Exhibit 10.71


 


MASTER
AGREEMENT REGARDING LEASES


 


THIS MASTER AGREEMENT REGARDING LEASES (this “Master
Agreement”) is made and entered into as of September 22, 2004, by and
between WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
(herein called “Wachovia N.A.”), and FIRST STATES INVESTORS 3300, LLC, a Delaware limited liability
company (herein called “Master Landlord Named Herein”).


 


B A C K G R O U N D


 


A.                                   On May 10, 2004, Wachovia, as
seller, and Master Landlord, as purchaser, entered into a certain Agreement of
Sale and Purchase, dated as of May 10, 2004, setting forth a
sale-leaseback transaction involving a portfolio of properties (each, a “Portfolio
Property”, and, collectively, the “Portfolio Properties”),
consisting of (i) the properties listed on Exhibit A hereto
(each, a “Group A Property”, and, collectively, the “Group A
Properties”), (ii) the properties listed on Exhibit B
hereto (each, a “Group B Property”, and, collectively, the “Group B
Properties”), and (iii) certain other properties that are not subject
to leases with Master Landlord; such Agreement of Sale and Purchase has
heretofore been amended by amendments dated June 2, 2004, August 16,
2004 and September 22, 2004 (such Agreement of Sale and Purchase, as so
amended, being herein called the “Purchase Agreement”).  FSG is the owner of one hundred percent
(100%) of the membership interests in First States Investors 3300 Holdings,
LLC, which is the owner of one hundred percent (100%) of the membership
interests in Master Landlord Named Herein. 
Accordingly, Master Landlord Named Herein is a Wholly-Owned Subsidiary
of FSG.


 


B.                                     As of the date hereof, the closing
under the Purchase Agreement has occurred, and pursuant thereto:


 


(1)                                  Wachovia has conveyed to Master Landlord, all of its
ownership interest in all of the Group A Properties and the Group B  Properties; and


 


(2)                                  Master Landlord, as landlord, and Wachovia, as
tenant, have entered into 132 lease agreements, each of which is dated as of
the date hereof, and each of which demises certain premises (as more
particularly described in such Lease) within (i) one of the Group A
Properties (each, a “Group A Lease” and collectively, the “Group A
Leases”); or (ii) one of  the
Group B Properties  (each, a “Group
B Lease” and collectively,  the
“Group B Leases”).


 


As used herein, (i) the term “Lease” shall mean any Group A
Lease or Group B Lease, and the term “Leases” shall mean, collectively,
the Group A Leases and the Group B Leases, and (ii) the term “Lease
Property” shall mean any Group A Property or  Group B Property, and the term “Lease Properties”
shall mean, collectively, the Group A Properties and the Group B Properties.


 


C.                                     This Master Agreement is also being
executed pursuant to the Purchase Agreement at the closing thereunder. The purpose
hereof is to set forth additional covenants and agreements with respect to the
Leases between Master Landlord (as landlord under the Group A Leases and the
Group B Leases), on the one hand, and Wachovia, on the other. Generally, it is 


 

















 


the
intention of the parties to set forth such additional covenants and agreements
in this Master Agreement, as opposed to setting forth the same in each of the
Leases, due to (i) the application thereof to more than a single Lease
Property, and/or (ii) the fact that the same are not intended to apply to
any third party (i.e.,
unaffiliated) successors to the Master Landlord and/or Tenant under the Leases,
except as provided in this Master Agreement; but this sentence is intended as
explanatory and shall not be deemed to limit the express provisions hereof.


 


D.                                    Without limiting the generality of
the foregoing, it is intended, as more particularly provided herein, that this
Master Agreement be integrated with, and constitute a part of, each Integrated
Lease. In that regard, certain provisions of each Lease (by way of example
only, Article XI of each Lease setting forth Wachovia’s Termination
Rights) were written to fully reflect the terms and conditions that apply under
such Lease from and after the point, if any, that it becomes a Non-Integrated
Lease, but only partially reflect the terms and conditions that apply under
such Lease while it remains an Integrated Lease; it being intended that (i) for
so long as each Lease shall remain an Integrated Lease, it shall be read
together with this Master Agreement (as an indispensable part thereof) in
determining the rights of the Landlord and the Tenant under the Lease (and
that, in the event of any conflict between the terms and conditions of this
Master Agreement and the terms and conditions of the Lease, the terms and
conditions of this Master Agreement shall control and apply in all respects, to
the extent herein expressed), and (ii) from and after the point, if any,
that it becomes a Non-Integrated Lease, it shall be read independent of this
Master Agreement (which shall no longer be a part thereof) in determining the
rights of the Landlord and the Tenant under the Lease, provided, that this
clause (ii) shall not be deemed to limit, in any way, the rights and/or
obligations of any party to this Master Agreement under this Master Agreement
(including the obligations of Wachovia to pay any Excess Termination Rights
Payments pursuant to Section 3.4 hereof).


 


E.                                      Without limiting the generality of
the foregoing, it is further intended, that with respect to any state or
federal bankruptcy, reorganization or insolvency law, including, without
limitation, the United States Bankruptcy Code (Title 11, U.S.C.A) and the
Federal Deposit Insurance Act (Title 12, U.S.C.A, Chapter 16), or other similar
federal or state law, no party hereto shall have the right to reject or
disaffirm this Master Agreement or its obligations hereunder separately from
its obligations under the Leases for which the provisions of this Master
Agreement are incorporated; and this Master Agreement may not be terminated
without the express written consent of Wachovia, the Designated Portfolio
Lender and Master Landlord, provided, that
the foregoing shall not be deemed to limit, in any way, the rights and/or
obligations of any party to this Master Agreement under this Master Agreement.


 


F.                                      The foregoing Recitals are intended to be an integral
and operative part of this Master Agreement.


 


NOW, THEREFORE, for
and in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration in hand paid by each party to the other, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:


 


1.                                       Defined
Terms.  Capitalized terms used, but
not defined, herein shall have the meanings given to such terms in the Leases
(and the provisions of last paragraph of Section 


 


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1.1(b) of
the Leases shall likewise be applicable herein). As used in this Master
Agreement, the following additional terms shall have the respective meanings
indicated below, and such meanings are incorporated in each such provision
where used as if fully set forth therein:


 


“Acceleration Rescission Notice” shall
have the meaning ascribed thereto in Section 13 hereof.


 


“Aggregate Termination Rights Area”,
at any time, shall mean the sum of
(i) the Type I Termination Rights Area at such time, plus (ii) the Type II Termination
Rights Area at such time,  plus (iii) the Type III Termination
Rights Area at such time, plus (iv) the
Type IV Termination Rights Area at such time.


 


“Available Termination Rights Area”,
at any time, shall mean (i) the Aggregate Termination Rights Area at such
time, reduced  by (ii) the aggregate amount of the Exercise
Termination Area as to all prior exercises of Wachovia’s Termination Rights
under any Lease (provided, that
the amount in this clause (ii) shall not include, i.e., shall be reduced by, the amount of
any Excess Exercise Termination Area as to which Tenant shall have made an
Excess Termination Rights Payment).


 


“Base Leased Premises”, under any
Lease, at any time, shall mean all the Leased Premises demised under such Lease
at such time (including all Coterminous Former Release Space and Coterminous
Expansion Space), but specifically excluding
any Short-Term Additional Space.


 


“Depositary” shall mean an entity
selected by Wachovia that is (1) a bank, savings and loan association,
trust company, insurance company or other entity subject to supervision and
regulation by the banking or insurance department of any of the United States
of America, the Board of Governors of the Federal Reserve System, the
Comptroller of the Currency, the Federal Deposit Insurance Corporation or the
Federal Savings and Loan Insurance Corporation (or any successor to any thereof
hereafter exercising similar functions), and (2) in the business of acting
as a depositary for, and with respect to, escrowed funds, provided that in no
event shall the Depositary be Wachovia or an Affiliate of Wachovia.


 


“Designated Portfolio Lender” shall
have the meaning ascribed thereto in Section 13 hereof.


 


“Designated Mezzanine Lender” shall
have the meaning ascribed thereto in Section 14.1 hereof.


 


“DML Designation Notice” shall have
the meaning ascribed thereto in Section 14.1 hereof.


 


“DML Nominee”, of a Designated
Mezzanine Lender, shall mean a person that acts solely for the benefit of such
Designated Mezzanine Lender as to the holding of all of the membership
interests in Master Landlord (or in any person owning, directly or indirectly,
all the ownership interest in Master Landlord).


 


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“DML Transferee” shall mean any person
that shall succeed to the interest of Designated Mezzanine Lender (or its
Wholly-Owned Subsidiary) in all of the membership interests in Master Landlord
(or in any person owning, directly or indirectly, all the ownership interest in
Master Landlord).


 


“DML Substitution Notice” shall have
the meaning ascribed thereto in Section 14.1 hereof.


 


“DPL Acceleration Notice”  shall have the meaning ascribed thereto in Section 13
hereof.


 


“DPL Nominee”, of a Designated
Portfolio Lender, shall mean a person that acts solely for the benefit of such
Designated Portfolio Lender as to the holding of any Landlord’s Estate or the
exercise of the rights of such Designated Portfolio Lender under Section 13.2(a) hereof.


 


“DPL Substitution Notice” shall have
the meaning ascribed thereto in Section 13 hereof.


