Common use of Further Encumbrance Clause in Contracts

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the Obligations, except for Permitted Liens and Permitted Dispositions, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of the time for payment of the Obligations, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d) If Trustor shall fail to make any payment required to be made by it under any FF&E Financing Agreement, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to make such payment on Trustor's behalf and any and all sums so expended by the Beneficiary shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement from the date of advance.

Further Encumbrance. (a1) Trustor covenants that at all times prior to the discharge of the ObligationsIndenture, except for Permitted Liens (including the 1996 Deed of Trust), Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 1.10, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the ProjectResorts. (b2) Any Permitted Lien consisting described in the definition of "Permitted Liens" set forth in Section 1.1 of the lien of a deed of trust Indenture which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of TrustSUBORDINATE DEED OF TRUST") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c3) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of the time for payment of the ObligationsNotes, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d4) This Deed of Trust, as applied to property subject to an FF&E Financing Agreement, shall be subordinated to the liens of any FF&E Financing Agreements (as hereinafter defined in this Section 1.9(d) (or if required by an FF&E Financing Agreement, it shall be released) and any future of further advances made thereunder and to any modifications, renewals or extensions thereof to which the lien of this Deed of Trust attaches, provided, however, that any such FF&E Financing Agreement shall -------- ------- encumber only that FF&E specifically subject to the FF&E Financing Agreement. Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing Agreement with respect to which Beneficiary has taken a lien hereunder. If Trustor shall fail to make any payment required of principal of or pursuant to be made by it under any FF&E Financing AgreementAgreement with respect to which Beneficiary has taken a lien hereunder on its part to be performed or observed, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreement on Trustor's behalf part to be performed or observed and any and all sums so expended by the Beneficiary or Trustee shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at rate on the rate applicable to overdue principal set forth in the Credit Agreement Notes from the date of advance. In furtherance of such subordination or release, as applicable, Beneficiary, upon receipt of an officer's certificate from Trustor certifying that the requirements of this Section 1.9(d) have been satisfied, shall execute, acknowledge and deliver to Trustor, at Trustor's expense, any and all such evidence and documents necessary to evidence the subordination or release of this Deed of Trust in accordance with the foregoing provisions of this Section 1.9(d). As used herein, "FF&E Financing Agreement" shall mean (A) any financing (i) as to which the lender holds a security interest in only the assets purchased, constructed or leased by such financing for the payment of principal, interest and other amounts in connection therewith, (ii) which is permitted by the Indenture to be incurred and (iii) the proceeds of which are used to acquire, construct or lease the FF&E subject to such security interest, and (B) any refinancing or renewal of any financing under clause (A).

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsMortgage Notes Indenture and the Notes, except for Permitted Liens and Permitted Dispositions, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Mortgage Notes Indenture Security Documents) , or any other Security Document granting a security interest for the benefit of the Mortgage Notes Indenture Trustee (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Leasehold Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Leasehold Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Leasehold Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Leasehold Deed of Trust and no extension to any person of the time for payment of the ObligationsNotes, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d) Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing Agreement. If Trustor shall fail to make any payment required to be made by it under any FF&E Financing Agreement, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to make such payment on Trustor's behalf and any and all sums so expended by the Beneficiary shall be secured by this Leasehold Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Default Rate from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsIndenture, except for Permitted Liens Liens, Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 2.10, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust EstateProperty, including, including without limitation, limitation the Rents, Issues and Profits. