exv10w2



 






Exhibit 10.2




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




among




PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P.,

as Borrower




EUROHYPO AG, NEW YORK BRANCH,

as Administrative Agent, Arranger, and Sole Book Runner




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent




and




THE LENDERS NAMED HEREIN,

as Lenders




$100,000,000




As of




August 3, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	SECTION 1 DEFINITIONS AND TERMS	 	 	1	 
	 
	 	 	 	 	 	 
	1.1
	 	Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 2 TERM LOANS	 	 	19	 
	 
	 	 	 	 	 	 
	2.1
	 	Term Loans.	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 3 TERMS OF PAYMENT	 	 	19	 
	 
	 	 	 	 	 	 
	3.1
	 	Notes and Payments	 	 	19	 
	 
	 	 	 	 	 	 
	3.2
	 	Interest and Principal Payments	 	 	19	 
	 
	 	 	 	 	 	 
	3.3
	 	Interest Options	 	 	20	 
	 
	 	 	 	 	 	 
	3.4
	 	Quotation of Rates	 	 	20	 
	 
	 	 	 	 	 	 
	3.5
	 	Default Rate	 	 	20	 
	 
	 	 	 	 	 	 
	3.6
	 	Interest Recapture	 	 	20	 
	 
	 	 	 	 	 	 
	3.7
	 	Interest Calculation	 	 	20	 
	 
	 	 	 	 	 	 
	3.8
	 	Maximum Rate	 	 	21	 
	 
	 	 	 	 	 	 
	3.9
	 	Interest Periods	 	 	21	 
	 
	 	 	 	 	 	 
	3.10
	 	Conversions and Continuations	 	 	21	 
	 
	 	 	 	 	 	 
	3.11
	 	Order of Application	 	 	22	 
	 
	 	 	 	 	 	 
	3.12
	 	Sharing of Payments, Etc	 	 	22	 
	 
	 	 	 	 	 	 
	3.13
	 	Booking Borrowings	 	 	22	 
	 
	 	 	 	 	 	 
	3.14
	 	Basis Unavailable or Inadequate for the Eurodollar Rate	 	 	22	 
	 
	 	 	 	 	 	 
	3.15
	 	Additional Costs	 	 	23	 
	 
	 	 	 	 	 	 
	3.16
	 	Change in Governmental Requirement	 	 	24	 
	 
	 	 	 	 	 	 
	3.17
	 	Funding Loss	 	 	24	 
	 
	 	 	 	 	 	 
	3.18
	 	Foreign Lenders	 	 	24	 
	 
	 	 	 	 	 	 
	3.19
	 	Fees	 	 	25	 
	 
	 	 	 	 	 	 
	SECTION 4 UNENCUMBERED PROPERTIES; GUARANTIES	 	 	25	 
	 
	 	 	 	 	 	 
	4.1
	 	Unencumbered Properties	 	 	25	 
	 
	 	 	 	 	 	 
	4.2
	 	Negative Pledge Agreements	 	 	25	 
	 
	 	 	 	 	 	 
	4.3
	 	Guaranties	 	 	26	 
	 
	 	 	 	 	 	 
	4.4
	 	Unencumbered Properties Held by Consolidated Affiliates	 	 	26	 






 









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5 CONDITIONS PRECEDENT	 	 	26	 
	 
	 	 	 	 	 	 
	5.1
	 	Conditions to Advance of Term Loans	 	 	26	 
	 
	 	 	 	 	 	 
	5.2
	 	Conditions Generally	 	 	28	 
	 
	 	 	 	 	 	 
	SECTION 6 REPRESENTATIONS AND WARRANTIES	 	 	28	 
	 
	 	 	 	 	 	 
	6.1
	 	Purpose of Credit Facility	 	 	28	 
	 
	 	 	 	 	 	 
	6.2
	 	Existence, Good Standing, Authority and Compliance	 	 	28	 
	 
	 	 	 	 	 	 
	6.3
	 	Affiliates	 	 	29	 
	 
	 	 	 	 	 	 
	6.4
	 	Authorization and Contravention	 	 	29	 
	 
	 	 	 	 	 	 
	6.5
	 	Binding Effect	 	 	29	 
	 
	 	 	 	 	 	 
	6.6
	 	Financial Statements; Fiscal Year	 	 	29	 
	 
	 	 	 	 	 	 
	6.7
	 	Litigation	 	 	29	 
	 
	 	 	 	 	 	 
	6.8
	 	Taxes	 	 	29	 
	 
	 	 	 	 	 	 
	6.9
	 	Environmental Matters	 	 	30	 
	 
	 	 	 	 	 	 
	6.10
	 	Employee Plans	 	 	30	 
	 
	 	 	 	 	 	 
	6.11
	 	Properties; Liens	 	 	30	 
	 
	 	 	 	 	 	 
	6.12
	 	Locations	 	 	30	 
	 
	 	 	 	 	 	 
	6.13
	 	Government Regulations	 	 	30	 
	 
	 	 	 	 	 	 
	6.14
	 	Transactions with Affiliates	 	 	30	 
	 
	 	 	 	 	 	 
	6.15
	 	Insurance	 	 	31	 
	 
	 	 	 	 	 	 
	6.16
	 	Labor Matters	 	 	31	 
	 
	 	 	 	 	 	 
	6.17
	 	Solvency	 	 	31	 
	 
	 	 	 	 	 	 
	6.18
	 	Full Disclosure	 	 	31	 
	 
	 	 	 	 	 	 
	6.19
	 	Exemption from ERISA; Plan Assets	 	 	31	 
	 
	 	 	 	 	 	 
	6.20
	 	Patriot Act	 	 	31	 
	 
	 	 	 	 	 	 
	6.21
	 	Foreign Status	 	 	31	 
	 
	 	 	 	 	 	 
	SECTION 7 AFFIRMATIVE COVENANTS	 	 	31	 
	 
	 	 	 	 	 	 
	7.1
	 	Items to be Furnished	 	 	31	 
	 
	 	 	 	 	 	 
	7.2
	 	Use of Proceeds	 	 	33	 
	 
	 	 	 	 	 	 
	7.3
	 	Books and Records	 	 	33	 
	 
	 	 	 	 	 	 
	7.4
	 	Inspections	 	 	33	 
	 
	 	 	 	 	 	 
	7.5
	 	Taxes	 	 	33	 
	 
	 	 	 	 	 	 
	7.6
	 	Payment of Obligations	 	 	33	 
	 
	 	 	 	 	 	 
	7.7
	 	Expenses	 	 	33	 
	 
	 	 	 	 	 	 





ii









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	7.8
	 	Maintenance of Existence, Assets, and Business	 	 	34	 
	 
	 	 	 	 	 	 
	7.9
	 	Insurance	 	 	34	 
	 
	 	 	 	 	 	 
	7.10
	 	Preservation and Protection of Rights	 	 	34	 
	 
	 	 	 	 	 	 
	7.11
	 	Environmental Laws	 	 	34	 
	 
	 	 	 	 	 	 
	7.12
	 	Indemnification	 	 	34	 
	 
	 	 	 	 	 	 
	7.13
	 	REIT Status	 	 	35	 
	 
	 	 	 	 	 	 
	7.14
	 	ERISA Exemptions	 	 	35	 
	 
	 	 	 	 	 	 
	7.15
	 	Listed Company	 	 	35	 
	 
	 	 	 	 	 	 
	7.16
	 	Further Assurances	 	 	35	 
	 
	 	 	 	 	 	 
	SECTION 8 NEGATIVE COVENANTS	 	 	36	 
	 
	 	 	 	 	 	 
	8.1
	 	Payment of Obligations	 	 	36	 
	 
	 	 	 	 	 	 
	8.2
	 	Employee Plans	 	 	36	 
	 
	 	 	 	 	 	 
	8.3
	 	Transactions with Affiliates	 	 	36	 
	 
	 	 	 	 	 	 
	8.4
	 	Compliance with Governmental Requirements and Documents	 	 	36	 
	 
	 	 	 	 	 	 
	8.5
	 	Loans, Advances, and Investments	 	 	36	 
	 
	 	 	 	 	 	 
	8.6
	 	Distributions	 	 	37	 
	 
	 	 	 	 	 	 
	8.7
	 	Sale of Assets	 	 	37	 
	 
	 	 	 	 	 	 
	8.8
	 	Mergers and Dissolutions	 	 	37	 
	 
	 	 	 	 	 	 
	8.9
	 	Assignment	 	 	37	 
	 
	 	 	 	 	 	 
	8.10
	 	Fiscal Year and Accounting Methods	 	 	37	 
	 
	 	 	 	 	 	 
	8.11
	 	New Businesses	 	 	37	 
	 
	 	 	 	 	 	 
	8.12
	 	Government Regulations	 	 	37	 
	 
	 	 	 	 	 	 
	8.13
	 	Amendment of Constituent Documents	 	 	37	 
	 
	 	 	 	 	 	 
	8.14
	 	Interest Rate Agreements	 	 	37	 
	 
	 	 	 	 	 	 
	SECTION 9 FINANCIAL COVENANTS	 	 	38	 
	 
	 	 	 	 	 	 
	9.1
	 	Minimum Tangible Net Worth	 	 	38	 
	 
	 	 	 	 	 	 
	9.2
	 	Total Indebtedness to Total Assets	 	 	38	 
	 
	 	 	 	 	 	 
	9.3
	 	Maximum Secured Debt.	 	 	38	 
	 
	 	 	 	 	 	 
	9.4
	 	Interest and Debt Service Coverage Ratios.	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 10 DEFAULT	 	 	39	 
	 
	 	 	 	 	 	 
	10.1
	 	Payment of Obligation	 	 	39	 
	 
	 	 	 	 	 	 
	10.2
	 	Covenants	 	 	39	 
	 
	 	 	 	 	 	 





iii









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	10.3
	 	Debtor Relief	 	 	39	 
	 
	 	 	 	 	 	 
	10.4
	 	Judgments and Attachments	 	 	39	 
	 
	 	 	 	 	 	 
	10.5
	 	Government Action	 	 	39	 
	 
	 	 	 	 	 	 
	10.6
	 	Misrepresentation	 	 	40	 
	 
	 	 	 	 	 	 
	10.7
	 	Default Under Other Agreements	 	 	40	 
	 
	 	 	 	 	 	 
	10.8
	 	Validity and Enforceability of Loan Documents	 	 	40	 
	 
	 	 	 	 	 	 
	10.9
	 	Management Changes	 	 	40	 
	 
	 	 	 	 	 	 
	10.10
	 	Change in Control	 	 	40	 
	 
	 	 	 	 	 	 
	10.11
	 	Plan Assets	 	 	40	 
	 
	 	 	 	 	 	 
	SECTION 11 RIGHTS AND REMEDIES	 	 	41	 
	 
	 	 	 	 	 	 
	11.1
	 	Remedies Upon Default	 	 	41	 
	 
	 	 	 	 	 	 
	11.2
	 	Waivers	 	 	41	 
	 
	 	 	 	 	 	 
	11.3
	 	Performance by Administrative Agent	 	 	41	 
	 
	 	 	 	 	 	 
	11.4
	 	Not in Control	 	 	41	 
	 
	 	 	 	 	 	 
	11.5
	 	Course of Dealing	 	 	41	 
	 
	 	 	 	 	 	 
	11.6
	 	Cumulative Rights	 	 	41	 
	 
	 	 	 	 	 	 
	11.7
	 	Application of Proceeds	 	 	42	 
	 
	 	 	 	 	 	 
	11.8
	 	Certain Proceedings	 	 	42	 
	 
	 	 	 	 	 	 
	SECTION 12 AGENTS AND LENDERS	 	 	42	 
	 
	 	 	 	 	 	 
	12.1
	 	Appointment, Powers and Immunities	 	 	42	 
	 
	 	 	 	 	 	 
	12.2
	 	Reliance by Administrative Agent	 	 	43	 
	 
	 	 	 	 	 	 
	12.3
	 	Defaults	 	 	43	 
	 
	 	 	 	 	 	 
	12.4
	 	Rights as a Lender	 	 	44	 
	 
	 	 	 	 	 	 
	12.5
	 	Indemnification	 	 	45	 
	 
	 	 	 	 	 	 
	12.6
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	45	 
	 
	 	 	 	 	 	 
	12.7
	 	Failure to Act	 	 	45	 
	 
	 	 	 	 	 	 
	12.8
	 	Resignation or Removal of Administrative Agent	 	 	45	 
	 
	 	 	 	 	 	 
	12.9
	 	Consents under Loan Documents	 	 	46	 
	 
	 	 	 	 	 	 
	12.10
	 	Authorization	 	 	46	 
	 
	 	 	 	 	 	 
	12.11
	 	Defaulting Lenders	 	 	46	 
	 
	 	 	 	 	 	 
	12.12
	 	Other Agents	 	 	48	 
	 
	 	 	 	 	 	 





iv









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 13 MISCELLANEOUS	 	 	48	 
	 
	 	 	 	 	 	 
	13.1
	 	Headings	 	 	48	 
	 
	 	 	 	 	 	 
	13.2
	 	Nonbusiness Days; Time	 	 	48	 
	 
	 	 	 	 	 	 
	13.3
	 	Communications	 	 	48	 
	 
	 	 	 	 	 	 
	13.4
	 	Form and Number of Documents	 	 	48	 
	 
	 	 	 	 	 	 
	13.5
	 	Survival	 	 	49	 
	 
	 	 	 	 	 	 
	13.6
	 	GOVERNING LAW	 	 	49	 
	 
	 	 	 	 	 	 
	13.7
	 	Invalid Provisions	 	 	49	 
	 
	 	 	 	 	 	 
	13.8
	 	Venue; Service of Process; Jury Trial	 	 	49	 
	 
	 	 	 	 	 	 
	13.9
	 	Amendments, Consents, Conflicts, and Waivers	 	 	50	 
	 
	 	 	 	 	 	 
	13.10
	 	Multiple Counterparts	 	 	50	 
	 
	 	 	 	 	 	 
	13.11
	 	Successors and Assigns; Participations	 	 	51	 
	 
	 	 	 	 	 	 
	13.12
	 	Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances	 	 	53	 
	 
	 	 	 	 	 	 
	13.13
	 	Amendment and Restatement	 	 	53	 
	 
	 	 	 	 	 	 
	13.14
	 	Entirety	 	 	54	 






v









 





SCHEDULES AND EXHIBITS




	 	 	 
	Schedule 1

	 	Parties, Addresses, Commitments, and Wiring Information
	Schedule 4.1

	 	Initial Unencumbered Properties
	Schedule 6.2

	 	Jurisdictions of Incorporation and Foreign Qualification
	Schedule 6.7

	 	Litigation
	Schedule 6.9

	 	Environmental Matters
	Schedule 6.14

	 	Affiliates Transactions
	 
	 	 
	Exhibit A

	 	Borrowing Request
	Exhibit B

	 	Compliance Certificate
	Exhibit C-1

	 	Form of PPT Guaranty
	Exhibit C-2

	 	Form of Subsidiary Guaranty
	Exhibit D

	 	Form of Term Note
	Exhibit E

	 	Form of Assignment and Assumption
	Exhibit F

	 	Form of Counsel Opinion







vi









 








SECOND AMENDED AND RESTATED CREDIT AGREEMENT




THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of ___, 2005 (the “Closing
Date”), among PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited partnership
(“Borrower”), each of the lenders that are a signatory hereto (each such lender, together with each
lender that becomes a signatory hereto as provided in Section 13.11(b), being individually,
together with its successors and assigns, a “Lender” and collectively, the “Lenders”), and EUROHYPO
AG, NEW YORK BRANCH, as Administrative Agent (in such capacity, together with its successors and
assigns, “Administrative Agent”).



R E C I T A L S:




     1. Reference is hereby made to that certain Amended and Restated Credit Agreement dated as of
March 2, 2004, executed by Borrower, Lenders, and Administrative Agent (as renewed, extended,
modified, and amended through the date hereof, the “Original Agreement”).



     2. Borrower, Administrative Agent, and the Lenders desire to amend, modify, renew, and restate
the Original Agreement in the form of this Agreement to modify certain terms, conditions, and
covenants contained in the Original Agreement.



     3. Upon and subject to the terms and conditions of this Agreement, the parties hereto are
willing to amend and restate the Original Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree that the Original Agreement shall be amended and
restated as follows:



SECTION 1




DEFINITIONS AND TERMS




     1.1 Definitions. Unless otherwise indicated, as used in the Loan Documents:



     “Adjusted Aggregate EBITDA” means, for any period, (a) Aggregate EBITDA, minus (b) the EBITDA
Adjustments, on a Consolidated Basis, for all Properties.



     “Adjusted Property EBITDA” means, for any Property, the product of (a) the difference between
(i) the EBITDA of such Property, minus (ii) the EBITDA Adjustments for such Property, in each case
for the three (3) month period ending on the last day of the fiscal quarter immediately preceding
such determination date, times (b) four (4). For Properties owned for less than three (3) months
as of the date of determination, EBITDA of all such Properties shall be equal to the lesser of (I)
the product of (x) the Approved Costs of such Properties, times (y) eight percent (8%), and (II)
Borrower’s most-recent asset manager’s forecasts for the EBITDA of such Properties for the first
(1st) calendar quarter following acquisition thereof; provided that if Administrative Agent shall
reasonably determine that such amount is not an appropriate computation of EBITDA of any such
Property, then EBITDA for all such Properties shall be based upon the most recent three (3) month
period available.



     “Administrative Agent” is defined in the preamble.



     “Advanced Amount” is defined in Section 12.11.



 









 





     “Affiliate” of a Person means any other individual or entity who directly or indirectly
controls, or is controlled by, or is under common control with, that Person. For purposes of this
definition “control,” “controlled by,” and “under common control with” mean possession, directly or
indirectly, of power to direct (or cause the direction of) management or policies (whether through
ownership of Stock, by contract, or otherwise).



     “Aggregate EBITDA” means EBITDA of the Companies, for any period, as determined on a
Consolidated Basis.



     “Agreement” means this Credit Agreement, as modified, amended, supplemented, or restated from
time to time.



     “Anti-Terrorism Financing Laws” is defined in Section 6.20.



     “Applicable Amount” means (a) with respect to a Contract Property, the lesser of (i) the
purchase price of such Contract Property (or the Stock of the Person that owns such Contract
Property), and (ii) the maximum personal liability of the Companies to pay such purchase price as
determined by Borrower in a manner reasonably acceptable to Administrative Agent, and (b) with
respect to a Development Property, the unpaid balance of any Liabilities incurred to finance the
costs of constructing or developing such Development Property to the extent that a Company is
obligated (as guarantor or otherwise) with respect to such Liabilities.



     “Applicable Margin” means, at the time of determination thereof:



     (a) For any period in which an Investment Grade Rating does not exist, the interest margin
over the Eurodollar Rate and the Base Rate, as the case may be, shall be based upon the Index Ratio
as follows:



	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin	 	Applicable Margin
	 	 	for Eurodollar	 	for Base Rate
	Index Ratio	 	Borrowings	 	Borrowings
	 
	Greater than or equal to 0.55 to 1.0

	 	 	1.35	%	 	 	0	%
	 
	 	 	 	 	 	 	 	 
	Less than 0.55 to 1.0 but greater than
or equal to 0.50 to 1.0

	 	 	1.20	%	 	 	0	%
	 
	 	 	 	 	 	 	 	 
	Less than 0.50 to 1.0 but greater than
or equal to 0.45 to 1.0

	 	 	1.05	%	 	 	0	%
	 
	 	 	 	 	 	 	 	 
	Less than 0.45 to 1.0 but greater than
or equal to 0.35 to 1.0

	 	 	0.95	%	 	 	0	%
	 
	 	 	 	 	 	 	 	 
	Less than 0.35 to 1.0

	 	 	0.85	%	 	 	0	%





The Index Ratio shall be determined from the Compliance Certificate delivered to
Administrative Agent pursuant to Section 7.1; provided that the initial Applicable Margin shall be
based upon the Compliance Certificate dated as of March 31, 2005. The adjustment, if any, to the
Applicable Margin shall be effective commencing on the fifth (5th) Business Day after delivery of
such Compliance Certificate. If




2









 




Borrower fails at any time to furnish to Administrative Agent the Compliance Certificate as
required to be delivered pursuant to Section 7.1, then the maximum Applicable Margin shall apply
until such time as such Compliance Certificate is so delivered.




