Commonwealth of Virginia
and when recorded return to:
Latham & Watkins LLP
233 S. Wacker Dr., Suite 5800
Chicago, IL 60606
SECURITY AGREEMENT AND FIXTURE FILING
(INDEX AS “GRANTOR”)
(INDEX AS “GRANTEE”)
(INDEX AS “GRANTEE”)
Dated and Effective as of April 7, 2010
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PREAMBLE | 1 | |||
RECITALS | 1 | |||
AGREEMENT | 2 | |||
ARTICLE I. | ||||
DEFINITIONS AND INTERPRETATION | ||||
SECTION 1.1. Definitions | 2 | |||
SECTION 1.2. Interpretation | 8 | |||
SECTION 1.3. Resolution of Drafting Ambiguities | 8 | |||
ARTICLE II. | ||||
GRANTS AND SECURED OBLIGATIONS | ||||
SECTION 2.1. Grant of Mortgaged Property | 9 | |||
SECTION 2.2. Assignment of Leases and Rents | 10 | |||
SECTION 2.3. Secured Obligations | 10 | |||
SECTION 2.4. No Release | 11 | |||
ARTICLE III. | ||||
REPRESENTATIONS AND WARRANTIES OF TRUSTOR | ||||
SECTION 3.1. Due Authorization and Execution | 12 | |||
SECTION 3.2. Warranty of Title | 12 | |||
SECTION 3.3. Condition of Mortgaged Property | 13 | |||
SECTION 3.4. Leases | 14 | |||
SECTION 3.5. Charges | 14 | |||
SECTION 3.6. Benefit to the Trustor | 14 | |||
SECTION 3.7. Insurance | 14 | |||
SECTION 3.8. Environmental | 14 | |||
ARTICLE IV. | ||||
CERTAIN COVENANTS OF TRUSTOR | ||||
SECTION 4.1. Payment | 15 | |||
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SECTION 4.2. Title | 16 | |||
SECTION 4.3. Maintenance and Use of Mortgaged Property | 16 | |||
SECTION 4.4. Notices Regarding Certain Defaults | 18 | |||
SECTION 4.5. Access to Mortgaged Property, Books and Records; Other Information | 18 | |||
SECTION 4.6. Limitation on Liens; Transfer Restrictions | 18 | |||
SECTION 4.7. Environmental | 18 | |||
ARTICLE V. | ||||
CONCERNING ASSIGNMENT OF LEASES AND RENTS | ||||
SECTION 5.1. Present Assignment; License to the Trustor | 19 | |||
SECTION 5.2. Collection of Rents by the Beneficiary | 19 | |||
SECTION 5.3. No Release | 20 | |||
SECTION 5.4. Irrevocable Interest | 20 | |||
SECTION 5.5. Amendment to Leases | 20 | |||
ARTICLE VI. | ||||
TAXES AND CERTAIN STATUTORY LIENS | ||||
SECTION 6.1. Payment of Charges | 20 | |||
SECTION 6.2. Stamp and Other Taxes | 21 | |||
SECTION 6.3. Certain Tax Law Changes | 21 | |||
SECTION 6.4. Proceeds of Tax Claim | 21 | |||
ARTICLE VII. | ||||
CONTESTING OF PAYMENTS | ||||
SECTION 7.1. Contesting of Taxes and Certain Statutory Liens | 21 | |||
ARTICLE VIII. | ||||
DESTRUCTION, CONDEMNATION AND RESTORATION | ||||
SECTION 8.1. Destruction and Restoration | 22 | |||
SECTION 8.2. Condemnation | 22 | |||
SECTION 8.3. Availability of Proceeds | 22 | |||
ARTICLE IX. | ||||
EVENT OF DEFAULT AND REMEDIES | ||||
SECTION 9.1. Events of Default | 22 | |||
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SECTION 9.2. Remedies in Case of an Event of Default | 22 | |||
SECTION 9.3. Sale of Mortgaged Property if Event of Default Occurs; Proceeds of Sale | 23 | |||
SECTION 9.4. Additional Remedies in Case of an Event of Default | 26 | |||
SECTION 9.5. Legal Proceedings After an Event of Default | 26 | |||
SECTION 9.6. Remedies Not Exclusive | 27 | |||
SECTION 9.7. Costs of Enforcement | 28 | |||
SECTION 9.8. Rescission of Notice of Default | 28 | |||
SECTION 9.9. Effect of Judgment | 28 | |||
SECTION 9.10. Subordination | 29 | |||
ARTICLE X. | ||||
SECURITY AGREEMENT AND FIXTURE FILING | ||||
SECTION 10.1. Security Agreement | 29 | |||
SECTION 10.2. Fixture Filing | 30 | |||
ARTICLE XI. | ||||
MORTGAGED PROPERTY TRUSTEE | ||||
SECTION 11.1. Acceptance by Mortgaged Property Trustee | 30 | |||
SECTION 11.2. Compensation | 30 | |||
SECTION 11.3. Action in Accordance with Instructions | 30 | |||
SECTION 11.4. Resignation | 31 | |||
SECTION 11.5. Substitute Trustee | 31 | |||
ARTICLE XII. | ||||
FURTHER ASSURANCES | ||||
SECTION 12.1. Recording Documentation To Assure Security | 32 | |||
SECTION 12.2. Further Acts | 32 | |||
SECTION 12.3. Additional Security | 32 | |||
ARTICLE XIII. | ||||
MISCELLANEOUS | ||||
SECTION 13.1. Trust is Irrevocable | 33 | |||
SECTION 13.2. Covenants To Run with the Land | 33 | |||
SECTION 13.3. Environmental Indemnity | 33 | |||
SECTION 13.4. No Merger | 34 | |||
SECTION 13.5. Secured Obligations to Include Judgments; Other Collateral | 34 | |||
SECTION 13.6. Concerning Beneficiary | 34 | |||
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SECTION 13.7. Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact | 35 | |||
SECTION 13.8. Continuing Security Interest; Assignment | 36 | |||
SECTION 13.9. Termination; Release | 36 | |||
SECTION 13.10. Assignment in lieu of Reconveyance | 36 | |||
SECTION 13.11. Modification in Writing | 37 | |||
