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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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payment dates on the Shares not in excess of the amounts per Share set forth in Section 7.1(b)(viii) of the Disclosure Schedule and (4) any distributions of the Company and its Subsidiaries necessary to comply with Section 7.1(f); provided, however, the authorization, declaration and payment of any such distributions in clause (3) (other than any dividends declared and publicly announced on or prior to May 15, 2018) and clause (4) shall, without duplication, reduce the Merger Consideration by the amount of such per Share distribution, as applicable;

(ix) except for the matters set forth on Section 7.1(b)(ix) of the Disclosure Schedule, incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or guarantee such Indebtedness of another Person, or issue, sell or amend the terms of any debt securities or rights to acquire any debt securities of the Company or any of its Subsidiaries, other than (1) the incurrence of Indebtedness for borrowed money under, and in accordance with, the Existing Indebtedness set forth set forth on Section 7.1(b)(ix)(1) of the Disclosure Schedule (the “Existing Loan Documents”) secured solely by Company Property in the ordinary course of business consistent with past practice (provided that the aggregate amount of such borrowing will not exceed $5,000,000), (2) unsecured intercompany Indebtedness or guarantees between or among the Company and any wholly owned Subsidiaries, or (3) in connection with the financing of accounts payable in the ordinary course of business consistent with past practice, provided in each case in clauses (1)–(3) that this does not delay or impede the Merger or the other Transactions;

(x) amend, waive, or modify, in any material respect, or terminate any Material Contract other than an (A) amendment, waiver, termination or renewal of a Material Contract (other than an Existing M&A Agreement) in the ordinary course of business consistent with past practice (including expirations of any such Material Contract in accordance with its terms); provided, that, such amendment, waiver, termination or renewal is not otherwise prohibited under this Section 7.1(b), (B) solely in connection with any matter to the extent such matter is expressly permitted by any other clause of this Section 7.1(b) but not otherwise prohibited by any other clause of this Section 7.1(b), (C) any amendment, termination or renewal of a Material Contract classified as a Material Contract solely pursuant to Section 5.11(a)(iii) or Section 5.11(a)(xii) and not classified as a Material Contract pursuant to any other subsection of Section 5.11(a), if (1) such action would not reasonably be expected to alter the scope or impact of such restriction in a manner that is adverse in any material respect to the Company or its Subsidiaries (or, after the Effective Time, the Surviving Corporation or its Subsidiaries), and (2) such action would not cause such Material Contract to be classified as a Material Contract pursuant to any subsection of Section 5.11(a) other than Section 5.11(a)(iii) or Section 5.11(a)(xii);

(xi) enter into any Contract (A) that would be a Material Contract had it been entered into prior to the execution of this Agreement other than in the ordinary course of business consistent with past practice that is not otherwise prohibited under this Section 7.1(b); provided that this exception in this clause shall not apply to any Contract that would be classified as Material Contract pursuant to Section 5.11(a)(ii), (v), (vii), (ix), (xii), (xiii), (xvi), (xvii) or (xviii); or (B) which contains a change of control or similar provision that would require a payment, consent or acceleration of rights to the other party or parties thereto in connection with the consummation of the Merger or other Transactions (including in combination with any other event or circumstance);

(xii) make a material change with respect to financial accounting policies or procedures, other than as required by Law, GAAP or statutory or regulatory accounting rules or interpretations with respect thereto or by any Governmental Authority (including the Financial Accounting Standards Board or any similar organization);

(xiii) waive, release, assign, settle or compromise (i) any of the matters set forth on Section 7.1(b)(xiii) of the Disclosure Schedule or (ii) any claim or Action for an amount not covered by insurance in excess of $5,000,000 individually or $15,000,000 in the aggregate, in each case, exclusive of any deductibles, including any Action relating to the Transactions (except that this Section 7.1(b)(xiii) shall not apply to any Transaction Litigation, which shall be governed by Section 7.14);

 

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