     (b) Beginning with the period commencing on the date of delivery by Borrower to Administrative
Agent of notice that Borrower achieved an Investment Grade Rating, and continuing until the public
announcement of a downgrade resulting in Borrower no longer having an Investment Grade Rating the
interest margin over the Eurodollar Rate and the Base Rate, as the case may be, shall be based upon
the Applicable Rating as follows:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable	 	Applicable
	 	 	 	 	 	 	 	 	Margin for	 	Margin
	 	 	Moody's	 	 	 	Third Agency	 	Eurodollar	 	for Base Rate
	Level	 	Rating	 	S & P Rating	 	Rating	 	Borrowings	 	Borrowings
	 
	 
	 	 	 	 	 	 	 	 	 	 
	1
	 	A3 or higher	 	A- or higher	 	A- or higher	 	0.50%	 	0.00%
	 
	 	 	 	 	 	 	 	 	 	 
	2
	 	Baa1	 	BBB+	 	BBB+	 	0.525%	 	0.00%
	 
	 	 	 	 	 	 	 	 	 	 
	3
	 	Baa2	 	BBB	 	BBB	 	0.65%	 	0.00%
	 
	 	 	 	 	 	 	 	 	 	 
	4
	 	Baa3	 	BBB-	 	BBB-	 	0.80%	 	0.00%






     The “Applicable Rating” shall be determined as follows: (i) if a Debt Rating is issued by only
two (2) of Moody’s, S & P, and a Third Agency, and (A) such Debt Ratings shall fall within
different Levels (but not more than one (1) Level apart), then the Applicable Rating shall be the
higher of such Debt Ratings (e.g. if the Moody’s Rating is at Level 1 and the S & P Rating is at
Level 2, then the Applicable Rating shall be determined by reference to Level 1), (B) such Debt
Ratings shall fall within different Levels (two (2) or more Levels apart), the Applicable Rating
shall be the Debt Rating at the midpoint between the highest Debt Rating and the lowest Debt Rating
(e.g. if the Moody’s Rating is at Level 1 and the S & P Rating is at Level 3, then the Applicable
Rating shall be determined by reference to Level 2); provided however, that if there is no such
midpoint, then the Applicable Rating shall be determined by reference to the Level which is the
higher Debt Rating of the two intermediate Debt Ratings (e.g., if the S & P Rating is at Level 1
and the Moody’s Rating is at Level 4, then the Applicable Margin shall be determined by reference
to Level 2); and (ii) if a Debt Rating is issued by each of Moody’s, S & P, and a Third Agency,
then the Applicable Rating shall be the lower of the two (2) highest such Debt Ratings (e.g. if the
Moody’s Rating is at Level 1, the S & P Rating is at Level 2, and the Third Agency Rating is at
Level 3, then the Applicable Rating shall be determined by reference to Level 2). Each change in
the Applicable Rating based upon a publicly announced change in the Debt Rating shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.



     “Approved Costs” means, for any Property, the sum of the acquisition, construction, and other
capitalized costs incurred for such Property (or the Stock of the Company that owns such Property),
whether in the form of cash, property, liabilities assumed, or other consideration.



     “Approved Fund” is defined in Section 13.11(g).



3









 





     “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 13.11), and accepted
by the Administrative Agent, in the form of Exhibit E attached hereto, or any other form
approved by the Administrative Agent.



     “Assumed Interest Expense” means, as of any date, the product of (a) the aggregate amount of
all Unsecured Debt of the Companies as of such date, times (b) the weighted average interest rate
per annum on all such Unsecured Debt as of such date.



     “Base Rate” means, for any day, the greater of (a) the sum of the Federal Funds Rate plus
one-half of one percent (0.5%), and (b) the annual interest rate most recently announced by
Administrative Agent as its prime rate (or, if the Person then acting as Administrative Agent under
this Agreement is not a bank organized under the Governmental Requirements of the United States or
any State, then the rate announced by Eurohypo, or any successor thereof, as its prime rate) in
effect at its principal office, automatically fluctuating upward and downward with and as specified
in each announcement without special notice to Borrower or any other Person (which prime rate may
not necessarily represent the lowest or best rate actually charged to a customer).



     “Base Rate Borrowing” means a Borrowing bearing interest at the Base Rate plus the Applicable
Margin.



     “Binding Agreement” means a binding agreement pursuant to which a Company has agreed to
purchase a Contract Property or a Development Property from another Person and in which such Person
may enforce rights and remedies at law or in equity against a Company for failure to purchase such
Contract Property or Development Property and which remedies are not limited to retaining earnest
money, escrow, liquidated damages not to exceed ten percent (10%) of the applicable purchase price,
or other deposits of a Company or similar limitations on the liability of any Company.



     “Borrowing” means (without duplication) any amount disbursed by (a) Lenders to or on behalf of
Borrower under the Loan Documents, or (b) any Lender in accordance with, and to satisfy the
obligations of Borrower under, any Loan Document.



     “Borrowing Date” means for any Borrowing, the date any Borrowing is converted hereunder to
another Type of Borrowing.



     “Borrowing Request” means a request substantially in the form of Exhibit A attached hereto.



     “Broadmoor” means Broadmoor Austin Associates, a Texas joint venture.



     “Business Day” means (a) for all purposes, any day other than Saturday, Sunday, and any other
day that commercial banks are authorized by any Governmental Requirement to be closed in Texas or
New York, and (b) for purposes of any Eurodollar Borrowing, a day that satisfies the requirements
of clause (a) and is a day when commercial banks are open for domestic or international business in
London.



     “Capital Expenditures” means any expenditures by a Person for an asset that will be used in
years subsequent to the year in which the expenditure is made or which is properly classified in
the relevant financial statements of such Person in accordance with GAAP as a capital asset.



     “Capital Lease” means, for any Person, any capital lease or sublease that has been (or under
GAAP should be) capitalized on a balance sheet of such Person.



4









 





     “Cash Equivalents” means (a) investments and direct obligations of the United States of
America or any agency thereof, or obligations fully guaranteed by the United States of America or
any agency thereof, provided that such obligations mature within one (1) year of the date of
acquisition thereof, (b) commercial paper rated “A-1” or higher according to S & P or “P-1” or
better according to Moody’s and maturing not more than one hundred and eighty (180) days from the
date of acquisition thereof, (c) time deposits with, and certificates of deposit and bankers’
acceptances issued by Administrative Agent or any United States bank having capital surplus and
undivided profits aggregating at least $1,000,000,000, and (d) mutual funds whose investments are
limited to the foregoing.



     “Change in Control” means, with respect to Borrower, the transfer of beneficial ownership of
the outstanding partnership interests of Borrower such that PPT owns, directly or indirectly, less
than fifty-one percent (51%) of the outstanding partnership interests of Borrower.



     “Closing Date” is defined in the preamble.



     “Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.



     “Companies” means, without duplication, (a) Guarantors, (b) Borrower, and (c) each of their
respective Consolidated Affiliates, and “Company” means any one of the Companies.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit B and signed
by a Responsible Officer of Borrower and PPT.



     “Consolidated Affiliate” means, in respect of any Person, any other Person in whom such Person
holds an equity or ownership interest and whose financial results would be consolidated under GAAP
with the financial results of such Person on the consolidated financial statements of such Person.



     “Consolidated Basis” means, with respect to any amount used in the calculation of any
financial covenant or financial definition in this Agreement, such amount calculated on a
consolidated basis for the Companies in accordance with GAAP; provided that such amounts shall be
adjusted to (a) exclude any amounts attributable to Unconsolidated Affiliates of the Companies as
calculated in accordance with GAAP, (b) include the Companies’ Share of such amounts for their
Unconsolidated Affiliates (other than Broadmoor), and (c) exclude the Share of any such amounts
attributable to the holders of Stock of any Consolidated Affiliates of Borrower that are not a
Company.



     “Constituent Documents” means, with respect to any Person, its articles or certificate of
incorporation, bylaws, partnership agreements, organizational documents, limited liability company
agreements, trust agreement, or such other document as may govern such Person’s formation,
organization, and management.



     “Contract Property” means a real estate property that a Company has agreed to purchase
directly or indirectly (through the purchase of Stock) from a Person that is not a Company.



     “Credit Parties” means Administrative Agent and Lenders, and “Credit Party” means any one of
the Credit Parties.



     “Current Financials” means, at any time, the consolidated Financial Statements of the
Companies most recently delivered to Administrative Agent under Section 7.1(a) or 7.1(b), as the
case may be.



5









 





     “Customary Recourse Exceptions” means with respect to any Non-Recourse Debt, exclusions from
the exculpation provisions with respect to such Non-Recourse Debt for fraud, misapplication of
cash, environmental claims, breach of representations or warranties, failure to pay taxes and
insurance, and other circumstances customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements in non-recourse financings of
real estate.



     “Debt Rating” means any one of the Moody’s Rating, the S & P Rating, and, as applicable, the
Third Agency Rating, and “Debt Ratings” means each Debt Rating taken collectively.



     “Debt Service” means, for the Companies on a Consolidated Basis for any period, the sum of
all regularly scheduled principal payments (but excluding any regularly scheduled principal
payments on any Indebtedness which pays such Indebtedness in full, but only to the extent that the
amount of such final payment is greater than the scheduled principal payment immediately preceding
such final payment) and all Interest Expense that are paid or payable during such period in respect
of all Liabilities of the Companies.



     “Debtor Relief Laws” means Title 11 of the United States Code and all other applicable state
or federal liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, or similar Governmental Requirements affecting
creditors’ Rights in effect from time to time.



     “Default” is defined in Section 10.




     “Defaulting Lender” is defined in Section 12.11.



     “Default Rate” means an annual rate of interest equal from day-to-day to the lesser of (a) the
then-existing Base Rate plus the Applicable Margin plus four percent (4%), and (b) the Maximum
Rate.



     “Development Property” means a real estate property that is under construction or development
by a Person that is not a Company and that a Company has agreed to purchase or lease (pursuant to a
master lease or ground lease of all or substantially all of the property) upon completion of such
construction or development.



     “Distribution” means, with respect to any Stock issued by a Person, without duplication, (a)
the declaration or payment of any dividend or distribution on or with respect to such Stock by such
Person, but not including any Special Dividends, (b) any loan or advance by that Person to, or
other investment by that Person in, the holder of any of such Stock, and (c) any other payment by
that Person with respect to such Stock.



     “EBITDA” means, for any Person or any Property for any period, the sum of (a) Net Income, plus
(b) depreciation and amortization expense, plus (c) Interest Expense, plus (d) income taxes
deducted from Net Income in accordance with GAAP, plus (e) extraordinary losses (and any unusual
losses arising in or outside the ordinary course of business of such Person not included in
extraordinary losses) determined in accordance with GAAP that have been reflected in the
determination of Net Income, minus (f) extraordinary gains (and any unusual gains arising in or
outside the ordinary course of business of such Person not included in extraordinary gains)
determined in accordance with GAAP that have been reflected in the determination of Net Income.



     “EBITDA Adjustments” means, for any Property for any period, (a) appropriate accruals for
items such as taxes, insurance, or other expenses determined by Borrower (subject to the reasonable



6









 







approval of Administrative Agent), (b) a management fee equal to the greater of actual fees
incurred or two percent (2%) of in place actual rents, and (c) a reserve of $0.25 per square foot
per year for office Properties and $0.15 per square foot for industrial Properties, all as
determined in accordance with accounting principles reasonably acceptable to Administrative Agent,
consistently applied.



     “EBITDA Value” means, for any Property as of any determination date, (a) Adjusted Property
EBITDA for such Property, divided by (b) eight and one-half percent (8.5%). In no event shall the
EBITDA Value for any Property be less than zero.



     “Eligible Assignee” is defined in Section 13.11(g).



     “Employee Plan” means an employee pension benefit plan covered by Title IV of ERISA and
established or maintained by any Company.



     “Environmental Law” means any and all Governmental Requirements pertaining to health or the
environment in effect in any and all jurisdictions in which any Company is conducting or at any
time has conducted business, or where any property of any Company is located, including, without
limitation, the Oil Pollution Act of 1990, as amended, (“OPA”), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, as amended,
(“CERCLA”), the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health
Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976, as amended, (“RCRA”),
the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials
Transportation Act, as amended, and other environmental conservation or protection Governmental
Requirements. The term “oil” has the meaning specified in OPA, the terms “hazardous substance” and
"release” (or “threatened release”) have the meanings specified in CERCLA, and the terms “solid
waste” and “disposal” (or “disposed”) have the meanings specified in RCRA; provided, however, that
(i) in the event either OPA, CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the effective date of such
amendment, and (ii) to the extent the Governmental Requirements of the state in which any property
of any Company is located establish a meaning for “oil,” “hazardous substance,” “release,” “solid
waste” or “disposal” which is broader than that specified in either OPA, CERCLA or RCRA, such
broader meaning shall apply.



     “Equity Issuance” means the issuance or sale by any Company, without duplication, of any
Stock, or options, warrants, or other rights to subscribe for or otherwise acquire Stock, of such
Company, other than the issuance by Borrower of Stock in Borrower to sellers of properties or
non-cash assets as a partial payment of the purchase price of such assets.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules
and regulations promulgated thereunder.



     “Eurodollar Borrowing” means a Borrowing bearing interest at the sum of the Eurodollar Rate
plus the Applicable Margin.



     “Eurodollar Rate” means for any Interest Period with respect to any Eurodollar Borrowing:



     (a) the rate per annum (rounded upward as necessary to the nearest 1/100th of 1%) equal to the
rate determined by Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in lawful money of the United States (for delivery on the
first (1st) day of such Interest



7









 







Period) with a term equivalent to such Interest Period, reasonably determined as of approximately
11:00 a.m. (London time) two (2) Business Days prior to the first (1st) day of such
Interest Period; or



     (b) if the rate referenced in the preceding clause (a) does not appear on such page or service
or such page or service shall not be available, then the rate per annum (rounded upward as
necessary to the nearest 1/100th of 1%) equal to the rate reasonably determined by Administrative
Agent to be the offered rate on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in lawful money of the United States (for
delivery on the first (1st) day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first (1st) day of such Interest Period; or



     (c) if the rates referenced in the preceding clauses (a) and (b) are not available, then the
rate per annum (rounded upward as necessary to the nearest 1/100th of 1%) reasonably determined by
Administrative Agent as the rate of interest at which deposits in lawful money of the United States
for delivery on the first (1st) day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Borrowing being made, continued, or converted and with a term
equivalent to such Interest Period would be offered by Eurohypo to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two (2)
Business Days prior to the first (1st) day of such Interest Period.



     “Eurohypo” means Eurohypo AG, New York Branch.



     “Excluded Companies” means, as of any date of determination, any Consolidated Affiliate or
Unconsolidated Affiliate of PPT whose (a) individual contribution to the calculation of Total
Assets as of such determination date constitutes less than fifteen percent (15%) of Total Assets,
and (b) aggregate contributions to the calculation of Total Assets as of such determination date
constitute less than twenty percent (20%) of Total Assets.



     “Existing Line of Credit” means the Third Amended and Restated Credit Agreement dated as of
July 26, 2005, executed by Borrower, JPMorgan Chase Bank, N.A., as administrative agent, Bank of
America, N.A., as syndication agent, the Co-Documentation Agents defined therein, and the Lenders
defined therein, as such Third Amended and Restated Credit Agreement has been or may be modified,
amended, renewed, extended, or restated from time to time.



     “Federal Funds Rate” means, on any day, the annual rate (rounded upwards, if necessary, to the
nearest 0.01%) determined by Administrative Agent (which determination is conclusive and binding,
absent manifest error) to be equal to the weighted average of the rates on overnight federal funds
transactions with member banks of the Federal Reserve System arranged by federal funds brokers as
published by the Federal Reserve Bank of New York on the next successive Business Day; provided,
however, that (a) if such determination date is not a Business Day, then the Federal Funds Rate for
such day shall be the rate for such transactions on the next preceding Business Day as published on
the next successive Business Day, or (b) if those rates are not published for any Business Day,
then the Federal Funds Rate shall be the average of the quotations at approximately 10:00 a.m. on
such Business Day received by Administrative Agent from three (3) federal funds brokers of
recognized standing selected by Administrative Agent in its sole discretion.



     “Financeable Ground Lease” means, a ground lease satisfactory to Administrative Agent in its
reasonable discretion, which must provide protections for a potential leasehold mortgagee
(“Mortgagee”) which include, among other things (a) a remaining term, including any optional
extension terms exercisable unilaterally by the tenant, of no less than twenty-five (25) years from
the Closing Date, (b)



8









 







that the ground lease will not be terminated until the Mortgagee has received notice of a default,
has had a reasonable opportunity to cure or complete foreclosure, and has failed to do so, (c)
provision for a new lease on the same terms to the Mortgagee as tenant if the ground lease is
terminated for any reason or other protective provisions acceptable to Administrative Agent, (d)
non-merger of the fee and leasehold estates, (e) transferability of the tenant’s interest under the
ground lease without any requirement for consent of the ground lessor unless based on reasonable
objective criteria as to the creditworthiness or line of business of the transferee or delivery of
customary assignment and assumption agreements from the transferor and transferee, and (f) that
insurance proceeds and condemnation awards (from the fee interest as well as the leasehold
interest) will be applied pursuant to the terms of the applicable leasehold mortgage.



     “Financial Statements” of a Person means balance sheets, and statements of earnings,
shareholders’ equity, and cash flow prepared (a) according to GAAP, (b) except as stated in Section
1.4, in comparative form to prior year-end figures or corresponding periods of the preceding fiscal
year, as applicable, and (c) on a consolidated basis if that Person had any Consolidated Affiliates
during the applicable period.



     “Fixed Charges” means, for the Companies on a Consolidated Basis for any period, the sum of
(a) Debt Service during such period, and (b) all Distributions paid or payable during such period
in respect of any preferred Stock of the Companies, but excluding any Consolidated Affiliates Share
of an Unconsolidated Affiliate’s Distributions in respect of preferred Stock paid to a Consolidated
Affiliate.



     “Foreign Lender” means any Lender that is organized under the Governmental Requirements of any
jurisdiction other than the United States of America or any State thereof.



     “Fund” is defined in Section 13.11(g).



     “Funding Loss” means, without duplication, any loss, expense, or costs incurred by any Lender
(including any loss, expense, or cost incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to make or maintain any portion of any Borrowing as
a Eurodollar Borrowing) when (a) Borrower fails or refuses (for any reason other than any Lender’s
failure to comply with this Agreement) to take any Borrowing that it has requested under this
Agreement, (b) Borrower prepays or pays any Borrowing or converts any Borrowing to a Borrowing of
another Type, in each case, before the last day of the applicable Interest Period, as the case may
be, (c) Borrower fails or refuses to prepay a Eurodollar Borrowing on the date specified in any
notice of prepayment, (d) Borrower fails or refuses to continue a Eurodollar Borrowing on the date
specified in a Borrowing Request, or (e) Borrower fails or refuses to convert a Base Rate Borrowing
to a Eurodollar Borrowing on the date specified in a Borrowing Request.



     “Funds from Operations” means, for any Person for any period, without duplication, (a) such
Person’s, and such Person’s Share of its Unconsolidated Affiliates Net Income plus depreciation and
amortization expense (exclusive of amortization of financing costs), all as determined in
accordance with GAAP, minus (b) the Share of any such amounts attributable to the holders of Stock
of any Consolidated Affiliates of such Person that are not a Company (calculated in accordance with
clause (a) preceding); provided that there shall not be included in such calculation (i) any
proceeds of any insurance policy other than rental or business interruption insurance received by
such Person, (ii) any gain or loss which is classified as “extraordinary” in accordance with GAAP,
or (iii) any capital gains and losses and taxes on capital gains. Funds from Operations shall not
be reduced by any Distribution in respect of any preferred Stock of such Person. Notwithstanding
the foregoing, non-cash charges for asset impairment and losses from debt extinguishment required
under GAAP shall not be deducted from Net Income in determining Funds from Operations.



9









 





     “GAAP” means generally accepted accounting principles of the Accounting Principles Board of
the American Institute of Certified Public Accountants and the Financial Accounting Standards Board
that are applicable on the date of this Agreement, subject to changes permitted by Section 1.4.



     “Governmental Authority” means any (a) local, state, or federal judicial, executive, or
legislative instrumentality, (b) private arbitration board or panel acting through binding
arbitration or mediation, or (c) central bank.



     “Governmental Requirement” means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, opinions, and interpretations of any
Governmental Authority.



     “Guaranties” means the PPT Guaranty and the Subsidiary Guaranty, and “Guaranty” means any one
of the Guaranties.



     “Guarantors” means PPT and Subsidiary Guarantors, and “Guarantor” means any one of the
Guarantors.



     “Hazardous Substance” means any substance (a) the presence of which requires removal,
remediation, or investigation under any Environmental Law, or (b) that is defined or classified as
a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous substance
under any Environmental Law.



     “Indebtedness” means, for any Person, all Liabilities of such Person, excluding (a) accounts
payable and accrued expenses in each case incurred in the ordinary course of business and the
payment of which is not past-due (unless payment is being contested in good faith by appropriate
proceedings diligently conducted and for which reserves in accordance with GAAP or otherwise
reasonably acceptable to Administrative Agent have been provided), and (b) Liabilities in which
such Person maintains restricted cash deposits that are not included in Total Assets to satisfy
payment thereof, but only to the extent of such cash deposits.



     “Index Ratio” means the financial covenant set forth in Section 9.2.



     “Interest Expense” means, for any Person for any period, all of such Person’s paid, accrued,
or amortized interest expense (net of any amounts received by such Person in respect of any
Interest Rate Agreements, but including any amounts paid or amortized during such period in respect
of any Interest Rate Agreements) on such Person’s Indebtedness (whether direct, indirect, or
contingent, and including interest on all convertible Indebtedness), other than interest
capitalized on the balance sheet of such Person in accordance with GAAP.



     “Interest Period” has the meaning set forth in Section 3.9.



     “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, or other similar agreement or arrangement designed to protect any
Company against fluctuations in interest rates.



     “Investment Grade Rating” means that (a) both (i) the Moody’s Rating equals Baa3 or better and
(ii) the S & P Rating equals BBB- or better, or (b) (i) either (A) the Moody’s Rating equals Baa3
or better or (B) the S & P Rating equals BBB- or better, and (ii) the Third Agency Rating is BBB-
(or its equivalent) or better.



