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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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under the Commitment Letters and (E) comply with its obligations under the Commitment Letters and, in the case of the Debt Commitment Letter, any related definitive agreement. Parent and Merger Sub shall give the Company prompt (and in any event within two Business Days) written notice (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) by Parent, Merger Sub, or to the knowledge of Parent or Merger Sub, any party to either Commitment Letter or other definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively, with the Debt Commitment Letter, “Debt Documents”), in each case, which would reasonably be expected to delay or impair the Closing or make funding less likely to occur on or before the Closing, (ii) if and when Parent or Merger Sub receives notice that any portion of the Financing contemplated by either Commitment Letter is not reasonably expected to be available for the Financing Purposes, (iii) of the receipt of any written notice or other written communication from any party to either Commitment Letter with respect to any actual or potential breach, default, termination or repudiation by any party to the Commitment Letter or other Debt Document, and (iv) of any expiration or termination of either Commitment Letter or other Debt Document. Parent and Merger Sub shall not, without the Company’s prior written consent, permit or consent to any amendment, supplement or modification to be made to either Commitment Letter if such amendment, supplement or modification would (A) impair, delay or prevent the consummation of the Transactions, (B) reduce the aggregate amount of the Financing (unless, in the case of the Debt Financing, such reduction is matched with (i) an equal increase of the Equity Financing under the Equity Commitment Letter or (ii) an equal increase in a committed commercial mortgage backed security, agency or other mezzanine or property level financing facility (such replacement financing, the “Replacement Financing”); provided, that, any such Replacement Financing shall not impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing (unless such new or additional conditions or expanded, amended or modified conditions could not be reasonably expected to (1) delay or prevent the Closing, (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, or (3) adversely affect the ability of Parent to enforce its rights against other parties with respect to the Financing), (C) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing (unless such new or additional conditions or expanded, amended or modified conditions could not be reasonably expected to (1) delay or prevent the Closing, (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, or (3) adversely affect the ability of Parent to enforce its rights against other parties with respect to the Financing) or (D) otherwise reasonably be expected to adversely affect (other than a de minimis manner) the ability of Parent or Merger Sub to timely consummate the Transactions; provided, that, for the avoidance of doubt, Parent may amend, supplement, modify or waive any terms of the Debt Commitment Letter and/or the Debt Documents with respect thereto without the consent of the Company in order to (1) reduce the aggregate amount of the Financing so long as such reduction is matched with an equal increase of the Equity Financing under the Equity Commitment Letter or is matched with Replacement Financing, (2) correct typographical errors, (3) add lenders, lead arrangers, bookrunners, syndication agents or similar entities (by assignment or otherwise) subject to the terms and restrictions set forth in the Debt Commitment Letter as in effect on the date of this Agreement or (4) reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. Parent and Merger Sub shall keep the Company informed on a reasonably current basis and in reasonable detail of the efforts to obtain the Debt Financing. For purposes of this Agreement, references to the “Debt Commitment Letter” shall include such document(s) as permitted or required by this Section 7.16 to be amended, supplemented, modified or waived, in each case from and after such amendment, supplement, modification or waiver, and references to “Debt Financing” shall include any Replacement Financing permitted by this Section 7.16.

(b) In the event of any Financing Failure Event, each of Parent and Merger Sub shall use its reasonable best efforts to arrange to obtain, or cause to be obtained, alternative financing, including from alternative sources, in an amount sufficient to replace any unavailable portion of the Financing (“Alternative Financing”) as promptly as practicable following the occurrence of such Financing Failure Event, on (i) economic terms taken as a whole and (ii) other terms, in each case, that are not materially less favorable in the aggregate to Parent and Merger Sub than the terms of the Debt Commitment Letter (including any flex terms

 

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