|FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018|
approval, unless Parent or its Affiliates agree to compensate any such third party on the Companys behalf or to promptly reimburse the Company for any payments made or liabilities to any such third party, in each case in connection with obtaining such consents or approvals, and the Company shall not compensate or agree to compensate any such third party, make any accommodation commitment or incur any liability or obligation to any such third party in connection with obtaining such consents or approvals without the prior written consent of Parent. Notwithstanding anything to the contrary herein, (i) Parent and Merger Sub acknowledge and agree that it is not a condition to the Closing to obtain any Third Party Consents and (ii) a breach by the Company or its Subsidiaries of their obligations under this Section 7.19 shall not constitute a breach of this Agreement or a breach for purposes of Article IX or a breach of the condition precedent set forth in Section 8.2(b), unless such breach is a willful and material breach. Without limiting the obligations of the Company under the foregoing, in connection with obtaining any consent, approval or waiver or providing any notice or similar documents under this Section 7.19, Parent shall have (i) primary responsibility for contacting and obtaining such consents, approvals or waiver from the counterparties to whom such consent, approval or waiver is being sought or providing such notices or similar documents, as applicable, and (ii) the right to direct the overall strategy in obtaining any such consent, approval or waiver or providing any such notice or similar document; provided that Parent will consult in advance with the Company regarding any such discussions and negotiations and give the Company notice and an opportunity to participate in any communication with such third parties, and the Company, at Parents request, shall initiate and facilitate such activities.
8.1. Conditions to Each Partys Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction or (to the extent permitted by Law) waiver by each of the parties at or prior to the Closing of each of the following conditions:
(a) Stockholder Approval. The Merger shall have been duly approved by holders of Shares constituting the Requisite Stockholder Vote and shall have been duly approved by the sole stockholder of Merger Sub.
(b) Antitrust Clearance. The waiting period applicable to the consummation of the Merger under the HSR Act (or any extension thereof), if any, shall have expired or been earlier terminated.
(c) Laws or Orders. No court or other Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law, executive order, ruling, injunction or other order (whether temporary, preliminary or permanent) (collectively, Orders) that is in effect and that restrains, enjoins, or otherwise prohibits consummation of the Merger.
8.2. Additional Conditions to Obligation of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Closing of the following conditions:
(a) Representations and Warranties of the Company. (i) Each of the representations and warranties of the Company set forth in Section 5.3 (Corporate Authority; Approval) ) (other than the last sentence of Section 5.3(b)), Section 5.12 (Takeover Statutes) and Section 5.18 (Brokers and Finders) shall be true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects at and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time); (ii) each of the representations of the Company set forth in Section 5.2(a) (Capital Structure), Section 5.2(c) (Capital Structure) (in the case of Section 5.2(c), solely to the extent such representations relate to the Company), Section 5.2(d) (Capital Structure), the first sentence of Section 5.2(f) (Capital Structure) and Section 5.2(l) (Capital Structure) shall be