10









 





     “Investments in Joint Ventures” means the Companies’ investments in the Stock of, or loans and
advances to, partnerships, joint ventures, and similar entities that are not Consolidated
Affiliates. Investments in Joint Ventures, as of any date, shall be calculated as the lesser of
the Companies’ Share of (a) the Approved Costs of each Property owned by an Unconsolidated
Affiliate, and (b) the sum of (i) the book value of such Property on the financial statements of
such Unconsolidated Affiliate determined in accordance with GAAP plus (ii) accumulated depreciation
with respect to such Property determined in accordance with GAAP.



     “Lenders” is defined in the preamble.



     “Liabilities” means (without duplication), for any Person, (a) any indebtedness, liabilities,
or obligations required by GAAP to be classified upon such Person’s balance sheet as liabilities,
(b) any liabilities secured (or for which the holder of the Liability has an existing Right,
contingent or otherwise, to be so secured) by any Lien existing on property owned or acquired by
that Person, (c) any obligations that have been (or under GAAP should be) capitalized for financial
reporting purposes, including all Capital Leases, (d) mandatory net obligations to purchase or
repurchase such Person’s Stock as calculated by Borrower in a manner reasonably acceptable to
Administrative Agent, (e) Unfunded Liabilities, and (f) such Person’s Share of any Liabilities of
Unconsolidated Affiliates, and “Liability” means any of the Liabilities; provided however, that
Liabilities shall exclude (x) the net “mark-to-market” obligations of such Person under any
Interest Rate Agreement and (y) any perpetual and/or preferred Stock of such Person classified upon
such Person’s balance sheet as a liability in accordance with GAAP, provided that such perpetual
and/or preferred Stock was not classified upon such Person’s balance sheet as a liability in
accordance with GAAP when originally issued by such Person.



     “Lien” means any lien, mortgage, security interest, pledge, assignment, charge, title
retention agreement, or encumbrance of any kind and any other substantially similar arrangement for
a creditor’s claim to be satisfied from assets or proceeds prior to the claims of other creditors
or the owners.



     “Litigation” means any action by or before any Governmental Authority.



     “Loan Documents” means (a) this Agreement, certificates, and reports delivered under this
Agreement, and exhibits and schedules to this Agreement, (b) the Notes, (c) the Guaranties, (d) any
Interest Rate Agreements with any Lender specifically relating to the Obligation, (e) all other
agreements, documents, and instruments executed by Obligors in favor of any of the Credit Parties
(or Administrative Agent on behalf of the Credit Parties) ever delivered in connection with or
under this Agreement, and (f) all renewals, extensions, and restatements of, and amendments and
supplements to, any of the foregoing.



     “Material Adverse Event” means any circumstance or event that, individually or collectively
with other circumstances or events, reasonably is expected to result in any (a) material impairment
of the ability of the Obligors (including Borrower and PPT), taken as a whole, Borrower, or PPT to
perform any of their respective payment or other obligations under any Loan Document, (b) material
impairment of the ability of any Credit Party to enforce (i) any of the obligations of any Obligor
under this Agreement or the other Loan Documents, or (ii) any of their respective Rights under the
Loan Documents, or (c) material and adverse effect on the financial condition of the Companies
(including Borrower and PPT), taken as a whole, Borrower, or PPT.



     “Maximum Amount” and “Maximum Rate” respectively mean, for Administrative Agent or a Lender,
the maximum non-usurious amount and the maximum non-usurious rate of interest that, under
applicable Governmental Requirement, Administrative Agent or such Lender is permitted to contract
for, charge, take, reserve, or receive on the Obligation.



11









 





     “Moody’s” means Moody’s Investors Service, Inc., or, if Moody’s no longer publishes ratings,
another ratings agency acceptable to Administrative Agent.



     “Moody’s Rating” means the most recently-announced rating from time to time of Moody’s
assigned to the Obligation or any class of long-term senior, unsecured debt securities issued by
PPT or Borrower, as to which no letter of credit, guaranty, or third-party credit support is in
place, regardless of whether all or any part of such debt securities have been issued at the time
such rating was issued.



     “Multi-employer Plan” means a multi-employer plan as defined in Sections 3(37) or 4001(a)(3)
of ERISA or Section 414(f) of the Code to which Borrower or any of its Consolidated Affiliates (or
any Person that, for purposes of Title IV of ERISA, is a member of Borrower’s controlled group or
is under common control with Borrower within the meaning of Section 414 of the Code) is making, or
has made, or is accruing, or has accrued, an obligation to make contributions.



     “Net Income” means, for any Person or any Property for any period, the net earnings (or loss)
after taxes of such Person or such Property, as the case may be, determined in accordance with
GAAP.



     “Net Proceeds” means, with respect to any Equity Issuance by any Company, the amount of cash
received by such Company in connection with such transaction after deducting therefrom the
aggregate, without duplication, of the following amounts to the extent properly attributable to
such transaction: (a) brokerage commissions, attorneys’ fees, finder’s fees, financial advisory
fees, accounting fees, underwriting fees, investment banking fees, and other similar commissions
and fees (and expenses and disbursements of any of the foregoing), in each case, to the extent paid
or payable by such Company; (b) printing and related expenses and filing, recording, or
registration fees or charges or similar fees or charges paid by such Company; and (c) taxes paid or
payable by such Company to any Governmental Authority as a result of such transaction.



     “Non-Recourse Debt” means, for any Person, any Indebtedness of such Person in which the holder
of such Indebtedness may not look to such Person personally for repayment, other than to the extent
of any security therefor or pursuant to Customary Recourse Exceptions.



     “Notes” means one of the promissory notes substantially in the form of Exhibit D, and “Note”
means any one of the Notes.



     “Obligation” means all present and future indebtedness and obligations, and all renewals,
increases, and extensions thereof, or any part thereof, now or hereafter owed to any Credit Party
by Borrower under any Loan Document, together with all interest accruing thereon, fees, costs and
expenses (including all reasonable attorneys’ fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Documents or in connection with the protection of Rights
under the Loan Documents.



     “Obligors” means Borrower and Guarantors, and “Obligor” means any one of the Obligors.



     “Occupancy Rate” means, for any Property, the percentage of the rentable area of such Property
leased pursuant to bona fide tenant leases, licenses, or other agreements requiring current rent or
other similar payments (unless the tenant is in a free rent period offered as an inducement to
enter into such bona fide tenant lease on customary terms, not to exceed twelve (12) months).



     “Participant” is defined in Section 13.11(d).



12









 





     “Patriot Act” is defined in Section 6.20.



     “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereof, established
under ERISA.



     "Permitted Distributions” means, for (a) Borrower for any fiscal year of Borrower, an amount
of Distributions not to exceed ninety-five percent (95%) of Borrower’s Funds from Operations for
such fiscal year, and (b) PPT for any fiscal year of PPT, an amount of Distributions not to exceed
ninety-five percent (95%) of PPT’s Funds from Operations for such fiscal year.



     “Permitted Liens” means:



     (a) Liens granted to Administrative Agent, for the ratable benefit of the Credit Parties, to
secure the Obligation;



     (b) pledges or deposits made to secure payment of worker’s compensation (or to participate in
any fund in connection with worker’s compensation insurance), unemployment insurance, pensions, or
social security programs;



     (c) encumbrances consisting of zoning restrictions, easements, or other restrictions on the
use of real property, provided that such items do not materially impair the use of such property
for the purposes intended and none of which is violated in any material respect by existing or
proposed structures or land use;



     (d) Liens imposed by mandatory provisions of any Governmental Requirement such as for
materialmen’s, mechanic’s, warehousemen’s, and other like Liens arising in the ordinary course of
business, securing payment of any Liability whose payment is not yet due or that is being contested
in good faith by appropriate proceedings diligently conducted, and for which reserves in accordance
with GAAP or other security (and otherwise reasonably acceptable to Administrative Agent) have been
provided;



     (e) Liens for taxes, assessments, and governmental charges or assessments that are not yet due
and payable or that are being contested in good faith by appropriate proceedings diligently
conducted, and for which reserves in accordance with GAAP or other security (and otherwise
reasonably acceptable to Administrative Agent) have been provided;



     (f) Liens securing assessments or charges payable to a property owner association or similar
entity, which assessments are not yet due and payable or that are being contested in good faith by
appropriate proceedings diligently conducted, and for which reserves in accordance with GAAP or
other security (and otherwise reasonably acceptable to Administrative Agent) have been provided;
and



     (g) Liens in a Property securing Indebtedness for which cash or Cash Equivalents in an amount
sufficient to pay all principal and interest of such Indebtedness have been deposited with a title
company or other escrow agent and in which the owner of such Property is insured by title insurance
acceptable to Administrative Agent.



     “Person” means any individual, entity, or Governmental Authority.



     “Potential Default” means the occurrence of any event or the existence of any circumstance
that could, upon notice or lapse of time or both, become a Default.



13









 





     “PPT” means Prentiss Properties Trust, a Maryland real estate investment trust.



     “PPT Guaranty” means the Unconditional Guaranty of Payment dated of even date herewith,
executed by PPT in favor of the Credit Parties, and substantially in the form of Exhibit C-1.



     “Principal Debt” means, for a Lender and at any time, the unpaid principal balance of all
outstanding Borrowings from such Lender hereunder.



     “Properties” means all real estate properties owned by any Company or any Unconsolidated
Affiliate, and “Property” means any one of the Properties.



     “Pro Rata” and “Pro Rata Share” means, when determined for any Lender, the percentage obtained
by dividing (a) the Principal Debt owed to such Lender by (b) the Total Principal Debt.



     “Recourse Debt” means, for any Person, Indebtedness of such Person that is not Non-Recourse
Debt; provided that (a) Recourse Debt of the Companies shall include any Indebtedness guaranteed
(other than Customary Recourse Exceptions) by PPT or Borrower, and (b) Recourse Debt of the
Companies, as of any date, shall not include Indebtedness of any Excluded Companies so long as no
Obligor is obligated (as guarantor or otherwise other than for Customary Recourse Exceptions) on
such Indebtedness. To the extent that any Person has partial recourse obligations with respect to
any Indebtedness, then only that portion of such Indebtedness that is not Non-Recourse Debt shall
be considered to be Recourse Debt (e.g., if any such Person is personally liable for only
$25,000,000 of Indebtedness equal to $100,000,000, then only $25,000,000 of such Indebtedness shall
be Recourse Debt).



     “Redemption” means, with respect to any Stock issued by a Person, the retirement, redemption,
purchase, or other acquisition for value of such Stock by such Person.



     “Register” is defined in Section 13.11(c).



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.



     “REIT” means a “real estate investment trust” for purposes of the Code.



     “Representatives” means representatives, officers, directors, employees, attorneys, and
agents.



     “Required Lenders” means, as of any date, any combination of Lenders (other than Defaulting
Lenders) who collectively hold sixty-six and two-thirds percent (66-2/3%) or more of the Total
Principal Debt (other than the Principal Debt of Defaulting Lenders).



     “Reserve Requirement” means, with respect to any Eurodollar Borrowing for the relevant
Interest Period, the actual aggregate reserve requirements (including all basic, supplemental,
emergency, special, marginal, and other reserves required by applicable Governmental Requirement
including, without limitation, Regulation D) applicable to a member bank of the Federal Reserve
System for eurocurrency fundings or liabilities.



     “Responsible Officer” means, for any Person, any chairman, president, chief executive officer,
chief financial officer, controller, secretary, treasurer, executive vice president, or senior vice
president of such Person.



14









 





     “Rights” means rights, remedies, powers, privileges, and benefits.



     “Secured Debt” means, for any Person, Indebtedness of such Person secured by Liens (other than
Permitted Liens) in any of such Person’s Properties or other assets.



     “Share” means, for any Person, such Person’s share of the assets, liabilities, revenues,
income, losses, or expenses of a Consolidated Affiliate or an Unconsolidated Affiliate, as
applicable, of such Person, based upon such Person’s percentage ownership of Stock of such
Consolidated Affiliate or Unconsolidated Affiliate.



     “Solvent” means, as to a Person, that (a) the aggregate fair market value of its assets
exceeds its Liabilities, (b) such Person is able to pay and is paying its Liabilities as they
mature, and (c) it does not have unreasonably small capital to conduct its businesses.



     “S & P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., a New York
corporation, or if S & P no longer publishes ratings, then another ratings agency acceptable to
Administrative Agent.



     “S & P Rating” means the most recently-announced rating from time to time of S & P assigned to
the Obligation or any other class of long-term senior, unsecured debt securities issued by PPT or
Borrower, as to which no letter of credit, guaranty, or third-party credit support is in place,
regardless of whether all or any part of such debt securities have been issued at the time such
rating was issued.



     “Special Advance Lender” is defined in Section 12.11.



     “Special Dividends” means the net cash proceeds (net of related debt payments) from the sale
of assets, to the extent that such cash proceeds are not otherwise included in the definition of
Funds from Operations.



     “Stock” means all shares, options, warrants, general or limited partnership interests,
membership interests, or other ownership interests (regardless of how designated) of or in a
corporation, partnership, limited liability company, trust, or other entity, whether voting or
nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended).



     “Subsidiary Guarantors” means, as of any date, all Consolidated Affiliates that have executed
the Subsidiary Guaranty, and “Subsidiary Guarantor” means any one of the Subsidiary Guarantors.



     “Subsidiary Guaranty” means each Unconditional Guaranty of Payment substantially in the form
of Exhibit C-2, executed by a Subsidiary Guarantor in favor of the Credit Parties, and “Subsidiary
Guaranty” means any one of the Subsidiary Guaranties.



     “Syndication Agent” means the Person identified as a syndication agent on the cover page or
signature pages of this Agreement or pursuant to any provision of this Agreement, together with
their successors and assigns.



     “Tangible Net Worth” means, as of any date, (a) Total Assets, minus (b) all Liabilities (other
than accounts payable and accrued expenses that are not Indebtedness and that are incurred in the
ordinary



15









 







course of business not exceeding five percent (5%) of Total Assets as of such date) of the
Companies, on a Consolidated Basis, as of such date.



     “Taxes” means, for any Person, taxes, assessments, or other governmental charges or levies
imposed upon it, its income, or any of its properties, franchises, or assets.



     “Termination Date” means May 22, 2008.



     “Term Loan” means, for a Lender, the amount (which is subject to reduction and cancellation as
provided in this Agreement) stated besides such Lender’s name on Schedule 1 as most recently
amended under this Agreement, as the same may be increased or decreased from time to time by
further assignment pursuant to Section 13.11, and “Term Loans” means the Term Loans of all Lenders.



     “Third Agency” means Fitch, Inc. or any other nationally recognized rating agency other than
Moody’s or S & P, as approved by Administrative Agent in its reasonable discretion.



     “Third Agency Rating” means the most recently-announced rating from time to time of a Third
Agency assigned to the Obligation or any other class of long-term senior, unsecured debt securities
issued by PPT or Borrower, as to which no letter of credit, guaranty, or third-party credit support
is in place, regardless of whether all or any part of such debt securities have been issued at the
time such rating was issued.



     “Total Assets” means, as of any determination date, the sum of the Companies’ Share of the
following (without duplication):



     (a) the EBITDA Value of each Property owned by a Company for, and in which construction was
completed and a certificate of occupancy was issued, more than twelve (12) months as of such
determination date, provided, however, that for any such Property that has an Occupancy Rate of
less than eighty-five percent (85%), then commencing with the first quarter that the Occupancy Rate
is less than eighty-five percent (85%) for any month during such quarter, for that quarter and for
the next five (5) calendar quarters thereafter, Borrower may use the higher of EBITDA Value or
Approved Costs; plus



     (b) the Approved Costs of each Property not included in any other clause of this definition;
plus



     (c) the lesser of (i) $40,000,000, and (ii) the product of (A) seven (7), and (B) EBITDA for
the four (4) fiscal quarters ending on such determination date in respect of management contracts
between a Company and a third party (other than another Company), provided, however, if a
management contract is with an Unconsolidated Affiliate or a Company, as owner, the EBITDA related
to any such management contract will only include the unrelated party’s share of such EBITDA; plus



     (d) the sum of (without duplication) the Approved Costs of each Property owned by an
Unconsolidated Affiliate (other than Broadmoor) as of such determination date, provided, that if
the interest in the Unconsolidated Affiliate is an interest retained or granted as part of the
sales price of a Property, then the value will be Borrower’s share of the net sales price of such
Property; plus



     (e) the Companies’ cash and Cash Equivalents, in each case that are not subject to any Lien;
plus



     (f) the lesser of (i) the sum of the Approved Costs of each Property consisting of raw land,
and (ii) five percent (5.0%) of Total Assets as of such date after giving effect to such land; plus



16









 





     (g) the Applicable Amount of each Contract Property to the extent that the calculation of
Liabilities or Indebtedness includes any Unfunded Liabilities with respect to such Contract
Property; plus



     (h) the Applicable Amount of each Development Property to the extent that the calculation of
Liabilities or Indebtedness includes any Unfunded Liabilities with respect to such Development
Property.


No Property can have a value, calculated as provided above, of less than $0.00.




     “Total Principal Debt” means, at any time, the sum of the Principal Debt of all Lenders.



     “Trust Preferred Securities” means collectively (i) the 25,000 Floating Rate Preferred
Securities of Prentiss Properties Capital Trust II, a Delaware statutory trust, having a stated
liquidation amount of $1,000 per security, bearing a variable rate, reset quarterly, equal to LIBOR
plus 1.25%, issued on May 26, 2005 and redeemable by Prentiss Properties Acquisition Partners,
L.P., at its option, any time after June 30, 2010, (ii) the 774 Common Securities of Prentiss
Properties Capital Trust II, having a stated liquidation amount of $1,000 per security, issued to
Prentiss Properties Limited, Inc. on May 26, 2005, (iii) the 51,250 Floating Rate Preferred
Securities of Prentiss Properties Capital Trust I, a Delaware statutory trust, having a stated
liquidation amount of $1,000 per security, bearing a variable rate, reset quarterly, equal to LIBOR
plus 1.25%, issued on March 15, 2005 and redeemable by Prentiss Properties Acquisition Partners,
L.P., at its option, any time after March 30, 2010, and (iv) the 1,586 Common Securities of
Prentiss Properties Capital Trust I, having a stated liquidation amount of $1,000 per security,
issued to Prentiss Properties Limited, Inc. on March 15, 2005, and similar issuances approved by
Administrative Agent, provided that Administrative Agent shall be deemed to have approved similar
issuances with subordination and prepayment provisions of the types contained in prior Trust
Preferred Securities.



     “Type” means any type of Borrowing determined with respect to the applicable interest option.



     “Unconsolidated Affiliate” means any Person in whom Borrower or PPT holds a voting equity or
ownership interest and whose financial results would not be consolidated under GAAP with the
financial results of Borrower or PPT on the consolidated financial statements of Borrower or PPT.



     “Unencumbered Properties” means, as of any date, all Properties in which any Company owns fee
simple title or leasehold interests under a Financeable Ground Lease, in each case (a) free and
clear of any Liens or claims (including restrictions on transferability or assignability) of any
kind (including any such Lien, claim or restriction imposed by the organizational documents of such
Company, but excluding Permitted Liens), (b) is not subject to any agreement (including (i) any
agreement governing Indebtedness incurred in order to finance or refinance the acquisition of such
asset, and (ii) if applicable, the organizational documents of such Company) which prohibits or
limits the ability of such Company to create, incur, assume or suffer to exist any Lien upon any
assets, unless all requisite consents have been obtained, and (c) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or refinance the
acquisition of such asset) which entitles any Person to the benefit of any Lien (but excluding
Permitted Liens), or would entitle any Person to the benefit of any Lien (but excluding Permitted
Liens), and “Unencumbered Property” means any one of the Unencumbered Properties. Unencumbered
Properties include Properties owned by Subsidiary Guarantors that have executed guaranties
permitted by the last two sentences of Section 4.4.



     “Unencumbered Property Report” means a report in substantially the form of Schedule 4.1
certified by a Responsible Officer of Borrower, setting forth in reasonable detail the total square
footage,



17









 







Occupancy Rate, Approved Costs, EBITDA, EBITDA Adjustments, and Adjusted Property EBITDA for the
Unencumbered Properties (individually and in the aggregate).



     “Unfunded Liabilities” means, for any Person, (a) if evidenced by a Binding Agreement, then
all obligations to purchase a Contract Property or Development Property (the amount of such
Unfunded Liabilities being equal to the Applicable Amount with respect to such Contract Property or
Development Property), and (b) any guaranties, endorsements, and other contingent obligations
(including any obligations as general partner) with respect to the principal of the Liabilities of
others (including any Unconsolidated Affiliates of such Person) for which such Person has personal
liability.



     “Unpaid Amount” is defined in Section 12.11.



     “Unsecured Debt” means, for any Person, Indebtedness of such Person that is not Secured Debt.



     1.2 Time References. Unless otherwise specified in the Loan Documents (a) time references are to
time in New York, New York and (b) in calculating a period from one date to another, the word
"from” means “from and including” and the word “to” or “until” means “to but excluding.”



