Common use of Title to the Properties Clause in Contracts

Title to the Properties. (a) The BCR Entities have made available to Forest City for review the title policies listed on Schedule 3.1 (a) with respect to each of the Operating Properties (each, an “Existing Title Policy,” and collectively, “Existing Title Policies”). (b) The BCR Entities have obtained, and have made available to Forest City for review, the title commitments issued by Fidelity National Title Insurance Company and the title certifications issued by New York Land Services identified on Schedule 3.1(b) with respect to each of the Operating Properties (each, a “New Title Commitment,” and collectively, the “New Title Commitments”). Forest City and the BCR Entities acknowledge that all of the exceptions identified in the Existing Title Policies and the New Title Commitments are acceptable to them and require no adjustment in the Consideration to be delivered under this Agreement. (c) If, prior to the Principal Closing, any lien, restriction, security interest or other encumbrance of record (each, an “Encumbrance”) is discovered with respect to any Operating Property (i) that is not reflected in the Existing Title Policy or New Title Commitment for such Operating Property and (ii) for which a tenant is responsible under the terms of the lease or other binding obligation of the tenant to the related Property Owner, notwithstanding the existence of such Encumbrance, the Operating Property will be included in the transactions contemplated by this Agreement without any delay in the Principal Closing, adjustment in the Consideration to be delivered pursuant to this Agreement or liability or claim post-Closing under the indemnification provisions set forth in Article VIII, provided that the tenant still occupies all or any portion of the premises covered by the lease on the Principal Closing Date. If the tenant does not occupy the premises on the Principal Closing Date, the value of the Consideration to be delivered to the BCR Entities and BCR Individuals related to such Property Owner will be decreased by the product of (A) the BCR Transferred Interests in the Operating Property (expressed as a decimal to four (4) decimal places) as indicated on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties) and (B) the amount of the Encumbrance, if the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary, and the value of the Class B Common Units to be delivered to the FCE Entities related to such Property Owner will be decreased by the product of (A) the FCE Contributed Interests in the Operating Property (expressed as a decimal to four (4) decimal places) as indicated on Schedule P-6C (FCE Contributed Interests in Operating Properties) and (B) the amount of the Encumbrance, if the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary. For purposes of this Section 3.1(c), the amount by which a non-monetary Encumbrance diminishes the value of an Operating Property will be determined by an arbitrator in accordance with the arbitration process set forth in Section 2.3(e). In no case will the reduction in the value of the Consideration payable to the BCR Entities and/or BCR Individuals, on the one hand, or the FCE Entities, on the other hand, with respect to any specific Operating Property exceed the aggregate value of the BCR Transferred Interests or FCE Contributed Interests (as applicable) related to such Property as set forth on Schedules P-6A (BCR Contributed Interests in Operating Properties), P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties). Any reduction in Consideration payable to the BCR Entities and/or BCR Individuals pursuant to this Section 3.1(c) will be allocated between Consideration and BCR Units on a pro rata basis relative to the amount of cash and BCR Units initially scheduled to be delivered to the BCR Entities with respect to the relevant Operating Property. If, after the Principal Closing Date, the Encumbrance is removed other than at the expense of the relevant Property Owner, Master III or other relevant entity will deliver the cash Consideration and/or issue the BCR Units to the BCR Entities and/or BCR Individuals (as applicable) and/or issue Class B Initial Common Units to the FCE Entities not delivered or issued at the Principal Closing pursuant to this Section 3.1(c), and Master III will pay the Class A Distribution Preference and the Class B Distribution Amount (as defined in the Master III Operating Agreement) that would have been payable with respect to any such Units in accordance with the terms of the Master III Operating Agreement if such Units had been issued on the Principal Closing Date. With respect to any payments of cash consideration by Master III in connection with this Section 3.1(c), Forest City will contribute to Master III an amount of cash, payable by wire transfer of immediately available funds to a bank account maintained by Master III, sufficient to pay such cash consideration to the BCR Entities and BCR Individuals pursuant to this Section 3.1(c). (d) If, prior to the Principal Closing, the relevant BCR Entity breaches the covenant contained in Section 4.4(c) or any Encumbrance (other than an Encumbrance subject to Section 3.1(c)) is discovered with respect to such Operating Property that is not reflected in the Existing Title Policy or New Title Commitment for such Operating Property, the value of the Consideration to be delivered to the BCR Entities and/or BCR Individuals related to such Operating Property will be decreased by the product of (A) the BCR Transferred Interests in the Operating Property (expressed as a decimal to four (4) decimal places) as indicated on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties) and (B) the amount of the Encumbrance, if the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary. If, after the Principal Closing Date, such Encumbrance is removed other than at the expense of the relevant Property Owner, Master III or other relevant entity will deliver the cash Consideration and/or issue the BCR Units to the BCR Entities and/or BCR Individuals (as applicable) not delivered or issued at the Principal Closing pursuant to this Section 3.1(d), and Master III will pay the Class A Distribution Preference that would have been payable with respect to any such BCR Units in accordance with the terms of the Master III Operating Agreement if such BCR Units had been issued on the Principal Closing Date. With respect to any payments of cash consideration by Master III in connection with this Section 3.1(d), Forest City will contribute to Master III an amount of cash, payable by wire transfer of immediately available funds to a bank account maintained by Master III, sufficient to pay such cash consideration to the BCR Entities and BCR Individuals pursuant to this Section 3.1(d). In no case will the reduction in the value of the Consideration payable to the BCR Entities and/or BCR Individuals with respect to any specific Operating Property exceed the aggregate value of the BCR Transferred Interests related to such Operating Property as set forth on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties). Any reduction in Consideration payable to the BCR Entities and/or BCR Individuals pursuant to this Section 3.1(d) will be allocated between Consideration and BCR Units on a pro rata basis relative to the amount of cash and BCR Units initially scheduled to be delivered to the BCR Entities with respect to the relevant Operating Property. (e) Forest City acknowledges that it will not be entitled to exclude any Operating Property from the Principal Closing because of the discovery of any Encumbrances not reflected in an Existing Title Policy or New Title Commitment, but that its remedies for the discovery of any Encumbrances not reflected in an Existing Title Policy or New Title Commitment will be limited as expressly set forth in this Section 3.1. (f) Notwithstanding anything in this Section 3.1 to the contrary, the BCR Entities will not be responsible (in any way) for any Encumbrances caused by FCEI, the FCE Entities or any of their affiliates or by the Outside Investors with Interests related to the Operating Property known as Queenswood Apartments.

