BY BORROWER OR ANY OTHER LOAN PARTY IN CONNECTION WITH, ARISING OUT OF, OR IN
ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP
ESTABLISHED BY THE LOAN DOCUMENTS, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH, UNLESS AND TO THE EXTENT THAT IT IS DETERMINED THAT SUCH
LOSSES RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY
FROM WHICH RECOVERY IS SOUGHT AS DETERMINED BY A FINAL NON-APPEALABLE ORDER BY A
COURT OF COMPETENT JURISDICTION.
NEITHER AGENT NOR ANY LENDER SHALL HAVE ANY
LIABILITY WITH RESPECT TO, AND BORROWER AND EACH OTHER LOAN PARTY HEREBY WAIVE,
RELEASE AND AGREE NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
SUFFERED BY BORROWER AND ANY OTHER LOAN PARTY IN CONNECTION WITH, ARISING OUT
OF, OR IN ANY WAY RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
(B)
AGENT HAS RETAINED CONSTRUCTION CONSULTANT, AT THE SOLE COST OF
THE BORROWER, TO PERFORM CERTAIN SERVICES AND ADVISE AGENT GENERALLY WITH
RESPECT TO THE PROJECT. THE FEES OF CONSTRUCTION CONSULTANT SHALL BE PAID BY
BORROWER WITHIN THIRTY (30) DAYS AFTER BILLING THEREFOR AND EXPENSES INCURRED BY
AGENT ON ACCOUNT THEREOF SHALL BE REIMBURSED TO AGENT WITHIN TEN (10) DAYS AFTER
REQUEST THEREFOR, BUT NEITHER AGENT, LENDERS NOR CONSTRUCTION CONSULTANT SHALL
HAVE ANY LIABILITY TO BORROWER ON ACCOUNT OF: (I) THE SERVICES PERFORMED BY
CONSTRUCTION CONSULTANT; (II) ANY NEGLECT OR FAILURE ON THE PART OF CONSTRUCTION
CONSULTANT TO PROPERLY PERFORM ITS SERVICES; OR (III) ANY APPROVAL GIVEN OR
WITHHELD BY CONSTRUCTION CONSULTANT.
NEITHER AGENT, LENDERS NOR CONSTRUCTION
CONSULTANT ASSUMES ANY OBLIGATION OF BORROWER OR ANY OTHER PERSON CONCERNING THE
QUALITY OF CONSTRUCTION OF THE PROJECT OR THE ABSENCE THEREFROM OF DEFECTS.
BORROWER ACKNOWLEDGES THAT (I) CONSTRUCTION CONSULTANT HAS BEEN RETAINED BY
AGENT TO ACT AS A CONSULTANT AND ONLY AS A CONSULTANT TO AGENT IN CONNECTION
WITH THE CONSTRUCTION OF THE PROJECT AND HAS NO DUTY TO BORROWER, (II)
CONSTRUCTION CONSULTANT SHALL IN NO EVENT OR UNDER ANY CIRCUMSTANCE HAVE ANY
POWER OR AUTHORITY TO MAKE ANY DECISION OR TO GIVE ANY APPROVAL OR CONSENT OR TO
DO ANY OTHER ACT OR THING WHICH IS BINDING UPON AGENT OR ANY LENDER, AND ANY
SUCH PURPORTED DECISION, APPROVAL, CONSENT, ACT OR THING BY CONSTRUCTION
CONSULTANT ON BEHALF OF AGENT SHALL BE VOID AND OF NO FORCE OR EFFECT, (III)
AGENT RESERVES THE RIGHT TO MAKE ANY AND ALL DECISIONS REQUIRED TO BE MADE BY
AGENT UNDER THIS AGREEMENT AND TO GIVE OR REFRAIN FROM GIVING ANY AND ALL
CONSENTS OR APPROVALS REQUIRED TO BE GIVEN BY AGENT UNDER THIS AGREEMENT AND TO
ACCEPT OR NOT ACCEPT ANY MATTER OR THING REQUIRED TO BE ACCEPTED BY AGENT UNDER
THIS AGREEMENT, AND WITHOUT BEING BOUND OR LIMITED IN ANY MANNER OR UNDER ANY
CIRCUMSTANCES WHATSOEVER BY ANY OPINION EXPRESSED OR NOT EXPRESSED, OR ADVICE
GIVEN OR NOT GIVEN, OR INFORMATION, CERTIFICATE OR REPORT PROVIDED OR
90
not provided, by Construction Consultant to Agent or any other person or party