     1.3 Other References. Unless otherwise specified in the Loan Documents (a) where appropriate, the
singular includes the plural and vice versa, and words of any gender include each other gender, (b)
headings and caption references may not be construed in interpreting provisions, (c) monetary
references are to currency of the United States of America, (d) section, paragraph, annex,
schedule, exhibit, and similar references are to the particular Loan Document in which they are
used, (e) references to “telecopy,” “facsimile,” “fax,” or similar terms are to facsimile or
telecopy transmissions, (f) references to “including” mean including without limiting the
generality of any description preceding that word, (g) the rule of construction that references to
general items that follow references to specific items are limited to the same type or character of
those specific items is not applicable in the Loan Documents, (h) references to any Person include
that Person’s heirs, personal representatives, successors, trustees, receivers, and permitted
assigns, (i) references to any Governmental Requirement include every amendment or supplement to
it, rule and regulation adopted under it, and successor or replacement for it, and (j) references
to any Loan Document or other document include every renewal and extension of it, amendment and
supplement to it, and replacement or substitution for it.



     1.4 Accounting Principles. Under the Loan Documents, unless otherwise stated, (a) GAAP determines
all accounting and financial terms and compliance with financial covenants, (b) GAAP in effect on
the date of this Agreement determines compliance with financial covenants, (c) otherwise, all
accounting principles applied in a current period must be comparable in all material respects to
those applied during the preceding comparable period, and (d) all accounting and financial terms
and compliance with financial covenants must be for the Companies, on a consolidated basis, as
applicable. If there is a change in GAAP after the date hereof, then each Compliance Certificate
shall include calculations setting forth the adjustments from the relevant financial items as shown
in the Current Financials, based on the then-current GAAP, to the corresponding financial items
based on GAAP as used in the Current Financials delivered to Administrative Agent and Lenders on or
prior to the date hereof, so as to demonstrate how such financial covenant compliance was derived
from the Current Financials.



18









 





SECTION 2




TERM LOANS




     2.1 Term Loans.



     (a) Borrowing. Subject to the terms and conditions of this Agreement (including the
conditions precedent in Section 5), each Lender has previously advanced to Borrower such Lender’s
Term Loan in the aggregate amount of $100,000,000.



     (b) Term Loans Generally. If Borrower pays or prepays any portion of the Term Loans under
this Agreement, then that portion may not be reborrowed. The Term Loans shall bear interest from
time to time in accordance with selections made by Borrower from time to time pursuant to Section
3.4.



SECTION 3




TERMS OF PAYMENT




     3.1 Notes and Payments.



     (a) The Total Principal Debt shall be evidenced by the Notes, which Notes shall be payable to
Lenders in the aggregate stated principal amount of the Term Loans.



     (b) Borrower must make each payment and prepayment on the Obligation, without offset,
counterclaim, or deduction, to Administrative Agent’s principal office in New York, New York, in
funds that will be available for immediate use by Administrative Agent by 12:00 noon on the day
due. Payments received after such time shall be deemed received on the next Business Day.
Administrative Agent shall pay to each Lender any payment to which such Lender is entitled on the
same day Administrative Agent receives the funds from Borrower if Administrative Agent receives the
payment or prepayment before 12:00 noon, and otherwise before 12:00 noon on the following Business
Day. If and to the extent that Administrative Agent does not make payments to Lenders when due,
then Administrative Agent shall be obligated to pay to Lenders such unpaid amounts together with
interest at the Federal Funds Rate from the due date until (but not including) the payment date.



     3.2 Interest and Principal Payments



     (a) Interest Payments. Accrued interest on each Borrowing is due and payable on the first
(1st) day of each calendar month during the term of this Agreement, commencing on___, 2005,
and on the Termination Date.



     (b) Principal Payments. The Total Principal Debt is due and payable on the Termination Date.



     (c) Voluntary Prepayment. Borrower may voluntarily repay or prepay all or any part of the
Total Principal Debt at any time without premium or penalty, subject to the following conditions:




     (i) Administrative Agent must receive Borrower’s written payment notice by 11:00 a.m.
on (A) the Business Day preceding the date of payment of a Eurodollar Borrowing, and (B)
the Business Day preceding the date of payment of a Base Rate Borrowing, which shall
specify the payment date and the Type and amount of the Borrowing(s) to be paid, and which



19









 






shall constitute an irrevocable and binding obligation of Borrower to make a repayment or
prepayment on the designated date;




     (ii) each partial repayment or prepayment must be in a minimum amount of at least
$1,000,000 or a greater integral multiple of $100,000, or, if less, the Total Principal
Debt; and




     (iii) Borrower shall pay any related Funding Loss upon demand.



     3.3 Interest Options. Except as specifically otherwise provided, Borrowings shall bear
interest at an annual rate equal to the lesser of (a) the Base Rate plus the Applicable Margin, or
the Eurodollar Rate plus the Applicable Margin (in each case as designated or deemed designated by
Borrower and, in the case of Eurodollar Borrowings, for the Interest Period designated by
Borrower), and (b) the Maximum Rate. Each change in the Base Rate and Maximum Rate is effective,
without notice to Borrower or any other Person, upon the effective date of change.



     3.4 Quotation of Rates. A Representative of Borrower may call Administrative Agent before
delivering a Borrowing Request to receive an indication of the interest rates then in effect, but
the indicated rates do not bind Administrative Agent or Lenders or affect the interest rate that is
actually in effect when Borrower delivers its Borrowing Request or on the Borrowing Date.



     3.5 Default Rate. At the option of the Required Lenders at any time while a Default exists
and to the extent permitted by applicable law, all Principal Debt, accrued interest thereon, and
fees and expenses payable hereunder and under the other Loan Documents shall bear interest at the
Default Rate until paid, regardless of whether such payment is made before or after entry of a
judgment.



     3.6 Interest Recapture. If the designated interest rate applicable to any Borrowing exceeds
the Maximum Rate, then the interest rate on that Borrowing is limited to the Maximum Rate, provided
that any subsequent reductions in the designated rate shall not reduce the interest rate thereon
below the Maximum Rate until the total amount of accrued interest equals the amount of interest
that would have accrued if the designated rate had always been in effect. If at maturity (stated
or by acceleration), or at final payment of the Notes, the total interest paid or accrued is less
than the interest that would have accrued if the designated rates had always been in effect, then,
at that time and to the extent permitted by applicable law, Borrower shall pay an amount equal to
the difference between (a) the lesser of the amount of interest that would have accrued if the
designated rates had always been in effect and the amount of interest that would have accrued if
the Maximum Rate had always been in effect, and (b) the amount of interest actually paid or accrued
on the Notes.



     3.7 Interest Calculation




     (a) Interest shall be calculated on the basis of actual number of days elapsed (including the
first day but excluding the last day) but computed as if each calendar year consisted of 360 days
for all Borrowings (unless the calculation would result in an interest rate greater than the
Maximum Rate, in which event interest shall be calculated on the basis of a year of 365 or 366
days, as the case may be). All interest rate determinations and calculations by Administrative
Agent are conclusive and binding absent manifest error.



     (b) The provisions of this Agreement relating to calculation of the Base Rate and the
Eurodollar Rate are included only for the purpose of determining the rate of interest or other
amounts to be paid under this Agreement that are based upon those rates. Each Lender may fund and
maintain its funding of all or any part of each Borrowing as it selects.



20









 





     3.8 Maximum Rate. Regardless of any provision contained in any Loan Document or any document
related thereto, it is the intent of the parties to this Agreement that no Credit Party may
contract for, charge, take, reserve, receive or apply, as interest on all or any part of the
Obligation any amount in excess of the Maximum Rate or the Maximum Amount or receive any unearned
interest in violation of any applicable law, and, if any Credit Party ever does so, then any excess
shall be treated as a partial repayment or prepayment of principal and any remaining excess shall
be refunded to Borrower. In determining if the interest paid or payable exceeds the Maximum Rate,
Borrower and the Credit Parties shall, to the maximum extent permitted under applicable law, (a)
treat all Borrowings as but a single extension of credit (and Lenders and Borrower agree that this
is the case and that provision in this Agreement for multiple Borrowings is for convenience only),
(b) characterize any non-principal payment as an expense, fee or premium rather than as interest,
(c) exclude voluntary repayments or prepayments and their effects, and (d) amortize, prorate,
allocate and spread the total amount of interest throughout the entire contemplated term of the
Obligation. If, however, the Obligation is paid in full before the end of its full contemplated
term, and if the interest received for its actual period of existence exceeds the Maximum Amount,
then Lenders shall refund any excess (and Lenders may not, to the extent permitted by applicable
law, be subject to any penalties provided by any Governmental Requirements for contracting for,
charging, taking, reserving or receiving interest in excess of the Maximum Amount).



     3.9 Interest Periods. When Borrower requests any Eurodollar Borrowing, Borrower may elect the
applicable interest period (each an "Interest Period"), which may be, at Borrower’s option, one
(1), two (2), three (3), or six (6) months, subject to the following conditions: (a) each Interest
Period applicable to any Eurodollar Borrowing commences on the day on or after the day when the
next preceding applicable Interest Period expires; (b) if any Interest Period for a Eurodollar
Borrowing begins on a day for which there exists no numerically corresponding Business Day in the
calendar month at the end of the Interest Period (“Ending Calendar Month”), then the Interest
Period ends on the next succeeding Business Day of the Ending Calendar Month, unless there is no
succeeding Business Day in the Ending Calendar Month in which case the Interest Period ends on the
next preceding Business Day of the Ending Calendar Month; (c) no Interest Period for any portion of
Principal Debt may extend beyond the scheduled repayment date for that portion of Principal Debt;
and (d) there may not be in effect at any one time more than five (5) Interest Periods.



     3.10 Conversions and Continuations. Borrower may (a) on the last day of the applicable
Interest Period (or at any other time, subject to payment of any Funding Loss) convert all or part
of a Eurodollar Borrowing to a Base Rate Borrowing, (b) at any time convert all or part of a Base
Rate Borrowing to a Eurodollar Borrowing, and (c) on the last day of an Interest Period, elect a
new Interest Period for a Eurodollar Borrowing; provided that no conversions to or elections of new
Interest Periods for any Eurodollar Borrowings shall be permitted while a Default exists unless the
Required Lenders otherwise consent in writing. Any such conversion is subject to the dollar limits
and denominations of Section 2.1 and may be accomplished by delivering a Borrowing Request to
Administrative Agent no later than 11:00 a.m. (i) on the third (3rd) Business Day before (A) the
conversion date for conversion to a Eurodollar Borrowing, and (B) the last day of the Interest
Period, for the election of a new Interest Period, and (ii) one (1) Business Day before the last
day of the Interest Period for conversion to a Base Rate Borrowing. Administrative Agent shall
notify each Lender of such continuation or conversion. Absent Borrower’s notice of conversion or
election of a new Interest Period, a Eurodollar Borrowing shall be automatically continued as a
Eurodollar Borrowing with a new Interest Period of one (1) month, with the expiration of such
Eurodollar Borrowing to occur on the first (1st) day of a calendar month; provided
however, if a Default exists, such Eurodollar Borrowing shall be automatically converted to a Base
Rate Borrowing.



21









 





     3.11 Order of Application



     (a) No Default. If no Default exists, then except as otherwise specifically provided in the
Loan Documents, any payment shall be applied to the Obligation in the order and manner as Borrower
directs.



     (b) Default. If a Default exists, any payment (including proceeds from the exercise of any
Rights) shall be applied in the following order: (i) to all fees and expenses for which any Credit
Party have not been paid or reimbursed in accordance with the Loan Documents (and if such payment
is less than all unpaid or unreimbursed fees and expenses, then the payment shall be paid against
unpaid and unreimbursed fees and expenses in the order of incurrence or due date); (ii) to accrued
interest on the Principal Debt; and (iii) to the remaining Obligation in the order and manner as
the Required Lenders deem appropriate.



     (c) Pro Rata. Each payment or prepayment shall be distributed to each Lender in accordance
with its Pro Rata Share of such payment or prepayment.



     3.12 Sharing of Payments, Etc. If any Lender obtains any amount (whether voluntary,
involuntary or otherwise) that exceeds the part of that payment that such Lender is then entitled
to receive under the Loan Documents, then such Lender shall purchase from the other Lenders
participations that will cause the purchasing Lender to share the excess amount ratably with each
other Lender. If all or any portion of any excess amount is subsequently recovered from the
purchasing Lender, then the purchase shall be rescinded and the purchase price restored to the
extent of the recovery. Borrower agrees that any Lender purchasing a participation from another
Lender under this Section may, to the fullest extent permitted by applicable law, exercise all of
its Rights of payment with respect to that participation as fully as if such Lender were the direct
creditor of Borrower in the amount of that participation.



     3.13 Booking Borrowings. To the extent permitted by applicable law, any Lender may make,
carry or transfer its Borrowings at, to, or for the account of any of its branch offices or the
office of any of its Affiliates. However, no Affiliate is entitled to receive any greater payment
under Section 3.15 than the transferor Lender would have been entitled to receive with respect to
those Borrowings, and a transfer may not be made if, as a direct result of it, Section 3.15 or 3.16
would apply to any of the Obligation. If any of the conditions of Sections 3.15 or 3.16 ever apply
to a Lender, then such Lender shall, to the extent possible, carry or transfer its Borrowings at,
to, or for the account of any of its branch offices or the office or branch of any of its
Affiliates so long as the transfer is consistent with the other provisions of this Section, does
not create any burden or adverse circumstance for such Lender that would not otherwise exist, and
eliminates or ameliorates the conditions of Sections 3.15 or 3.16 as applicable.



     3.14 Basis Unavailable or Inadequate for the Eurodollar Rate



     (a) Determination By Administrative Agent. If Administrative Agent determines that, for any
Eurodollar Borrowing, the basis for determining the applicable rate is not available, then
Administrative Agent shall promptly notify Borrower and Lenders of that determination (which is
conclusive and binding on Borrower absent manifest error), and all Borrowings shall bear interest
at the Base Rate plus the Applicable Margin. Until Administrative Agent notifies Borrower that
such circumstances no longer exist, Lenders’ commitments under this Agreement to make, or to
convert to, Eurodollar Borrowings shall be suspended.



     (b) Determination by a Lender. If any Lender determines that, for any Eurodollar Borrowing
and for other similar loans made by such Lender to similar borrowers, the resulting rate does
not accurately reflect the cost to such Lender of making or converting Borrowings at that rate
for the applicable Interest Period, then such Lender shall promptly notify
Administrative Agent and
Borrower, and all Borrowings of such Lender shall bear interest at the Base Rate plus the
Applicable Margin. Until



22









 




Administrative Agent notifies Borrower that such circumstances no longer exist, such Lender’s
commitment under this Agreement to make, or to convert to, Eurodollar Borrowings shall be
suspended.




     3.15 Additional Costs




     (a) Eurocurrency Reserves. If, after the date hereof, any Lender shall be required under any
Reserve Requirement to maintain reserves, then (i) such Lender (through Administrative Agent)
shall, within sixty (60) days after the end of any Interest Period with respect to any Eurodollar
Borrowing during which Lender was so required to maintain reserves, deliver to Borrower a
certificate stating (A) that such Lender was required to maintain reserves and as a result such
Lender incurred additional costs in connection with making Eurodollar Borrowings and (B) in
reasonable detail, such Lender’s computations of the amount of additional interest payable by
Borrower, pursuant to the provisions below, and (ii) Borrower shall, promptly upon receipt of any
such certificate, pay to Administrative Agent, for the account to such Lender, additional interest
on the unpaid principal amount of each Eurodollar Borrowing of such Lender made to it outstanding
during the Interest Period with respect to which the above-referenced certificate was delivered to
Administrative Agent, at a rate per annum equal to the difference obtained by subtracting (x) the
Eurodollar Rate for such Interest Period from (y) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Reserve Requirement of such Lender for such Interest
Period. The amount of interest payable by Borrower to any Lender as stated in any certificate
delivered to Administrative Agent pursuant to the provisions of this Section 3.15(a) shall be
conclusive and binding for all purposes, absent manifest error. The provisions of this Section
3.15(a) shall survive the termination of this Agreement.



     (b) Reserves. With respect to any Eurodollar Borrowing, if (i) any change in present
Governmental Requirement, any change in the interpretation or application of any present
Governmental Requirement, or any future Governmental Requirement imposes, modifies, or deems
applicable (or if compliance by any Lender with any such requirement of any Governmental Authority
results in) any such requirement that any reserves (including any marginal, emergency, supplemental
or special reserves) be maintained, and (ii) those reserves reduce any sums receivable by such
Lender under this Agreement or increase the costs incurred by such Lender in advancing or
maintaining any portion of any Eurodollar Borrowing, then (unless the effect is already reflected
in the rate of interest then applicable under this Agreement) such Lender (through Administrative
Agent) shall deliver to Borrower a certificate setting forth in reasonable detail the calculation
of the amount necessary to compensate it for its reduction or increase (which certificate is
conclusive and binding absent manifest error), and Borrower shall promptly pay that amount to such
Lender upon demand.



     (c) Capital Adequacy. With respect to any Borrowing and for similar loans to similar
borrowers, if any change in present Governmental Requirement or any future Governmental Requirement
regarding capital adequacy or compliance by Administrative Agent or any Lender (or any Person
controlling such Lender) with any request, directive or requirement now existing or hereafter
imposed by any Governmental Authority regarding capital adequacy, or any change in its written
policies or in the risk category of this transaction, reduces the rate of return on its capital as
a consequence of its obligations under this Agreement to a level below that which it otherwise
could have achieved (taking into consideration its policies with respect to capital adequacy) by an
amount deemed by it to be material (and it may, in determining the amount, use reasonable
assumptions and allocations of costs and expenses and use any reasonable averaging or attribution
method), then (unless the effect is already reflected in the rate of interest then applicable under
this Agreement) Administrative Agent or such Lender (through Administrative Agent) shall notify
Borrower and deliver to Borrower a certificate setting forth in
reasonable detail the calculation of the amount necessary to compensate it (which certificate
is conclusive and binding absent manifest error), and Borrower shall promptly pay that amount to
Administrative Agent or such Lender upon demand.



23









 





     (d) Taxes. Any Taxes payable by Administrative Agent or any Lender or ruled (by a
Governmental Authority) payable by Administrative Agent or any Lender in respect of this Agreement
or any other Loan Document shall, if permitted by Governmental Requirement, be paid by Borrower,
together with interest and penalties, if any (except for Taxes imposed on or measured by the
overall net income of Administrative Agent or such Lender). Administrative Agent or such Lender
(through Administrative Agent) shall notify Borrower and deliver to Borrower a certificate setting
forth in reasonable detail the calculation of the amount of payable Taxes, which certificate is
conclusive and binding (absent manifest error), and Borrower shall promptly pay that amount to
Administrative Agent for its account or the account of such Lender, as the case may be. If
Administrative Agent or such Lender subsequently receives a refund of the Taxes paid to it by
Borrower, then the recipient shall promptly pay the refund to Borrower.



     (e) Survival. The provisions of this Section 3.15 shall survive the satisfaction and payment
of the Obligation and termination of this Agreement.



     3.16 Change in Governmental Requirement. If any Governmental Requirement makes it unlawful
for any Lender to make or maintain Eurodollar Borrowings, then such Lender shall promptly notify
Borrower and Administrative Agent, and (a) as to undisbursed funds, that requested Borrowing shall
be made as a Base Rate Borrowing, and (b), as to any outstanding Borrowing, (i) if maintaining the
Borrowing until the last day of the applicable Interest Period is unlawful, the Borrowing shall be
converted to a Base Rate Borrowing as of the date of notice, and Borrower shall pay any related
Funding Loss, or (ii) if not prohibited by all Governmental Requirements, the Borrowing shall be
converted to a Base Rate Borrowing as of the last day of the applicable Interest Period, or (iii)
if any conversion will not resolve the unlawfulness, Borrower shall promptly prepay the Borrowing,
without penalty, together with any related Funding Loss.



     3.17 Funding Loss. borrower agrees to indemnify each lender against, and pay to it upon
demand, any funding loss of such lender When any Lender demands that Borrower pay any Funding
Loss, such Lender shall deliver to Borrower and Administrative Agent a certificate setting forth in
reasonable detail the basis for incurring Funding Loss and the calculation of the amount, which
calculation is conclusive and binding absent manifest error. The provisions of this Section 3.17
shall survive the satisfaction and payment of the Obligation and termination of this Agreement.



     3.18 Foreign Lenders. Each Lender that is organized under the Governmental Requirements of
any jurisdiction other than the United States of America or any State thereof (a) represents to
Administrative Agent and Borrower that (i) no Taxes are required to be withheld by Administrative
Agent or Borrower with respect to any payments to be made to it in respect of the Obligation, and
(ii) it has furnished to Administrative Agent and Borrower two (2) duly completed copies of U.S.
Internal Revenue Service Form W-8 BEN, Form W-8 ECI, Form W-8, or any other tax form acceptable to
Administrative Agent (wherein it claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments under the Loan Documents), and (b) covenants to (i)
provide Administrative Agent and Borrower a new tax form upon the expiration or obsolescence of any
previously delivered form according to Governmental Requirement, duly executed and completed by it,
and (ii) comply from time to time with all Governmental Requirements with regard to the withholding
tax exemption. If any of the foregoing is not true or the applicable forms are not provided and
such party is obligated by law to withhold, then Borrower or Administrative Agent (without
duplication) may deduct and withhold from interest payments under the Loan Documents United States
federal income tax at the
full rate applicable under the Code.



