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DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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(c) Notwithstanding anything to the contrary set forth in this Agreement:

(i) the Company’s obligations under this Agreement to act or refrain from acting, or to cause its Subsidiaries to act or refrain from acting, will, with respect to any entities (and their respective subsidiaries) that are not wholly owned Subsidiaries, be subject to (1) the Organizational Documents of such entity and its subsidiaries, (2) the scope of the Company’s or its Subsidiaries’ power and authority to bind such entity and its subsidiaries, and (3) the Company’s and its Subsidiaries’ duties (fiduciary or otherwise) to such entity and its subsidiaries or any of its equity holders; provided that the Company or such Subsidiary has exercised all of its respective rights under such Organizational Documents of such Subsidiary or entity subject to such duties; and

(ii) the Company may take any action, at any time or from time to time, that in the reasonable judgment of the Company Board, and upon advice of outside legal counsel, is necessary for the Company to avoid incurring entity-level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code for any period, or portion thereof, ending at or prior to the Effective Time, or to qualify or preserve the status of any Subsidiary as a disregarded entity or partnership for U.S. federal income tax purposes or as a REIT, Qualified REIT Subsidiary or a Taxable REIT Subsidiary, as the case may be.

(d) Nothing contained in this Agreement will give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time. Prior to the Effective Time, the Company will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its and its Subsidiaries’ operations and the Company will not be required to obtain the consent of Parent under this Agreement if doing so would violate any applicable Law.

(e) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article IX:

(i) the Company will, and will cause its applicable Subsidiaries to, use best efforts file a request for relief under Treasury Regulations Section 301.9100-3 to permit the Company to make elections to treat each of Ascot Brokerage Ltd., Silva Urbs 1 C.V., and FC NL 2 C.V. as Taxable REIT Subsidiaries of the Company;

(ii) the Company, its Subsidiaries, Parent and Merger Sub shall cooperate to (1) prepare all real estate change of ownership forms under California or other state and local Tax Law (including California Proposition 13) or similar forms required by reason of the Merger or the Transactions (“Change of Ownership Forms”) or compile any historical information reasonably necessary to confirm that such Change of Ownership Forms are not required and (2) compile any historical information reasonably necessary to the preparation of any forms required in connection with any transfer taxes imposed by reason of the Merger or the Transactions;

(iii) the Company and its Subsidiaries will use commercially reasonable efforts to provide (1) any internal analyses previously prepared with respect to the applicability of California or other state transfer tax Law (including California Proposition 13), (2) all forms filed (or written descriptions detailing why such forms were not required) in connection with any transfer taxes imposed on the sale of any assets by the Company or its Subsidiaries after the date of this Agreement, (3) identification of any properties acquired by the Company or its Subsidiaries after the date of this Agreement as having been received in an exchange for real property of like kind with the meaning of Section 1031 of the Code, and (4) reasonable updates and any copies of any previously prepared internal analyses related to all Tax audits or examinations that are ongoing or have been completed since the date of this Agreement; and

(iv) the Company and its Subsidiaries will provide to Parent copies of documents prepared in connection with any voluntary disclosure agreement for its review, comment, and consent, which consent shall not be unreasonably withheld, conditioned, or delayed.

(f) As of the Closing Date, the Company shall have distributed one hundred percent (100%) of its REIT taxable income, as reasonably estimated by the Company prior to the Closing Date, in accordance with the

 

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