 


“Enforcement Completion Date” shall
mean, in any case that the Designated Portfolio Lender shall deliver a DPL
Acceleration Notice (and not subsequently serve an Acceleration Rescission
Notice), the first date after the delivery of the DPL Acceleration Notice that,
with respect to each of the Lease Properties on which a mortgage lien was
granted to such Designated Portfolio Lender, either (i) such mortgage lien
shall have been satisfied, discharged or released by the Designated Portfolio
Lender, or (ii) the Landlord’s Estate in the Lease affecting such Lease
Property shall have been transferred to the Designated Portfolio Lender or its
DPL Nominee.


 


“Excess Termination Rights Payment”,
with respect to any exercise of Wachovia’s Termination Rights under a
Non-Integrated Lease at a time when the Available Termination Rights Area is
less than the Exercise Termination Area as to such exercise, shall mean an
amount equal to the net present value of the Annual Basic Rent that would have
been payable for the balance of the Initial Term with respect to the excess of (i) the
Exercise Termination Area as to such exercise, over (ii) the then
Available Termination Rights Area (herein called the “Excess Exercise
Termination Area”), had such Lease not been terminated as to such Excess
Exercise Termination Area (which net present value shall be determined as of
the day immediately following the Early Termination Date, using a discount rate
equal to the Prime Rate).


 


“Exercise Termination Area”, as to any
exercise of Wachovia’s Termination Rights under any Lease, shall mean either (i) the
Net Rentable Area of the Leased Premises under such Lease (in any case that
Wachovia’s Termination Rights are being exercised as to the entirety of such
Leased Premises), or (ii) the Net Rentable Area of the Vacate Space with
respect to such exercise (in any other case).


 


“Integrated Lease” shall mean any
Lease, other than a Non-Integrated Lease. On the date hereof, all of the Leases
are Integrated Leases.


 


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“Integrated Wachovia Lease” shall mean
any Integrated Lease under which the Tenant is a Wachovia Party.


 


“Master Landlord” shall mean (i) Master
Landlord Named Herein, (ii) the person that shall succeed to the interest
of Master Landlord hereunder upon the Enforcement Completion Date pursuant to Section 13.3
hereof, or (iii) following such a succession under Section 13.3
hereof, any person that shall thereafter acquire the interest of Master
Landlord hereunder pursuant to an assignment permitted under Section 13.4 hereof.


 


“Mezzanine Lender” shall mean a lender
holding a Mezzanine Loan.


 


“Mezzanine Loan” shall mean a loan
principally secured (as to the repayment of the indebtedness and any interest
thereon) by a pledge of 100% of the membership interests in Master Landlord,
but not secured by (x) a collateral assignment of the interest of the
Master Landlord under the Master Agreement, or (y) in whole or in part, a
mortgage lien which covers any of the Lease Properties.  In addition, in the case of the Mezzanine
Loan made by the initial Designated Mezzanine Lender, such loan, at the time of
its making (but not otherwise) shall be in an amount that, when added together
with the original principal amount of the Portfolio Loan made by the initial
Designated Portfolio Lender, does not exceed 65% of the purchase price paid by
Master Landlord to Wachovia for all of the Portfolio Properties pursuant to the
Purchase Agreement.


 


“Non-Integration Event”, with respect
to any specific Lease, shall mean any of the following events with respect to
such Lease:


 


(a)                                  during any period
when there is no Designated Portfolio Lender, any Third Party Transfer Event
with respect to such Lease; or


 


(b)                                 during any period when
there is a Designated Portfolio Lender, but such Designated Portfolio Lender
does not hold a mortgage lien upon the Landlord’s Estate under such Lease,
either of the following events: (1) any Third Party Transfer Event with
respect to such Lease; or (2) the delivery of a DPL Acceleration Notice by
such Designated Portfolio Lender; or


 


(c)                                  during any period
when there is a Designated Portfolio Lender, and such Designated Portfolio
Lender holds a mortgage lien upon the Landlord’s Estate under such Lease, any
one of the following events:


 


(i)                                     any
Third Party Transfer Event with respect to such Lease, together
with the release by the Designated Portfolio Lender of the mortgage
lien held by the Designated Portfolio Lender upon the Landlord’s Estate under
such Lease; or


 


(ii)                                  any
Third Party Transfer Event with respect to such Lease effectuated (1) upon
completion of a foreclosure auction, or (2) with the written consent of
the Designated Portfolio Lender (whether or not the Designated Portfolio Lender
releases its mortgage lien upon the Landlord’s Estate under such Lease); or


 


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(iii)                               the
failure of the Designated Portfolio Lender to deliver a DPL Acceleration Notice
within one hundred eighty (180) days after the Designated Property Lender
receives written notice of a Third Party Transfer Event with respect to such
Lease (whether or not the Designated Portfolio Lender releases its mortgage
lien upon the Landlord’s Estate under such Lease); or


 


(d)                                 upon the required
assignment that takes effect on the Enforcement Completion Date pursuant to Section 13.3,
the Landlord’s Estate under such Lease (at such time) not being held by the
assignee of the interest of Master Landlord hereunder (i.e.,
the new Master Landlord) or one or more of its Wholly-Owned Subsidiaries; or


 


(e)                                  upon a permitted assignment
of the interest of Master Landlord hereunder pursuant to Section 13.4, the
Landlord’s Estate under such Lease (at such time) not being held by the
assignee of the interest of Master Landlord hereunder (i.e.,
the new Master Landlord) or one or more of its Wholly-Owned Subsidiaries.


 


“Non-Integrated Lease” shall mean any
Lease with respect to which a Non-Integration Event has occurred.
Notwithstanding the foregoing, if (I) a Lease theretofore became a
Non-Integrated Lease solely by reason the occurrence of the Non-Integration
Event described in clause (b)(2) of the definition thereof, (II) subsequent
thereto, an Acceleration Rescission Notice is delivered by the Designated
Portfolio Lender, (III) no other intervening Non-Integration Event shall
have occurred with respect to such Lease, and (IV) upon the delivery of
the Acceleration Rescission Notice, the Landlord’s Estate in such Lease is held
by the Master Landlord or a Wholly-Owned Subsidiary of the Master Landlord,
then such Lease shall no longer be Non-Integrated Lease (i.e.,
it shall be reinstated as an Integrated Lease) unless and until another
Non-Integration Event shall occur.


 


“Portfolio Lender” shall mean a lender
holding a Portfolio Loan.


 


“Portfolio Loan” a loan secured (as to
the repayment of the indebtedness and any interest thereon) by (x) a
collateral assignment of the interest of the Master Landlord under the Master
Agreement, and (y) in whole or in part, a mortgage lien which covers (as
of the date of the origination of such loan only) either (A) in the case
of the Portfolio Loan made by the initial Designated Portfolio Lender on the
date hereof, substantially all of the Lease Properties on the date hereof, or (B) in
the case of any other Portfolio Loan, ten (10) or more of the Lease Properties
owned by Master Landlord or a Wholly-Owned Subsidiary of Master Landlord on the
date of the origination of such loan. In addition, in the case of the Portfolio
Loan made by the initial Designated Portfolio Lender on the date hereof only,
such loan, at the time of its making (but not otherwise), shall be in an amount
that, when added together with the original principal amount of the Mezzanine
Loan made by the initial Designated Mezzanine Lender, does not exceed 65% of
the purchase price paid by Master Landlord to Wachovia for all the Portfolio
Properties pursuant to the Purchase Agreement.


 


The term “mortgage lien” shall (for
all purposes hereof, including for purposes of the definition of “Enforcement
Completion Date”, “Non-Integration Event” and “Portfolio Loan”) mean any
mortgage lien that was granted by the Landlords under the pertinent Leases to
the Designated Portfolio Lender, as security for its Portfolio Loan, with the
intent that, at the 


 


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time of such
grant, such mortgage lien be the most senior mortgage lien (as amongst mortgage
liens) affecting the pertinent Lease Properties (it being acknowledged that any
other mortgage lien that is “insured over” or not excepted from coverage under
the lender’s title insurance policy or marked commitment relating to such loan
shall not be deemed to be senior to the lender’s mortgage lien for purposes of
this definition); provided, further, that, for purposes of this definition, a
mortgage lien shall be deemed “granted” (for all purposes) if at the time it is
purportedly granted, the lender is insured with respect under the lender’s
title insurance policy.


 


“Section 2 Lease”, with respect
to any Renewal Term, shall mean each and every Lease that, as of the commencement
of such Renewal Term, is an Integrated Wachovia Lease.


 


“Third Party Purchaser” shall mean any
person hereafter acquiring the Landlord’s Estate under a Lease that is not
either (i) Master Landlord or a Wholly-Owned Subsidiary of Master Landlord
or (ii) the Designated Portfolio Lender (or its Wholly-Owned Subsidiary)
or its DPL Nominee (or its Wholly Owned Subsidiary) (except that the provisions
of this clause (ii) shall be applicable only during a period commencing on
the delivery of a DPL Acceleration Notice and ending on the first to occur of (x) the
delivery of an Acceleration Rescission Notice and (y) the Enforcement
Completion Date).


