WITHIN THE
MEANING OF THE UCC.
(7)
Transfers and Other Liens.
The Borrower
agrees that it will not (i) sell or otherwise dispose of any of the Account
Collateral except as may be expressly permitted under the Loan Documents, or
(ii) create or permit to exist any Lien upon or with respect to all or any of
the Account Collateral, except for the Lien granted to the Administrative Agent
under this Agreement.
(8)
REASONABLE CARE.
BEYOND THE EXERCISE OF
REASONABLE CARE IN THE CUSTODY THEREOF, THE ADMINISTRATIVE AGENT SHALL HAVE NO
DUTY AS TO ANY ACCOUNT COLLATERAL IN ITS POSSESSION OR CONTROL AS AGENT THEREFOR
OR BAILEE THEREOF OR ANY INCOME THEREON OR THE PRESERVATION OF RIGHTS AGAINST
ANY PERSON OR OTHERWISE WITH RESPECT THERETO.
THE ADMINISTRATIVE AGENT SHALL
NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ANY OF THE ACCOUNT
COLLATERAL, OR FOR ANY DIMINUTION IN VALUE THEREOF, BY REASON OF THE ACT OR
OMISSION OF THE ADMINISTRATIVE AGENT, ITS AFFILIATES, AGENTS, EMPLOYEES OR
BAILEES, EXCEPT TO THE EXTENT THAT SUCH LOSS OR DAMAGE RESULTS FROM THE
ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN NO EVENT
SHALL THE ADMINISTRATIVE AGENT BE LIABLE EITHER DIRECTLY OR INDIRECTLY FOR
LOSSES OR DELAYS RESULTING FROM ANY EVENT WHICH MAY BE THE BASIS OF AN EXCUSABLE
DELAY, COMPUTER MALFUNCTIONS, INTERRUPTION OF COMMUNICATION FACILITIES, LABOR
DIFFICULTIES OR OTHER CAUSES BEYOND THE ADMINISTRATIVE AGENT'S REASONABLE
CONTROL OR FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES EXCEPT TO THE EXTENT
OF THE ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(9)
THE ADMINISTRATIVE AGENT'S DUTIES AND
LIABILITIES.
(I)
FOLLOWING EACH FISCAL QUARTER, THE
ADMINISTRATIVE AGENT SHALL PERFORM A MORTGAGED PROPERTY DSCR TEST TO DETERMINE
WHETHER A LOW DSCR PERIOD HAS
67
OCCURRED OR IS CONTINUING (IT BEING HEREBY AGREED THAT ALL DETERMINATIONS AS TO
WHETHER A LOW DSCR PERIOD HAS OCCURRED OR IS CONTINUING SHALL BE MADE BY THE
ADMINISTRATIVE AGENT BASED ON THE FINANCIAL INFORMATION DELIVERED BY THE
BORROWER PURSUANT TO SECTION 7.8(2) HEREOF).
(II)
THE ADMINISTRATIVE AGENT SHALL BE
RESPONSIBLE FOR THE PERFORMANCE ONLY OF SUCH DUTIES WITH RESPECT TO THE ACCOUNT
COLLATERAL AS ARE SPECIFICALLY SET FORTH IN THIS SECTION 8.1 OR ELSEWHERE IN THE
LOAN DOCUMENTS, AND NO OTHER DUTY SHALL BE IMPLIED FROM ANY PROVISION HEREOF.
THE ADMINISTRATIVE AGENT SHALL NOT BE UNDER ANY OBLIGATION OR DUTY TO PERFORM
ANY ACT WITH RESPECT TO THE ACCOUNT COLLATERAL WHICH WOULD CAUSE IT TO INCUR ANY
EXPENSE OR LIABILITY OR TO INSTITUTE OR DEFEND ANY SUIT IN RESPECT HEREOF, OR TO
ADVANCE ANY OF ITS OWN MONIES.
THE BORROWER SHALL INDEMNIFY AND HOLD THE
ADMINISTRATIVE AGENT, ITS EMPLOYEES AND OFFICERS HARMLESS FROM AND AGAINST ANY
LOSS, COST OR DAMAGE (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES
AND DISBURSEMENTS) INCURRED BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY WITH RESPECT TO THE ACCOUNT COLLATERAL EXCEPT
AS SUCH MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
ADMINISTRATIVE AGENT, ITS EMPLOYEES, OFFICERS OR AGENTS.
(III)
THE ADMINISTRATIVE AGENT