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, ; provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate Property which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate Property or any part thereof becomes vested in a person Person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon under the obligations Obligations hereby secured. No sale of the Trust Estate and Property, no forbearance to any person Person with respect to this Deed of Trust and no extension to any person Person of the time for payment of the Obligations, Notes and other sums secured hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser endorser, either in whole or in part. (dc) This Deed of Trust, shall not extend to (i) FF&E to the extent the purchase or lease thereof has been financed or refinanced by, or with the proceeds of, an FF&E Financing permitted under the Indenture and (ii) any future or further advances made under such FF&E Financing and to any modifications, renewals, extensions or refinancings thereof to which the lien of this Deed of Trust would otherwise attach, in each case to the extent such FF&E Financing is permitted under the Indenture; provided that any such FF&E Financing shall encumber only that FF&E specifically subject to the FF&E Financing; and provided further that, upon the repayment, satisfaction or termination of such FF&E -------------------------------------------------------------------------------- Financing, all FF&E financed thereby shall no longer be deemed an Excluded Asset and shall be subject to the lien of this Deed of Trust. The Beneficiary shall, if requested by the Trustor, execute and deliver, at Trustor's sole expense, any instruments reasonably necessary or appropriate to release the lien of this Deed of Trust with respect to or otherwise confirm that the lien of this Deed of Trust does not apply to any of such Excluded Assets; Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing with respect to which Beneficiary has taken a Lien hereunder. If Trustor shall fail to make any payment required of principal of or interest on the sums secured by such security interest or any payment in order to be made by it under perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreementon Trustor's part to be performed or observed, except where Trustor is diligently contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing on Trustor's behalf part to be performed or observed, and any and all sums so expended by Beneficiary shall be part of the Beneficiary Obligations and shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Default Rate from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsExcept as otherwise expressly ------------------- permitted by this Section 7.21, except for Permitted Liens and Permitted Dispositions, Trustor Borrower shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, not further mortgage, transferencumber for debt or pledge the Project, LienTrust Estate, hypothecation or encumbrance of all Revenues or any part of the Trust Estate, thereof or any interest therein (including, without limitation, the Rentsany air or development rights). As used hereinBorrower shall be permitted to further encumber for debt, "transfer" includes the actual transfer mortgage or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to pledge the Trust Estate which or a part thereof as security for additional indebtedness ("Subordinate Financing") provided that all of the following conditions have been met by Borrower to Lender's reasonable satisfaction or are granted by Trustor and are reasonably necessary to Lender has waived the construction, maintenance or operation of same in writing: (a) Borrower has validly elected the ProjectFixed Rate under the Note for an Interest Period ending on the Maturity Date. (b) Any Permitted Lien consisting The Debt Service Coverage Ratio (calculated as if the Subordinate Financing had occurred and payments of principal and interest were payable with respect thereto) for the month preceding the month in which the Subordinate Financing is to occur, shall be equal to or greater than 1.15. (c) After taking the Subordinate Financing into account, the Loan to Value Ratio as of the lien date of a deed the Subordinate Financing shall be no greater than eighty percent (80%). (d) Borrower shall give Lender telephonic notice, promptly confirmed in writing, of trust which is junior Borrower's intention to engage in any such Subordinate Financing at least twenty (20) days prior to Borrower's entering into such Subordinate Financing. Not later than ten (10) days prior to the lien closing of such Subordinate Financing, Borrower shall submit to Lender all documentation with respect to such Subordinate Financing. Lender shall have ten (10) days from receipt of such documentation to approve such documentation and if Lender shall not have responded to Borrower's request for approval within ten (10) days after receipt thereof, Lender shall be deemed to have approved the Loan Documents documentation with respect to such Subordinate Financing. All documentation with respect to any Subordinate Financing shall be approved by Lender if such documentation, in Lender's reasonable judgment, (including i) expressly provides that the Security Documents) Subordinate Financing and all rights given to the lender under such Subordinate Financing (a "Subordinate Deed of TrustLender") shall be permitted hereunder so long subject and subordinate to the Loan and all Loan Documents (as there then in effect) in all respects, and (ii) provides for the following: (A) The Subordinate Financing shall have been delivered not contain any provisions which