LOAN AGREEMENT AND ALL SUCH OTHER DOCUMENTS
REQUIRED THEREUNDER.
SIMULTANEOUS WITH THE ENTERING INTO OF THE PROPERTY LOAN
AGREEMENT, THE MARC PRINCIPALS SHALL ASSUME THE OBLIGATIONS CONTEMPLATED BY
SECTION 6.6 HEREOF.
5.2
INTERCREDITOR AGREEMENT.
IF REQUIRED BY THE HOLDER OF THE
EXISTING SENIOR LOAN ENCUMBERING A GROUP D PROPERTY, FIRST UNION SHALL CAUSE THE
FIRST UNION LENDER TO ENTER INTO A CUSTOMARY INTERCREDITOR AGREEMENT WITH THE
EXISTING SENIOR LOAN ENCUMBERING SUCH GROUP D PROPERTY PURSUANT TO WHICH THE
FIRST UNION LENDER SUBORDINATES ITS RIGHTS TO RECEIVE PAYMENT OR EXERCISE ANY
REMEDY WITH RESPECT TO ANY COLLATERAL GIVEN IN CONNECTION WITH THE PROPERTY LOAN
TO THE RIGHTS OF THE HOLDER OF SUCH EXISTING SENIOR LOAN.
ARTICLE 6
DUE DILIGENCE; CLOSING DATES; CONDITIONS TO JOINT VENTURE AND
PROPERTY LOANS; CLOSING DATE OBLIGATIONS
6.1
DUE DILIGENCE.
6.1.1
DELIVERY OF DUE DILIGENCE MATERIALS.
WITHIN TWO BUSINESS DAYS OR
AS SOON THEREAFTER AS IS PRACTICABLE, OF (I) THE DATE HEREOF WITH RESPECT TO THE
GROUP A PROPERTIES, THE GROUP B PROPERTIES AND THE GROUP D PROPERTIES, OR (II)
THE GROUP C PROPERTY ROFO NOTICE OR THE GROUP C PROPERTY ROFR NOTICE, WITH
RESPECT TO A GROUP C PROPERTY, OR AT SUCH OTHER TIMES AS SET FORTH IN THIS
AGREEMENT WITH RESPECT TO THE AFTER-ACQUIRED PROPERTIES, THE APPLICABLE MARC
ENTITY SHALL DELIVER TO FIRST UNION COPIES OF ALL DUE DILIGENCE MATERIALS, AND
ANY EXISTING THIRD PARTY PROPERTY REPORTS IT HAS IN ITS
18
POSSESSION RELATING TO THE APPLICABLE PROPERTY(IES).
FIRST UNION ACKNOWLEDGES
THAT BY MAKING THE DUE DILIGENCE MATERIALS AVAILABLE TO FIRST UNION, THE MARC
PRINCIPALS HAVE NOT MADE, AND DO NOT MAKE, ANY REPRESENTATION OR WARRANTY,
EXPRESSED OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE
MATERIALS EXCEPT AS SET FORTH IN THIS AGREEMENT.
IN THE EVENT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE NOT CONSUMMATED, FIRST UNION WILL, UPON REQUEST BY THE
MARC PRINCIPALS, PROMPTLY RETURN TO THE MARC PRINCIPALS ANY OF THE DUE DILIGENCE
MATERIALS WHICH MAY HAVE BEEN DELIVERED TO FIRST UNION.
6.1.2
THIRD PARTY PROPERTY REPORTS; DUE DILIGENCE.
DURING THE APPLICABLE
DUE DILIGENCE PERIOD, FIRST UNION AND ITS ACCOUNTANTS, LENDERS, ATTORNEYS OR
OTHER REPRESENTATIVE(S) SHALL HAVE THE RIGHT, DURING REGULAR BUSINESS HOURS AND
UPON REASONABLE NOTICE, TO:
(A)
INTERVIEW THE APPLICABLE MARC ENTITY'S MANAGEMENT AGENT REGARDING
THE MANAGEMENT OR OPERATION OF THE APPLICABLE PROPERTIES AND OTHER PARTIES WHO
HAVE KNOWLEDGE OF THE APPLICABLE PROPERTIES AND TO INSPECT RECORDS AND FILES OF
THE APPLICABLE PROPERTIES THAT ARE IN THE MANAGER'S POSSESSION OR CONTROL;
(B)
INSPECT THE BOOKS, RECORDS AND FILES RELATING TO THE CONDITION OR
OPERATION OF THE APPLICABLE PROPERTIES THAT ARE IN THE POSSESSION OR CONTROL OF
THE APPLICABLE MARC ENTITY;
(C)
AT FIRST UNION'S SOLE RISK AND EXPENSE, INSPECT THE APPLICABLE
PROPERTIES AND IMPROVEMENTS LOCATED THEREON AND OBTAIN SUCH THIRD PARTY PROPERTY
REPORTS AS IT DEEMS ADVISABLE; PROVIDED, HOWEVER, FIRST UNION SHALL MAKE NO
PHASE II ENVIRONMENTAL INVESTIGATIONS WITHOUT THE CONSENT OF THE APPLICABLE MARC
ENTITY, WHICH MAY BE WITHHELD IN ITS SOLE DISCRETION.
FIRST UNION SHALL
EXERCISE