MARC PRINCIPALS AGREE THAT IF FIRST UNION HAS THE RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO SECTION 13.1(F) OR THE APPLICABLE MARC MEMBERS OR MARC
PRINCIPALS SHALL
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INTENTIONALLY OR WILLFULLY FAIL TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY
SECTION 3.1 HEREOF , FIRST UNION'S SOLE REMEDY SHALL BE TO EITHER (I) TERMINATE
THIS AGREEMENT IN WHICH EVENT THE MARC PRINCIPALS SHALL IMMEDIATELY PAY TO FIRST
UNION ALL OF FIRST UNION'S THIRD PARTY OUT OF POCKET EXPENSES INCURRED IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY UP TO $500,000 IN
IMMEDIATELY AVAILABLE FUNDS (AND IN NO EVENT SHALL FIRST UNION BE ENTITLED TO
RECOVER MONEY DAMAGES AGAINST THE MARC PRINCIPALS) OR (II) SEEK, WITHIN 90 DAYS
THEREOF, EITHER A DECREE OR ORDER OF SPECIFIC PERFORMANCE OR MANDAMUS TO ENFORCE
THE OBSERVANCE AND PERFORMANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR
AN INJUNCTION RESTRAINING SUCH BREACH OR THREATENED BREACH IN WHICH EVENT THE
MARC PRINCIPALS AGREE TO SUCH REMEDY AND FURTHER AGREE TO INDEMNIFY FIRST UNION
FOR ALL COSTS ASSOCIATED WITH SEEKING SUCH REMEDY; PROVIDED THAT FIRST UNION
PREVAILS IN ANY SUCH PROCEEDING.
ARTICLE 14
INDEMNIFICATION
14.1
INDEMNITY BY THE MARC PRINCIPALS.
SUBJECT TO THE LIMITATION SET
FORTH IN SECTION 14.2 HEREOF, THE MARC PRINCIPALS SHALL, AND SHALL CAUSE THE
APPLICABLE MARC MEMBERS TO, JOINTLY AND SEVERALLY, AT ALL TIMES, BOTH BEFORE AND
AFTER THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, AT THEIR SOLE
COST AND EXPENSE DEFEND, INDEMNIFY, EXONERATE AND SAVE HARMLESS FIRST UNION AND
EACH OTHER FIRST UNION ENTITY AND ALL THOSE CLAIMING BY, THROUGH OR UNDER FIRST
UNION ("INDEMNIFIED PARTY") (TO THE EXTENT NOT PAID BY A MARC PRINCIPAL OR MARC
ENTITY IN THIS SECTION 14.1 OR UNDER THE APPLICABLE PROVISIONS OF THIS OR ANY
OTHER TRANSFER DOCUMENT) AGAINST AND FROM ALL DAMAGES, LOSSES, LIABILITIES,
OBLIGATIONS, PENALTIES, CLAIMS, LITIGATION, DEMANDS, DEFENSES, JUDGMENTS, SUITS,
PROCEEDINGS, COSTS, DISBURSEMENTS OR EXPENSES OF ANY KIND WHATSOEVER (A
"CLAIM"), INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPERTS' FEES AND
DISBURSEMENTS, WHICH MAY AT ANY TIME BE IMPOSED UPON, INCURRED BY OR ASSERTED OR
AWARDED AGAINST THE INDEMNIFIED PARTY AND ARISING FROM OR OUT OF:
(A)
CLAIMS OF MECHANICS AND MATERIALMEN BASED ON WORK PERFORMED ON OR
CONTRACTED FOR A PROPERTY PRIOR TO THE APPLICABLE CLOSING DATE;
(B)
ANY THIRD PARTY TORT CLAIM WITH RESPECT TO A PROPERTY OR PROPERTY
OWNER THAT ARISES OR AROSE AS THE RESULT OF ANY INJURY OR DAMAGE OCCURRING ON OR
PRIOR TO THE APPLICABLE CLOSING DATE FOR THE APPLICABLE PROPERTY;
(C)
CLAIMS UNDER THE LEASES OR ANY OTHER CONTRACTS OR AGREEMENTS
RELATING TO A PROPERTY OR A PROPERTY BASED ON EVENTS OCCURRING AND/OR CAUSES OF
ACTION ARISING PRIOR TO THE APPLICABLE CLOSING DATE OTHER THAN THE LITIGATION
SET FORTH ON SCHEDULE 6.3.10;
(D)
CLAIMS WITH RESPECT TO A PROPERTY OR PROPERTY OWNER BY ANY
GOVERNMENTAL AUTHORITY WITH RESPECT TO TAXES OR LICENSE AND PERMIT FEES FOR
PERIODS PRIOR TO THE APPLICABLE CLOSING DATE; AND
(E)
THE BREACH OR INACCURACY OF ANY MATERIAL REPRESENTATION OR
WARRANTY MADE BY THE