 


“Third Party Transfer Event”, with
respect to any Lease, shall mean either (a) a conveyance or other transfer
of the Landlord’s Estate under such Lease to a Third Party Purchaser, or (b) a
transfer of any ownership interest in the Landlord under such Lease (or in any
person having a direct or indirect ownership in such Landlord) which results in
such Landlord no longer being either (i) Master Landlord or a Wholly-Owned
Subsidiary of Master Landlord or (ii) the Designated Portfolio Lender (or
its Wholly-Owned Subsidiary) or its DPL Nominee (or its Wholly Owned
Subsidiary) (except that the provisions of this clause (ii) shall be
applicable only during a period commencing on the delivery of a DPL
Acceleration Notice and ending on the first to occur of (x) the delivery
of an Acceleration Rescission Notice and (y) the Enforcement Completion
Date); it being further agreed that any
transaction (including any transfers of ownership interests in any entity)
which results in the Master Landlord Named Herein (while it is still Master
Landlord hereunder) no longer being a Wholly-Owned Subsidiary of FSG, the
Designated Mezzanine Lender or its DML Nominee or any DML Transferee, shall be
deemed Third Party Transfer Event as to all Leases. Notwithstanding anything to
the contrary contained in this Agreement, for all purposes hereof, any transfer
or other conveyance of all or a portion of the membership interests in Master
Landlord (or in any person having a direct or indirect ownership in such Master
Landlord) effected pursuant to a court proceeding (pursuant to federal
bankruptcy law, or any similar federal or state law) involving the bankruptcy,
insolvency or reorganization of FSG shall not be deemed a Third Party Transfer
Event.


 


“Type A Coterminous Former Release
Premises” shall have the meaning ascribed thereto in Section 7 hereof.


 


“Type B Coterminous Former Release
Premises” shall have the meaning ascribed thereto in Section 7 hereof.


 


“Type I Termination Rights Area”, at
any time, shall mean the following amounts of Net Rentable Area during the
following periods: (i) during the first three (3) Lease Years, a 


 


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Net Rentable
Area of zero RSF; (ii) during the period from the first day of the fourth
(4th)
Lease Year until the last day of the eighth (8th) Lease Year (both days inclusive), a Net
Rentable Area of 234,336 RSF; (iii) during the period from the first day
of the ninth (9th)
Lease Year until the last day of the thirteenth (13th) Lease Year (both days inclusive), a Net
Rentable Area of 468,672 RSF; and (iv) during the period from the first
day of the fourteenth (14th)
Lease Year until the last day of the Initial Term (both days inclusive), a Net
Rentable Area of 703,008 RSF.


 


“Type II Termination Rights Area”, at
any time, shall mean the aggregate of the following amounts of Net Rentable
Area: (i) for any and all Coterminous Expansion Space theretofore added to
the Leased Premises under any and all Leases pursuant to Article X
of any thereof during the first two (2) Lease Years (provided that, at the
time such Coterminous Expansion Space is added, the Tenant is a Wachovia Party),
the aggregate Net Rentable Area thereof; and (ii) for any and all
Coterminous Expansion Space theretofore added to the Leased Premises under any
and all Leases pursuant to Article X thereof following the
expiration of the second Lease Year (but prior to the expiration of the Initial
Term, and provided that, at the time such Coterminous Expansion Space is added,
the Tenant is a Wachovia Party), the product
of (x) the aggregate Net Rentable Area of such Coterminous
Expansion Space, multiplied by (y) a
fraction, the numerator of which is the number of whole months remaining in the
Initial Term of such Lease on the date on which such Coterminous Expansion
Space is added to the Leased Premises, and the denominator of which is two
hundred forty (240); provided, however, that the amount of Type II Termination
Area resulting from Coterminous Expansion Space added to the Leased Premises
under Group B Leases, when combined with (A) the amount of Type II
Termination Rights Area resulting from Coterminous Expansion Space added to the
Leased Premises under Group A Leases, but only if, and to the extent that, (I) such
Coterminous Expansion Space previously constituted Release Premises, (II) such
space (as Release Premises) was vacated by Wachovia during the Preliminary
Period, and (III) such space is added to the Leased Premises (as
Coterminous Expansion Space) within twelve (12) months after the date the same
was so vacated by Wachovia, and (B) the amount of Type III Termination
Area resulting from Type A Coterminous Former Release Premises theretofore
added to the Leased Premises under any and all Leases, shall not, in the
aggregate, exceed 468,672 RSF.


 


“Type III Termination Rights Area”, at
any time, shall mean the aggregate Net Rentable Area of all Type A Coterminous
Former Release Premises theretofore added to the Leased Premises under any and
all Leases pursuant to Section 1.7(d) thereof; provided,
however, that amount of Type III Termination Area, when combined with the
amount of Type II Termination Area resulting from Coterminous Expansion Space
theretofore added to the Leased Premises under Group B Leases, shall not, in
the aggregate, exceed 468,672 RSF.


 


“Type IV Termination Rights Area”, at
any time, shall mean the following amounts of Net Rentable Area during the
following periods: (i) during the first three (3) Lease Years, a Net
Rentable Area of zero RSF; (ii) during the period from the first day of
the fourth (4th) Lease Year until the last day of the eighth (8th) Lease Year
(both days inclusive), a Net Rentable Area equal to 5% of aggregate Net
Rentable Area of all Type B Coterminous Former Release Premises theretofore
added to the Leased Premises under any and all Leases pursuant to Section 1.7(d) thereof;
(iii) during the period from the first day of the ninth (9th) Lease Year
until the last day of the thirteenth (13th) Lease Year (both days inclusive), a
Net Rentable Area of equal to 10% of aggregate Net Rentable Area of all Type B
Coterminous Former Release 


 


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Premises
theretofore added to the Leased Premises under any and all Leases pursuant to Section 1.7(d) thereof;
and (iv) during the period from the first day of the fourteenth (14th)
Lease Year until the last day of the Initial Term (both days inclusive), a Net
Rentable Area equal to 15% of aggregate Net Rentable Area of all Type B
Coterminous Former Release Premises theretofore added to the Leased Premises
under any and all Leases pursuant to Section 1.7(d) thereof.


 


“Wachovia” shall mean (i) Wachovia
Bank, N.A., or (ii) a person constituting an immediate or remote successor
to Wachovia Bank, N.A. by virtue of one or more mergers, consolidations and/or
transfers of all, or substantially all, the assets of Wachovia Bank, N.A. (or
another person described in this clause (ii)).


 


“Wachovia Party” shall mean Wachovia
or any Affiliate of Wachovia.


 


“Wholly-Owned Subsidiary”, of any
party, shall mean a person that is such party’s Affiliate and, in which, such
party owns (directly or indirectly) one hundred percent (100%) of the equity (i.e., the voting stock, general or other
partnership interests, membership interests and/or other equity or beneficial
interests).


 


2.                                       Limitation
on Annual Basic Rent Factor for Renewal Terms under Section 2 Leases.


 


2.1                       As expressed in Section 1.4(c)(1) of
the Leases, the Annual Basic Rent Factor under each Lease for each Renewal Term
shall equal the Fair Market Rental Value Per RSF of the Base Leased Premises
under such Lease  for such Renewal
Term as determined by the parties or, in the absence of their agreement,
determined by appraisal as expressed in the Leases, subject, on a Lease by
Lease basis, to the limitations expressed in Section 1.4(c)(1) thereof.


 


2.2                       Notwithstanding any contrary
provision in any of the Leases, it is the intention of the parties that the
limitations on the Annual Basic Rent Factor during Renewal Terms under Section 2
Leases shall be calculated on an aggregate basis for all Section 2 Leases
(across all the Lease Properties encumbered thereby). Accordingly, the Annual
Basic Rent Factor for any Renewal Term under any Section 2 Lease shall be equal to (I) the Fair Market Rental
Value Per RSF of the Base Leased Premises for such Renewal Term under such Section 2
Lease, minus (II) the
Apportioned Reduction Amount Per RSF (if any) for such Renewal Term with
respect to such Section 2 Lease.


 


2.3                       For purposes of this Section 2,
the following terms shall have the following meanings:


 


(a)                                  “Prior BLP Annual Basic Rent”,
with respect to any Renewal Term under any Section 2 Lease, shall mean the
product of (i) the Annual
Basic Rent Factor in effect immediately prior to such Renewal Term under such Section 2
Lease, multiplied by (ii) the
Net Rentable Area of the Base Leased Premises for such Renewal Term under such Section 2
Lease.


 


(b)                                 “Prior BLP Aggregate Annual Basic
Rent”, with respect to any Renewal Term, shall mean the sum of all the
Prior BLP Annual Basic Rents with respect to such Renewal Term under all Section 2
Leases.


 


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(c)                                  “Pre-Reduction BLP Annual Basic
Rent”, for any Renewal Term under any Section 2 Lease, shall mean the product of (i) the Fair Market Rental
Value Per RSF of the Base Leased Premises for such Renewal Term under such Section 2
Lease, multiplied by (ii) the
Net Rentable Area of the Base Leased Premises for such Renewal Term under such Section 2
Lease.


 


(d)                                 “Pre-Reduction Aggregate BLP
Annual Basic Rent”, for any Renewal Term, shall mean the sum of all the
Pre-Reduction BLP Annual Basic Rents for such Renewal Term under all Section 2
Leases.


