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 THE 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.
SECTION 12.09
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.
SECTION 12.10
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 12.11
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 12.12
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.
[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:
/s/ Peter Braverman
Peter Braverman
President
KIMCO REALTY CORPORATION
By:
/s/ Michael V. Pappagallo
Michael V. Pappagallo
Vice President and CFO
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Annex A
FORM OF COMPANY OHIO COUNSEL OPINION
(i)
The Shares have been duly and validly authorized and issued and are fully
paid and non-assessable and free of preemptive rights; and
(ii)
The Company has taken all necessary corporate action to authorize the
execution, delivery and performance of the