|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
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 directly results in the Debt Financing not being available to Parent.
7.18. Restructuring. To facilitate the Merger and provide for the optimal structure of the Company post-closing, during the Interim Period, the Company shall (a) use commercially reasonable best efforts to prepare for such internal restructuring steps requested by Parent prior to the Closing (the Restructuring Steps) and (b) subject to Section 7.6, provide any access or information reasonably requested by Parent to identify what Restructuring Steps are appropriate for such purpose; provided, that neither the Company nor any of the Subsidiaries (i) shall be required to take any action (x) if taking such action would impair, prevent or delay consummation of the Transactions or (y) in contravention of (A) any Organizational Document of the Company or any of the Subsidiaries, (B) any Contract, oral or written, to which the Company or any Subsidiary is a party or by which any of them or any of their properties or assets are bound, or (C) applicable Law, (ii) shall be required to take or effect any restructuring steps or incur any liabilities in respect thereto prior to the date the Company deems all of the conditions set forth in Article VIII to have been satisfied and the receipt by the Company of (I) evidence satisfactory to the Company that any material adverse effect or similar condition has been irrevocably waived by the Debt Financing Sources and any other parties with respect to the Debt Financing and (II) an irrevocable written notice from Parent and Merger Sub that each of Parent and Merger Sub irrevocably deem all the conditions set forth in Article VIII to be satisfied and that Parent and Merger Sub and their Financing Sources are prepared to proceed immediately with the Closing (and any other evidence reasonably requested by the Company that the Closing will occur), and (iii) shall be required to take any action that could adversely affect the classification of the Company as a REIT or could subject the Company to any prohibited transactions taxes or other material Taxes under Code Sections 857(b), 860(c) or 4981; provided, further, that, so long as the Company is not in breach of this Section 7.18 as modified by clause (B) of the immediately following sentence, the Restructuring Steps (or the inability to complete the Restructuring Steps) and any other action taken by the Company in connection therewith will not affect or modify in any respect the obligations of Parent and Merger Sub under this Agreement. Notwithstanding anything in this Agreement to the contrary, (A) none of the representations, warranties or covenants of the Company or any of its Subsidiaries shall be deemed to apply to, or deemed breached or violated by, any of the transactions contemplated by this Section 7.18 or required by Parent pursuant to this Section 7.18 and (B) any breach by the Company or its Subsidiaries of their obligations under this Section 7.18 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. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or the Subsidiaries in performing their obligations under this Section 7.18, and Parent shall indemnify and hold harmless the Company, the Company Board, and its Subsidiaries, Affiliates and Representatives for any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them arising therefrom (and in the event the Merger and the other Transactions are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company or the Subsidiaries not previously reimbursed). Parent shall provide an initial draft of the Restructuring Steps to the Company within thirty (30) days following the date of this Agreement and a final draft of the Restructuring Steps at least twenty (20) Business Days prior to the Closing.
7.19. Third Party Consents. The Company shall, and shall cause each Subsidiary to, reasonably cooperate with Parent at Parents request, and use reasonable best efforts, to (a) obtain all consents, approvals or waivers (including waivers of any fees, rights of first offer or refusal, buy/sell rights, and profit sharing) from any third party in connection with the Transactions reasonably requested by Parent, including those set forth in Section 1.2 of the Disclosure Schedule and those which are parties to agreements and documentation described in Section 7.19 of the Disclosure Schedule (collectively, the Third Party Consents), and (b) assist Parent with the preparation and negotiation of, participation with, and delivery to, any third party of any required notices or similar documents as may be reasonably requested by Parent in connection with the Transactions; provided, however, that the Company shall not be required under this Section 7.19 to compensate any third party, make any accommodation commitment or incur any liability or obligation to any third party to obtain any such consent or