exv4w6






Exhibit 4.6




PURCHASE AGREEMENT




by and between




GREAT BEAR LODGE OF WISCONSIN DELLS, LLC,

a Delaware limited liability company (“Seller”),




GREAT LAKES SERVICES, LLC,

a Delaware limited liability company (“Manager”)




and




CNL INCOME PARTNERS, LP,

a Delaware limited partnership (the “Purchaser”)




April 29, 2009














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	Article I	 	PURCHASE AND SALE TRANSACTION
	 	 	2	 
	 	 	 	 	 
	 	 	 	 
	 	1.1	 	 	Sale and Purchase of Seller Interest

	 	 	2	 
	 	1.2	 	 	Purchase Price

	 	 	2	 
	 	1.3	 	 	Closing Date

	 	 	2	 
	 	 	 	 	 
	 	 	 	 
	Article II
	 	REPRESENTATIONS AND WARRANTIES REGARDING SELLER

	 	 	3	 
	 	 	 	 	 
	 	 	 	 
	 	2.1	 	 	Organization

	 	 	3	 
	 	2.2	 	 	Authorization of Transactions

	 	 	3	 
	 	2.3	 	 	Conflicts; Consents of Third Parties

	 	 	3	 
	 	2.4	 	 	Broker’s Fees

	 	 	4	 
	 	2.5	 	 	Seller Interest

	 	 	4	 
	 	 	 	 	 
	 	 	 	 
	Article III
	 	REPRESENTATIONS AND WARRANTIES REGARDING MANAGER

	 	 	4	 
	 	 	 	 	 
	 	 	 	 
	 	3.1	 	 	Organization

	 	 	4	 
	 	3.2	 	 	Authorization of Transactions

	 	 	4	 
	 	3.3	 	 	Conflicts; Consents of Third Parties

	 	 	4	 
	 	3.4	 	 	Broker’s Fees

	 	 	5	 
	 	 	 	 	 
	 	 	 	 
	Article IV
	 	REPRESENTATIONS AND WARRANTIES REGARDING THE PARTNERSHIP AND THE
SUBSIDIARIES

	 	 	5	 
	 	 	 	 	 
	 	 	 	 
	 	4.1	 	 	Books and Records

	 	 	5	 
	 	4.2	 	 	Financial Statements

	 	 	6	 
	 	4.3	 	 	No Undisclosed Liabilities

	 	 	6	 
	 	4.4	 	 	Absence of Certain Developments

	 	 	6	 
	 	4.5	 	 	Taxes

	 	 	7	 
	 	4.6	 	 	Real Property

	 	 	8	 
	 	4.7	 	 	Tangible Personal Property; Title; Sufficiency of Assets

	 	 	8	 
	 	4.8	 	 	Intellectual Property

	 	 	8	 
	 	4.9	 	 	Contracts

	 	 	8	 
	 	4.10	 	 	Employees

	 	 	9	 
	 	4.11	 	 	Litigation

	 	 	9	 
	 	4.12	 	 	Compliance with Laws; Permits

	 	 	9	 
	 	4.13	 	 	Environmental Matters

	 	 	9	 
	 	4.14	 	 	Insurance

	 	 	10	 
	 	4.15	 	 	Books and Records; Receivables; Payables

	 	 	10	 
	 	4.16	 	 	Related Party Transactions

	 	 	10	 
	 	4.17	 	 	No Misrepresentation

	 	 	11	 
	 	 	 	 	 
	 	 	 	 
	Article V
	 	REPRESENTATIONS AND WARRANTIES OF purchaser

	 	 	11	 
	 	 	 	 	 
	 	 	 	 
	 	5.1	 	 	Organization

	 	 	11	 
	 	5.2	 	 	Authorization of Transaction

	 	 	11	 
	 	5.3	 	 	Conflicts; Consents of Third Parties

	 	 	11	 
	 	5.4	 	 	Brokers’ Fees

	 	 	12	 






i









 






	 	 	 	 	 	 	 	 	 
	Article VI
	 	CONDITIONS TO CLOSING; TERMINATION

	 	 	12	 
	 	 	 	 	 
	 	 	 	 
	 	6.1	 	 	Conditions Precedent to Obligations of Purchaser at the Closing

	 	 	12	 
	 	6.2	 	 	Conditions Precedent to Obligations of Seller at the Closing

	 	 	14	 
	 	6.3	 	 	Termination

	 	 	15	 
	 	 	 	 	 
	 	 	 	 
	Article VII
	 	CERTAIN COVENANTS OF THE PARTIES

	 	 	16	 
	 	 	 	 	 
	 	 	 	 
	 	7.1	 	 	Capital Contributions to the Partnership

	 	 	16	 
	 	7.2	 	 	Termination of Management Agreements

	 	 	16	 
	 	7.3	 	 	Termination of License Fee Agreements

	 	 	16	 
	 	7.4	 	 	Real Estate Tax Reassessment

	 	 	16	 
	 	7.5	 	 	Tall Pines Termination Agreement

	 	 	16	 
	 	7.6	 	 	Management Agreement for the Dells Lodge

	 	 	16	 
	 	7.7	 	 	License Agreement for Dells Lodge

	 	 	16	 
	 	7.8	 	 	Amendment of Management Agreement for Sandusky Lodge

	 	 	17	 
	 	7.9	 	 	Lender Consent

	 	 	17	 
	 	7.10	 	 	Public Announcements

	 	 	17	 
	 	7.11	 	 	Exclusivity

	 	 	17	 
	 	7.12	 	 	Further Assurances

	 	 	17	 
	 	7.13	 	 	Litigation Support

	 	 	18	 
	 	7.14	 	 	Confidentiality

	 	 	18	 
	 	7.15	 	 	Base Fee Adjustment

	 	 	18	 
	 	 	 	 	 
	 	 	 	 
	Article VIII
	 	INDEMNIFICATION

	 	 	19	 
	 	 	 	 	 
	 	 	 	 
	 	8.1	 	 	Indemnity Obligations of Seller and Manager

	 	 	19	 
	 	8.2	 	 	Indemnity Obligations of Purchaser

	 	 	19	 
	 	8.3	 	 	Indemnification Procedures

	 	 	19	 
	 	8.4	 	 	Expiration of Representations and Warranties

	 	 	21	 
	 	8.5	 	 	Exclusive Remedy

	 	 	21	 
	 	 	 	 	 
	 	 	 	 
	Article IX
	 	CERTAIN TAX MATTERS

	 	 	22	 
	 	 	 	 	 
	 	 	 	 
	 	9.1	 	 	Taxable Periods That Begin Before and End After the Closing Date

	 	 	22	 
	 	9.2	 	 	Tax Returns

	 	 	22	 
	 	 	 	 	 
	 	 	 	 
	Article X
	 	MISCELLANEOUS

	 	 	23	 
	 	 	 	 	 
	 	 	 	 
	 	10.1	 	 	Certain Definitions

	 	 	23	 
	 	10.2	 	 	Payment of Sales, Use or Similar Taxes; Transfer Taxes

	 	 	28	 
	 	10.3	 	 	Expenses

	 	 	28	 
	 	10.4	 	 	Default

	 	 	28	 
	 	10.5	 	 	Submission to Jurisdiction; Consent to Service of Process

	 	 	28	 
	 	10.6	 	 	Entire Agreement; Amendments and Waivers

	 	 	29	 
	 	10.7	 	 	Governing Law

	 	 	29	 
	 	10.8	 	 	Table of Contents and Headings

	 	 	29	 
	 	10.9	 	 	Notices

	 	 	29	 
	 	10.10	 	 	Severability

	 	 	30	 
	 	10.11	 	 	Binding Effect; Assignment

	 	 	30	 
	 	10.12	 	 	No Third Party Beneficiary

	 	 	31	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	10.13	 	 	Further Assurances

	 	 	31	 
	 	10.14	 	 	Notification of Certain Matters

	 	 	31	 
	 	10.15	 	 	Arms Length Negotiation

	 	 	31	 
	 	10.16	 	 	Waiver of Jury Trial

	 	 	31	 
	 	10.17	 	 	No Presumption Against Drafter

	 	 	32	 
	 	10.18	 	 	Definitional and Interpretive Matters

	 	 	32	 
	 	10.19	 	 	Construction Rules

	 	 	32	 
	 	10.20	 	 	Counterparts

	 	 	32	 







iii









 








PURCHASE AGREEMENT




     THIS PURCHASE AGREEMENT (“Agreement”), dated as of April ___, 2009, is by and between
GREAT BEAR LODGE OF WISCONSIN DELLS, LLC, a Delaware limited liability company (“Seller”),
GREAT LAKES SERVICES, LLC, a Delaware limited liability company (“Manager”), and CNL INCOME
PARTNERS, LP, a Delaware limited partnership (“Purchaser”). Seller, Manager and Purchaser
are sometimes referred to herein collectively as the “Parties” and each individually as a
“Party.”



     WHEREAS, Purchaser owns a 69.73% Partnership Interest in, and is a limited partner of, CNL
Income GW Partnership, LLLP, a Delaware limited liability limited partnership (the
“Partnership”), under the terms of that certain Third Amended and Restated Limited
Partnership Agreement of CNL Income GW Partnership, LLLP dated as of November 3, 2005
(“Partnership Agreement”);



     WHEREAS, Seller owns a 30.26% Partnership Interest in, and is the only other limited partner
of, the Partnership, as more particularly set forth in the Partnership Agreement;



     WHEREAS, CNL Income GW GP, LLC, a Delaware limited liability company, owns a .01% Partnership
Interest in, and is the sole general partner of, the Partnership;



     WHEREAS, the Partnership is the indirect owner of one hundred percent (100%) of the ownership
interests in and to (i) CNL Income GW WI-DEL, LP, a Delaware limited partnership (“Dells
Owner”) that owns that certain Great Wolf Lodge – Wisconsin Dells, Wisconsin (the “Dells
Lodge”), and (ii) CNL Income GW Sandusky, LP, a Delaware limited partnership (“Sandusky
Owner”) that owns that certain Great Wolf Lodge – Sandusky, Ohio (the “Sandusky
Lodge”);



     WHEREAS, Dells Owner leases the Dells Lodge property to CNL Income GW WI-DEL Tenant, LP, a
Delaware limited partnership (“Dells Tenant”), and Sandusky Owner leases the Sandusky Lodge
property to CNL Income GW Sandusky Tenant, LP, a Delaware limited partnership (“Sandusky
Tenant”);



     WHEREAS, the Partnership is the one hundred percent (100%) indirect owner of Dells Tenant and
Sandusky Tenant;



     WHEREAS, the Dells Lodge is managed by Manager under the terms of that certain Amended and
Restated Management Services and License Agreement dated as of March 1, 2006 by and between Dells
Tenant and Manager, as amended (the “Dells Management Agreement”), and the Sandusky Lodge
is managed by Manager under the terms of that certain Amended and Restated Management Services and
License Agreement dated as of March 1, 2006 by and between Sandusky Tenant and Manager, as amended
(the “Sandusky Management Agreement”, and together with the Dells Management Agreement, the
“Management Agreements”);



     WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller,
Seller’s entire limited partner partnership interest in the Partnership in exchange for the
consideration set forth herein, and otherwise under and subject to the terms and conditions of this
Agreement; and













 





     WHEREAS, certain terms used in this Agreement are defined in Section 10.1 hereinbelow, and to
the extent that terms bearing initial upper case letters appear in this Agreement, but are not
defined in Section 10.1 hereinbelow, such terms shall have the meanings set forth elsewhere in this
Agreement.



