Exhibit 10.1


    
      CUSIP
        Number 29717DAA2


      


      FOURTH
        AMENDED AND RESTATED

       

      REVOLVING
        CREDIT AGREEMENT

       

      dated
        as of March 24, 2006

       

      among

       

      ESSEX
        PORTFOLIO, L.P.,

      a
        California limited partnership,

       

      THE
        LENDERS LISTED HEREIN,

       

      BANK
        OF AMERICA, N.A.,

      as
        Administrative Agent,

       

      BANC
        OF AMERICA SECURITIES LLC,

      as
        Sole Lead Arranger and Sole Book Manager,

       

      PNC
        BANK, NATIONAL ASSOCIATION,

      as
        Documentation Agent,

       

      UNION
        BANK OF CALIFORNIA, N.A.,

      as
        Syndication Agent,

       

      COMERICA
        BANK,

      as
        Managing Agent,

       

      KEYBANK
        NATIONAL ASSOCIATION,

      as
        Managing Agent,

       

      and

       

      JPMORGAN
        CHASE BANK, N.A.,

      as
        Managing Agent.

      
        
          

        

      

      
      

       

      
        
          	
                  FACTUAL
                    BACKGROUND

                	 	
                  1

                
	
                  AGREEMENT

                	 	 	 	
                  1

                
	
                  1.

                	
                  DEFINITIONS

                	 	 	
                  1

                
	 	
                  1.1

                	
                  Defined
                    Terms

                	 	
                  1

                
	 	
                  1.2

                	
                  Other
                    Interpretive Provisions

                	
                  23

                
	 	 	
                  1.2.1

                	
                  Use
                    of Defined Terms

                	
                  23

                
	 	 	
                  1.2.2

                	
                  Certain
                    Common Terms

                	
                  23

                
	 	 	 	
                  (1)

                	
                  The
                    Agreement

                	
                  23

                
	 	 	 	
                  (2)

                	
                  Documents

                	
                  23

                
	 	 	 	
                  (3)

                	
                  Meaning
                    of Certain Terms

                	
                  23

                
	 	 	 	
                  (4)

                	
                  Performance

                	
                  23

                
	 	 	 	
                  (5)

                	
                  Contracts

                	
                  24

                
	 	 	 	
                  (6)

                	
                  Laws

                	
                  24

                
	 	 	 	
                  (7)

                	
                  Captions

                	
                  24

                
	 	 	 	
                  (8)

                	
                  Independence
                    of Provisions

                	
                  24

                
	 	 	 	
                  (9)

                	
                  Exhibits

                	
                  24

                
	 	 	 	
                  (10)

                	
                  Times
                    of Day

                	
                  24

                
	 	 	
                  1.2.3

                	
                  Accounting
                    Principles

                	
                  24

                
	 	 	 	
                  (1)

                	
                  Accounting
                    Terms

                	
                  24

                
	 	 	 	
                  (2)

                	
                  Fiscal
                    Periods

                	
                  24

                
	 	 	 	
                  (3)

                	
                  Rounding

                	
                  25

                
	 	 	
                  1.2.4

                	
                  Letter
                    of Credit Amounts

                	
                  25

                
	
                  2.

                	
                  LOAN
                    AMOUNTS AND TERMS

                	
                  25

                
	 	
                  2.1

                	
                  Amount
                    and Terms of Commitment

                	
                  25

                
	 	 	
                  (a)

                	
                  Commitment

                	
                  25

                
	 	 	
                  (b)

                	
                  Letters
                    of Credit

                	
                  25

                
	 	 	
                  (c)

                	
                  Letter
                    of Credit Applications and Issuer Documents

                	
                  25

                
	 	 	
                  (d)

                	
                  Issuance
                    of Letter of Credit

                	
                  26

                
	 	 	
                  (e)

                	
                  Drawings
                    Constituting Committed Borrowings

                	
                  26

                
	 	 	
                  (f)

                	
                  Limited
                    to Availability

                	
                  26

                
	 	 	
                  (g)

                	
                  Benefits
                    of L/C Issuer

                	
                  26

                
	 	 	
                  2.1.1

                	
                  No
                    Obligation to Issue Letters of Credit Under Certain
                    Circumstances

                	
                  27

                
	 	 	
                  2.1.2

                	
                  Letter
                    of Credit Amendments

                	
                  27

                
	 	 	
                  2.1.3

                	
                  Applicability
                    of ISP98

                	
                  27

                
	 	
                  2.2

                	
                  Swing
                    Line

                	 	
                  27

                
	 	 	
                  2.2.1

                	
                  Swing
                    Loans

                	
                  27

                
	 	 	
                  2.2.2

                	
                  Interest
                    on Swing Loans

                	
                  28

                
	 	 	
                  2.2.3

                	
                  Principal
                    Payable on Swing Loans

                	
                  28

                
	 	 	
                  2.2.4

                	
                  Prepayments
                    of Swing Loans

                	
                  28

                


        

         

        
          
            
            

          

          
            -ii-

            
              

            

          

          
            
            

          

           

        

        
          	 	 	
                  2.2.5

                	
                  Funding
                    of Participations

                	
                  29

                
	 	 	
                  2.2.6

                	
                  Refinancing
                    of Swing Loans

                	
                  29

                
	 	 	
                  2.2.7

                	
                  Termination
                    of Swing Line

                	
                  30

                
	 	 	
                  2.2.8

                	
                  No
                    Swing Loans Upon Default

                	
                  30

                
	 	
                  2.3

                	
                  Procedure
                    for Obtaining Credit (Committed Loans, Swing Loans and Letters
                    of
                    Credit)

                	
                  30

                
	 	
                  2.4

                	
                  Bid
                    Loans

                	 	
                  32

                
	 	 	
                  2.4.1

                	
                  General

                	 	
                  32

                
	 	 	
                  2.4.2

                	
                  Requesting
                    Competitive Bids

                	
                  32

                
	 	 	
                  2.4.3

                	
                  Submitting
                    Competitive Bids

                	
                  32

                
	 	 	
                  2.4.4

                	
                  Notice
                    to Borrower of Competitive Bids

                	
                  33

                
	 	 	
                  2.4.5

                	
                  Acceptance
                    of Competitive Bids

                	
                  33

                
	 	 	
                  2.4.6

                	
                  Procedure
                    for Identical Bids

                	
                  33

                
	 	 	
                  2.4.7

                	
                  Notice
                    to Lenders of Acceptance or Rejection of Bids

                	
                  34

                
	 	 	
                  2.4.8

                	
                  Notice
                    of LIBOR Base Rate

                	
                  34

                
	 	 	
                  2.4.9

                	
                  Funding
                    of Bid Loans

                	
                  34

                
	 	 	
                  2.4.10

                	
                  Notice
                    of Range of Bids

                	
                  34

                
	 	
                  2.5

                	
                  Loan
                    Accounts; Notes

                	
                  34

                
	 	 	
                  2.5.1

                	
                  Loan
                    Accounts

                	
                  34

                
	 	 	
                  2.5.2

                	
                  Notes

                	 	
                  35

                
	 	
                  2.6

                	
                  Letters
                    of Credit

                	 	
                  35

                
	 	 	
                  2.6.1

                	
                  Letter
                    of Credit Drawings and Reimbursements; Funding of
                    Participations

                	
                  35

                
	 	 	
                  2.6.2

                	
                  Repayment
                    of Participations

                	
                  37

                
	 	 	
                  2.6.3

                	
                  Obligations
                    Absolute

                	
                  37

                
	 	 	
                  2.6.4

                	
                  Role
                    of Letter of Credit Issuer

                	
                  38

                
	 	 	
                  2.6.5

                	
                  Cash
                    Collateral

                	
                  39

                
	 	
                  2.7

                	
                  Conversion
                    and Continuation Elections of Committed Loans

                	
                  39

                
	 	 	
                  2.7.1

                	
                  Election
                    to Convert and Renew

                	
                  39

                
	 	 	
                  2.7.2

                	
                  Notice
                    of Conversion/Continuation

                	
                  39

                
	 	 	
                  2.7.3

                	
                  Failure
                    to Select a New Interest Period

                	
                  40

                
	 	 	
                  2.7.4

                	
                  Number
                    of Interest Periods

                	
                  40

                
	 	
                  2.8

                	
                  Voluntary
                    Termination or Reduction of Commitment

                	
                  40

                
	 	
                  2.9

                	
                  Principal
                    Payments

                	
                  41

                
	 	 	
                  2.9.1

                	
                  Optional
                    Prepayments of the Committed Loans

                	
                  41

                
	 	 	
                  2.9.2

                	
                  No
                    Optional Prepayments of Bid Loans

                	
                  41

                
	 	 	
                  2.9.3

                	
                  Mandatory
                    Repayments

                	
                  41

                
	 	 	
                  2.9.4

                	
                  Repayment
                    at Maturity

                	
                  41

                
	 	 	
                  2.9.5

                	
                  Repayment
                    of Bid Loans

                	
                  41

                
	 	
                  2.10

                	
                  Extension
                    of Maturity Date

                	
                  41

                
	 	
                  2.11

                	
                  Interest

                	 	 	
                  42

                
	 	 	
                  2.11.1

                	
                  Accrual
                    Rate

                	
                  42

                


        

         

        
          
            
            

          

          
            -iii-

            
              

            

          

          
            
            

          

           

        

        
          	 	 	
                  2.11.2

                	
                  Payment

                	
                  42

                
	 	 	
                  2.11.3

                	
                  Default
                    Interest

                	
                  42

                
	 	 	
                  2.11.4

                	
                  Maximum
                    Legal Rate

                	
                  42

                
	 	
                  2.12

                	
                  Fees

                	 	 	
                  43

                
	 	 	
                  2.12.1

                	
                  Facility
                    Fee

                	
                  43

                
	 	 	
                  2.12.2

                	
                  Letter
                    of Credit Fees

                	
                  43

                
	 	 	
                  2.12.3

                	
                  Other
                    Fees

                	
                  44

                
	 	
                  2.13

                	
                  Computation
                    of Fees and Interest

                	
                  44

                
	 	
                  2.14

                	
                  Increase
                    in Maximum Commitment Amount

                	
                  44

                
	 	 	
                  2.14.1

                	
                  Request
                    for Increase

                	
                  44

                
	 	 	
                  2.14.2

                	
                  No
                    Lender Consent Required

                	
                  44

                
	 	 	
                  2.14.3

                	
                  Administrative
                    Agent Consent and Conditions to Increase

                	
                  44

                
	 	 	
                  2.14.4

                	
                  Rights
                    of Eligible Assignees

                	
                  45

                
	 	 	
                  2.14.5

                	
                  Conditions
                    of Increase in Maximum Commitments

                	
                  45

                
	 	
                  2.15

                	
                  Payments
                    by Borrower

                	
                  46

                
	 	 	
                  2.15.1

                	
                  Timing
                    of Payments

                	
                  46

                
	 	 	
                  2.15.2

                	
                  Non-Business
                    Days

                	
                  46

                
	 	 	
                  2.15.3

                	
                  Payment
                    May be Made by Administrative Agent

                	
                  47

                
	 	
                  2.16

                	
                  Payments
                    by the Lenders to Administrative Agent

                	
                  47

                
	 	 	
                  2.16.1

                	
                  Administrative
                    Agent May Make Committed Borrowings Available

                	
                  47

                
	 	 	
                  2.16.2

                	
                  Obligations
                    of Lenders Several

                	
                  47

                
	 	 	
                  2.16.3

                	
                  Failure
                    to Satisfy Conditions Precedent

                	
                  47

                
	 	 	
                  2.16.4

                	
                  Funding
                    Source

                	
                  48

                
	 	
                  2.17

                	
                  Sharing
                    of Payments, Etc.

                	
                  48

                
	 	
                  2.18

                	
                  Defaulting
                    Lender

                	
                  48

                
	 	 	
                  2.18.1

                	
                  Notice
                    and Cure of Lender Default; Election Period; Electing
                    Lenders

                	
                  48

                
	 	 	
                  2.18.2

                	
                  Removal
                    of Rights; Indemnity

                	
                  49

                
	 	 	
                  2.18.3

                	
                  Commitment
                    Adjustments

                	
                  49

                
	 	 	
                  2.18.4

                	
                  No
                    Election

                	
                  50

                
	 	
                  2.19

                	
                  Increases
                    and Decreases in Pro Rata Shares From Existing Agreement

                	
                  50

                
	
                  3.

                	
                  TAXES,
                    YIELD PROTECTION AND ILLEGALITY

                	
                  50

                
	 	
                  3.1

                	
                  Taxes

                	 	 	
                  50

                
	 	 	
                  3.1.1

                	
                  Payments
                    Free of Taxes

                	
                  50

                
	 	 	
                  3.1.2

                	
                  Payment
                    of Other Taxes by Borrower

                	
                  51

                
	 	 	
                  3.1.3

                	
                  Indemnification
                    by Borrower

                	
                  51

                
	 	 	
                  3.1.4

                	
                  Evidence
                    of Payments

                	
                  51

                
	 	 	
                  3.1.5

                	
                  Status
                    of Lenders

                	
                  51

                
	 	 	
                  3.1.6

                	
                  Treatment
                    of Certain Refunds

                	
                  52

                
	 	
                  3.2

                	
                  Illegality

                	 	 	
                  52

                
	 	
                  3.3

                	
                  Increased
                    Costs

                	 	
                  52

                


        

         

        
          
            
            

          

          
            -iv-

            
              

            

          

          
            
            

          

           

        

        
          	 	 	
                  3.3.1

                	
                  Increased
                    Costs Generally

                	
                  52

                
	 	 	
                  3.3.2

                	
                  Capital
                    Requirements

                	
                  53

                
	 	 	
                  3.3.3

                	
                  Delay
                    in Requests

                	
                  53

                
	 	
                  3.4

                	
                  Funding
                    Losses

                	 	
                  54

                
	 	
                  3.5

                	
                  Inability
                    to Determine Rates

                	
                  54

                
	 	
                  3.6

                	
                  Certificate
                    of Lender

                	
                  55

                
	 	
                  3.7

                	
                  Mitigation
                    Obligations; Replacement of Lenders

                	
                  55

                
	 	 	
                  (a)

                	
                  Designation
                    of a Different Lending Office

                	
                  55

                
	 	 	
                  (b)

                	
                  Replacement
                    of Lenders

                	
                  55

                
	 	
                  3.8

                	
                  Survival

                	 	 	
                  55

                
	
                  4.

                	
                  UNENCUMBERED
                    ASSET POOL

                	
                  55

                
	 	
                  4.1

                	
                  Additions
                    of Property to the Unencumbered Asset Pool

                	
                  55

                
	 	
                  4.2

                	
                  Delivery
                    of Information

                	
                  59

                
	
                  5.

                	
                  CONDITIONS
                    TO DISBURSEMENTS

                	
                  60

                
	 	
                  5.1

                	
                  Conditions
                    to Initial Loans

                	
                  60

                
	 	 	
                  5.1.1

                	
                  Deliveries
                    to Administrative Agent

                	
                  60

                
	 	 	
                  5.1.2

                	
                  Payment
                    of Fees

                	
                  61

                
	 	 	
                  5.1.3

                	
                  Payment
                    of Expenses

                	
                  61

                
	 	
                  5.2

                	
                  Conditions
                    of all Borrowings and Letters of Credit

                	
                  61

                
	
                  6.

                	
                  COVENANTS
                    OF BORROWER

                	
                  62

                
	 	
                  6.1

                	
                  Specific
                    Affirmative Covenants

                	
                  62

                
	 	 	
                  6.1.1

                	
                  Compliance
                    with Law

                	
                  62

                
	 	 	
                  6.1.2

                	
                  Site
                    Visits

                	
                  63

                
	 	 	
                  6.1.3

                	
                  Insurance

                	
                  63

                
	 	 	
                  6.1.4

                	
                  Preservation
                    of Rights

                	
                  64

                
	 	 	
                  6.1.5

                	
                  Taxes

                	 	
                  64

                
	 	
                  6.2

                	
                  Payment
                    of Expenses

                	
                  65

                
	 	
                  6.3

                	
                  Financial
                    and Other Information; Certification

                	
                  65

                
	 	
                  6.4

                	
                  Notices

                	 	 	
                  68

                
	 	
                  6.5

                	
                  Negative
                    Covenants

                	
                  69

                
	 	 	
                  6.5.1

                	
                  Limitations
                    on Certain Activities

                	
                  69

                
	 	 	
                  6.5.2

                	
                  Acquisition
                    Down-REITs

                	
                  70

                
	 	
                  6.6

                	
                  Type
                    of Business; Development Covenants

                	
                  71

                
	 	
                  6.7

                	
                  Performance
                    of Acts

                	
                  72

                
	 	
                  6.8

                	
                  Keeping
                    Guarantor Informed

                	
                  72

                
	 	
                  6.9

                	
                  Maximum
                    Total Liabilities to Gross Asset Value

                	
                  72

                
	 	
                  6.10

                	
                  Debt
                    Ratios

                	 	
                  72

                
	 	
                  6.11

                	
                  Fixed
                    Charge Coverage Ratio

                	
                  72

                
	 	
                  6.12

                	
                  Tangible
                    Net Worth

                	
                  72

                
	 	
                  6.13

                	
                  Maximum
                    Quarterly Dividends

                	
                  73

                


        

         

        
          
            
            

          

          
            -v-

            
              

            

          

          
            
            

          

           

        

        
          	 	
                  6.14

                	
                  Negative
                    Pledge; Limitations on Affiliate Indebtedness

                	
                  73

                
	 	
                  6.15

                	
                  Change
                    in Ownership of Borrower or Management of the Unencumbered Asset
                    Pool
                    Property

                	
                  73

                
	 	
                  6.16

                	
                  Books
                    and Records

                	
                  74

                
	 	
                  6.17

                	
                  Audits

                	 	 	
                  74

                
	 	
                  6.18

                	
                  Cooperation

                	 	
                  74

                
	 	
                  6.19

                	
                  ERISA
                    Plans

                	 	
                  74

                
	 	
                  6.20

                	
                  Use
                    of Proceeds

                	 	
                  74

                
	 	
                  6.21

                	
                  Use
                    of Proceeds - Ineligible Securities

                	
                  74

                
	 	
                  6.22

                	
                  Existing
                    Convertible “Flipper” Loans

                	
                  74

                
	
                  7.

                	
                  Representations
                    and Warranties

                	
                  74

                
	 	
                  7.1

                	
                  Organization
                    of Borrower, Guarantor and each Permitted Affiliate

                	
                  75

                
	 	
                  7.2

                	
                  Authorization

                	 	
                  75

                
	 	
                  7.3

                	
                  Enforceable
                    Agreement

                	
                  75

                
	 	
                  7.4

                	
                  Good
                    Standing

                	 	
                  75

                
	 	
                  7.5

                	
                  No
                    Conflicts

                	 	
                  75

                
	 	
                  7.6

                	
                  Financial
                    Information

                	
                  75

                
	 	
                  7.7

                	
                  Borrower
                    Not a “Foreign Person”

                	
                  75

                
	 	
                  7.8

                	
                  Lawsuits

                	 	
                  75

                
	 	
                  7.9

                	
                  Permits,
                    Franchises

                	
                  76

                
	 	
                  7.10

                	
                  Other
                    Obligations

                	
                  76

                
	 	
                  7.11

                	
                  Income
                    Tax Returns

                	
                  76

                
	 	
                  7.12

                	
                  No
                    Event of Default

                	
                  76

                
	 	
                  7.13

                	
                  ERISA
                    Plans

                	 	
                  76

                
	 	
                  7.14

                	
                  Location
                    of Borrower

                	
                  76

                
	 	
                  7.15

                	
                  No
                    Required Third Party/Governmental Approvals

                	
                  76

                
	 	
                  7.16

                	
                  Regulated
                    Entities

                	
                  77

                
	
                  8.

                	
                  DEFAULT
                    AND REMEDIES

                	
                  77

                
	 	
                  8.1

                	
                  Events
                    of Default

                	 	
                  77

                
	 	
                  8.2

                	
                  Remedies

                	 	
                  79

                
	 	 	
                  8.2.1

                	
                  Termination
                    of Commitment to Lend

                	
                  79

                
	 	 	
                  8.2.2

                	
                  Acceleration
                    of Loans

                	
                  79

                
	 	 	
                  8.2.3

                	
                  Security
                    for Letters of Credit

                	
                  79

                
	 	 	
                  8.2.4

                	
                  Exercise
                    of Rights and Remedies

                	
                  80

                
	 	
                  8.3

                	
                  Application
                    of Funds

                	
                  80

                
	
                  9.

                	
                  ADMINISTRATIVE
                    AGENT

                	
                  81

                
	 	
                  9.1

                	
                  Appointment
                    and Authority

                	
                  81

                
	 	
                  9.2

                	
                  Rights
                    as a Lender

                	
                  81

                
	 	
                  9.3

                	
                  Exculpatory
                    Provisions

                	
                  81

                
	 	 	
                  9.3.1

                	
                  Limitation
                    of Administrative Agent’s Duties

                	
                  81

                
	 	 	
                  9.3.2

                	
                  Limitation
                    of Administrative Agent’s Liability

                	
                  82

                


        

         

        
          
            
            

          

          
            -vi-

            
              

            

          

          
            
            

          

           

        

        
          	 	 	
                  9.3.3

                	
                  Limitation
                    of Administrative Agent’s Responsibilities

                	
                  82

                
	 	
                  9.4

                	
                  Reliance
                    by Administrative Agent

                	
                  82

                
	 	
                  9.5

                	
                  Delegation
                    of Duties

                	
                  82

                
	 	
                  9.6

                	
                  Resignation
                    of Administrative Agent

                	
                  83

                
	 	 	
                  9.6.1

                	
                  Notice
                    of Resignation

                	
                  83

                
	 	 	
                  9.6.2

                	
                  Resignation
                    by Bank of America

                	
                  83

                
	 	
                  9.7

                	
                  Non-Reliance
                    on Administrative Agent and Other Lenders

                	
                  84

                
	 	
                  9.8

                	
                  No
                    Other Duties, Etc.

                	
                  84

                
	 	
                  9.9

                	
                  Administrative
                    Agent May File Proofs of Claim

                	
                  84

                
	 	
                  9.10

                	
                  Release
                    of Permitted Affiliate from Payment Guaranty

                	
                  85

                
	
                  10.

                	
                  MISCELLANEOUS
                    PROVISIONS

                	
                  85

                
	 	
                  10.1

                	
                  Amendments
                    and Waivers

                	
                  85

                
	 	
                  10.2

                	
                  Notices;
                    Effectiveness; Electronic Communication

                	
                  86

                
	 	 	
                  (a)

                	
                  Notices
                    Generally

                	
                  86

                
	 	 	
                  (b)

                	
                  Electronic
                    Communications

                	
                  87

                
	 	 	
                  (c)

                	
                  The
                    Platform

                	
                  87

                
	 	 	
                  (d)

                	
                  Change
                    of Address, Etc.

                	
                  88

                
	 	 	
                  (e)

                	
                  Reliance
                    by Administrative Agent, L/C Issuer and Lenders

                	
                  88

                
	 	
                  10.3

                	
                  No
                    Waiver; Cumulative Remedies

                	
                  88

                
	 	
                  10.4

                	
                  Costs
                    and Expenses; Indemnity; Waiver of Consequential Damages,
                    Etc.

                	
                  88

                
	 	 	
                  (a)

                	
                  Costs
                    and Expenses

                	
                  88

                
	 	 	
                  (b)

                	
                  Indemnification
                    by the Borrower

                	
                  89

                
	 	 	
                  (c)

                	
                  Reimbursement
                    by Lenders

                	
                  89

                
	 	 	
                  (d)

                	
                  Payments

                	
                  90

                
	 	 	
                  (e)

                	
                  Survival

                	 	
                  90

                
	 	
                  10.5

                	
                  Successors
                    and Assigns

                	
                  90

                
	 	 	
                  (a)

                	
                  Successors
                    and Assigns Generally

                	
                  90

                
	 	 	
                  (b)

                	
                  Assignment
                    by Lenders

                	
                  90

                
	 	 	
                  (c)

                	
                  Register

                	 	
                  91

                
	 	 	
                  (d)

                	
                  Participations

                	
                  91

                
	 	 	
                  (e)

                	
                  Limitations
                    on Participant Rights

                	
                  92

                
	 	 	
                  (f)

                	
                  Certain
                    Pledges

                	
                  92

                
	 	 	
                  (g)

                	
                  Electronic
                    Execution of Assignments

                	
                  92

                
	 	 	
                  (h)

                	
                  Resignation
                    as L/C Issuer or Swing Line Lender after Assignment

                	
                  92

                
	 	
                  10.6

                	
                  Confidentiality

                	 	
                  93

                
	 	
                  10.7

                	
                  Right
                    of Setoff

                	 	
                  94

                
	 	
                  10.8

                	
                  No
                    Third Parties Benefited

                	
                  94

                
	 	
                  10.9

                	
                  Payments
                    Set Aside

                	
                  94

                
	 	
                  10.10

                	
                  Counterparts;
                    Integration; Effectiveness

                	
                  95

                
	 	
                  10.11

                	
                  Survival
                    of Representations and Warranties

                	
                  95

                


        

         

        
          
            
            

          

          
            -vii-

            
              

            

          

          
            
            

          

           

        

        
          	 	
                  10.12

                	
                  Severability

                	 	
                  95

                
	 	
                  10.13

                	
                  Replacement
                    of Lenders

                	
                  95

                
	 	
                  10.14

                	
                  Governing
                    Law; Jurisdiction; Etc.

