AGENT.
NEITHER AGENT'S FAILURE TO
OBJECT AS AFORESAID NOR ANY OBJECTION RELATING TO SUCH OFFSET SHALL CONSTITUTE
AN APPROVAL OF ANY SUCH OFFSET BY AGENT.
ARTICLE 11
GENERAL CONDITIONS
SECTION 11.01
RIGHTS OF THIRD PARTIES.
(A)
ALL CONDITIONS OF THE
OBLIGATIONS OF AGENT AND LENDERS HEREUNDER, INCLUDING THE CONDITIONS PRECEDENT
TO THE OBLIGATION TO MAKE ADVANCES, ARE IMPOSED SOLELY AND EXCLUSIVELY FOR THE
BENEFIT OF AGENT AND LENDERS AND NO OTHER PERSON (INCLUDING, WITHOUT LIMITATION,
THE CONSTRUCTION CONSULTANT, GENERAL CONTRACTOR, ANY OTHER MAJOR CONTRACTOR, ANY
MAJOR SUBCONTRACTOR, OR ANY OTHER CONTRACTORS, SUBCONTRACTORS AND MATERIALMEN
ENGAGED IN THE CONSTRUCTION OF THE PROJECT) SHALL HAVE STANDING TO REQUIRE
SATISFACTION OF SUCH CONDITIONS IN ACCORDANCE WITH THEIR TERMS OR BE ENTITLED TO
ASSUME THAT LENDERS WILL MAKE ADVANCES 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 AND ALL OF WHICH MAY BE FREELY
WAIVED IN WHOLE OR IN PART BY AGENT OR ANY LENDER ANY TIME IF IN ITS SOLE
DISCRETION IT DEEMS IT DESIRABLE TO DO SO.
IN PARTICULAR, AGENT AND LENDERS
MAKE NO REPRESENTATIONS AND ASSUME NO OBLIGATIONS AS TO THIRD PARTIES CONCERNING
THE QUALITY OF THE CONSTRUCTION BY BORROWER OF THE PROJECT OR THE ABSENCE
THEREFROM OF DEFECTS.
(B)
[INTENTIONALLY OMITTED]
SECTION 11.02
RELATIONSHIP.
THE RELATIONSHIP BETWEEN AGENT AND
LENDERS ON THE ONE HAND, AND BORROWER ENTITIES, ON THE OTHER HAND, IS SOLELY
THAT OF A LENDER AND BORROWER, AND NOTHING CONTAINED HEREIN OR IN ANY OF THE
OTHER PROJECT LOAN DOCUMENTS OR THE NYTC COMPLETION GUARANTY SHALL IN ANY MANNER
BE CONSTRUED AS MAKING THE PARTIES HERETO PARTNERS, JOINT VENTURERS OR ANY OTHER
RELATIONSHIP OTHER THAN LENDER AND BORROWER.
IN ADDITION, NEITHER AGENT NOR ANY
LENDER IS THE AGENT OR REPRESENTATIVE OF ANY BORROWER ENTITY AND NEITHER THIS
AGREEMENT, ANY OTHER PROJECT LOAN DOCUMENT OR THE NYTC COMPLETION GUARANTY SHALL
MAKE AGENT OR ANY LENDER LIABLE TO MATERIALMEN, CONTRACTORS, CRAFTSMEN, LABORERS
OR OTHERS FOR GOODS DELIVERED TO OR SERVICES PERFORMED BY THEM UPON THE
MORTGAGED PROPERTY, OR FOR DEBTS OR CLAIMS ACCRUING TO SUCH PARTIES AGAINST ANY
BORROWER ENTITY AND THERE IS NO CONTRACTUAL RELATIONSHIP, EITHER EXPRESS OR
IMPLIED, BETWEEN AGENT OR ANY LENDER AND ANY MATERIALMEN, SUBCONTRACTORS,
CRAFTSMEN, LABORERS, OR ANY OTHER PERSON SUPPLYING ANY WORK, LABOR OR MATERIALS
TO THE MORTGAGED PROPERTY.
132
SECTION 11.03
EVIDENCE OF SATISFACTION OF CONDITIONS; APPROVAL
STANDARD.
IF ANY CONDITION OF THIS AGREEMENT REQUIRES THE SUBMISSION OF
EVIDENCE OF THE EXISTENCE OR NON-EXISTENCE OF A SPECIFIED FACT OR FACTS OR
IMPLIES AS A CONDITION THE EXISTENCE OR NON-EXISTENCE, AS THE CASE MAY BE, OF
SUCH FACT OR FACTS, AGENT SHALL, AT ALL TIMES, BE FREE INDEPENDENTLY TO
ESTABLISH TO ITS SATISFACTION AND IN ITS ABSOLUTE DISCRETION SUCH EXISTENCE OR
NON-EXISTENCE, EXCEPT WHERE AGENT EXPRESSLY AGREES HEREUNDER TO BE REASONABLE.
IN ANY CIRCUMSTANCE WHERE ANY PROJECT LOAN DOCUMENT OR THE NYTC COMPLETION
GUARANTY SPECIFIES THAT THE APPROVAL OR CONSENT OF AGENT,