     NOW, THEREFORE, for and in consideration of the mutual covenants, representations and
warranties made herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:



ARTICLE I




PURCHASE AND SALE TRANSACTION




     1.1 Sale and Purchase of Seller Interest. On and subject to the terms and conditions
of this Agreement, at the closing of the transactions contemplated under this Agreement (the
“Closing”), Seller will sell, assign, transfer and deliver to Purchaser, and Purchaser will
purchase from Seller, Seller’s entire right, title and interest in and to its 30.26% limited
partner partnership interest in the Partnership (the “Seller Interest”), which constitutes
Seller’s entire equity interest in the Partnership, and thereupon Purchaser will become the sole
limited partner of the Partnership.



     1.2 Purchase Price. Subject to the terms and conditions hereof, the aggregate total
consideration to be paid for the Seller Interest (the “Purchase Price”) shall be an amount
equal to Six Million and No/100 Dollars ($6,000,000.00) in cash, payable to Seller by electronic
funds transfer at the Closing, subject to adjustment pursuant to the following sentence. In the
event Additional Capital Contributions, as defined in the Partnership Agreement, are required
following the Effective Date and prior to the Closing Date that, either individually or in the
aggregate, exceed One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the
“Capital Call Threshold”), and Purchaser funds all of such Additional Capital
Contribution(s), including Seller’s proportionate share, pursuant to the provisions of Section 10.2
of the Partnership Agreement, then the Purchase Price shall be reduced by an amount equal to the
Seller’s proportional share of such Additional Capital Contribution in excess of the Capital Call
Threshold actually funded by Purchaser. For purposes of clarification, Purchaser acknowledges that
the Purchase Price shall not adjust in the event Seller funds its proportionate share of any
Additional Capital Contributions in excess of the Capital Call Threshold, nor shall the Purchase
Price be adjusted in connection with Purchaser funding Seller’s proportionate share of any
Additional Capital Contributions pursuant to Section 10.2 of the Partnership Agreement up to, but
not exceeding, the Capital Call Threshold.



     1.3 Closing Date. The Closing shall take place at the offices of Lowndes Drosdick
Doster Kantor & Reed, P.A., 215 North Eola Drive, Orlando, Florida 32801 at 10:00 a.m. on or before
five (5) days after the satisfaction of the conditions set forth in Sections 6.1 and 6.2 (or the
waiver thereof by the Party entitled to waive such conditions), or at such other time, date and
place as the Parties shall mutually agree. The date on which the Closing occurs is referred to
herein as the “Closing Date.” At the Closing: (a) Seller shall deliver to Purchaser: (i) a
duly and validly executed assignment of the Seller Interest, assigning the entire Seller Interest
to Purchaser and otherwise in good form for transfer, and (ii) such other instruments and documents



2









 







as may be necessary to effect the sale and transfer to Purchaser of the Seller Interest as
contemplated hereunder; (b) Purchaser shall deliver to Seller the Purchase Price; and (c) the
Parties shall make the additional deliveries described in Article VI. Purchaser shall not be
required to purchase the Seller Interest unless the Seller Interest is properly tendered in
accordance with the terms of this Agreement.



ARTICLE II




REPRESENTATIONS AND WARRANTIES REGARDING SELLER




     Seller represents and warrants to Purchaser that the following statements are true, correct
and complete as of the date hereof and as of the Closing Date:



     2.1 Organization. Seller is a limited liability company duly organized, validly
existing and in good standing under the Laws of the State of Delaware and has all requisite limited
partnership power and authority to own, lease and operate its properties and carry on its business
as now conducted.



     2.2 Authorization of Transactions. Seller has all requisite limited liability company
power and authority to execute and deliver this Agreement and each other Transaction Document to
which it is a party, and has the requisite power and authority to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by Seller of each of the
Transaction Documents to which it is a party has been duly authorized by all necessary limited
liability company action on the part of Seller. This Agreement and the Transaction Documents to
which Seller is a party will be at or prior to the Closing, duly and validly executed and delivered
by Seller and constitute, the legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms, subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other laws and court decisions of general application (including,
but not limited to, laws relating to fraudulent conveyances and preferences) and other legal or
equitable principles affecting the enforcement of creditor’s rights generally or the rights of
creditors in transactions of this kind.



     2.3 Conflicts; Consents of Third Parties. The execution and delivery by Seller of this
Agreement, and the other Transaction Documents to which Seller is a party, the consummation of the
transactions contemplated hereby or thereby on the part of Seller, and compliance by Seller with
the provisions hereof or thereof will not: (a) conflict with, violate, result in the breach or
termination of, or constitute a default under any of Seller’s Organizational Documents or any
Contract to which Seller is a party or by which Seller or Seller’s properties or assets is bound;
(b) other than the Consent of Lender, require a Consent from any Person in order to avoid any such
conflict, violation, breach, termination or default; (c) violate any Law or any Order by which
Seller or its properties or assets are bound; or (d) result in the creation of any Lien upon the
properties or assets of Seller. No Permit, Order, waiver, declaration or filing with, or
notification to any Person, including, but not limited to, any Governmental Body, is required on
the part of Seller in connection with the execution, delivery and performance of this Agreement or
the other Transaction Documents to which Seller is a party, or the compliance by Seller with any of
the provisions hereof or thereof.



3









 





     2.4 Broker’s Fees. Seller has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which the Partnership or Purchaser could become liable or obligated. Seller shall be
solely responsible for any obligations described in this Section 2.4 and will indemnify and hold
the Purchaser Indemnitees harmless from and against any Losses resulting from or arising out of any
such obligations or matters.



     2.5 Seller Interest. Seller is the owner of record and owns beneficially the Seller
Interest, free and clear of any Liens of any kind or nature whatsoever. Seller is not a party to
any option, warrant, purchase right, or other contract or commitment that could require Seller to
sell, transfer, or otherwise dispose of the Seller Interest (other than this Agreement). Except
for the Partnership Agreement, Seller is not a party to any voting trust, proxy, or other agreement
or understanding with respect to the voting of the Seller Interest.



ARTICLE III




REPRESENTATIONS AND WARRANTIES REGARDING MANAGER




     Manager represents and warrants to Purchaser that the following statements are true, correct
and complete as of the date hereof and as of the Closing Date:



     3.1 Organization. Manager is a limited liability company duly organized, validly
existing and in good standing under the Laws of the State of Delaware and has all requisite limited
partnership power and authority to own, lease and/or operate, as applicable, its properties and
carry on its business as now conducted.



     3.2 Authorization of Transactions. Manager has all requisite limited liability company
power and authority to execute and deliver this Agreement and each other Transaction Document to
which it is a party, and has the requisite power and authority to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by Manager of each of the
Transaction Documents to which it is a party has been duly authorized by all necessary limited
liability company action on the part of Manager. This Agreement and the Transaction Documents to
which Manager is a party will be at or prior to the Closing, duly and validly executed and
delivered by Manager and constitute, the legal, valid and binding obligations of Manager,
enforceable against Manager in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and other laws and court decisions of general
application (including, but not limited to, laws relating to fraudulent conveyances and
preferences) and other legal or equitable principles affecting the enforcement of creditor’s rights
generally or the rights of creditors in transactions of this kind.



     3.3 Conflicts; Consents of Third Parties. The execution and delivery by Manager of
this Agreement, and the other Transaction Documents to which Manager is a party, the consummation
of the transactions contemplated hereby or thereby on the part of Manager, and compliance by
Manager with the provisions hereof or thereof will not: (a) conflict with, violate, result in the
breach or termination of, or constitute a default under any of Manager’s Organizational Documents
or any Contract to which Manager is a party or by which Manager or Manager’s properties or assets
is bound; (b) other than the Consent of Lender, require a Consent



4









 







from any Person in order to avoid any such conflict, violation, breach, termination or
default; (c) violate any Law or any Order by which Manager or its properties or assets are bound;
or (d) result in the creation of any Lien upon the properties or assets of Manager. No Permit,
Order, waiver, declaration or filing with, or notification to any Person, including, but not
limited to, any Governmental Body, is required on the part of Manager in connection with the
execution, delivery and performance of this Agreement or the other Transaction Documents to which
Manager is a party, or the compliance by Manager with any of the provisions hereof or thereof.



     3.4 Broker’s Fees. Manager has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which the Partnership or Purchaser could become liable or obligated. Manager shall
be solely responsible for any obligations described in this Section 3.4 and will indemnify and hold
the Purchaser Indemnitees harmless from and against any Losses resulting from or arising out of any
such obligations or matters.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES REGARDING

THE PARTNERSHIP AND THE SUBSIDIARIES




     Seller and Manager, jointly and severally, represent and warrant to Purchaser that, except as
set forth in the Disclosure Schedule attached hereto (the “Disclosure Schedule”), the
following statements are correct and complete as of the date hereof and as of the Closing Date.
Nothing in the Disclosure Schedule shall be deemed adequate to disclose an exception to a
representation or warranty made herein, unless the Disclosure Schedule makes explicit reference to
the particular representation or warranty as to which exception is taken, which in each case shall
constitute the sole representation and warranty as to which such exception shall apply. Without
limiting the generality of the foregoing, the disclosure of the existence of a contract or other
item on the Disclosure Schedule shall not, without more, constitute the disclosure of any
particular provisions of such contract or the actual or potential consequences thereof, and the
Disclosure Schedule shall identify the exception with reasonable particularity and describe the
relevant facts in reasonable detail. The Disclosure Schedule shall be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this Article IV.



     4.1 Books and Records. To Seller’s Knowledge, the books and records and accounts of
each Lodge Resort accurately and fairly present the financial condition and results of operations
of such Lodge Resort. To Seller’s Knowledge, the books and records and accounts of each Tenant
Subsidiary accurately and fairly present the financial condition, results of operations and cash
flows of such Tenant Subsidiary. To Seller’s Knowledge, neither Lodge Resort nor either Tenant
Subsidiary has engaged in any transaction with respect to its Business, maintained any bank account
for its Business or used any of its funds, except for transactions, bank accounts and funds which
have been and are reflected in the normally maintained books and records and accounts of such Lodge
Resort or Tenant Subsidiary, as applicable. To Seller’s Knowledge, no fraud, whether or not
material, has occurred that involves or involved management of either Lodge Resort or either Tenant
Subsidiary.