                	
                  96

                
	 	 	
                  (a)

                	
                  GOVERNING
                    LAW

                	
                  96

                
	 	 	
                  (b)

                	
                  SUBMISSION
                    TO JURISDICTION

                	
                  96

                
	 	 	
                  (c)

                	
                  WAIVER
                    OF VENUE

                	
                  97

                
	 	 	
                  (d)

                	
                  SERVICE
                    OF PROCESS

                	
                  97

                
	 	
                  10.15

                	
                  Waiver
                    of Jury Trial

                	
                  97

                
	 	
                  10.16

                	
                  Judicial
                    Reference

                	
                  97

                
	 	
                  10.17

                	
                  USA
                    PATRIOT Act Notice

                	
                  98

                
	 	
                  10.18

                	
                  Time
                    of the Essence

                	
                  98

                
	 	
                  10.19

                	
                  No
                    Fiduciary Relationship

                	
                  98

                
	 	
                  10.20

                	
                  Amendment
                    and Restatement

                	
                  99

                
	
                  EXHIBIT
                    A-1

                	
                  UNENCUMBERED
                    STABILIZED ASSET PROPERTY

                	 
	
                  EXHIBIT
                    A-2

                	
                  UNENCUMBERED
                    WORK IN PROCESS PROPERTIES

                	 
	
                  EXHIBIT
                    B

                	
                  FORM
                    OF NOTICE OF COMMITTED BORROWING OR
                    CONVERSION/CONTINUATION

                	 
	
                  EXHIBIT
                    C

                	
                  FORM
                    OF LETTER OF CREDIT APPLICATION

                	 
	
                  EXHIBIT
                    D-1

                	
                  SUPPLEMENTAL
                    SIGNATURE PAGE (EXISTING CO-LENDER)

                	 
	
                  EXHIBIT
                    D-2

                	
                  SUPPLEMENTAL
                    SIGNATURE PAGE (NEW CO-LENDER)

                	 
	
                  EXHIBIT
                    E

                	
                  COMPLIANCE
                    CERTIFICATE

                	 
	
                  EXHIBIT
                    F

                	
                  FORM
                    OF ASSIGNMENT AND ASSUMPTION

                	 
	
                  EXHIBIT
                    G-1

                	
                  FORM
                    OF PAYMENT GUARANTY (GUARANTOR)

                	 
	
                  EXHIBIT
                    G-2

                	
                  FORM
                    OF PAYMENT GUARANTY (PERMITTED AFFILIATE)

                	 
	
                  EXHIBIT
                    H-1

                	
                  FORM
                    OF REVOLVING NOTE

                	 
	
                  EXHIBIT
                    H-2

                	
                  FORM
                    OF SWING LINE NOTE

                	 
	
                  EXHIBIT
                    H-3

                	
                  FORM
                    OF BID NOTE

                	 
	
                  EXHIBIT
                    I-1

                	
                  FORM
                    OF BID REQUEST

                	 
	
                  EXHIBIT
                    I-2

                	
                  FORM
                    OF COMPETITIVE BID

                	 
	 	 	 
	
                  SCHEDULE
                    1.1

                	
                  LENDERS
                    NAMES, ADDRESSES AND PRO RATA SHARES

                	 
	
                  SCHEDULE
                    1.2

                	
                  ADMINISTRATIVE
                    AGENT’S OFFICE; AGENT’S PAYMENT OFFICE

                	 
	
                  SCHEDULE
                    1.3

                	
                  EXISTING
                    LETTERS OF CREDIT

                	 
	
                  SCHEDULE
                    1.4

                	
                  PERMITTED
                    AFFILIATES

                	 
	
                  SCHEDULE
                    1.5

                	
                  PROCESSING
                    AND RECORDATION FEES

                	 


        

         

        
          
            
            

          

          
            -viii-

            
              

            

          

          
            
            

          

        

      

       

      Execution
        Copy

       

      FOURTH
        AMENDED AND RESTATED

      REVOLVING
        CREDIT AGREEMENT

       

      This
        FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of
        March 24, 2006 (this “Agreement”),
        is
        among ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”),
        the
        several financial institutions from time to time party to this Agreement
        (collectively, the “Lenders”
and
        individually, a “Lender”),
        and
        BANK OF AMERICA, N.A., as administrative agent for the Lenders (in such
        capacity, “Administrative
        Agent”)
        and as
        Swing Line Lender and L/C Issuer, PNC
        BANK,
        NATIONAL ASSOCIATION,
        as
        documentation agent, UNION
        BANK OF CALIFORNIA, N.A.,
        as
        syndication agent, COMERICA
        BANK,
        as
        managing agent, and KEYBANK
        NATIONAL ASSOCIATION,
        as
        managing agent, JPMORGAN
        CHASE BANK, N.A.,
        as
        managing agent.

       

      Factual
        Background

       

      A. Certain
        of the Lenders have previously made available to Borrower an unsecured revolving
        line of credit and letter of credit facility in the maximum principal amount
        of
        $185,000,000 (the “Credit
        Line”)
        on the
        terms and subject to the conditions set forth in that certain Third Amended
        and
        Restated Revolving Loan Agreement dated as of April 30, 2004, among
        Borrower, the financial institutions party thereto and Bank of America, N.A.,
        as
        administrative agent for the lenders (the “Existing
        Agreement”).

       

      B. Essex
        Property Trust, Inc., a Maryland corporation and Borrower’s general partner, and
        certain subsidiaries of the Borrower designed as “Permitted Affiliates”
thereunder have guaranteed Borrower’s obligations under the Existing
        Agreement.

       

      C. Borrower
        has requested that the Lenders and Administrative Agent modify the Existing
        Agreement to, among other things, increase the Credit Line to the maximum
        principal amount of $200,000,000 (subject to increase pursuant to Section 2.14.5
        hereof),
        to add a Bid Loan facility, and to extend the term. The Lenders and
        Administrative Agent are willing to modify the Credit Line on the terms and
        subject to the conditions set forth in this Agreement, which amends and restates
        the Existing Agreement in full, with the pro rata shares of the Lenders adjusted
        as set forth in Schedule 1.1
        hereof.

       

      Agreement

       

      NOW,
        THEREFORE, in consideration of the mutual covenants and agreements set forth
        herein, the parties agree as follows:

       

      1.  DEFINITIONS.

       

      1.1  Defined
        Terms.
        In
        addition to the terms defined elsewhere in this Agreement, the following
        terms
        have the following meanings:

      
        S-1

      

      “Absolute
        Rate”
means
        either a rate per annum equal to the Reference Rate plus or minus a margin,
        or
        another fixed rate of interest expressed in multiples of 1/100th
        of one
        basis point, offered by a Lender for an Absolute Rate Bid Loan.

       

      “Absolute
        Rate Bid Loans”
means
        a
        Bid Loan that bears interest at a rate determined with reference to an Absolute
        Rate.

       

      “Acquisition
        down-REIT”
shall
        have the meaning set forth in Section 6.5.2(1).

       

      “Act”
shall
        have the meaning set forth in Section 10.15

       

      “Administrative
        Agent”
means
        Bank of America, in its capacity as administrative agent for the Lenders
        hereunder and under the other Loan Documents, and any successor administrative
        agent designated under Section 9.6.

       

      “Administrative
        Agent’s
        Office”
means
        Administrative Agent’s
        address
        and, as appropriate, account as set forth on Schedule 1.2,
        or such
        other address or account as Administrative Agent may from time to time notify
        Borrower and the Lenders in writing.

       

      “Administrative
        Questionnaire”
means
        an Administrative Questionnaire in a form supplied by Administrative
        Agent.

       

      “Affiliate”
means,
        with respect to a specified Person, any other Person that directly, or
        indirectly through one or more intermediaries, Controls or is Controlled
        by or
        is under common Control with the specified Person. “Control”
means
        the possession, directly or indirectly, of the power to direct or cause the
        direction of the management or policies of a Person, whether through the
        ability
        to exercise voting power, by contract or otherwise. “Controlling”
and
        “Controlled”
have
        meanings correlative thereto.

       

      “Agent’s
        Payment Office”
means
        the address for payments set forth herein for Administrative Agent, as specified
        in Schedule 1.2,
        or such
        other address as Administrative Agent may from time to time specify by the
        delivery of a written notice to Borrower and the Lenders.

       

      “Agreement”
means
        this Fourth Amended and Restated Revolving Credit Agreement, as supplemented,
        modified, amended or amended and restated from time to time.

       

      “Applicable
        Committed Loan Margin”
means
        the Applicable LIBOR Committed Loan Margin or the Applicable Reference Rate
        Committed Loan Margin determined from the following pricing grid based on
        the
        current published or private ratings of Guarantor’s senior unsecured long term
        debt, as provided below:

       

      
        
          
          

        

        
          S-2

          
            

          

        

      

       

      
        	
                 

                Tier

              	
                Guarantor’s
                  Senior Unsecured Long Term Debt Rating

              	
                Applicable
                  Libor Committed Loan Margin (bps)

              	
                Facility
                  Fee (bps Per Annum)

              	
                Applicable
                  Reference Rate Committed Loan Margin (bps)

              
	
                I

              	
                BBB+
                  and/or Baa1 or better

              	
                50

              	
                15

              	
                0

              
	
                II

              	
                BBB
                  and/or Baa2

              	
                60

              	
                20

              	
                0

              
	
                III

              	
                BBB-
                  and/or Baa3

              	
                80

              	
                20

              	
                0

              
	
                IV

              	
                Less
                  than BBB- and/or Baa3

              	
                105

              	
                20

              	
                25

              


      

      


      Borrower
        shall provide to Administrative Agent annually, on or before June 30,
        written evidence of the current rating or ratings on Guarantor’s senior
        unsecured long term debt by any of Moody’s, S&P and/or Fitch, if such rating
        agency has provided to Guarantor a rating on such senior unsecured long term
        debt, which evidence shall be reasonably acceptable to Administrative Agent;
        provided,
        that,
        at a
        minimum, Guarantor must provide such a rating from either Moody’s or S&P. In
        the event that Guarantor has a rating on its senior unsecured long term debt
        provided by (a) both Moody’s and S&P, (b) both Moody’s and Fitch,
        (c) both S&P and Fitch, or (d) each of Moody’s, S&P and Fitch,
        and there is a difference in rating between such rating agencies, the Applicable
        Committed Loan Margin shall be based on the lower rating. Changes in the
        Applicable Committed Loan Margin shall become effective on the first day
        following the date on which any of Moody’s, S&P or Fitch that has provided
        Guarantor a rating on Guarantor’s senior unsecured long term debt changes such
        rating. On the Closing Date, the Applicable Committed Loan Margin shall be
        based
        on Tier III.

       

      “Applicable
        LIBOR Committed Loan Margin”
means
        the Applicable Committed Loan Margin for LIBOR Committed Loans.

       

      “Applicable
        Reference Rate Committed Loan Margin”
means
        the Applicable Committed Loan Margin for Reference Rate Committed
        Loans.

       

      “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.

       

      “Approved
        Subordination Agreement”
        has the
        meaning set forth in Section
        6.14(b).

       

      “Arranger”
means
        Banc of America Securities LLC, in its capacity as sole lead arranger and
        sole
        book manager.

       

      “Assignee
        Group”
means
        two or more Eligible Assignees that are Affiliates of one another or two
        or more
        Approved Funds managed by the same investment advisor.

       

      “Assignment
        and Assumption”
means
        an assignment and assumption entered into by a Lender and an Eligible Assignee
        (with the consent of any party whose consent is required by Section 10.5),
        and
        accepted by Administrative Agent, in substantially the form of Exhibit F
        or any
        other form approved by Administrative Agent.

      
        S-3

      

      
      

      “Availability”
means,
        at any time, an amount equal to the least of (a) 60% of the Unencumbered
        Asset Pool Value at such time, or (b) the Maximum Commitment Amount at such
        time.

       

      “Bank
        of America”
means
        Bank of America, N.A. and its successors.

       

      “Bid
        Borrowing”
means
        a
        borrowing consisting of simultaneous Bid Loans of the same Type from each
        of the
        Lenders whose offer to make one or more Bid Loans as part of such borrowing
        has
        been accepted under the auction bidding procedures described in Section 2.4.

       

      “Bid
        Loan”
has
        the
        meaning set forth in Section 2.4.1.

       

      “Bid
        Loan Lender”
means,
        in respect of any Bid Loan, the Lender making such Bid Loan to
        Borrower.

       

      “Bid
        Loan Sublimit”
means
        an amount equal to 50% of the Maximum Commitment Amount. The Bid Loan Sublimit
        is part of, and not in addition to, the Maximum Commitment Amount.

       

      “Bid
        Note(s)”
means
        each promissory note of Borrower payable to the order of a Lender, substantially
        in the form of Exhibit H-3
        hereto,
        and any amendments, supplements, modifications, renewals, replacements,
        consolidations or extensions thereof, evidencing the aggregate indebtedness
        of
        Borrower to a Lender resulting from Bid Loans made by such Lender pursuant
        to
        this Agreement.

       

      “Bid
        Request”
means
        a
        written request for one or more Bid Loans substantially in the form of
Exhibit I-1.

       

      “Borrower”
has
        the
        meaning set forth in the introductory clause hereof.

       

      “Borrower’s
        Knowledge”
means
        the actual knowledge of the general counsel, principal financial officer
        or
        chief executive officer of the general partner of Borrower; provided,
        however,
        that,
        if Administrative Agent, L/C Issuer or any Lender sends a notice with regards
        to
        any matter pursuant to the provisions of Section 10.2
        hereof,
        Borrower shall be deemed to have knowledge of the matters set forth in such
        notice as of the date of receipt of such written notice.

       

      “Borrowing”
means
        a
        Committed Borrowing, a Bid Borrowing or a Swing Line Borrowing, as the context
        may require.

       

      “Business
        Day”
means
        any day other than a Saturday, Sunday or other day on which commercial banks
        in
        New York, New York and the state where Administrative Agent’s Office
        is located, are authorized or required by Law to close and, if the applicable
        Business Day relates to any LIBOR Loan, means any such day on which dealings
        in
        dollar deposits are conducted by and between banks in the London interbank
        eurodollar market.

       

      “Capital
        Interest”
means,
        with respect to any Joint Venture, the ratio of (i) Borrower’s contribution
        to the capital of such Joint Venture to (ii) the aggregate amount of all
        contributions to the capital of such Joint Venture.

      
        S-4

      

      “Capitalization
        Rate”
means
        7.00%; provided,
        however, that the Required Lenders may during the term of this Agreement
        and in
        their reasonable discretion, adjust the Capitalization Rate up to
        7.25%.

       

      “Capital
        Reserve”
means
        the greater of (a) $62.50 per unit per quarter; and (b) the actual
        Non-Revenue Generating Capital Expenditures per weighted average occupancy
        unit
        for all real properties owned by Guarantor and its consolidated subsidiaries,
        excluding in both cases, however, units owned by Acquisition down-REITs.
        For the
        purposes of this definition, “Non-Revenue Generating Capital Expenditures” shall
        mean improvements and upgrades that extend the useful life of such real
        property, calculated in a manner consistent with Guarantor’s Form 10-K Annual
        Report for Guarantor’s fiscal year ending December 31, 2004.

       

      “Cash
        Collateralize”
has
        the
        meaning set forth in Section 2.6.5.
        Derivatives of such term have corresponding meanings.

       

      “Certificate
        of Compliance”
shall
        have the meaning set forth in Section 6.22.

       

      “Change
        in Law”
means
        the occurrence, after the date of this Agreement, of any of the following:
        (a) the adoption or taking effect of any law, rule, regulation or treaty by
        any Governmental Authority, (b) any change in any law, rule, regulation or
        treaty or in the administration, interpretation or application thereof by
        any
        Governmental Authority or (c) the making or issuance of any request,
        guideline or directive (whether or not having the force of law) by any
        Governmental Authority.

       

      “Closing
        Date”
means
        the earliest date on which all conditions precedent set forth in Section5.1
        are
        satisfied or waived in accordance with Section 10.1(a).

       

      “Code”
means
        the Internal Revenue Code of 1986, as amended from time to time, and any
        regulations promulgated thereunder.

       

      “Commitment”
means,
        as to each Lender, its obligation to (a) make Committed Loans to Borrower
        pursuant to Section 2,
        (b) purchase participations in L/C Obligations, and (c) purchase
        participations in Swing Loans, in an aggregate principal amount at any one
        time
        outstanding not to exceed the amount set forth opposite such Lender’s
        name on
Schedule 1.1
        or in
        the Assignment and Assumption pursuant to which such Lender becomes a party
        hereto, as applicable, as such amount may be adjusted from time to time in
        accordance with this Agreement.

       

      “Committed
        Borrowing”
means
        a
        borrowing consisting of simultaneous Committed Loans of the same Type and,
        in
        the case of LIBOR Committed Loans, having the same Interest Period made by
        each
        of the Lenders pursuant to Section 2.1.

       

      “Committed
        Loan”
has
        the
        meaning set forth in Section 2.1(a)(i).

       

      “Competitive
        Bid”
means
        a
        written offer by a Lender to make one or more Bid Loans, substantially in
        the
        form of Exhibit I-2,
        duly
        completed and signed by a Lender.

      
        S-5

      

      “Completion
        of Construction”
means,
        with respect to any real property, the date that final certificates of occupancy
        have been issued for all buildings on such property.

       

      “Compliance
        Certificate”
shall
        have the meaning set forth in Section 4.1(b).

       

      “Conversion”
shall
        have the meaning set forth in Section 6.22.

       

      “Credit
        Line”
has
        the
        meaning given to it in Recital A.

       

      “Creditor”
has
        the
        meaning set forth in Section
        6.14(b).

       

      “Debt
        Service”
means
        the sum of (x) the aggregate interest payments, Letter of Credit Fee and
        other fees paid or payable in respect of or relating to debt on a property,
        plus
        (y) the aggregate principal installments paid and payable (but not balloon
        payments due at maturity) in respect of or relating thereto.

       

      “Default”
means
        any event or circumstance which, with notice or the passage of time or both,
        would become an Event of Default.

       

      “Defaulting
        Lender”
means
        any Lender that (a) has failed to fund any portion of the Committed Loans,
        participations in L/C Obligations or participations in Swing Loans required
        to
        be funded by it hereunder within one Business Day of the date required to
        be
        funded by it hereunder, unless such failure has been cured, (b) has
        otherwise failed to pay over to Administrative Agent or any other Lender
        any
        other amount required to be paid by it hereunder within one Business Day
        of the
        date when due, unless the subject of a good faith dispute or such failure
        has
        been cured, or (c) has been deemed insolvent or become the subject of a
        bankruptcy or insolvency proceeding.

       

      “Defaulting
        Lender Amount”
has
        the
        meaning given to it in Section 2.18.1.

       

      “Defaulting
        Lender Notice”
has
        the
        meaning given to it in Section 2.18.1.

       

      “Default
        Rate”
means
        the per annum rate of interest that is 300 basis points in excess of the
        rate
        otherwise applicable.

       

      “Designated
        Borrower’s Account”
has
        the
        meaning given to it in Section 9.4.

      
        S-6

      

      “EBITDA”
means,
        for any fiscal period of Guarantor and its consolidated subsidiaries,
        (a) the sum for such period of (i) consolidated net income,
        (ii) consolidated interest expense (including capitalized interest
        expense); (iii) consolidated charges against income for all federal, state
        and local taxes based on income, (iv) consolidated depreciation expense,
        (v) consolidated amortization expense, (vi) the aggregate amount of
        other non-cash charges and expenses, and (vii) the aggregate amount of
        extraordinary losses included in the determination of consolidated net income
        for such period, less
        (b) the aggregate amount of extraordinary gains included in the
        determination of consolidated net income for such period, and in each case
        excluding all Non-Borrower Interests, all as determined in accordance with
        GAAP,
        consistently applied. For purposes of this definition, EBITDA includes
        Borrower’s pro rata shares of interest expense, federal, state and local taxes
        based on income, depreciation expense and amortization expense for Joint
        Ventures, based on its Capital Interests in such Joint Ventures.

       

      “Effective
        Date”
shall
        have the meaning set forth in Section 2.14.3(e).

       

      “Electing
        Lender”
has
        the
        meaning given to it in Section 2.18.1.

       

      “Election
        Notice”
has
        the
        meaning given to it in Section 2.18.1.

       

      “Election
        Period”
shall
        have the meaning set forth in Section 2.18.1.

       

      “Eligible
        Assignee”
means
        (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund;
        and (d) any other Person (other than a natural person) approved by
        (i) Administrative Agent in its reasonable discretion, and (ii) unless
        an Event of Default has occurred and is continuing, Borrower (each such approval
        not to be unreasonably withheld or delayed); provided,
        however, that notwithstanding the foregoing, “Eligible Assignee” shall not
        include Borrower or any of Borrower’s Affiliates or subsidiaries. Approval by
        Administrative Agent or, if required, by Borrower of any Person as an Eligible
        Assignee shall not constitute a waiver of any right to approve any other
        Person
        before such other Person can become an Eligible Assignee.

       

      “EMC”
means
        Essex Management Corporation, a California corporation.

       

      “Environmental
        Laws”
means
        all federal, state, and local laws, ordinances, rules, judgments, orders,
        decrees, permits, concessions, grants, franchises, licenses, agreements,
        governmental restrictions and regulations relating to pollution and the
        protection of the environment or the release of any Hazardous Substances
        into
        the environment, including the Comprehensive Environmental Response,
        Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601
        et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1802,
        et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901
        et seq., the Toxic Substance Control Act of 1976, as amended, 15 U.S.C.
§ 2601 et seq., the Clean Water Act, 33 U.S.C. § 466 et seq., as
        amended, and the Clean Air Act, 42 U.S.C. § 7401 et seq.

       

      “ERISA”
means
        the Employee Retirement Income Security Act of 1974, as amended from time
        to
        time.

       

      “ERISA
        Affiliate”
means
        any trade or business (whether or not incorporated) under common control
        with
        Borrower within the meaning of Section 414(b) or (c) of the Code (and
        Sections 414(m) and (o) of the Code for purposes of provisions relating to
        Section 412 of the Code).

       

      “ERISA
        Event”
means
        (a) a Reportable Event with respect to a Pension Plan; (b) a
        withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
        to
        Section 4063 of ERISA during a plan year in which it was a substantial
        employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
        operations that is treated as such a withdrawal under Section 4062(e) of
        ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA
        Affiliate from a Multiemployer Plan or notification that a Multiemployer
        Plan is
        in reorganization; (d) the filing of a notice of intent to terminate, the
        treatment of a Plan amendment as a termination under Sections 4041 or 4041A
        of ERISA, or 

      
        S-7

      

      the
        commencement of proceedings by the PBGC to terminate a Pension Plan or
        Multiemployer Plan; (e) an event or condition which constitutes grounds
        under Section 4042 of ERISA for the termination of, or the appointment of a
        trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
        imposition of any liability under Title IV of ERISA, other than for PBGC
        premiums due but not delinquent under Section 4007 of ERISA, upon Borrower
        or any ERISA Affiliate.

       

      “Event
        of Default”
means
        any of the events or circumstances specified in Section 8.1.

       

      “Excluded
        Taxes”
means,
        with respect to Administrative Agent, any Lender, the L/C Issuer or any other
        recipient of any payment to be made by or on account of any obligation of
        Borrower hereunder, (a) taxes imposed on or measured by its overall net
        income (however denominated), and franchise taxes imposed on it, under the
        laws
        of any Governmental Authority, (b) any branch profits taxes imposed by the
        United States or any similar tax imposed by any Governmental Authority, and
        (c) in the case of a Foreign Lender, any withholding tax that is imposed on
        amounts payable to such Foreign Lender at the time such Foreign Lender becomes
        a
        party hereto (or designates a new Lending Office) or is attributable to such
        Foreign Lender’s failure or inability (other than as a result of a Change in
        Law) to comply with Section 3.1.5,
        except
        to the extent that such Foreign Lender (or its assignor, if any) was entitled,
        at the time of designation of a new Lending Office (or assignment), to receive
        additional amounts from Borrower with respect to such withholding tax pursuant
        to Section 3.1.5.

       

      “Existing
        Agreement”
has
        the
        meaning given to it in Recital A.

       

      “Existing
        Letters of Credit” means
        the
        letters of credit listed on Schedule 1.3
        hereto.

       

      “Facility
        Fee”
has
        the
        meaning given to it in Section 2.12.1.

       

      “Federal
        Funds Rate”
means,
        for any day, the rate per annum equal to the weighted average of the rates
        on
        overnight Federal funds transactions with members of the Federal Reserve
        System
        arranged by Federal funds brokers on such day, as published by the Federal
        Reserve Bank of New York on the Business Day next succeeding such day;
provided
        that
        (a) if such day is not a Business Day, the Federal Funds Rate for such day
        shall be such rate on such transactions on the immediately preceding Business
        Day as so published on the next succeeding Business Day, and (b) if no such
        rate is so published on such next succeeding Business Day, the Federal Funds
        Rate for such day shall be the average rate (rounded upward, if necessary,
        to a
        whole multiple of 1/100 of 1%) charged to Bank of America on such day on
        such
        transactions as determined by Administrative Agent.

       

      “Fee
        Letter”
has
        the
        meaning given to it in Section 2.12.3.

       

      “Fitch”
means
        Fitch, Inc.

       

      “Fixed
        Charges”
means,
        for any fiscal period of Guarantor and its consolidated subsidiaries, the
        sum of
        the following items for such period (including Borrower’s share of each such
        item for each Joint Venture based on its Capital Interest in such Joint
        Venture): (i) interest expense (whether paid or accrued), other than
        interest expense on Permitted Affiliate Subordinated Indebtedness,
        (ii) capitalized interest expense, other than capitalized interest expense
        with respect to Permitted Affiliate Subordinated Indebtedness,
        (iii) preferred stock dividends, 

      
        S-8

      

      
      

      (iv) scheduled
        principal payments on Indebtedness, other than balloon payments and other
        than
        payments in respect to Permitted Affiliate Subordinated Indebtedness, and
        (v) a reserve for recurring capital expenditures in an amount equal to the
        Capital Reserve for such period.

       

      “Foreign
        Lender”
means
        any Lender that is organized under the laws of a jurisdiction other than
        that in
        which Borrower is resident for tax purposes. For purposes of this definition,
        the United States, each State thereof and the District of Columbia shall
        be
        deemed to constitute a single jurisdiction. As an example, if the Borrower
        is a
        resident of the United States for tax purposes, a “Foreign Lender” will be any
        Lender that is organized under the laws of any country, other
        than
        the
        United States.

       

      “Fronting
        Fee”
has
        the
        meaning set forth in Section 2.12.2.

       

      “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.

       

      “Funds
        From Operations”
means,
        with respect to Guarantor and its consolidated subsidiaries, net income
        calculated in conformity with the National Association of Real Estate Investment
        Trusts in its April 2002 White Paper on Funds From Operations.

       

      “GAAP”
means
        generally accepted accounting principles set forth from time to time in the
        opinions and pronouncements of the Accounting Principles Board and the American
        Institute of Certified Public Accountants, and statements and pronouncements
        of
        the Financial Accounting Standards Board (or agencies with similar functions
        of
        comparable stature and authority within the U.S. accounting profession),
        which
        are applicable to the circumstances as of the date of determination,
        consistently applied.

       

      “Governmental
        Authority”
means
        the government of the United States or any other nation, or of any political
        subdivision thereof, whether state or local, and any agency, authority,
        instrumentality, regulatory body, court, central bank or other entity exercising
        executive, legislative, judicial, taxing, regulatory or administrative powers
        or
        functions of or pertaining to government (including any supra-national bodies
        such as the European Union or the European Central Bank).

