|FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018|
MISCELLANEOUS AND GENERAL
10.1. Non-Survival. The representations and warranties in this Agreement and in any certificate delivered pursuant hereto will terminate at the Effective Time. This Section 10.1 will not limit any covenant or agreement of the parties that by its terms contemplates performance in whole or in part after the Effective Time.
10.2. Modification or Amendment. Subject to applicable Laws, at any time prior to the Effective Time, this Agreement may be amended, modified or waived if, and only if, such amendment, modification or waiver is in writing and signed, in the case of an amendment or modification by Parent, Merger Sub, and the Company, or in the case of a waiver, by the party against whom the waiver is to be effective; provided, that after the receipt of the Requisite Stockholder Vote, no amendment will be made that by any applicable Law requires further approval by the Stockholders without obtaining such further approval; provided, further, that this Section 10.2, Section 9.5, Section 10.5(b), Section 10.5(d), Section 10.7, Section 10.8 and Section 10.12 (and any provision of this Agreement to the extent a modification, waiver or termination of such provision would modify the substance of any of the foregoing provisions) (collectively, the Financing Sources Protection Provisions) may not be amended or modified in whole or in part in a manner that directly and adversely affects any Financing Source without the written consent of the Lenders.
10.3. Waiver of Conditions. The conditions to each of the respective parties obligations to consummate the Merger and the other Transactions are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable Laws. No failure or delay by any party in exercising any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided will be cumulative and not exclusive of any rights or remedies provided by Law (except to the extent specifically provided otherwise in Section 9.5).
10.4. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or by email of a .pdf attachment will be effective as delivery of a manually executed counterpart of this Agreement.
(a) THIS AGREEMENT WILL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS WILL BE INTERPRETED, CONSTRUED, AND GOVERNED BY AND IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF MARYLAND REGARDLESS OF ANY LAW THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EACH OF THE PARTIES (I) AGREES THAT IT WILL NOT BRING, PERMIT ANY OF ITS AFFILIATES TO BRING OR SUPPORT ANY PERSON IN ANY ACTION, SUIT OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW, EQUITY, CONTRACT, TORT OR OTHERWISE, INVOLVING ANY OF THE FINANCING SOURCES IN ANY WAY RELATING TO THIS AGREEMENT, ANY OF THE TRANSACTIONS OR THE FINANCING, INCLUDING ANY DISPUTE ARISING OUT OF OR RELATING IN ANY WAY TO THE DEBT COMMITMENT LETTER OR THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED THEREBY, IN ANY FORUM OTHER THAN THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN WITHIN THE CITY OF NEW YORK, (II) AGREES THAT, EXCEPT AS SPECIFICALLY SET FORTH IN THE DEBT COMMITMENT LETTER, ALL CLAIMS OR CAUSES OF ACTION (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) INVOLVING ANY OF THE FINANCING SOURCES IN ANY WAY RELATING TO THE DEBT COMMITMENT LETTER OR THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED THEREBY, WILL BE EXCLUSIVELY GOVERNED