 


(e)                                  “Aggregate Reduction Amount”
shall mean (I) for any first Renewal Term, the excess (if any) of (a) the Pre-Reduction Aggregate BLP
Annual Basic Rent for such Renewal Term, over
(b) 110% of the Prior BLP Aggregate Annual Basic Rent with respect to any
Renewal Term, and (II) for each subsequent Renewal Term, the excess (if any) of (a) the
Pre-Reduction Aggregate BLP Annual Basic Rent for such Renewal Term, over (b) 105% of the Prior BLP
Aggregate Annual Basic Rent with respect to any Renewal Term.


 


(f)                                    “Apportioned Reduction Amount”,
for any Renewal Term with respect to any Section 2 Lease, shall mean the product of (I) the Aggregate
Reduction Amount for such Renewal Term, multiplied
by (II) a fraction, (x) the numerator of which is Pre-Reduction BLP Annual Basic Rent
for such Renewal Term under such Section 2 Lease, and (y) the denominator of which is the Pre-Reduction
Aggregate BLP Annual Basic Rent for such Renewal Term.


 


(g)                                 “Apportioned Reduction Amount Per
RSF”, for any Renewal Term with respect to any Section 2 Lease, shall
mean (i) the Apportioned Reduction Amount for such Renewal Term with
respect to such Section 2 Lease, divided
by (ii) the Net Rentable Area of the Base Leased Premises for
such Renewal Term.


 


2.4                       An illustration of how the Annual
Basic Rent Factor is determined during a Renewal Term with respect to the Section 2
Leases is attached as Exhibit D hereto.


 


3.                                       Limitations
on Wachovia’s Termination Rights.


 


3.1                       As expressed in Article XI
of the Leases, Wachovia may, from time to time during the Initial Term (but not
during any Renewal Term), exercise Wachovia’s Termination Rights to terminate a
Lease with respect to all or any portion(s) of the then Base  Leased Premises under any Lease, all in the
manner and subject to the terms and conditions set forth in such Article XI.


 


3.2                       Notwithstanding the foregoing, it is
not the intention of the parties hereto that Wachovia’s Termination Rights be
unconditional as between Master Landlord (and, if applicable, any Landlord), on
the one hand, and Wachovia, on the other; more specifically, (i) Wachovia’s
exercise of Wachovia’s Termination Rights under any Integrated Lease, shall be
subject to the provisions of Section 3.3 below, and (ii) Wachovia’s
exercise of Wachovia’s Termination Rights under any Non-Integrated Lease, shall
be subject to the provisions of Section 3.4 below.


 


10














 


3.3                       With respect to all Integrated
Leases, Wachovia’s Termination Rights may be validly and effectively exercised
if, and only if, at the time of such exercise, the then Available Termination
Rights Area is equal to or greater than the Exercise Termination Area as to the
exercise of such Wachovia’s Termination Rights; and any purported exercise by
Wachovia of Wachovia’s Termination Rights under any Integrated Leases at a time
when the then Available Termination Rights Area is less than the purported
Exercise Termination Area as to the exercise of such Wachovia’s Termination
Rights shall be rendered void and of no force or effect (but the fact that such
purported exercise is rendered null and void shall not prevent any subsequent
exercise by Wachovia of Wachovia’s Termination Rights consistent with the
provisions hereof).


 


3.4                       With respect to all Non-Integrated
Leases, Wachovia’s Termination Rights may be validly and effectively exercised
even if, at the time of such exercise, the then Available Termination Rights
Area is less than the Exercise Termination Area as to the exercise of such
Wachovia’s Termination Rights (it being understood that neither Master
Landlord, any Landlord, nor any other party, shall have any right to object to
any exercise of Wachovia’s Termination Rights under any Non-Integrated Lease
under any circumstances); but, in such event, Wachovia shall (on or
prior to the Early Termination Date) pay the Excess Termination Rights Payment
with respect such exercise by Wachovia to (i) the Designated Portfolio
Lender, if there is a Designated Portfolio Lender, or (ii) the Master
Landlord, if there is no Designated Portfolio Lender; in each case, such
payment shall be sent to such party at the address provided to Wachovia
therefor (or, at the election of such party, to by wire transfer of immediately
available funds to an account designated by such party). In no event will the
obligation of Wachovia to pay Rent under a Non-Integrated Lease terminate until
the applicable Excess Termination Rights Payment required pursuant to this Section 3.4
is paid pursuant hereto; it being understood that
any payment made Wachovia to a Depositary (or a court of competent
jurisdiction) consistent with the provisions of Section 3.5 hereof shall
be deemed paid pursuant hereto.


 


3.5                       Notwithstanding anything to the
contrary contained herein, if, a bona fide good faith dispute(s) exists
with respect to either (A) the exercise of Wachovia’s Termination Rights
under any Integrated Lease as to some or all of the Leased Premises under such
Lease or (B) the payment of an Excess Termination Rights Payment with
respect to any Non-Integrated Lease (including with respect to the party
entitled to receive such payment), then, and in each such case, Wachovia shall
have the right (at its option), without waiving any other rights and remedies
that it may have under the circumstances, in lieu of paying the disputed rental
amounts or Excess Termination Rights Payment, to make payment thereof to a
Depositary (or, if Wachovia acting in good faith is not able to designate a
Depositary prior to the date that is ten (10) Business Days prior to the
due date of such payment, to a court of competent jurisdiction) as and when
such amounts are or would be due under such Lease or this Master Agreement.  Such Depositary (or, as the case may be, such
court of competent jurisdiction) shall hold such payments in escrow pending the
resolution of such dispute. Provided Wachovia timely pays all such disputed
amounts to a Depositary (or, as the case may be, a court of competent
jurisdiction) pursuant to this Section 3.5, Wachovia shall not be deemed
to be in default of the applicable Lease or this Master Agreement.  In the event such dispute is resolved in
favor of Wachovia, the amounts held by such Depositary (including interest
thereon, if any) (or, as the case may be, a court of competent jurisdiction)
shall be immediately released to Wachovia, and Master Landlord shall, within
one (1) Business Day following the issuance of such ruling, pay to
Wachovia an additional amount equal to the excess of (x) interest on the
amount paid to the 


 


11

















 


Depositary (or, as the case may be, a court
of competent jurisdiction) pursuant to this Section 3.5 at the Applicable
Rate from the date such amounts were paid to the Depositary (or, as the case
may be, a court of competent jurisdiction) until the date such funds were
returned to Wachovia, over (y) the interest (if any) earned on the amounts
paid to the Depositary and, as required hereby, returned therewith to Wachovia.
In the event such dispute is resolved against Wachovia, the amounts held by
such Depositary (including interest thereon, if any) (or, as the case may be, a
court of competent jurisdiction) shall be immediately released to the party
entitled to such funds, and Wachovia shall, within one (1) Business Day
following the issuance of such ruling, pay to such party an additional amount
equal to the excess of (xx) interest on the amount paid to the Depositary (or,
as the case may be, a court of competent jurisdiction) pursuant to this Section 3.5
at the Applicable Rate from the date such amounts were paid to the Depositary
(or, as the case may be, a court of competent jurisdiction) until the date such
funds were returned to such party, over (yy) the interest (if any) earned on
the amounts paid to the Depositary and, as required hereby, returned therewith
to such party.


 


4.                                       Certain
Notices under Non-Integrated Leases. With respect to all Non-Integrated
Leases, Wachovia agrees that (i) for so long as the Tenant under such
Non-Integrated Lease is a Wachovia Party, Wachovia agrees to notify Master
Landlord, in writing, promptly following (x) the addition of any
Coterminous Former Release Premises under such Lease pursuant to Section 1.7
thereof, and (y) the addition of any Coterminous Expansion Space under
such Lease, during the Initial Term thereof, pursuant to Article X
thereof, and (ii) whether or not the Tenant under such Non-Integrated
Lease is a Wachovia Party, Wachovia agrees to notify Master Landlord promptly
following Wachovia’s exercise of Wachovia’s Termination Rights under such Lease
pursuant to Article XI thereof.


 


5.                                       Determinations
of Available Termination Rights Area. Whenever there is a change (whether
an increase or decrease) in the Available Termination Rights Area, Master
Landlord shall, within thirty (30) days following the occurrence of (or, if
later, Master Landlord’s receipt of notice of) each applicable event, deliver
to Wachovia a written statement setting forth Master Landlord’s updated
determination of the Available Termination Rights Area, and the various
components thereof, and, in which event, Wachovia shall promptly advise Master
Landlord, in writing, if Wachovia disagrees with Master Landlord’s updated
determination of the Available Termination Rights Area. In addition, (i) from
time to time, upon not less than thirty (30) days written request from
Wachovia, Master Landlord shall deliver to Wachovia a written statement setting
forth Master Landlord’s then determination of the Available Termination Rights
Area, and the various components thereof, and, in which event, Wachovia shall
promptly advise Master Landlord, in writing, if Wachovia disagrees with Master
Landlord’s then determination of the Available Termination Rights Area, and (ii) from
time to time, upon not less than thirty (30) days written request from Master
Landlord, Wachovia shall deliver to Master Landlord a written statement setting
forth Wachovia’s then determination of the Available Termination Rights Area,
and the various components thereof, and, in which event, Master Landlord shall
promptly advise Wachovia, in writing, if Master Landlord disagrees with
Wachovia’s then determination of the Available Termination Rights Area.