       

      “Gross
        Asset Value”
means,
        at any time, the sum (without duplication) of (i) an amount equal to EBITDA
        for Guarantor and its consolidated subsidiaries for the most recent fiscal
        quarter for which Administrative Agent has received financial statements
        (excluding any income attributable to properties bought or sold during such
        fiscal quarter and any income received during such fiscal quarter attributable
        to the Clarewood Office Building located at 22110-22120 Clarendon Street,
        Woodland Hills, California, and the office building located at 925 East Meadow
        Drive, Palo Alto, California), multiplied by four (4) and divided by the
        Capitalization Rate (expressed as a decimal); (ii) the amount of cash and
        marketable securities held by Guarantor and its consolidated subsidiaries
        as of
        the end of such fiscal quarter; (iii) the aggregate

      
        S-9

      

      acquisition
        cost of properties acquired by Guarantor or any of its consolidated subsidiaries
        during such fiscal quarter (including Borrower’s pro rata shares of any
        properties acquired by Joint Ventures, based on its Capital Interests in
        such
        Joint Ventures); (iv) the aggregate book value of all development property
        as of the end of such fiscal quarter (including Borrower’s pro rata share of
        development property held by Joint Ventures, based on its Capital Interests
        in
        such Joint Ventures), as reported on Guarantor’s 10K and 10Q;
        (v) $4,500,000, if Borrower owns the Clarewood Office Building located at
        22110-22120 Clarendon Street, Woodland Hills, California at such time; and
        (vi) $4,500,000, if Borrower owns the office building located at 925 East
        Meadow Drive, Palo Alto, California at such time.

       

      “Guarantor”
means
        Essex Property Trust, Inc., a Maryland corporation operating as a real estate
        investment trust.

       

      “Guaranty”
means
        that certain Third Amended and Restated Payment Guaranty of even date herewith,
        executed by Guarantor and substantially in the form of Exhibit G-1
        attached
        hereto.

       

      “Guaranty
        Obligation”
means,
        as applied to any Person, any direct or indirect liability of that Person
        with
        respect to any Indebtedness, lease, dividend, letter of credit or other
        obligation (the “primary
        obligations”)
        of
        another Person. The amount of any Guaranty Obligation shall be deemed equal
        to
        the stated or determinable amount of the primary obligation in respect of
        which
        such Guaranty Obligation is made or, if not stated or if indeterminable,
        the
        maximum reasonably anticipated liability in respect thereof.

       

      “Hazardous
        Substance”
means
        any substance, material or waste, including asbestos and petroleum (including
        crude oil or any fraction thereof), polychlorinated biphenyls, radon gas,
        urea
        formaldehyde foam insulation, explosive or radioactive material, or infectious
        or medical wastes, which is or becomes designated, classified or regulated
        as
“toxic,” “hazardous,” a “pollutant” or similar designation under, or which is
        regulated pursuant to, any Environmental Law.

       

      “Honor
        Date”
shall
        have the meaning set forth in Section 2.6.1(a).

       

      “Indebtedness”
of
        any
        Person means, without duplication, (a) all indebtedness for borrowed money;
        (b) all obligations issued, undertaken or assumed as the deferred purchase
        price of property or services; (c) all reimbursement obligations with
        respect to surety bonds, letters of credit and similar instruments; (d) all
        obligations evidenced by notes, bonds, debentures or similar instruments,
        including obligations so evidenced incurred in connection with the acquisition
        of property, assets or businesses; (e) all indebtedness created or arising
        under any conditional sale or other title retention agreement, or incurred
        as
        financing, in either case with respect to property acquired by the Person
        (even
        though the rights and remedies of the seller or lender under such agreement
        in
        the event of default are limited to repossession or sale of such property);
        (f) all indebtedness referred to in clauses (a) through (e) above
        secured by (or for which the holder of such Indebtedness has an existing
        right,
        contingent or otherwise, to be secured by) any Lien upon or in property owned
        by
        such Person, even though such Person has not assumed or become liable for
        the
        payment of such Indebtedness; and (g) all Guaranty Obligations in respect
        of indebtedness or obligations of others of the kinds referred to in
        clauses (a) through (e) above.

      
        
          
          

        

        
          S-10

          
            

          

        

        
          
          

        

      

      “Indemnified
        Taxes”
means
        Taxes other than Excluded Taxes.

       

      “Indemnitees”
has
        the
        meaning set forth in Section 10.4(b).

       

      “Information”
has
        the
        meaning set forth in Section 10.6.

       

      “Insolvency
        Proceeding”
means
        (a) any case, action or proceeding before any court or other Governmental
        Authority relating to bankruptcy, reorganization, insolvency, liquidation,
        receivership, dissolution, winding-up or relief of debtors, or (b) any
        general assignment for the benefit of creditors, composition, marshaling
        of
        assets for creditors or other similar arrangement in respect of its creditors
        generally or any substantial portion of its creditors; in each case (a) and
        (b)
        undertaken under U.S. federal, state or foreign law, including the United
        States
        Bankruptcy Code (11 U.S.C. §101 et
        seq.).

       

      “Interest
        Payment Date”
means
        (a) the first Business Day of each month for interest due through the last
        day of the preceding month, (b) the Maturity Date, and (c) the date of
        any prepayment of any Loan made hereunder, as to the amount
        prepaid.

       

      “Interest
        Period”
means
        (a) with respect to any LIBOR Committed Loan, the period commencing on the
        Business Day the Loan is disbursed or continued or on the conversion date
        on
        which the Loan is converted to a LIBOR Committed Loan and ending on the date
        that is one, two, three, six, nine (subject to the availability by all of
        the
        Lenders) or twelve (subject to the availability by all of the Lenders) months
        thereafter, as selected by Borrower in its Notice of Committed Borrowing
        or
        Conversion/Continuation; (b) as to each LIBOR Margin Bid Loan, the period
        commencing on the Business Day the LIBOR Margin Bid Loan is disbursed and
        ending
        on the date that is one, two, three, six or twelve months thereafter, as
        selected by Borrower in its Bid Request; and (c) as to each Absolute Rate
        Bid Loan, a period of not less than fourteen days and not more than 360 days
        as
        selected by Borrower in its Bid Request; provided that:

       

      (a) if
        any
        Interest Period pertaining to a LIBOR Loan would otherwise end on a day that
        is
        not a Business Day, that Interest Period shall be extended to the next
        succeeding Business Day unless the result of such extension would be to carry
        such Interest Period into another calendar month, in which event such Interest
        Period shall end on the immediately preceding Business Day; and

       

      (b) any
        Interest Period pertaining to a LIBOR Loan that begins on the last Business
        Day
        of a calendar month (or on a day for which there is no numerically corresponding
        day in the calendar month at the end of such Interest Period) shall end on
        the
        last Business Day of the calendar month at the end of such Interest Period;
        and

       

      (c) no
        Interest Period shall extend beyond the Maturity Date.

       

      “ISP”
means,
        with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or
        such later version thereof as may be in effect at the time of
        issuance).

       

      “Issuer
        Documents”
means
        with respect to any Letter of Credit, the Letter of Credit Application, and
        any
        other document, agreement and instrument entered into by the L/C Issuer and
        Borrower (or any subsidiary, Joint Venture or Permitted Affiliate) or in
        favor
        the L/C Issuer and relating to any such Letter of Credit.

      
        
          
          

        

        
          S-11

          
            

          

        

        
          
          

        

      

      “Joint
        Venture”
means
        a
        Person in which Borrower has an ownership interest that is less than
        100%.

       

      “Joint
        Venture Investments”
means
        the aggregate amount of Borrower’s investments (valued in accordance with GAAP),
        advances and loans to Joint Ventures unconsolidated under GAAP, excluding
        investments in such Joint Ventures in which Borrower’s Capital Interest is less
        than 15%.

       

      “Laws”
means,
        collectively, all international, foreign, Federal, state and local statutes,
        treaties, rules, guidelines, regulations, ordinances, codes and administrative
        or judicial precedents or authorities, including the interpretation or
        administration thereof by any Governmental Authority charged with the
        enforcement, interpretation or administration thereof, and all applicable
        administrative orders, directed duties, requests, licenses, authorizations
        and
        permits of, and agreements with, any Governmental Authority, in each case
        whether or not having the force of law.

       

      “L/C
        Advance”
means,
        with respect to each Lender, such Lender’s funding of its participation in any
        L/C Borrowing in accordance with its Pro Rata Share.

       

      “L/C
        Borrowing”
means
        an extension of credit resulting from a drawing under any Letter of Credit
        which
        has not been reimbursed on the date when made or refinanced as a Committed
        Borrowing.

       

      “L/C
        Issuer”
means
        Bank of America in its capacity as issuer of Letters of Credit hereunder,
        or any
        successor issuer of Letters of Credit hereunder.

       

      “L/C
        Obligations”
means,
        as at any date of determination, the aggregate undrawn amount of all outstanding
        Letters of Credit plus
        the
        aggregate of all Unreimbursed Amounts. For purposes of computing the amount
        available to be drawn under any Letter of Credit, the amount of such Letter
        of
        Credit shall be determined in accordance with Section 1.2.4.
        For all
        purposes of this Agreement, if on any date of determination a Letter of Credit
        has expired by its terms but any amount may still be drawn thereunder by
        reason
        of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
        deemed to be “outstanding” in the amount so remaining available to be
        drawn.

       

      “Lenders”
means
        Bank of America and the several additional financial institutions from time
        to
        time a party to this Agreement.

       

      “Lending
        Office”
means,
        as to any Lender, the office or offices of such Lender described as such
        in the
        Administrative Questionnaire for such Lender, or such other office as such
        Lender may designate to Borrower and Administrative Agent in writing from
        time
        to time.

       

      “Letter
        of Credit”
means
        a
        standby letter of credit issued by Bank of America for Borrower’s account
        pursuant to Section 2.1,
        and
        shall include the Existing Letters of Credit.

      
        S-12

      

      
      

      “Letter
        of Credit Application”
means
        an application and agreement for the issuance or amendment of a Letter of
        Credit
        in the form from time to time in use by the L/C Issuer.

       

      “Letter
        of Credit Fee”
has
        the
        meaning set forth in Section 2.12.2.

       

      “Letter
        of Credit Sublimit”
means,
        at any time, the lesser of (a) $35,000,000 or (b) the difference
        between (i) the Availability at such time and
        (ii) the aggregate Outstanding Amount of all Loans (including all Swing
        Loans and Bid Loans) and the Outstanding Amount of all L/C Obligations
        outstanding at such time.

       

      “LIBOR
        Base Rate”
has
        the
        meaning set forth in the definition of LIBOR Rate.

       

      “LIBOR
        Bid Margin”
for
        LIBOR Margin Bid Loans, means the margin above or below the LIBOR Base Rate
        to
        be added to or subtracted from the LIBOR Base Rate, which margin shall be
        expressed in multiples of 1/100th
        of one
        basis point.

       

      “LIBOR
        Committed Borrowing”
means
        a
        Committed Borrowing consisting of LIBOR Committed Loans.

       

      “LIBOR
        Committed Loan”
means
        a
        Committed Loan that bears interest at a rate based upon the LIBOR
        Rate.

       

      “LIBOR
        Loan”
means
        a
        LIBOR Committed Loan or a LIBOR Margin Bid Loan.

       

      “LIBOR
        Margin Bid Loan”
means
        a
        Bid Loan that bears interest at a rate based upon the LIBOR Rate.

       

      “LIBOR
        Rate”
means,
        for any Interest Period with respect to any LIBOR Loan, a rate per annum
        determined by Administrative Agent pursuant to the following
        formula:

            

      
        
          	 LIBOR Rate
                  =               	
                   LIBOR
                    Base Rate 

                
	                                            
                  	
                  1.00
                    - LIBOR Reserve Percentage 

                


        

      

       

      Where,

       

      “LIBOR
        Base Rate”
means,
        for such Interest Period, the rate per annum equal to the British Bankers
        Association LIBOR Rate (“BBA
        LIBOR”),
        as
        published by Reuters (or other commercially available source providing
        quotations of BBA LIBOR as designated by Administrative Agent from time to
        time)
        at approximately 11:00 a.m., London time, two Business Days prior to the
        commencement of such Interest Period, for dollar deposits (for delivery on
        the
        first day of such Interest Period) with a term equivalent to such Interest
        Period. If such rate is not available at such time for any reason, then the
        “LIBOR Base Rate” for such Interest Period shall be the rate per annum
        determined by Administrative Agent to be the rate at which deposits in dollars
        for delivery on the first day of such Interest Period in same day funds in
        the
        approximate amount of the LIBOR Loan being made, continued or converted by
        Bank
        of America and with a term equivalent to such Interest Period would be offered
        by Bank of America’s London Branch to major banks in the London interbank
        eurodollar market at their request at approximately 11:00 a.m. (London
        time) two Business Days prior to the commencement of such Interest
        Period.

      
        S-13

      

      
      

      “LIBOR
        Reserve Percentage”
means,
        for any day during any Interest Period, the reserve percentage (expressed
        as a
        decimal, carried out to five decimal places) in effect on such day, whether
        or
        not applicable to any Lender, under regulations issued from time to time
        by the
        FRB for determining the maximum reserve requirement (including any emergency,
        supplemental or other marginal reserve requirement) with respect to LIBOR
        funding (currently referred to as “LIBOR liabilities”). The LIBOR Rate for each
        outstanding LIBOR Loan shall be adjusted automatically as of the effective
        date
        of any change in the LIBOR Reserve Percentage.

       

      “Lien”
means
        any mortgage, deed of trust, pledge, hypothecation, assignment, charge or
        deposit arrangement, encumbrance, lien (statutory or other) or preference,
        priority or other security interest or preferential arrangement of any kind
        or
        nature whatsoever (including those created by, arising under or evidenced
        by any
        conditional sale or other title retention agreement, the lessor’s interest under
        a capital lease (determined in accordance with GAAP), any financing lease
        having
        substantially the same economic effect as any of the foregoing, or the filing
        of
        any financing statement under the UCC or any comparable law naming the owner
        of
        the asset to which such lien relates as debtor) and any contingent or other
        agreement to provide any of the foregoing, but not including the interest
        of a
        lessor under an operating lease (determined in accordance with
        GAAP).

       

      “Loan”
means
        an extension of credit by a Lender to Borrower pursuant to Article 2,
        and may
        be a Bid Loan, a Committed Loan or, in the case of the Swing Line Lender,
        a
        Swing Loan.

       

      “Loan
        Documents”
means
        this Agreement, the Notes, the Guaranty, each Payment Guaranty, each Issuer
        Document and any other documents delivered to Administrative Agent, on behalf
        of
        the Lenders, in connection therewith, in each case as supplemented, modified,
        amended or amended and restated from time to time.

       

      “Maturity
        Date”
means
        March 24, 2009, as the same may be extended pursuant to Section 2.10,
        provided, however, that if such date is not a Business Day, the Maturity
        Date
        shall be the next preceding Business Day.

       

      “Maximum
        Commitment Amount”
means,
        at any time, an amount equal to $200,000,000, subject to increase pursuant
        to,
        and on the terms and subject to the conditions set forth in, Section 2.14,
        and to
        decrease pursuant to the provisions of Section 2.8.

       

      “Moody’s”
means
        Moody’s Investors Service, Inc.

       

      “Multiemployer
        Plan”
means
        any employee benefit plan of the type described in Section 4001(a)(3) of
        ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to
        make
        contributions, or during the preceding five plan years, has made or been
        obligated to make contributions.

       

      “Net
        Operating Income”
for
        a
        property means, for the relevant period, the aggregate total cash revenues
        actually collected from the normal operation of such property (excluding
        all
        security deposits until such time as the tenant or other user making such
        deposit is no longer 

      
        S-14

      

      
      

      entitled
        to return thereof), plus amounts payable to unrelated third parties on behalf
        of
        the owner of the property, if actually paid, plus the proceeds of any rental
        or
        business interruption insurance actually received by the owner of the property
        with respect to such property, from which there shall be deducted all costs
        and
        expenses paid or payable by the owner and relating to such property (other
        than
        Debt Service which is paid and balloon payments), including (a) any charges
        paid in connection with the use, ownership or operation of such property,
        (b) any cost of repairs and maintenance, (c) any cost associated with
        the management of such property, (d) any payroll cost and other expenses
        for general administration and overhead paid in connection with the use,
        ownership or operation of such property, (e) current real estate taxes,
        (f) any sums paid or subject to payment in the nature of a rebate, refund
        or other adjustment to revenue previously collected, (g) all assessment
        bond indebtedness (whether principal or interest) in respect of such property
        paid or payable for the interval in question, (h) all amounts paid to
        unrelated third parties on behalf of the owner of the property, and (i) any
        and all costs or expenses, of whatever nature or kind, incurred in connection
        with the use, ownership or operation of the property; provided, however,
        that
        such costs and expenses paid or payable by Borrower and relating to such
        property shall not include tenant improvement costs, leasing commissions
        or the
        costs and expenses of capital improvements and capital repairs, or depreciation,
        amortization or other non-cash expenses.

       

      “Nominated
        Property”
has
        the
        meaning given to it in Section 4.1(a).

       

      “Non-Borrower
        Interests”
means
        (a) the portion of capital contributed to Borrower or any Joint Venture by
        a Person other than Borrower or Guarantor; and (b) the portion of income of
        Borrower or any Joint Venture that is allocated to a Person other than Borrower
        or Guarantor.

       

      “Non-Recourse
        Indebtedness”
means,
        with respect to any Person, Indebtedness of that Person with respect to which
        recourse to such Person for payment is contractually limited to specific
        assets
        encumbered by a Lien securing such Indebtedness. Notwithstanding the foregoing,
        Indebtedness of any Person shall not fail to constitute Non-Recourse
        Indebtedness by reason of the inclusion in any document evidencing, governing,
        securing or otherwise relating to such Indebtedness to the effect that such
        Person shall be liable, beyond the assets securing such Indebtedness, for
        (a) misapplied moneys, including insurance and condemnation proceeds and
        security deposits, (b) liabilities (including environmental liabilities) of
        the holders of such Indebtedness and their affiliates to third parties,
        (c) breaches of customary representations and warranties given to the
        holders of such Indebtedness, (d) commission of waste with respect to any
        part of the collateral securing such Indebtedness, (e) recovery of rents,
        profits or other income attributable to the collateral securing such
        Indebtedness collected following a default, (f) fraud, gross negligence or
        willful misconduct, (g) breach of any covenants regarding compliance with
        ERISA, and (h) other similar exceptions to the non-recourse nature of the
        Indebtedness imposed by an institutional lender.

       

      “Notes”
means,
        collectively, the Revolving Notes, the Swing Line Note and the Bid
        Notes.

       

      “Notice
        of Committed Borrowing or Conversion/Continuation”
means
        a
        notice substantially in the form of Exhibit B
        given by


      
        S-15

      

      
      

      Borrower
        to Administrative Agent pursuant to Section 2.3,
        2.6
        or
Section 2.7,
        as
        applicable, which shall include, in the case of a request for a Letter of
        Credit, a Letter of Credit Application.

       

      “O&M
        Plan”
means
        an operations and maintenance plan relating to any asbestos containing
        materials.

       

      “Obligations”
means
        all Loans, advances, debts, liabilities, obligations and covenants owing
        from
        Borrower, Guarantor or any Permitted Affiliate to any Lender, Administrative
        Agent or any Indemnitee under any Loan Document, whether absolute or contingent,
        due or to become due, now existing or hereafter arising ,and including interest
        and fees that accrue after the commencement by or against Borrower, Guarantor
        or
        any Permitted Affiliate of any proceeding under any Insolvency Proceeding
        naming
        such Person as the debtor in such proceeding, regardless of whether such
        interest and fees are allowed claims in such proceeding.

       

      “Obligor”
has
        the
        meaning set forth in Section
        6.14(b).

       

      “Other
        Taxes”
means
        all present or future stamp or documentary taxes or any other excise or property
        taxes, charges or similar levies arising from any payment made hereunder
        or
        under any other Loan Document or from the execution, delivery or enforcement
        of,
        or otherwise with respect to, this Agreement or any other Loan Document.
        Other
        Taxes shall not include any Excluded Taxes.

       

      “Outstanding
        Amount”
        means(s) (a) with respect to Loans (including Swing Loans and Bid Loans) on
        any date, the aggregate outstanding principal amount thereof after giving
        effect
        to any borrowings and prepayments or repayments of Loans occurring on such
        date;
        and (b) with respect to any L/C Obligations on any date, the amount of such
        L/C Obligations on such date after giving effect to the issuance, extension
        or
        increase of any Letter of Credit occurring on such date and any other changes
        in
        the aggregate amount of the L/C Obligations as of such date, including as
        a
        result of any reimbursements of outstanding unpaid drawings under any Letters
        of
        Credit or any reductions in the maximum amount available for drawing under
        Letters of Credit taking effect on such date.

       

      “Participant”
shall
        have the meaning set forth in Section 10.5(d).

       

      “Payment
        Guaranty”
means
        a
        guaranty by a Permitted Affiliate of the Obligations of Borrower under this
        Agreement in favor of Administrative Agent, as administrative agent for the
        Lenders, substantially in the form of Exhibit G-2
        hereto.

       

      “PBGC”
means
        the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
        of Title IV of ERISA or any entity succeeding to any or all of its
        functions under ERISA.

       

      “Pension
        Plan”
means
        any “employee pension benefit plan” (as such term is defined in
        Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
        Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA
        Affiliate or to which Borrower or any ERISA Affiliate contributes or has
        an
        obligation to contribute, or in the case of a multiple employer or other
        plan
        described in Section 4064(a) of ERISA, has made contributions at any time
        during the immediately preceding five plan years.

      
        S-16

      

      “Permitted
        Affiliate”
        means
        each direct or indirect wholly-owned subsidiary of Borrower or Guarantor
        that
        owns an Unencumbered Asset Pool Property (or holds the interest in such
        Unencumbered Asset Pool Property as is described in Section 4.1(a)(i)(1))
        and is
        or becomes a party to a Payment Guaranty, including, on the Closing Date,
        each
        entity that is listed on Schedule 1.4
        hereto.
        Upon removal of the Unencumbered Asset Pool Property owned by such subsidiary
        from the Unencumbered Asset Pool pursuant to Section 4.1(b)
        or
Section 4.1(c),
        and as
        long as such subsidiary no longer owns (or holds any interest as is described
        in
Section 4.1(a)(i)(1)
        in) any
        Unencumbered Pool Property included in the calculation of Availability, such
        subsidiary shall no longer constitute a Permitted Affiliate
        hereunder.

       

      “Permitted
        Affiliate Subordinated Indebtedness”
means
        Indebtedness owing by an Obligor that is Borrower, Guarantor or a Permitted
        Affiliate, to a Creditor that is Borrower, Guarantor, a Permitted Affiliate
        or
        an Affiliate that is a consolidated subsidiary of Guarantor, provided that
        such
        Creditor has executed an Approved Subordination Agreement.

       

      “Permitted
        Liens”
has
        the
        meaning given to it in Section 4.1(a)(i)(5).

       

      “Person”
means
        an individual, corporation, partnership, joint venture, limited liability
        company, joint stock company, business trust, unincorporated association
        or
        Governmental Authority.

       

      “Plan”
means
        any “employee benefit plan” (as such term is defined in Section 3(3) of
        ERISA) established by Borrower or, with respect to any such plan that is
        subject
        to Section 412 of the Code or Title IV of ERISA, any ERISA
        Affiliate.

       

      “Platform”
has
        the
        meaning given to it in Section 6.3.

       

      “Pro
        Rata Share”
means,
        as to any Lender at any time, the percentage indicated for such Lender as
        its
“Pro Rata Share” on Schedule 1.1
        (expressed as a decimal rounded to the ninth decimal place), as such percentage
        may be adjusted from time to time as an increase in the Maximum Commitment
        Amount as provided in Section 2.14,
        or to
        account for any assignments of a Lender’s interest as provided in Section 10.5.

       

      “Reference
        Rate”
means
        for any day a fluctuating rate per annum equal to the higher of (a) the
        Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
        for such day as publicly announced from time to time by Bank of America as
        its
“prime rate.” The “prime rate” is a rate set by Bank of America based upon
        various factors including Bank of America’s costs and desired return, general
        economic conditions and other factors, and is used as a reference point for
        pricing some loans, which may be priced at, above, or below such announced
        rate.
        Any change in such rate announced by Bank of America shall take effect at
        the
        opening of business on the day specified in the public announcement of such
        change.

       

      “Reference
        Rate Committed Borrowing”
means
        a
        Committed Borrowing consisting of Reference Rate Committed Loans.

       

      “Reference
        Rate Committed Loan”
means
        a
        Committed Loan that bears interest based on the Reference Rate.

      
        
          
          

        

        
          S-17

          
            

          

        

        
          
          

        

      

      “Register”
shall
        have the meaning set forth in Section 10.5(c).

       

      “Related
        Parties”
means,
        with respect to any Person, such Person’s Affiliates and the partners,
        directors, officers, employees, agents and advisors of such Person and of
        such
        Person’s Affiliates.

       

      “Reportable
        Event”
means
        any of the events set forth in Section 4043(c)
        of
        ERISA, other than events for which the 30 day notice period has been
        waived.

       

      “Responsible
        Officer”
means
        any officer of the general partner of Borrower having the authority to execute
        Loan Documents, Notices of Committed Borrowing or Conversion/Continuation
        or Bid
        Requests on behalf of Borrower, as identified to Administrative Agent in
        a
        certificate executed by the General Counsel, Principal Financial Officer,
        Chief
        Executive Officer, Vice President-Finance or Secretary of Borrower’s general
        partner.

       

      “Required
        Lenders”
means,
        as of any date of determination, at least two Lenders having at least 66-2/3%
        of
        the Commitments or, if the commitment of each Lender to make Loans and the
        obligation of the L/C Issuer to issue Letters of Credit have been terminated
        pursuant to Section 8.2,
        at
        least two Lenders holding in the aggregate at least 66-2/3% of the Outstanding
        Amount of all Loans plus the Outstanding Amount of all L/C Obligations (with
        the
        aggregate amount of each Lender’s risk participation and funded participation in
        L/C Obligations and Swing Loans being deemed “held” by such Lender for purposes
        of this definition); provided
        that the
        Commitment of, and the portion of the Outstanding Amount held or deemed held
        by,
        any Defaulting Lender shall be excluded for purposes of making a determination
        of Required Lenders.

       

      “Requirements
        of Law”
means,
        as to any Person, any law (statutory or common), treaty, rule or regulation,
        or
        any determination of an arbitrator or of a Governmental Authority, in each
        case
        applicable to or binding upon such Person or any of its property or to which
        such Person or any of its property is subject.

       

      “Requirements”
shall
        have the meaning set forth in Section 6.1.1.