conflict with the Deed of Trust or the Assignment of Rents with regard to Beneficiarythe collection and release and of insurance proceeds, distribution of condemnation awards arid collection of rents following an Event of Default or shall expressly provide that the Deed of Trust and Assignment of Rents control with respect to the foregoing. The Subordinate Financing shall not less than assign to the Subordinate Lender any interest in the Rents payable under a Government Lease (as those terms are defined in the Assignment of Rents). (B) Any debt service or other payment paid on the Subordinate Financing out of Revenues from the Trust Estate after an Event of Default has occurred, shall be held in trust by the Subordinate Lender for the benefit of Lender and shall be paid over to Lender upon request if Lender has given the Subordinate Lender notice of such Event of Default and the Subordinate Lender (i) has not cured such Event of Default within ten (10) days after receipt of notice thereof, or (ii) with respect to non-monetary defaults, (A) the Subordinate Lender has not commenced action to remedy such Event of Default within thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form after notice and substance satisfactory to Beneficiary to the effect that: (iB) the Subordinate Deed Lender is not pursuing such remedial action to completion with due diligence, provided in each case that at the time of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any such action or proceeding shall be brought to foreclose by the Subordinate Deed Lender the Borrower would be entitled to cure the applicable Event of Trust Default. (regardless of whether C) The Subordinate Lender shall enter into non-disturbance agreements with Space Tenants under Space Leases if Lender has entered into or, after the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder date of the Subordinate Deed Financing, Lender enters into such agreements with such tenants. (e) There shall exist at the time of Trustsuch Subordinate Financing no Event of Default nor any fact or circumstance, shall be applied first to which with the obligations secured by passage of time, giving of notice or action of third parties, could become an Event of Default that is not then being cured in accordance with the terms of this Deed of Trust, including principal Agreement and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (cf) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of The Subordinate Lender shall be an Institutional Lender at the time for payment of entry into the Obligations, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in partSubordinate Financing. (dg) If Trustor With respect to any Subordinate Financing permitted hereunder and approved by Lender pursuant hereto, Lender shall, upon request and at Borrower's sole cost, enter into an agreement with the Subordinate Lender pursuant to which Lender shall fail agree to make provide the Subordinate Lender with (i) concurrent notices of any payment required to be made by it notice of default which could become an Event of Default under any FF&E Financing Agreementof the Loan Documents, except where Trustor is contesting and (ii) an opportunity to cure any such payment in good faithdefault within the applicable notice and grace periods, then if any, given to Borrower under the Beneficiary shall be entitled to make such payment on Trustor's behalf and applicable provisions of any and all sums so expended by of the Beneficiary shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement from the date of advanceLoan Documents.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge indefeasible satisfaction in full of the Obligationsobligations, except for Permitted Liens Liens, Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 2.8, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust EstateProperty, including, including without limitation, limitation the Rents, Issues and Profits. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, ; provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate Property which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate Property or any part thereof becomes vested in a person Person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Hyatt Gaming Deed of Trust, the Notes, the Guaranty, the other Loan Documents Subordinated Note and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon under the obligations Obligations hereby secured. No sale of the Trust Estate and Property, no forbearance to any person Person with respect to this Hyatt Gaming Deed of Trust and no extension to any person Person of the time for payment of the Obligations, Subordinated Note and other sums secured hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser endorser, either in whole or in part. (dc) This Hyatt Gaming Deed of Trust, shall not extend to (i) FF&E to the extent the purchase or lease thereof has been financed or refinanced by, or with the proceeds of, an FF&E Financing permitted under the Subordinated Loan Agreement and (ii) any future or further advances made under such FF&E Financing and to any modifications, renewals, extensions or refinancings thereof to which the lien of this Hyatt Gaming Deed of Trust would otherwise attach, in each case to the extent such FF&E Financing is permitted under the Subordinated Loan Agreement; provided that any such FF&E Financing shall encumber only that FF&E specifically