Common use of Retained Property Clause in Contracts

Retained Property. (a) The parties confirm that the Retained Property will not be conveyed by Transferor to Empire and that Transferor shall have the exclusive right to develop, operate, maintain, lease or transfer the Retained Property or any portion thereof. In addition, the parties confirm that (x) the Monster and International golf courses themselves, plus the property within a 100 foot setback line from such golf courses (and such additional land which may be required by applicable law), are intended to be (and will be) conveyed by Transferor to Empire at the Closing, and (y) certain unsubdivided property outside of such setback area (the "Additional Property") will be conveyed by Transferor to Empire at Closing, but such Additional Property is intended by the parties to be retained and used by Transferor in connection with the Retained Property. Subsequent to the Closing, Empire will, (i) at Empire's cost as provided above, exercise the lessee's purchase option under the ground lease for the Monster golf course, and (ii) at Transferor's cost, cause the Additional Property to be subdivided and conveyed back to Transferor (for no additional consideration), which conveyance by Empire shall be free and clear of all liens and encumbrances other than those applicable to the Additional Property at the time of its conveyance to Empire and those imposed in connection with the subdivision and which may arise by reason of circumstances or events occurring prior to the transfer back of the Additional Property by Empire to Transferor. Empire will promptly and diligently take all commercially reasonable actions necessary (or that may be reasonably requested by Transferor) in connection with such subdivision and transfer, provided that if such subdivision shall not be completed within a reasonable time period after the Closing, then Empire and Transferor shall promptly enter into commercially reasonable and customary agreements and arrangements (whether through a ground lease or otherwise), at no profit or loss to Empire, to permit Transferor to develop and/or use the Additional Property in the same manner as if Transferor owned fee title to such Additional Property. The Additional Property shall in no event include the clubhouse and maintenance facilities for the golf courses. (b) Notwithstanding anything to the contrary herein, Empire shall have the option, upon written notice given to Transferor given not later than sixty (60) days prior to the Closing, to elect not to purchase the Concord Resort and Golf Club at Closing in connection with this transaction, and if Empire exercises such option in a timely manner, (i) the Concord Resort and Golf Club will not be conveyed to Empire at Closing but will be retained by Transferor, (ii) the term "Resort Properties", as used herein, will not include the Concord Resort and Golf Club, (iii) the debt and other obligations of Transferor to be assumed by Empire in connection with this transaction will be reduced to approximately $17.5 million (after deduction of the approximately $7.5 million lessee purchase option price under the Monster golf course ground lease and approximately $5 million of debt encumbering the golf courses), (iv) the parties will enter into a mutually acceptable license agreement providing for the non-exclusive use of the Concord Resort and Golf Club by guests of Empire's hotels and casinos, and providing for the sharing of capital, operating and maintenance costs for the Concord Resort and Golf Club by Empire and Transferor in proportion to the annual number of rounds of golf attributable to hotel/casino guests and residents of the Retained Property, and (v) the provisions of Section 3(a) of this Agreement regarding the subdivision and reconveyance of the Additional Property shall be terminated and shall be of no force or effect.