       

      “Revolving
        Note(s)”
means
        each promissory note of Borrower payable to the order of a Lender, substantially
        in the form of Exhibit H-1
        hereto,
        and any amendments, supplements, modifications, renewals, replacements,
        consolidations or extensions thereof, evidencing the aggregate indebtedness
        of
        Borrower to a Lender resulting from Loans (other than Bid Loans) made by
        such
        Lender pursuant to this Agreement; “Revolving
        Notes”
means,
        at any time, all of the Notes (other than the Swing Line Note and the Bid
        Notes)
        executed by Borrower in favor of a Lender outstanding at such time.

       

      “Secured
        Debt”
means
        Indebtedness that is secured by a Lien encumbering real property owned or
        leased
        by the obligor. Notwithstanding the foregoing, Secured Debt shall not include
        any Permitted Affiliate Subordinated Indebtedness.

       

      “Secured
        Recourse Debt”
means
        all Secured Debt that is not Non-Recourse Debt.

      
        
          
          

        

        
          S-18

          
            

          

        

        
          
          

        

      

      “S&P”
means
        Standard & Poor’s Rating Services, a division of The McGraw-Hill
        Companies, Inc.

       

      “Supplemental
        Signature Page”
shall
        have the meaning set forth in Section 2.14.3(c).

       

      “Swing
        Line”
has
        the
        meaning given to it in Section 2.2.1.

       

      “Swing
        Line Availability”
means,
        at any time, the lesser of (a) $25,000,000, or (b) the difference
        between (i) the Availability at such time and
        (ii) the aggregate Outstanding Amount of all Loans (including all Swing
        Loans and Bid Loans) and the Outstanding Amount of all L/C Obligations
        outstanding at such time.

       

      “Swing
        Line Borrowing”
means
        a
        borrowing of a Swing Loan pursuant to Section 2.2.

       

      “Swing
        Line Lender”
means
        Bank of America, in its capacity as the maker of Swing Loans under Section 2.2,
        or any
        successor or replacement thereto under Sections 9.6
        or
10.5(h).

       

      “Swing
        Line Note”
means
        the promissory note of Borrower payable to the order of the Swing Line Lender,
        substantially in the form of Exhibit H-2
        attached
        hereto, to evidence the Swing Loans, and any amendments, supplements,
        modifications, renewals, replacements, consolidations or extensions
        thereof.

       

      “Swing
        Loan”
and
        “Swing
        Loans”
have
        the meanings given to them in Section 2.2.1.

       

      “Tangible
        Net Worth”
means
        at any time, the total consolidated stockholders’ equity of Guarantor and its
        consolidated subsidiaries at such time, determined in accordance with GAAP,
        exclusive of Non-Borrower Interests, excluding as assets (i) any loans to
        tenants for tenant improvements and (ii) assets considered to be intangible
        under GAAP, including, without limitation, goodwill.

       

      “Taxes”
means
        all present or future taxes, levies, imposts, duties, deductions, withholdings,
        assessments, fees or other charges imposed by any Governmental Authority
        and
        arising from any payment made hereunder or under any other Loan Document
        or from
        the execution, delivery or enforcement of, or otherwise with respect to,
        this
        Agreement or any other Loan Document, including any interest, additions to
        tax
        or penalties applicable thereto.

       

      “Total
        Liabilities”
means,
        without duplication, (a) all Indebtedness of Guarantor and its consolidated
        subsidiaries, including subordinated debt, capitalized leases, purchase
        obligations (defined as nonrefundable deposits and non-contingent obligations),
        L/C Obligations and unfunded obligations of Guarantor, Borrower or any
        consolidated subsidiary reported in accordance with GAAP, (b) Borrower’s
        and Guarantor’s pro rata share of non-recourse liabilities of unconsolidated
        Joint Ventures, based on its Capital Interests in such Joint Ventures; and
        (c) all liabilities of Affiliates that are recourse to Borrower or
        Guarantor. The term “Total Liabilities” does not include (i) that portion
        of Borrower’s liabilities attributable to Non-Borrower Interests;
        (ii) except as provided in “(b)” above, the Non-Recourse Indebtedness of an
        Acquisition down-REIT; and (iii) any Permitted Affiliate Subordinated
        Indebtedness.

      
        
          
          

        

        
          S-19

          
            

          

        

        
          
          

        

      

      “Type”
means,
        (a) in connection with a Committed Loan, the characterization of such loan
        as a Reference Rate Committed Loan or a LIBOR Committed Loan, and (b) in
        connection with a Bid Loan, its characterization of such loans as an Absolute
        Rate Bid Loan or a LIBOR Margin Bid Loan.

       

      “UCC”
means
        the Uniform Commercial Code as in effect in any jurisdiction, as the same
        may be
        amended, modified or supplemented from time to time.

       

      “Unencumbered
        Asset Pool”
means,
        at any time, all of the Unencumbered Asset Pool Properties at such
        time.

       

      “Unencumbered
        Asset Pool Property”
means
        each Unencumbered Development Property and each Unencumbered Stabilized Asset
        Property.

       

      “Unencumbered
        Asset Pool Value”
means,
        at any time, an amount equal to the sum of the Unencumbered Development Property
        Value plus the Unencumbered Stabilized Asset Property Value.

       

      “Unencumbered
        Development Property”
means
        a
        real property listed Exhibit A-2
        and any
        additional development property that satisfies all of the conditions set
        forth
        in Section 4.1(a)(ii),
        as long
        as either Borrower or a Permitted Affiliate holds fee simple title to such
        development property or such development property is subject to a financeable
        ground lease (as determined by Administrative Agent in its reasonable
        discretion) in compliance with the second sentence of Section 4.1(c)
        (subject to the exceptions set forth in Section 4.1(a)(i)(1)).
        Such
        development property shall no longer qualify as an Unencumbered Development
        Property on the date that is the earlier of (i) twelve months following the
        date on which Completion of Construction on such Unencumbered Development
        Property has occurred, or (ii) the first fiscal quarter in which such
        Unencumbered Development Property becomes a Unencumbered Stabilized Asset
        Property.

       

      “Unencumbered
        Development Property Value”
means,
        for all Unencumbered Development Property, the aggregate cost book value
        determined in accordance with GAAP (as shown on the Borrower’s consolidated
        balance sheet).

       

      “Unencumbered
        Property”
means
        any real property that satisfied the following conditions:

       

      (a) such
        real
        property is at least 99% owned by Guarantor or any of its consolidated
        subsidiaries in fee simple title, or such real property is subject to a
        financeable ground lease (as determined by Administrative Agent in its
        reasonable discretion) in favor of Borrower or any of its consolidated
        subsidiaries, or an entity that is at least 99% owned by Guarantor or any
        of its
        consolidated subsidiaries, in
        excess
        of 30 years (provided that no less than 15 years shall be remaining on such
        ground lease);

       

      (b) Such
        real
        property is either (i) operated as residential apartments, with no more
        than 15% of gross revenue generated by non-residential tenants, or (ii) is
        real property comprised of residential apartment projects under development,
        with no more than 15% of such development to be intended for occupancy by
        non-residential tenants, or in pre-construction phases of the development
        process; provided 

      
        
          
          

        

        
          S-20

          
            

          

        

        
          
          

        

      

      that
        such
        property under development shall not qualify to be included as a development
        property under this clause (ii) on the date that is the earlier of (A)
        twelve months following the date that Completion of Construction on such
        real
        property has occurred, or (B) the date that such real property qualified
        as an
        operating residential apartment with a minimum occupancy of 80% pursuant
        to the
        foregoing clause (i) of this paragraph (b) and paragraph (c) below;

       

      (c) Other
        than with respect to any real property under development under clause (ii)
        of paragraph (b) above, such real property shall have minimum occupancy of
        80%;
        and

       

      (d) Such
        real
        property is free of all liens, encumbrances and negative pledges, except
        for:
        (i) liens for taxes, assessments or governmental charges or levies to the
        extent that the owner of such real property is not yet required to pay the
        amount secured thereby; and (ii) liens imposed by law, such as carrier’s,
        warehouseman’s, mechanic’s, materialman’s and other similar liens, arising in
        the ordinary course of business in respect of obligations that are not overdue
        or are being actively contested in good faith by appropriate proceedings,
        as
        long as the owner of such real property, as applicable, has established and
        maintained adequate reserves for the payment of the same and, by reason of
        nonpayment, such real property is not in danger of being lost or forfeited;
        and
        (iii) easements; covenants, conditions and restrictions; reciprocal
        easement and access agreements and similar agreements relating to ownership
        and
        operation.

       

      “Unencumbered
        Property Value”
        means:

       

      (a) for
        all
        Unencumbered Property that is under development, as described in clause (ii)
        of
        paragraph (b) of the definition of “Unencumbered Property,” the aggregate cost
        book value of such property, determined in accordance with GAAP, as shown
        on the
        consolidated balance sheet of the Guarantor and its subsidiaries;
        and

       

      (b) means,
        for all other Unencumbered Property, the value of such property, determined
        as
        follows:

       

      (i) if
        at
        such time such Unencumbered Property has been owned by the Guarantor or any
        of
        its consolidated subsidiaries for four or more full consecutive calendar
        quarters (or, with respect to any such real property that was formerly a
        development property, as described in paragraph (a) above, if such real property
        has been developed and has had at least 80% occupancy for four or more full
        consecutive calendar quarters), such an amount equal to (A) its Net
        Operating Income for the most recent four consecutive quarter period,
less
        the
        Capital Reserve for such period, divided by
        (B) the Capitalization Rate (expressed as a decimal);

       

      (ii) if
        at
        such time Guarantor or any of its consolidated subsidiaries has owned such
        Unencumbered Property for one full calendar quarter or more but fewer than
        four
        full consecutive calendar quarters (or, with respect to any such real property
        that was formerly a development property, as described in paragraph (a) above,
        if such real property has been developed and has had at least 80% occupancy
        for
        one full calendar quarter or more but fewer than four full consecutive calendar
        quarters), an amount equal to (i) its annualized Net Operating Income for
        the number of the most recent full consecutive quarters that Guarantor or
        any of
        its 

      
        
          
          

        

        
          S-21

          
            

          

        

        
          
          

        

      

      consolidated
        subsidiaries has owned such property (e.g., Net Operating Income for properties
        owned for two full consecutive quarters is annualized by multiplying by a
        factor
        of two), less
        the
        Capital Reserve for such period, divided by
        (ii) the Capitalization Rate (expressed as a decimal); or

       

      (iii) if
        at
        such time Guarantor or any of its consolidated subsidiaries has owned such
        Unencumbered Property for less than one full calendar quarter (or, with respect
        to any such real property that was formerly a development property, as described
        in paragraph (a) above, if such real property has been developed and has
        had at
        least 80% occupancy for less than one full calendar quarter), an amount equal
        to
        its acquisition cost;

       

      provided,
        however,
        if any
        of such Unencumbered Properties is owned by a consolidated subsidiary of
        Guarantor that is not a wholly-owned subsidiary, the Unencumbered Property
        Value
        of such Unencumbered Property shall be reduced by the portion of such value
        that
        is attributable to the minority interests in such subsidiary.

       

      “Unencumbered
        Stabilized Asset Property”
means
        a
        real property listed Exhibit A-1
        and any
        additional real property that satisfies the conditions set forth in Section 4.1(a)(i),
        in each
        case as long as either Borrower or a Permitted Affiliate holds fee simple
        title
        to such real property or such real property is subject to a financeable ground
        lease (as determined by Administrative Agent in its reasonable discretion)
        in
        compliance with the second sentence of Section 4.1(c),
        subject
        to the exceptions set forth in Section 4.1(a)(i)(1)
        hereof.

       

      “Unencumbered
        Stabilized Asset Property Value”
means,
        for an Unencumbered Stabilized Asset Property at any time,

       

      (a) if
        at
        such time Borrower or a Permitted Affiliate has owned such Unencumbered
        Stabilized Asset Property for four or more full consecutive calendar quarters
        (or, with respect to any such real property that was formerly an Unencumbered
        Development Property or a development property, if such real property has
        qualified as an Unencumbered Stabilized Asset Property for four or more full
        consecutive calendar quarters), such an amount equal to (A) its Net
        Operating Income for the most recent four consecutive quarter period,
less
        the
        Capital Reserve for such period, divided by
        (B) the Capitalization Rate (expressed as a decimal);

       

      (b) if
        at
        such time Borrower or a Permitted Affiliate has owned such Unencumbered
        Stabilized Asset Property for one full calendar quarter or more but fewer
        than
        four full consecutive calendar quarters (or, with respect to any such real
        property that was formerly an Unencumbered Development Property or a development
        property, if such real property has qualified as an Unencumbered Stabilized
        Asset Property for one full calendar quarter or more but fewer than four
        full
        consecutive calendar quarters), an amount equal to (i) its annualized Net
        Operating Income for the number of the most recent full consecutive quarters
        that Borrower has owned such property (e.g., Net Operating Income for properties
        owned for two full consecutive quarters is annualized by multiplying by a
        factor
        of two), less
        the
        Capital Reserve for such period, divided by
        (ii) the Capitalization Rate (expressed as a decimal); or

      
        
          
          

        

        
          S-22

          
            

          

        

        
          
          

        

      

      (c) if
        at
        such time Borrower or a Permitted Affiliate has owned such Unencumbered
        Stabilized Asset Property for less than one full calendar quarter (or, with
        respect to any such real property that was formerly an Unencumbered Development
        Property or a development property, if such real property has qualified as
        an
        Unencumbered Stabilized Asset Property for less than one full calendar quarter),
        an amount equal to its acquisition cost.

       

      “Unfunded
        Pension Liability”
means
        the excess of a Pension Plan’s
        benefit
        liabilities under Section 4001(a)(16) of ERISA, over the current value of
        that Pension Plan’s
        assets,
        determined in accordance with the assumptions used for funding the Pension
        Plan
        pursuant to Section 412 of the Code for the applicable plan
        year.

       

      “Unreimbursed
        Amount”
has
        the
        meaning set forth in Section 2.6.1(a).

       

      “Unsecured
        Debt”
means,
        at any time, all Indebtedness of Borrower, Guarantor and any wholly owned
        subsidiary of Borrower or Guarantor that is not Secured Debt at the end of
        Guarantor’s most recent fiscal quarter, including, without limitation,
        Indebtedness arising under the Loan Documents. Notwithstanding the foregoing,
        Unsecured Debt shall not include any Permitted Affiliate Subordinated
        Indebtedness.

       

      Terms
        capitalized in this Agreement and not defined in this Section 1
        have the
        meanings given to them elsewhere in this Agreement.

       

      1.2  Other
        Interpretive Provisions.

       

      1.2.1  Use
        of
        Defined Terms.
        Unless
        otherwise specified herein or therein, all terms defined in this Agreement
        shall
        have the defined meanings when used in any certificate or other document
        made or
        delivered pursuant to this Agreement. The meaning of defined terms shall
        be
        equally applicable to the singular and plural forms of the defined
        terms.

       

      1.2.2  Certain
        Common Terms.

       

      (1)  The
        Agreement.
        The
        words “hereof,” “herein,” “hereunder” and words of similar import when used in
        this Agreement shall refer to this Agreement as a whole and not to any
        particular provision of this Agreement, and section, schedule and exhibit
        references are to this Agreement unless otherwise specified.

       

      (2)  Documents.
        The
        term “documents” includes any and all instruments, documents, agreements,
        certificates, indentures, notices and other writings, however
        evidenced.

       

      (3)  Meaning
        of Certain Terms.
        The
        term “including” is not limiting and means “including without limitation.” The
        word “will” shall be construed to have the same meaning and effect as the word
“shall.” The words “asset” and “property” shall be construed to have the same
        meaning and effect and to refer to any and all tangible and intangible assets
        and properties, including cash, securities, accounts and contract
        rights

       

      (4)  Performance.
        Whenever any performance obligation hereunder (including a payment obligation)
        is stated to be due or required to be satisfied on a day other than a Business
        Day, such performance shall be made or satisfied on the next 

      
        
          
          

        

        
          S-23

          
            

          

        

        
          
          

        

      

      succeeding
        Business Day. In the computation of periods of time from a specified date
        to a
        later specified date (other than with respect to computation of interest
        owed or
        accrued under this Agreement), the word “from” means “from and including” and
        the words “to” and “until” each mean “to and including”. If any provision of
        this Agreement refers to any action taken or to be taken by any Person, or
        which
        such Person is prohibited from taking, such provision shall be interpreted
        to
        encompass any and all reasonable means, direct or indirect, of taking or
        not
        taking such action.

       

      (5)  Contracts.
        Unless
        otherwise expressly provided in this Agreement, references to agreements
        and
        other contractual instruments shall be deemed to include all subsequent
        amendments and other modifications thereto, but only to the extent such
        amendments and other modifications are not prohibited by the terms of any
        Loan
        Document.

       

      (6)  Laws.
        References to any statute or regulation are to be construed as including
        all
        statutory and regulatory provisions consolidating, amending or replacing
        the
        statute or regulation.

       

      (7)  Captions.
        The
        captions and headings of this Agreement are for convenience of reference
        only,
        and shall not affect the construction of this Agreement.

       

      (8)  Independence
        of Provisions.
        If a
        conflict exists between the terms of this Agreement and those of any other
        Loan
        Document, this Agreement shall prevail; provided, however, that the parties
        acknowledge that this Agreement and the other Loan Documents may use several
        different limitations, tests or measurements to regulate the same or similar
        matters, and that such limitations, tests and measurements are cumulative
        and
        must each be performed, except as expressly stated to the contrary in this
        Agreement, or unless the applicable provisions are inconsistent or cannot
        be
        simultaneously enforced or performed.

       

      (9)  Exhibits.
        All of
        the exhibits attached to this Agreement are incorporated herein by this
        reference.

       

      (10)  Times
        of Day.
        Unless
        otherwise specified, all references herein to times of day shall be references
        to Pacific time (daylight or standard, as applicable).

       

      1.2.3  Accounting
        Principles.

       

      (1)  Accounting
        Terms.
        Unless
        the context otherwise clearly requires, all accounting terms not otherwise
        expressly defined herein shall be construed, and all financial computations
        required under this Agreement shall be made, in accordance with GAAP,
        consistently applied.

       

      (2)  Fiscal
        Periods.
        References herein to “fiscal year” and “fiscal quarter” refer to such fiscal
        periods of Guarantor and its consolidated subsidiaries.

       

      (3)  Rounding.
        Any
        financial ratios required to be maintained by Borrower or Guarantor pursuant
        to
        this Agreement or any other Loan Document shall be calculated by dividing
        the
        appropriate component by the other component, carrying the 

      
        
          
          

        

        
          S-24

          
            

          

        

        
          
          

        

      

      result
        to
        one place more than the number of places by which such ratio is expressed
        herein
        and rounding the result up or down to the nearest number (with a rounding-up
        if
        there is no nearest number).

       

      1.2.4  Letter
        of Credit Amounts.
        Unless
        otherwise specified herein, the amount of a Letter of Credit at any time
        shall
        be deemed to be the stated amount of such Letter of Credit in effect at such
        time; provided,
        however,
        that
        with respect to any Letter of Credit that, by its terms or the terms of any
        Issuer Document related thereto, provides for one or more automatic increases
        in
        the stated amount thereof, the amount of such Letter of Credit shall be deemed
        to be the maximum stated amount of such Letter of Credit after giving effect
        to
        all such increases, whether or not such maximum stated amount is in effect
        at
        such time.

       

      2.  LOAN
        AMOUNTS AND TERMS.

       

      2.1  Amount
        and Terms of Commitment.

       

      (a)  Commitment.
        Each
        Lender severally agrees, on the terms and subject to the conditions hereinafter
        set forth,

       

      (i)  to
        make
        Loans (each such loan, a “Committed
        Loan”)
        to
        Borrower from time to time on any Business Day during the period from the
        Closing Date to the Maturity Date to be used for the interim financing of
        acquisitions, for general working capital, and for other purposes permitted
        by
        Borrower’s organizational documents other than the repurchase of Guarantor’s
        common stock, in an aggregate amount not to exceed such Lender’s Pro Rata Share
        of the Availability, and

       

      (ii)  to
        fund
        drawings on any Letters of Credit that the L/C Issuer issues for Borrower’s
        account from time to time, in an aggregate amount not to exceed at any time
        outstanding such Lender’s Pro Rata Share of the amount of such drawing. On the
        date that the L/C Issuer issues a Letter of Credit for Borrower’s account, each
        Lender shall be deemed to have unconditionally and irrevocably purchased
        from
        the L/C Issuer a pro rata risk participation in the stated amount of such
        Letter
        of Credit, without recourse or warranty, in an amount equal to such Lender’s Pro
        Rata Share of the stated amount of such Letter of Credit.

       

      (b)  Letters
        of Credit.
        The L/C
        Issuer agrees to issue Letters of Credit in its standard form for the account
        of
        Borrower or any subsidiary, Joint Venture or Permitted Affiliate on any Business
        Day during the period from the Closing Date to the Maturity Date, for any
        purpose for which Borrower can obtain Loans under this Agreement, in an
        aggregate amount not to exceed the Letter of Credit Sublimit; provided,
        however, that no Letter of Credit shall have an expiry date (or shall have
        an
“evergreen” or other extension provision that results in a final expiry date)
        that is later than 30 days prior to the then-applicable Maturity Date. All
        Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
        and from and after the Closing Date shall be subject to and governed by the
        terms and conditions hereof.

       

      (c)  Letter
        of Credit Applications and Issuer Documents.
        Each
        Letter of Credit issued hereunder (including any supplement, modification,
        amendment, renewal or extension thereof) will be issued pursuant to the L/C
        Issuer’s standard form of Letter of Credit Application, substantially in the
        form attached hereto as Exhibit C
        (as such
        form may be modified by Bank of America from time to time), which will set
        forth
        the agreement between the account party and the L/C Issuer regarding the
        Letter
        of Credit and drawings thereunder. 

      
        
          
          

        

        
          S-25

          
            

          

        

        
          
          

        

      

      Additionally,
        Borrower shall furnish to the L/C Issuer and Administrative Agent such other
        documents and information pertaining to such requested Letter of Credit issuance
        or amendment, including any Issuer Documents, as the L/C Issuer or
        Administrative Agent may reasonably require. In the event of any conflict
        between the terms hereof and the terms of any Issuer Document, the terms
        hereof
        shall control.

       

      (d)  Issuance
        of Letter of Credit.
        Promptly after receipt of any Letter of Credit Application, the L/C Issuer
        will
        confirm with Administrative Agent (by telephone or in writing) that
        Administrative Agent has received a copy of such Letter of Credit Application
        from Borrower or account party thereof and, if not, the L/C Issuer will provide
        Administrative Agent with a copy thereof. Unless the L/C Issuer has received
        written notice from Administrative Agent or Borrower at least one Business
        Day
        prior to the requested date of issuance or amendment of the applicable Letter
        of
        Credit, that one or more applicable conditions contained in Section 5.2
        shall
        not then be satisfied, then, subject to the terms and conditions hereof,
        the L/C
        Issuer shall, on the requested date, issue a Letter of Credit for the account
        of
        Borrower (or the applicable subsidiary, Joint Venture or Permitted Affiliate)
        or
        enter into the applicable amendment, as the case may be, in each case in
        accordance with the L/C Issuer’s usual and customary business practices.
        Immediately upon the issuance of each Letter of Credit, each Lender shall
        be
        deemed to, and hereby irrevocably and unconditionally agrees to, purchase
        from
        the L/C Issuer a risk participation in such Letter of Credit in an amount
        equal
        to the product of such Bank’s Pro Rata Share times
        the
        amount of such Letter of Credit.

       

      (e)  Drawings
        Constituting Committed Borrowings.
        Notwithstanding the provisions of Section 2.6.1,
        any
        amount drawn under a Letter of Credit shall, from and after the date on which
        such drawing is made, constitute a Committed Borrowing for all purposes under
        this Agreement (including accrual and payment of interest and repayment of
        principal), other than disbursement of Loan proceeds under Section 2.6,
        and
        shall be subject to the provisions of Section 2.6.1.
        Reimbursement of drawings under any Letter of Credit issued for the account
        of
        Borrower’s subsidiary, Joint Venture or Permitted Affiliate shall be the
        responsibility of, and shall create an obligation of, Borrower and any
        guarantor, including Guarantor and each Permitted Affiliate.

       

      (f)  Limited
        to Availability.
        Notwithstanding any contrary provision of this Agreement, the Outstanding
        Amount
        of all Loans (including all Swing Loans and Bid Loans) plus the Outstanding
        Amount of all L/C Obligations shall not at any time exceed the Availability.
        Within the limits of the Availability, and subject to the other terms and
        conditions hereof, Borrower may borrow under this Section 2.1
        and
        under Sections 2.4
        and
2.6
        prior to
        the Maturity Date, repay pursuant to Section 2.9
        and
        reborrow pursuant to this Section 2.1
        and
        pursuant to Sections 2.4
        and
2.6
        prior to
        the Maturity Date.

       

      (g)  Benefits
        of L/C Issuer.
        The L/C
        Issuer shall act on behalf of the Lenders with respect to any Letters of
        Credit
        issued by it and the documents associated therewith, and the L/C Issuer shall
        have all of the benefits and immunities (i) provided to Administrative
        Agent in Article 9
        with
        respect to any acts taken or omissions suffered by the L/C Issuer in connection
        with Letters of Credit issued by it or proposed to be issued by it and Issuer
        Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Article
        9
        included
        the L/C Issuer with respect to such acts or omissions, and (ii) as
        additionally provided herein with respect to the L/C Issuer.

      
        
          
          

        

        
          S-26

          
            

          

        

        
          
          

        

      

      2.1.1  No
        Obligation to Issue Letters of Credit Under Certain
        Circumstances.
        The L/C
        Issuer shall not be under any obligation to issue any Letter of Credit
        if:

       

      (a)  any
        order, judgment or decree of any Governmental Authority or arbitrator shall
        by
        its terms purport to enjoin or restrain the L/C Issuer from issuing such
        Letter
        of Credit, or any law applicable to the L/C Issuer or any request or directive
        (whether or not having the force of law) from any Governmental Authority
        with
        jurisdiction over the L/C Issuer shall prohibit, or request that the L/C
        Issuer
        refrain from, the issuance of letters of credit generally or such Letter
        of
        Credit in particular or shall impose upon the L/C Issuer with respect to
        such
        Letter of Credit any restriction, reserve or capital requirement (for which
        the
        L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
        Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or
        expense
        which was not applicable on the Closing Date and which the L/C Issuer in
        good
        faith deems material to it;

       

      (b)  the
        issuance of such Letter of Credit would violate any laws or one or more policies
        of the L/C Issuer; or

       

      (c)  a
        default
        of any Lender’s obligations to fund under Section 2.6.1(b)
        exists
        or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
        Issuer has entered into satisfactory arrangements with Borrower or such Lender
        to eliminate the L/C Issuer’s risk with respect to such Lender including,
        without limitation, Borrower providing Cash Collateral in the amount of such
        Defaulting Lender’s Pro Rata Share of the requested Letter of
        Credit.