subject to the FF&E Financing; and provided further that, upon the repayment, satisfaction or termination of such FF&E Financing, all FF&E financed thereby shall no longer be deemed an Excluded Asset and shall be subject to the lien of this Hyatt Gaming Deed of Trust. The Beneficiary shall, if requested by the Trustor, execute and deliver, at Trustor's sole expense, any instruments reasonably necessary or appropriate to release the lien of this Hyatt Gaming Deed of Trust with respect to or otherwise confirm that the lien of this Hyatt Gaming Deed of Trust does not apply to any of such Excluded Assets; Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing with respect to which Beneficiary has taken a Lien hereunder. If Trustor shall fail to make any payment required of principal of or interest on the sums secured by such security interest or any payment in order to be made by it under perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreementon Trustor's part to be performed or observed, except where Trustor is diligently contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing on Trustor's behalf part to be performed or observed, and any and all sums so expended by Beneficiary shall be part of the Beneficiary Obligations and shall be secured by this Hyatt Gaming Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Default Rate from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge termination of the ObligationsLoan Agreement and other Transaction Documents, except for Permitted Liens Liens, Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 2.10, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust EstateProperty, including, including without limitation, limitation the Rents, Issues and Profits. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate Property or any part thereof becomes vested in a person Person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, Trust and the Notes, the Guaranty, the other Loan Documents and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon under the obligations Obligations hereby secured. No sale of the Trust Estate and Property, no forbearance to any person Person with respect to this Deed of Trust and no extension to any person Person of the time for payment of the Obligations, and other sums Obligations secured hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser endorser, either in whole or in part. (dc) This Deed of Trust, shall not extend to (i) FF&E to the extent the purchase or lease thereof has been financed or refinanced by, or with the proceeds of, an FF&E Financing permitted under the Loan Agreement and other Transaction Documents and (ii) any future or further advances made under such FF&E Financing and to any modifications, renewals, extensions or refinancings thereof to which the lien of this Deed of Trust would otherwise attach, in each case to the extent such FF&E Financing is permitted under the Loan Agreement and other Transaction Documents; provided that any such FF&E Financing shall encumber only that FF&E specifically subject to the FF&E Financing; and provided further that, upon the repayment, satisfaction or termination of such FF&E Financing, all FF&E financed thereby shall no longer be deemed an Excluded Asset and shall be subject to the lien of this Deed of Trust. The Beneficiary shall, if requested by the Trustor, execute and deliver, at Trustor's sole expense, any instruments reasonably necessary or appropriate to release the lien of this Deed of Trust with respect to or otherwise confirm that the lien of this Deed of Trust does not apply to any of such Excluded Assets; Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing with respect to which Beneficiary has taken a Lien hereunder. If Trustor shall fail to make any payment required of principal of or interest on the sums secured by such security interest or any payment in order to be made by it under perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreementon Trustor's part to be performed or observed, except where Trustor is diligently contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing on Trustor's behalf part to be performed or observed, and any and all sums so expended by Beneficiary shall be part of the Beneficiary Obligations and shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Default Rate from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsExcept as otherwise expressly ------------------- permitted by this Section 7.21, except for Permitted Liens and Permitted Dispositions, Trustor Borrower shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, not further mortgage, transferencumber for debt or pledge the Project, LienTrust Estate, hypothecation or encumbrance of all Revenues or any part of the Trust Estate, thereof or any interest therein (including, without limitation, the Rentsany air or development rights). As used hereinBorrower shall be permitted to further encumber for debt, "transfer" includes the actual transfer mortgage or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to pledge the Trust Estate which or a part thereof as security for additional indebtedness ("Subordinate Financing") provided that all of the following conditions have been met by Borrower to Lender's reasonable satisfaction or are granted by Trustor and are reasonably necessary to Lender has waived the construction, maintenance or operation of same in writing: (a) Borrower has validly