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 (4 th ) Lease
Year until the last day of the eighth (8 th ) Lease
Year (both days inclusive), a Net Rentable Area of 234,336 RSF;
(iii) during the period from the first day of the ninth
(9 th ) Lease Year until the last day of the
thirteenth (13 th
) 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 (14 th ) 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, shal