       

      Letters
        of Credit shall be issued only for drawing in United States dollars. No Letters
        of Credit with automatic extension or reinstatement provisions shall be
        permitted.

       

      2.1.2  Letter
        of Credit Amendments.
        The L/C
        Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
        permitted at such time to issue such Letter of Credit in its amended form
        under
        the terms hereof.

       

      2.1.3  Applicability
        of ISP98. Unless
        otherwise expressly agreed by the L/C Issuer and Borrower when a Letter of
        Credit is issued (including any such agreement applicable to the Existing
        Letters of Credit), the rules of the ISP shall apply to each standby Letter
        of
        Credit.

       

      2.2  Swing
        Line.

       

      2.2.1  Swing
        Loans.
        Upon
        Borrower’s request, and subject to the terms and conditions of this Agreement,
        the Swing Line Lender may, in its sole and absolute discretion, on and after
        the
        Closing Date and prior to the Maturity Date, provide to Borrower a swing
        line
        credit facility (the “Swing
        Line”)
        of up
        to $25,000,000; provided
        that the
        Swing Line Lender shall not in any event make any Loan under the Swing Line
        (each a “Swing
        Loan”
and
        collectively, the “Swing
        Loans”)
        if,
        after giving effect thereto, (a) the sum of the Outstanding Amount of all
        Loans (including all Swing Loans and Bid Loans) plus
        the
        Outstanding Amount of all L/C Obligations would exceed the Availability at
        such
        time, or (b) the aggregate principal amount of all then-outstanding Swing
        Loans made by the Swing Line Lender would exceed the Swing

      
        
          
          

        

        
          S-27

          
            

          

        

        
          
          

        

      

       Line
        Availability at such time. Within the limits of the Swing Line Availability,
        Borrower may borrow under this Section 2.2.1
        at any
        time prior to the Maturity Date, repay pursuant to Sections 2.2.3
        or
2.2.4
        and
        reborrow pursuant to this Section 2.2.1
        prior to
        the Maturity Date. Notwithstanding any contrary provision of this Section 2.2,
        the
        Swing Line Lender shall not at any time be obligated to make any Swing Loan.
        Borrower shall not use the proceeds of any Swing Loan to refinance any
        outstanding Swing Loan.

       

      2.2.2  Interest
        on Swing Loans.
        Notwithstanding the provisions of Sections 2.11.1
        and
2.11.2,
        each
        Swing Loan outstanding under the Swing Line shall accrue interest at a rate
        per
        annum equal to the interest rate applicable to a Reference Rate Committed
        Loan,
        which interest shall be payable in arrears on each Interest Payment Date
        and on
        the due date for Swing Loans set forth in Section 2.2.3,
        and
        shall be payable to Administrative Agent for the account of the Swing Line
        Lender; provided
        that,
        notwithstanding any other provision of this Agreement, each Swing Loan shall
        bear interest for a minimum of one day.

       

      2.2.3  Principal
        Payable on Swing Loans.
        Notwithstanding the provisions of Section 2.9,
        the
        principal outstanding under the Swing Line shall be due and
        payable:

       

      (a)  at
        or
        before 10:00 a.m., San Francisco time, on the third Business Day
        immediately following any date on which a Swing Loan is made under the Swing
        Line; and

       

      (b)  in
        any
        event on the Maturity Date;

       

      provided
        that, if
        no Event of Default has occurred and remains uncured, and Borrower is permitted
        to borrow under the terms of this Agreement (the Availability being determined
        for such purpose without giving effect to any reduction thereof occasioned
        by
        such Swing Loans due and payable) at the time such Swing Loans are due, then
        unless Borrower notifies the Swing Line Lender that it will repay such Swing
        Loans on their due date, Borrower shall be deemed to have submitted a Notice
        of
        Committed Borrowing or Conversion/Continuation for Reference Rate Committed
        Loans in an amount necessary to repay such Swing Loans on their due date,
        and
        the provisions of Section 2.3
        concerning (i) the minimum principal amounts required for Committed
        Borrowings and (ii) the funding of requested Committed Borrowings as Swing
        Loans shall not apply to Loans made pursuant to this Section 2.2.3.

       

      2.2.4  Prepayments
        of Swing Loans.
        Notwithstanding the provisions of Section 2.9.1,
        Borrower may, from time to time on any Business Day, make a voluntary
        prepayment, in whole or in part, of the outstanding principal amount of any
        Swing Loans, without incurring any premium or penalty; provided
        that:

       

      (a)  each
        such
        voluntary prepayment shall require prior written notice given to Administrative
        Agent and Swing Line Lender no later than 10:00 a.m. on the day on which
        Borrower intends to make a voluntary prepayment, and

       

      (b)  each
        such
        voluntary prepayment shall be in a minimum amount of $500,000 (or, if less,
        the
        aggregate outstanding principal amount of all Swing Loans then
        outstanding).

      
        
          
          

        

        
          S-28

          
            

          

        

        
          
          

        

      

      2.2.5  Funding
        of Participations.
        Immediately upon the making of a Swing Loan, each Lender shall be deemed
        to, and
        hereby irrevocably and unconditionally agrees to, purchase from the Swing
        Line
        Lender a risk participation in such Swing Loan in an amount equal to the
        product
        of such Lender’s Pro Rata Share times
        the
        amount of such Swing Loan. The Swing Line Lender shall be responsible for
        invoicing Borrower for interest on the Swing Loans. Until each Bank funds
        its
        Reference Rate Committed Loan or risk participation pursuant to this
Section 2.2.5
        to
        refinance such Bank’s Pro Rata Share of any Swing Loan, interest in respect of
        such Pro Rata Share shall be solely for the account of the Swing Line Lender.
        From and after the date that any Lender funds such participation pursuant
        to
        this Section 2.2.5,
        such
        Lender shall, to the extent of its Pro Rata Share, be entitled to receive
        a
        ratable portion of any payment of principal and/or interest received by the
        Swing Line Lender on account of such Swing Loans, payable to such Lender
        promptly upon such receipt. If any payment received by the Swing Line Lender
        in
        respect of principal or interest on any Swing Loan is required to be returned
        by
        the Swing Line Lender under any of the circumstances described in Section 10.9
        (including pursuant to any settlement entered into by the Swing Line Lender
        in
        its discretion), each Lender shall pay to the Swing Line Lender its Pro Rata
        Share thereof on demand of Administrative Agent, plus interest thereon from
        the
        date of such demand to the date such amount is returned, at a rate per annum
        equal to the Reference Rate. Administrative Agent will make such demand upon
        the
        request of the Swing Line Lender. The foregoing procedures for purchases
        of risk
        participations and the funding by Lenders of their participations in Swing
        Loans
        hereunder shall not delay the funding of any Swing Loan advanced to Borrower
        under Section 2.2.1
        hereof.

       

      2.2.6  Refinancing
        of Swing Loans.

       

      (a)  The
        Swing
        Line Lender at any time in its sole and absolute discretion may request,
        on
        behalf of Borrower (which hereby irrevocably authorizes the Swing Line Lender
        to
        so request on its behalf), that each Lender make a Reference Rate Committed
        Loan
        in an amount equal to such Lender's Pro Rata Share of the amount of Swing
        Loans
        then outstanding. Such request shall be made in writing (which written request
        shall be deemed to be a Notice of Committed Borrowing or Conversion/Continuation
        issued under Section 2.3
        for
        purposes hereof) and in accordance with the requirements of Section 2.3,
        without
        regard to the minimum and multiples specified therein for the principal amount
        of Reference Rate Committed Loans, but subject to the unutilized portion
        of the
        Commitments and the conditions set forth in Section 5.2.
        The
        Swing Line Lender shall furnish Borrower with a copy of the applicable Notice
        of
        Committed Borrowing or Conversion/Continuation promptly after delivering
        such
        Notice of Committed Borrowing or Conversion/Continuation to Administrative
        Agent. Each Lender shall make an amount equal to its Pro Rata Share of the
        amount specified in such Notice of Committed Borrowing or
        Conversion/Continuation available to Administrative Agent in immediately
        available funds for the account of the Swing Line Lender at Administrative
        Agent’s Office not later than 1:00 p.m. on the day specified in such Notice
        of Committed Borrowing or Conversion/Continuation. Subject to Section 2.2.6(b),
        each
        Lender that so makes funds available shall be deemed to have made a Reference
        Rate Committed Loan to Borrower in such amount. Administrative Agent shall
        remit
        the funds so received to the Swing Line Lender. Notwithstanding the foregoing,
        the issuance of a Notice of Committed Borrowing or Conversion/Continuation
        by
        the Swing Line Lender under this Section 2.2.6(a)
        shall
        not delay the funding of any Swing Loan advanced to Borrower under Section 2.2.1
        hereof.

      
        
          
          

        

        
          S-29

          
            

          

        

        
          
          

        

      

      (b)  If
        for
        any reason any Swing Loan cannot be refinanced by a Committed Borrowing in
        accordance with Section 2.2.6(a),
        the
        request for Reference Rate Committed Loans submitted by the Swing Line Lender
        as
        set forth herein shall be deemed to be a request by the Swing Line Lender
        that
        each of the Lenders fund its risk participation in the relevant Swing Loan
        and
        each Lender’s payment to Administrative Agent for the account of the Swing Line
        Lender pursuant to Section 2.2.6(a)
        shall be
        deemed payment in respect of such participation.

       

      (c)  If
        any
        Lender fails to make available to Administrative Agent for the account of
        the
        Swing Line Lender any amount required to be paid by such Lender pursuant
        to the
        foregoing provisions of this Section 2.2.6
        by the
        time specified in Section 2.2.6(a),
        the
        Swing Line Lender shall be entitled to recover from such Lender (acting through
        Administrative Agent), on demand, such amount with interest thereon for the
        period from the date such payment is required to the date on which such payment
        is immediately available to the Swing Line Lender at a rate per annum equal
        to
        the Federal Funds Rate from time to time in effect. A certificate of the
        Swing
        Line Lender submitted to any Lender (through Administrative Agent) with respect
        to any amounts owing under this Section 2.2.6(c)
        shall be
        conclusive absent manifest error.

       

      (d)  Each
        Lender’s obligation to make Committed Loans or to purchase and fund risk
        participations in Swing Loans pursuant to this Section 2.2.6
        shall be
        absolute and unconditional and shall not be affected by any circumstance,
        including (i) any set-off, counterclaim, recoupment, defense or other right
        which such Lender may have against the Swing Line Lender, Borrower or any
        other
        Person for any reason whatsoever, (ii) subject to Section 2.2.8,
        the
        occurrence or continuance of a Default, or (iii) any other occurrence,
        event or condition, whether or not similar to any of the foregoing; provided,
        however,
        that
        each Lender’s obligation to make Committed Loans pursuant to this Section 2.2.6
        is
        subject to the conditions set forth in Section 5.2.
        No such
        funding of risk participations shall relieve or otherwise impair the obligation
        of Borrower to repay Swing Loans, together with interest as provided
        herein.

       

      2.2.7  Termination
        of Swing Line.
        At any
        time during the continuance of an Event of Default, the Swing Line Lender
        may,
        without Borrower’s consent, upon one Business Day’s notice to Borrower,
        terminate the Swing Line and cause Reference Rate Committed Loans to be made
        by
        the Lenders in an aggregate amount equal to the amount of principal and interest
        outstanding under the Swing Line (the Availability being determined for such
        purpose without giving effect to any reduction thereof occasioned by such
        Swing
        Loans), and the conditions precedent set forth in Section 2.3
        and
Section 5.2,
        and any
        requirement of Section 2.3
        that a
        Committed Borrowing be funded as a Swing Loan shall not apply to such Committed
        Loans. The proceeds of such Committed Loans shall be paid to the Swing Line
        Lender to retire the outstanding principal and interest owing under the Swing
        Line.

       

      2.2.8  No
        Swing Loans Upon Default.
        The
        Swing Line Lender shall not, without the approval of all Lenders, make a
        Swing
        Loan if the Swing Line Lender then has actual knowledge that a Default has
        occurred and is continuing.

       

      2.3  Procedure
        for Obtaining Credit (Committed Loans, Swing Loans and Letters of
        Credit).
        Each
        Committed Borrowing shall be made and each Letter of Credit shall be issued
        upon
        the irrevocable written notice (including notice via facsimile confirmed
        immediately by a 

      
        
          
          

        

        
          S-30

          
            

          

        

        
          
          

        

      

      telephone
        call) of Borrower in the form of a Notice of Committed Borrowing or Conversion/
        Continuation and, with respect to a Letter of Credit request, a Letter of
        Credit
        Application (which notice and, if applicable, Letter of Credit Application,
        must
        be received by Administrative Agent prior to 10:00 a.m., San Francisco
        time, (i) three Business Days prior to the requested borrowing date, in the
        case of LIBOR Committed Loans, or (ii) one Business Day prior to the
        requested borrowing date, in the case of Reference Rate Committed Loans,
        or
        (iii) on the requested borrowing date, in the case of Swing Loans, or
        (iv) five Business Days prior to the requested issuance date of a Letter of
        Credit), specifying:

       

      (a)  the
        amount of the Committed Borrowing or the Letter of Credit, which in the case
        of
        a Committed Borrowing shall be in an aggregate principal amount of not less
        than
        (i) $500,000 (or the remaining Availability, if less) for Reference Rate
        Committed Borrowings or Swing Loans, and (ii) $1,000,000 and increments of
        $500,000 in excess thereof for any LIBOR Committed Borrowings;

       

      (b)  the
        requested Committed Borrowing or Letter of Credit issuance date, which shall
        be
        a Business Day;

       

      (c)  in
        the
        case of a Committed Borrowing, the Type of Committed Loans comprising the
        Committed Borrowing;

       

      (d)  in
        the
        case of a LIBOR Committed Borrowing, the duration of the Interest Period
        applicable to the Committed Loans comprising such LIBOR Committed Borrowing.
        If
        the Notice of Committed Borrowing or Conversion/Continuation fails to specify
        the duration of the Interest Period for the Committed Loans comprising a
        LIBOR
        Committed Borrowing, such Interest Period shall be one month.

       

      Unless
        the Required Lenders otherwise agree, during the existence of a Default or
        Event
        of Default, Borrower may not elect to have a Committed Loan made as, or
        converted into or continued as, a LIBOR Committed Loan. Notwithstanding the
        foregoing provisions of this Section 2.3,
        any
        amount drawn under a Letter of Credit shall, from and after the date on which
        such drawing is made, constitute a Committed Borrowing for all purposes under
        this Agreement (including accrual and payment of interest and repayment of
        principal) other than disbursement of Committed Loan proceeds under this
        Section 2.3.

       

      Unless
        Borrower’s Notice of Committed Borrowing or Conversion/Continuation expressly
        requests a LIBOR Committed Borrowing, a Reference Rate Committed Borrowing
        in an
        amount in excess of the Swing Line Availability or the issuance of a Letter
        of
        Credit, each requested Committed Borrowing shall initially be funded as a
        Swing
        Loan (unless the Swing Line Lender declines to make a Swing Loan, in which
        case
        the requested Committed Borrowing shall be funded as a Reference Rate Committed
        Borrowing in accordance with this Section 2.3),
        and
        shall be subject to the provisions of Section 2.2.
        Unless
        the Required Lenders otherwise agree, during the existence of a Default or
        Event
        of Default, Borrower may not elect to have a Loan made as, or converted into
        or
        continued as, a LIBOR Committed Loan. After giving effect to any Committed
        Loan,
        there shall not be more than seven (7) different Interest Periods in
        effect.

      
        
          
          

        

        
          S-31

          
            

          

        

        
          
          

        

      

      2.4  Bid
        Loans.

       

      2.4.1  General.
        Subject
        to the terms and conditions set forth herein, each Lender agrees that Borrower
        may from time to time request the Lenders to submit offers to make loans
        (each
        such loan, a “Bid
        Loan”)
        to
        Borrower prior to the Maturity Date pursuant to this Section 2.4;
        provided,
        however,
        that
        after giving effect to any Bid Borrowing, (i) the Outstanding Amount of all
        Loans (including all Swing Loans and Bid Loans)) plus
        the
        Outstanding Amount of all L/C Obligations shall not exceed the Availability,
        and
        (ii) the aggregate Outstanding Amount of all Bid Loans shall not exceed the
        Bid Loan Sublimit. There shall not be more than seven (7) different Interest
        Periods in effect with respect to Bid Loans at any time.

       

      2.4.2  Requesting
        Competitive Bids.
        Borrower may request the submission of Competitive Bids by delivering a Bid
        Request to Administrative Agent not later than 10:00 a.m., San Francisco
        time, (a) one Business Day prior to the requested date of any Bid Borrowing
        that is to consist of Absolute Rate Bid Loans, or (b) four Business Days
        prior to the requested date of any Bid Borrowing that is to consist of LIBOR
        Margin Bid Loans. Each Bid Request shall specify (i) the requested date of
        the Bid Borrowing (which shall be a Business Day), (ii) the aggregate
        principal amount of Bid Loans requested (which must be $10,000,000 or a whole
        multiple of $1,000,000 in excess thereof), (iii) the Type of Bid Loans
        requested, and (iv) the duration of the Interest Period with respect
        thereto, and shall be signed by a Responsible Officer of Borrower. No Bid
        Request shall contain a request for (A) more than one Type of Bid Loan or
        (B)
        Bid Loans having more than three different Interest Periods. Unless
        Administrative Agent otherwise agrees in its sole and absolute discretion,
        Borrower may not submit a Bid Request if it has submitted another Bid Request
        within the prior five Business Days.

       

      2.4.3  Submitting
        Competitive Bids.

       

      (a)  Administrative
        Agent shall promptly notify each Lender of each Bid Request received by it
        from
        Borrower and the contents of such Bid Request.

       

      (b)  Each
        Lender may (but shall have no obligation to) submit a Competitive Bid containing
        an offer to make one or more Bid Loans in response to such Bid Request. Such
        Competitive Bid must be delivered to Administrative Agent not later than
        10:30 a.m. (i) on the requested date of any Bid Borrowing that is to
        consist of Absolute Rate Bid Loans, and (ii) three Business Days prior to
        the requested date of any Bid Borrowing that is to consist of LIBOR Margin
        Bid
        Loans; provided,
        however,
        that
        any Competitive Bid submitted by Bank of America in its capacity as a Lender
        in
        response to any Bid Request must be submitted to Administrative Agent not
        later
        than 10:15 a.m. on the date on which Competitive Bids are required to be
        delivered by the other Lenders in response to such Bid Request. Each Competitive
        Bid shall specify (A) the proposed date of the Bid Borrowing; (B) the
        principal amount of each Bid Loan for which such Competitive Bid is being
        made,
        which principal amount (x) may be equal to, greater than or less than the
        Commitment of the bidding Lender, (y) must be $5,000,000 or a whole
        multiple of $1,000,000 in excess thereof, and (z) may not exceed the
        principal amount of Bid Loans for which Competitive Bids were requested;
        (C) if the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans,
        the Absolute Rate offered for each such Bid Loan and the Interest Period
        applicable thereto; (D) if the proposed Bid Borrowing is to consist of
        LIBOR Margin Bid Loans, the LIBOR Bid Margin with respect to each such LIBOR
        Margin Bid Loan and the Interest Period applicable thereto; and (E) the
        identity of the bidding Lender.

      
        S-32

      

      
      

      (c)  Any
        Competitive Bid shall be disregarded if it (A) is received after the
        applicable time specified in Section 2.4.3(b),
        (B) is not substantially in the form of a Competitive Bid as specified
        herein, (C) contains qualifying, conditional or similar language,
        (D) proposes terms other than or in addition to those set forth in the
        applicable Bid Request, or (E) is otherwise not responsive to such Bid
        Request. Any Lender may correct a Competitive Bid containing a manifest error
        by
        submitting a corrected Competitive Bid (identified as such) not later than
        the
        applicable time required for submission of Competitive Bids. Any such submission
        of a corrected Competitive Bid shall constitute a revocation of the Competitive
        Bid that contained the manifest error. Administrative Agent may, but shall
        not
        be required to, notify any Lender of any manifest error it detects in such
        Lender’s Competitive Bid.

       

      (d)  Subject
        only to the provisions of Sections 3.2,
        3.5
        and
5.2
        and
        clause (c) above, each Competitive Bid shall be irrevocable.

       

      2.4.4  Notice
        to Borrower of Competitive Bids.
        Not
        later than 11:00 a.m. (a) on the requested date of any Bid Borrowing
        that is to consist of Absolute Rate Bid Loans, or (b) three Business Days
        prior to the requested date of any Bid Borrowing that is to consist of LIBOR
        Margin Bid Loans, Administrative Agent shall notify Borrower of the identity
        of
        each Lender that has submitted a Competitive Bid that complies with Section 2.4.3
        and of
        the terms of the offers contained in each such Competitive Bid.

       

      2.4.5  Acceptance
        of Competitive Bids.
        Not
        later than 11:30 a.m. (i) on the requested date of any Bid Borrowing
        that is to consist of Absolute Rate Bid Loans, and (ii) three Business Days
        prior to the requested date of any Bid Borrowing that is to consist of LIBOR
        Margin Bid Loans, Borrower shall notify Administrative Agent of its acceptance
        or rejection of the offers notified to it pursuant to Section 2.4.4.
        Borrower shall be under no obligation to accept any Competitive Bid and may
        choose to reject all Competitive Bids. In the case of acceptance, such notice
        shall specify the aggregate principal amount of Competitive Bids for each
        Interest Period that is accepted. Borrower may accept any Competitive Bid
        in
        whole or in part; provided
        that:

       

      (a)  the
        aggregate principal amount of each Bid Borrowing may not exceed the applicable
        amount set forth in the related Bid Request;

       

      (b)  the
        principal amount of each Bid Loan must be $5,000,000 or a whole multiple
        of
        $1,000,000 in excess thereof;

       

      (c)  the
        acceptance of offers may be made only on the basis of ascending Absolute
        Rates
        or LIBOR Bid Margins within each Interest Period; and

       

      (d)  Borrower
        may not accept any offer that is described in Section 2.4.3(c)
        or that
        otherwise fails to comply with the requirements hereof.

       

      2.4.6  Procedure
        for Identical Bids.
        If two
        or more Lenders have submitted Competitive Bids at the same Absolute Rate
        or
        LIBOR Bid Margin, as the case may be, for the same Interest Period, and the
        result of accepting all of such Competitive Bids in whole 

      
        
          
          

        

        
          S-33

          
            

          

        

        
          
          

        

      

      (together
        with any other Competitive Bids at lower Absolute Rates or LIBOR Bid Margins,
        as
        the case may be, accepted for such Interest Period in conformity with the
        requirements of Section 2.4.5(c))
        would
        be to cause the aggregate outstanding principal amount of the applicable
        Bid
        Borrowing to exceed the amount specified therefor in the related Bid Request,
        then, unless otherwise agreed by Borrower, Administrative Agent and such
        Lenders, such Competitive Bids shall be accepted as nearly as possible in
        proportion to the amount offered by each such Lender in respect of such Interest
        Period, with such accepted amounts being rounded to the nearest whole multiple
        of $1,000,000.

       

      2.4.7  Notice
        to Lenders of Acceptance or Rejection of Bids.
        Administrative Agent shall promptly notify each Lender having submitted a
        Competitive Bid whether or not its offer has been accepted and, if its offer
        has
        been accepted, of the amount of the Bid Loan or Bid Loans to be made by it
        on
        the date of the applicable Bid Borrowing. Any Competitive Bid or portion
        thereof
        that is not accepted by Borrower by the applicable time specified in
Section 2.4.5
        shall be
        deemed rejected.

       

      2.4.8  Notice
        of LIBOR Base Rate.
        If any
        Bid Borrowing is to consist of LIBOR Margin Bid Loans, Administrative Agent
        shall determine the LIBOR Base Rate for the relevant Interest Period, and
        promptly after making such determination, shall notify Borrower and the Lenders
        that will be participating in such Bid Borrowing of such LIBOR Base
        Rate.

       

      2.4.9  Funding
        of Bid Loans.
        Each
        Lender that has received notice pursuant to Section 2.4.7
        that all
        or a portion of its Competitive Bid has been accepted by Borrower shall make
        the
        amount of its Bid Loan(s) available to Administrative Agent in immediately
        available funds at Administrative Agent’s Office not later than 1:00 p.m.
        on the date of the requested Bid Borrowing. Upon satisfaction of the applicable
        conditions set forth in Section 5.2,
        Administrative Agent shall make all funds so received available to Borrower
        in
        like funds as received by Administrative Agent.

       

      2.4.10  Notice
        of Range of Bids.
        After
        each Competitive Bid auction pursuant to this Section 2.4,
        Administrative Agent shall notify each Lender that submitted a Competitive
        Bid
        in such auction of the ranges of bids submitted (without the bidder’s name) and
        accepted for each Bid Loan and the aggregate amount of each Bid
        Borrowing.

       

      2.5  Loan
        Accounts; Notes.

       

      2.5.1  Loan
        Accounts.
        The
        Loans made by each Lender shall be evidenced by one or more loan accounts
        or
        records maintained by such Lender and by Administrative Agent in the ordinary
        course of business. The loan accounts or records maintained by Administrative
        Agent and each Lender shall, absent manifest error, be conclusive of the
        amounts
        of the Loans made by the Lenders to Borrower and the interest and payments
        thereon. Any failure so to record or any error in doing so shall not, however,
        limit or otherwise affect Borrower’s obligations hereunder to pay any amount
        owing with respect to the Loans. In addition to the accounts and records
        referred to above, each Lender and Administrative Agent shall maintain in
        accordance with its usual practice accounts or records evidencing the purchases
        and sales by such Lender of participations in Letters of Credit and Swing
        Loans.


      
        
          
          

        

        
          S-34

          
            

          

        

        
          
          

        

      

      In
        the
        event of any conflict between the accounts and records maintained by
        Administrative Agent and the accounts and records of any Lender in respect
        of
        such matters, the accounts and records of Administrative Agent shall control
        in
        the absence of manifest error.