5









 





     4.2 Financial Statements. Included in Section 4.2 of the Disclosure Schedule
are (i) the balance sheets prepared by Manager for each of the Lodge Resorts as at December 31,
2006, 2007 and 2008 and the related statements of income prepared by the Manager for the years then
ended and (ii) the balance sheet of each of the Lodge Resorts as at January 31, 2009 (the
“Interim Balance Sheet”) and the related statement of income of each of the Lodge Resorts
for the one (1) month period then ended (such annual and interim statements, including the
schedules thereto, are referred to herein as the “Financial Statements”). To Seller’s
Knowledge, the Financial Statements have been prepared from the books and records and accounts of
the Lodge Resorts and are true and correct in all material respects, as at the dates and for the
periods reflected thereon.



     4.3 No Undisclosed Liabilities. To Seller’s Knowledge, neither Lodge Resort nor either
Tenant Subsidiary has any Liability except (a) to the extent specifically reflected and accrued for
or specifically reserved against in the Interim Balance Sheet attached hereto and (b) for
Liabilities incurred subsequent to January 31, 2009 in the ordinary course of business consistent
with past custom and practice (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort, infringement, or
violation of law) and which in the aggregate are not material to either Lodge Resort or either
Tenant Subsidiary.



     4.4 Absence of Certain Developments. Except as set forth in Section 4.4 of the
Disclosure Schedule, to Seller’s Knowledge, since January 31, 2009:




     (a) there has not been any Material Adverse Change in either Lodge Resort or either
Tenant Subsidiary nor has there occurred any event which is reasonably likely to result in a
Material Adverse Change to either Lodge Resort or either Tenant Subsidiary;




     (b) there has not been any damage, destruction or loss, whether or not covered by
insurance, with respect to the property and assets of either of the Lodge Resorts, either of
the Tenant Subsidiaries or either of the Owner Subsidiaries, having a replacement cost of
more than Fifty Thousand Dollars ($50,000) for any single loss or in the aggregate for any
related losses;




     (c) there has not been any change by either Lodge Resort in the accounting methods or
principles used by Manager with respect to the reports and financial statements provided by
Manager under the Management Agreements;




     (d) each Lodge Resort and each Tenant Subsidiary has conducted its respective Business
in the ordinary course consistent with past practice;




     (e) neither Lodge Resort and neither Tenant Subsidiary has entered into any material
transaction or Contract;




     (f) neither Lodge Resort and neither Tenant Subsidiary has hired employees or engaged
independent contractors pursuant to Contracts to provide services to either Lodge Resort or
either Tenant Subsidiary other than in the ordinary course of business consistent with, and
at a level consistent with, past practice;



6









 






     (g) neither Lodge Resort and neither Tenant Subsidiary has materially breached any
Contract or amended any Contract;




     (h) neither Lodge Resort and neither Tenant Subsidiary has failed to promptly pay and
discharge any current Liability except where disputed in good faith in an appropriate
manner;




     (i) neither Lodge Resort and neither Tenant Subsidiary has discharged or satisfied any
Lien, or paid any obligation or Liability, except in the ordinary course of business
consistent with past practice and which, in the aggregate, are not material to such Lodge
Resort or such Tenant Subsidiary;




     (j) neither Lodge Resort and neither Tenant Subsidiary has made or committed to make
any capital expenditures or capital additions or improvements in excess of Fifty Thousand
Dollars ($50,000), individually or in the aggregate, except as set forth in Section
4.4(j) of the Disclosure Schedule, or otherwise in the ordinary course of business
consistent with past practices; and




     (k) neither Lodge Resort and neither Tenant Subsidiary has entered into any agreement
to do or perform in the future any action referred to in this Section 4.4 which has not been
consummated as of the date hereof.



     4.5 Taxes.




     (a) To Seller’s Knowledge, each Lodge Resort and each Tenant Subsidiary has withheld
and paid to the appropriate taxing authority or other Governmental Body all Taxes required
to have been withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor or other third party.




     (b) To the extent that either Lodge Resort or either Tenant Subsidiary has or will
incur Taxes with respect to periods or portions thereof ending on or prior to the Closing
Date, Seller shall cooperate with Purchaser to cause such Lodge Resort or such Tenant
Subsidiary to pay all such Taxes on or prior to the Closing Date to the extent required by
all applicable laws and regulations.




     (c) To Seller’s Knowledge, no deficiency or proposed adjustment which has not been
settled or otherwise resolved for any amount of Taxes has been asserted or assessed by any
taxing authority or other Governmental Body against either Lodge Resort or either Tenant
Subsidiary, and there has not been an audit, examination or written notice of potential
examination of any Tax Returns filed by either Lodge Resort or either Tenant Subsidiary.




     (d) To Seller’s Knowledge, there is no action, suit, examination, investigation,
Governmental Body proceeding, or audit or claim for refund in progress, pending, proposed or
threatened against or with respect to either Lodge Resort or either Tenant Subsidiary
regarding Taxes.



7









 





     4.6 Real Property. Each Lodge Resort and each Subsidiary of the Partnership has all
certificates of occupancy and Permits of any Governmental Body necessary or useful for the current
use and operation of each Lodge Resort, and has fully complied with all conditions of the Permits
applicable to each Lodge Resort. To Seller’s Knowledge, no default or violation, or event that
with the lapse of time or giving of notice or both would become a default or violation, has
occurred in the due observance of any such Permit.



     4.7 Tangible Personal Property; Title; Sufficiency of Assets. Other than Permitted
Encumbrances, to Seller’s Knowledge, each Tenant Subsidiary and each Owner Subsidiary has
exclusive, good and marketable title to all of its assets as of the date hereof (which include,
without limitation, all of the assets reflected in the latest financial statements for the Lodge
Resorts provided to Purchaser by Manager), free and clear of any and all Liens other than the
Permitted Encumbrances. All tangible personal property included in such assets, and all of the
items of tangible personal property used by the Lodge Resorts under any personal property lease,
are in working order and, to Seller’s Knowledge, there are no material problems or other material
adverse issues with respect to such tangible personal property which could result in costs of
repair and replacement in excess of Ten Thousand and No/100 Dollars ($10,000.00) in the aggregate
within the next six (6) months, subject to properly scheduled capital expenditures. A list of all
of such items of tangible personal property with respect to each Lodge Resort is attached hereto as
Exhibit 4.7 and is true and correct in all material respects. To Seller’s Knowledge, the
assets of the Tenant Subsidiaries and the Owner Subsidiaries include all assets, rights and
interests reasonably required for the continued conduct of the Businesses of the Lodge Resorts
through the Closing.



     4.8 Intellectual Property.




     (a) To Seller’s Knowledge, the only Intellectual Property necessary to conduct the
respective Businesses of the Lodge Resorts as currently conducted is the Intellectual
Property which is the subject of the License Agreements, and the License Agreements are in
full force and effect.




     (b) To Seller’s Knowledge, the continued operation, prior to the Closing, of the
respective Businesses of the Lodge Resorts as presently conducted does not interfere with,
infringe upon, misappropriate, or otherwise come into conflict with, any Intellectual
Property rights of any third party.




     (c) There is no claim or demand of any Person pertaining to, or any proceeding which is
pending or, to Seller’s Knowledge, threatened, that challenges the rights of either Lodge
Resort or either Tenant Subsidiary to use the Intellectual Property which is the subject of
the License Agreements.



     4.9 Contracts. Except as otherwise disclosed or provided in this Agreement and except
as set forth in Section 4.9 of the Disclosure Schedule, to Seller’s Knowledge all of the
Contracts of each Tenant Subsidiary shall, following the Closing, remain enforceable by such Tenant
Subsidiary, as applicable, and binding on the other parties thereto, without the Consent of any
third party. To Seller’s Knowledge, neither of the Tenant Subsidiaries is in default, nor has any
event occurred which, with the giving of notice or the passage of time or both, would



8









 







constitute a default, under any Contract or any other obligation owed by either Tenant
Subsidiary, and no event has occurred which, with the giving of notice or the passage of time or
both, would constitute a default by any other party to any such Contract. To Seller’s Knowledge,
each Contract of each Tenant Subsidiary is valid and enforceable in accordance with its terms and
is not subject to any claims, charges, setoffs or defenses. Manager is in compliance with, and has
performed in all material respects, all material terms of each of the Management Agreements.
Section 4.9 of the Disclosure Schedule contains a true and complete list of all Contracts
in effect with respect to the Dells Lodge and the Sandusky Lodge.



     4.10 Employees. Since the formation of the Partnership, all employees at the Lodge
Resorts have been employees of Manager and, to Seller’s Knowledge, neither Tenant Subsidiary has
ever had any employees.



     4.11 Litigation. Except as set forth in Section 4.11 of the Disclosure
Schedule, there is no suit, action, proceeding, investigation, complaint or claim pending or,
to Seller’s Knowledge, threatened against Manager before any court or other Governmental Body or
any arbitral tribunal, nor, to Seller’s Knowledge, is there any basis for any such suit, action,
proceeding, investigation, complaint or claim. To Seller’s Knowledge, there is no suit, action,
proceeding, investigation, complaint or claim pending or threatened against either of the Tenant
Subsidiaries or either of the Owner Subsidiaries before any court of other Governmental Body or any
arbitral tribunal. To Seller’s Knowledge, there is no suit, action, proceeding, investigation,
complaint or claim pending or threatened against either of the Tenant Subsidiaries or either of the
Owner Subsidiaries before an court or other Governmental Body or any arbitral tribunal. To
Seller’s Knowledge, neither Tenant Subsidiary and neither Owner Subsidiary is engaged in any legal
action to recover monies due it or for damages sustained by it.



     4.12 Compliance with Laws; Permits. Each of the Lodge Resorts and, to Seller’s
Knowledge, each of the Tenant Subsidiaries and each of the Owner Subsidiaries is, and has at all
times been, in compliance with all Laws applicable to it or the operation, use, occupancy or
ownership of its assets or properties or the conduct of its Business, and, to Seller’s Knowledge,
neither of the Lodge Resorts, neither of the Tenant Subsidiaries and neither of the Owner
Subsidiaries has received notice (written or oral) from any Governmental Body of any failure to so
comply and, to Seller’s Knowledge no such failure to comply has occurred. Each Lodge Resort holds
all Permits necessary under Law for the conduct of its Business as currently conducted and, to
Seller’s Knowledge, each Tenant Subsidiary and each Owner Subsidiary holds all Permits necessary
under Law for the conduct of its Business as currently conducted. The operations of each Lodge
Resort and, to Seller’s Knowledge, the operations of each Tenant Subsidiary are not being conducted
in violation of any Permit held by such Lodge Resort or Tenant Subsidiary. Seller has received no
notice of any investigation by a Governmental Body against either Lodge Resort, either Tenant
Subsidiary or either Owner Subsidiary and, to Seller’s Knowledge, there is no investigation by a
Governmental Body pending against or threatened against either Lodge Resort, either Tenant
Subsidiary or either Owner Subsidiary. Section 4.12 of the Disclosure Schedule contains a
true and complete list of all Permits in effect with respect to each Lodge Resort and, to Seller’s
Knowledge, each Tenant Subsidiary and each Owner Subsidiary.



