ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE
FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT.
IF A JUDGMENT IS OBTAINED, THIS SECTION SHALL NOT PRECLUDE
ENFORCEMENT THEREOF IN ANY FORUM.
SECTION 12.10.
NO THIRD PARTY BENEFICIARY.
THE TERMS AND
PROVISIONS OF THIS AGREEMENT ARE INTENDED SOLELY FOR THE BENEFIT OF EACH PARTY
HERETO AND THEIR RESPECTIVE SUCCESSORS OR PERMITTED ASSIGNS, AND IT IS NOT THE
INTENTION OF THE PARTIES TO CONFER THIRD-PARTY BENEFICIARY RIGHTS UPON ANY OTHER
PERSON OTHER THAN ANY PERSON ENTITLED TO INDEMNITY UNDER ARTICLE IX; PROVIDED,
HOWEVER, THAT CREDIT SUISSE FIRST BOSTON AND ITS AFFILIATES SHALL BE ENTITLED TO
THE BENEFITS OF, AND TO RELY ON, THE REPRESENTATION SET FORTH IN SECTION 4.03.
SECTION 12.11.
INJUNCTIVE RELIEF.
IN THE EVENT THAT ANY
PARTY THREATENS TO TAKE ANY ACTION PROHIBITED BY THIS AGREEMENT, THE PARTIES
AGREE THAT THERE MAY NOT BE AN ADEQUATE REMEDY AT LAW.
ACCORDINGLY, IN SUCH AN
EVENT, A PARTY MAY SEEK AND OBTAIN PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
(WITHOUT THE NECESSITY OF POSTING ANY BOND OR UNDERTAKING).
SUCH REMEDIES
SHALL, HOWEVER, BE CUMULATIVE AND NOT EXCLUSIVE AND SHALL BE IN ADDITION TO ANY
OTHER REMEDIES WHICH ANY PARTY MAY HAVE UNDER THIS AGREEMENT OR OTHERWISE.
SECTION 12.12.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED VIA FACSIMILE AND IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE
DEEMED TO BE AN ORIGINAL INSTRUMENT AND ALL OF WHICH TOGETHER SHALL CONSTITUTE
ONE AND THE SAME INSTRUMENT.
SECTION 12.13.
ACTIONS SIMULTANEOUS.
ALL ACTIONS TO BE
TAKEN AND ALL DOCUMENTS TO BE EXECUTED AND DELIVERED BY ALL PARTIES AT THE
CLOSING SHALL BE DEEMED TO HAVE BEEN TAKEN AND EXECUTED AND DELIVERED
SIMULTANEOUSLY AND NO ACTIONS SHALL BE DEEMED TO HAVE BEEN TAKEN NOR SHALL ANY
DOCUMENTS BE DEEMED TO HAVE BEEN EXECUTED AND DELIVERED UNTIL ALL ACTIONS HAVE
BEEN TAKEN AND ALL DOCUMENTS HAVE BEEN EXECUTED AND DELIVERED.
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SECTION 12.14.
HOME OFFICE PAYMENT.
SO LONG AS ANY
INVESTOR OR ITS NOMINEE SHALL BE THE HOLDER OF ANY SHARES, AND NOTWITHSTANDING
ANYTHING CONTAINED IN THE CERTIFICATE OF DESIGNATIONS TO THE CONTRARY, THE
COMPANY WILL PAY ALL SUMS BECOMING DUE WITH RESPECT TO SUCH SHARES, OTHER THAN
WITH RESPECT TO REDEMPTION, BY DIRECT DEPOSIT OF AUTOMATED CLEARINGHOUSE FUNDS
INTO SUCH ACCOUNT AS THE INVESTOR SHALL PROVIDE BY WRITTEN NOTICE TO THE
COMPANY, SUBJECT TO EXECUTION OF SUCH DOCUMENTATION AS THE COMPANY'S TRANSFER
AGENT SHALL REASONABLY REQUIRE.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By:
Name:
Title:
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HALCYON STRUCTURED OPPORTUNITIES FUND, L.P.
By:
Name: Steve Mandis
Title:
Address: c/o
Halcyon Management