       

      2.5.2  Notes.
        The
        Loans made by each Lender shall be evidenced by a Revolving Note in the form
        of
Exhibit H-1
        hereto,
        payable to the order of such Lender in an amount equal to such Lender’s Pro Rata
        Share of the Maximum Commitment Amount on the Closing Date. In addition,
        the
        Swing Loans made by the Swing Line Lender may be evidenced by a Swing Line
        Note
        in the form of Exhibit H-2
        hereto,
        payable to the order of the Swing Line Lender in the maximum amount of
        $25,000,000. In addition, the Bid Loans that may be made by a Lender pursuant
        to
Section 2.4
        may be
        evidenced by Bid Notes payable to the order of each Lender, in the form of
        Exhibit H-3
        hereto.
        Each Lender may endorse on any schedule annexed to its Note(s) the date,
        amount
        and maturity of each Loan that it makes (which shall not include undrawn
        amounts
        on outstanding Letters of Credit, but shall include the amounts of any drawings
        on outstanding Letters of Credit), and the amount of each payment of principal
        that Borrower makes with respect thereto. Borrower irrevocably authorizes
        each
        Lender to endorse its Note(s), and such Lender’s record shall be conclusive
        absent manifest error; provided,
        however, that any Lender’s failure to make, or its error in making, a notation
        thereon with respect to any Loan shall not limit or otherwise affect Borrower’s
        obligations to such Lender hereunder or under its Note(s).

       

      2.6  Letters
        of Credit.

       

      2.6.1  Letter
        of Credit Drawings and Reimbursements; Funding of Participations.

       

      (a)  Upon
        receipt from the beneficiary of any Letter of Credit of any notice of a drawing
        under such Letter of Credit, the L/C Issuer shall notify Borrower and
        Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
        payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor
        Date”),
        Borrower shall reimburse the L/C Issuer through Administrative Agent in an
        amount equal to the amount of such drawing. If Borrower fails to so reimburse
        the L/C Issuer by such time, Administrative Agent shall promptly notify each
        Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed
        Amount”),
        and
        the amount of such Lender’s Pro Rata Share thereof. In such event, Borrower
        shall be deemed to have requested a Committed Borrowing of Reference Rate
        Committed Loans to be disbursed on the Honor Date in an amount equal to the
        Unreimbursed Amount, without regard to the minimum and multiples specified
        in
Section 2.3
        for the
        principal amount of Reference Rate Committed Loans, but subject to the amount
        of
        the unutilized portion of the Commitments and the conditions set forth in
        Section 5.2
        (other
        than the delivery of a Notice of Committed Borrowing or
        Conversion/Continuation). Any notice given by the L/C Issuer or Administrative
        Agent pursuant to this Section 2.6.1(a)
        may be
        given by telephone if immediately confirmed in writing; provided
        that the
        lack of such an immediate confirmation shall not affect the conclusiveness
        or
        binding effect of such notice.

       

      (b)  Each
        Lender shall upon any notice pursuant to Section 2.6.1(a)
        make
        funds available to Administrative Agent for the account of the L/C Issuer,
        at
        Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
        Unreimbursed 

      
        
          
          

        

        
          S-35

          
            

          

        

        
          
          

        

      

      Amount
        not later than 1:00 p.m. on the Business Day specified in such notice by
        Administrative Agent, whereupon, subject to the provisions of Section 2.6.1(c),
        each
        Lender that so makes funds available shall be deemed to have made a Reference
        Rate Committed Loan to Borrower in such amount. Administrative Agent shall
        remit
        the funds so received to the L/C Issuer.

       

      (c)  With
        respect to any Unreimbursed Amount that is not fully refinanced by a Committed
        Borrowing of Reference Rate Committed Loans because the conditions set forth
        in
Section 5.2
        cannot
        be satisfied or for any other reason, Borrower shall be deemed to have incurred
        from the L/C Issuer, an L/C Borrowing in the amount of the Unreimbursed Amount
        that is not so refinanced, which L/C Borrowing shall be due and payable on
        demand (together with interest) and shall bear interest at the rate set forth
        in
Section 2.11.3.
        In such
        event, each Lender’s payment to Administrative Agent for the account of the L/C
        Issuer pursuant to Section 2.6.1(b)
        shall be
        deemed payment in respect of its participation in such L/C Borrowing and
        shall
        constitute an L/C Advance from such Lender in satisfaction of its participation
        obligation under this Section 2.6.1.

       

      (d)  Until
        each Lender funds its Loan or L/C Advance pursuant to this Section 2.6.1
        to
        reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
        interest in respect of such Lender’s Pro Rata Share of such amount shall be
        solely for the account of the L/C Issuer.

       

      (e)  Each
        Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer,
        for amounts drawn under Letters of Credit, as contemplated by this Section 2.6.1,
        shall
        be absolute and unconditional and shall not be affected by any circumstance,
        including (i) any set-off, counterclaim, recoupment, defense or other right
        which such Lender may have against the L/C Issuer, Borrower or any other
        Person
        for any reason whatsoever; (ii) the occurrence or continuance of a Default,
        or (iii) any other occurrence, event or condition, whether or not similar
        to any of the foregoing; provided,
        however,
        that
        each Lender’s obligation to make Loans pursuant to this Section 2.6.1
        is
        subject to the conditions set forth in Section 5.2
        (other
        than delivery by Borrower of a Notice of Committed Borrowing or
        Conversion/Continuation). No such making of an L/C Advance shall relieve
        or
        otherwise impair the obligation of Borrower to reimburse the L/C Issuer for
        the
        amount of any payment made by the L/C Issuer under any Letter of Credit,
        together with interest as provided herein.

       

      (f)  If
        any
        Lender fails to make available to Administrative Agent for the account of
        the
        L/C Issuer any amount required to be paid by such Lender pursuant to the
        foregoing provisions of this Section 2.6.1
        by the
        time specified in Section 2.6.1(b),
        the L/C
        Issuer, shall be entitled to recover from such Lender (acting through
        Administrative Agent), on demand, such amount with interest thereon for the
        period from the date such payment is required to the date on which such payment
        is immediately available to the L/C Issuer at a rate per annum equal to the
        Federal Funds Rate from time to time in effect. A certificate of the L/C
        Issuer
        submitted to any Lender (through Administrative Agent) with respect to any
        amounts owing under this Section 2.6.1(f)
        shall be
        conclusive absent manifest error.

      
        
          
          

        

        
          S-36

          
            

          

        

        
          
          

        

      

      2.6.2  Repayment
        of Participations.

       

      (a)  At
        any
        time after the L/C Issuer has made a payment under any Letter of Credit and
        has
        received from any Lender such Lender’s L/C Advance in respect of such payment in
        accordance with Section 2.6.1,
        if
        Administrative Agent receives for the account of the L/C Issuer any payment
        in
        respect of the related Unreimbursed Amount or interest thereon (whether directly
        from Borrower or otherwise, including proceeds of Cash Collateral applied
        thereto by Administrative Agent), Administrative Agent will distribute to
        such
        Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
        interest payments, to reflect the period of time during which such Lender’s L/C
        Advance was outstanding) in the same funds as those received by Administrative
        Agent.

       

      (b)  If
        any
        payment received by Administrative Agent for the account of the L/C Issuer
        pursuant to Section 2.6.1(a)
        is
        required to be returned under any of the circumstances described in Section 10.9
        (including pursuant to any settlement entered into by the L/C Issuer, in
        its
        discretion), each Lender shall pay to Administrative Agent for the account
        of
        the L/C Issuer its Pro Rata Share thereof on demand of Administrative Agent,
        plus interest thereon from the date of such demand to the date such amount
        is
        returned by such Lender, at a rate per annum equal to the Federal Funds Rate
        from time to time in effect.

       

      2.6.3  Obligations
        Absolute. The
        obligation of Borrower to reimburse the L/C Issuer, for each drawing under
        each
        Letter of Credit and to repay each L/C Borrowing shall be absolute,
        unconditional and irrevocable, and shall be paid strictly in accordance with
        the
        terms of this Agreement under all circumstances, including the
        following:

       

      (a)  any
        lack
        of validity or enforceability of such Letter of Credit, this Agreement, or
        any
        other Loan Document;

       

      (b)  the
        existence of any claim, counterclaim, set-off, defense or other right that
        Borrower or any subsidiary, Joint Venture or Permitted Affiliate may have
        at any
        time against any beneficiary or any transferee of such Letter of Credit (or
        any
        Person for whom any such beneficiary or any such transferee may be acting),
        the
        L/C Issuer, or any other Person, whether in connection with this Agreement,
        the
        transactions contemplated hereby or by such Letter of Credit or any agreement
        or
        instrument relating thereto, or any unrelated transaction;

       

      (c)  any
        draft, demand, certificate or other document presented under such Letter
        of
        Credit proving to be forged, fraudulent, invalid or insufficient in any respect
        or any statement therein being untrue or inaccurate in any respect; or any
        loss
        or delay in the transmission or otherwise of any document required in order
        to
        make a drawing under such Letter of Credit;

       

      (d)  any
        payment by the L/C Issuer under such Letter of Credit against presentation
        of a
        draft or certificate that does not strictly comply with the terms of such
        Letter
        of Credit; or any payment made by the L/C Issuer under such Letter of Credit
        to
        any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
        assignee for the benefit of creditors, liquidator, receiver or other
        representative of or successor to any beneficiary or any transferee of such
        Letter of Credit, including any arising in connection with any proceeding
        under
        any insolvency or bankruptcy law; or

      
        S-37

      

      
      

      (e)  any
        other
        circumstance or happening whatsoever, whether or not similar to any of the
        foregoing, including any other circumstance that might otherwise constitute
        a
        defense available to, or a discharge of, Borrower or any subsidiary, Joint
        Venture or Permitted Affiliate.

       

      Borrower
        shall promptly examine a copy of each Letter of Credit and each amendment
        thereto that is delivered to it and, in the event of any claim of noncompliance
        with Borrower’s
        instructions or other irregularity, Borrower will promptly notify the L/C
        Issuer. Borrower shall be conclusively deemed to have waived any such claim
        against the L/C Issuer and its correspondents unless such notice is given
        as
        aforesaid.

       

      2.6.4  Role
        of Letter of Credit Issuer. Each
        Lender and Borrower agree that, in paying any drawing under a Letter of Credit,
        the L/C Issuer shall not have any responsibility to obtain any document (other
        than any sight draft, certificates and documents expressly required by the
        Letter of Credit) or to ascertain or inquire as to the validity or accuracy
        of
        any such document or the authority of the Person executing or delivering
        any
        such document. None of the L/C Issuer, Administrative Agent or any of their
        respective Related Parties nor any of the respective correspondents,
        participants or assignees of the L/C Issuer shall be liable to any Lender
        for
        (a) any action taken or omitted in connection herewith at the request or
        with the approval of the Lenders or the Requisite Lenders, as applicable;
        (b) any action taken or omitted in the absence of gross negligence or
        willful misconduct; or (c) the due execution, effectiveness, validity or
        enforceability of any document or instrument related to any Letter of Credit
        or
        Issuer Document. Borrower hereby assumes all risks of the acts or omissions
        of
        any beneficiary or transferee with respect to its use of any Letter of Credit;
        provided,
        however,
        that
        this assumption is not intended to, and shall not, preclude Borrower’s
        pursuing such rights and remedies as it may have against the beneficiary
        or
        transferee at law or under any other agreement. None of the L/C Issuer,
        Administrative Agent or any of their respective Related Parties, nor any
        of the
        respective correspondents, participants or assignees of the L/C Issuer, shall
        be
        liable or responsible for any of the matters described in clauses (a)
        through (e) of Section 2.6.3.
        In
        furtherance and not in limitation of the foregoing, the L/C Issuer may accept
        documents that appear on their face to be in order, without responsibility
        for
        further investigation, regardless of any notice or information to the contrary,
        and the L/C Issuer shall not be responsible for the validity or sufficiency
        of
        any instrument transferring or assigning or purporting to transfer or assign
        a
        Letter of Credit or the rights or benefits thereunder or proceeds thereof,
        in
        whole or in part, which may prove to be invalid or ineffective for any reason.
        Notwithstanding anything to the contrary in Section 2.6.3
        or in
        this Section 2.6.4,
        Borrower or any subsidiary, Joint Venture or Permitted Affiliate for whose
        benefit a Letter of Credit was issued may have a claim against the L/C Issuer,
        and the L/C Issuer may be liable to Borrower or such subsidiary, Joint Venture
        or Permitted Affiliate, to the extent, but only to the extent, of any direct,
        as
        opposed to consequential or exemplary, damages suffered by Borrower or such
        subsidiary, Joint Venture or Permitted Affiliate which Borrower or such
        subsidiary, Joint Venture or Permitted Affiliate proves were caused by the
        willful misconduct or gross negligence of the L/C Issuer or the willful failure
        of the L/C Issuer to pay under any Letter of Credit after the presentation
        to it
        by the beneficiary of a sight draft and certificate(s) strictly complying
        with
        the terms and conditions of a Letter of Credit.

      
        S-38

      

      
      

      2.6.5  Cash
        Collateral.
        Upon
        the request of Administrative Agent, (a) if the L/C Issuer has honored any
        full or partial drawing request under any Letter of Credit and such drawing
        has
        resulted in an L/C Borrowing, or (b) if, as of the Letter of Credit
        expiration date, any Letter of Credit for any reason remains outstanding
        and
        partially or wholly undrawn, Borrower shall immediately Cash Collateralize
        the
        aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate
        of all Unreimbursed Amounts (determined as of the date of such L/C Borrowing
        or
        the Letter of Credit expiration date, as the case may be). Sections 2.9.3(a)
        and
8.2.3
        set
        forth certain additional requirements to deliver Cash Collateral hereunder.
        “Cash
        Collateralize”
means
        to pledge and deposit with or deliver to Administrative Agent, for the benefit
        of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
        cash
        or deposit account balances pursuant to documentation in form and substance
        reasonably satisfactory to Administrative Agent and the L/C Issuer (which
        documents are hereby consented to by the Lenders). Borrower hereby grants
        to
        Administrative Agent, for the benefit of the L/C Issuer and the Lenders,
        a
        security interest in all such cash, deposit accounts and all balances therein
        and all proceeds of the foregoing. Cash Collateral shall be maintained in
        blocked, non-interest bearing deposit accounts at Administrative
        Agent.

       

      2.7  Conversion
        and Continuation Elections of Committed Loans.

       

      2.7.1  Election
        to Convert and Renew.
        Borrower may, upon irrevocable written notice to Administrative Agent in
        accordance with Section 2.7.2:

       

      (a)  elect
        to
        convert, on any Business Day, any Reference Rate Committed Loans (or any
        part
        thereof in an amount not less than $1,000,000 and increments of $500,000
        in
        excess thereof) into LIBOR Committed Loans;

       

      (b)  elect
        to
        convert on the last day of any Interest Period any LIBOR Committed Loans
        maturing on such date (or any part thereof in an amount not less than $500,000)
        into Reference Rate Committed Loans; or

       

      (c)  elect
        to
        renew on the last day of any Interest Period (for a new Interest Period that
        commences immediately upon the expiration of such existing Interest Period)
        any
        LIBOR Committed Loans maturing on such date (or any part thereof in an amount
        not less than $1,000,000 and increments of $500,000 in excess
        thereof);

       

      provided,
        that if the aggregate amount of LIBOR Committed Loans in respect of any
        Committed Borrowing shall have been reduced, by payment, prepayment or
        conversion of part thereof, to less than $1,000,000, such LIBOR Committed
        Loans
        shall automatically convert into Reference Rate Committed Loans, and on and
        after such date the right of Borrower to continue such Committed Loans as,
        and
        convert such Committed Loans into, LIBOR Committed Loans shall
        terminate.

       

      2.7.2  Notice
        of Conversion/Continuation.
        Borrower shall deliver in writing (including via facsimile confirmed immediately
        by a telephone call) a Notice of Committed Borrowing or Conversion/Continuation
        (which notice must be received by Administrative Agent 

      
        
          
          

        

        
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      not
        later
        than 10:00 a.m. San Francisco time, (i) at least three Business Days
        prior to the conversion date or continuation date, if the Committed Loans
        are to
        be converted into or continued as LIBOR Committed Loans, or (ii) on the
        conversion date, if the Committed Loans are to be converted into Reference
        Rate
        Committed Loans) specifying:

       

      (a)  the
        proposed conversion date or continuation date;

       

      (b)  the
        aggregate amount of Committed Loans to be converted or continued;

       

      (c)  the
        nature of the proposed conversion or continuation; and

       

      (d)  if
        Borrower elects to convert a Reference Rate Committed Loan into a LIBOR
        Committed Loan or elects to continue a LIBOR Committed Loan, the duration
        of the
        Interest Period applicable to such Committed Loan. If the Notice of Committed
        Borrowing or Conversion/Continuation fails to specify the duration of the
        Interest Period for a LIBOR Committed Loan, such Interest Period shall be
        one
        month.

       

      2.7.3  Failure
        to Select a New Interest Period.
        If upon
        the expiration of any Interest Period applicable to LIBOR Committed Loans
        Borrower has failed to select a new Interest Period to be applicable to LIBOR
        Committed Loans, or if any Default or Event of Default shall then exist,
        Borrower shall be deemed to have elected to convert LIBOR Committed Loans
        into
        Reference Rate Committed Loans effective as of the expiration date of such
        current Interest Period.

       

      2.7.4  Number
        of Interest Periods.
        Notwithstanding any other provision of this Agreement, after giving effect
        to
        any conversion or continuation of any Committed Loans, there shall not be
        more
        than seven (7) different Interest Periods in effect for the Committed
        Loans.

       

      2.8  Voluntary
        Termination or Reduction of Commitment.
        Borrower may, upon not less than five Business Days’ prior written notice to
        Administrative Agent, terminate the Lenders’ Commitment to make Loans to
        Borrower or issue Letters of Credit for Borrower’s account, or permanently
        reduce the Maximum Commitment Amount by a minimum amount of $500,000, unless,
        after giving effect thereto and to any prepayments of Loans made on the
        effective date thereof, the sum of the aggregate principal amount of
        (i) the Outstanding Amount of the Loans (including all Swing Loans and Bid
        Loans) and (ii) the Outstanding Amount of L/C Obligations would exceed the
        Availability. Once reduced in accordance with this Section 2.8,
        the
        Maximum Commitment Amount may not be increased except pursuant to Section 2.14.
        Any
        reduction of the Commitment amounts shall be applied to each Lender according
        to
        its Pro Rata Share. No commitment or extension fees paid prior to the effective
        date of any reduction of the Maximum Commitment Amount or termination of
        the
        Lenders’ commitment to make Loans to Borrower or issue Letters of Credit for
        Borrower’s account shall be refunded, and all accrued Facility Fee for the
        period up to but not including the effective date of any reduction or
        termination of the Commitments shall be payable on the effective date of
        such
        reduction or termination.

      
        
          
          

        

        
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      2.9  Principal
        Payments.

       

      2.9.1  Optional
        Prepayments of the Committed Loans.
        Subject
        to the provisions of Section 3.4,
        Borrower may, at any time or from time to time, upon at least one Business
        Day’s
        prior written notice to Administrative Agent with respect to any Reference
        Rate
        Committed Loan, or upon at least three Business Day’s prior written notice to
        Administrative Agent with respect to any LIBOR Committed Loan, ratably prepay
        Committed Loans in full or in part in an amount not less than $500,000 for
        Reference Rate Committed Loans (or, if less, the aggregate outstanding principal
        amount of all Reference Rate Committed Loans and/or Swing Loans) or $1,000,000
        for LIBOR Committed Loans. Such notice of prepayment shall specify the date
        and
        amount of such prepayment and the Type(s) of Committed Loans to be prepaid.
        Administrative Agent will promptly notify each Lender of its receipt of any
        such
        notice and such Lender’s Pro Rata Share of such prepayment. If Borrower gives a
        prepayment notice to Administrative Agent, such notice is irrevocable and
        the
        prepayment amount specified in such notice shall be due and payable on the
        date
        specified therein, together with accrued interest to such date on the amount
        prepaid in the case of a prepayment of LIBOR Committed Loans, and all amounts
        required to be paid pursuant to Section 3.4.

       

      2.9.2  No
        Optional Prepayments of Bid Loans.
        No Bid
        Loan may be prepaid under Section 2.9.1
        without
        the prior consent of the applicable Bid Loan Lender.

       

      2.9.3  Mandatory
        Repayments.

       

      (a)  Availability
        Limit.
        Should
        the Outstanding Amount of Loans (including all Swing Loans and Bid Loans)
        plus
        the Outstanding Amount of L/C Obligations at any time exceed the Availability,
        Borrower shall immediately repay such excess to Administrative Agent, for
        the
        account of the Lenders and/or deliver to Administrative Agent Cash Collateral
        pursuant to Section 2.6.5
        hereof,
        in the amount of the excess of the outstanding but undrawn Letters of Credit
        over the Availability.

       

      (b)  Application
        of Repayments.
        Any
        repayments pursuant to this Section 2.9.3
        shall be
        (i) subject to Section 3.4,
        and
        (ii) applied first, to any Reference Rate Committed Loans then outstanding,
        second, to the LIBOR Committed Loans (in order of the shortest Interest Periods
        remaining); and third, to the Bid Loans in the order of the shortest interest
        period remaining.

       

      2.9.4  Repayment
        at Maturity.
        Borrower shall repay the principal amount of all outstanding Loans on the
        Maturity Date or, if earlier, upon termination of the Lenders’ Commitments
        pursuant to Section 2.8.

       

      2.9.5  Repayment
        of Bid Loans.
        Borrower shall repay each Bid Loan on the last day of the Interest Period
        in
        respect thereof.

       

      2.10  Extension
        of Maturity Date.
        Upon
        Borrower’s written request, delivered to Administrative Agent at least 60 days
        and not more than 90 days prior to the initial Maturity Date, such Maturity
        Date
        may be extended for a single period of one year, provided
        that:

      
        
          
          

        

        
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      (a)  No
        Default or Event of Default shall have occurred and remain uncured on the
        initial Maturity Date, and Administrative Agent shall have received a
        certificate to that effect signed by a Responsible Officer of
        Borrower;

       

      (b)  The
        representations and warranties set forth in this Agreement and the other
        Loan
        Documents shall be correct as of the initial Maturity Date as though made
        on and
        as of that date, and Administrative Agent shall have received a certificate
        to
        that effect signed by a Responsible Officer of Borrower;

       

      (c)  Borrower
        shall have paid to Administrative Agent, for the account of the Lenders,
        an
        extension fee equal to fifteen basis points (0.15%) multiplied by the Maximum
        Commitment Amount on the initial Maturity Date; and

       

      (d)  Borrower
        shall have executed, acknowledged and delivered to Administrative Agent such
        documents as Administrative Agent reasonably determines to be necessary to
        evidence the extension of the Maturity Date.

       

      2.11  Interest.

       

      2.11.1  Accrual
        Rate.
        Subject
        to the provisions of Section 2.11.3,
        (i) each Committed Loan shall bear interest on the outstanding principal
        amount thereof from the date when made (which, in the case of a drawing on
        a
        Letter of Credit, is the date of such drawing) until it becomes due at a
        rate
        per annum equal to LIBOR or the Reference Rate, as the case may be, plus
        the
        Applicable Committed Loan Margin; (ii) each Swing Loan shall bear interest
        on the outstanding principal amount thereof from the applicable borrowing
        date
        at the rate set forth in Section 2.2.2
        hereof;
        and (iii) each Bid Loan shall bear interest on the outstanding principal
        amount thereof from the date when made until the last day of the Interest
        Period
        therefor at a rate per annum equal to the LIBOR Base Rate for such Interest
        Period plus (or minus) the LIBOR Bid Margin, or at the Absolute Rate for
        such
        Interest period, as the case may be.

       

      2.11.2  Payment.
        Interest on each Loan shall be payable in arrears on each Interest Payment
        Date.
        Interest shall also be payable on the date of any repayment of Loans pursuant
        to
Section 2.9
        for the
        portion of the Loans so repaid, if required by Section 2.9,
        and
        upon payment (including prepayment) of the Loans in full. During the existence
        of any Event of Default, interest shall also be payable on demand.

       

      2.11.3  Default
        Interest.
        Commencing upon the occurrence of any Event of Default, and continuing
        thereafter while such Event of Default remains uncured, or after maturity
        or
        acceleration (unless and until such acceleration is rescinded), Borrower
        shall
        pay interest (after as well as before entry of judgment thereon to the extent
        permitted by law) on the principal amount of all Obligations due and unpaid,
        at
        a rate per annum determined by adding 300 basis points to the Applicable
        Committed Loan Margin, the LIBOR Bid Margin or the Absolute Rate (as applicable)
        then in effect for such Loans and, in the case of Obligations not subject
        to an
        Applicable Committed Loan Margin, the LIBOR Bid Margin or the Absolute Rate,
        at
        a rate per annum equal to the Reference Rate plus 300 basis points; provided,
        however, that on and after the expiration of any Interest Period applicable
        to
        any LIBOR Loan outstanding on the date of occurrence of such Event of Default,
        the principal amount of such Loan shall, during the continuation of such
        Event
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      equal
        to
        the Reference Rate plus 300 basis points in excess of the Applicable Committed
        Loan Margin then in effect for Reference Rate Committed Loans.

       

      2.11.4  Maximum
        Legal Rate.
        Notwithstanding anything to the contrary contained in any Loan Document,
        the
        interest paid or agreed to be paid under the Loan Documents shall not exceed
        the
        maximum rate of non-usurious interest permitted by applicable Law (the
“Maximum
        Rate”).
        If
        Administrative Agent or any Lender shall receive interest in an amount that
        exceeds the Maximum Rate, the excess interest shall be applied to the principal
        of the Loans or, if it exceeds such unpaid principal, refunded to Borrower.
        In
        determining whether the interest contracted for, charged, or received by
        Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
        to
        the extent permitted by applicable Law, (a) characterize any payment that
        is not principal as an expense, fee, or premium rather than interest,
        (b) exclude voluntary prepayments and the effects thereof, and
        (c) amortize, prorate, allocate, and spread in equal or unequal parts the
        total amount of interest throughout the contemplated term of the Obligations
        hereunder.

       

      2.12  Fees.

       

      2.12.1  Facility
        Fee.
        Borrower shall pay to Administrative Agent, for the account of the Lenders
        (based on their respective Pro Rata Shares), a facility fee (the “Facility
        Fee”)
        computed based on the annual Facility Fee rate specified in the definition
        of
        the term “Applicable Committed Loan Margin,” multiplied by the actual daily
        amount of the Maximum Commitment Amount, in each case measured quarterly
        and
        payable quarterly in arrears on (a) each January 1, April 1,
        July 1, and October 1, commencing April 1, 2006 (for the calendar
        quarter ending March 31, 2006, but with such initial payment of the
        Facility Fee pro rated from the Closing Date) and (b) the Maturity Date
        (with such final payment of the Facility Fee pro rated to the Maturity
        Date).