Retained Property. (a) The parties confirm Notwithstanding anything contained in this Agreement to the contrary, it is expressly acknowledged by BPP and the Operating Partnership that the Retained Property will not be conveyed by Transferor to Empire and that Transferor shall have the exclusive right to develop, operate, maintain, lease or transfer the Retained Property or any portion thereof. In addition, the parties confirm that (x) the Monster and International golf courses themselves, plus the property within a 100 foot setback line from such golf courses (and such additional land which may be required by applicable law), are intended to be (and will be) conveyed by Transferor to Empire at the Closing, and (y) certain unsubdivided property outside of such setback area following properties (the "Additional PropertyRetained Properties") will shall be conveyed by Transferor to Empire at Closing, but such Additional Property is intended by excluded from the parties to be retained and used by Transferor in connection with the Retained Property. Subsequent to the Closing, Empire will, conveyance of Properties described herein: (i) 133,744 square feet of land located at EmpireRalph's cost Center, Redondo Beach, California, as provided above, exercise the lessee's purchase option under the ground lease for the Monster golf courseshown on Exhibit EE-1, and (ii) the ▇▇▇▇▇▇▇'▇ pad site located at Transferor's costWestminister Center, cause Westminister, California as shown on Exhibit EE-2. In the Additional Property event a formal subdivision of the Retained Properties is not completed by Closing, the Contributors and the Operating Partnership shall apportion the real estate taxes between the Retained Properties and the balance of each of such shopping centers being conveyed pursuant to be subdivided this Agreement. The Contributors shall use best efforts to complete such subdivision as promptly as practicable at Contributors' sole cost and conveyed back expense, and the Operating Partnership agrees to Transferor (for no additional consideration), which conveyance by Empire shall be free and clear of all liens and encumbrances other than those applicable to cooperate with the Additional Property at the time of its conveyance to Empire and those imposed Contributors in connection with completing the subdivision, including without limitation, executing and delivering confirmatory deeds and municipal applications for the formal subdivision of the Retained Properties. Until such time as the subdivision of the Retained Properties is finalized, the Operating Partnership shall act as the Contributor's nominee and which may arise by reason any conveyance of circumstances or events occurring prior the Retained Properties to the transfer back Contributors shall be for no consideration other than reimbursement of any reasonable out-of-pocket expenses incurred by the Additional Property by Empire to Transferor. Empire will promptly and diligently take all commercially reasonable actions necessary (or that may be reasonably requested by Transferor) Operating Partnership in connection with such subdivision and transfer, provided that if such subdivision shall conveyance. If either of the Retained Properties cannot be completed legally subdivided within a reasonable time period after the 18 months of Closing, then Empire and Transferor shall promptly enter into commercially reasonable and customary agreements and arrangements (whether through a the Operating Partnership agrees to ground lease or otherwisethe Retained Properties, subject only to encumbrances existing as of the Closing Date (other than the Mortgage Debt), at no profit or loss to Empire, the Applicable Contributor for nominal consideration (i.e. $1 per year) on a form of ground lease reasonably acceptable to permit Transferor to develop and/or use the Additional Property in the same manner as if Transferor owned fee title to such Additional PropertyContributors. The Additional Property shall in no event include Contributors expressly acknowledge and agree that the clubhouse and maintenance facilities for the golf courses. (b) Notwithstanding anything to the contrary herein, Empire Operating Partnership shall have the optionright to encumber the Retained Properties at or following the Closing with secured financing encumbering the respective shopping center of which the Retained Property forms a part; PROVIDED, upon written notice given HOWEVER, the Operating Partnership shall have the express right to Transferor given not later than sixty (60) days prior to release such Retained Property without the Closing, to elect not to purchase the Concord Resort and Golf Club at Closing in connection with this transaction, and if Empire exercises such option in requirement of repaying a timely manner, (i) the Concord Resort and Golf Club will not be conveyed to Empire at Closing but will be retained by Transferor, (ii) the term "Resort Properties", as used herein, will not include the Concord Resort and Golf Club, (iii) portion of the debt and other obligations notwithstanding the occurrence of Transferor to be assumed by Empire a default on the secured loan in connection with this transaction will be reduced to approximately $17.5 million (after deduction of the approximately $7.5 million lessee purchase option price under the Monster golf course ground lease and approximately $5 million of debt encumbering the golf courses), (iv) the parties will enter into a mutually acceptable license agreement providing for the non-exclusive use of the Concord Resort and Golf Club by guests of Empire's hotels and casinos, and providing for the sharing of capital, operating and maintenance costs for the Concord Resort and Golf Club by Empire and Transferor in proportion to the annual number of rounds of golf attributable to hotel/casino guests and residents of the Retained Property, and (v) the provisions of Section 3(a) of this Agreement regarding the subdivision and reconveyance of the Additional Property shall be terminated and shall be of no force or effectquestion.