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     3.19 Fees



     (a) Treatment of Fees. The fees described in this Section 3.19 (i) are not compensation for
the use, detention, or forbearance of money, (ii) are in addition to, and not in lieu of, interest
and expenses otherwise described in this Agreement, (iii) are payable in accordance with Section
3.1(b), (iv) are non-refundable, (v) to the fullest extent permitted by applicable law, bear
interest, if not paid when due, at the Default Rate, and (vi) are calculated on the basis of actual
number of days (including the first day but excluding the last day) elapsed, but computed as if
each calendar year consisted of 360 days, unless computation would result in an interest rate in
excess of the Maximum Rate in which event the computation is made on the basis of a year of 365 or
366 days, as the case may be. The fees described in this Section 3.19 are in all events subject to
the provisions of Section 3.8.



     (b) Administrative Agent Fees. Borrower agrees to pay to Administrative Agent the
administration fees described in the letter agreement(s) between Borrower and Administrative Agent.



     (c) Commitment Fees. Borrower shall pay to Administrative Agent, for the account of Lenders,
the commitment fees described in the letter agreement(s) between Borrower and Administrative Agent.



SECTION 4




UNENCUMBERED PROPERTIES; GUARANTIES




     4.1 Unencumbered Properties. Borrower shall not permit, as of any date, the ratio of the
Unsecured Debt of the Companies on a Consolidated Basis to the Unencumbered Property Value of all
Unencumbered Properties to exceed 0.60 to 1.0. Trust Preferred Securities in an amount not to
exceed $100,000,000.00 shall be excluded for the purpose of the calculation of Unsecured Debt under
this Section 4.1. For purposes of the foregoing, “Unencumbered Property Value” means the
Companies’ Share of the value of the Unencumbered Properties as determined in accordance with
clauses (a) and (b) of the definition of Total Assets.



     Notwithstanding the foregoing, Unencumbered Property Value shall be limited as follows:




     (i) the aggregate value of (x) Unencumbered Properties under construction and (y)
Unencumbered Properties for which a certificate of occupancy was issued and that have
Occupancy Rates in any month of less than eighty-five percent (85%), shall not exceed
twenty-five percent (25%) of Unencumbered Property Value (after giving effect to all
Unencumbered Property); and




     (ii) the value of any single Unencumbered Property shall not exceed twenty percent
(20%) of Unencumbered Property Value (after giving effect to all Unencumbered Property).


As of the Closing Date, the Unencumbered Properties are listed on Schedule 4.1. No Unencumbered
Property can have a value, calculated as provided above, of less than $0.00.




     4.2 Negative Pledge Agreements. Borrower shall not, and shall not permit any other Company
to, enter into or permit to exist any arrangement or agreement (other than the Loan Documents) that
directly or indirectly prohibits any Company from (a) creating or incurring any Lien (other than
Permitted Liens) on any Unencumbered Property, or (b) transferring ownership of any Unencumbered
Property.



25









 





     4.3 Guaranties



     (a) PPT Guaranty. Pursuant to the PPT Guaranty, PPT shall unconditionally guarantee in favor
of the Credit Parties the full payment and performance of the Obligation.



     (b) Subsidiary Guaranty. Pursuant to the Subsidiary Guaranty or an addendum thereto in the
form attached to the Subsidiary Guaranty, each Company that owns an Unencumbered Property shall
unconditionally guarantee in favor of the Credit Parties the full payment and performance of the
Obligation subject to Section 4.3(c).



     (c) Release of Specific Subsidiary Guarantors. If, as of any date, any Property owned by a
Subsidiary Guarantor is no longer an Unencumbered Property, then Administrative Agent shall, upon
the written request of Borrower, release such Subsidiary Guarantor from the Subsidiary Guaranty
pursuant to a release of guaranty in the form attached to the Subsidiary Guaranty, unless a Default
exists or would result from such release.



     4.4 Unencumbered Properties Held by Consolidated Affiliates. Notwithstanding anything
contained herein to the contrary, Unencumbered Properties may include Properties owned by a
Consolidated Affiliate of Borrower only if (a) Borrower or PPT owns or controls, directly or
indirectly, at least ninety five percent (95%) of the issued and outstanding Stock of such
Consolidated Affiliate free and clear of any Liens (other than Permitted Liens) or other
restrictions on the sale or pledge thereof, (b) a majority of the holders of the Stock of such
Consolidated Affiliate has the power to cause such Consolidated Affiliate to execute the Subsidiary
Guaranty, grant Liens in the Unencumbered Properties owned by such Consolidated Affiliate, and
transfer ownership of the Unencumbered Properties owned by such Consolidated Affiliate, (c) such
Consolidated Affiliate has not (i) created, incurred, assumed, guaranteed, or suffered to exist any
Liabilities, other than (A) the Obligation, (B) trade payables created in the ordinary course of
business, (C) endorsements of negotiable instruments in the ordinary course of business, (D)
contingent Liabilities covered by reserves or insurance, and (E) equipment leases incurred in the
ordinary course of business, (d) such Consolidated Affiliate has not created, incurred, or suffered
or permitted to be created or incurred or to exist any Lien upon any of its assets (other than
Permitted Liens), (e) such Consolidated Affiliate has executed the Subsidiary Guaranty, and (f)
such Consolidated Affiliate is not a general partnership. Notwithstanding the foregoing, any
Consolidated Affiliate may guarantee any Unsecured Debt of Borrower or PPT, which guarantee shall
be pari passu with the obligations of such Consolidated Affiliate under the Subsidiary Guaranty.



SECTION 5




CONDITIONS PRECEDENT




     5.1 Conditions to Advance of Term Loans. The obligations of Lenders to amend and restate the
Original Agreement are subject to satisfaction of the following conditions precedent on or before
the Closing Date:



     (a) Borrower Documents. Borrower shall deliver or cause to be delivered to Administrative
Agent the following, each, unless otherwise noted, dated as of the Closing Date:




     (i) Certified copies of its Certificate of Limited Partnership, together with a good
standing certificate from the Secretary of State of the State of Delaware and each other
state in which an Unencumbered Property owned by Borrower is located (to the extent that
qualification is required by applicable law) and, to the extent generally available, a
certificate or other evidence



26









 






of good standing as to payment of any applicable franchise or similar taxes from the
appropriate taxing authority of each of such states, each dated a recent date prior to the
Closing Date;




     (ii) An Officer’s Certificate of Borrower certifying (A) that there have been no
changes to its Constituent Documents since March 2, 2004, (B) resolutions of its Board of
Directors approving and authorizing the execution, delivery, and performance of this
Agreement and the other Loan Documents, certified as of the Closing Date as being in full
force and effect without modification or amendment, and (C) signatures and incumbency of its
officers executing this Agreement and the other Loan Documents;




     (iii) Executed originals of this Agreement, the Notes, and the other Loan Documents;
and




     (iv) Such other documents as Administrative Agent may reasonably request.



     (b) Guarantor Documents. Borrower shall deliver or cause to be delivered to Administrative
Agent the following with respect to each Guarantor, each, unless otherwise noted, dated as of the
Closing Date:




     (i) Certified copies of each Guarantor’s Constituent Documents, together with a good
standing certificate from each Guarantor’s jurisdiction of incorporation or formation and
each other state in which an Unencumbered Property owned by each Guarantor is located (to
the extent that qualification is required by applicable law), and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each of such states,
each dated a recent date prior to the Closing Date;




     (ii) Officer’s Certificate of each Guarantor certifying (A) that there have been
no changes to its Constituent Documents since March 2, 2004, (B) resolutions of its Board of
Directors approving and authorizing the execution, delivery, and performance of the Loan
Documents to which it is a party, certified as of the Closing Date as being in full force
and effect without modification or amendment, and (C) signatures and incumbency of its
officers executing the Loan Documents to which it is a party;




     (iii) Executed originals of the Loan Documents to which it is a party; and




     (iv) Such other documents as Administrative Agent may reasonably request.



     (c) Opinions of Counsel for Borrower and Guarantors. The Credit Parties and their respective
counsel shall have received originally executed copies of a favorable written opinion of counsel
for the Obligors, in form and substance reasonably satisfactory to Administrative Agent and its
counsel, dated as of the Closing Date, and setting forth substantially the matters in the opinions
designated in Exhibit F and as to such other matters as Administrative Agent, acting on behalf of
the Credit Parties, may reasonably request. Such legal opinion need not cover Massachusetts law.



     (d) Fees. Borrower shall have paid to Administrative Agent, for distribution (as appropriate)
to the Credit Parties, the fees payable on the Closing Date referred to in Section 3.19.



     (e) Unencumbered Property Report and Compliance Certificate. Borrower shall have delivered an
Unencumbered Property Report and a Compliance Certificate, each dated as of March 31, 2005.



27









 





     (f) Completion of Proceedings. All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such counsel, and
Administrative Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably request.



     (g) No Default. No Potential Default, Default, or Material Adverse Event exists or would be
caused by the making of the Term Loans.



     (h) No Injunction or Restraining Order. No order, judgment, or decree of any Governmental
Authority shall purport to enjoin or restrain any Lender from making the Term Loan to be made by
it.



     (i) No Violation. The making of the Term Loans shall not violate any Governmental
Requirement, including, without limitation, Regulation T, Regulation U, or Regulation X of the
Board of Governors of the Federal Reserve System.



     5.2 Conditions Generally. Each condition precedent in this Agreement is material to the
transactions contemplated by this Agreement, and time is of the essence with respect to each
condition precedent. Lenders may fund the Term Loans without all conditions being satisfied, but,
to the extent permitted by Governmental Requirements, such funding shall not be deemed to be a
waiver of the requirement that each condition precedent be satisfied as a prerequisite for any
subsequent funding or issuance, unless Lenders specifically waive each item in writing.



SECTION 6




REPRESENTATIONS AND WARRANTIES



Borrower represents and warrants to the Credit Parties as follows:




     6.1 Purpose of Credit Facility. Borrower has used proceeds of the Term Loans hereunder to pay
Indebtedness, acquire, subject to Section 8.5, primarily office and industrial Properties, raw
land, properties under construction, partnership interests, interests in other Persons, investments
in mortgages and loans, and other acquisitions or investments permitted hereunder, and for
construction costs and working capital purposes of the Companies. Borrower is not engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System, as amended. No part of the proceeds of any
Borrowing shall be used, directly or indirectly, for a purpose that violates any Governmental
Requirement, including the provisions of Regulation U.



     6.2 Existence, Good Standing, Authority and Compliance. Each Company is duly formed, validly
existing and in good standing under the Governmental Requirements of the jurisdiction in which it
is incorporated, or formed as identified on Schedule 6.2 (as supplemented from time to time). Each
Company (a) is duly qualified to transact business and is in good standing as a foreign trust,
corporation, partnership, limited liability company, or other entity in each jurisdiction where the
nature and extent of its business and properties require due qualification and good standing, which
jurisdictions are identified on Schedule 6.2 (as supplemented from time to time to reflect changes
as a result of transactions
permitted by the Loan Documents), except where the failure to so qualify could not result in a
Material Adverse Event, (b) possesses all requisite authority, permits and power to conduct its
business



28









 







as is now being, or is contemplated by this Agreement to be, conducted, and (c) is in compliance
with all applicable Governmental Requirements.



     6.3 Affiliates. Borrower has no Consolidated Affiliates or Unconsolidated Affiliates except
as disclosed on Schedule 6.2 (as supplemented from time to time to reflect changes as a result of
transactions permitted by the Loan Documents).



     6.4 Authorization and Contravention. The execution and delivery by each Company of each Loan
Document or related document to which it is a party, and the performance by it of its obligations
thereunder, (a) are within its trust, corporate, limited liability company, or partnership power,
(b) have been duly authorized by all necessary trust, corporate, limited liability company, or
partnership action of such Person, (c) require no action by or filing with any Governmental
Authority, (d) do not violate any provision of its Constituent Documents, (e) do not violate any
provision of any Governmental Requirement or order of any Governmental Authority applicable to it,
(f) do not violate any material agreements to which it is a party, or (g) do not result in the
creation or imposition of any Lien on any asset of any Company, other than pursuant to the Loan
Documents.



     6.5 Binding Effect. Upon execution and delivery by all parties thereto, each Loan Document to
which it is a party shall constitute a legal and binding obligation of each Company, enforceable
against such Company in accordance with its terms, subject to applicable Debtor Relief Laws and
general principles of equity.



     6.6 Financial Statements; Fiscal Year. The Current Financials were prepared in accordance
with GAAP and present fairly, in all material respects, the consolidated financial condition,
results of operations, and cash flows of the Companies as of, and for the portion of the fiscal
year ending on the date or dates thereof (subject only to normal audit adjustments). All material
liabilities of the Companies as of the date or dates of the Current Financials are reflected
therein or in the notes thereto. Except for transactions directly related to, or specifically
contemplated by, the Loan Documents or disclosed in the Current Financials, no subsequent material
adverse changes have occurred in the consolidated financial condition of the Companies from that
shown in the Current Financials. The fiscal year of each Company ends on December 31.



     6.7 Litigation. Except as disclosed on Schedule 6.7, no Company is subject to, or aware of
the threat of, any Litigation that is reasonably likely to be determined adversely to such Company
or the Companies, taken as a whole or, if so adversely determined, is a Material Adverse Event. No
outstanding and unpaid final and non-appealable judgments against any Company exist which could
result in a Material Adverse Event.



     6.8 Taxes.



     (a) All Tax returns of each Company required to be filed have been filed (or extensions have
been granted) before delinquency, and all Taxes imposed upon each Company that are due and payable
have been paid before delinquency or are being contested in good faith by appropriate proceedings
diligently conducted and for which reserves in accordance with GAAP or otherwise reasonably
acceptable to Administrative Agent have been provided.



     (b) As of the date hereof, no United States federal income tax returns of the “affiliated
group” (as defined in the Code) of which any Company is a member have been examined and closed.
The members of such affiliated group have filed all United States Federal income tax returns and
all other material tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by or any of them (except for taxes
being contested in



29









 







good faith by appropriate proceedings diligently conducted and for which reserves in accordance
with GAAP or otherwise acceptable to Administrative Agent have been provided). The charges,
accruals, and reserves on the books of the Companies in respect of taxes or other governmental
charges are, in the opinion of the Companies, adequate.



     (c) PPT qualifies as a REIT.



     6.9 Environmental Matters. Except as disclosed on Schedule 6.9, and except where the breach
of any of the following representations could not result in a Material Adverse Event, (a) no
environmental condition or circumstance exists that materially and adversely affects any Company’s
properties or operations, (b) no Company has received any report of any Company’s violation of any
Environmental Law that has not been remedied, (c) no Company knows that any Company is under any
obligation to remedy any violation of any Environmental Law, or (d) to the best of Borrower’s
knowledge, no facility of any Company is or has been used for storage, treatment, or disposal of
any Hazardous Substance, except for (i) the storage and use of cleaning and maintenance materials,
used and stored in commercially reasonable quantities and in compliance with applicable
Environmental Laws, and (ii) light manufacturing and distribution activities of tenants, in
compliance with applicable Environmental Laws, provided that such tenants are not primarily engaged
in the treatment, processing, recycling, or disposal of any Hazardous Substance, or for any other
use that would give rise to the release of any Hazardous Substance on such facility. Each Company
has taken prudent steps to determine that its properties and operations do not violate any
Environmental Law.



     6.10 Employee Plans. Except where occurrence or existence could not reasonably be expected to
result in a Material Adverse Event, (a) no Employee Plan has incurred an “accumulated funding
deficiency” (as defined in Section 302 of ERISA or Section 412 of the Code), (b) no Company has
incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than
required insurance premiums, all of which have been paid), (c) no Company has withdrawn in whole or
in part from participation in a Multi-employer Plan, (d) no Company has engaged in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code), and (e) no
"reportable event” (as defined in Section 4043 of ERISA) has occurred, excluding events for which
the notice requirement is waived under applicable PBGC regulations.



     6.11 Properties; Liens. Each Company has good title to all of its property reflected on the
Current Financials (except for property that is obsolete or that has been disposed in the ordinary
course of business or, after the date of this Agreement, as otherwise permitted by Section 8.7 or
Section 8.8). Except for Permitted Liens, no Lien exists on any Unencumbered Property, and the
execution, delivery, performance, or observance of the Loan Documents shall not require or result
in the creation of any Lien on any Unencumbered Property.



     6.12 Locations. Each Company’s chief executive office is located at the address set forth on
Schedule 6.2 (as supplemented from time to time). Each Company’s books and records are located at
its chief executive office.



     6.13 Government Regulations. No Company is subject to regulation under the Investment Company
Act of 1940, as amended, or the Public Utility Holding Company Act of 1935, as amended.



     6.14 Transactions with Affiliates. Except as disclosed on Schedule 6.14 (as supplemented from
time to time if the disclosures are approved by Administrative Agent), no Company is a party to a
material transaction with any of its Affiliates, other than transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than it could obtain or
could become entitled to in an arm’s-length transaction with a Person
that was not its Affiliate.



30









 





     6.15 Insurance. Each Company maintains with financially sound, responsible, and reputable
insurance companies or associations (or, as to workers’ compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it operates) insurance
concerning its properties and businesses against casualties and contingencies and of types and in
amounts (and with co-insurance and deductibles) as is customary in the case of similar businesses.



     6.16 Labor Matters. No actual or, to Borrower’s knowledge, threatened strikes, labor
disputes, slow downs, walkouts, or other concerted interruptions of operations by the employees of
any Company that could reasonably be expected to result in a Material Adverse Event exist. All
payments due from any Company for employee health and welfare insurance have been paid or accrued
as a liability on its books, other than any non-payment that are not, individually or collectively,
a Material Adverse Event.



     6.17 Solvency. Each Company is, and after giving effect to the Term Loans will be, Solvent.



     6.18 Full Disclosure. Each material fact or condition relating to the financial condition or
business of the Companies which could reasonably be expected to result in a Material Adverse Event
has been disclosed to Administrative Agent. All information previously furnished, furnished on the
date of this Agreement, and furnished in the future, by any Company to Administrative Agent in
connection with the Loan Documents (a) was, is, and will be, true and accurate in all material
respects or based on good faith estimates on the date the information is stated or certified, and
(b) did not, does not, and will not, fail to state any material fact the existence of which or the
omission of which could be or result in a Material Adverse Event.



     6.19 Exemption from ERISA; Plan Assets. PPT is a “real estate operating company” within the
meaning of 29 C.F.R. § 2510.3-101(e) (or any successor regulation) and the assets of the Companies
would not be deemed “plan assets” as defined in 29 C.F.R. § 2510.3-101(a)(1) (or any successor
regulation) of any Employee Plan or Multi-employer Plan.



     6.20 Patriot Act. Borrower is not, and shall not knowingly be, in violation of any
Governmental Requirement relating to terrorism and money laundering prohibitions promulgated by any
Governmental Authority (collectively, the “Anti-Terrorism Financing Laws”), to the extent the
Anti-Terrorism Financing Laws are applicable to Borrower, including, but not limited to, Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001 and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism, and the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the “Patriot Act”).



     6.21 Foreign Status Borrower is not a “foreign person” within the meaning of Section
1445(f)(3) of the Code.



SECTION 7




AFFIRMATIVE COVENANTS



Until the Obligation is paid in full, Borrower covenants and agrees as follows:




     7.1 Items to be Furnished. Borrower shall cause the following to be furnished to
Administrative Agent (with sufficient copies for each Lender; provided however that, in lieu of
supplying



31









 







sufficient copies to Administrative Agent and each Lender, Borrower may cause each item to be made
available to Administrative Agent and Lenders on PPT’s website):



     (a) Annual Financial Statements. Promptly after preparation, and no later than ninety (90)
days after the last day of each fiscal year of PPT, Financial Statements of PPT showing the
consolidated financial condition and results of operations of PPT as of, and for the year ended on,
that last day, accompanied by: (A) the unqualified opinion of an accounting firm of
nationally-recognized independent certified public accountants, based on an audit using generally
accepted auditing standards, that the Financial Statements of PPT were prepared in accordance with
GAAP and present fairly, in all material respects, the consolidated financial condition and results
of operations of PPT; and (B) a Compliance Certificate.



     (b) Periodic Financial Statements. Promptly after preparation, and no later than forty-five
(45) days after the last day of each fiscal quarter (except the last) of PPT: (i) Financial
Statements of PPT showing the consolidated financial condition and results of operations of PPT for
the fiscal quarter and for the period from the beginning of the current fiscal year to the last day
of the fiscal quarter; and (ii) a Compliance Certificate.



     (c) Other Reports.




     (i) Promptly after receipt, a copy of each interim or special audit report and
management letter issued by independent accountants with respect to Borrower and PPT or
their financial records.




     (ii) Promptly upon its becoming available, each press release and each regular or
periodic report and any registration statement or prospectus in respect thereof filed by
Borrower or PPT with, or received by Borrower or PPT in connection therewith from, any
securities exchange or the Securities and Exchange Commission, or any successor agency
thereof, including, without limitation, each Form 10-K, 10-Q, and S-8 filed with the
Securities and Exchange Commission.