       

      2.12.2  Letter
        of Credit Fees.
        Borrower shall pay to Administrative Agent, for the account of the Lenders
        (based on their respective Pro Rata Shares), a letter of credit fee (the
        “Letter
        of Credit Fee”)
        for
        each issued and outstanding Letter of Credit in an amount equal to the
        Applicable LIBOR Committed Loan Margin multiplied by the daily amount available
        to be drawn under such Letter of Credit. For purposes of computing the daily
        amount available to be drawn under any Letter of Credit, the amount of such
        Letter of Credit shall be determined in accordance with Section 1.2.4.
        The
        Letter of Credit Fees shall be due and payable quarterly in arrears on
        (a) each January 1, April 1, July 1, and October 1,
        commencing April 1, 2006 (for the calendar quarter ending March 31,
        2006, but with such initial payment of the Letter of Credit Fee pro rated
        from
        the Closing Date) and (b) the Maturity Date (with such final payment of the
        Letter of Credit Fee pro rated to the Maturity Date). Borrower shall also
        pay to
        Administrative Agent, for the account of the L/C Issuer, at the time each
        Letter
        of Credit is issued, a fronting fee (the “Fronting
        Fee”)
        in an
        amount equal to the greater of (i) 12.5 basis points multiplied by the of
        each Letter of Credit, or (ii) $1,250. In addition, Borrower shall pay
        directly to the L/C Issuer for its own account the other customary
        administrative, issuance, presentation, amendment and other processing fees,
        and
        other standard costs and charges, of the L/C Issuer relating to letters of
        credit as from time to time in effect. Such customary fees and standard costs
        and charges are due and payable on demand and are nonrefundable.

      
        
          
          

        

        
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      2.12.3  Other
        Fees.
        Borrower shall pay to Administrative Agent, for its own account, for the
        account
        of the L/C Issuer or for the account of the Lenders, as applicable, such
        other
        fees as are required by the fee letter agreement, dated as of the Closing
        Date
        (the “Fee
        Letter”)
        between Borrower and Administrative Agent.

       

      2.13  Computation
        of Fees and Interest.
        All
        computations of interest for Reference Rate Committed Loans when the Reference
        Rate is determined by Bank of America’s “prime rate,” and all computations of
        interest for Absolute Rate Bid Loans that are priced by reference to Bank
        of
        America’s “prime rate”, plus or minus a margin, shall be made on the basis of a
        year of 365 or 366 days, as the case may be, and actual days elapsed. All
        other
        computations of interest and fees under this Agreement shall be made on the
        basis of a 360-day year and actual days elapsed, which results in more interest
        or fees being paid than if computed on the basis of a 365-day year. Interest
        and
        fees shall accrue during each period during which interest or such fees are
        computed from the first day thereof to the last day thereof. Any change in
        the
        interest rate on a Loan resulting from a change in the Reference Rate or
        the
        applicable reserve requirement, deposit insurance assessment rate or other
        regulatory cost shall become effective as of the opening of business on the
        day
        on which such change in the Reference Rate or such reserve requirement,
        assessment rate or other regulatory cost becomes effective. Each determination
        of an interest rate by Administrative Agent pursuant to any provision of
        this
        Agreement shall be conclusive and binding on Borrower and the Lenders in
        the
        absence of manifest error.

       

      2.14  Increase
        in Maximum Commitment Amount.

       

      2.14.1  Request
        for Increase.
        Subject
        to the provisions of Section 2.8,
        on the
        terms and subject to the conditions set forth in this Section 2.14,
        Borrower may, at any time and from time to time prior to the Maturity Date,
        by
        written notice to Administrative Agent, request an increase in the Maximum
        Commitment Amount by (i) first permitting any Lender to increase its
        Commitment (and accordingly increase the Maximum Commitment Amount by such
        amount), or (ii) thereafter inviting any Eligible Assignee that has
        previously been approved by Administrative Agent in writing to become a Lender
        under this Agreement and to provide a commitment to lend hereunder (and
        accordingly increase the Maximum Commitment Amount by such amount); provided,
        however, that in no event shall such actions cause the Maximum Commitment
        Amount
        to increase above $350,000,000.

       

      2.14.2  No
        Lender Consent Required.
        Each of
        the Lenders acknowledges and agrees that, notwithstanding any contrary provision
        of Section 10.1,
        (i) its consent to any such increase in the Maximum Commitment Amount shall
        not be required, and (ii) Eligible Assignees may be added to this Agreement
        and any Lender may increase its Commitment without the consent or agreement
        of
        the other Lenders (provided,
        however, that no Lender’s Commitment may be increased without such Lender’s
        consent), so long as Administrative Agent and Borrower have consented in
        writing
        to such Eligible Assignee or the increase in the Commitment of any of the
        Lenders, as applicable.

       

      2.14.3  Administrative
        Agent Consent and Conditions to Increase.
        Administrative Agent shall not unreasonably withhold its consent to Borrower’s
        request for an increase in the Maximum Commitment Amount under this Section 2.14 provided
        that
        Borrower 

      
        
          
          

        

        
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      satisfies
        all of the following conditions precedent:

       

      (a)  No
        Default or Event of Default shall have occurred and remain uncured on the
        Effective Date (as hereinafter defined), and Administrative Agent shall have
        received a certificate to that effect signed by an officer of
        Borrower;

       

      (b)  any
        Eligible Assignee is acceptable to Administrative Agent in its reasonable
        discretion;

       

      (c)  Borrower
        and each such Lender or Eligible Assignee shall have executed and delivered
        to
        Administrative Agent supplemental signature pages to this Agreement, in the
        form
        of Exhibit D-1
        attached
        hereto in the case of a Lender, or in the form of Exhibit D-2
        hereto
        in the case of an Eligible Assignee (each, a “Supplemental
        Signature Page”);

       

      (d)  Borrower
        shall have paid to Administrative Agent, for the account of such Lender or
        Eligible Assignee, Administrative Agent and the Arranger, as applicable,
        a
        commitment fee and/or an arrangement fee in an amount reasonably satisfactory
        to
        Administrative Agent and Borrower;

       

      (e)  Administrative
        Agent shall have sent written notice of each such request by Borrower to
        the
        Lenders, together with notice of such Eligible Assignee’s Commitment or such
        Lender’s increased Commitment, as the case may be, and the effective date (the
“Effective
        Date”)
        of
        such increase in the Maximum Commitment Amount as set forth on the Supplemental
        Signature Page; and

       

      (f)  all
        requirements of this Section 2.14
        shall
        have been satisfied.

       

      2.14.4  Rights
        of Eligible Assignees.
        Upon
        the Effective Date, and notwithstanding any contrary provision of this Agreement
        (a) each such Eligible Assignee shall become a party to this Agreement, and
        thereafter shall have all of the rights and obligations of a Lender hereunder,
        (b) each such Eligible Assignee or Lender shall simultaneously pay to
        Administrative Agent, for distribution to the Lenders whose Pro Rata Shares
        of
        the combined Commitments of all of the Lenders have decreased as a result
        of the
        new Commitment of such Eligible Assignee or the increased Commitment of such
        Lender, an amount equal to the product of such Eligible Assignee’s Pro Rata
        Share (or the increase in such Lender’s Pro Rata Share), expressed as a decimal,
        multiplied by the aggregate outstanding principal amount of the Committed
        Loans
        on the date of determination, and (c) each such Eligible Assignee or Lender
        shall thereafter be obligated to make its Pro Rata Share of Committed Borrowings
        to Borrower and shall be obligated to participate in Letter of Credit risk
        participations and L/C Advances up to and including the amount of such Eligible
        Assignee’s or Lender’s Pro Rata Share of the increased Maximum Commitment
        Amount, on the terms and subject to the conditions set forth in this
        Agreement.

       

      2.14.5  Conditions
        of Increase in Maximum Commitments.
        Notwithstanding any contrary provision of this Section 2.14,
        no
        increase in the Maximum Commitment Amount will be permitted unless (a) all
        then outstanding Loans constitute Reference Rate Committed Loans, or
        (b) the Interest Periods for all outstanding LIBOR Loans will expire (and
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      commence)
        concurrently with the date on which any increase in the Maximum Commitment
        Amount becomes effective, or (c) Borrower pays to Administrative Agent, for
        the account of Lenders, all costs arising under Section 3.4
        as a
        result of such increase in the Maximum Commitment Amount.

       

      2.15  Payments
        by Borrower.

       

      2.15.1  Timing
        of Payments.
        All
        payments (including prepayments) made by Borrower on account of principal,
        interest, fees and other amounts required hereunder shall be made without
        set-off or counterclaim. All such payments (other than payments on Swing
        Loans
        and Bid Loans) shall, except as otherwise expressly provided herein, be made
        to
        Administrative Agent for the account of the Lenders at Administrative Agent’s
        Payment Office, in dollars and in immediately available funds, no later than
        11:00 a.m. San Francisco time on the date specified herein. All payments in
        respect of Swing Loans and Bid Loans shall be paid to Administrative Agent
        for
        the account of the Swing Line Lender or the Lender(s) advancing the applicable
        Bid Loans, as applicable, and shall be paid in dollars and in immediately
        available funds, no later than 11:00 a.m. San Francisco time on the date
        specified herein. Any payment received by Administrative Agent later than
        11:00 a.m. San Francisco time shall be deemed to have been received on the
        immediately succeeding Business Day and any applicable interest or fee shall
        continue to accrue. Administrative Agent will promptly (and in any event,
        not
        later than two Business Days after Administrative Agent’s actual receipt)
        distribute to each Lender its Pro Rata Share (or other applicable share as
        provided herein) of such payment in like funds as received; provided,
        however, if and to the extent Administrative Agent shall receive any such
        payment for the account of Lenders on or before 11:00 a.m. San Francisco
        time on any Business Day and Administrative Agent shall not have distributed
        to
        each Lender its Pro Rata Share (or other applicable share as provided herein)
        on
        such Business Day, the distribution to each Lender when made shall include
        interest at the Federal Funds Rate for each day from the date of Administrative
        Agent’s actual receipt of such payment from Borrower until the date
        Administrative Agent distributes to each Lender its Pro Rata Share (or other
        applicable share as provided herein).

       

      2.15.2  Non-Business
        Days.
        Subject
        to the provisions set forth in the definition of the term “Interest Period,”
whenever any payment hereunder is stated to be due on a day other than a
        Business Day, such payment shall be made on the next succeeding Business
        Day,
        and such extension of time shall in such case be included in the computation
        of
        interest or fees, as the case may be.

       

      2.15.3  Payment
        May be Made by Administrative Agent.
        Unless
        Administrative Agent shall have received notice from Borrower prior to the
        date
        on which any payment is due to Administrative Agent for the account of the
        Lenders or the L/C Issuer hereunder that Borrower will not make such payment,
        Administrative Agent may assume that Borrower has made such payment on such
        date
        in accordance herewith and may, in reliance upon such assumption, distribute
        to
        the Lenders or the L/C Issuer, as the case may be, the amount due. In such
        event, if Borrower has not in fact made such payment, then each of the Lenders
        or the L/C Issuer, as the case may be, severally agrees to repay to
        Administrative Agent forthwith on demand the amount so distributed to such
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      available
        funds with interest thereon, for each day from and including the date such
        amount is distributed to it to but excluding the date of payment to
        Administrative Agent, at the greater of the Federal Funds Rate and a rate
        determined by Administrative Agent in accordance with banking industry rules
        on
        interbank compensation. A notice of Administrative Agent to any Lender or
        Borrower with respect to any amount owing under this Section 2.15.3
        shall be
        conclusive, absent manifest error.

       

      2.16  Payments
        by the Lenders to Administrative Agent.

       

      2.16.1  Administrative
        Agent May Make Committed Borrowings Available.
        With
        respect to any Committed Borrowing, unless Administrative Agent receives
        notice
        from a Lender at least one Business Day prior to the date of such Committed
        Borrowing, that such Lender will not make available to Administrative Agent,
        for
        the account of Borrower, the amount of that Lender’s Pro Rata Share of the
        Committed Borrowing as and when required hereunder, Administrative Agent
        may
        assume that each Lender has made such amount available to Administrative
        Agent
        in immediately available funds on the Committed Borrowing date and
        Administrative Agent may (but shall not be so required), in reliance upon
        such
        assumption, make available to Borrower on such date a corresponding amount.
        In
        such event, if a Lender has not in fact made its share of the applicable
        Committed Borrowing available to Administrative Agent, then the applicable
        Lender and Borrower severally agree to pay to Administrative Agent forthwith
        on
        demand such corresponding amount in immediately available funds with interest
        thereon, for each day from and including the date such amount is made available
        to Borrower to but excluding the date of payment to Administrative Agent,
        at
        (a) in the case of a payment to be made by such Lender, the greater of the
        Federal Funds Rate and a rate determined by Administrative Agent in accordance
        with banking industry rules on interbank compensation and (b) in the case
        of a payment to be made by Borrower, the interest rate applicable to Reference
        Rate Committed Loans. If Borrower and such Lender shall pay such interest
        to
        Administrative Agent for the same or an overlapping period, Administrative
        Agent
        shall promptly remit to Borrower the amount of such interest paid by Borrower
        for such period. If such Lender pays its share of the applicable Committed
        Borrowing to Administrative Agent, then the amount so paid shall constitute
        such
        Lender’s Committed Loan included in such Committed Borrowing. Any payment by
        Borrower shall be without prejudice to any claim Borrower may have against
        a
        Lender that shall have failed to make such payment to Administrative Agent.
        A
        notice of Administrative Agent to any Lender or Borrower with respect to
        any
        amount owing under this Section 2.16.1
        shall be
        conclusive, absent manifest error.

       

      2.16.2  Obligations
        of Lenders Several.
        The
        obligations of the Lenders hereunder to make Committed Loans, to fund
        participations in Letters of Credit and Swing Loans and to make payments
        pursuant to Section 10.4(c)
        are
        several and not joint. The failure of any Lender to make any Committed Loan,
        to
        fund any such participation or to make any payment under Section 10.4(c)
        on any
        date required hereunder shall not relieve any other Lender of its corresponding
        obligation to do so on such date. No Lender shall be responsible for the
        failure
        of any other Lender to so make its Committed Loan, to purchase its participation
        or to make its payment under Section 10.4(c).

       

      2.16.3  Failure
        to Satisfy Conditions Precedent.
        If any
        Lender makes available to Administrative Agent funds for any Loan to be made
        by
        such Lender as provided in the foregoing provisions of this Article
        2,
        and
        such funds are not made available to Borrower by 

      
        
          
          

        

        
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      Administrative
        Agent because the conditions to the applicable credit extension set forth
        in
Article
        5
        are not
        satisfied or waived in accordance with the terms hereof, Administrative Agent
        shall return such funds (in like funds as received from such Lender) to such
        Lender, without interest.

       

      2.16.4  Funding
        Source.
        Nothing
        herein shall be deemed to obligate any Lender to obtain the funds for any
        Loan
        in any particular place or manner or to constitute a representation by any
        Lender that it has obtained or will obtain the funds for any Loan in any
        particular place or manner.

       

      2.17  Sharing
        of Payments, Etc.
        If any
        Lender shall, by exercising any right of setoff or counterclaim or otherwise,
        obtain payment in respect of any principal of or interest on any of the
        Committed Loans made by it, or the participations in L/C Obligations or in
        Swing
        Loans held by it resulting in such Lender’s receiving payment of a proportion of
        the aggregate amount of such Committed Loans or participations and accrued
        interest thereon greater than its Pro Rata Share thereof as provided herein,
        then the Lender receiving such greater proportion shall (a) notify
        Administrative Agent of such fact, and (b) purchase (for cash at face
        value) participations in the Committed Loans and subparticipations in L/C
        Obligations and Swing Loans of the other Lenders, or make such other adjustments
        as shall be equitable, so that the benefit of all such payments shall be
        shared
        by the Lenders ratably in accordance with the aggregate amount of principal
        of
        and accrued interest on their respective Committed Loans and other amounts
        owing
        them, provided
        that:
        (i) if any such participations or subparticipations are purchased and all
        or any portion of the payment giving rise thereto is recovered, such
        participations or subparticipations shall be rescinded and the purchase price
        restored to the extent of such recovery, without interest; and (ii) the
        provisions of this Section shall not be construed to apply to (x) any
        payment made by Borrower pursuant to and in accordance with the express terms
        of
        this Agreement, or (y) any payment obtained by a Lender as consideration
        for the assignment of or sale of a participation in any of its Committed
        Loans
        or subparticipations in L/C Obligations or Swing Loans to any assignee or
        participant, other than to Borrower or any subsidiary thereof (as to which
        the
        provisions of this Section shall apply).

       

      2.18  Defaulting
        Lender.

       

      2.18.1  Notice
        and Cure of Lender Default; Election Period; Electing Lenders.
        Administrative Agent shall promptly notify (such notice being referred to
        as the
“Defaulting
        Lender Notice”)
        Borrower and each non-Defaulting Lender if any Lender is a Defaulting Lender.
        Each non-Defaulting Lender shall have the right, but in no event or under
        any
        circumstance the obligation, to fund any amount that a Defaulting Lender
        fails
        to fund (the “Defaulting
        Lender Amount”),
        provided
        that,
        within 20 days after the date of the Defaulting Lender Notice (the “Election
        Period”),
        such
        non-Defaulting Lender or Lenders (each such Lender, an “Electing
        Lender”)
        irrevocably commit(s) by notice in writing (an “Election
        Notice”)
        to
        Administrative Agent, the other Lenders and Borrower to fund the Defaulting
        Lender Amount. If Administrative Agent receives more than one Election Notice
        within the Election Period, then the commitment to fund the Defaulting Lender
        Amount shall be apportioned pro rata among the Electing Lenders in the
        proportion that the amount of each such Electing Lender’s Commitment bears to
        the total Commitments of all Electing Lenders. If the Defaulting Lender fails
        to
        pay the Defaulting Lender Amount within the Election Period, (a) the
        Electing Lender or Lenders, as applicable, shall be automatically obligated
        to
        fund the Defaulting Lender Amount 

      
        
          
          

        

        
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      (and
        Defaulting Lender shall no longer be entitled to fund such Defaulting Lender
        Amount) within three Business Days after such notice to Administrative Agent,
        which Defaulting Lender Amount shall be applied towards reimbursement to
        Administrative Agent or payment to Borrower as applicable, and (b) Borrower
        may enforce any rights it may have under this Agreement, at law or in equity,
        against Defaulting Lender. Notwithstanding any contrary provision of this
        Agreement, if Administrative Agent has funded the Defaulting Lender Amount,
        Administrative Agent shall be entitled to reimbursement from the Electing
        Lenders for its portion of the Defaulting Lender Amount.

       

      2.18.2  Removal
        of Rights; Indemnity.
        Administrative Agent shall not be obligated to transfer to a Defaulting Lender
        any payments made by or on behalf of Borrower to Administrative Agent for
        the
        Defaulting Lender’s benefit; nor shall a Defaulting Lender be entitled to the
        sharing of any payments hereunder or under any Note until all Defaulting
        Lender
        Amounts are paid in full. Administrative Agent shall hold all such payments
        received or retained by it for the account of such Defaulting Lender. Amounts
        payable to a Defaulting Lender shall be paid by Administrative Agent to
        reimburse Administrative Agent and any Electing Lender pro rata for all
        Defaulting Lender Amounts funded by such Persons. Solely for the purposes
        of
        voting or consenting to matters with respect to the Loan Documents, a Defaulting
        Lender shall be deemed not to be a “Lender” and such Defaulting Lender’s
        Commitment shall be deemed to be zero. A Defaulting Lender shall have no
        right
        to participate in any discussions among and/or decisions by Lenders hereunder
        and/or under the other Loan Documents. This Section shall remain effective
        with
        respect to a Defaulting Lender until such time as the Defaulting Lender shall
        no
        longer be in default of any of its obligations under this Agreement by curing
        such default by payment of all Defaulting Lender Amounts (a) within the
        Election Period, or (b) after the Election Period with the consent of the
        non-Defaulting Lenders. Such Defaulting Lender nonetheless shall be bound
        by any
        amendment to, or waiver of, any provision of, or any action taken or omitted
        to
        be taken by Administrative Agent and/or the non-Defaulting Lenders under,
        any
        Loan Document which is made subsequent to the Defaulting Lender’s becoming a
        Defaulting Lender and prior to such cure or waiver. The operation of this
        Section or the Section above alone shall not be construed to increase or
        otherwise affect the Commitment of any non-Defaulting Lender, or to relieve
        or
        excuse the performance by Borrower of its duties and obligations hereunder
        or
        under any of the other Loan Documents. Furthermore, nothing contained in
        this
        Section shall release or in any way limit a Defaulting Lender’s obligations as a
        Lender hereunder and/or under any other of the Loan Documents. Further, a
        Defaulting Lender shall indemnify and hold harmless Administrative Agent
        and
        each of the non-Defaulting Lenders from any claim, loss, or costs incurred
        by
        Administrative Agent and/or the non-Defaulting Lenders as a result of a
        Defaulting Lender’s failure to comply with the requirements of this Agreement,
        including any and all additional losses, damages, costs and expenses (including
        attorneys’ fees) incurred by Administrative Agent and any non-Defaulting Lender
        as a result of and/or in connection with (i) a non-Defaulting Lender’s
        acting as an Electing Lender, (ii) any enforcement action brought by
        Administrative Agent against a Defaulting Lender, and (iii) any action
        brought against Administrative Agent and/or Lenders. The indemnification
        provided above shall survive any termination of this Agreement.

       

      2.18.3  Commitment
        Adjustments.
        In
        connection with the adjustment of the amounts of the Commitments of the


      
        
          
          

        

        
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      Defaulting
        Lender and Electing Lender(s) upon the expiration of the Election Period
        described above, Borrower, Administrative Agent and Lenders shall execute
        such
        modifications to the Loan Documents as shall, in the reasonable judgment
        of
        Administrative Agent, be necessary or desirable in connection with the
        adjustment of the amounts of Commitments in accordance with the foregoing
        provisions of this Section. For the purpose of voting or consenting to matters
        with respect to the Loan Documents such modifications shall also reflect
        the
        removal of voting rights of the Defaulting Lender and increase in voting
        rights
        of Electing Lenders to the extent an Electing Lender has funded the Defaulting
        Lender Amount. In connection with such adjustments, each Defaulting Lender
        shall
        execute and deliver an Assignment and Assumption covering that Lender’s
        Commitment and otherwise comply with Section 10.5.
        If a
        Lender refuses to execute and deliver such Assignment and Assumption or
        otherwise comply with Section 10.5,
        such
        Lender hereby appoints Administrative Agent to do so on such Lender’s behalf.
        Administrative Agent shall distribute an amended schedule of Lenders, which
        shall thereafter be incorporated into this Agreement, to reflect such
        adjustments. However, all such Defaulting Lender Amounts funded by
        Administrative Agent or Electing Lenders shall continue to be Defaulting
        Lender
        Amounts of the Defaulting Lender pursuant to its obligations under this
        Agreement.

       

      2.18.4  No
        Election.
        In the
        event that no Lender elects to commit to fund a Defaulting Lender Amount
        within
        the applicable Election Period, Administrative Agent shall, upon the expiration
        of such Election Period, so notify Borrower and each Lender.

       

      2.19  Increases
        and Decreases in Pro Rata Shares From Existing Agreement.
        Upon
        Borrower’s satisfaction of all of the conditions set forth in Section 5.1
        of this
        Agreement, each Lender whose Pro Rata Share of the combined Commitments of
        all
        of the Lenders has increased, as evidenced by the difference for each Lender
        between the Pro Rata Share reflected in the Existing Agreement and the Pro
        Rata
        Share reflected in this Agreement, shall pay to Administrative Agent, for
        distribution to the Lenders whose Pro Rata Shares of the combined Commitments
        of
        all of the Lenders has decreased pursuant to this Agreement, an amount equal
        to
        the product of the increase in such Lender’s Pro Rata Share (expressed as a
        decimal) multiplied by the aggregate outstanding principal amount of the
        Loans
        on the date of determination.

       

      3.  TAXES,
        YIELD PROTECTION AND ILLEGALITY.

       

      3.1  Taxes.

       

      3.1.1  Payments
        Free of Taxes.
        Any and
        all payments by or on account of any obligation of Borrower hereunder or
        under
        any other Loan Document shall be made free and clear of and without reduction
        or
        withholding for any Indemnified Taxes or Other Taxes, provided
        that if
        Borrower shall be required by applicable Law to deduct any Indemnified Taxes
        (including any Other Taxes) from such payments, then (i) the sum payable
        shall be increased as necessary so that after making all required deductions
        (including deductions applicable to additional sums payable under this
Section 3.1)
        Administrative Agent, Lender or L/C Issuer, as the case may be, receives
        an
        amount equal to the sum it would have received had no such deductions been
        made,
        (ii) Borrower shall make such deductions, and (iii) Borrower shall
        timely pay the full amount deducted to the relevant Governmental Authority
        in
        accordance with applicable Law.

      
        
          
          

        

        
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      3.1.2  Payment
        of Other Taxes by Borrower.
        Without
        limiting the provisions of Section 3.1.1
        above,
        Borrower shall timely pay any Other Taxes to the relevant Governmental Authority
        in accordance with applicable Law.

       

      3.1.3  Indemnification
        by Borrower.
        Borrower shall indemnify Administrative Agent, each Lender and the L/C Issuer,
        within 10 days after demand therefor, for the full amount of any Indemnified
        Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
        or
        asserted on or attributable to amounts payable under this Section) paid by
        Administrative Agent, such Lender or the L/C Issuer, as the case may be,
        and any
        penalties, interest and reasonable expenses arising therefrom or with respect
        thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
        or
        legally imposed or asserted by the relevant Governmental Authority. A
        certificate as to the amount of such payment or liability delivered to Borrower
        by a Lender or the L/C Issuer (with a copy to Administrative Agent), or by
        Administrative Agent on its own behalf or on behalf of a Lender or the L/C
        Issuer, shall be conclusive absent manifest error.

       

      3.1.4  Evidence
        of Payments.
        As soon
        as practicable after any payment of Indemnified Taxes or Other Taxes by Borrower
        to a Governmental Authority, Borrower shall deliver to Administrative Agent
        the
        original or a certified copy of a receipt issued by such Governmental Authority
        evidencing such payment, a copy of the return reporting such payment or other
        evidence of such payment reasonably satisfactory to Administrative
        Agent.