Title to the Properties. The Borrowers have good and marketable fee simple title (a) The BCR Entities have made available to Forest City for review or, in the title policies listed on Schedule 3.1 (a) with respect to each case of the Operating Ground Leased Properties, leasehold or subleasehold title) to the Properties, other than the Managed Properties, free and clear of all Liens except for the Permitted Encumbrances. The Borrowers own all personal property and improvements on the Properties (eachother than the Managed Properties, an “Existing Title Policy,” personal property and collectively, “Existing Title Policies”). (b) The BCR Entities have obtainedimprovements owned by Sprint, and have made available to Forest City personal property which is owned by tenants of such Property, not used or necessary for review, the title commitments issued by Fidelity National Title Insurance Company and the title certifications issued by New York Land Services identified on Schedule 3.1(b) with respect to each operation of the Operating Properties (eachapplicable Property, a “New Title Commitment,” and collectivelyleased by the Borrowers as permitted hereunder), the “New Title Commitments”). Forest City and the BCR Entities acknowledge that all of the exceptions identified in the Existing Title Policies and the New Title Commitments are acceptable to them and require no adjustment in the Consideration to be delivered under this Agreement. (c) If, prior subject only to the Principal ClosingPermitted Encumbrances, any lien, restriction, security interest or other encumbrance which constitutes leased temporary mobile antennas. The Deeds of record (each, an “Encumbrance”) is discovered with respect to any Operating Property Trust will create (i) that is not reflected in a valid, perfected first lien on the Existing Title Policy or New Title Commitment for such Operating Property applicable Properties, subject only to the Permitted Encumbrances, and (ii) for which a tenant perfected first priority security interests in and to, and perfected collateral assignments of, all personalty (other than personal property owned by Sprint) in connection therewith (including the Rents and the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. Except as set forth on SCHEDULE 4.5, to the actual Knowledge of the Borrowers, there are no proceedings in condemnation or eminent domain affecting any of the Properties and none is responsible under threatened. Subject to the terms of the lease Sprint Acquisition Documents no Person has any option or other binding obligation of the tenant right to the related Property Owner, notwithstanding the existence of such Encumbrance, the Operating Property will be included in the transactions contemplated by this Agreement without any delay in the Principal Closing, adjustment in the Consideration to be delivered pursuant to this Agreement or liability or claim post-Closing under the indemnification provisions set forth in Article VIII, provided that the tenant still occupies purchase all or any portion of the premises covered any interest owned by the lease on the Principal Closing Date. If the tenant does not occupy the premises on the Principal Closing Date, the value of the Consideration to be delivered to the BCR Entities and BCR Individuals related to such Property Owner will be decreased by the product of (A) the BCR Transferred Interests in the Operating Property (expressed as a decimal to four (4) decimal places) as indicated on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties) and (B) the amount of the Encumbrance, if the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary, and the value of the Class B Common Units to be delivered to the FCE Entities related to such Property Owner will be decreased by the product of (A) the FCE Contributed Interests in the Operating Property (expressed as a decimal to four (4) decimal places) as indicated on Schedule P-6C (FCE Contributed Interests in Operating Properties) and (B) the amount of the Encumbrance, if the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary. For purposes of this Section 3.1(c), the amount by which a non-monetary Encumbrance diminishes the value of an Operating Property will be determined by an arbitrator in accordance with the arbitration process set forth in Section 2.3(e). In no case will the reduction in the value of the Consideration payable to the BCR Entities and/or BCR Individuals, on the one hand, or the FCE Entities, on the other hand, with respect to any specific Operating Property exceed the aggregate value of the BCR Transferred Interests or FCE Contributed Interests (as applicable) related to such Property as set forth on Schedules P-6A (BCR Contributed Interests in Operating Properties), P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties). Any reduction in Consideration payable to the BCR Entities and/or BCR Individuals pursuant to this Section 3.1(c) will be allocated between Consideration and BCR Units on a pro rata basis relative to the amount of cash and BCR Units initially scheduled to be delivered to the BCR Entities Borrowers with respect to the relevant Operating PropertyProperties. IfExcept to the extent affirmative coverage will be provided under the Title Policies, after there are no