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Section 15. Amendments.
No amendment, modification, supplement or waiver in respect of this Agreement will be effective
unless in writing and signed by the parties hereto.
Section 16. Remarketing Agent Not Acting as Advisor or Fiduciary.
The Remarketing Agent and the Borrower each acknowledge and agree that (i) the remarketing of
the Bonds pursuant to this Agreement is an arm’s-length commercial transaction between the Borrower and
the Remarketing Agent, (ii) in connection therewith and with the discussions, undertakings and procedures
leading up to the consummation of such transaction, the Remarketing Agent is and has been acting solely
as a principal and is not acting as the agent, advisor, municipal advisor or fiduciary of the Borrower, (iii)
the Remarketing Agent has not assumed an advisory or fiduciary responsibility in favor of the Borrower
with respect to the remarketing contemplated hereby or the discussions, undertakings and procedures
leading thereto (irrespective of whether the Remarketing Agent has advised or provided other services or
is currently advising or providing other services to the Borrower on other unrelated matters) and the
Remarketing Agent has no obligation to the Borrower with respect to the remarketings contemplated hereby
except the obligations expressly set forth in this Agreement and (iv) the Borrower has consulted its own
legal, financial and other advisors to the extent it deems appropriate.
Notwithstanding the foregoing or any other provisions of this Agreement, or the Indenture, the use
of the term “agent” with reference to the Remarketing Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom and is intended to create or reflect only an independent
contractor relationship between contracting parties and the Remarketing Agent acts as an independent
broker-dealer and exercises its own independent judgment in connection with its rights and duties as
Remarketing Agent.
Section 17. HUD Provisions.
The Borrower and the Remarketing Agent acknowledge that this Agreement and all of the
Borrower’s obligations hereunder are subject and subordinate to the FHA Loan Documents and the Program
Obligations (as defined in the FHA Mortgage). Notwithstanding any provision in this Agreement to the
contrary, no obligations of the Borrower hereunder shall be payable except from (A) Surplus Cash (as
defined in the HUD Regulatory Agreement), (B) funds that are not derived from (i) revenues of the Project
(as defined in the FHA Mortgage), (ii) the proceeds of the FHA Note, or (iii) any reserve or deposit made
with the FHA Lender or any other party as required by HUD in connection with the FHA Loan Documents,
or (C) FHA Lender Funds which have been deposited into the Collateral Fund by or at the direction of the
FHA Lender (collectively, “Non-Project Sources”). No claims or actions shall be made (or payable) under
this Agreement against the Project, the FHA Lender, the proceeds of the FHA Note, or the assets of the
Borrower, except from Non-Project Sources. In addition, the rights and obligations of the parties under this
Agreement and all other documents evidencing, implementing, or securing this Agreement (collectively,
the “Subordinate Bond Documents”) are and shall be subordinated in all respects to the rights and
obligations of the parties to and under the FHA Loan Documents. In the event of any conflict between the
provisions of (i) this Agreement or the Subordinate Bond Documents and (ii) the provisions of the FHA
Loan Documents or the Program Obligations, the provisions of the FHA Loan Documents or the Program
Obligations shall control. The provisions of this Section shall control over any inconsistent provisions in
this Agreement or the Subordinate Bond Documents.
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