 


6.                                       Restriction
on Transfers of Group A Properties. 
Notwithstanding anything to the contrary contained herein or in any of
the Leases, Master Landlord hereby covenants to 


 


12

















 


Wachovia that
it shall not effect any LL Transfer (other than an Exempt LL Transfer) under
such Group A Lease until after the expiration of the Preliminary Period.


 


7.                                       Designation
of Coterminous Former Release Premises. 
If any Coterminous Former Release Premises are added to the Leased
Premises under any Lease pursuant to Section 1.7 thereof, then
Tenant, within thirty (30) days after Release Premises Election Date, shall
deliver to Master Landlord a notice designating such Coterminous Former Release
Premises as either (i) Type A
Coterminous Former Release Premises (herein called “Type A
Coterminous Former Release Premises”), i.e., Coterminous Former
Release Premises that will give rise to Type III Termination Rights Area, or (ii) Type B Coterminous Former Release Premises
(herein called “Type B Coterminous Former Release Premises”), i.e.,
Coterminous Former Release Premises that will give rise to Type IV Termination
Rights Area and also be included in the determination of the Capitalization
Factor Occupancy Percentage (as defined in Exhibit E hereto).
Tenant may designate some portions of any Coterminous Former Release Premises
as Type A Coterminous Former Release Premises and other portions thereof as
Type B Coterminous Former Release Premises. If, as of the date that is thirty
(30) days after Release Premises Election Date, any Coterminous Former Release
Premises has not been designated by Tenant as either Type A Coterminous Former
Release Premises or Type B Coterminous Former Release Premises, then such
theretofore undesignated Coterminous Former Release Premises shall be deemed
designated as Type A Coterminous Former Release Premises.


 


8.                                       Final
Determination of Initial ABR Factor. 
If any Type B Coterminous Former Release Premises are added to the
Leased Premises under any Lease pursuant to Section 1.7 thereof,
then, effective as of the first day following the expiration of the Preliminary
Period (the “Re-Determination Effective Date”), the Initial ABR Factor
under all of the then Integrated Leases shall be changed in accordance with the
following:


 


(a)                                  First, a computation factor (herein
called the “Computation Factor”) shall be determined as the quotient of (i) the aggregate of all
Property Amounts for all Lease Properties, divided
by (ii) by the Net Rentable Area of all the Base Leased
Premises under all Leases. The term Property
Amount, for each Lease Property, shall have the meaning ascribed
thereto on Exhibit E hereto.


 


(b)                                 Second, the Computation Factor, as so
determined, shall be compared to the Initial ABR Factor initially applicable
under all the Leases (and determined, as of the Commencement Date, pursuant to
the Purchase Agreement), and (i) if the Computation Factor is higher than
such Initial ABR Factor (such a Computation Factor being herein called a “Higher
Computation Factor”, and the excess of such Computation Factor over such
Initial ABR Factor being herein called the “Positive Incremental Rate”),
then the Initial ABR Factor under each of the Integrated Leases shall be
changed pursuant to the provisions of Section 8(c) below, and (ii) if
the Computation Factor is lower than such Initial ABR Factor (such a
Computation Factor being herein called a “Lower Computation Factor”, and
the excess of such Initial ABR Factor over such Computation Factor being herein
called the “Negative Incremental Rate”), then the Initial ABR Factor
under each of the Integrated Leases shall be changed pursuant to the provisions
of Section 8(d) below. It is understood and agreed that the Initial
ABR Factor under the Non-Integrated Leases shall not be affected by any
determination under this Section 8.


 


13

















 


(c)                                  If the aforementioned determination
results in a Higher Computation Factor, then, effective as of the
Re-Determination Effective Date, the Initial ABR Factor under each of the
Integrated Leases shall be changed to be the sum  of (I) such
Higher Computation Factor, plus (II) a rate, per rentable square
foot, per annum, equal to the product of
(1) the Positive Incremental Rate, multiplied
by (2) a fraction, (x) the numerator of which is the Net
Rentable Area of all the Base Leased Premises under all the Non-Integrated
Leases, and (y) the denominator of which is the Net Rentable Area of all
the Base Leased Premises under all the Integrated Leases.


 


(d)                                 If the aforementioned
re-determination results in a Lower Computation Factor, then, effective as of
the Re-Determination Effective Date, the Initial ABR Factor under each of the
Integrated Leases shall be changed to be a rate, per rentable square foot, per
annum, equal to (I) such Lower Computation Factor, minus (II) a
rate, per rentable square foot, per annum, equal to the product of (1) the Negative
Incremental Rate, multiplied by (2) a
fraction, (x) the numerator of which is the Net Rentable Area of all the
Base Leased Premises under all the Non-Integrated Leases, and (y) the
denominator of which is the Net Rentable Area of all the Base Leased Premises
under all the Integrated Leases.


 


(e)                                  An illustration of the
re-determination of the Initial ABR Factor under the Integrated Leases pursuant
to this Section 8 is set forth in Exhibit F hereto.


 


9.                                       [Intentionally
Omitted].


 


10.                                 Tenant’s
Reimbursement Amount under Integrated Wachovia Leases.


 


10.1                 Pursuant to Section 5.7(b)(4) of
each Lease, Tenant, following the Landlord’s performance of Demising Work, may
be obligated to pay Landlord a sum on account thereof, which sum is defined in
each Lease as Tenant’s Reimbursement Amount.


 


10.2                 If, pursuant to Section 5.7(b)(4) of
any Integrated Wachovia Lease, Tenant is obligated to pay any Tenant’s
Reimbursement Amount, then, in addition to the Tenant’s payment options in
respect thereof that are set forth such Section 5.7(b)(4) of such
Integrated Lease, Wachovia (as, or on behalf of, such Tenant, as the case may
be) shall have the right to cause such Tenant’s Reimbursement Amount to be
financed by the Master Landlord pursuant to this Section 10.2, by
delivering a notice to such effect to Master Landlord on or prior to the date
on which the first installment of the Tenant’s Reimbursement Amount becomes
dues and payable; and, in any such case, (i) the Tenant shall be
completely relieved of the obligation to pay the same to the Landlord under
such Lease), and (ii) Wachovia, in lieu thereof, shall repay the Master
Landlord the amount thereof on an amortized basis over the balance of the
Initial Term of the Leases (regardless of whether the pertinent Integrated
Wachovia Lease under which such Tenant Reimbursement Amount initially arose
continues in effect for the entirety of such Initial Term), with an interest
factor using a rate equal to the Prime Rate (in effect as of the completion of
the pertinent Demising Work), in which event, Tenant shall pay such amount, as
so amortized, through equal monthly payments payable on the first day of each
month then remaining in Initial Term.


 


14














 


11.                                 Integration
of Master Agreement and Leases. This Master Agreement has been executed and
delivered by Wachovia, N.A. and Master Landlord contemporaneous with the
execution and delivery of each of the Leases. With respect to each Integrated
Lease, (i) this Master Agreement shall be deemed integrated into, and
shall form a material part of, such Lease as if such provisions were fully set
forth in each Integrated Lease; (ii) such Lease shall be deemed integrated
into, and shall form a material part of, this Master Agreement; and (iii) to
the extent any provisions of this Master Agreement are expressly referenced in
one or more provisions of any such Lease, such referenced provisions of this
Master Agreement shall be deemed incorporated into such provisions of such
Lease, as fully as if expressly set forth therein.


 


12.                                 Parties
to this Master Agreement.  This
Master Agreement is an agreement solely among (i) Wachovia, (ii) Master
Landlord and (iii) each Landlord under a Lease which, at the time in
question, is an Integrated Lease. Each Landlord under an Integrated Lease is a
party to this Master Agreement for purposes of binding such Landlord to the
terms and conditions set forth in this Master Agreement (and effectuating the
integration of this Master Agreement into such Integrated Lease, as more
particularly provided in Section 11 hereof); it being understood that in
no event shall any such Landlord have any rights hereunder separate and apart
from the rights of Master Landlord (which may be exercised only by Master
Landlord). Notwithstanding the foregoing, the Designated Portfolio Lender (even
prior to its delivery of a DPL Acceleration Notice) shall have the full right
and authority to enforce all of the rights granted to it (and shall have the
obligations imposed upon it) under Sections 3.4, 12, 13, 17, 18, 19 and 21 of
this Master Agreement . No interest of any party hereto shall be assigned (or
otherwise transferred), except as expressly permitted under either this Section 12
or Section 13 hereof. In that regard, it is agreed as follows:


 


(a)                                  This Master Agreement shall be
binding upon, and inure to the benefit of, Wachovia N.A. and any of its
successor(s) included within the definition of Wachovia hereunder. Upon
any change in the person constituting Wachovia hereunder, the interest of
Wachovia in this Master Agreement (inclusive of all rights and obligations of
Wachovia hereunder) shall automatically (and without any act being required by
any party) be deemed assigned to, and assumed by, the person becoming Wachovia;
it being agreed, however, that,
without in any way limiting the foregoing, (i) any person becoming
Wachovia shall promptly notify Master Landlord thereof (and shall, upon request
made by Master Landlord, confirm such assignment and assumption by written
instrument), and (ii) Wachovia N.A. shall not be released of its
obligations under this Master Agreement as a result of such events. Except for
such an automatic assignment, Wachovia may not assign its interest in this
Master Agreement.