     4.13 Environmental Matters.



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     (a) To Seller’s Knowledge, the operations of each Lodge Resort, each Tenant Subsidiary
and each Owner Subsidiary are in compliance with all applicable Environmental Laws and all
Permits issued pursuant to Environmental Laws or otherwise (“Environmental
Permits”).




     (b) To Seller’s Knowledge, neither Lodge Resort, neither Tenant Subsidiary and neither
Owner Subsidiary has received any written communication alleging either that a Lodge Resort,
a Tenant Subsidiary or an Owner Subsidiary may be in violation of any Environmental Law or
Environmental Permit or that a Lodge Resort, a Tenant Subsidiary or an Owner Subsidiary has
or may have any liability under any Environmental Law.




     (c) To Seller’s Knowledge, neither Lodge Resort, neither Tenant Subsidiary and neither
Owner Subsidiary has incurred, assumed or undertaken any current contingent liability in
connection with any Release of any Hazardous Materials into the indoor or outdoor
environment (whether on-site or off-site), except as permitted by Law, and there are no
facts, circumstances or conditions relating to, arising out of or attributable to either
Lodge Resort, either Tenant Subsidiary or either Owner Subsidiary that could give rise to
liability under any Environmental Law.



     4.14 Insurance. Each policy of insurance for each Lodge Resort is in full force and
effect, all premiums due thereon have been paid and, to Seller’s Knowledge, there is no default
under such insurance policy. Manager has not received any notice of cancellation or intent to
cancel or increase or intent to increase premiums with respect to any such insurance policy nor is
there any basis for any such action. All such insurance policies contain coverage that is
reasonably adequate and prudent in light of the risks inherent in the respective Businesses of the
Lodge Resorts.



     4.15 Books and Records; Receivables; Payables. With respect to each Lodge Resort for
which Manager is providing management services pursuant to a Management Agreement:




     (a) The Books and Records of such Lodge Resort have been maintained in compliance with
the terms of the Management Agreement for such Lodge Resort;




     (b) The most recent periodic statement (“Periodic Statement”) containing the
information required to be delivered to the owner of such Lodge Resort pursuant to the terms
of Section 4.4 of the Management Agreement for such Lodge Resort is true and correct and in
all material respects and has been prepared and delivered to the owner of such Lodge Resort,
as applicable, in compliance with the terms and provisions of Section 4.4 of such Management
Agreement; and




     (c) The accounts payable for such Lodge Resort as reflected in the most recent Periodic
Statement are the result of bona fide transactions in the ordinary course of business and
have been fully paid or are not yet due and payable, except for accounts payable that are
being disputed in good faith in an appropriate manner.



     4.16 Related Party Transactions. Except for the Permitted Encumbrances, to Seller’s
Knowledge, neither Tenant Subsidiary has loaned or borrowed any amounts from and does not



10









 







have outstanding any Indebtedness or other similar obligations to or owing from Manager or any
other Affiliate of Seller. Neither Seller nor any Affiliate of Seller nor any officer or employee
of any of them (i) owns any direct or indirect interest of any kind in, or controls or is a
director, officer, employee or partner of, or consultant to, or lender to or borrower from or has
the right to participate in the profits of, any Person which is (A) a supplier, customer, landlord,
tenant, creditor or debtor of either Lodge Resort or either Tenant Subsidiary or (B) a participant
in any transaction to which either Lodge Resort or either Tenant Subsidiary is a party or (ii)
other than the Management Agreements and the License Fee Agreements, is a party to any Contract
with either Tenant Subsidiary or either Owner Subsidiary.



     4.17 No Misrepresentation. No representation or warranty of Seller or Manager
contained in this Agreement or any other Transaction Document or in any Exhibit or Schedule hereto
or thereto or in any certificate or other instrument furnished to Purchaser pursuant to the terms
hereof or thereof contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein or therein not misleading.



ARTICLE V




REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser represents and warrants to Seller that the following statements are true, correct
and complete as of the date hereof.



     5.1 Organization. Purchaser is a limited partnership duly organized, validly existing
and in good standing under the Laws of the State of Delaware and has all requisite limited
partnership power and authority to own, lease and operate its properties and carry on its business
as now conducted.



     5.2 Authorization of Transaction. Purchaser has full limited partnership power and
authority to execute and deliver this Agreement and each of the Transaction Documents, to perform
its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by Purchaser of this Agreement and each
Transaction Document to which Purchaser is a party and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary limited partnership
action on the part of Purchaser. This Agreement has been, and each Transaction Document to which
Purchaser is a party will be at or prior to the Closing, duly and validly executed and delivered by
Purchaser and (assuming the due authorization, execution and delivery by the other parties hereto
and thereto) this Agreement constitutes, and each Transaction Document when so executed and
delivered will constitute, the legal, valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with their respective terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium and other laws and court decisions of general application
(including, but not limited to, laws relating to fraudulent conveyances and preferences) and other
legal or equitable principles affecting the enforcement of creditors’ rights generally or the
rights of creditors in transactions of this kind.



     5.3 Conflicts; Consents of Third Parties. The execution and the delivery by Purchaser
of this Agreement and the other Transaction Documents to which it is a party, the consummation



11









 







of the transactions contemplated hereby and thereby on the part of Purchaser and compliance by
Purchaser with the provisions hereof or thereof will not: (a) conflict with, violate, result in the
breach or termination of, or constitute a default under any of Purchaser’s Organizational
Documents; (b) violate any Law or any Order by which Purchaser or its properties are bound; or (c)
result in a breach of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any notice under any
Contract to which Purchaser is a party or by which Purchaser is bound or to which any of its assets
is subject. No Order, Permit or waiver, or declaration or filing with any Governmental Body is
required on the part of Purchaser in connection with the execution, delivery and performance of
this Agreement or the other Transaction Documents to which it is a party, or the compliance by
Purchaser with any of the provisions hereof or thereof.



     5.4 Brokers’ Fees. Purchaser does not have any Liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement. Purchaser will be solely responsible for any obligations described in this Section 5.4
and will indemnify and hold Seller harmless from and against any Losses resulting from or arising
out of or any such obligations or matters.



ARTICLE VI




CONDITIONS TO CLOSING; TERMINATION




     6.1 Conditions Precedent to Obligations of Purchaser at the Closing. The obligation of
Purchaser to consummate the transactions contemplated by this Agreement is subject to the
fulfillment, on or prior to the Closing Date, of each of the following conditions precedent (any or
all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable
Law):




     (a) all representations and warranties of Seller contained herein shall be true and
correct in all material respects on and as of the Closing Date, except to the extent
expressly made as of an earlier date;




     (b) Seller shall have performed and complied in all material respects with all
obligations and covenants required by this Agreement to be performed, or complied with, by
Seller on or prior to the Closing Date;




     (c) there shall not have been or occurred any Material Adverse Change in either Lodge
Resort or either of their respective Businesses;




     (d) no Legal Proceedings shall have been instituted or threatened or claim or demand
made against the Partnership, any Subsidiary of the Partnership, Seller or Purchaser seeking
to restrain or prohibit or to obtain substantial damages with respect to the consummation of
the transactions contemplated hereby;




     (e) there shall not be in effect any Order by a Governmental Body of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated hereby;



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     (f) the Partnership, Purchaser and Seller shall have obtained all Consents, waivers and
approvals required from any Person for the execution and delivery of this Agreement and the
consummation of the transactions herein in a form and on conditions reasonably satisfactory
to Purchaser and Seller, including, but not limited to, the Consent of Lender (Purchaser and
Seller acknowledge and agree that a Lender requirement of a principal prepayment as a
condition to issuing the Consent of Lender shall be deemed to be unreasonable);




     (g) Purchaser shall have received an appraisal of each of the Dells Lodge and the
Sandusky Lodge in an amount that is sufficient to avoid Purchaser and/or any Affiliate of
Purchaser from incurring negative accounting ramifications on or after the Closing Date;




     (h) Seller shall have delivered to Purchaser the following:



               (i) an assignment of all of Seller’s right, title and interest in and to the Seller Interest,
duly and validly executed to transfer ownership of the entire Seller Interest to Purchaser, in form
and substance reasonably satisfactory to Seller and Purchaser;



               (ii) a copy of IRS Form W-9 duly and properly executed by Seller;



               (iii) an affidavit described in Section 1445(b)(2) of the Code from Seller in form and
substance reasonably satisfactory to Purchaser; and



               (iv) such other documents, instruments or certificates as shall be reasonably requested by
Purchaser or its counsel.




     (i) At or prior to the Closing, the Dells Management Agreement and the License Fee
Agreements shall have each been terminated;




     (j) At or prior to the Closing, Dells Tenant, Manager and Guarantor shall have entered
into the New Dells Management Agreement;




     (k) At or prior to the Closing, Dells Tenant and an Affiliate of Seller shall have
entered into the New Dells License Agreement;




     (l) At or prior to the Closing, Sandusky Tenant, Manager and Guarantor shall have
entered into the Sandusky Management Agreement Amendment;




     (m) Purchaser shall have received the following items:



               (i) a certificate executed by a duly authorized officer of Seller dated the Closing Date to
the effect that each of the conditions specified in Section 6.1(a) through (e) are satisfied in all
respects;



               (ii) copies of resolutions of the manager(s) of Seller and its member(s) as required by
applicable law, certified by the Secretary of Seller, as to the authorization of this Agreement and
all of the transactions contemplated hereby;



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               (iii) (A) the certificate of formation, as amended through the Closing Date, of Seller,
certified as of a recent date by the Secretary of State of the State of Delaware, (B) good standing
certificates for Seller, certified by the Secretary of State of the State of Delaware, and each
state in which Seller is qualified to do business as a foreign limited liability company, as of a
recent date, and (C) a copy of the limited liability company agreement (or similar organizational
document) of Seller, as in effect on the Closing Date, certified by the Secretary of Seller; and



               (iv) such other documents, instruments or certificates as shall be reasonably requested by
Purchaser or its counsel.



