RECORDS AND ALL OTHER GENERAL INTANGIBLES
RELATING TO OR USED IN CONNECTION WITH THE OPERATION OF THE PROPERTY, EXCLUDING,
HOWEVER, THE PROPRIETARY MARKS.
THE "PROPRIETARY MARKS" MEANS ALL TRADEMARKS,
TRADE NAMES, SYMBOLS, THE "LION AND CROWN DEVICE," LOGOS, SLOGANS, DESIGNS,
INSIGNIA, EMBLEMS, DEVICES, SERVICE MARKS, AND DISTINCTIVE DESIGNS OF BUILDINGS
AND SIGNS, ARCHITECTURAL PLANS, DRAWINGS, SPECIFICATIONS, COMPUTER FILES, OR
COMBINATIONS THEREOF, WHICH ARE USED TO IDENTIFY (I) THE RITZ-CARLTON
DEVELOPMENT COMPANY, LLC ("RITZ-CARLTON"), A DELAWARE LIMITED LIABILITY COMPANY,
(II) KAPALUA BAY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("KAPALUA BAY") OR
ANY OF THEIR AFFILIATES.
ALL WORKS IN WHICH COPYRIGHT RESTS IN THE
RITZ-CARLTON, KAPALUA BAY OR ANY OF THEIR AFFILIATES, OR ANY OTHER AND ALL
PATENTS REGISTERED OR APPLIED FOR IN THE NAME OF RITZ-CARLTON, KAPALUA BAY OR
ANY OF THEIR AFFILIATES SHALL ALSO BE "PROPRIETARY MARKS."
THE TERM
"PROPRIETARY MARKS" SHALL INCLUDE ALL PRESENT AND FUTURE PROPRIETARY MARKS,
WHETHER THEY ARE NOW OR HEREAFTER OWNED BY RITZ-CARLTON, KAPALUA BAY OR ANY OF
THEIR AFFILIATES, AND WHETHER OR NOT THEY ARE REGISTERED UNDER THE LAWS OF THE
UNITED STATES OR OF ANY OTHER COUNTRY.
THE NAMES "THE RITZ-CARLTON CLUB,"
"KAPALUA BAY" AND "KAPALUA" ALONE AND AS USED IN CONJUNCTION WITH OTHER WORDS OR
NAMES, ARE EXAMPLES OF PROPRIETARY MARKS.
PROPRIETARY MARKS SHALL REMAIN THE
EXCLUSIVE PROPERTY OF RITZ-CARLTON, KAPALUA BAY AND THEIR AFFILIATES AS
APPLICABLE.
LENDER HAS NO RIGHT TO USE THE PROPRIETARY MARKS;
(Q)
ACCOUNTS.
ALL RESERVES, ESCROWS AND DEPOSIT ACCOUNTS
MAINTAINED BY BORROWER WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, ALL ACCOUNTS ESTABLISHED OR MAINTAINED PURSUANT TO THE LOAN
DOCUMENTS, TOGETHER WITH ALL DEPOSITS OR WIRE TRANSFERS MADE TO SUCH ACCOUNTS
AND ALL CASH, CHECKS, DRAFTS, CERTIFICATES, SECURITIES, INVESTMENT PROPERTY,
FINANCIAL ASSETS, INSTRUMENTS AND OTHER PROPERTY HELD THEREIN FROM TIME TO TIME
AND ALL PROCEEDS, PRODUCTS, DISTRIBUTIONS OR DIVIDENDS OR SUBSTITUTIONS THEREON
AND THEREOF;
(R)
PROCEEDS.
ALL PROCEEDS OF ANY OF THE FOREGOING,
INCLUDING, WITHOUT LIMITATION, PROCEEDS OF INSURANCE AND CONDEMNATION AWARDS,
WHETHER CASH, LIQUIDATION OR OTHER CLAIMS OR OTHERWISE; AND
(S)
OTHER RIGHTS.
ANY AND ALL OTHER RIGHTS OF BORROWER IN AND
TO THE ITEMS SET FORTH IN SUBSECTIONS (A) THROUGH (Q) ABOVE.
6
AND without limiting any of the other provisions of this Security Instrument, to
the extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the portion of the Property which is or
may be subject to the provisions of the Uniform Commercial Code which are
applicable to secured transactions; it being understood and agreed that the
Improvements and Fixtures are part and parcel of the Land, the Condominium
Project and the Units (the Land, the Condominium Project, the Units, the
Improvements and the Fixtures collectively referred to as the "Real Property")
appropriated to the use thereof and, whether affixed or annexed to the Real
Property or not, shall for the purposes of this Security Instrument be deemed
conclusively to be real estate and conveyed hereby.
SECTION 1.2
ASSIGNMENT OF RENTS.
BORROWER HEREBY ABSOLUTELY AND