elected the ProjectFixed Rate under the Note for an Interest Period ending on the Maturity Date. (b) Any Permitted Lien consisting The Debt Service Coverage Ratio (calculated as if the Subordinate Financing had occurred and payments of principal and interest were payable with respect thereto) for the month preceding the month in which the Subordinate Financing is to occur, shall be equal to or greater than 1.15. (c) After taking the Subordinate Financing into account, the Loan to Value Ratio as of the lien date of a deed the Subordinate Financing shall be no greater than eighty percent (80%) . (d) Borrower shall give Lender telephonic notice, promptly confirmed in writing, of trust which is junior Borrower's intention to engage in any such Subordinate Financing at least twenty (20) days prior to Borrower's entering into such Subordinate Financing. Not later than ten (10) days prior to the lien closing of such Subordinate Financing, Borrower shall submit to Lender all documentation with respect to such Subordinate Financing. Lender shall have ten (10) days from receipt of such documentation to approve such documentation and if Lender shall not have responded to Borrower's request for approval within ten (10) days after receipt thereof, Lender shall be deemed to have approved the Loan Documents documentation with respect to such Subordinate Financing. All documentation with respect to any Subordinate Financing shall be approved by Lender if such documentation, in Lender's reasonable judgment, (including i) expressly provides that the Security Documents) Subordinate Financing and all rights given to the lender under such Subordinate Financing (a "..Subordinate Deed of TrustLender") shall be permitted hereunder so long subject and subordinate to the Loan and all Loan Documents (as there then in effect) in all respects, and (ii) provides for the following: (A) The Subordinate Financing shall have been delivered not contain any provisions which conflict with the Deed of Trust or the Assignment of Rents with regard to Beneficiarythe collection and release and of insurance proceeds, distribution of condemnation awards and collection of rents following an Event of Default or shall expressly provide that the Deed of Trust and Assignment of Rents control with respect to the foregoing. The Subordinate Financing shall not less than assign to the Subordinate Lender any interest in the Rents payable under a Government Lease (as those terms are defined in the Assignment of Rents). (B) Any debt service or other payment paid on the Subordinate Financing out of Revenues from the Trust Estate after an Event of Default has occurred, shall be held in trust by the Subordinate Lender for the benefit of Lender and shall be paid over to Lender upon request if Lender has given the Subordinate Lender notice of such Event of Default and the Subordinate Lender (i) has not cured such Event of Default within ten (10) days after receipt of notice thereof, or (ii) with respect to non-monetary defaults, (A) the Subordinate Lender has not commenced action to remedy such Event of Default within thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form after notice and substance satisfactory to Beneficiary to the effect that: (iB) the Subordinate Deed Lender is not pursuing such remedial action to completion with due diligence, provided in each case that at the time of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any such action or proceeding shall be brought to foreclose by the Subordinate Deed Lender the Borrower would be entitled to cure the applicable Event of Trust Default. (regardless of whether C) The Subordinate Lender shall enter into non-disturbance agreements with Space Tenants under Space Leases if Lender has entered into or, after the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder date of the Subordinate Deed Financing, Lender enters into such agreements with such tenants. (e) There shall exist at the time of Trustsuch Subordinate Financing no Event of Default nor any fact or circumstance, shall be applied first to which with the obligations secured by passage of time, giving of notice or action of third parties, could become an Event of Default that is not then being cured in accordance with the terms of this Deed of Trust, including principal Agreement and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (cf) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of The Subordinate Lender shall be an Institutional Lender at the time for payment of entry into the Obligations, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in partSubordinate Financing. (dg) If Trustor With respect to any Subordinate Financing permitted hereunder and approved by Lender pursuant hereto, Lender shall, upon request and at Borrower's sole cost, enter into an agreement with the Subordinate Lender pursuant to which Lender shall fail agree to make provide the Subordinate Lender with (i) concurrent notices of any payment required to be made by it notice of default which could become an Event of Default under any FF&E Financing Agreementof the Loan Documents, except where Trustor is contesting and (ii) an opportunity to cure any such payment in good faithdefault within the applicable notice and grace periods, then if any, given to Borrower under the Beneficiary shall be entitled to make such payment on Trustor's behalf and applicable provisions of any and all sums so expended by of the Beneficiary shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement from the date of advanceLoan Documents.