     6.2 Conditions Precedent to Obligations of Seller at the Closing. The obligations of
Seller to consummate the transactions contemplated by this Agreement are subject to the
fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of
which may be waived by Seller in whole or in part to the extent permitted by applicable Law):




     (a) all representations and warranties of Purchaser contained herein shall be true and
correct in all material respects on and as of the Closing Date;




     (b) Purchaser shall have delivered to Seller the Purchase Price and shall otherwise
have performed and complied in all material respects with all obligations and covenants
required by this Agreement to be performed or complied with by Purchaser on or prior to the
Closing Date;




     (c) no Legal Proceedings shall have been instituted or threatened or claim or demand
made against the Partnership, Seller or Purchaser seeking to restrain or prohibit or to
obtain substantial damages with respect to the consummation of the transactions contemplated
hereby;




     (d) there shall not be in effect any Order by a Governmental Body of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated hereby;




     (e) the Partnership, Purchaser and Seller shall have obtained all Consents, waivers and
approvals required from any Person for the execution and delivery of this Agreement and the
consummation of the transactions herein in a form reasonably satisfactory to Purchaser and
Seller, including, but not limited to, the Consent of Lender, except with respect to any
Consent, waiver or approval specifically waived by Purchaser;




     (f) at or prior to the Closing, Dells Tenant and Manager shall have entered into the
New Dells Management Agreement;




     (g) at or prior to the Closing, Dells Tenant and an Affiliate of Seller shall have
entered into the New Dells License Agreement;




     (h) At or prior to the Closing, Sandusky Tenant, Manager and Guarantor shall have
entered into the Sandusky Management Agreement Amendment;



14









 






     (i) Seller shall have received the following items:




     (j) a certificate executed by a duly authorized officer of the corporate general
partner of Purchaser dated the Closing Date to the effect that each of the conditions
specified in Section 6.2(a) through (d) are satisfied in all respects;



               (i) copies of resolutions of the general partner of Purchaser, certified by the Secretary of
the general partner of Purchaser, as to the authorization of this Agreement and all of the
transactions contemplated hereby;



               (ii) (A) the certificate of limited partnership, as amended through the Closing Date, of
Purchaser, certified as of a recent date by the Secretary of State of the State of Delaware, and
(B) good standing certificate for Purchaser, certified by the Secretary of State of the State of
Delaware, as of a recent date; and



               (iii) such other documents, instruments or certificates as shall be reasonably requested by
Seller or its counsel.



     6.3 Termination. Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and the transactions provided for herein abandoned at any time prior to
the Closing:




     (a) By the written agreement of Seller, Manager and Purchaser;




     (b) By Purchaser, if any of the conditions set forth in Section 6.1 hereof shall not
have been fulfilled on or prior to May 8, 2009 (the “Outside Closing Date”), or shall become
incapable of fulfillment, and shall not have been waived by Purchaser and so long as
Purchaser is not in default hereunder; or




     (c) By Seller, if any of the conditions set forth in Section 6.2 hereof shall not have
been fulfilled on or prior to the Outside Closing Date, or shall become incapable of
fulfillment, and shall not have been waived by Seller, and so long as Seller is not in
default hereunder.



     Notwithstanding the foregoing provisions of this Section 6.3, the Outside Closing Date will be
automatically extended for a period of ninety (90) days (to August 6, 2009) in the event that the
Closing has not occurred as of the Outside Closing Date solely because Seller has not yet received
the Consent of Lender as required under Section 6.1(f), Section 6.2(e) and Section 7.8 or the
appraisals required under Section 6.1(g). In the event that this Agreement is terminated as
described in this Section 6.3, this Agreement shall be void and of no force and effect, without any
liability or obligation on the part of any of the parties hereto, except for any liability which
may arise under Section 10.4. Each party agrees to use commercially reasonable efforts, and to
proceed as expeditiously as reasonably possible, to cause the conditions precedent set forth in
Section 6.1 and Section 6.2 to be satisfied on or before the Outside Closing Date, and to regularly
update the other party with respect to the status of such conditions precedent.



15









 





ARTICLE VII




CERTAIN COVENANTS OF THE PARTIES




     7.1 Capital Contributions to the Partnership. Notwithstanding any terms or provisions
of the Partnership Agreement, Seller and Purchaser agree that until the earlier to occur of: (i)
March 28, 2009; or (ii) the Closing Date, they will each satisfy and fund reasonable capital calls
made by the Partnership in accordance with their respective Percentage Interests in the
Partnership.



     7.2 Termination of Management Agreements. Upon the Closing, Manager and Dells Tenant
shall terminate the Dells Management Agreement, without termination fee or other compensation due
to Manager.



     7.3 Termination of License Fee Agreements. Upon the Closing, Seller and Purchaser
shall cause their respective Affiliates to terminate (i) that certain License Fee Agreement
(Wisconsin Dells) dated March 1, 2006 by and between CNL Income GW Corp., a Delaware corporation
and a subsidiary of the Partnership (“CNL GW”), the Partnership and Manager (the “Dells
License Fee Agreement”); and (ii) that certain License Fee Agreement (Sandusky) dated March 1,
2006 by and between CNL GW, the Partnership and Manager (the “Sandusky License Fee
Agreement”, and together with the Dells License Fee Agreement, the “License Fee
Agreements”). The License Fee Agreements shall be terminated without termination fee or other
compensation due to Manager, and Manager shall waive any right to receive any Accrued Fees (as
defined in the License Fee Agreements), if any, as of the Closing.



     7.4 Real Estate Tax Reassessment. Seller and Purchaser recognize and acknowledge that
there is a refund for real estate taxes for the Dells Lodge through 2008 of approximately Five
Hundred Fifty Thousand and No/100 Dollars ($550,000.00). Seller and Purchaser agree that this
amount will be refunded to the Partnership prior to the Closing and distributed to Seller as part
of the Closing as a special distribution made by the Partnership to Seller.



     7.5 Tall Pines Termination Agreement. Upon the Closing, Seller shall pay the
termination fee, if any, set forth in Section 7.4 of that certain Tall Pines Exclusive License and
Royalty Agreement dated July 25, 2004 (the “Tall Pines Agreement”) for the Sandusky Lodge.
In addition, Seller will assume liability for any payments due under the Tall Pines Agreement after
the Closing (the “Tall Pines Fee Liability”). The Partnership will provide Seller with
monthly revenue statements through March 1, 2011 to allow Seller to calculate its monthly Tall
Pines Fee Liability, if any. The terms of this Section 7.5 shall survive the Closing



     7.6 Management Agreement for the Dells Lodge. Upon the Closing and the termination of
the Dells Management Agreement, Dells Tenant and Manager shall execute a new management agreement
in the form attached hereto as Exhibit 7.6 (the “New Dells Management Agreement”).



     7.7 License Agreement for Dells Lodge. Upon the Closing and the termination of the
Dells License Agreement, Dells Tenant and an Affiliate of Guarantor (the “Licensor”) shall



16









 







execute a new license fee agreement in the form attached hereto as Exhibit 7.7 (the
“New Dells License Agreement”).



     7.8 Amendment of Management Agreement for Sandusky Lodge. Upon the Closing, Sandusky
Tenant and Manager shall execute an amendment to the Sandusky Management Agreement in the form
attached hereto as Exhibit 7.8 (the “Sandusky Management Agreement Amendment”).



     7.9 Lender Consent. The Closing shall be conditioned upon receipt by Purchaser of
written consent from Lender as defined in and pursuant to the terms of that certain Loan Agreement
dated as of March 1, 2006 by and between Dells Owner, Sandusky Owner and Lender. Seller and
Purchaser shall comply with the reasonable conditions of the Lender to issue such consent.
Purchaser shall have no obligation whatsoever to restructure any debt obligations of the
Partnership. However, in the event that Purchaser elects to restructure any debt obligation of the
Partnership, any savings shall inure solely to the benefit of Purchaser.



     7.10 Public Announcements. Except as required by applicable law or regulation, no
Party shall have the right to make a public announcement or disclosure regarding the transactions
described in this Agreement without the prior approval of the other Party or Parties. Seller and
CNL Advisor shall approve the timing, form and substance of any such public announcement or
disclosure, which approval shall not be unreasonably withheld, conditioned or delayed, except if a
Party is required to make a public announcement or disclosure under applicable law or regulation,
in which case such Party shall provide the other Party or Parties with the form and content of such
disclosure within a reasonable amount of time prior to its release (to the extent possible under
the circumstances) and shall consider in good faith all comments provided by the other Party or
Parties.



     7.11 Exclusivity. Each Party agrees that until the termination of this Agreement in
accordance with its terms, neither Seller nor Purchaser shall, directly or indirectly, and each
shall prevent its officers, directors, employees, agents, consultants and representatives from
directly or indirectly:




     (a) taking any action to solicit or initiating any Proposal (as hereinafter defined),
or




     (b) initiating, continuing, responding to, or engaging in any discussions or
negotiations concerning a Proposal with any Person.



     For the purposes of this Section 7.10, the term “Proposal” means any offer or proposal for, or
indication of interest in, any acquisition of the Seller Interest or any portion thereof, whether
by way of an acquisition of all or any portion of Seller or its capital stock or assets, by way of
merger, consolidation or other business combination, or by way of asset acquisition.



     7.12 Further Assurances. In the event that at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request.



17









 





     7.13 Litigation Support. In the event and so long as any Party actively is contesting
or defending against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (a) any transaction contemplated under this Agreement or (b)
any fact, situation, circumstances, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date involving either
Lodge Resort, the Partnership or any Subsidiary of the Partnership, each of the other Parties will
cooperate reasonably with such Party and such Party’s counsel in the contest or defense, reasonably
make available their personnel, and provide such testimony and access to their books and records as
shall be reasonably necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending Party is entitled
to indemnification therefore hereunder, in which case the indemnification provisions of Article
VIII shall control as to costs and expenses).



     7.14 Confidentiality. From and after the date hereof each Party will, and will cause
its respective Affiliates to, hold in strict confidence, and will not, and will cause its
respective Affiliates not to, disclose to any third party the content of this Agreement, the
Transaction Documents or the transactions contemplated thereby (collectively, “Confidential
Information”). Notwithstanding the foregoing, each Party may, and may permit its respective
Affiliates to, disclose Confidential Information: (a) if compelled to disclose the same by judicial
or administrative process or by other requirements of Law (but subject to the following provisions
of this Section 7.13); (b) if the same hereafter is in the public domain through no fault of the
disclosing Party; (c) if the same is later acquired by the disclosing Party from another source
that is not under an obligation to another Person to keep such information confidential; or (d) to
the extent required to by any governmental securities commission or other similar regulatory
agency, (e) in connection with obtaining the Lender Consent. If such Party or any of such Party’s
Affiliates is requested or required (by oral questions, interrogatories, requests for information
or documents in legal proceedings, subpoena, civil investigative demand or other similar process)
to disclose any Confidential Information, then such Party shall provide to the other Party or
Parties prompt written notice of any such request or requirement so that such other Party or
Parties may seek a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Section 7.13. If, in the absence of a protective order or other remedy or the
receipt of a waiver by such other Party or Parties, the disclosing Party or such Affiliate, as the
case may be, nonetheless, based on the advice of outside counsel, is required to disclose
Confidential Information to any tribunal or in accordance with applicable Law, then such Party or
such Affiliate, without liability hereunder, may disclose that portion of such information which
such counsel advises such Party or such Affiliate it is legally required to disclose. The Parties
acknowledge and agree that money damages may not be an adequate remedy for any breach of the
covenants set forth in this Section 7.13 and that in addition to any other remedies available to
the non-disclosing Party, the non-disclosing Party shall be entitled to seek the remedies of
injunction, specific performance and other equitable relief for any threatened or actual breach of
this Section 7.13.