 


(b)                                 This Master Agreement shall be
binding upon, and inure to the benefit of Master Landlord Named Herein (as
Master Landlord), and, as applicable, (I) any person that shall acquire
the interest of Master Landlord hereunder pursuant to an assignment required
under Section 13.3 hereof, or (II) any person that shall acquire the
interest of Master Landlord hereunder pursuant to an assignment permitted under
Section 13.4 hereof. Notwithstanding anything to the contrary contained
herein, (i) Master Landlord Named Herein shall have absolutely no right to
assign its interest in this Master Agreement as Master Landlord, except (x) for
a collateral assignment to a Designated Portfolio Lender, or (y) pursuant
to a required assignment of the interest of Master Landlord hereunder pursuant
to Section 13.3 hereof, and (ii) for so long as Master Landlord Named
Herein shall be the Master Landlord 


 


15

















 


hereunder
(i.e., unless and until such a required
assignment under Section 13.3 hereof shall occur), Master Landlord Named
Herein shall be and remain a Wholly-Owned Subsidiary of FSG, the Designated
Mezzanine Lender or its DML Nominee or any DML Transferee, except as may result
from a transfer or other conveyance of all or a portion of the membership
interests in Master Landlord Named Herein (or in any person having a direct or
indirect ownership in such Master Landlord Named Herein) effected pursuant to a
court proceeding (pursuant to federal bankruptcy law, or any similar federal or
state law) involving the bankruptcy, insolvency or reorganization of FSG. From
and after the required assignment of the interest of Master Landlord hereunder
pursuant to Section 13.3 hereof, the Master Landlord, from time to time,
shall have the right to assign the interest as Master Landlord hereunder
subject to the provisions of Section 13.4 hereof.


 


(c)                                  This Master Agreement shall also be
binding upon Master Landlord Named Herein (as the initial Landlord under each
Lease, for so long as (x) it shall remain Landlord under such Lease, and (y) such
Lease shall remain an Integrated Lease). If either Master Landlord Named
Herein, or any subsequent Landlord under an Integrated Lease, shall transfer
the Landlord’s Estate under such Lease (i.e., such
transferee shall become the Landlord under such Lease), then (i) if such
Lease shall remain an Integrated Lease (notwithstanding such transfer), then (x) such
transferee, as the new Landlord under the Lease, shall be deemed to have
assumed all of the obligations under this Master Agreement as the Landlord as
to such Integrated Lease hereunder, and (y) Master Landlord shall cause
such new Landlord, simultaneously with its becoming the new Landlord under such
Integrated Lease, to acknowledge such assumption by a written instrument
executed and delivered by such new Landlord in favor of Wachovia, and (ii) if
such Lease shall as a result of such transfer, shall become a Non-Integrated
Lease, then such transferee, as the new Landlord under the Lease, shall not
become a party to this Master Agreement.


 


13.                                 Master
Landlord Rights; Succession.


 


13.1                 During any period that there shall
exist a Portfolio Lender, Master Landlord may elect to designate such Portfolio
Lender as the “Designated Portfolio Lender”,
provided, however, that any such designation shall only be effective if made
pursuant to a written notice sent by Master Landlord to Wachovia (herein called
a “DPL Designation Notice”), which notice shall (1) set forth such
designation as irrevocable (subject only to the provisions of this Section 13.1),
(2) expressly provide (with reference to Section 13.2 hereof) that
such Portfolio Lender, by reason of such designation, shall be entitled to
serve the DPL Acceleration Notice and that Wachovia shall be irrevocably
authorized to rely on any DPL Acceleration Notice purportedly sent to it by
such Designated Portfolio Lender or any successor Designated Portfolio Lender
designated pursuant to a DPL Substitution Notice, and (3) be accompanied
by a written instrument, executed by such Designated Portfolio Lender in which
it (x) sets forth its address(es) for notices, and (y) agrees to
comply with the obligations imposed upon the Designated Portfolio Lender (in
its capacity as such) under Sections 13 and 17 of this Master Agreement (subject,
in each case, to the provisions of Section 21 of this Master Agreement).
The term “Designated Portfolio Lender” shall mean (i) any Portfolio
Lender designated by Master Landlord or a DPL Successor as the Designated Portfolio Lender pursuant to
the foregoing provisions of this Section 13.1 and (ii) any successor
Portfolio Lender designated as the Designated Portfolio Lender pursuant to a
DPL Substitution Notice; provided, however, that, 


 


16

















 


notwithstanding anything to the contrary
contained herein, in no event shall there ever be more than one (1) Designated
Portfolio Lender hereunder. Once a Portfolio Lender has been designated as the
Designated Portfolio Lender, such Designated Portfolio Lender shall have the
right to assign its rights as the Designated Portfolio Lender to a successor
Portfolio Lender and simultaneously resign as the Designated Portfolio Lender
pursuant to a written notice (a “DPL Substitution Notice”) sent by the
assigning Designated Portfolio Lender to Wachovia, which notice shall (1) set
forth such resignation of the assigning Designated Portfolio Lender and the
designation of the new Designated Portfolio Lender as irrevocable (subject only
to the provisions of this Section 13.1), and (2) expressly provide
(with reference to Section 13.2 hereof) that such new Designated Portfolio
Lender, by reason of such designation, shall be entitled to serve the DPL
Acceleration Notice and that Wachovia shall be irrevocably authorized to rely
on any DPL Acceleration Notice purportedly sent to it by such new Designated
Portfolio Lender. The designation of a Designated Portfolio Lender may be
revoked only pursuant to a written notice to Wachovia (i) in the case of a
DPL Substitution Notice, executed by the assigning Designated Portfolio Lender
and the new Designated Portfolio Lender or (ii) in connection with a
revocation (other than in connection with an assignment pursuant to a DPL
Substitution Notice), by both the Designated Portfolio Lender and Master
Landlord. Notwithstanding anything to the contrary contained herein, in no
event shall any Portfolio Lender (other than the single Designated Portfolio
Lender that may, from time to time, be designated hereunder pursuant to this Section 13.1)
have any rights or standing under this Master Agreement.


 


13.2                           (a)                                  The Designated Portfolio Lender may
deliver to Wachovia a notice indicating that such Designated Portfolio Lender
has accelerated its Portfolio Loan (a “DPL Acceleration Notice”). Prior
to the delivery of a DPL Acceleration Notice to Wachovia, only Master Landlord
shall have the right to exercise all of the rights of Master Landlord under
this Master Agreement.  Following the
delivery of a DPL Acceleration Notice to Wachovia, the Designated Portfolio Lender
(or a DPL Nominee that is identified in the DPL Acceleration Notice) shall
automatically (and without any further act of any party hereto) have the
exclusive right to exercise all of the rights of Master Landlord under this
Master Agreement on Master Landlord’s behalf (i.e., Master Landlord
shall no longer have any right to exercise any of the rights of Master Landlord
hereunder); provided, however, that, at the same time, Master
Landlord shall continue to have full liability for all its obligations hereunder,
including its full liability for all acts and omissions of the Designated
Portfolio Lender (or a DPL Nominee) taken (or not taken) in connection with the
exercise of any of the rights of Master Landlord hereunder. Master Landlord
hereby irrevocably (i) authorizes Wachovia to rely on any DPL Acceleration
Notice purportedly sent to it by a Designated Portfolio Lender, (ii) authorizes
Wachovia to rely on the exercise of all rights of Master Landlord under this
Master Agreement by the Designated Portfolio Lender (or the DPL Nominee that is
identified in the DPL Acceleration Notice), and (iii) acknowledges and
agrees to its continuing full liability for all of its obligations hereunder
(notwithstanding that its rights can only be exercised by the Designated
Portfolio Lender or a DPL Nominee, and not by it), including its full liability
for all acts and omissions of the Designated Portfolio Lender (or a DPL
Nominee) taken (or not taken) in connection with the exercise of any of the
rights of Master Landlord hereunder. Following the delivery of a DPL
Acceleration Notice, a Designated Portfolio Lender covenants to Wachovia that
it shall proceed in good faith in enforcing its remedies under its Portfolio
Loan.


 


17

















 


(b)                                 After
the delivery of a DPL Acceleration Notice to Wachovia, the same may be
rescinded by the Designated Portfolio Lender, but only pursuant to a written
notice of rescission to Wachovia executed by the Designated Portfolio Lender
(and, if applicable, the DPL Nominee that was identified in the DPL
Acceleration Notice) (such notice being herein called an “Acceleration
Rescission Notice”). Upon delivery of the Acceleration Rescission Notice,
the Designated Portfolio Lender shall no longer be entitled to exercise the
rights of Master Landlord hereunder, and, accordingly, Master Landlord shall
again be entitled to exercise such rights; provided, however,
that (i) Master Landlord shall continue to have full liability for all
acts and omissions of the Designated Portfolio Lender (or its DPL Nominee)
taken (or not taken) in connection with the exercise of any of the rights of
Master Landlord hereunder during the period after the delivery of the DPL
Acceleration Notice and prior to the delivery of the Acceleration Rescission
Notice, and (ii) such change in the party entitled to exercise the rights
of Master Landlord hereunder shall be without liability or prejudice to
Wachovia hereunder, and, without limiting the generality thereof, any act or
omission taken (or not taken) by Wachovia hereunder during such period shall be
conclusively deemed valid and proper hereunder (and binding upon the parties
hereto), so long as such act or omission was valid and proper hereunder (and
binding upon the parties hereto) based on the rights and obligations of the
parties hereto during such period.


