OTHER LOAN DOCUMENTS
ARE SOLELY FOR THE BENEFIT OF LENDER AND BORROWERS AND NOTHING CONTAINED IN THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE DEEMED TO CONFER UPON ANYONE
OTHER THAN LENDER AND BORROWERS ANY RIGHT TO INSIST UPON OR TO ENFORCE THE
PERFORMANCE OR OBSERVANCE OF ANY OF THE OBLIGATIONS CONTAINED HEREIN OR
THEREIN.
ALL CONDITIONS TO THE OBLIGATIONS OF LENDER TO MAKE THE LOAN HEREUNDER
AND/OR TO DISBURSEMENTS FROM THE RESERVE FUNDS ARE IMPOSED SOLELY AND
EXCLUSIVELY FOR THE BENEFIT OF LENDER AND NO OTHER PERSON SHALL HAVE STANDING TO
REQUIRE SATISFACTION OF SUCH CONDITIONS IN ACCORDANCE WITH THEIR TERMS OR BE
ENTITLED TO ASSUME THAT LENDER WILL REFUSE TO MAKE THE LOAN AND/OR WILL REFUSE
TO MAKE ANY DISBURSEMENT FROM ANY RESERVE FUND IN THE ABSENCE OF STRICT
COMPLIANCE WITH ANY OR ALL THEREOF AND NO OTHER PERSON SHALL UNDER ANY
CIRCUMSTANCES BE DEEMED TO BE A BENEFICIARY OF SUCH CONDITIONS, ANY OR ALL OF
WHICH MAY BE FREELY WAIVED IN WHOLE OR IN PART BY LENDER IF, IN LENDER'S SOLE
DISCRETION, LENDER DEEMS IT ADVISABLE OR DESIRABLE TO DO SO.
(C)
WITHOUT LIMITING THE GENERALITY OF SECTION
10.16(A) HEREOF, BORROWERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (I) DLJ
MERCHANT BANKING, INC. IS AN AFFILIATE OF LENDER AND VARIOUS OF ITS INDIRECT
SUBSIDIARIES AND/OR AFFILIATES OWN INDIRECT OWNERSHIP INTERESTS IN EACH BORROWER
(THE "DLJ ENTITIES"), AND (II) NEITHER THE LENDER NAMED HEREIN NOR ANY SUCCESSOR
OR ASSIGN THEREOF SHALL HAVE ANY LIABILITY TO ANY BORROWER AS A RESULT OF SUCH
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RELATIONSHIP BETWEEN LENDER AND THE DLJ ENTITIES, INCLUDING, WITHOUT LIMITATION,
UNDER ANY THEORY OF LENDER LIABILITY.
(D)
THE BENEFITS OF THIS AGREEMENT SHALL NOT
INURE TO ANY THIRD PARTY, NOR SHALL THIS AGREEMENT BE CONSTRUED TO MAKE OR
RENDER LENDER LIABLE TO ANY TRADE CONTRACTORS INCLUDING ANY MAJOR CONTRACTORS OR
OTHERS FOR GOODS AND MATERIALS SUPPLIED OR WORK AND LABOR FURNISHED IN
CONNECTION WITH THE CONSTRUCTION OR REHABILITATION OF THE PROJECT OR FOR DEBTS
OR CLAIMS ACCRUING TO ANY SUCH PERSONS AGAINST BORROWERS.
LENDER SHALL NOT BE
LIABLE FOR THE MANNER IN WHICH ANY CONSTRUCTION LOAN ADVANCES UNDER THIS
AGREEMENT MAY BE APPLIED BY BORROWERS, ANY MAJOR CONTRACTOR OR ANY OF BORROWER'S
OTHER TRADE CONTRACTORS.
NOTWITHSTANDING ANYTHING CONTAINED IN THE LOAN
DOCUMENTS, OR ANY CONDUCT OR COURSE OF CONDUCT BY THE PARTIES HERETO, BEFORE OR
AFTER SIGNING THE LOAN DOCUMENTS, THIS AGREEMENT SHALL NOT BE CONSTRUED AS
CREATING ANY RIGHTS, CLAIMS OR CAUSES OF ACTION AGAINST LENDER, OR ANY OF ITS
OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, IN FAVOR OF ANY MAJOR CONTRACTOR OR
OTHER TRADE CONTRACTOR, OR ANY OF THEIR RESPECTIVE CREDITORS, OR ANY OTHER
PERSON.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONSTRUCTION LOAN
ADVANCES MADE DIRECTLY TO ANY MAJOR CONTRACTOR OR OTHER TRADE CONTRACTOR
PURSUANT TO ANY REQUESTS FOR CONSTRUCTION LOAN ADVANCES, WHETHER OR NOT SUCH
REQUEST IS REQUIRED TO BE APPROVED BY BORROWERS, SHALL NOT BE DEEMED A
RECOGNITION BY LENDER OF A THIRD-PARTY BENEFICIARY STATUS OF ANY SUCH PERSON.
(E)
OBSERVATION,