     (iii) Promptly after the mailing or delivery thereof, copies of all material reports or
other information from Borrower or PPT to its shareholders or partners (other than reports
or other information delivered only to Responsible Officers or other employees of Borrower
or PPT).



     (d) Unencumbered Property Report. Promptly after the preparation, and no later than
forty-five (45) days after the last day of each of the first three (3) fiscal quarters of Borrower
in a calendar year, and no later than ninety (90) days after the last day of the fourth fiscal
quarter of Borrower, an Unencumbered Property Report and certifying compliance with Section 4.1.



     (e) Unencumbered Property Information. Promptly upon reasonable request by Administrative
Agent, information concerning the Unencumbered Properties, including, without limitation, rent
rolls, operating statements, Capital Expenditure budgets, copies of leases, copies of tenant
financial statements, agings of rent payments, copies of existing environmental assessments, and
copies of existing property inspection reports.



     (f) Notices. Notice, promptly after a Responsible Officer of Borrower knows of (i) the
existence and status of any Litigation that, if determined adversely to any Company, could
reasonably be expected to result in a Material Adverse Event, (ii) any change in any material fact
or circumstance represented or warranted by any Company in any Loan Document which could be or
result in a Material



32









 







Adverse Event, (iii) the receipt by any Company of notice of any violation or alleged violation of
ERISA or any Environmental Law (which individually or collectively with other violations or
allegations could reasonably be expected to result in a Material Adverse Event), (iv) any public
announcement by Moody’s, S & P, or a Third Agency, as applicable, of any change in the Debt Rating,
or (v) a Default or Potential Default, specifying the nature thereof and what action Borrower has
taken, is taking, or proposes to take.



     (g) Change in Control. Promptly upon any Change in Control, notice of such event together
with a description of the transaction giving rise thereto.



     (h) Patriot Act Reporting. Promptly upon request by Administrative Agent, any additional
information that Administrative Agent deems reasonable and necessary from time to time in
connection with the Term Loans in order to ensure compliance with all applicable laws, rules and
regulations concerning money laundering and similar activities including, without limitation,
compliance with Section 6.20.



     (i) Other Information. Promptly upon reasonable request by Administrative Agent, information
(not otherwise required to be furnished under the Loan Documents) respecting the business affairs,
assets, and liabilities of the Companies and opinions, certifications, and documents in addition to
those mentioned in this Agreement.



     7.2 Use of Proceeds. Borrower shall use the proceeds of Borrowings only for the purposes
represented in this Agreement.



     7.3 Books and Records. Borrower shall, and shall cause each Company to, maintain books,
records, and accounts necessary to prepare financial statements in accordance with GAAP.



     7.4 Inspections. Upon reasonable notice and during normal business hours, Borrower shall, and
shall cause each Company to, allow Administrative Agent (or its Representatives) to inspect any of
their respective properties (subject to the inspection rights in any tenant leases), to review
reports, files, and other records and to make and take away copies, and to discuss in the presence
of Borrower or such other Company any of its affairs, conditions and finances with its other
creditors, directors, officers, employees, or representatives from time to time, during reasonable
business hours.



     7.5 Taxes. Borrower shall, and shall cause each Company to, promptly pay prior to delinquency
any and all Taxes, other than Taxes that are being contested in good faith by lawful proceedings
diligently conducted, against which reserves or other provisions required by GAAP have been made,
and in respect of which levy and execution of any Lien have been and continue to be stayed.



     7.6 Payment of Obligations. Borrower shall, and shall cause each Company to, promptly pay (or
renew and extend) all of their respective obligations as they become due (unless any such
obligations are being contested in good faith by appropriate proceedings and against which reserves
or other provisions required by GAAP have been made, except where the failure to so pay (or renew
or extend) could not result in a Material Adverse Event).



     7.7 Expenses. Borrower shall promptly pay following demand (a) all costs, fees, and expenses
paid or incurred by Administrative Agent in connection with the arrangement, syndication, and
negotiation of the loan evidenced by this Agreement and the other Loan Documents and the
negotiation, preparation, delivery, and execution of the Loan Documents and any
related amendment, waiver, or consent (including in each case the reasonable fees and expenses
of any Agent’s counsel), and (b) all costs, fees, and expenses of Administrative Agent and, after a
Default, Lenders incurred by Administrative Agent or, after a Default, any Lender in connection
with the enforcement of the



33









 







obligations of any Obligor arising under the Loan Documents or the exercise of any Rights arising
under the Loan Documents (including reasonable attorneys’ fees, expenses, and costs paid or
incurred in connection with any workout or restructure and any action taken in connection with any
Debtor Relief Laws), all of which shall be a part of the Obligation and shall bear interest, if not
paid upon demand, at the Default Rate until repaid.



     7.8 Maintenance of Existence, Assets, and Business. Each Company shall (a) maintain its
trust, partnership, limited liability company, or corporate existence in good standing in its state
of organization, and (b) except where not a Material Adverse Event (i) maintain its authority to
transact business in good standing in all other states, (ii) maintain all licenses, permits,
franchises, and Governmental Requirements necessary for its business, and (iii) keep all of its
material assets that are useful in and necessary to its business in good working order and
condition (ordinary wear and tear excepted) and make all necessary repairs and replacements.



     7.9 Insurance. Borrower shall, and shall cause each Company to, maintain with financially
sound, responsible, and reputable insurance companies or associations (or, as to workers’
compensation or similar insurance, with an insurance fund or by self-insurance authorized by the
jurisdictions in which it operates) insurance reasonably acceptable to Administrative Agent
concerning its properties and businesses against casualties and contingencies and of types and in
amounts (and with co-insurance and deductibles) as is customary in the case of similar businesses.
At Administrative Agent’s request, Borrower shall, and shall cause each Company to, deliver to
Administrative Agent evidence of insurance for each policy of insurance and evidence of payment of
all premiums.



     7.10 Preservation and Protection of Rights. Borrower shall, and shall cause each other
Obligor to, perform the acts and duly authorize, execute, acknowledge, deliver, file, and record
any additional writings as Administrative Agent may reasonably deem necessary or appropriate to
preserve and protect the Rights of the Credit Parties under any Loan Document.



     7.11 Environmental Laws. Borrower shall, and shall cause each Company to, (a) operate and
manage its businesses and otherwise conduct its affairs in compliance with all Environmental Laws,
except to the extent noncompliance could not reasonably be expected to result in a Material
Adverse Event, (b) promptly deliver to Administrative Agent a copy of any written notice received
from any Governmental Authority alleging that any Company is not in compliance with any
Environmental Law, where such notice or non-compliance could result in a Material Adverse Event,
and (c) promptly deliver to Administrative Agent a copy of any written notice received from any
Governmental Authority alleging that any Company has any potential environmental Liability that
could result in a Material Adverse Event.



     7.12 Indemnification.



     (i) AS USED IN THIS SECTION: (I) “INDEMNITOR” MEANS THE OBLIGORS; (II)
"INDEMNITEE” MEANS EACH CREDIT PARTY, EACH PRESENT AND FUTURE AFFILIATE OF EACH CREDIT
PARTY, EACH PRESENT AND FUTURE REPRESENTATIVE OF EACH CREDIT PARTY, OR ANY OF SUCH AFFILIATES, AND
EACH PRESENT AND FUTURE SUCCESSOR AND ASSIGN OF EACH CREDIT PARTY, OR ANY OF SUCH AFFILIATES OR
REPRESENTATIVES; AND (III) “INDEMNIFIED LIABILITIES” MEANS ALL PRESENT AND FUTURE, KNOWN
AND UNKNOWN, FIXED AND CONTINGENT, ADMINISTRATIVE, INVESTIGATIVE, JUDICIAL, AND OTHER CLAIMS,
DEMANDS, ACTIONS, CAUSES OF ACTION, INVESTIGATIONS, SUITS, PROCEEDINGS, AMOUNTS
PAID IN SETTLEMENT, DAMAGES, JUDGMENTS, PENALTIES, COURT COSTS, LIABILITIES, AND
OBLIGATIONS — AND ALL PRESENT AND FUTURE COSTS, EXPENSES, AND DISBURSEMENTS (INCLUDING, WITHOUT
LIMITATION, ALL 



34









 




REASONABLE ATTORNEYS’ FEES AND EXPENSES WHETHER OR NOT SUIT OR OTHER PROCEEDING EXISTS OR ANY
INDEMNITEE IS PARTY TO ANY SUIT OR OTHER PROCEEDING) IN ANY WAY RELATED TO ANY OF THE FOREGOING
—THAT MAY AT ANY TIME BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY INDEMNITEE AND IN ANY
WAY RELATING TO OR ARISING OUT OF ANY (A) LOAN DOCUMENT, TRANSACTION CONTEMPLATED BY ANY LOAN
DOCUMENT OR ANY PROPERTY, (B) ENVIRONMENTAL LIABILITY IN ANY WAY RELATED TO ANY COMPANY, ANY
PROPERTY, OR ANY ACT, OMISSION, STATUS, OWNERSHIP, OR OTHER RELATIONSHIP, CONDITION, OR
CIRCUMSTANCE CONTEMPLATED BY, CREATED UNDER, OR ARISING PURSUANT TO OR IN CONNECTION WITH ANY LOAN
DOCUMENT, OR (C) INDEMNITEE’S SOLE, CONTRIBUTORY OR CONCURRENT ORDINARY NEGLIGENCE. THE FOREGOING
INDEMNIFIES THE INDEMNITEES FROM THEIR OWN NEGLIGENCE.




     (j) EACH INDEMNITOR SHALL JOINTLY AND SEVERALLY INDEMNIFY EACH INDEMNITEE FROM
AND AGAINST, PROTECT AND DEFEND EACH INDEMNITEE FROM AND AGAINST, HOLD EACH INDEMNITEE HARMLESS
FROM AND AGAINST, AND ON DEMAND PAY OR REIMBURSE EACH INDEMNITEE FOR, ALL INDEMNIFIED
LIABILITIES.



     (k) THE FOREGOING PROVISIONS (I) ARE NOT LIMITED IN AMOUNT EVEN IF THAT AMOUNT
EXCEEDS THE OBLIGATION, (II) INCLUDE, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS
AND OTHER COSTS AND EXPENSES OF LITIGATION OR PREPARING FOR LITIGATION AND DAMAGES OR INJURY TO
PERSONS, PROPERTY, OR NATURAL RESOURCES ARISING UNDER ANY STATUTORY OR COMMON LAW, PUNITIVE
DAMAGES, FINES, AND OTHER PENALTIES, AND (III) ARE NOT AFFECTED BY THE SOURCE OR ORIGIN OF ANY
HAZARDOUS SUBSTANCE, AND (IV) ARE NOT AFFECTED BY ANY INDEMNITEE’S INVESTIGATION, ACTUAL OR
CONSTRUCTIVE KNOWLEDGE, COURSE OF DEALING, OR WAIVER.



     (d) No Indemnitee is entitled to be indemnified under the Loan Documents for its or its
Representatives’ own fraud, gross negligence, or willful misconduct.



     (e) THE PROVISIONS OF AND INDEMNIFICATION AND OTHER UNDERTAKINGS UNDER THIS SECTION
SURVIVE THE SATISFACTION OF THE OBLIGATION AND THE TERMINATION OF THE LOAN DOCUMENTS.



     7.13 REIT Status. At all times, PPT (including its organization and method of operations and
those of its Consolidated Affiliates) shall qualify as a REIT.



     7.14 ERISA Exemptions. PPT shall qualify as a “real estate operating company” under the 29
C.F.R. § 2510.3-101(e) (or any successor regulation) or other appropriate exemption such that its
assets shall not be deemed “plan assets” as defined in 29 C.F.R. § 2510.3-101(a)(1) (or any
successor regulation) of any Employee Plan or Multi-employer Plan.



     7.15 Listed Company. The common Stock of PPT shall at all times be listed for trading and be
traded on either the New York Stock Exchange or American Stock Exchange.



     7.16 Further Assurances. Borrower shall, and shall cause each other Company to, make,
execute, and deliver or file or cause the same to be done, all such notices, additional agreements,



35









 







assignments, or other assurances, and take any and all such other action, as Administrative Agent
may, from time to time, deem reasonably necessary or proper in connection with any of the Loan
Documents, or the obligations of any Company thereunder.



SECTION 8




NEGATIVE COVENANTS




     Until the Obligation is paid in full, Borrower covenants and agrees as follows:



     8.1 Payment of Obligations. Borrower shall not, and shall not permit any Company to,
voluntarily prepay principal of, or interest on, any Liabilities other than the Obligation, if a
Default exists.



     8.2 Employee Plans. Except where a Material Adverse Event would not result, Borrower shall
not, and shall not permit any Company to, permit any of the events or circumstances described in
Section 6.10 to exist or occur.



     8.3 Transactions with Affiliates. Except as disclosed on Schedule 6.14 (as supplemented from
time to time to reflect changes as a result of transactions permitted by this Agreement or approved
by the Required Lenders), Borrower shall not, and shall not permit any Company to, enter into any
material transaction with any of its Affiliates, other than transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than it could obtain or
could become entitled to in an arm’s-length transaction with a Person that was not its Affiliate.



     8.4 Compliance with Governmental Requirements and Documents. Borrower shall not, and shall
not permit any Company to, (a) violate the provisions of any Governmental Requirements applicable
to it or of any material agreement to which it is a party if that violation alone, or when
aggregated with all other violations, could reasonably be expected to result in Material Adverse
Event, (b) violate the provisions of its Constituent Documents where such violation could result in
a Material Adverse Event, or (c) repeal, replace, or amend any provision of its Constituent
Documents if that action could reasonably be expected to result in a Material Adverse Event.



     8.5 Loans, Advances, and Investments. Without the prior written consent of the Required
Lenders, the Companies, on a Consolidated Basis, shall not have or make any investments in the
following, calculated, where applicable, after giving effect to the pertinent investment and using
values determined in accordance with the definition of Total Assets:



     (a) Properties consisting of raw land exceeding in the aggregate five percent (5%) of Total
Assets;



     (b) Properties under construction having actual and budgeted costs exceeding in the aggregate
twenty percent (20%) of Total Assets (including the total budgeted project costs for all Properties
under construction); provided that the Companies may not have Properties under construction that
are less than fifty percent (50%) pre-leased having actual and budgeted costs exceeding in the
aggregate fifteen percent (15%) of Total Assets (including the total budgeted project costs for all
Properties under construction);



     (c) Except for Borrower’s investment in Broadmoor, Investments in Joint Ventures exceeding in
the aggregate twenty percent (20%) of Total Assets;



36









 





     (d) Loans, mortgages, advances, and extensions of credit to Persons exceeding in the aggregate
ten percent (10%) of Total Assets;



     (e) The Stock of Persons that are neither Consolidated Affiliates nor Investments in Joint
Ventures exceeding in the aggregate five percent (5%) of Total Assets; or



     (f) The investments described in (a) through (e) above exceeding in the aggregate (without
duplication) thirty percent (30%) of Total Assets.



     8.6 Distributions. Borrower shall not, and shall not permit any Company to, declare, make,
or pay any Distribution other than (a) Permitted Distributions, (b) Distributions declared, made,
or paid by (i) any Company wholly in the form of its Stock, and (ii) any Company (other than
Borrower) to Borrower or to PPT, (c) Distributions paid to the holders of PPT’s Stock who
simultaneously use the proceeds of such Distributions to purchase additional shares of PPT’s Stock
pursuant to a dividend reinvestment program, and (d) Special Dividends; provided that the amount of
any Distributions made pursuant to clauses (b) and (c) shall not be limited by clause (a). Nothing
in this Section 8.6 restricts the issuance by any Company of preferred Stock solely because such
Stock requires the payment of Distributions with respect to such Stock prior to the payment of
Distributions with respect to common Stock.



     8.7 Sale of Assets. Neither Borrower nor PPT shall sell, assign, lease, transfer, or
otherwise dispose of all or substantially all of its assets.



     8.8 Mergers and Dissolutions. Borrower shall not, and shall not permit any Obligor to, merge
or consolidate with any other Person or liquidate, wind up, or dissolve (or suffer any liquidation
or dissolution); provided, however, that the foregoing shall not operate to prevent mergers or
consolidations of any Company into Borrower or another Company (if such transaction does not reduce
the net worth of the Companies determined in accordance with GAAP).



     8.9 Assignment. Borrower shall not, and shall not permit any Company to, assign or transfer
any of its Rights, duties, or obligations under any of the Loan Documents.



     8.10 Fiscal Year and Accounting Methods. Without the prior written consent of Administrative
Agent, Borrower shall not, and shall not permit any Company to, change its fiscal year or its
method of accounting (other than immaterial changes in methods or as required by GAAP).



     8.11 New Businesses. Borrower shall not, and shall not permit any Company to, engage in any
type of business except the types of businesses in which they are presently engaged and any other
reasonably related business.



     8.12 Government Regulations. Borrower shall not, and shall not permit any Company to, conduct
its business in a way that it becomes regulated under the Investment Company Act of 1940, as
amended, or the Public Utility Holding Company Act of 1935, as amended.



     8.13 Amendment of Constituent Documents. Borrower shall not permit any amendment of any
Company’s Constituent Documents, if any, which would materially and adversely affect Administrative
Agent or Lenders or their respective Rights under the Loan Documents.



     8.14 Interest Rate Agreements. Borrower shall not permit the Companies’ Indebtedness that is
not either subject to a fixed interest rate or hedged pursuant to an Interest Rate Agreement
acceptable to Administrative Agent (“Variable Rate Debt”) to exceed twenty-five percent (25%) of
Total Assets;



37









 







provided that the Companies’ Variable Rate Debt may exceed twenty-five percent (25%) of Total
Assets for a period of time not to exceed ninety (90) days if Borrower is diligently seeking
Interest Rate Agreements with respect to such Indebtedness or is in the process of incurring fixed
rate Indebtedness or an Equity Issuance in order to comply with the requirements of this Section
8.14.



SECTION 9




FINANCIAL COVENANTS



Until the Obligation is paid and performed in full, Borrower covenants and agrees with
Administrative Agent and Lenders that Borrower shall not directly or indirectly permit:




     9.1 Minimum Tangible Net Worth. As of any date, the Tangible Net Worth to be less than (a)
$1,000,000,000, plus (b) eighty percent (80%) of the amount of Net Proceeds of any Equity Issuances
subsequent to the Closing Date, minus (c) eighty percent (80%) of the amount of any Redemptions and
Special Dividends subsequent to the Closing Date, provided that the Tangible Net Worth shall not be
less than $800,000,000.00.



     9.2 Total Indebtedness to Total Assets. As of any date, the ratio of (a) all Indebtedness of
the Companies, on a Consolidated Basis (excluding Trust Preferred Securities up to
$100,000,000.00), to (b) Total Assets to exceed 0.60 to 1.0.



     9.3 Maximum Secured Debt. As of any date, the ratio of (a) Secured Debt of the Companies, on
a Consolidated Basis, to (b) Total Assets to exceed 0.45 to 1.0.



     9.4 Interest and Debt Service Coverage Ratios.



     (a) As of any date, the ratio of (i) Aggregate EBITDA, to (ii) Interest Expense of the
Companies (excluding Interest Expense on Trust Preferred Securities in a principal amount not to
exceed $100,000,000.00), on a Consolidated Basis, in each case for the twelve (12) month period
ending on the date of determination, to be less than 2.0 to 1.0.



     (b) As of any date, the ratio of (i) the Companies’ Share of Adjusted Property EBITDA for the
Unencumbered Properties owned by Borrower or a Subsidiary Guarantor as of such date, to (ii)
Assumed Interest Expense (excluding Trust Preferred Securities up to $100,000,000.00 from the
calculation of Unsecured Debt), on a Consolidated Basis, to be less than 2.0 to 1.0.



     (c) As of any date, the ratio of (i) Adjusted Aggregate EBITDA, to (ii) Fixed Charges, in each
case for the twelve (12) month period ending on the date of determination, to be less than 1.7 to
1.0.


For purposes of calculating any of the financial covenants in this Section 9, (x) (i) Indebtedness
shall not include any Indebtedness of any Company that has been defeased, (ii) Total Assets shall
not include any assets of any Company that have been used to defease any Indebtedness of any
Company, (iii) Aggregate EBITDA, Adjusted Property EBITDA, and other income items shall not include
any income on or with respect to any assets of any Company that have been used to defease any
Indebtedness of any Company, and (iv) Interest Expense shall not include any Interest Expense with
respect to any Indebtedness that has been defeased (except to the extent that such Interest Expense
exceeds any income excluded pursuant to clause (iii)).




38









 





SECTION 10




DEFAULT



The term “Default” means the occurrence of any one or more of the following events:




     10.1 Payment of Obligation.



     (a) The failure of Borrower or PPT to pay any Principal Debt of the Obligation at maturity
(whether by its terms or by acceleration); or



     (b) The failure of Borrower or PPT to pay any of the Obligation (other than any Principal Debt
at maturity (whether by its terms or by acceleration)) when it becomes due and payable under the
Loan Documents, and (i) for the first (1st) and second (2nd) such failures, if any, occurring
during any calendar year, such failure shall continue for three (3) days after written notice
thereof from Administrative Agent to Borrower, and (ii) for any other such failures, if any, such
failure shall continue for five (5) days after such payment became due and payable.



