 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars”;



North 00 degrees 33 minutes 19 seconds West a distance of 33.96 feet to a 5/8 inch iron rod found
with a cap stamped “Huitt-Zollars” at the’ beginning of a curve to the left having a radius of
190.00 feet;



Along said curve to the left through a central angle of 40 degrees 58 minutes 05 seconds, an arc
distance of 135.85 feet and being subtended by a chord bearing North 21 degrees 02 minutes 21
seconds West a distance of 132.98 feet to a 5/8 inch iron rod found with a cap stamped
“Huitt-Zollars” on the southeasterly right-of-way line of said State Highway No. 26;



THENCE, North 42 degrees 39 minutes 32 seconds East along the southeasterly right-of-way line of
said State Highway No. 26, a distance of 75.80 feet to DFW Airport concrete monument No. 34 found
on the westerly line of said DFW International Airport tract;



THENCE South 00 degrees 33 minutes 06 seconds East along the westerly line of said DFW
International Airport tract a distance of, 2,159.68 feet to the Point of Beginning and containing
50.979 acres of land more or less.





 









 








Schedule B




Leases



None.