(AND CAUSE ITS AGENTS AND EMPLOYEES TO EXERCISE) DUE CARE AND ORDINARY
PRUDENCE IN OBTAINING SUCH THIRD PARTY PROPERTY REPORTS AND SHALL NOT EXERCISE
SUCH RIGHT IN A MANNER THAT UNREASONABLY INTERFERES WITH THE OPERATION OF THE
APPLICABLE PROPERTY.
THE APPLICABLE MARC ENTITY SHALL HAVE THE RIGHT TO
DISAPPROVE OF FIRST UNION'S AGENTS AND/OR METHODS OF THE PROPOSED THIRD PARTY
PROPERTY REPORTS ON THE GROUNDS THAT SUCH PROPOSED THIRD PARTY PROPERTY REPORTS
ARE OVERLY INVASIVE AND/OR INTRUSIVE WHICH DISAPPROVAL MUST BE ON A REASONABLE
BASIS.
FIRST UNION, AT ITS OWN COST AND EXPENSE, PROMPTLY SHALL REPAIR ANY
DAMAGE TO A PROPERTY RESULTING FROM SUCH THIRD PARTY PROPERTY REPORTS TO THE
APPLICABLE MARC ENTITY'S REASONABLE SATISFACTION.
FIRST UNION SHALL INDEMNIFY,
DEFEND, SAVE AND HOLD HARMLESS THE APPLICABLE MARC ENTITY FROM AND AGAINST ANY
AND ALL CLAIMS, LIENS (INCLUDING, WITHOUT LIMITATION, MECHANIC'S AND
MATERIALMAN'S LIENS), ACTIONS, SUITS, PROCEEDINGS, COSTS, EXPENSES, DAMAGES OR
OTHER LIABILITIES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
COURT COSTS, ALL AS INCURRED, ARISING OUT OF THE RIGHTS GRANTED TO FIRST UNION
PURSUANT TO THE TERMS OF THIS SECTION 6.1.2.
THE INDEMNIFICATIONS CONTAINED
HEREIN SHALL SURVIVE THE TERMINATION OR CONSUMMATION OF THIS TRANSACTION.
19
(D)
FIRST UNION, ITS CONTRACTORS AND REPRESENTATIVES SHALL KEEP
CONFIDENTIAL ANY AND ALL INFORMATION, DOCUMENTS AND REPORTS OBTAINED OR PREPARED
BY THEM RELATING TO THE PROPERTIES.
AT THE APPLICABLE MARC ENTITY'S REQUEST,
FIRST UNION SHALL FURNISH TO SUCH MARC ENTITY TRUE AND CORRECT COPIES OF ALL
THIRD PARTY PROPERTY REPORTS UNDERTAKEN AND COMPLETED IN CONNECTION WITH SUCH
INSPECTIONS.
6.1.3
INTENTIONALLY DELETED.
6.1.4
CONDITION OF PROPERTIES.
(A)
WITH RESPECT TO THE GROUP A PROPERTIES AND THE GROUP D PROPERTIES,
IN THE EVENT THAT DURING THE DUE DILIGENCE PERIOD FOR THE GROUP A PROPERTIES,
AND THE GROUP D PROPERTIES, FIRST UNION DISAPPROVES OF THE GROUP A PROPERTIES,
OR THE GROUP D PROPERTIES, FIRST UNION, IN ITS SOLE AND ABSOLUTE DISCRETION, MAY
ELECT NOT TO EFFECT THE TRANSACTIONS WITH RESPECT TO THE GROUP A PROPERTIES OR
THE GROUP D PROPERTIES CONTEMPLATED BY SECTIONS 3.1 AND 5.1 HEREOF; PROVIDED,
HOWEVER, IF FIRST UNION ELECTS NOT TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED
BY SECTION 3.1 HEREOF WITH RESPECT TO LESS THAN ALL OF THE GROUP A PROPERTIES,
THEN THE MARC PRINCIPALS SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND
THE DEPOSIT SHALL BE RETURNED TO FIRST UNION.
(B)
WITH RESPECT TO A GROUP B PROPERTY, FIRST UNION SHALL HAVE THE
RIGHTS SET FORTH IN SECTION 3.2.1 HEREOF.
(C)
WITH RESPECT TO A GROUP C PROPERTY, FIRST UNION SHALL HAVE THE
RIGHTS SET FORTH IN SECTION 3.3.1 HEREOF.
(D)
WITH RESPECT TO AN AFTER-ACQUIRED PROPERTY, FIRST UNION OR THE
MARC PRINCIPALS, AS APPLICABLE, SHALL HAVE THE RIGHTS SET FORTH IN SECTION 3.5.2
HEREOF.
6.2
DEPOSIT.
WITHIN FIVE BUSINESS DAYS AFTER THE FULL EXECUTION AND
DELIVERY OF THIS AGREEMENT, FIRST UNION SHALL DELIVER TO THE TITLE COMPANY THE
SUM OF THREE MILLION DOLLARS ($3,000,000) (THE "DEPOSIT").
THE DEPOSIT SHALL BE
DEPOSITED INTO AN INTEREST BEARING ACCOUNT.
FIRST UNION MAY ELECT