 


13.3                 On the Enforcement Completion Date,
the Designated Portfolio Lender covenants to Wachovia that it shall effectuate
an assignment of the interest of Master Landlord hereunder to one (and only
one) of the following persons: (I) itself, (II) its DPL Nominee, or (III) a
person that (together with its Wholly-Owned Subsidiaries) owns the Landlord’s
Estate in a majority of the then Integrated Leases. Such required assignment
shall be effected pursuant to a written instrument in which the assignee shall
be assigned, and shall assume, the interest of Master Landlord, in each case,
as to the rights and obligations of Master Landlord accruing from and after the
date of such assignment. Upon the occurrence of the Enforcement Completion
Date, the Designated Portfolio Lender shall notify Wachovia thereof, which
notice shall (i) indicate the person to whom interest of Master Landlord
hereunder has been assigned under this Section 13.3 (i.e.,
the new Master Landlord), and (ii) be accompanied by a true and complete
copy of the aforementioned assignment instrument. Master Landlord hereby agrees
that Designated Portfolio Lender shall have the sole right and authority to
effectuate such required assignment, on its behalf, and, in that regard (and in
addition to any rights granted to Designated Portfolio Lender under the
documents evidencing and securing its Portfolio Loan), Master Landlord hereby
irrevocably appoints the Designated Portfolio Lender as its attorney-in-fact to
execute (on its behalf) the aforementioned assignment instrument, and all other
documents needed to effectuate such required assignment. Upon the Enforcement
Completion Date (and such required assignment being effectuated), the Designated
Portfolio Lender shall lose its status as a Designated Portfolio Lender.


 


13.4                 From and after the required
assignment of the interest of Master Landlord hereunder pursuant to Section 13.3
hereof, Master Landlord, from time to time, shall have the right to thereafter
assign the interest of Master Landlord hereunder to any person; provided,
however, that (1) no such assignment shall be permitted unless
effected pursuant to a written instrument in which the assignee shall be
assigned, and shall assume, the interest of Master Landlord, in each case, as
to the rights and obligations of Master Landlord accruing from and after the
date of such assignment, and (2) no such assignment shall be effective
until Wachovia 


 


18

















 


shall receive a notice thereof, from (and
executed by) both the assignor and assignee thereunder, which notice shall be
accompanied by a true and complete copy of the aforementioned assignment
instrument.


 


13.5                 Without limiting or expanding the definition
of Non-Integration Event as herein-above set forth, it is understood that an
assignment permitted under this Section 13 may nevertheless result in a
Non-Integration Event as to one or more Leases.


 


14.                                 Designated
Mezzanine Lender.


 


14.1                 During any period that there shall
exist a Mezzanine Lender, Master Landlord may elect to designate such Mezzanine
Lender as the “Designated Mezzanine Lender”,
provided, however, that any such designation shall only be effective if made
pursuant to a written notice sent by Master Landlord to Wachovia (herein called
a “DML Designation Notice”), which notice shall (1) set forth such
designation as irrevocable (subject only to the provisions of this Section 14.1)
and (2) be accompanied by a written instrument, executed by such
Designated Mezzanine Lender in which it indicates that it is a Mezzanine Lender
and sets forth its address(es) for notices. 
The term “Designated Mezzanine Lender” shall mean (i) any
Mezzanine Lender designated by Master Landlord pursuant to the foregoing
provisions of this Section 14.1 and (ii) any successor Mezzanine
Lender designated as the Designated Mezzanine Lender pursuant to a DML
Substitution Notice; provided, however, that notwithstanding
anything to the contrary contained herein, in no event shall there ever by more
than one (1) Designated Mezzanine Lender. 
Once a Mezzanine Lender has been designated as the Designated Mezzanine
Lender, such Designated Mezzanine Lender shall have the right to assign its
rights as Designated Mezzanine Lender to a successor Mezzanine Lender and
simultaneously resign as the Designated Mezzanine Lender pursuant to a written
notice (a “DML Substitution Notice”) sent by the assigning Designated
Mezzanine Lender to Wachovia, which notice shall set forth such resignation of
the assigning Designated Mezzanine Lender and the designation of the new
Designated Mezzanine Lender as irrevocable (subject only to the provisions of
this Section 14.1).  The designation
of a Designated Mezzanine Lender may be revoked only pursuant to a written
notice to Wachovia (i) in the case of a DML Substitution Notice, executed
by the assigning Designated Mezzanine Lender and the new Designated Mezzanine
Lender or (ii) in connection with a revocation (other than in connection
with an assignment pursuant to a DML Substitution Notice), by both the
Designated Mezzanine Lender and Master Landlord.  Notwithstanding anything to the contrary
contained herein, in no event shall any Mezzanine Lender (other than the single
Designated Mezzanine Lender that may, from time to time, be designated
hereunder pursuant to this Section 14.1) have any rights or standing under
this Agreement.


 


14.2                 The Designated Mezzanine Lender
shall deliver to Wachovia, when applicable, (a) a notice indicating that
such Designated Mezzanine Lender is exercising any of its remedies with respect
to its Mezzanine Loan, and (b) a notice indicating that such Designated
Mezzanine Lender is the owner of one hundred percent (100%) of the membership
interests in Master Landlord.  Master
Landlord hereby irrevocably authorizes Wachovia to rely on such notices
purportedly sent to Wachovia by a Designated Mezzanine Lender.


 


19

















 


15.                                 Defaults
and Remedies.


 


(a)                                  No
Lease is cross-defaulted with any other Leases. The provisions of this Master
Agreement constitute a part each Integrated Lease, and, thus, any default under
the provisions of this Master Agreement as the same relates to an Integrated
Lease, shall be a default under such Integrated Lease; provided, however,
that no such default under the provisions of this Master Agreement shall ever
constitute a basis for Landlord having a right to terminate such Integrated
Lease (or any other Lease).


 


(b)                                 In
the event that any party shall default in its obligations under this Master
Agreement, then the other parties hereto shall have all rights and remedies
available to it at law, or in equity, on account of such default (including,
without limitation, injunctive relief); provided, however, that
in no event shall any party have any right to terminate this Master Agreement
by reason of any default hereunder by any other party.


 


16.                                 Interest
on Overdue Amounts.  If any sum is
owed by any party hereto to another party hereto pursuant to the terms of this
Master Agreement, and the party owing such sum does not pay the same on the due
date thereof, then such past-due sum shall bear interest, at the Applicable
Rate, from the date due thereof until payment is made, but only if such party’s
failure to pay such sums shall continue for a period of five (5) Business
Days after notice of such failure from the other party, which notice shall
refer to this Section 15 and state, in all capital letters (or other
prominent display), that such party’s failure to pay such sums by such 5th
Business Day shall result in interest accruing thereon from the due date
thereof.


 


17.                                 Estoppel
Certificates.


 


(a)                                  At
the request of any of Master Landlord or Wachovia, the other party hereto will
execute, within twelve (12) Business Days from the date of receipt of the
request, from time to time, a written instrument (i) certifying that this
Master Agreement is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified, and
setting forth the modifications), (ii) certifying that it has neither
sent, nor received, a notice of any default under this Master Agreement, which
default remains outstanding (or, if there are such notices, excepting the same
and describing the content thereof), (iii) confirming any of its
determinations described in Section 5 hereof, and (iv) in the case of
Wachovia, indicating whether it has received any of a DPL Designation Notice, a
DPL Substitution Notice or a DPL Acceleration Notice, which, in any case,
remains outstanding, and whether it has any pending dispute with respect to the
designations, re-designations or identifications set forth therein, or any
rights of any Designated Portfolio Lender that result therefrom. The Designated
Portfolio Lender shall also have the right, from time to time, to request such
written instruments of Master Landlord and Wachovia under this Section 17,
and, in any such event, the party of whom such request is made shall deliver
such a written instrument within twelve (12) Business Days after request.
Furthermore, the Designated Portfolio Lender hereby agrees that Wachovia may,
from time to time, request similar written instruments of it under this Master
Agreement, as relates to such Designated Portfolio Lender’s rights,
obligations, acts and omissions hereunder, and notices sent by it, or on its
behalf, and, in any such event, it agrees to deliver the same within twelve
(12) Business Days after request.


 


(b)                                 Upon
request of Wachovia, the Designated Portfolio Lender, shall provide Wachovia
with evidence, reasonably satisfactory to Wachovia, that it is, in fact, a
Portfolio


 


20

















 


Lender. Upon
request of Wachovia, Master Landlord shall provide evidence, reasonably satisfactory
to Wachovia, as to any matter affecting the status of any Lease as either an
Integrated Lease or Non-Integrated Lease, and/or the various facts and
circumstances giving rise thereto (including information as to the entities
holding title to any Lease Properties).


 


(c)                                  Within
twelve (12) Business Days from the date of receipt by Wachovia of a written
notice from Master Landlord requesting the same with respect to the then
Designated Portfolio Lender, which notice shall be accompanied by (i) a
copy of the promissory note or promissory notes evidencing the Portfolio Loan
to such Designated Portfolio Lender, and (ii) a written instrument, in the
form of Exhibit G hereto, executed by Master Landlord with respect
to such Designated Portfolio Lender, Wachovia shall execute and deliver to
Master Landlord a written instrument in the form of Exhibit G-1
hereto with respect to such Designated Portfolio Lender.


