|FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018|
PROCEEDING, OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) DIRECTLY OR INDIRECTLY BASED UPON, ARISING OUT OF, OR RELATING TO THIS AGREEMENT OR THE MERGER OR THE OTHER TRANSACTIONS OR THE ACTIONS OF THE PARTIES IN NEGOTIATION, ADMINISTRATION, PERFORMANCE, AND ENFORCEMENT OF THIS AGREEMENT, THE GUARANTY, THE EQUITY COMMITMENT LETTER OR THE DEBT COMMITMENT LETTER, THE EQUITY FINANCING, THE DEBT FINANCING OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) IT GIVES THIS WAIVER VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.5.
(f) The parties acknowledge and agree that irreparable harm would occur and the parties would not have any adequate remedy at Law (i) for any actual or threatened breach of the provisions of this Agreement or (ii) in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that, except where this Agreement is terminated in accordance with Article IX, each party shall be entitled to seek an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement and any other agreement or instrument executed in connection herewith; including if the conditions set forth in Article VIII have been satisfied or waived, and the parties further agree to waive any requirement for the securing or posting of any bond or proving actual damages in connection with such remedy. Each party hereby consents to the right of the other parties to seek the issuance of such injunction or injunctions, and to the grant of such injunction or injunctions. The parties further agree that (i) by seeking the remedies provided for in this Section 10.5(f), Parent Merger Sub, or the Company, as applicable, shall not in any respect waive its right to seek any other form of relief that may be available to such party under this Agreement, including, as applicable, payment of the Parent Termination Payment, Company Termination Payment or the Expense Reimbursement Payment, other monetary damages or in the event that the remedies provided for in this Section 10.5(f) are not available or otherwise are not granted and (ii) nothing contained in this Section 10.5(f) shall require a party to institute any proceeding for (or limit a partys right to institute any proceeding for) specific performance under this Section 10.5(f) before exercising any termination right under Article IX (and pursuing the payment of the Parent Termination Payment, Company Termination Payment, Expense Reimbursement Payment or other monetary damages after such termination, as applicable) nor shall the commencement of any action pursuant to this Section 10.5(f) or anything contained in this Section 10.5(f) restrict or limit any partys right to terminate this Agreement in accordance with the terms of Article IX or pursue any other remedies under this Agreement that may be available then or thereafter. For the avoidance of doubt, while Parent and Merger Sub may pursue both a grant of specific performance in accordance with this Section 10.5(f) and payment of the Company Termination Payment, Expense Reimbursement Payment or other monetary damages, as applicable, under no circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance requiring consummation of the Merger and the other Transactions and any such payment. Also for the avoidance of doubt, while the Company may pursue both a grant of specific performance in accordance with this Section 10.5(f) and payment of the Parent Termination Payment or other monetary damages, as applicable, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance requiring consummation of the Merger and the other Transactions and any such payment. The parties further agree not to assert that a remedy of specific performance is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide for an adequate remedy. Notwithstanding the foregoing, the parties further acknowledge and agree that prior to the Closing, the Company shall be entitled to specific performance to cause Parent and/or Merger Sub to draw down the full proceeds of the Equity Financing and to cause Parent or Merger Sub to consummate the Merger including to effect the Closing, in accordance with Section 1.2, on the terms and subject to the conditions in this Agreement, if, and only if, (A) all conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied at the Closing but subject to