     7.15 Base Fee Adjustment. If the due date for the payment of the 2008 Base Fee
Adjustment under the terms of the Management Agreement Amendments is on or after the Closing Date,
then Manager shall pay such Base Fee Adjustment, if any, in full at the Closing. For purposes of
this Section 7.15, the term “Management Agreement Amendments” means, collectively, that certain
First Amendment to Amended and Restated Management Services and



18









 







License Agreement with respect to the Dells Management Agreement dated as of December 17,
2008, and that certain First Amendment to Amended and Restated Management Services and License
Agreement with respect to the Sandusky Management Agreement dated as of December 17, 2008.



ARTICLE VIII




INDEMNIFICATION




     8.1 Indemnity Obligations of Seller and Manager. Seller and Manager, jointly and
severally, covenant and agree to defend, indemnify and hold harmless Purchaser and its Affiliates
(including, following the Closing, the Partnership, each Tenant Subsidiary and each Owner
Subsidiary) and their respective officers, directors, managers, partners, employees, agents,
advisers and representatives (collectively, the “Purchaser Indemnitees”), from and against,
and to pay or reimburse the Purchaser Indemnitees for, any and all claims, liabilities,
obligations, losses, fines, costs, proceedings or damages (whether absolute, accrued, conditional
or otherwise and whether or not resulting from third party claims), including all reasonable fees
and disbursements of counsel incurred in the investigation or defense of any of the same or in
asserting any of their respective rights hereunder (collectively, “Losses”), based on,
resulting from, arising out of or relating to:



               (i) any misrepresentation or breach of any representation or warranty of Seller or Manager
contained in this Agreement or any of the other Transaction Documents; and



               (ii) any failure of Seller or Manager to perform any covenant or agreement made or contained
in this Agreement or any of the other Transaction Documents or fulfill any obligation in respect
thereof.



     8.2 Indemnity Obligations of Purchaser. Purchaser covenants and agrees to defend,
indemnify and hold harmless Seller and its officers, directors, employees, agents and
representatives (collectively, the “Seller Indemnitees”) from and against, and to pay or
reimburse the Seller Indemnitees for, any and all Losses based on, resulting from, arising out of
or relating to:



               (i) any misrepresentation or breach of warranty of Purchaser contained in this Agreement or
any of the other Transaction Documents; and



               (ii) any failure of Purchaser to perform any covenant or agreement made or contained in this
Agreement or any of the other Transaction Documents or fulfill any other obligation in respect
thereof.



     8.3 Indemnification Procedures.




     (a) Third Party Claims. In the case of any claim asserted by a third party
against a Party entitled to indemnification under this Agreement (the “Indemnified
Party”), written notice (the “Required Notice”) shall be given by the
Indemnified Party to the Party or Parties required to provide indemnification (whether one
or more the



19









 







“Indemnifying Party”) as soon as practicable after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought. If the Indemnifying
Party acknowledges that the third party claim is within the scope of the indemnification
obligations of the Indemnifying Party hereunder, then the Indemnified Party shall permit the
Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any
third party claim or any litigation with a third party resulting therefrom; provided,
however, that (a) the counsel for the Indemnifying Party who shall conduct the defense of
such claim or litigation shall be subject to the approval of the Indemnified Party (which
approval shall not be unreasonably withheld or delayed), (b) the Indemnified Party may
participate in such defense at such Indemnified Party’s expense (which shall not be subject
to reimbursement hereunder except as provided below), and (c) the failure by any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except and only to the extent that such
Indemnifying Party is actually and materially damaged as a result of such failure to give
notice. Except with the prior written consent of the Indemnified Party, no Indemnifying
Party, in the defense of any such claim or litigation, shall consent to entry of any
judgment or enter into any settlement that provides for injunctive or other nonmonetary
relief affecting the Indemnified Party or that does not include as an unconditional term
thereof the giving by each claimant or plaintiff to such Indemnified Party of a general
release from any and all liability with respect to such claim or litigation. If the
Indemnified Party shall in good faith determine that the conduct of the defense of any claim
subject to indemnification hereunder or any proposed settlement of any such claim by the
Indemnifying Party might be expected to affect adversely the ability of the Indemnified
Party to conduct its business, or that the Indemnified Party may have available to it one or
more defenses or counterclaims that are inconsistent with one or more of those that may be
available to the Indemnifying Party in respect of such claim or any litigation relating
thereto, the Indemnified Party shall have the right at all times to take over and assume
control over the defense, settlement, negotiations or litigation relating to any such claim
at the sole cost of the Indemnifying Party; provided, however, that if the Indemnified Party
does so take over and assume control, the Indemnified Party shall not settle such claim or
litigation without the prior written consent of the Indemnifying Party, such consent not to
be unreasonably withheld or delayed. If the Indemnifying Party does not accept the defense
of any matter as above provided within thirty (30) days after receipt of the notice from the
Indemnified Party described above, the Indemnified Party shall have the full right to defend
against any such claim or demand at the sole cost of the Indemnifying Party and shall be
entitled to settle or agree to pay in full such claim or demand. In any event, the
Indemnifying Party and the Indemnified Party shall reasonably cooperate in the defense of
any claim or litigation subject to this Article VIII and the records of each shall be
reasonably available to the other with respect to such defense.




     (b) Non-Third Party Claims. With respect to any claim for indemnification
hereunder which does not involve a third party claim, the Indemnified Party will give the
Indemnifying Party written notice of such claim. The Indemnifying Party may acknowledge and
agree by notice to the Indemnified Party in writing to satisfy such claim within twenty (20)
days of receipt of notice of such claim from the Indemnified Party. If the Indemnifying
Party disputes such claim, the Indemnifying Party shall provide written



20









 







notice of such dispute to the Indemnified Party within such 20-day period, setting
forth in reasonable detail the basis of such dispute. Upon receipt of notice of any such
dispute, the Indemnified Party and the Indemnifying Party shall use reasonable efforts to
resolve such dispute within thirty (30) days of the date such notice of dispute is received.
If the Indemnifying Party fails to provide written notice to the Indemnified Party within
twenty (20) days of receipt of notice from the Indemnified Party that the Indemnifying Party
either acknowledges and agrees to pay such claim or disputes such claim, the Indemnifying
Party shall be deemed to have acknowledged and agreed to pay such claim in full and to have
waived any right to dispute such claim. Once (a) the Indemnifying Party has acknowledged
and agreed to pay any claim pursuant to this Section 8.3, (b) any dispute under this Section
8.3 has been resolved in favor of indemnification by mutual agreement of the Indemnifying
Party and the Indemnified Party, or (c) any dispute under this Section 8.3 has been finally
resolved in favor of indemnification by order of a court of competent jurisdiction or other
tribunal having jurisdiction over such dispute, then the Indemnifying Party shall pay the
amount of such claim to the Indemnified Party within twenty (20) days of the date of
acknowledgement by the Indemnifying Party or final resolution in favor of indemnification,
as the case may be, to such account and in such manner as is designated in writing by the
Indemnified Party.




     (c) Any Indemnifying Party’s obligation to indemnify an Indemnified Party shall be
reduced by the amount of insurance proceeds that the Indemnified Party receives in
connection with any indemnified claim, and the Indemnified Party shall use commercially
reasonable efforts promptly to collect any available insurance proceeds.



     8.4 Expiration of Representations and Warranties. All representations and warranties
contained in this Agreement shall survive the Closing until the date which is eighteen (18) months
after the Closing Date; provided, however, that the representations and warranties
stated in Section 4.8, Section 4.13 and Section 4.16 shall survive the Closing for the period
ending on the date that is thirty (30) days after the expiration of the applicable statute of
limitations period, and; provided further, that any claim for indemnification
hereunder, with respect to a breach of a representation or warranty, which is asserted prior to the
end of the survival period of such representation or warranty shall survive until final resolution
of such claim.



     8.5 Exclusive Remedy. Absent fraud, willful misrepresentation or misconduct, or
criminal activity and except as provided under Sections 7.12 and 7.13, the indemnifications
provided for in this Article VIII shall be the sole and exclusive post-Closing remedies available
to any Party against any other Party for any claims under or based upon this Agreement. Seller and
Manager acknowledge and agree that the representations and warranties contained in the Transaction
Documents shall not be deemed waived or otherwise affected by any investigation by or on behalf of
Purchaser, except to the extent that, as a direct and proximate result of such investigation, an
executive officer of Purchaser learns, prior to the Closing, of any fact which is clearly and
unequivocally inconsistent with any representation or warranty of Seller or Manager set forth in
this Agreement.



21









 





ARTICLE IX




CERTAIN TAX MATTERS




     9.1 Taxable Periods That Begin Before and End After the Closing Date. For purposes of
this Agreement, in the case of any taxable period of the Partnership that commences prior to and
includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any
Taxes based on or measured by income or receipts of the Partnership for the Pre-Closing Tax Period
shall be determined based on an interim closing of the books as of the close of business on the
Closing Date and the amount of other Taxes of the Partnership for a Straddle Period which relate to
the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable
period multiplied by a fraction the numerator of which is the number of days in the taxable period
ending on the Closing Date and the denominator of which is the number of days in such Straddle
Period.



     9.2 Tax Returns.




     (a) Purchaser will prepare or cause to be prepared and file or cause to be filed any
income Tax Returns of the Partnership and, as required by applicable law, each Subsidiary of
the Partnership for taxable periods ending on or before the Closing Date. Purchaser will
prepare or cause to be prepared and file or cause to be filed all other Tax Returns of the
Partnership and its Subsidiaries which are filed after the Closing Date. Seller agrees that
it will be allocated liability for Taxes due with respect to taxable periods ending on or
before the Closing Date and the amount of any Taxes allocable to the Pre-Closing Tax Period
with respect to a Straddle Period Tax Return as provided in the Partnership Agreement as in
effect immediately prior to the Closing.




     (b) Any and all Tax sharing agreements or similar agreements with respect to or
involving the Partnership and Purchaser and Seller shall be terminated as of the Closing
Date and, after the Closing Date, the Partnership shall not be bound thereby or have any
liability thereunder.