 


(d)                                 Within
twelve (12) Business Days from the date of receipt by Wachovia of a written
notice from Master Landlord requesting the same with respect to the then
Designated Mezzanine Lender, which notice shall be accompanied by (i) a
copy of the promissory note or promissory notes evidencing the Mezzanine Loan
to such Designated Mezzanine Lender, and (ii) a written instrument, in the
form of Exhibit H hereto, executed by Master Landlord with respect
to such Designated Mezzanine Lender, Wachovia shall execute and deliver to
Master Landlord a written instrument in the form of Exhibit H-1
hereto with respect to such Designated Mezzanine Lender.


 


18.                                 Notices.  Any notice or other communications required
or permitted to be given under this Master Agreement (each, a “notice”)
must be in writing and shall be sent (i) by certified United States Mail,
return receipt requested, (ii) by Federal Express or other nationally
recognized overnight courier service, or (iii) by personal delivery, and
as follows: (a) any notice sent by Wachovia shall be sent to Master
Landlord, at Master Landlord’s notice address(es) set forth below (it being
agreed that any notice sent to Master Landlord at such address(es) shall be
deemed sent to, and received by, any and all Landlords that are parties hereto)
with copies of all notices sent to the Designated Portfolio Lender and the
Designated Mezzanine Lender; and (b) any notice sent by Master Landlord
shall be sent to Wachovia, at Wachovia’s notice address(es) set forth below (it
being agreed that a copy of any notice sent to Wachovia at such address(es)
shall be deemed sent to, and received by, any and all Landlords that are
parties hereto) with copies of all notices sent to the Designated Portfolio
Lender and the Designated Mezzanine Lender. Designated Portfolio Lender and
Designated Mezzanine Lender each agree that if it shall deliver a notice to
either Master Landlord or Wachovia concerning any aspect of this Master
Agreement, it shall also send a copy of such notice to the other party hereto.


 


	
  Master Landlord’s notice address(es):

  	
  First States Investors 3300, LLC

  c/o American Financial Realty Trust

  680 Old York
  Road, Suite 200

  Jenkintown,
  Pennsylvania 19046

  Attention: Operations

  Fax:  (215) 887-9856

  



 


21

















 


	
  with a copy to:

  	
  American
  Financial Realty Trust

  680 Old York Road, Suite 200

  Jenkintown, Pennsylvania
  19046

  Attention: General Counsel

  Fax:  (215) 887-9856

  
	
   

  	
   

  
	
  Wachovia’s notice address(es):

  	
  Wachovia Bank, N.A.

  Corporate Real Estate

  225 Water Street, Suite 850

  Jacksonville, FL 32202

  Attention: Neil C. King, SVP

  Fax:  (904) 489-3544

  
	
   

  	
   

  
	
  with a copy to:

  	
  Wachovia Bank, N.A.

  Corporate Real Estate

  401 S. Tryon Street, 18th Floor

  Charlotte, NC 28202

  Attention: Sarah Muenow, AVP

  Fax:  (704) 374-6832

  
	
   

  	
   

  
	
  and to:

  	
  Wachovia Bank, N.A.

  Corporate Legal Division

  301 S. College Street, 30th Floor, NC0630

  Charlotte, NC 28288-0630

  Attention:  Rebecca Olliff 

  Fax:  (704) 715-4498

  
	
   

  	
   

  
	
  and to:

  	
  Wachovia Corporate Real Estate

  201 N. Tryon St., 21st Fl, NC0114

  Charlotte, NC 28288-0114

  Attn:  Lease Administration

  



 


Any notice shall be deemed given upon receipt or refusal thereof. Each
of Master Landlord, Wachovia and any Designated Portfolio Lender shall have the
right to change its notice address(es) (by addition and/or subtraction) by
giving the notice thereof in accordance with the provisions of this Section 18;
provided that (x) such
notice of any such change shall become effective only upon such notice being
deemed given hereunder, and (y) neither Master Landlord, Wachovia or a
Designated Portfolio Lender may designate more than five (5) notice
address(es), in total, as its notice address(es). Any notice sent by any party
pursuant to this Section 18 shall set forth the address of the Portfolio
Property.


 


19.                                 Miscellaneous.  No term or provision hereof may be amended or
modified, but only by an instrument that (i) is signed by the party
against whom enforcement thereof is sought, and (ii) has been approved by
the Designated Portfolio Lender. Any provision of this Master Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the 


 


22

















 


remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. This Master Agreement and the rights and obligations in
respect hereof shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, except where the laws of
the State where a particular Portfolio Property is located requires that such
State’s laws must apply. All headings are for reference only and shall not be
considered as part of this Master Agreement. This Master Agreement may be
executed in any number of counterparts, each of which shall be an original, and
such counterparts together shall constitute but one and the same instrument.


 


20.                                 Conflicts;
No Representations.  In the event of
any conflict between the terms and conditions of this Master Agreement and the
terms and conditions of the Leases, the terms and conditions of this Master
Agreement shall be controlling. No representations or warranties have been made
by Master Landlord, any Landlord or Wachovia except as specifically set forth
in this Master Agreement (or, as to any Landlord and Wachovia, the Leases), and
no oral or written expression or non-verbal conduct of a person intended by
such person a substitute for oral or written expression will be attributed to
Master Landlord, any Landlord or Wachovia, except as specifically set forth in
this Master Agreement (or, as to any Landlord and Wachovia, the Leases).


 


21.                                 Liability
of Master Landlord and Landlords; Wachovia’s Recourse.


 


21.1                 Subject to the provisions of
Sections 21.2 and 21.3 hereof, at all times, Master Landlord, and all Landlords
under all Integrated Leases, shall be jointly and severally liable for (i) all
the obligations of Master Landlord under this Master Agreement, and (ii) all
the obligations of all the Landlords under all the Integrated Leases.


 


21.2                 Wachovia specifically agrees to look
solely to the following interests, collectively, for the recovery of any
monetary judgment under this Master Agreement or any of the Integrated Leases
against Master Landlord or any of the Landlords under Integrated Leases: (a) the
interest of the Master Landlord under this Master Agreement; and (b) the
interests of the Landlords, under the Integrated Leases, in the Lease
Properties subject to such Integrated Leases (which interests shall be deemed
to include the rent and other income or proceeds derived from such Leased
Properties). Neither Master Landlord, nor any Landlord under an Integrated
Lease, shall ever be personally liable (i.e., liable beyond such interests) for
any such judgment or for any other liability or obligation under this Master
Agreement or any Lease. The provision contained in the foregoing sentence is
not intended to, and shall not, limit any right that Wachovia might otherwise
have (i) to obtain injunctive relief (or other equitable relief) against
Master Landlord, or any Landlord under an Integrated Lease, or any other
person, (ii) to offset sums due and owing to Wachovia against the Rent
under any Integrated Lease, or (iii) to prosecute any suit or action in
connection with enforcement of Wachovia’s rights hereunder or the obligations
of Master Landlord hereunder, or any Landlord under an Integrated Lease.


 


21.3                 The liability of, and Wachovia’s
recourse against, any Designated Portfolio Lender (or any DPL Nominee) that
shall become either (i) the Master Landlord hereunder or (ii) the
Landlord under any Integrated Lease, shall, in that capacity, be governed by
the foregoing provisions of this Section 21 (which liability and recourse
provisions shall apply as fully to them 


 


23

















 


as to other persons owning such interests).
However, the liability of, and Wachovia’s recourse against, any Designated
Portfolio Lender (or its DPL Nominee), in its capacity as a Designated Portfolio
Lender (or a DPL Nominee), for failing to comply with its obligations under
Sections 13 and 17 of this Master Agreement, shall be limited to the following
interests: (x) the interest of the Designated Portfolio Lender under its
Portfolio Loan, and (y) the Designated Portfolio Lender’s interest in this
Master Agreement (and the Designated Portfolio Lender agrees that such
Portfolio Loan and such interest in this Master Agreement shall be subject to
the claims of Wachovia whether such claims arise from its actions or those of
its DPL Nominee). No Designated Portfolio Lender (or DPL Nominee) shall ever be
personally liable (i.e., liable
beyond such interests) for any such judgment or for any other liability or
obligation under this Master Agreement or any Lease . The provision contained
in the foregoing sentence is not intended to, and shall not, limit any right
that Wachovia might otherwise have (i) to obtain injunctive relief (or
other equitable relief) against Designated Portfolio Lender (or DPL Nominee) or
any other person, or (ii) to prosecute any suit or action in connection
with enforcement of Wachovia’s rights under Sections 13 and 17 of this Master
Agreement or the obligations of the Designated Portfolio Lender under Sections
13 and 17 of this Master Agreement.


 


24

















 


IN WITNESS WHEREOF,
Wachovia N.A. and Master Landlord Named Herein have each caused this Master
Agreement to be duly executed and delivered in their respective names and
behalves, all by authority duly given, as of the day and year first above
written.


 


 


	
   

  	
  WACHOVIA:

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Neil C. King

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


 


	
   

  	
  MASTER
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST
  STATES INVESTORS 3300, LLC

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Sonya A. Huffman

  
	
   

  	
   

  	
  Title:  Vice President