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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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the extent it would cause any condition to the Closing set forth in Section 8.1 or Section 8.2 to not be satisfied or (5) to violate any obligation of confidentiality (not created in contemplation hereof) binding on the Company, its Subsidiaries or their Representatives. Additionally, (A) neither the Company nor any of the Company’s Subsidiaries shall be required to pay or incur any commitment or other similar fee or incur or assume any liability or obligation in connection with any Debt Financing prior to the Closing (other than as are expressly reimbursable or payable by Parent and Merger Sub and except for the obligation to deliver the customary authorization and representation letter referenced above), (B) none of the directors of the Company or any Subsidiary, acting in such capacity, shall be required to authorize or adopt any resolutions approving the agreements, documents, instruments, actions and transactions contemplated in connection with the Debt Financing, (C) except as set forth in Section 7.17(a)(vii), none of the Company, any of its Subsidiaries or any of their respective Representatives shall be required, prior to Closing, to make any representation to Parent, any of its Affiliates, any lender, agent or lead arranger to any Debt Financing, or any other Person with respect to any action under this Section 7.17, as to the solvency of the Company, any of its Subsidiaries, or any of their respective Representatives, or to deliver or require to be delivered any solvency or similar certificate and (D) except as set forth in Section 7.17(a)(iv) or Section 7.19, none of the Company, any of its Subsidiaries or any of its or their Representatives shall be required to seek any amendment, waiver, consent or other modification under any indebtedness. Nothing hereunder shall require any employee, officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate or opinion or take any other action that would result in personal liability to such employee, officer, director or other Representative. All non-public or otherwise confidential information regarding the Company obtained by Parent or Merger Sub or any of their respective Representatives pursuant to this Section 7.17, shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Company agrees that Parent and Merger Sub may share non-public or otherwise confidential information with the rating agencies and Financing Sources as contemplated by the Commitment Letters if the recipients of such information are rating agencies and Financing Sources in connection with the Debt Financing as contemplated by the Debt Commitment Letter and agree to customary confidentiality arrangements, including customary “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda, provided, in each case, that such confidentiality arrangements shall provide that the Company is a third-party beneficiary thereof and shall satisfy the confidentiality obligations under Regulation FD.

(c) Parent shall indemnify, defend and hold harmless the Company and its Affiliates, and its and their respective pre-Closing directors, officers, employees, agents, representatives and professional advisors, from and against any liability, obligation or loss suffered or incurred by them in connection with any cooperation provided under this Section 7.17, the arrangement of the Financing and any information provided in connection therewith (other than arising from historical financial information furnished in writing by or on behalf of the Company and/or its Subsidiaries specifically for inclusion in such materials for the debt financing, but including any violation of the Confidentiality Agreement), except in the event such liabilities, obligations or losses arose out of or result from the bad faith, gross negligence or willful misconduct by the Company, any of its Subsidiaries or any of their respective Affiliates and Representatives. Parent shall promptly reimburse the Company and its Subsidiaries and Representatives for all reasonable, documented and invoiced costs incurred by the Company or its Subsidiaries in connection with any cooperation provided under this Section 7.17 or otherwise in connection with the Debt Financing (including reasonable and documented out-of-pocket auditor’s and attorneys’ fees and expenses). Subject to Parent’s indemnification obligations under this Section 7.17, the Company hereby consents to the use of all of its and its Subsidiaries’ corporate logos in connection with the initial syndication or marketing of the Debt Financing, so long as such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.

(d) Notwithstanding anything to the contrary herein, a breach by the Company or its Subsidiaries of their obligations under this Section 7.17 (other than Section 7.17(a)(v)) shall not constitute a breach of this Agreement or a breach for purposes of Article IX or a breach of the condition precedent set forth in Section 8.2(b), unless such breach is a willful and material breach and directly results in the Debt Financing not being available to Parent, and a breach by the Company or its Subsidiaries of their obligations under

 

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