     (c) After the Closing, Purchaser shall inform Seller within thirty (30) days of its
receipt of any notice of any Tax audit, assessment, adjustment, examination or proceeding
(“Tax Contest”) relating in whole or in part to Taxes for which Seller may have
liability; provided, however, that the failure of Purchaser to provide such
notice shall not affect Seller’s liability as to such Taxes except to the extent, and only
to the extent, Seller is materially prejudiced. Purchaser shall have the right to control
such Tax Contest at its expense and to employ counsel of its choice. Seller shall have the
right to participate in any such Tax Contest at its own expense, shall be entitled to
control the disposition of any issue in any such Tax Contest that does not affect a
potential liability of Purchaser, and shall be entitled to jointly control with Seller the
defense and disposition of any issue in any such Tax Contest that relates to any Straddle
Period. Purchaser shall control any other Tax Contests. With respect to a Tax Contest in
which Seller is entitled to participate, Seller shall not settle any Tax Contest without the
prior consent of Purchaser (which consent may not be unreasonably withheld). Seller shall
deliver to Purchaser any power of attorney reasonably required to allow Purchaser and its
counsel



22









 







to represent Seller in connection with any Tax Contest that Purchaser is entitled to
control hereunder and shall use its reasonable efforts to provide Purchaser with such
assistance as may be reasonably requested by Purchaser in connection with any such Tax
Contest. The Parties each agree to consult with and to keep the other Parties hereto
informed on a regular basis regarding the status of any Tax Contest to the extent that such
Tax Contest could affect a liability of such other Party (including with respect to any
indemnity obligations hereunder).




     (d) The Parties shall cooperate fully, as and to the extent reasonably requested by one
another, in connection with the preparation and filing of Tax Returns and any audit,
litigation or other proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon another’s request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and making employees
available on a mutually convenient basis to provide additional information and explanation
of any material provided hereunder. Purchaser on the one hand, and Seller on the other,
agree (a) to retain all books and records with respect to Tax matters pertinent to the
Partnership and its Subsidiaries relating to any taxable periods, and (b) to give the other
Party reasonable written notice prior to transferring, destroying or discarding any such
books and records and, if so requested, Purchaser or Seller, as the case may be, shall allow
the requesting Party to take possession of such books and records. The Parties hereto
agree, upon request, to use reasonable efforts to obtain any certificate or other document
from any taxing authority or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could otherwise be imposed.



ARTICLE X




MISCELLANEOUS




     10.1 Certain Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified in this Section 10.1:



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person, and in the case of any natural
Person shall include all relatives and family members of such Person. For purposes of this
definition, a Person shall be deemed to control another Person if such first Person and/or any
relatives or family members of such first Person directly or indirectly owns or holds five percent
(5%) or more of the ownership interests in such other Person.



     “Books and Records” means all books and records of each Lodge Resort as required
under the Management Agreements, including, if applicable, lists of lessees, promotional materials,
purchasing materials, documents evidencing intangible rights or obligations, accounting records and
litigation files (regardless of the media in which stored), in each case relating to or used in the
Business of such Lodge Resort.



     “Business” means the business of the a Lodge Resort, the Partnership or any Subsidiary
of the Partnership, as applicable, as conducted or proposed to be conducted as of the date hereof.



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     “Business Day” means any day of the year on which national banking institutions in the
State of Delaware are open to the public for conducting business and are not required or authorized
to close.



     “CNL Advisor” means CNL Lifestyle Company, LLC, a Florida limited liability company.



     “Code” shall mean the Internal Revenue Code of 1986, as amended.



     “Consent” means any consent, approval, authorization, waiver, permit, grant,
franchise, concession or agreement by, license, exemption or order of, registration, certificate,
declaration or filing with, or report or notice to, any Person, including any Governmental Body.



     “Contract” means any contract, agreement, indenture, note, bond, loan, mortgage,
license, instrument, lease, commitment or other arrangement or agreement.



     “Environmental Law” means any foreign, federal, state or local statute, regulation,
ordinance, or rule of common law as now or hereafter in effect in any way or any other legally
binding requirement relating to the environment, natural resources or protection of human health
and safety including, but not limited to, the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
App. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the
Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.) the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. § 136 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651
et seq.), and the regulations promulgated pursuant thereto.



     “GAAP” means United States generally accepted accounting principles as in effect from
time to time.



     “Governmental Approval” means any Consent of, with or to any Governmental Body.



     “Governmental Body” means any government or governmental or regulatory authority or
body thereof, or political subdivision thereof, whether federal, state, provincial, local or
foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or
private).



     “Guarantor” means Great Wolf Resorts, Inc., the indirect parent company of Manager.



     “Hazardous Material” means petroleum and petroleum products, flammable explosives,
radioactive materials (excluding radioactive materials in smoke detectors), polychlorinated
biphenyls, radon, lead/asbestos in any form, hazardous waste, toxic or hazardous substances, molds,
microbiological agents, and other related materials whether in the form of a chemical, biologic,
element, natural agent, compound, solution, mixture or otherwise, including, but not limited to,
those materials defined under Environmental Laws as “hazardous substances,” “extremely hazardous
substances,” “hazardous chemicals,” “hazardous materials,” “toxic substances,” “solid waste,”
“toxic chemicals,” “air pollutants,” “toxic pollutants,” “hazardous wastes,” “extremely hazardous
waste,” or “restricted hazardous waste”.



24









 





     “Indebtedness” of any Person means, without duplication: (a) the principal, accreted
value, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any),
unpaid fees or expenses and other monetary obligations in respect of (i) indebtedness of such
Person for money borrowed and (ii) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or liable; (b) all
obligations of such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and other accrued current liabilities
arising in the ordinary course of business (other than the current liability portion of any
indebtedness for borrowed money)); (c) all obligations of such Person under leases required to be
capitalized in accordance with GAAP; (d) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker’s acceptance or similar credit transaction; (e) all
obligations of such Person under interest rate or currency swap transactions (valued at the
termination value thereof); (f) all obligations of the type referred to in clauses (a) through (e)
of any Persons for the payment of which such Person is responsible or liable, directly or
indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations;
and (g) all obligations of the type referred to in clauses (a) through (f) of other Persons secured
by (or for which the holder of such obligations has an existing right, contingent or otherwise, to
be secured by) any Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person).



     “Intellectual Property” means (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks,
service marks, trade dress, logos, trade names, and corporate names, together with all
translations, adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and renewals in connection therewith, (c)
all copyrightable works, all copyrights, and all applications, registrations and renewals in
connection therewith, (d) all mask works and all applications, registrations and renewals in
connection therewith, (e) all trade secrets and confidential information (including ideas, research
and development, know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information, and business and marketing plans and proposals), (f) all computer software
(including data and related documentation), (g) all other proprietary rights, and (h) all copies
and tangible embodiments thereof (in whatever form or medium).



     “IRS” means the United States Internal Revenue Service.



     “Law” means any federal, state, local or foreign law (including common law), statute,
code, ordinance, rule, regulation or other requirement.



     “Legal Proceeding” means any judicial, administrative or arbitral action, suit,
proceeding (public or private), claim or governmental proceeding.



25









 





     “Lender” means NSPL, Inc., a New York corporation, as lender under the terms of that
certain Loan Agreement dated as of March 1, 2006 by and among Dells Owner and Sandusky Owner,
collectively, as borrower, and NSPL, Inc., as lender.



     “Liability” means any liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for Taxes.



     “License Fee Agreements” has the meaning given to such term in Section 7.3.



     “Lien” means any lien (including any Tax lien), pledge, mortgage, deed of trust,
security interest, claim, lease, charge, option, right of first refusal, easement, servitude,
transfer restriction or any other encumbrance, restriction or limitation whatsoever.



     “Lodge Resort” means each of the Dells Lodge and the Sandusky Lodge.



     “Losses” has the meaning given to such term in Section 8.1 of this Agreement.



     “Material Adverse Change” or “Material Adverse Effect” as to any Person or
either Lodge Resort means any change or effect that is materially adverse to (a) the business,
properties, results of operations, prospects or condition (financial or otherwise) of such Person
or Lodge Resort, (b) the ability of such Person to perform its obligations under this Agreement or
(c) the ability of Purchaser to conduct the Businesses of each Lodge Resort after the Closing Date
as such Businesses are being conducted as of the date hereof.



     “Order” means any order, injunction, judgment, decree, ruling, writ, assessment or
arbitration award.



     “Organizational Documents” means articles of incorporation and bylaws as to a
corporation, certificate or articles or organization and operating agreement as to a limited
liability company, certificate of limited partnership and limited partnership agreement as to a
limited partnership, or similar organizing documents.



     “Outside Closing Date” has the meaning given to such term in Section 6.3(b).



     “Owner Subsidiaries” means Dells Owner and Sandusky Owner.



     “Owner Subsidiary” means either one of the Owner Subsidiaries.



     “Partnership Interest” means the entire interest of a partner in the Partnership,
including, but not limited to, the right to receive allocations of net income, net loss, income,
gain, deduction of loss of the partnership and distributions under the Partnership Agreement, and
any voting and management rights associated with such ownership interest, and the right to receive
information concerning the business and affairs of the Partnership.



     “Permit” means a governmental franchise, easement, permit, right, application, filing,
registration, license or other authorization granted or issued to a Person.



26









 





     “Permitted Encumbrances” means (a) statutory liens for current taxes, assessments or
other governmental charges not yet delinquent or the amount or validity of which is being contested
in good faith by appropriate proceedings, provided an appropriate reserve has been established
therefor; (b) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in
the ordinary course of business that are not material to the business, operations and financial
condition of the property so encumbered or the Person; (c) zoning, entitlement and other land use
and environmental regulations by any Governmental Body, provided that such regulations have not
been violated; and (d) such other imperfections in title, charges, easements, restrictions and
encumbrances which do not materially detract from the value of or materially interfere with the
present use of the assets subject thereto or affected thereby.



     “Person” means any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization, Governmental Body or other
entity.



     “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date
and the portion, ending on the Closing Date, of any Straddle Period.



     “Purchaser Indemnitees” has the meaning given to such term in Section 8.1 of this
Agreement.



     “Release” means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, migration or leaching into the indoor or outdoor environment, or
into or out of any property.



     “Seller’s Knowledge” means the actual knowledge after reasonable investigation of
Kimberly Schaefer, James Calder, Michael Schroeder and Scott Maupin, who are officers of Guarantor,
and Ronn McClane, who is the general manager of the Dells Lodge, and Matthew Lawrence, who is the
general manager of the Sandusky Lodge.



     “Subsidiary” means, as to any Person, any other Person of which 50% or more of the
outstanding voting securities or other equity interests are owned, directly or indirectly, by such
Person.



     “Tax” or “Taxes” shall mean means any federal, state, provincial, local or
foreign income, alternative minimum, accumulated earnings, personal holding company, franchise,
capital stock, net worth, capital, profits, windfall profits, gross receipts, value added, sales,
use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration,
stamp, documentary, recording, premium, severance, environmental (including taxes under Section 59A
of the Code or any analogous or similar provision of any state, local or foreign law or
regulation), real property, personal property, ad valorem, intangibles, unclaimed property, rent,
occupancy, license, occupational, employment, unemployment insurance, social security, disability,
workers’ compensation, payroll, health care, withholding, estimated or other similar tax, duty or
other governmental charge or assessment or deficiencies thereof, and including any interest,
penalties or additions to tax attributable to the foregoing.