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsMortgage Notes Indenture and the Notes, except for Permitted Liens and Permitted Dispositions, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Mortgage Notes Indenture Security Documents) , or any other Security Document granting a security interest for the benefit of the Mortgage Notes Indenture Trustee (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. The provisions of this Section 1.9 (b) shall not apply to the Interim Mall Space Fee Deed of Trust. (c) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of the time for payment of the ObligationsNotes, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d) Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing Agreement. If Trustor shall fail to make any payment required to be made by it under any FF&E Financing Agreement, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to make such payment on Trustor's behalf and any and all sums so expended by the Beneficiary shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in Section 4.01 of the Credit Agreement Mortgage Notes Indenture from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsIndenture, except for Permitted Liens Liens, Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 1.10 or as otherwise permitted under the Indenture, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the ProjectRiviera. (b) Any Permitted Lien consisting described in the definition of "Permitted Liens" set forth in Section 1.01 of the lien of a deed of trust Indenture which is junior to the lien of Beneficiary granted by Trustor pursuant to the Loan Collateral Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Secured Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of the time for payment of the ObligationsNotes, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d) This Deed of Trust, as applied to property subject to an FF&E Financing Agreement, shall be subordinated to the liens of any FF&E Financing Agreements (as hereinafter defined in this Section 1.9(d) (or if required by an FF&E Financing Agreement, it shall be released) and any future or further advances made thereunder and to any modifications, renewals or extensions thereof to which the lien of this Deed of Trust attaches, provided, however, that any such FF&E Financing Agreement shall encumber only that FF&E specifically subject to the FF&E Financing Agreement. Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing Agreement. If Trustor shall fail to make any payment required of principal of or pursuant to be made by it under any FF&E Financing AgreementAgreement on its part to be performed or observed, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreement on Trustor's behalf part to be performed or observed and any and all sums so expended by the Beneficiary or Trustee shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at rate on the rate applicable to overdue principal set forth in the Credit Agreement Notes from the date of advance. In furtherance of such subordination or release, as applicable, Beneficiary, upon receipt of an officer's certificate from Trustor certifying that the requirements of this Section 1.9(d) have been satisfied, shall execute, acknowledge and deliver to Trustor, at Trustor's expense, any and all such evidence and documents necessary to evidence the subordination or release of this Deed of Trust in accordance with the foregoing provisions of this Section 1.9(d). As used herein, "FF&E Financing Agreement" shall mean (A) any financing (i) as to which the lender holds a security interest in only the assets purchased, constructed or leased by such financing for the payment of principal, interest and other amounts in connection therewith, (ii) which is permitted by the Indenture to be incurred and (iii) the proceeds of which are used to acquire, construct or lease the FF&E subject to such security interest, and (B) any refinancing or renewal of any financing under clause (A).

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the Obligations, except for Permitted Liens and Permitted Dispositions, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust Estate, including, without limitation, the Rents. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Indenture Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty Notes or the other Loan Indenture Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate or any part thereof becomes vested in a person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Indenture Documents and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon the obligations hereby secured. No sale of the Trust Estate and no forbearance to any person with respect to this Deed of Trust and no extension to any person of the time for payment of the Obligations, and other sums hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser either in whole or in part. (d) If Trustor shall fail to make any payment required to be made by it under any FF&E Financing Agreement, except where Trustor is contesting such payment in good faith, then the Beneficiary shall be entitled to make such payment on Trustor's behalf and any and all sums so expended by the Beneficiary shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Mortgage Notes Indenture from the date of advance.