     10.2 Covenants. The failure of Borrower (and, if applicable, any Company) to punctually and
properly perform, observe, and comply with:



     (a) any covenant or agreement contained in Section 7.1; or



     (b) any other covenant or agreement contained in any Loan Document (other than the covenants
to pay the principal of and interest on the Obligation and the covenants in (a) preceding), and
such failure shall continue for (i) thirty (30) days after the earlier to occur of the date (A)
Borrower knows of, or (B) Borrower receives notice from Administrative Agent of, such failure, or
(ii) seventy-five (75) days after such earlier date if such failure is not capable of being cured
within thirty (30) days and Borrower is diligently pursuing cure thereof.



     10.3 Debtor Relief. Any Obligor (a) is not Solvent, (b) fails to pay its Liabilities
generally as they become due, (c) voluntarily seeks, consents to, or acquiesces in the benefit of
any Debtor Relief Law, or (d) becomes a party to or is made the subject of any proceeding provided
for by any Debtor Relief Law, other than as a creditor or claimant, that could suspend or otherwise
adversely affect the Rights of any Credit Party granted in the Loan Documents (unless, if the
proceeding is involuntary, the applicable petition is dismissed within sixty (60) days after its
filing).



     10.4 Judgments and Attachments. Any Company fails, within sixty (60) days after entry, to
pay, bond, or otherwise discharge any judgment or order for the payment of money in excess of
$1,000,000 (individually or collectively) or any warrant of attachment, sequestration, or similar
proceeding against such Company’s assets having a value (individually or collectively) of
$1,000,000 unless such judgment, order for payment, warrant of attachment, sequestration, or
similar proceeding is (a) stayed on appeal, (b) diligently contested in good faith by appropriate
proceedings and adequate reserves have been set aside on its books in accordance with GAAP, or (c)
covered by insurance acceptable to Administrative Agent.



     10.5 Government Action.



     (a) A final non-appealable order is issued by any Governmental Authority (including the United
States Justice Department) requiring any Company to divest all or a substantial portion of its



39









 







assets under any antitrust, restraint of trade, unfair competition, industry regulation, or similar
Governmental Requirements, or



     (b) any Governmental Authority seizes or otherwise appropriates, or takes custody or control
of, all or any substantial portion of the assets of any Company, other than through condemnation
proceeding.



     10.6 Misrepresentation. Any material representation or warranty made by any Company contained
in any Loan Document at any time proves to have been incorrect in any material respect when made
and such misrepresentation shall continue for thirty (30) days after the earlier to occur of the
date (a) Borrower knows of, or (b) Borrower receives notice from Administrative Agent of, such
misrepresentation.



     10.7 Default Under Other Agreements.




     (a) Any Company or Companies shall fail to make any payment in respect of any Recourse Debt in
excess (individually or collectively at any time) of $5,000,000 when due or within any applicable
grace period or otherwise granted by the lender thereof; or



     (b) A default shall occur in respect of credit agreement, note, mortgage, indenture, or other
agreement or document evidencing, securing, or otherwise relating to any Recourse Debt in excess
(individually or collectively at any time) of $5,000,000 (other than a failure to make any payment
when due in respect of any such Recourse Debt) and such default shall continue for more than the
period of grace, if any, specified therein or otherwise granted by the lender thereof.



     10.8 Validity and Enforceability of Loan Documents. Except in accordance with its terms or as
otherwise expressly permitted by this Agreement, any Loan Document at any time after its execution
and delivery ceases to be in full force and effect in any material respect or is declared by a
Governmental Authority to be null and void or its validity or enforceability is contested by any
Company, or any Company denies that it has any further liability or obligations under any Loan
Document to which it is a party.



     10.9 Management Changes. During any period of twelve (12) consecutive calendar months,
individuals who were directors or trustees of PPT on the first day of such period shall cease to
constitute a majority of the board of directors of PPT; provided, however, that the directors or
trustees of PPT may include new or replacement directors or trustees that (a) are an officer or
employee of an Affiliate, (b) are required in order (as a practical matter) for the majority of the
board of directors or trustees of PPT to be independent directors or trustees, or (c) are
independent directors or trustees that are replacing another independent director or trustee whose
term has expired or who has voluntarily resigned.



     10.10 Change in Control. A Change in Control shall occur.



     10.11 Plan Assets. The assets of the Companies at any time constitute assets, within the
meaning of ERISA, the Code, and the respective regulations promulgated thereunder, of any Employee
Plan or Multi-employer Plan.



40









 





SECTION 11




RIGHTS AND REMEDIES




     11.1 Remedies Upon Default



     (a) Debtor Relief. If a Default (i) occurs under Section 10.3(c) or (ii) occurs and is
continuing under Section 10.3(a), (b) or (d), the entire unpaid balance of the Obligation
automatically becomes due and payable without any action of any kind whatsoever.



     (b) Other Defaults. If a Default occurs and is continuing, subject to the terms of Section
13.9(b), then Administrative Agent may (and upon the request of the Required Lenders shall), do any
one or more of the following: (i) if the maturity of the Obligation has not already been
accelerated under Section 11.1(a), then declare the entire unpaid balance of all or any part of the
Obligation immediately due and payable, whereupon it is due and payable; (ii) reduce any claim to
judgment; and (iii) exercise any and all other legal or equitable Rights afforded by the Loan
Documents, the Governmental Requirements of the State of New York, or any other applicable
jurisdiction.



     11.2 Waivers. To the extent permitted by applicable law, each Company waives presentment and
demand for payment, protest, notice of intention to accelerate, notice of acceleration, and notice
of protest and nonpayment, and agrees that its liability with respect to all or any part of the
Obligation is not affected by any renewal or extension in the time of payment of all or any part of
the Obligation, by any indulgence, or by any release or change in any security for the payment of
all or any part of the Obligation.



     11.3 Performance by Administrative Agent. If any covenant, duty, or agreement of Borrower is
not performed in accordance with the terms of the Loan Documents, Administrative Agent may, while a
Default exists, at its option, perform, or attempt to perform that covenant, duty, or agreement on
behalf of Borrower (and any amount expended by Administrative Agent in its performance or attempted
performance is payable by Borrower to Administrative Agent on demand, becomes part of the
Obligation, and bears interest at the Default Rate from the date of Administrative Agent’s
expenditure until paid). However, neither Administrative Agent nor any Lender assumes or shall
have, except by its express written consent, any liability or responsibility for the performance of
any covenant, duty, or agreement of Borrower.



     11.4 Not in Control. None of the covenants or other provisions contained in any Loan Document
shall, or shall be deemed to, give Administrative Agent or Lenders the Right to exercise control
over the assets (including real property), affairs, or management of any Company.



     11.5 Course of Dealing. The acceptance by Administrative Agent or any Lender of any partial
payment on the Obligation shall not be deemed to be a waiver of any Default then existing. No
waiver by any Credit Party of any Default shall be deemed to be a waiver of any other then-existing
or subsequent Default. No delay or omission by any Credit Party in exercising any Right under the
Loan Documents will impair that Right or be construed as a waiver thereof or any acquiescence
therein, nor will any single or partial exercise of any Right preclude other or further exercise
thereof or the exercise of any other Right under the Loan Documents or otherwise.



     11.6 Cumulative Rights. All Rights available to the Credit Parties under the Loan Documents
are cumulative of and in addition to all other Rights granted to the Credit Parties at law or in
equity, whether or not the Obligation is due and payable and
whether or not Administrative Agent or



41









 







Lenders have instituted any suit for collection, foreclosure, or other action in connection with
the Loan Documents.



     11.7 Application of Proceeds. Any and all proceeds ever received by any Credit Party from the
exercise of any Rights pertaining to the Obligation shall be applied to the Obligation according to
Section 3.11.



     11.8 Certain Proceedings. Borrower shall promptly execute and deliver, or cause the execution
and delivery of, all applications, certificates, instruments, and all other documents and papers
Administrative Agent reasonably requests in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or authorization of any Governmental Authority or
other Person necessary or appropriate for the effective exercise of any Rights under the Loan
Documents. Because Borrower agrees that Administrative Agent’s and Lenders’ remedies at law for
failure of Borrower to comply with the provisions of this paragraph would be inadequate and that
failure would not be adequately compensable in damages, Borrower agrees that the covenants of this
Section 11.8 may be specifically enforced.



SECTION 12




AGENTS AND LENDERS




     12.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably appoints and
authorizes Administrative Agent to act as its agent hereunder and under the other Loan Documents
with such powers as are specifically delegated to Administrative Agent by the terms of this
Agreement and of the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Administrative Agent (which term as used in this sentence and in Section 12.5
and the first sentence of Section 12.6 shall include reference to its Affiliates and its own and
its Affiliates’ officers, directors, employees, and agents):



     (a) shall have no duties or responsibilities except those expressly set forth in this
Agreement and in the other Loan Documents, and shall not by reason of this Agreement or any other
Loan Document be a trustee for any Lender;



     (b) shall not be responsible to Lenders for any recitals, statements, representations, or
warranties contained in this Agreement or in any other Loan Document, or in any certificate or
other document referred to or provided for in, or received by any of them under, this Agreement or
any other Loan Document, or for the value, validity, effectiveness, genuineness, enforceability, or
sufficiency of this Agreement, any Note, or any other Loan Document or any other document referred
to or provided for herein or therein, or for any failure by Borrower or any other Person to perform
any of its obligations hereunder or thereunder;



     (c) shall not be responsible to Lenders for any action taken or omitted to be taken by it
hereunder or under any other Loan Document or under any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct;



     (d) shall not, except to the extent expressly instructed by Required Lenders, be required to
initiate or conduct any litigation or collection proceedings hereunder or under any other Loan
Document; and



42









 





     (e) shall not be required to take any action which is contrary to this Agreement or any other
Loan Document or Governmental Requirement.



Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible to
Lenders for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in
good faith. Administrative Agent may deem and treat the payee of a Note as the holder thereof for
all purposes hereof unless and until a notice of the assignment or transfer thereof shall have been
filed with Administrative Agent, any such assignment or transfer to be subject to the provisions of
Section 13.11. Except to the extent expressly provided in Sections 12.8 and 12.10, the provisions
of this Section 12 are solely for the benefit of Administrative Agent and the Lenders, and Borrower
shall not have any rights as a third party beneficiary of any of the provisions hereof and Lenders
may modify or waive such provisions of this Section 12 in their sole and absolute discretion.



     12.2 Reliance by Administrative Agent. Administrative Agent shall be entitled to rely upon
any certification, notice, document, or other communication (including any thereof by telephone,
telecopy, telegram, or cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants, and other experts selected by Administrative Agent. As to
any matters not expressly provided for by this Agreement or any other Loan Document, Administrative
Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by Required Lenders, and such instructions of
Required Lenders and any action taken or failure to act pursuant thereto shall be binding on all
Lenders.



     12.3 Defaults.




     (a) Administrative Agent shall give Lenders notice of any material Default or Potential
Default of which Administrative Agent has knowledge or notice. Except with respect to (i) the
nonpayment of principal, interest, or any fees that are due and payable under the Loan Documents,
(ii) any Default or Potential Default with respect to which Administrative Agent has actually sent
written notice of to Borrower, and (iii) any Default or Potential Default with respect to which
Administrative Agent has entered into discussions with Borrower, Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default or Potential Default unless
Administrative Agent has received notice from a Lender or Borrower specifying such Default or
Potential Default and stating that such notice is a “Notice of Default.” In the event that
Administrative Agent receives such a notice from Borrower or a Lender in accordance with the
immediately preceding sentence with respect to the occurrence of a material Default or Potential
Default, Administrative Agent shall give prompt notice thereof to Lenders. Within ten (10) days of
delivery of such notice of Default or Potential Default from Administrative Agent to Lenders (or
such shorter period of time as Administrative Agent determines is necessary), Administrative Agent
and Lenders shall consult with each other to determine a proposed course of action. Administrative
Agent shall (subject to Section 12.7) take such action with respect to such Default or Potential
Default as shall be directed by Required Lenders, provided that, (i) unless and until
Administrative Agent shall have received such directions, Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, including decisions (A) to
make protective advances that Administrative Agent determines are necessary to protect or maintain
any collateral and (B) to foreclose on any collateral or exercise any other remedy, with respect to
such Default or Potential Default as it shall deem advisable in the best interest of Lenders except
to the extent that this Agreement expressly requires that such action be taken, or not be taken,
only with the consent or upon the authorization of all Lenders, and (ii) no actions approved by
Required Lenders shall violate the Loan Documents or applicable Governmental Requirement.
Administrative Agent shall advise Lenders of all actions which Administrative Agent takes in
accordance with the provisions of this Section 12.3 and shall
continue to consult with Lenders with respect to all of such actions. Notwithstanding the
foregoing, if



43









 







Required Lenders shall at any time direct that a different or additional remedial
action be taken from that already undertaken by Administrative Agent, such different or additional
remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken
by Administrative Agent; provided that all actions already taken by Administrative Agent pursuant
to this Section 12.3 shall be valid and binding on each Lender. All money (other than money
subject to the provisions of Section 12.3(f)) received from any enforcement actions, shall be
applied, first, to the payment or reimbursement of Administrative Agent and Lenders for expenses
incurred in accordance with the provisions of Sections 12.3(b), (c), and (d) and 12.5 and to the
payment of the administration fee to the extent not paid by Borrower pursuant to Section 3.19,
second, to the payment or reimbursement of Lenders for any advances made pursuant to Section
12.3(b); and third, to Lenders in accordance with their respective Pro Rata Share, unless an Unpaid
Amount is owed pursuant to Section 12.11, in which event such Unpaid Amount shall be deducted from
the portion of such proceeds of the Defaulting Lender and be applied to payment of such Unpaid
Amount to the Special Advance Lender.



     (b) All losses with respect to interest (including interest at the Default Rate) and other
sums payable pursuant to the Notes or incurred in connection with the Term Loans shall be borne by
Lenders in accordance with their respective Pro Rata Share. All losses incurred in connection with
the Term Loans, the enforcement thereof, or the realization of the security therefor, shall be
borne by Lenders in accordance with their respective Pro Rata Share, and Lenders shall promptly,
upon request, remit to Administrative Agent their respective Pro Rata Share of (i) any expenses
incurred by Administrative Agent in connection with any Default or Potential Default to the extent
any expenses have not been paid by Borrower, (ii) any advances made to pay taxes or insurance or
otherwise to preserve any Liens or to preserve and protect the collateral, whether or not the
amount is necessary, (iii) any other expenses incurred in connection with the enforcement of the
other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the
Term Loans not paid or provided for by Borrower. To the extent any such advances are recovered in
connection with the enforcement of the other Loan Documents, each Lender shall be paid its Pro Rata
Share of such recovery after deduction of the expenses of Administrative Agent and Lenders.



     (c) In the event that, at the direction of Required Lenders or otherwise as provided in
Section 12.3(a), any action(s) is brought to collect on the Notes or any other Loan Document, such
action shall (to the extent permitted under applicable law and the decisions of the court in which
such action is brought) be an action brought by Administrative Agent and Lenders, collectively, to
collect on all or a portion of the Notes or enforce other Loan Document, and counsel selected by
Administrative Agent shall prosecute any such action on behalf of Administrative Agent and Lenders,
and Administrative Agent and Lenders shall consult and cooperate with each other in the prosecution
thereof. All decisions concerning the appointment of a receiver while such action and the
collection of any judgment entered in such action are pending, the conduct of such receivership,
the conduct of such action, the collection of any judgment entered in such action, and the
settlement of such action shall be made by Required Lenders, subject, however, to the provisions of
subsection (a) above. The costs and expenses of any such action shall be borne by the Lenders in
accordance with each of their respective Pro Rata Share.



     12.4 Rights as a Lender. With respect to its Term Loan, Eurohypo (and any successor acting
as Administrative Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were not acting as
Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise
indicates, include Administrative Agent in its individual capacity. Subject to the provisions of
Section 3.12, Eurohypo (and any successor acting as Administrative Agent) and its affiliates may
(without having to account therefor to any other Lender) accept deposits from, lend money to, make
investments in, and generally engage in any kind of banking, investment banking, trust, or other
business with Borrower (and any of its affiliates) as if it were not acting as Administrative
Agent, and
Eurohypo (and any such successor) and any of its



44









 







affiliates may accept fees and other consideration from Borrower for services in connection with
this Agreement or otherwise without having to account for the same to Lenders.



     12.5 Indemnification. In performing its duties under the Loan Documents, Administrative
Agent will exercise the same degree of care as it normally exercises in connection with loans of a
similar type and size in which no syndication or participations are involved. Each Lender agrees
to indemnify Administrative Agent (to the extent not reimbursed by Borrower, but without limiting
the obligations of Borrower under Section 12.3) ratably in accordance with the aggregate principal
amount of the Term Loans held by Lenders, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by, or asserted against Administrative Agent in
its capacity as Administrative Agent (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of this Agreement or any other Loan
Document or any other documents contemplated by or referred to herein or therein (including the
costs and expenses that Borrower is obligated to pay under Section 7.7, but excluding, unless a
Default has occurred and is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof, provided that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of Administrative Agent or a breach of the standard
of care set forth in the first sentence of this Section 12.5.



     12.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own credit analysis of each
Company and its decision to enter into this Agreement and that it will, independently and without
reliance upon Administrative Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking
or not taking action under this Agreement or under any other Loan Document. Subject to the
provisions of Section 12.5, Administrative Agent shall not be required to keep itself informed as
to the performance or observance by any Company of this Agreement or any of the other Loan
Documents or any other document referred to or provided for herein or therein or to inspect the
assets or books of any Company. Except for notices, reports, and other documents and information
expressly required to be furnished to Lenders by Administrative Agent hereunder or under the other
Loan Documents, Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial condition, or
business of any Company (or any of their Affiliates) that may come into the possession of
Administrative Agent or any of its Affiliates.



     12.7 Failure to Act. Except for action expressly required of Administrative Agent hereunder
and under the other Loan Documents, Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive further assurances to
its satisfaction from Lenders of their indemnification obligations under Section 12.5 against any
and all liability and expense that may be incurred by it by reason of taking or continuing to take
any such action.



     12.8 Resignation or Removal of Administrative Agent. Administrative Agent may resign at any
time by giving prior notice of at least thirty (30) days thereof to Lenders and Borrower and
Administrative Agent may be removed at any time with cause by Required Lenders. Upon any such
resignation or removal, Required Lenders shall have the right to appoint a successor Administrative
Agent that shall be an institutional lender that meets the qualifications of an Eligible Assignee,
which Borrower, as long as no Default exists,
shall then have the right to approve or disapprove in its reasonable discretion if such
successor Administrative Agent is not a Lender. If no successor Administrative Agent shall have
been so appointed by Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent’s giving of notice of resignation of the retiring
Administrative Agent or Required Lenders’ removal of Administrative Agent, then the retiring




45









 







Administrative Agent may, on behalf of Lenders, appoint a successor Administrative Agent, that
shall meet the requirements of an Eligible Assignee. If no successor Administrative Agent has been
appointed by Required Lenders or Administrative Agent, as provided above, then the retiring
Administrative Agent’s resignation shall nevertheless become effective forty-five (45) days after
the retiring Administrative Agent’s notice of resignation and Required Lenders shall thereafter
perform all of the duties of Administrative Agent hereunder and/or under any other Loan Documents
until such time, if any, as the Required Lenders appoint a successor Administrative Agent, as
provided in this Section 12.8. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by Borrower to a successor Administrative Agent shall be
the same as those payable to its predecessor unless otherwise agreed between Borrower and such
successor. After any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the provisions of this Section 12 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Administrative Agent.



     12.9 Consents under Loan Documents. Except as otherwise provided in the Loan Documents,
including Section 13.9, Administrative Agent may as expressly provided in the Loan Documents, or
otherwise with the prior consent of Required Lenders (but not otherwise), (a) grant any consent or
approval required of it or (b) consent to any modification or waiver under any of the Loan
Documents. If Administrative Agent solicits any consents or approvals from Lenders under any of
the Loan Documents, each Lender shall, within ten (10) Business Days of receiving such request,
give Administrative Agent written notice that it will grant such consent or approval or that it
will not grant such consent or approval; provided that, if any Lender does not respond within such
ten (10) Business Days, such Lender shall be deemed to have authorized Administrative Agent to vote
such Lender’s interest with respect to the matter which was the subject of Administrative Agent’s
solicitation as Administrative Agent elects. Any such solicitation by Administrative Agent for a
consent or approval shall be in writing and shall include a description of the matter or thing as
to which such consent or approval is requested and shall include Administrative Agent’s recommended
course of action or determination in respect thereof.



     12.10 Authorization. Administrative Agent is hereby authorized by Lenders to execute,
deliver, and perform in accordance with its terms each of the Loan Documents to which
Administrative Agent is or is intended to be a party and each Lender agrees to be bound by all of
the agreements of Administrative Agent contained in such Loan Documents. Borrower shall be
entitled to rely on all written agreements, approvals, and consents received from Administrative
Agent as being that also of Lenders, without obtaining separate acknowledgement or proof of
authorization of same.



