SAME
INSTRUMENT.
12
SECTION 5.9
FURTHER ASSURANCES.
EACH PARTY SHALL COOPERATE AND TAKE SUCH
ACTION AS MAY BE REASONABLY REQUESTED BY ANOTHER PARTY IN ORDER TO CARRY OUT THE
PROVISIONS AND PURPOSES OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 5.10
REMEDIES.
IN THE EVENT OF A BREACH OR A THREATENED BREACH BY
ANY PARTY TO THIS AGREEMENT OF ITS OBLIGATIONS UNDER THIS AGREEMENT, ANY PARTY
INJURED OR TO BE INJURED BY SUCH BREACH WILL BE ENTITLED TO SPECIFIC PERFORMANCE
OF ITS RIGHTS UNDER THIS AGREEMENT OR TO INJUNCTIVE RELIEF, IN ADDITION TO BEING
ENTITLED TO EXERCISE ALL RIGHTS PROVIDED IN THIS AGREEMENT AND GRANTED BY LAW,
IT BEING AGREED BY THE PARTIES THAT THE REMEDY AT LAW, INDUCING MONETARY
DAMAGES, FOR BREACH OF ANY SUCH PROVISION WILL BE INADEQUATE COMPENSATION FOR
ANY LOSS AND THAT ANY DEFENSE OR OBJECTION IN ANY ACTION FOR SPECIFIC
PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY AT LAW WOULD BE ADEQUATE IS
WAIVED.
SECTION 5.11
JURISDICTION.
EACH OF THE INVESTORS AND THE COMPANY (A)
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF BROUGHT BY THE COMPANY, OR ANY INVESTOR AND (B) HEREBY
WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE,
IN ANY SUCH SUIT, ACTION OR PROCEEDING, 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 5.12
Waiver of Jury Trial.
Each of the parties hereto hereby
waives all right to trial by jury in any action or proceeding under, arising out
of or related to this forbearance agreement.
[Signature Page Follows.]
13
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:
14
HALCYON STRUCTURED OPPORTUNITIES FUND, L.P.
By:
Name: Steve Mandis
Title:
Address: c/o
Halcyon Management Company
477 Madison Avenue, 8th Floor
New York, NY 10022
212-303-9493

15
FAIRHOLME VENTURES II LLC
By:
Name:
Bruce Fairholme
Title:
Address:
c/o
Fairholme Capital Management, L.L.C.
51 John F. Kennedy Parkway
Short Hills, NJ 07078
973-379-6557

16
HBK FUND L.P.
By: HBK Investments L.P., Investment Advisor
By:
Name:
Title:
Authorized Signatory
Address: c/o
HBK Investments
300 Crescent Court, Suite 700
Dallas, TX 75201
214-758-6132

17
GOLDMAN SACHS & CO.
By:
Name:
Title:
Address: c/o
Goldman Sachs & Co.
85 Broad St.
New