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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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(b) prior to the time the Requisite Stockholder Vote is obtained, but not after, the Company Board authorizes the Company to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in accordance with Section 7.2(b); provided that (1) prior to or concurrently with such termination, the Company pays Parent the Company Termination Payment (as defined in Section 9.5(b)) pursuant to Section 9.5 and (2) the Company has complied with its obligations under Section 7.2 in all material respects; or

(c) (i) the conditions set forth in Section 8.1 and Section 8.2 (other than any condition that by its nature is to be satisfied at the Closing, each of which would be capable of being satisfied at the Closing if the Closing occurred on the date of notice in clause (ii)) have been satisfied (or waived by Parent), (ii) on or after the date the Closing should have occurred pursuant to Section 1.2, the Company has delivered written notice to Parent that (A) the conditions set forth in Section 8.1 and Section 8.3 (other than any condition that by its nature is to be satisfied at the Closing, each of which would be capable of being satisfied at the Closing if the Closing occurred on the date of such notice) have been satisfied or waived by the Company and (B) the Company is irrevocably ready, willing and able to consummate the Closing, and (iii) Parent and Merger Sub fail to consummate the Closing within the earlier of one Business Day before the Outside Date and three Business Days after the delivery by the Company to Parent of such notice and the Company stood ready, willing and able to effect the Closing through the end of such three Business Day period (or shorter period).

9.4. Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by Parent if:

(a) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that a condition set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied and such breach or untruth is not curable or, if curable, is not cured within the earlier of (x) 30 days after written notice thereof is given by Parent to the Company and (y) three Business Days prior to the Outside Date; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 9.4(a) if Parent or Merger Sub is then in breach of any representation, warranty, covenant or agreement in this Agreement or any representation and warranty of Parent in this Agreement fails to be true and correct, in each case, such that it would give rise to the failure of a condition in Section 8.3(a) or Section 8.3(b);

(b) prior to the time, but not after, the Requisite Stockholder Vote is obtained, if a Change of Recommendation (whether or not permitted by this Agreement) shall have been made or occurred; or

(c) prior to the time the Requisite Stockholder Vote is obtained, but not after, the Company or any director of the Company shall have committed a willful and material breach of Section 7.2(a), other than in the case where such willful and material breach is the result of an isolated action by a director of the Company without Knowledge of or consent by the Company prior to such action, and is not any other action by the Company, and (A) the Company takes appropriate actions to remedy such willful and material breach upon discovery thereof, and (B)  Parent or the Transactions are not adversely affected in any material respect as a result thereof.

9.5. Effect of Termination and Abandonment.

(a) This Agreement may be terminated only pursuant to Section 9.1, Section 9.2, Section 9.3 or Section 9.4. Termination of this Agreement shall not require the approval of the Stockholders. In order to terminate this Agreement, the party desiring to terminate this Agreement shall give written notice of such termination to the other parties in accordance with Section 10.6. Except as provided in this Section 9.5, in the event of termination of this Agreement and the abandonment of the Merger pursuant to and in accordance with this Article IX, this Agreement shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto, any Financing Source, the Guarantors or any of their respective Representatives or Affiliates other than: (i) the provisions set forth in Section 7.8 (Publicity), Section 7.10 (Expenses), the expense reimbursement and indemnification obligations of Parent in Section 7.17, Section 7.18, and Section 7.19, this Section 9.5, Section 9.6, Section 9.7 and Article X (which provisions will survive the termination of this Agreement), (ii) the Confidentiality Agreement and the Guaranty (which agreements will survive the termination

 

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