     12.11 Defaulting Lenders. If any Lender (a “Defaulting Lender”) shall for any reason fail to
(i) make any respective Term Loan required pursuant to the terms of this Agreement or (ii) pay its
Pro Rata Share of an advance or disbursement to protect any Lien, any of the other Lenders may, but
shall not be obligated to, make all or a portion of the Defaulting Lender’s Term Loan or Pro Rata
Share of such advance, provided that such Lender gives Defaulting Lender and Administrative Agent
prior notice of its intention to do so. The right to make such advances in respect of Defaulting
Lender shall be exercisable first by the Lender holding the greatest Pro Rata Share of the Term
Loans and thereafter to each Lender in descending order of their respective Pro
Rata Shares of the Term Loans or in such other manner as Required Lenders (excluding
Defaulting Lender) may agree on. Whichever Lenders make all or any portion of the Defaulting
Lender’s proportionate share of the applicable Term Loan or advance in accordance with the
foregoing terms and conditions shall be referred to as a “Special Advance Lender.”



46









 





     (a) In any case where a Lender becomes a Special Advance Lender (i) the Special Advance
Lender shall be deemed to have purchased, and the Defaulting Lender shall be deemed to have sold, a
senior participation in the Defaulting Lender’s respective Term Loan to the extent of the amount so
advanced or disbursed (the “Advanced Amount”) bearing interest (including interest at the Default
Rate, if applicable) and (ii) the Defaulting Lender shall have no voting rights under this
Agreement or any other Loan Documents so long as it is a Defaulting Lender. It is expressly
understood and agreed that each of the respective obligations under this Agreement and the other
Loan Documents, including advancing Term Loans, losses incurred in connection with the Term Loans,
including costs and expenses of enforcement, and advances to preserve any Lien, shall be without
regard to any adjustment in the Pro Rata Shares occasioned by the acts of a Defaulting Lender. The
Special Advance Lender shall be entitled to an amount (the “Unpaid Amount”) equal to the applicable
Advanced Amount, plus any unpaid interest due and owing with respect thereto, less any repayments
thereof made by the Defaulting Lender immediately upon demand. The Defaulting Lender shall have
the right to repurchase the senior participation in its Term Loan from the Special Advance Lender
at any time by the payment of the Unpaid Amount.



     (b) A Special Advance Lender shall (i) give notice to the Defaulting Lender, Administrative
Agent, and each other Lender (provided that failure to deliver said notice to any party other than
the Defaulting Lender shall not constitute a default under this Agreement) of the Advance Amount
and the percentage of the Special Advance Lender’s senior participation in the Defaulting Lender’s
Term Loan and (ii) in the event of the repayment of any of the Unpaid Amount by the Defaulting
Lender, give notice to the Defaulting Lender and Administrative Agent of the fact that the Unpaid
Amount has been repaid (in whole or in part), the amount of such repayment and, if applicable, the
revised percentage of the Special Advance Lender’s senior participation. Provided that
Administrative Agent has received notice of such participation, Administrative Agent shall have the
same obligations to distribute interest, principal, and other sums received by Administrative Agent
with respect to a Special Advance Lender’s senior participation as Administrative Agent has with
respect to the distribution of interest, principal, and other sums under this Agreement; and at the
time of making any distributions to Lenders, shall make payments to the Special Advance Lender with
respect to a Special Advance Lender’s senior participation in the Defaulting Lender’s Term Loan out
of the Defaulting Lender’s share of any such distributions.



     (c) A Defaulting Lender shall immediately pay to a Special Advance Lender all sums of any kind
paid to or received by the Defaulting Lender from Borrower, whether pursuant to the terms of this
Agreement or the other Loan Documents, or in connection with the realization of the security
therefor, until the Unpaid Amount is fully repaid. Notwithstanding the fact that the Defaulting
Lender may temporarily hold such sums, the Defaulting Lender shall be deemed to hold same as a
trustee for the benefit of the Special Advance Lender, it being the express intention of Lenders
that the Special Advance Lender shall have an ownership interest in such sums to the extent of the
Unpaid Amount.



     (d) Each Defaulting Lender shall indemnify, defend, and hold Administrative Agent and each
other Lender harmless from and against any and all losses, damages, liabilities, or expenses
(including reasonable attorneys’ fees and expenses and interest at the Default Rate) which they may
sustain or incur by reason of the Defaulting Lender’s failure or refusal to abide by its
obligations under this Agreement or the other Loan Documents, except to the extent a Defaulting
Lender became a Defaulting Lender due to the gross negligence or willful misconduct of
Administrative Agent and/or any
Lender. Administrative Agent shall, after payment of any amounts due to any Special Advance Lender
pursuant to the terms of subsection (c) above, set-off against any payments due to such Defaulting
Lender for the claims of Administrative Agent and the other Lenders pursuant to this Indemnity.



47









 





     12.12 Other Agents.



     (a) Syndication Agent, in such capacity, shall have no rights, duties, or obligations
hereunder, except as specifically provided in this Agreement. Syndication Agent (a) may
voluntarily resign by notice to Administrative Agent, Lenders, and Borrower, and (b) shall resign
upon the request of the Required Lenders for cause. Upon the resignation of Syndication Agent, the
Required Lenders may elect to designate a successor Syndication Agent (which, if no Default or
Potential Default exists, is subject to Borrower’s approval that may not be unreasonably withheld),
which shall meet the requirements of an Eligible Assignee.



     (b) No Lender or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co-documentation agent,” “book
manager,” “lead manager,” “arranger,” “book runner,” or “lead arranger” shall have any right,
power, obligation, liability, responsibility, or duty under this Agreement other than, in the case
of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, no
Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any
Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.



SECTION 13




MISCELLANEOUS




     13.1 Headings. The headings, captions and arrangements used in any of the Loan Documents are,
unless specified otherwise, for convenience only and shall not be deemed to limit, amplify, or
modify the terms of the Loan Documents, nor affect the meaning thereof.



     13.2 Nonbusiness Days; Time. Any payment or action that is due under any Loan Document on a
non-Business Day may be delayed until the next-succeeding Business Day (but interest shall continue
to accrue on any applicable payment until payment is in fact made) unless the payment concerns a
Eurodollar Borrowing, in which case if the next-succeeding Business Day is in the next calendar
month, then such payment shall be made on the next-preceding Business Day.



     13.3 Communications. Unless otherwise specifically provided, whenever any Loan Document
requires or permits any consent, approval, notice, request, demand, or other communication from one
party to another, communication must be in writing (which may be by telex or telecopy) to be
effective and shall be deemed to have been given (a) if by telex, when transmitted to the
appropriate telex number and the appropriate answerback is received, (b) if by telecopy, when
transmitted to the appropriate telecopy number (and all communications sent by telecopy must be
confirmed promptly thereafter by telephone; but any requirement in this parenthetical shall not
affect the date when the telecopy shall be deemed to have been delivered), (c) if by mail, on the
fifth (5th) Business Day after it is enclosed in an envelope and properly addressed, stamped,
sealed, certified mail, return receipt requested, and deposited in the appropriate official postal
service, or (d) if by any other means, when actually delivered. Until changed by notice pursuant
to this Agreement, the address (and
telecopy number) for each party to a Loan Document is set forth on Schedule 1.



     13.4 Form and Number of Documents. The form, substance, and number of counterparts of each
writing to be furnished under this Agreement must be satisfactory to Administrative Agent and its
counsel.



48









 





     13.5 Survival. All covenants, agreements, undertakings, representations, and warranties made
in any of the Loan Documents survive all closings under the Loan Documents and, except as otherwise
indicated, are not affected by any investigation made by any party.



     13.6 Governing Law. EXCEPT AS EXPRESSLY PROVIDED IN A LOAN DOCUMENT, THE GOVERNMENTAL
REQUIREMENTS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS) OF THE STATE OF NEW YORK AND OF THE UNITED
STATES OF AMERICA GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO THE LOAN DOCUMENTS AND THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THE LOAN DOCUMENTS.



     13.7 Invalid Provisions. Any provision in any Loan Document held to be illegal, invalid, or
unenforceable is fully severable; the appropriate Loan Document shall be construed and enforced as
if that provision had never been included; and the remaining provisions shall remain in full force
and effect and shall not be affected by the severed provision. Administrative Agent, Lenders, and
Borrower agree to negotiate, in good faith, the terms of a replacement provision as similar to the
severed provision as may be possible and be legal, valid and enforceable. However, if the
provision held to be illegal, invalid, or unenforceable is a material part of this Agreement, such
invalid, illegal, or unenforceable provision shall be, to the extent permitted by applicable law,
replaced by a clause or provision judicially construed and interpreted to be as similar in
substance and content to the original terms of such illegal, invalid, or unenforceable clause or
provision as the context thereof would reasonably allow, so that such clause or provision would
thereafter be legal, valid, and enforceable.



     13.8 Venue; Service of Process; Jury Trial. EACH PARTY TO ANY LOAN DOCUMENT, IN EACH CASE FOR
ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE CASE OF BORROWER, FOR EACH OF ITS CONSOLIDATED
AFFILIATES), (a) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS OF THE STATE OF NEW YORK, (b) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING
OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BROUGHT IN DISTRICT COURTS OF
NEW YORK COUNTY, NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (d) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THOSE COURTS IN ANY LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, BY HAND-DELIVERY, OR BY DELIVERY BY A NATIONALLY
RECOGNIZED COURIER SERVICE, AND SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY OF THE LEGAL PROCESS
AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, (e) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING
AGAINST ANY PARTY TO ANY LOAN DOCUMENT ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR
THE OBLIGATION MAY BE BROUGHT IN ONE OF THE
AFOREMENTIONED COURTS, AND (f) IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY
LOAN DOCUMENT. The scope of each of the foregoing waivers is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty claims, and all other common
law and statutory claims. Borrower (for itself and on behalf of each of its Consolidated
Affiliates) acknowledges that these waivers are a material inducement to Administrative Agent’s and
each Lender’s agreement to enter into a business relationship, that Administrative Agent and each
Lender has already relied on these waivers in entering into this Agreement, and that Administrative
Agent and each



49









 







Lender will continue to rely on each of these waivers in related future dealings. Borrower (for
itself and on behalf of each of its Consolidated Affiliates) further warrants and represents that
it has reviewed these waivers with its legal counsel, and that it knowingly and voluntarily agrees
to each waiver following consultation with legal counsel. THE WAIVERS IN THIS SECTION 13.8 ARE
IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, OR REPLACEMENTS TO OR OF THIS OR ANY OTHER
LOAN DOCUMENT. In the event of Litigation, this Agreement may be filed as a written consent to a
trial by the court.



     13.9 Amendments, Consents, Conflicts, and Waivers.



     (a) Required Lenders. Unless otherwise specifically provided, the provisions of this
Agreement may be amended, modified, or waived, only by an instrument in writing executed by
Borrower and the Required Lenders and supplemented only by documents delivered or to be delivered
in accordance with the express terms of this Agreement.



     (b) All Lenders. Except as specifically otherwise provided in this Section 13.9, any
amendment to or consent or waiver under this Agreement or any Loan Document that purports to
accomplish any of the following must be by an instrument in writing executed by Borrower and
executed (or approved, as the case may be) by each Lender (other than any Defaulting Lender): (i)
extends the scheduled Termination Date; (ii) extends the due date or decreases the amount of any
scheduled payment or amortization of the Obligation beyond the date specified in the Loan
Documents; (iii) decreases any rate or amount of interest, fees, principal, or other sums payable
to Administrative Agent or Lenders under this Agreement (except such reductions as are contemplated
by this Agreement); (iv) changes the definition of “Adjusted Property EBITDA,” “Approved Costs,”
EBITDA Adjustments,” “EBITDA Value,” “Occupancy Rate,” "Required Lenders,” “Pro Rata Share,” or
“Unencumbered Properties; (v) increases any one or more Lenders’ Term Loan; (vi) waives compliance
with, amends, or fully or partially releases any Obligor; (vii) permits any Obligor to assign any
of its rights under the Loan Documents; (viii) amends Section 4.1; or (ix) changes this Section
13.9(b) or any other matter specifically requiring the consent of all Lenders under this Agreement.



     (c) Administrative Agent. No amendment, modification, consent, or waiver which modifies the
rights, duties, or obligations of Administrative Agent shall be effective without the consent of
Administrative Agent.



     (d) Conflicts. Any conflict or ambiguity between the terms and provisions of this Agreement
and terms and provisions in any other Loan Document is controlled by the terms and provisions of
this Agreement.



     (e) Course of Dealing. No course of dealing or any failure or delay by any Credit Party or
any of its Representatives with respect to exercising any Right of any Credit Party under this
Agreement operates as a waiver thereof. A waiver must be in writing and signed by the Required
Lenders or Lenders, as appropriate, to be effective, and a waiver will be effective only in the
specific instance and for the specific purpose for which it is given.



     13.10 Multiple Counterparts. Any Loan Document may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of thereof, it shall not be necessary
to produce or account for more than one counterpart. Each Lender need not execute the same
counterpart of this Agreement so long as identical counterparts are executed by Borrower, each
Lender, and Administrative Agent. This Agreement shall become effective when counterparts of this
Agreement have been executed



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and delivered to Administrative Agent by each Lender, Administrative Agent, and Borrower, or, in
the case only of Lenders, when Administrative Agent has received telecopied, telexed, or other
evidence satisfactory to it that each Lender has executed and is delivering to Administrative Agent
a counterpart of this Agreement.



     13.11 Successors and Assigns; Participations.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section 13.11, or (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section 13.11 (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of
this Section 13.11 and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its Rights and obligations under this Agreement (including all or a portion of its Term Loan and
Note at the time owing to it); provided that (i) except for an assignment by such Lender to an
Affiliate of such Lender, such Lender shall have received the prior consent of Administrative Agent
and, so long as no Default has occurred and is continuing, Borrower (each such consent not to be
unreasonably withheld or delayed); (ii) except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Term Loan and Note at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Term Loan (which for this purpose includes Principal Debt outstanding
thereunder) subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000; (iii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s Rights and obligations under this Agreement with respect to the Notes or
the Term Loan assigned; (iv) the parties to each assignment shall execute and deliver to
Administrative Agent an Assignment and Assumption, together with a processing and recordation fee
of $3,500; and (v) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Term Loan, the aggregate amount of the Term Loan of such assigning Lender, after
giving effect to such assignment, is at least $5,000,000. Subject to acceptance and recording
thereof by Administrative Agent pursuant to subsection (c) of this Section 13.11, from and after
the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s Rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.15(c) and (d), 3.17, 7.7 and 7.12 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Administrative Agent agrees to provide Borrower
with copies of all Assignment and Assumption Agreements so long as no Default exists. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such



51









 







Lender of a participation in such rights and obligations in accordance with subsection (d) of this
Section 13.11.



     (c) Administrative Agent, acting solely for this purpose as an agent of Borrower, shall
maintain at Administrative Agent’s office a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Term Loan of,
and principal amounts of the Notes owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and
Borrower, Administrative Agent, and Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower
and any Lender, at any reasonable time and from time to time upon reasonable prior notice.



     (d) Any Lender may at any time, sell participations to any Person (other than a natural
person or Borrower or any of Borrower’s Affiliates or Subsidiaries ) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Term Loan and/or the Notes; provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) Borrower, Administrative Agent, and
the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement, (iv) the amount of each such
participation shall not be less than $5,000,000; and (v) the aggregate amount of the Term Loan of
such Lender selling such participation, after giving effect to such participation, is at least
$5,000,000. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in Section 13.9(b) that
directly affects such Participant. Subject to subsection (e) of this Section 13.11, Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.15(c) and (d) and 3.17
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section 13.11. To the extent permitted by law, each Participant also agrees
to be subject to Section 3.12 as though it were a Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Sections 3.15(c)
and (d) than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.15(d) unless Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of Borrower, to
comply with Section 3.18 as
though it were a Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its Rights under this Agreement (including under its Note) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



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     “Eligible Assignee” means any of: (i) a commercial bank organized under the laws of the United
States, or any State thereof, and (x) having total assets in excess of $1,000,000,000, (y) having a
combined capital and surplus of at least $250,000,000, and (z) whose debt obligations (or its
parent’s debt obligations) are rated not less than Baa1 by Moody’s or BBB+ by S & P; (ii) a
commercial bank organized under the laws of any other country which is a member of the Organization
of Economic Cooperation and Development (“OECD”), or a political subdivision of any such country,
and (x) having total assets in excess of $1,000,000,000, (y) a combined capital and surplus of at
least $250,000,000, and (z) whose debt obligations (or its parent’s debt obligations) are rated not
less than Baa1 by Moody’s or BBB+ by S & P, provided that such bank is acting through a branch or
agency located in the country in which it is organized or another country which is also a member of
OECD; (iii) a life insurance company organized under the laws of any State of the United States, or
organized under the laws of any country and licensed as a life insurer by any State within the
United States and having admitted assets of at least $1,000,000,000; (iv) a nationally recognized
investment banking company or other financial institution in the business of making loans (e.g.,
General Electric Capital Corporation), or an Affiliate thereof (other than any Person which is
directly or indirectly an Obligor or directly or indirectly an Affiliate of any Obligor) organized
under the laws of any State of the United States, and licensed or qualified to conduct such
business under the laws of any such State and having (1) total assets of at least $1,000,000,000
and (2) a net worth of at least $250,000,000, and (3) whose debt obligations (or its parent’s debt
obligations) are rated not less than Baa1 by Moody’s or BBB+ by S & P; or (v) an Affiliate of
Eurohypo.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.



     (h) Prior to the payment in full of the Obligations, and unless a Default exists or Borrower
otherwise consents in writing, Administrative Agent shall, at all times prior to its resignation or
replacement as Administrative Agent hereunder, retain a minimum Term Loan equal to the lesser of
(i) $20,000,000, or (ii) an amount equal to twenty percent (20%) of the Total Principal Debt.



     13.12 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances. Borrower’s
obligations under the Loan Documents remain in full force and effect until the Obligation is paid
in full (except for provisions under the Loan Documents which by their terms expressly survive
payment of the Obligation and termination of the Loan Documents). If at any time any payment of
the principal of or interest on any Note or any other amount payable by Borrower or any other
obligor on the Obligation under any Loan Document is rescinded or must be restored or returned upon
the insolvency, bankruptcy, or reorganization of Borrower or otherwise, then the obligations of
Borrower
under the Loan Documents with respect to that payment shall be reinstated as though the
payment had been due but not made at that time.



     13.13 Amendment and Restatement. The parties hereto agree that, on the Closing Date, after
all conditions precedent set forth in Section 5.1 have been satisfied or waived: (a) the Obligation
(as defined herein) represents, among other things, the amendment, extension, consolidation, and
modification of the “Obligation” (as defined in the Original Agreement); (b) this Agreement is
intended to, and does hereby, restate, renew, extend, amend, modify, supersede, and replace the
Original Agreement; (c) the Notes executed pursuant to this Agreement amend, renew, extend, modify,
replace, substitute for and supersede in their entirety (but do not extinguish, the Indebtedness
arising under) the promissory notes issued pursuant to the Original Agreement; and (d) the entering
into and performance of their respective obligations under this Agreement and the transactions
evidenced hereby do not constitute a novation



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     13.14 Entirety. THIS AGREEMENT AND THE OTHER WRITTEN LOAN DOCUMENTS (EACH AS AMENDED IN
WRITING FROM TIME TO TIME) EXECUTED BY BORROWER AND/OR ANY CREDIT PARTY REPRESENT THE FINAL
AGREEMENT AMONG BORROWER AND THE CREDIT PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



[Remainder of Page Intentionally Left Blank;

Signature Pages Follow.]




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     EXECUTED as of the day and year first mentioned.



	 	 	 	 	 	 	 
	 	 	PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P.
	 	 	a Delaware limited partnership,
 as Borrower
	 
	 	 	 	 	 	 
	 	 	By:	 	PRENTISS PROPERTIES I, INC.,
	 	 	 	 	General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Thomas P. Simon
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas P. Simon
	 

	 	 	 	Title:
	 	Senior Vice President






Signature Page to Second Amended and

Restated Credit Agreement ($100,000,000 Term Loan))




55









 





	 	 	 	 	 
	 	 	EUROHYPO AG, NEW YORK BRANCH,
	 	 	as Administrative Agent and a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Byung Lee
	 

	 	 	 	 
	 

	 	Name:
	 	Byung Lee
	 

	 	 	 	 
	 

	 	Title:
	 	Director
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Nicholas Manolas
	 

	 	 	 	 
	 

	 	Name:
	 	Nicholas Manolas
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





Signature Page to Second Amended and

Restated Credit Agreement ($100,000,000 Term Loan)




56









 





	 	 	 	 	 
	 	 	BANK OF MONTREAL, as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Joann L. Holman
	 

	 	 	 	 
	 

	 	Name:
	 	Joann L. Holman
	 

	 	 	 	 
	 

	 	Title:
	 	Director
	 

	 	 	 	 





Signature Page to Second Amended and

Restated Credit Agreement ($100,000,000 Term Loan)




57









 





	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Susan M. Tate
	 

	 	 	 	 
	 

	 	Name:
	 	Susan M. Tate
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





Signature Page to Second Amended and

Restated Credit Agreement ($100,000,000 Term Loan)




58









 





	 	 	 	 	 
	 	 	SUNTRUST BANK, as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Nancy B. Richards
	 

	 	 	 	 
	 

	 	Name:
	 	Nancy B. Richards
	 

	 	 	 	 
	 

	 	Title:
	 	Senior Vice President
	 

	 	 	 	 





Signature Page to Second Amended and

Restated Credit Agreement ($100,000,000 Term Loan)





59