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SEC Filings

PREM14A
FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018
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Table of Contents

undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Effective Time, on the part of the Surviving Corporation to cause such Subsidiary to take such action.

10.10. Transfer Taxes. All federal, state, local or foreign or other excise, sales, use, value added, transfer (including real property transfer or gains), stamp, documentary, filing, recordation and other similar taxes and fees that may be imposed or assessed as a result of the Merger or the other Transactions, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties, will be paid by Parent, without reduction (including without limitation by reason of Section 4.6) of any amounts payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Shares.

10.11. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of such provision to any Person or circumstance, is invalid or unenforceable, (a) a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement, and the application of such provision to other Persons or circumstances, will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.

10.12. Non-Recourse. Notwithstanding anything to the contrary herein, and except for Parent and Merger Sub in accordance with this Agreement, the Guarantors in accordance with the Guaranty and the Equity Financing Sources in accordance with the Equity Commitment Letter (and then only to the extent of the specific obligations undertaken by the Equity Financing Sources set forth in the Equity Commitment Letter and the Guarantors set forth in the Guaranty and subject to the Liability Limitation and other limitations therein), the Company agrees on behalf of itself and its Affiliates and their respective members, partners, stockholders, agents, attorneys, advisors or representatives that (a) none of (i) the Financing Sources nor (ii) any past, present, or future director, officer, employee, incorporator, member, partner, shareholder, agent, attorney, advisor representative or Affiliate of the Guarantors, the Equity Financing Sources, Parent or Merger Sub, and no past, present, or future director, officer, employee, incorporator, member, partner, shareholder, agent, attorney, advisor representative or Affiliate of any of the forgoing (each a “Parent Related Party”), in each case, shall have any liability (whether in contract, tort, equity or otherwise) to any person relating to, based upon, or in connection with this Agreement or any of the transactions contemplated herein (including the Debt Financing), (b) it waives any rights or claims against any Financing Source or Parent Related Party relating to, based upon, or in connection with this Agreement (and the Transactions), the Debt Commitment Letter or the Debt Financing (including the transactions contemplated thereby), whether at law or equity, in contract, in tort or otherwise, and agrees not to commence any action, arbitration, audit hearing, investigation, litigation, petition, grievance, complaint, suit or proceeding against any Financing Source or Parent Related Party relating to, based upon, or in connection with this Agreement or the transactions contemplated hereunder (including relating to the Debt Financing (including the transactions contemplated thereby) or the Debt Commitment Letter), (c) in no event shall it be entitled to seek the remedy of specific performance of this Agreement against any Financing Source (for the avoidance out doubt, not including the Equity Financing Sources) and (d) this Agreement may only be enforced against, and any claim or cause of action based up, arising out of, or related to this Agreement or the Merger or other Transactions, may only be brought against Parent and Merger Sub (and the Equity Financing Sources in accordance with the Equity Commitment Letter and the Guarantors in accordance with the Guaranty) and then only with respect to the specific obligations set forth in this Agreement with respect Parent or Merger Sub or, with respect to the Equity Financing Sources and the Guarantors, as set forth in the Equity Commitment Letter and the Guaranty respectively (subject to the Liability Limitation and other limitations set forth therein). Nothing in the foregoing will limit the rights and remedies of the Company under the Confidentiality Agreement.

10.13. Interpretation; Construction.

(a) The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement, and will not be deemed to limit or otherwise affect any of the provisions of this Agreement.

 

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