Further Encumbrance. (a) Trustor covenants that at all times prior to the discharge of the ObligationsIndenture, except for Permitted Liens Liens, Permitted Dispositions and Permitted Dispositionsdispositions permitted under Section 2.10, Trustor shall neither make nor suffer to exist, nor enter into any agreement for, any sale, assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the Trust EstateProperty, including, including without limitation, limitation the Rents, Issues and Profits. As used herein, "transfer" includes the actual transfer or other disposition, whether voluntary or involuntary, by law, or otherwise, except those transfers specifically permitted herein, provided, however, that "transfer" shall not include the granting of utility or other beneficial easements with respect to the Trust Estate which have been or are granted by Trustor and are reasonably necessary to the construction, maintenance or operation of the Project. (b) Any Permitted Lien consisting of the lien of a deed of trust which is junior to the lien of the Loan Documents (including the Security Documents) (a "Subordinate Deed of Trust") shall be permitted hereunder so long as there shall have been delivered to Beneficiary, not less than thirty (30) days prior to the date thereof, a copy thereof which shall contain express covenants in form and substance satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all respects subject and subordinate to this Deed of Trust; (ii) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained therein), no tenant of any portion of the Trust Estate shall be named as a party defendant nor shall any action be taken with respect to the Trust Estate which would terminate any occupancy or tenancy of the Trust Estate, or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if collected through a receiver or by the holder of the Subordinate Deed of Trust, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on or to become due and owing on the Notes, the Guaranty or the other Loan Documents, and then to the payment of maintenance expenses, operating charges, taxes, assessments, and disbursements incurred in connection with the ownership, operation, and maintenance of the Trust Estate; and (iv) if any action or proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt notice of the commencement thereof shall be given to Beneficiary. (c) Trustor agrees that in the event the ownership of the Trust Estate Property or any part thereof becomes vested in a person Person other than Trustor, Beneficiary may, without notice to Trustor, deal in any way with such successor or successors in interest with reference to this Deed of Trust, the Notes, the Guaranty, the other Loan Documents Notes and other Obligations hereby secured without in any way vitiating or discharging Trustor's or any guarantor's, surety's or endorser's liability hereunder or upon under the obligations Obligations hereby secured. No sale of the Trust Estate and Property, no forbearance to any person Person with respect to this Deed of Trust and no extension to any person Person of the time for payment of the Obligations, Notes and other sums secured hereby secured given by Beneficiary shall operate to release, discharge, modify, change or affect the original liability of Trustor, or such guarantor, surety or endorser endorser, either in whole or in part. (dc) This Deed of Trust, shall not extend to (i) FF&E to the extent the purchase or lease thereof has been financed or refinanced by, or with the proceeds of, an FF&E Financing permitted under the Indenture and (ii) any future or further advances made under such FF&E Financing and to any modifications, renewals, extensions or refinancings thereof to which the lien of this Deed of Trust would otherwise attach, in each case to the extent such FF&E Financing is permitted under the Indenture; provided that any such FF&E Financing shall encumber only that FF&E specifically subject to the FF&E Financing; and provided further that, upon the repayment, satisfaction or termination of such FF&E Financing, all FF&E financed thereby shall no longer be deemed an Excluded Asset and shall be subject to the lien of this Deed of Trust. The Beneficiary shall, if requested by the Trustor, execute and deliver, at Trustor's sole expense, any instruments reasonably necessary or appropriate to release the lien of this Deed of Trust with respect to or otherwise confirm that the lien of this Deed of Trust does not apply to any of such Excluded Assets; Trustor covenants and agrees to comply with all of the terms and conditions set forth in any FF&E Financing with respect to which Beneficiary has taken a Lien hereunder. If Trustor shall fail to make any payment required of principal of or interest on the sums secured by such security interest or any payment in order to be made by it under perform or observe any other term, covenant, condition or agreement of any FF&E Financing Agreementon Trustor's part to be performed or observed, except where Trustor is diligently contesting such payment in good faith, then the Beneficiary shall be entitled to may make such payment of the principal of or interest on the sums secured by such security interest or may make any payment in order to perform or observe any other term, covenant, condition or agreement of any FF&E Financing on Trustor's behalf part to be performed or observed, and any and all sums so expended by Beneficiary shall be part of the Beneficiary Obligations and shall be secured by this Deed of Trust and shall be repaid by Trustor upon demand, together with interest thereon at the interest at the rate applicable to overdue principal set forth in the Credit Agreement Default Rate from the date of advance.