     “Tax Return” means any return, report, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.



27









 





     “Tenant Subsidiaries” means Dells Tenant and Sandusky Tenant.



     “Tenant Subsidiary” means either one of the Tenant Subsidiaries.



     “Transaction Document(s)” means, individually or collectively as the context requires,
with respect to any Person, this Agreement together with any and all other agreements, instruments,
certificates and documents executed by such Person in connection herewith or therewith or in
connection with the transactions contemplated hereby or thereby.



     “Treasury Regulations” means the regulations promulgated under the Code, including
temporary and proposed regulations.



     10.2 Payment of Sales, Use or Similar Taxes; Transfer Taxes. Purchaser and Seller
shall each be responsible for and pay in a timely manner fifty percent (50%) of all sales, use,
value added, documentary, stamp, gross receipts, registration, transfer, conveyance, excise,
recording, license and other similar Taxes and fees (“Transfer Taxes”), arising out of or
in connection with or attributable to the sale to Purchaser of the Seller Interest under the terms
of this Agreement. Each Party shall prepare and timely file all Tax Returns required to be filed
in respect of Transfer Taxes that are the primary responsibility of such Party under applicable
Law; provided, however, that such Party’s preparation of any such Tax Returns shall
be subject to the other Party’s approval, which approval shall not be unreasonably withheld or
delayed.



     10.3 Expenses. Each Party shall bear its own expenses incurred in connection with the
negotiation and execution of this Agreement and each other agreement, document and instrument
contemplated by this Agreement and the consummation of the transactions contemplated hereby and
thereby.



     10.4 Default. In the event the Closing does not occur by reason of a default by any
Party or Parties (such defaulting Party or Parties, whether one or more, the “Defaulting
Party”, and the other Party or Parties, whether one or more, the “Non-Defaulting
Party”), the Non-Defaulting Party, in addition to any other rights or remedies available to it
at law or in equity, shall have the right to recover from the Defaulting Party its out-of-pocket
expenses (including, but not limited to, reasonable attorney fees and costs) incurred in connection
with the negotiation and preparation of this Agreement and the performance by the Non-Defaulting
Party of its obligations hereunder, as well as any other actual damages incurred by the
Non-Defaulting Party. Seller acknowledges and agrees that Seller’s failure to sell the Seller’s
Interest to Purchaser would cause irreparable damage to Purchaser and that Purchaser will not have
an adequate remedy at law. Therefore, the obligation of Seller under this Agreement, including,
but not limited to, Seller’s obligations to sell the Seller’s Interest to Purchaser, shall be
enforceable by a decree of specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection therewith (without the
requirement of the posting of a bond or other surety). Such remedies shall, however, be cumulative
and not exclusive and shall be in addition to any other remedies which any Party may have under
this Agreement or otherwise.



     10.5 Submission to Jurisdiction; Consent to Service of Process.



28









 






     (a) The Parties hereto irrevocably submit to the exclusive personal jurisdiction of any
state or federal court sitting in the State of Delaware (and any appellate court from any
thereof) over any dispute arising out of or relating to this Agreement or any of the
transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in
respect of such dispute or any suit, action or proceeding related thereto may be heard and
determined in such courts. The Parties hereby irrevocably waive, to the fullest extent
permitted by applicable Law, any objection which they may now or hereafter have to the
laying of venue of any such dispute brought in such court or any defense of inconvenient
forum for the maintenance of such dispute. Each of the Parties hereto agrees that a
judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by Law.




     (b) Each of the Parties hereto hereby consents to process being served by any Party to
this Agreement in any suit, action or proceeding by delivery of a copy thereof in accordance
with the provisions of Section 10.9.



     10.6 Entire Agreement; Amendments and Waivers. This Agreement (including the Schedules
and Exhibits hereto) represents the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific reference to this
Agreement signed by each of the Parties. No action taken pursuant to this Agreement, including,
but not limited to, any investigation by or on behalf of any Party, shall be deemed to constitute a
waiver by the Party taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any Party of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing waiver of such breach or as a waiver
of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such Party preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.



     10.7 Governing Law. This Agreement, the rights and obligations of the Parties under
this Agreement, and any claim or controversy directly or indirectly based upon or arising out of
this Agreement or the transactions contemplated by this Agreement (whether based upon contact, tort
or any other theory), including all matters of construction, validity and performance, shall be
governed by and construed in accordance with the internal Laws of the State of Delaware, without
regard to any conflict of Laws provision that would require the application of the Law of any other
jurisdiction.



     10.8 Table of Contents and Headings. The table of contents and section headings of
this Agreement are for reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.



     10.9 Notices. All notices and other communications under this Agreement shall be in
writing and shall be hand delivered or sent by a nationally recognized overnight courier (such as
FedEx or UPS) or by facsimile transmission, addressed as follows (or to such other address as a
Party may have specified by notice given to the other Party or Parties pursuant to this provision):



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If to Purchaser, to:



CNL Lifestyle Properties, Inc.

CNL Center at City Commons

450 South Orange Avenue

Orlando, Florida 32801-3336

Facsimile: (407) 540-2544

Attention: Chief Financial Officer and General Counsel



With a copy to:



Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 North Eola Drive

Orlando, Florida 32801

Facsimile: (407) 843-4444

Attention: William T. Dymond, Jr. Esq.



If to Seller or Manager, to:



Great Wolf Resorts, Inc.

122 W. Washington Avenue, 6th Floor

Madison, Wisconsin 53703

Facsimile: (608) 661-4701

Attention: General Counsel



Any such notice shall be deemed given upon the earlier of receipt by the addressees if hand
delivered (or attempted delivery is refused by the intended recipient thereof), on the next
business day after deposit with a recognized overnight courier, or if sent by facsimile
transmission on the day given provided that the Party making such delivery receives an electronic
confirmation setting forth the proper phone number receiving such facsimile transmission and that
the entire transmission has been properly received by the addressee without communication error.




     10.10 Severability. If any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions
of this Agreement shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any manner materially
adverse to any Party. Upon determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally contemplated to the
greatest extent possible.



     10.11 Binding Effect; Assignment. This Agreement shall not be assigned by any Party,
and no Party’s obligations hereunder, or any of them, may be delegated, without the written consent
of the other Party or Parties; provided, however, that without the consent of Seller or Manager,
Purchaser may assign its rights under this Agreement to an Affiliate of Purchaser, but



30









 







no such assignment shall relieve Purchaser of its obligations and liabilities hereunder.
Subject to the preceding sentence, this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.



     10.12 No Third Party Beneficiary. It is the intent of the Parties that this Agreement
is solely for their benefit and, therefore, except as provided in Section 7.14(c), no Person or
Persons other than the Parties hereto shall have any right or privileges under this Agreement
either as third party beneficiaries or otherwise.



     10.13 Further Assurances. Each Party shall execute and deliver such additional
instruments and other documents and shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of the terms of this Agreement and the
transactions contemplated hereby.



     10.14 Notification of Certain Matters. Each of the Parties to this Agreement shall
give prompt notice to the other Party or Parties of the occurrence or non occurrence of any event
which would likely cause any representation or warranty made by such Party herein to be untrue or
inaccurate or any covenant, condition or agreement contained herein not to be complied with or
satisfied (provided, however, that, any such disclosure shall not in any way be deemed to amend,
modify or in any way affect the representations, warranties and covenants made by any Party in or
pursuant to this Agreement).



     10.15 Arms Length Negotiation. Each Party herein expressly represents and warrants to
the other Party or Parties that (a) before executing this Agreement, said Party has fully informed
itself of the terms, contents, conditions and effects of this Agreement; (b) said Party has relied
solely and completely upon its own judgment in executing this Agreement; (c) said Party has had the
opportunity to seek and has obtained the advice of counsel before executing this Agreement; (d)
said Party has acted voluntarily and of its own free will in executing this Agreement; (e) said
Party is not acting under duress, whether economic or physical, in executing this Agreement; and
(f) this Agreement is the result of arms length negotiations conducted by and among the Parties and
their respective counsel.



     10.16 Waiver of Jury Trial. THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION (a) ARISING UNDER THIS AGREEMENT OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.



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     10.17 No Presumption Against Drafter. The Parties have participated jointly in the
negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any provision of this Agreement.



     10.18 Definitional and Interpretive Matters. Unless otherwise expressly provided, for
purposes of this Agreement, the Exhibits and Schedules to this Agreement are hereby incorporated
and made a part hereof and are an integral part of this Agreement. All Exhibits and Schedules
annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. The disclosure of an item in a Schedule or Exhibit does not
qualify any other Schedules, Exhibits, sections and paragraphs in this Agreement except to the
extent it is clear by appropriate cross-references that a given disclosure is applicable to such
other Schedules, Exhibits, sections and paragraphs. The listing or inclusion of a copy of a
document or other item is not adequate to disclose an exception to any representation or warranty
in this Agreement unless the representation or warranty relates to the existence of the document or
item itself. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined
therein shall be defined as set forth in this Agreement.



     10.19 Construction Rules. In this Agreement, the use of any pronoun shall be deemed to
include all genders, and the use of a singular pronoun shall include the plural, and vice versa,
wherever, in either case, it appears appropriate from the context. Titles of Sections and Articles
in this Agreement are for convenience of reference only, and shall neither limit nor amplify the
provisions of this Agreement. References in this Agreement to particular Sections or Articles are
references to Sections or Articles of this Agreement unless otherwise specifically provided. The
words “hereof,” “herein,” “hereto” and “hereunder” or similar words shall refer to this Agreement
as a whole and not to any particular provision of this Agreement unless otherwise specifically
provided.



     10.20 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original as against any Party whose signature appears thereon, and all of
which together shall constitute one and the same agreement. All executed facsimile copies of this
Agreement shall have the same force and effect as an executed original.



(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK; THE

PARTIES’ SIGNATURES ARE ON THE FOLLOWING PAGE)




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     IN WITNESS WHEREOF, this Purchase Agreement has been executed by or on behalf of each of the
Parties as of the day first written above.



	 	 	 	 	 	 	 
	 	 	GREAT BEAR LODGE OF WISCONSIN

DELLS, LLC, a Delaware limited liability

company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

	 	/s/
 

	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	
	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	GREAT LAKES SERVICES, LLC, a

Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/
 

	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	
	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	CNL INCOME PARTNERS, LP, a Delaware

limited partnership	 	 






	 	 	 	 	 	 	 	 	 
	 	 	By:	 	CNL Income GP Corp., a Delaware
corporation, its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/
 

	 	 
	 

	 	 	 	Name:
	 	
 

	 	 
	 

	 	 	 	Title:	 	 	 	 







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