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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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other party such Termination Payment and, in order to obtain such payment, Parent or the Company, as applicable commences a suit that results in a judgment against the Company or Parent, as applicable for such Termination Payment, the Company or Parent, as applicable, will pay the other party its costs and expenses (including attorneys’ fees and disbursements of counsel or other professionals and experts and court costs) in connection with such suit, together with interest thereon at the prime rate as published in The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by the other party) in effect on the date such Termination Payment was required to be paid from such date through the date of full payment thereof.

(f) If the Company Termination Payment is required to be paid pursuant to Section 9.5(b), Parent’s right to receive the Company Termination Payment and any additional amounts pursuant to Section 9.5(e) will be the sole and exclusive remedies of Parent, its respective Subsidiaries, any of Parent’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents and other Representatives and any other Person against the Company, the Company’s Subsidiaries, any of the Company’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives and the Financing Sources for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger and the other Transactions to be consummated.

(g) If a Parent Termination Payment is required to be paid pursuant to Section 9.5(d), the Company’s right to receive the Parent Termination Payment and any additional amounts pursuant to Section 9.5(e), and the expense reimbursement and indemnification obligations of Parent in Section 7.17, Section 7.18, and Section 7.19 will be the sole and exclusive remedies of the Company, its respective Subsidiaries, any of the Company’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents and other Representatives and any other Person against Parent, Parent’s Subsidiaries, any of Parent’s or its Subsidiaries’ respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives and the Financing Sources for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger and the other Transactions to be consummated.

(h) Each of the parties acknowledges and agrees that: (i) a Termination Payment is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent or the Company in the circumstances in which such Termination Payment is due and payable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger and the other Transactions, which amount would otherwise be impossible to calculate with precision, (ii) any Company Termination Payment or Parent Termination Payment, and any additional amounts pursuant to Section 9.5(e), when paid in full accordance with this Agreement will be in full and complete satisfaction of any and all monetary damages of Parent or the Company, as applicable, and each of its Subsidiaries or any of their respective former, current or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives arising out of or related to this Agreement, the Merger or the other Transactions (including any breach of this Agreement by the Company), the termination of this Agreement, the failure to consummate the Merger or the other Transactions, and any claims or actions under applicable Laws arising out of any such breach, termination or failure, (iii) in the event this Agreement is terminated under circumstances where the Company Termination Payment or the Parent Termination Payment is payable, in no event will Parent or the Company, as the case may be, be entitled to seek or obtain any recovery or judgment in excess of the Company Termination Payment or the Parent Termination Payment, as applicable, and any additional amounts pursuant to Section 9.5(e) against the Company or Parent, as applicable, and each of its Subsidiaries or any of their respective former, current or future general or limited partners, stockholders, directors, officers, employees, managers, members, Affiliates, agents or other Representatives or any of their respective assets, and in no event will Parent or the Company, as applicable, be entitled to seek or obtain any other damages of any kind (including against the Financing Sources), including consequential, special, indirect or punitive damages for, or with respect

 

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