SECTION 13.12. Notices | 37 | |||
SECTION 13.13. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL | 38 | |||
SECTION 13.14. Severability of Provisions | 38 | |||
SECTION 13.15. Limitation on Interest Payable | 38 | |||
SECTION 13.16. Business Days | 39 | |||
SECTION 13.17. Relationship | 39 | |||
SECTION 13.18. Waiver of Stay | 39 | |||
SECTION 13.19. No Credit for Payment of Taxes or Impositions | 40 | |||
SECTION 13.20. No Claims Against the Beneficiary | 40 | |||
SECTION 13.21. Obligations Absolute | 40 | |||
SECTION 13.22. Beneficiary’s Right To Sever Indebtedness | 40 | |||
SECTION 13.23. Multi-Site Real Estate Transaction | 42 | |||
ARTICLE XIV. | ||||
STATE OF VIRGINIA PROVISIONS | ||||
SECTION 14.1. Rights, Duties and Obligations | 42 | |||
SECTION 14.2. Waiver of Certain Rights | 43 | |||
SIGNATURE | ||||
ACKNOWLEDGMENT | ||||
SCHEDULE A Legal Description | ||||
SCHEDULE B Leases | ||||
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AND FIXTURE FILING
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(A) | Upon receipt of such notice from Beneficiary, Mortgaged Property Trustee shall cause to be recorded and delivered to Trustor such notice as may then be required by law and by this Deed of Trust. Mortgaged Property Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of sale has been given as required by law, sell the Mortgaged Property at the time and place of sale fixed by it in said notice of sale, either as a whole or in separate lots or parcels or items as Mortgaged Property Trustee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale. Mortgaged Property Trustee shall deliver to the purchaser or purchasers at such sale its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any Person, including, without limitation, Mortgaged Property Trustee, Beneficiary, or other Secured Parties, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. | ||
(B) | Mortgaged Property Trustee may postpone the sale of all or any portion of the Mortgaged Property by public announcement at the time and place of the scheduled sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement or subsequent notice of sale, and without further notice may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. | ||
(C) | Trustor hereby expressly waives any right which it may have to direct the order in which any of the Mortgaged Property shall be sold in the event of any sale or sales pursuant to this Deed of Trust. |
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Name and Address of the debtor: | Name and Address of the secured party: | |
The Trustor having the address described in the Preamble hereof. The Trustor is a limited liability company organized under the laws of the State of Delaware whose Organization Number is 4471366. | The Beneficiary having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained. |
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(A) | the non-compliance of the Mortgaged Property with Environmental Laws; or | ||
(B) | the existence or presence of Hazardous Materials in concentrations in excess of applicable standards under Environmental Laws in, on, or about the Mortgaged Property or any portion thereof; |
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(i) | If to Mortgaged Property Trustee: | ||
Craig A. Johnson c/o First American Title Insurance Company 14368 Sommerville Court Midlothian, VA 23113 Phone: (202) 530-1200 Fax: (202) 530-1433 | |||
(ii) | If to Trustor: | ||
Great Wolf Williamsburg SPE, LLC c/o Great Wolf Resorts, Inc. 122 West Washington Avenue Suite 600 Madison, WI 53703 Attention: General Counsel Phone: (608) 661-4700 Fax: (608) 661-4701 | |||
(iii) | If to Beneficiary: | ||
Great Wolf Administrator c/o U.S. Bank National Association 60 Livingston Avenue EP-MN-WS3C St. Paul, MN 55107-2292 |
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Phone: (651) 495-3918 Fax: (651) 495-8097 |
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GREAT WOLF WILLIAMSBURG SPE, LLC | ||||||
By: | Great Wolf Lodge of Williamsburg, LLC its Sole Member | |||||
By: | GWR Operating Partnership, L.L.L.P. its Sole Member | |||||
By: | GWR OP General Partner, LLC its General Partner | |||||
�� | ||||||
By: | Great Wolf Resorts, Inc. its Sole Member | |||||
By: | /s/ J. Michael Schroeder | |||||
Name: | ||||||
Title: | Secretary |
STATE OF WISCONSIN | ) | |||||
) ss. | ||||||
DANE COUNTY | ) |
/s/ Nikki Rockstroh | ||
My commission (is permanent)(expires: 8/11/13) |
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Parcel A: C19a-2403-4804 and
Parcel D: C20c-1997-0991
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