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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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with or without notice, lapse of time or both, would constitute a default on the part of the Guarantors under the Guaranty.

6.6. Ownership of Merger Sub; No Prior Activities. The authorized capital stock of Merger Sub consists solely of 100 shares of common stock, par value $0.01 per share, all of which are validly issued, fully paid and outstanding. All of the issued and outstanding shares of capital stock of Merger Sub are, and at the Effective Time will be, owned by Parent or a wholly owned Subsidiary of Parent, and there are (a) no other shares of capital stock or voting securities of Merger Sub, (b) no securities of Merger Sub convertible into or exchangeable for shares of capital stock or voting securities of Merger Sub, and (c) no options or other rights to acquire from Merger Sub, and no obligations of Merger Sub to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Merger Sub. Merger Sub has not conducted any business and has no business activities, assets, liabilities, claims by or against it or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Merger and the other Transactions.

6.7. Ownership of Shares; Interested Stockholder. Neither Parent nor any of its Subsidiaries beneficially owns, directly or indirectly, any Shares, any rights or options to acquire any Shares, or any securities or instruments convertible into, exchangeable for, or exercisable for Shares and neither Parent nor any of its Subsidiaries has any rights to acquire any Shares except pursuant to this Agreement. Neither Parent nor Merger Sub nor any of their respective Affiliates is, nor at any time during the period commencing three years prior to the date of this Agreement has been, an “interested stockholder” of the Company as defined in Section 3-601 of the MGCL.

6.8. Solvency. Assuming the representations and warranties of the Company contained in Section 5.5(a) and Section 5.7(b) are true and correct, immediately following the Effective Time, and after giving effect to the Merger and the other Transactions (and assuming the payment of the amounts described in Section 6.5(a)(i) and Section 6.5(a)(ii)), (a) each of Parent, the Surviving Corporation, and its Subsidiaries will be able to pay their respective liabilities as they mature and will own property which has a fair saleable value greater than the amounts required to pay their respective liabilities (including all contingent and other liabilities), and (b) each of Parent, the Surviving Corporation, and its Subsidiaries will have adequate capital available to carry on their respective business. Neither Parent nor Merger Sub is entering into the Merger and the other Transactions with the intent to hinder, delay, or defraud either present or future creditors.

6.9. Brokers and Finders. Except for Moelis & Company, the fees and expenses of which will be paid by Parent, neither Parent nor Merger Sub has employed, and no other Person has employed or arranged on behalf of Parent, any broker or finder or incurred any liability for any brokerage fees, commissions, finder’s fees or other similar fee or commission for which the Company would be responsible in connection with the Merger and the other Transactions.

6.10. Absence of Certain Arrangements. None of Parent, Merger Sub nor any of their affiliates has entered into any Contract with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis in connection with any transaction involving the Company (or otherwise on terms that would prohibit such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or any of the Subsidiaries), except for such actions to which the Company has previously agreed in writing. Other than this Agreement, the Guaranty and the Confidentiality Agreement, as of the date hereof, there are no Contracts or any commitments to enter into any Contract between Parent, Merger Sub or any of their respective controlled affiliates, on the one hand, and any director, officer, employee or stockholder of the Company, on the other hand, relating to the transactions contemplated by this Agreement or the operations of the Surviving Corporation after the Effective Time.

6.11. No Other Representations or Warranties. Parent and Merger Sub acknowledge and agree that, except for the representations and warranties expressly set forth in Article V, (a) the Company does not make, and has not made, any representations or warranties relating to the Company or its business or otherwise in connection with the Merger and the other Transactions and Parent and Merger Sub are not relying on any

 

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