trademarks, servicemarks and
logos incorporating the words Kapalua, Maui Pineapple or Maui Gold, or using in
any form either the butterfly or pineapple logos, and variations thereof, or
(ii) any deposit accounts unless they are comprised of funds that are
exclusively related to the operation of the Subject Property.
For purposes of
this collateral description, the parties acknowledge that the terms "accounts"
and "accounts receivable" do not include "deposit accounts."
9
As to all of the above described personal property which is or which hereafter
becomes a "fixture" under applicable law, this Mortgage constitutes a fixture
filing under the Uniform Commercial Code, as amended or recodified from time to
time, and is acknowledged and agreed to be a "mortgage" under the Uniform
Commercial Code.
4.2
REPRESENTATIONS AND WARRANTIES.
MORTGAGOR REPRESENTS
AND WARRANTS THAT: (A) MORTGAGOR HAS, OR WILL HAVE, GOOD TITLE TO THE
COLLATERAL; (B) MORTGAGOR HAS NOT PREVIOUSLY ASSIGNED OR ENCUMBERED THE
COLLATERAL, AND NO FINANCING STATEMENT COVERING ANY OF THE COLLATERAL HAS BEEN
DELIVERED TO ANY OTHER PERSON OR ENTITY; (C) MORTGAGOR'S PRINCIPAL PLACE OF
BUSINESS IS LOCATED AT THE ADDRESS SHOWN IN THAT CERTAIN SECTION ENTITLED
NOTICES; AND (D) MORTGAGOR'S LEGAL NAME IS EXACTLY AS SET FORTH ON THE FIRST
PAGE OF THIS MORTGAGE AND ALL OF MORTGAGOR'S ORGANIZATIONAL DOCUMENTS OR
AGREEMENTS DELIVERED TO MORTGAGEE ARE COMPLETE AND ACCURATE IN EVERY RESPECT.
4.3
COVENANTS.
MORTGAGOR AGREES:
(A) TO EXECUTE AND
DELIVER SUCH DOCUMENTS AS MORTGAGEE DEEMS REASONABLY NECESSARY TO CREATE,
PERFECT AND CONTINUE THE SECURITY INTERESTS CONTEMPLATED HEREBY; (B) NOT TO
CHANGE ITS NAME, AND AS APPLICABLE, ITS CHIEF EXECUTIVE OFFICE, ITS PRINCIPAL
RESIDENCE OR THE JURISDICTION IN WHICH IT IS ORGANIZED AND/OR REGISTERED WITHOUT
GIVING MORTGAGEE PRIOR WRITTEN NOTICE THEREOF; (C) TO COOPERATE WITH MORTGAGEE
IN PERFECTING ALL SECURITY INTERESTS GRANTED HEREIN AND IN OBTAINING SUCH
AGREEMENTS FROM THIRD PARTIES AS MORTGAGEE DEEMS REASONABLY NECESSARY, PROPER OR
CONVENIENT IN CONNECTION WITH THE PRESERVATION, PERFECTION OR ENFORCEMENT OF ANY
OF ITS RIGHTS HEREUNDER; AND (D) THAT MORTGAGEE IS AUTHORIZED TO FILE FINANCING
STATEMENTS IN THE NAME OF MORTGAGOR TO PERFECT MORTGAGEE'S SECURITY INTEREST IN
THE COLLATERAL.
4.4
RIGHTS OF MORTGAGEE.
IN ADDITION TO MORTGAGEE'S
RIGHTS AS A "SECURED PARTY" UNDER THE UNIFORM COMMERCIAL CODE, MORTGAGEE MAY,
BUT SHALL NOT BE OBLIGATED TO, AT ANY TIME WITHOUT NOTICE AND AT THE EXPENSE OF
MORTGAGOR: (A) GIVE NOTICE TO ANY PERSON OF MORTGAGEE'S RIGHTS HEREUNDER AND
ENFORCE SUCH RIGHTS AT LAW OR IN EQUITY; (B) IF MORTGAGEE HAS FAILED TO DO SO
AFTER FIFTEEN (15) DAYS HAVE ELAPSED AFTER WRITTEN NOTICE THEREOF HAS BEEN GIVEN
BY MORTGAGEE TO MORTGAGOR, INSURE, PROTECT, DEFEND AND PRESERVE THE COLLATERAL
OR ANY RIGHTS OR INTERESTS OF MORTGAGEE THEREIN; (C) INSPECT THE COLLATERAL; AND
(D) ENDORSE, COLLECT AND RECEIVE ANY RIGHT TO PAYMENT OF MONEY OWING TO
MORTGAGOR UNDER OR FROM THE COLLATERAL. NOTWITHSTANDING THE ABOVE, IN NO EVENT
SHALL MORTGAGEE BE DEEMED TO HAVE ACCEPTED ANY PROPERTY OTHER THAN CASH IN
SATISFACTION OF ANY OBLIGATION OF MORTGAGOR TO MORTGAGEE UNLESS MORTGAGEE SHALL