mechanic's, materialman's or other similar liens or claims which have been filed for work, labor or materials affecting the Principal Closing DateProperties which are or will be liens prior to, or equal or coordinate with, the Encumbrance is removed other than at the expense lien of the relevant Property Ownerapplicable Deed of Trust the effect of which is reasonably likely to have a Material Adverse Effect. The Permitted Encumbrances, Master III or other relevant entity will deliver the cash Consideration and/or issue the BCR Units to the BCR Entities and/or BCR Individuals (as applicable) and/or issue Class B Initial Common Units to the FCE Entities not delivered or issued at the Principal Closing pursuant to this Section 3.1(c), and Master III will pay the Class A Distribution Preference and the Class B Distribution Amount (as defined in the Master III Operating Agreement) that would have been payable with respect to any such Units in accordance aggregate, do not materially interfere with the terms benefits of the Master III Operating Agreement if such Units had been issued on security intended to be provided by the Principal Closing Date. With respect to any payments Deeds of cash consideration by Master III in connection with Trust and this Section 3.1(c)Loan Agreement, Forest City will contribute to Master III an amount of cash, payable by wire transfer of immediately available funds to a bank account maintained by Master III, sufficient to pay such cash consideration to the BCR Entities materially and BCR Individuals pursuant to this Section 3.1(c). (d) If, prior to the Principal Closing, the relevant BCR Entity breaches the covenant contained in Section 4.4(c) or any Encumbrance (other than an Encumbrance subject to Section 3.1(c)) is discovered with respect to such Operating Property that is not reflected in the Existing Title Policy or New Title Commitment for such Operating Property, adversely affect the value of any of the Consideration to be delivered to the BCR Entities and/or BCR Individuals related to such Operating Property will be decreased by the product of (A) the BCR Transferred Interests in the Operating Property (expressed Mortgaged Properties taken as a decimal to four (4) decimal places) as indicated on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties) and (B) whole, impair the amount use or operations of the Encumbrance, if Mortgaged Properties or impair the Encumbrance is monetary, or the amount by which the Encumbrance diminishes the value of the Operating Property (as set forth on Schedule P-6A (BCR Contributed Interests in Operating Properties), Schedule P-6B (BCR Sold Interests in Operating Properties) and P-6C (FCE Contributed Interests in Operating Properties)), if the Encumbrance is not monetary. If, after the Principal Closing Date, such Encumbrance is removed other than at the expense of the relevant Property Owner, Master III or other relevant entity will deliver the cash Consideration and/or issue the BCR Units to the BCR Entities and/or BCR Individuals (as applicable) not delivered or issued at the Principal Closing pursuant to this Section 3.1(d), and Master III will pay the Class A Distribution Preference that would have been payable with respect to any such BCR Units in accordance with the terms of the Master III Operating Agreement if such BCR Units had been issued on the Principal Closing Date. With respect to any payments of cash consideration by Master III in connection with this Section 3.1(d), Forest City will contribute to Master III an amount of cash, payable by wire transfer of immediately available funds to a bank account maintained by Master III, sufficient Borrowers' ability to pay such cash consideration to the BCR Entities and BCR Individuals pursuant to this Section 3.1(d). In no case will the reduction their respective obligations in the value of the Consideration payable to the BCR Entities and/or BCR Individuals with respect to any specific Operating Property exceed the aggregate value of the BCR Transferred Interests related to such Operating Property as set forth on Schedules P-6A (BCR Contributed Interests in Operating Properties) and P-6B (BCR Sold Interests in Operating Properties). Any reduction in Consideration payable to the BCR Entities and/or BCR Individuals pursuant to this Section 3.1(d) will be allocated between Consideration and BCR Units on a pro rata basis relative to the amount of cash and BCR Units initially scheduled to be delivered to the BCR Entities with respect to the relevant Operating Propertytimely manner. (e) Forest City acknowledges that it will not be entitled to exclude any Operating Property from the Principal Closing because of the discovery of any Encumbrances not reflected in an Existing Title Policy or New Title Commitment, but that its remedies for the discovery of any Encumbrances not reflected in an Existing Title Policy or New Title Commitment will be limited as expressly set forth in this Section 3.1. (f) Notwithstanding anything in this Section 3.1 to the contrary, the BCR Entities will not be responsible (in any way) for any Encumbrances caused by FCEI, the FCE Entities or any of their affiliates or by the Outside Investors with Interests related to the Operating Property known as Queenswood Apartments.