       

      3.1.5  Status
        of Lenders.
        Any
        Foreign Lender that is entitled to an exemption from or reduction of withholding
        tax under the law of the jurisdiction in which Borrower is resident for tax
        purposes, or any treaty to which such jurisdiction is a party, with respect
        to
        payments hereunder or under any other Loan Document shall deliver to Borrower
        (with a copy to Administrative Agent), at the time or times prescribed by
        applicable Law or reasonably requested by Borrower or Administrative Agent,
        such
        properly completed and executed documentation prescribed by applicable Law
        as
        will permit such payments to be made without withholding or at a reduced
        rate of
        withholding. In addition, any Lender, if requested by Borrower or Administrative
        Agent, shall deliver such other documentation prescribed by applicable Law
        or
        reasonably requested by Borrower or Administrative Agent as will enable Borrower
        or Administrative Agent to determine whether or not such Lender is subject
        to
        backup withholding or information reporting requirements. Without limiting
        the
        generality of the foregoing, in the event that Borrower is resident for tax
        purposes in the United States, any Foreign Lender shall deliver to Borrower
        and
        Administrative Agent (in such number of copies as shall be requested by the
        recipient) on or prior to the date on which such Foreign Lender becomes a
        Lender
        under this Agreement (and from time to time thereafter upon the request of
        Borrower or Administrative Agent, but only if such Foreign Lender is legally
        entitled to do so), whichever of the following is applicable: (i) duly
        completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
        for benefits of an income tax treaty to which the United States is a party,
        (ii) duly completed copies of Internal Revenue Service Form W-8ECI,
        (iii) in the case of a Foreign Lender claiming the benefits of the
        exemption for portfolio interest under Section 881(c) of the Code,
        (x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of Borrower within the meaning of
        Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
        corporation” described in Section 881(c)(3)(C) of the Code and
        (y) duly completed copies of Internal Revenue Service Form W-8BEN,


      
        
          
          

        

        
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      or
        (iv) any other form prescribed by applicable Law as a basis for claiming
        exemption from or a reduction in United States Federal withholding tax duly
        completed together with such supplementary documentation as may be prescribed
        by
        applicable Law to permit Borrower to determine the withholding or deduction
        required to be made.

       

      3.1.6  Treatment
        of Certain Refunds.
        If
        Administrative Agent, any Lender or the L/C Issuer determines, in its sole
        discretion, that it has received a refund of any Taxes or Other Taxes as
        to
        which it has been indemnified by Borrower or with respect to which Borrower
        has
        paid additional amounts pursuant to this Section, it shall pay to Borrower
        an
        amount equal to such refund (but only to the extent of indemnity payments
        made,
        or additional amounts paid, by Borrower under this Section 3.1with
        respect to the Taxes or Other Taxes giving rise to such refund), net of all
        reasonable out-of-pocket expenses of Administrative Agent, such Lender or
        the
        L/C Issuer, as the case may be, and without interest (other than any interest
        paid by the relevant Governmental Authority with respect to such refund),
        provided
        that
        Borrower, upon the request of Administrative Agent, such Lender or the L/C
        Issuer, agrees to repay the amount paid over to Borrower (plus any penalties,
        interest or other charges imposed by the relevant Governmental Authority)
        to
        Administrative Agent, such Lender or the L/C Issuer in the event Administrative
        Agent, such Lender or the L/C Issuer is required to repay such refund to
        such
        Governmental Authority. This subsection shall not be construed to require
        Administrative Agent, any Lender or the L/C Issuer to make available its
        tax
        returns (or any other information relating to its taxes that it deems
        confidential) to Borrower or any other Person.

       

      3.2  Illegality.
        If any
        Lender determines that any Law has made it unlawful, or that any Governmental
        Authority has asserted that it is unlawful, for any Lender or its applicable
        Lending Office to make, maintain or fund LIBOR Loans, or to determine or
        charge
        interest rates based upon the LIBOR Base Rate, or any Governmental Authority
        has
        imposed material restrictions on the authority of such Lender to purchase
        or
        sell, or to take deposits of, dollars in the London interbank market, then,
        on
        notice thereof by such Lender to Borrower through Administrative Agent (a
        “LIBOR
        Suspension Notice”),
        any
        obligation of such Lender to make or continue LIBOR Committed Loans or to
        convert Reference Rate Committed Loans to LIBOR Committed Loans shall be
        suspended until such Lender notifies Administrative Agent and Borrower that
        the
        circumstances giving rise to such determination no longer exist. Upon receipt
        of
        such LIBOR Suspension Notice, Borrower shall, upon demand from such Lender
        (with
        a copy to Administrative Agent), repay, prepay or, if applicable, convert
        all
        LIBOR Loans of such Lender to Reference Rate Committed Loans, either on the
        last
        day of the Interest Period therefor, if such Lender may lawfully continue
        to
        maintain such LIBOR Loans to such day, or immediately, if such Lender may
        not
        lawfully continue to maintain such LIBOR Loans. Upon any such prepayment
        or
        conversion, Borrower shall also pay accrued interest on the amount so prepaid
        or
        converted. Delivery of a LIBOR Suspension Notice shall not affect the obligation
        of any other Lender to make, maintain and fund LIBOR Loans under the terms
        of
        this Agreement, unless such other Lender also delivers a LIBOR Suspension
        Notice
        under this Section 3.2.

       

      3.3  Increased
        Costs.

       

      3.3.1  Increased
        Costs Generally.
        If any
        Change in Law shall: (i) impose, modify or deem applicable any reserve,
        special deposit, compulsory loan, insurance charge or similar requirement
        against assets of, deposits with or for the account of, or credit extended
        or


      
        
          
          

        

        
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      participated
        in by, any Lender (except any reserve requirement
        reflected in the LIBOR Rate) or the L/C Issuer; (ii) subject any Lender or
        the L/C Issuer to
        any tax
        of any kind whatsoever with respect to this Agreement, any Letter of Credit,
        any
        participation in a Letter of Credit or any LIBOR Loan made by it, or change
        the
        basis of taxation of payments to such Lender or the L/C Issuer in respect
        thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.1
        and the
        imposition of, or any change in the rate of, any Excluded Tax payable by
        such
        Lender or the L/C Issuer); or (iii) impose on any Lender or the L/C Issuer
        or the London interbank market any other condition, cost or expense affecting
        this Agreement or LIBOR Loans made by such Lender or any Letter of Credit
        or
        participation therein; and the result of any of the foregoing shall be to
        increase the cost to such Lender of making or maintaining any LIBOR Loan
        (or of
        maintaining its obligation to make any such Loan), or to increase the cost
        to
        such Lender or the L/C Issuer of participating in, issuing or maintaining
        any
        Letter of Credit (or of maintaining its obligation to participate in or to
        issue
        any Letter of Credit), or to reduce the amount of any sum received or receivable
        by such Lender or the L/C Issuer hereunder (whether of principal, interest
        or
        any other amount) then, upon request of such Lender or the L/C Issuer, Borrower
        will pay to such Lender or the L/C Issuer, as the case may be, such additional
        amount or amounts as will compensate such Lender or the L/C Issuer, as the
        case
        may be, for such additional costs incurred or reduction suffered.

       

      3.3.2  Capital
        Requirements.
        If any
        Lender or the L/C Issuer determines that any Change in Law affecting such
        Lender
        or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the
        L/C Issuer’s holding company, if any, regarding capital requirements has or
        would have the effect of reducing the rate of return on such Lender’s or the L/C
        Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding
        company, if any, as a consequence of this Agreement, the Commitments of such
        Lender or the Loans made by, or participations in Letters of Credit held
        by,
        such Lender, or the Letters of Credit issued by the L/C Issuer, to a level
        below
        that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
        holding company could have achieved but for such Change in Law (taking into
        consideration such Lender’s or the L/C Issuer’s policies and the policies of
        such Lender’s or the L/C Issuer’s holding company with respect to capital
        adequacy), then from time to time Borrower will pay to such Lender or the
        L/C
        Issuer, as the case may be, such additional amount or amounts as will compensate
        such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
        company for any such reduction suffered.

       

      3.3.3  Delay
        in Requests.
        Failure
        or delay on the part of any Lender or the L/C Issuer to demand compensation
        pursuant to the foregoing provisions of this Section 3
        shall
        not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
        such compensation, provided
        that
        Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
        to the foregoing provisions of this Section 3
        for any
        increased costs incurred or reductions suffered more than three months prior
        to
        the date that such Lender or the L/C Issuer, as the case may be, notifies
        Borrower in writing of the Change in Law giving rise to such increased costs
        or
        reductions and of such Lender’s or the L/C Issuer’s intention to claim
        compensation therefor (except that, if the Change in Law giving rise to such
        increased costs or reductions is retroactive, then the three-month period
        referred to above shall be extended to include the period of retroactive
        effect
        thereof).

      
        
          
          

        

        
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      3.4  Funding
        Losses.
        Borrower agrees to pay to Administrative Agent, from time to time, for the
        account of the Lenders, any amount that would be necessary to reimburse the
        Lenders for, and to hold the Lenders harmless from, any loss or expense which
        the Lenders may reasonably sustain or incur as a consequence of:

       

      (a)  the
        failure of Borrower to make any required payment or prepayment of principal
        of
        any LIBOR Loan (including payments made after any acceleration
        thereof);

       

      (b)  the
        failure of Borrower to borrow, continue or convert a Committed Loan after
        Borrower has given a Notice of Committed Borrowing or
        Conversion/Continuation;

       

      (c)  the
        failure of Borrower to make any prepayment after Borrower has given a notice
        in
        accordance with Section 2.9.1;

       

      (d)  the
        prepayment (including pursuant to Section 2.9.3)
        of a
        LIBOR Loan on a day which is not the last day of the Interest Period with
        respect thereto;

       

      (e)  the
        conversion pursuant to Section 2.7
        of any
        LIBOR Loan to a Reference Rate Committed Loan on a day that is not the last
        day
        of the respective Interest Period; or

       

      (f)  any
        assignment of a Eurodollar Rate Loan on a day other than the last day of
        the
        Interest Period therefor as a result of a request by the Borrower pursuant
        to
Section 10.13;

       

      including
        any such loss or expense arising from the liquidation or reemployment of
        funds
        obtained to maintain the LIBOR Loans hereunder or from fees payable to terminate
        the deposits from which such funds were obtained. Solely for purposes of
        calculating amounts payable by Borrower to Administrative Agent, for the
        account
        of Lenders, under this Section 3.4,
        each
        LIBOR Loan (and each related reserve, special deposit or similar requirement)
        shall be conclusively deemed to have been funded at the rate of interest
        used to
        determine such LIBOR Loan by a matching deposit or other borrowing in the
        London
        interbank eurodollar market for a comparable amount and for a comparable
        period,
        whether or not such LIBOR Loan is in fact so funded.

       

      3.5  Inability
        to Determine Rates.
        If the
        Required Lenders determine that for any reason in connection with any request
        for a LIBOR Loan or a conversion to or continuation thereof that (a) dollar
        deposits are not being offered to banks in the London interbank eurodollar
        market for the applicable amount and Interest Period of such LIBOR Loan,
        (b) adequate and reasonable means do not exist for determining the LIBOR
Base
        Rate
        for any requested Interest Period with respect to a proposed LIBOR
        Committed Loan, or (c) the LIBOR
        Base
        Rate for any requested Interest Period with respect to a proposed LIBOR
        Committed Loan does not adequately and fairly reflect the cost to such Lenders
        of funding such Loan, Administrative Agent will promptly so notify
        Borrower
        and each
        Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR
        Committed Loans shall be suspended until Administrative Agent (upon the
        instruction of the Required Lenders) revokes such notice. Upon receipt of
        such
        notice, Borrower may revoke any pending request for a Committed Borrowing
        of,
        conversion to or continuation of LIBOR Committed Loans or, failing that,
        will be
        deemed to have converted such request into a request for a Committed Borrowing
        of Reference Rate Committed Loans in the amount specified therein.

      
        
          
          

        

        
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      3.6  Certificate
        of Lender.
        Any
        Lender or the L/C Issuer if claiming reimbursement or compensation pursuant
        to
        this Article 3,
        shall
        deliver to Borrower through Administrative Agent a certificate setting forth
        in
        reasonable detail the amount payable to such Lender or the L/C Issuer, or
        its
        holding company, as the case may be, hereunder, and such certificate shall
        be
        conclusive absent manifest error. Borrower shall pay such Lender or the L/C
        Issuer, as the case may be, the amount shown as due on any such certificate
        within 10 days after receipt thereof.

       

      3.7  Mitigation
        Obligations; Replacement of Lenders.

       

      (a)  Designation
        of a Different Lending Office.
        If any
        Lender requests compensation under Section 3.3,
        or
        Borrower is required to pay any additional amount to any Lender or any
        Governmental Authority for the account of any Lender pursuant to Section 3.1,
        or if
        any Lender gives a notice pursuant to Section 3.2,
        then
        such Lender shall use reasonable efforts to designate a different Lending
        Office
        for funding or booking its Loans hereunder or to assign its rights and
        obligations hereunder to another of its offices, branches or affiliates,
        if, in
        the judgment of such Lender, such designation or assignment (i) would
        eliminate or reduce amounts payable pursuant to Section 3.1
        or
3.3,
        as the
        case may be, in the future, or eliminate the need for the notice pursuant
        to
Section 3.2,
        as
        applicable, and (ii) in each case, would not subject such Lender to any
        unreimbursed cost or expense and would not otherwise be disadvantageous to
        such
        Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred
        by any Lender in connection with any such designation or
        assignment.

       

      (b)  Replacement
        of Lenders.
        If any
        Lender requests compensation under Section 3.3,
        or if
        the Borrower is required to pay any additional amount to any Lender or any
        Governmental Authority for the account of any Lender pursuant to Section 3.1,
        the
        Borrower may replace such Lender in accordance with Section 10.13.

       

      3.8  Survival.
        The
        agreements and obligations of Borrower in this Article 3
        shall
        survive the payment and performance of all other Obligations for a period
        of
        four (4) years after the Maturity Date.

       

      4.  UNENCUMBERED
        ASSET POOL.

       

      4.1  Additions
        of Property to the Unencumbered Asset Pool.

       

      (a)  In
        addition to the real property described in Exhibits A-1
        and
A-2
        attached
        hereto, Borrower may from time to time request that Administrative Agent
        add a
        new property (a “Nominated
        Property”)
        to the
        Unencumbered Asset Pool, as follows.

       

      (i)  To
        become
        an Unencumbered Stabilized Asset Property, a Nominated Property must satisfy
        each of the following conditions:

       

      (1)  Borrower
        or a Permitted Affiliate shall hold fee simple title to such Nominated Property
        or such Nominated Property is subject to a financeable ground lease (as
        determined by Administrative Agent in its reasonable discretion) in compliance
        with the second sentence of Section 4.1(c),
        with
        the following exceptions: (A) as of the Closing Date, the properties listed
        on Exhibit A-1
        hereof
        that are marked with an asterisk and that are at least 99%-owned by Borrower
        or
        a Permitted Affiliate may be included as an Unencumbered Stabilized Asset
        Property; and (B) after the Closing Date, up to an additional 5 properties
        that are no less than 99% owned by the Borrower or a Permitted Affiliate
        may be
        nominated to become additional Unencumbered Stabilized Asset Properties
        hereunder and/or Unencumbered Development Property;

      
        S-55

      

      
      

      (2)  Such
        Nominated Property is operated as residential apartments, with no more than
        15%
        of gross revenue generated by non-residential tenants;

       

      (3)  Such
        Nominated Property shall have minimum occupancy of 80%, and if admitted to
        the
        pool of Unencumbered Stabilized Asset Properties, would not cause the aggregate
        occupancy of the Unencumbered Stabilized Asset Properties to be less than
        90%;

       

      (4)  If
        requested by Administrative Agent, Borrower shall have delivered to
        Administrative Agent a copy of a Phase I environmental site assessment for
        such Nominated Property, in form and substance reasonably acceptable to
        Administrative Agent and prepared within one year of its delivery, and such
        environmental site assessment (i) shall not disclose the presence of any
        material toxic or Hazardous Substances on the Nominated Property (other than
        asbestos or asbestos containing materials (“ACM”)
        or
        Hazardous Substances used for cleaning, pool and other chemicals typically
        located on residential properties that are otherwise consistent with all
        applicable Laws);
        and
        (ii) if
        such environmental site assessment discloses the presence of asbestos or
        ACM on
        the Nominated Property, all such asbestos or ACM shall be in a condition
        reasonably acceptable to Administrative Agent, shall be subject to an O&M
        Plan reasonably acceptable to Administrative Agent, and Borrower or a Permitted
        Affiliate, as applicable, shall be performing its obligations under such
        O&M
        Plan in a manner reasonably acceptable to Administrative Agent; and

       

      (5)  Such
        Nominated Property shall be free of all liens, encumbrances and negative
        pledges, except for the following permitted liens (“Permitted
        Liens”):
        (i) liens for taxes, assessments or governmental charges or levies to the
        extent that Borrower or a Permitted Affiliate is not yet required to pay
        the
        amount secured thereby; and (ii) liens imposed by law, such as carrier’s,
        warehouseman’s, mechanic’s, materialman’s and other similar liens, arising in
        the ordinary course of business in respect of obligations that are not overdue
        or are being actively contested in good faith by appropriate proceedings
        and in
        compliance with Section 6.14(c)
        hereof,
        as long as Borrower or a Permitted Affiliate, as applicable, has established
        and
        maintained adequate reserves for the payment of the same and, by reason of
        nonpayment, no property of Borrower or a Permitted Affiliate, as applicable,
        is
        in danger of being lost or forfeited; and (iii) easements; covenants,
        conditions and restrictions; reciprocal easement and access agreements and
        similar agreements relating to ownership and operation.

       

      (ii)  To
        become
        an Unencumbered Development Property, a Nominated Property must satisfy each
        of
        the following conditions:

       

      (1)  Borrower
        or a Permitted Affiliate shall hold fee simple title to such Nominated Property
        or such Nominated Property is subject to a financeable ground lease (as
        determined by Administrative Agent in its reasonable discretion) in compliance
        with the second sentence of Section 4.1(c)
        (subject
        to the exception set forth in clause (B) of Section 4.1(a)(i)(1)
        hereof);

      
        
          
          

        

        
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      (2)  Such
        Nominated Property is real property comprised of residential apartment projects
        under development, with no more than 15% of such development to be intended
        for
        occupancy by non-residential tenants, or in pre-construction phases of the
        development process, but Completion of Construction has not occurred or did
        not
        occur within the prior 12-month period;

       

      (3)  If
        requested by Administrative Agent, Borrower shall have delivered to
        Administrative Agent a copy of a Phase I environmental site assessment for
        such Nominated Property as described in paragraph (4) of clause (i)
        above;

       

      (4)  Such
        Nominated Property shall be free of all liens, encumbrances and negative
        pledges, except for Permitted Liens as described in paragraph (5) of
        clause (i) above; and

       

      (5)  Upon
        the
        addition of such Nominated Property as an Unencumbered Development of Property,
        no more than 20% of the Unencumbered Asset Pool Value may be attributable
        to
        Unencumbered Development Property.

       

      Notwithstanding
        the foregoing, such Nominated Property shall no longer qualify as an
        Unencumbered Development Property on the date that is the earlier of
        (A) twelve months following the date that Completion of Construction on
        such Nominated Property has occurred, or (B) the first fiscal quarter in
        which such Nominated Property becomes an Unencumbered Stabilized Asset Property.
        In addition, if the Unencumbered Development Property Value at any time exceeds
        20% of the Unencumbered Asset Pool Value, sufficient Unencumbered Development
        Property shall be removed from the Unencumbered Asset Pool under Sections 4.1(b)
        or
(c)
        below
        such that the Unencumbered Development Property Value at any time is equal
        to or
        less than 20% of the Unencumbered Asset Pool Value.

       

      (iii)  Nominated
        Properties that satisfy all of the foregoing conditions in the foregoing
        clause (i) or (ii), as applicable, subject to Section 4.2,
        will
        automatically become Unencumbered Asset Pool Properties so long as Guarantor
        has
        a BBB- or Baa3 (as applicable)or better credit rating from any S&P or
        Moody’s at the time such conditions are satisfied. If Guarantor’s credit rating
        is less than BBB- or Baa3 (as applicable), Nominated Properties will become
        Unencumbered Asset Pool Properties at the sole and absolute discretion of
        the
        Required Lenders.

       

      (b)  Borrower
        may, at its option, elect to remove an Unencumbered Asset Pool Property from
        the
        Unencumbered Asset Pool, from time to time, including when such property
        is
        sold, disposed of, or no longer meets the qualifications of an Unencumbered
        Asset Pool Property. When (i) an Unencumbered Asset Pool Property is
        removed from the Unencumbered Asset Pool and Borrower continues to own the
        property, on or before the removal of the Unencumbered Asset Pool Property
        from
        the Unencumbered Asset Pool, Borrower shall deliver to the Administrative
        Agent
        a written notice, setting forth the identity of the Unencumbered Asset Pool
        Property to be removed and the requested date of removal; and (ii) an
        Unencumbered Asset Pool Property is removed from the Unencumbered Asset Pool
        and
        Borrower 

      
        
          
          

        

        
          S-57

          
            

          

        

        
          
          

        

      

      no
        longer
        has ownership of the property, within five Business Days after such Unencumbered
        Asset Pool Property is sold or disposed of, Borrower shall deliver to the
        Administrative Agent a written notice, setting forth the identity of the
        Unencumbered Asset Pool Property that has been removed and the date of removal
        (which date shall be deemed to be the date that Borrower no longer had ownership
        of such property). Pursuant to the foregoing clauses (i) and (ii), with
        such notice, Borrower shall also deliver a compliance certificate, substantially
        similar to the form of Exhibit E
        (a
“Compliance
        Certificate”),
        signed and certified by an authorized financial officer of Borrower
        (A) setting forth the information and computations (in sufficient detail)
        to determine the Unencumbered Asset Pool Value after such removal;
        (B) provided from information based upon the most recently delivered
        financial statements under Section 6.3
        hereof,
        establishing that, on a pro-forma basis as if such Unencumbered Asset Pool
        Property had been removed from the Unencumbered Asset Pool before the end
        of the
        reporting period under such financial statements, Borrower would be in
        compliance with all financial covenants set forth in this Agreement following
        such removal as of the date of such financial statements; (C) stating
        specifically that the aggregate Outstanding Amount of Loans (including all
        Swing
        Loans and Bid Loans) plus the Outstanding Amount of L/C Obligations after
        such
        removal will be less than or equal to the Availability; (D) stating
        specifically that the Unencumbered Development Property Value does not exceed
        20% of the aggregate Unencumbered Asset Pool Value; and (E) setting forth
        whether there exists or to the best of Borrower’s knowledge as of the date of
        such removal there will exist, any Default or Event of Default and, if any
        such
        Default or Event of Default exists, specifying the nature thereof and the
        action
        Borrower is taking and proposes to take with respect thereto. At the time
        of any
        such removal, Borrower shall pay Administrative Agent all reasonable attorneys’
fees (including fees for in-house counsel) incurred by Administrative Agent
        in
        connection with removing the property from the Unencumbered Asset Pool and
        shall
        make any payments to continue compliance with the terms of this Agreement,
        including those relating to the requirement that the aggregate Outstanding
        Amount of Loans (including all Swing Loans and Bid Loans) plus the Outstanding
        Amount of L/C Obligations not exceed the Availability, necessary as a result
        of
        the requested removal.

       

      (c)  If
        the
        Unencumbered Asset Pool as a whole fails to meet any of the conditions set
        forth
        in Section 4.1(a)(i)
        or
Section 4.1(a)(ii),
        as
        applicable (including the condition that the aggregate Unencumbered Development
        Property Value does not at any time exceed 20% of the aggregate Unencumbered
        Asset Pool Value), and any one of two or more properties might be removed
        to
        maintain compliance of the Unencumbered Asset Pool as a whole with the such
        conditions, then Borrower shall select the property or properties to be removed,
        provided
        that if
        it does not do so within ten days of written request to do so from
        Administrative Agent, then Administrative Agent may in its sole discretion
        select the property or properties to remove and so remove them. Notwithstanding
        the foregoing, the properties commonly known as Marina Cove and Marina City
        Club, and any other property subject to a financeable ground lease (as
        determined by Administrative Agent in its reasonable discretion) in excess
        of 30
        years (provided that no less than 15 years shall be remaining on such ground
        lease), shall not cease to be an Unencumbered Stabilized Asset Property solely
        because that property has been acquired by ground lease and not by fee simple.
        At the time of any such removal, Borrower shall pay Administrative Agent
        all
        reasonable attorneys’ fees (including fees for in-house counsel) incurred by
        Administrative Agent in connection with removing the property from the
        Unencumbered Asset Pool, and shall make any payments to continue compliance
        with
        the terms of this Agreement, including but not limited to those
        relating

      
        
          
          

        

        
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       to
        the requirement that the aggregate Outstanding Amount of Loans plus the
        Outstanding Amount of L/C Obligations not exceed the Availability, necessary
        as
        a result of such removal.

       

      4.2  Delivery
        of Information.
        In
        connection with each request to add a Nominated Property to the Unencumbered
        Asset Pool, Borrower will submit to Administrative Agent all of the following
        information and documentation:

       

      (a)  if
        requested in writing by Administrative Agent, a current Phase I
        environmental site assessment for such Nominated Property addressed to Borrower
        or a Permitted Affiliate, as applicable; provided,
        however, that in any event Borrower shall not be required to resubmit a
        Phase I environmental site assessment to Administrative Agent for any
        Unencumbered Stabilized Asset Property listed on Part
        A
        of
Exhibit A-1
        attached
        hereto;

       

      (b)  a
        title
        insurance policy insuring Borrower’s or a Permitted Affiliate’s fee title to
        such Nominated Property free of any Liens, except for Permitted Liens, and
        a
        current title report with respect to such Nominated Property; provided, however,
        Borrower shall not be required to resubmit a title insurance policy to
        Administrative Agent for any Unencumbered Stabilized Asset Property listed
        on
Part
        A
        of
Exhibit A-1
        attached
        hereto;

       

      (c)  if
        requested in writing by the Administrative Agent with respect to any such
        Nominated Property that is to qualify as an Unencumbered Stabilized Asset
        Property, a current rent roll and leasing status report for such Nominated
        Property;

       

      (d)  if
        requested in writing by the Administrative Agent, an operating statement
        for
        such Nominated Property (which shall include a detailed analysis of the net
        operating income generated from such property, including gross rental receipts,
        detailed operating expenses, capital expenditures and other relevant
        information) for the four most recent consecutive calendar quarters for which
        Borrower has operating information (or, if operating information for fewer
        than
        four consecutive calendar quarters is available to Borrower, an operating
        statement for such Nominated Property for the number of the most recent
        consecutive calendar quarters for which Borrower has operating
        information);

       

      (e)  if
        such
        Nominated Property is owned by a Permitted Affiliate, a Payment Guaranty,
        executed by such Permitted Affiliate, together with all of the items described
        in Sections 5.1.1(b),
        (c), (d), (e)
        and
(f)
        with
        respect to such Permitted Affiliate;

       

      (f)  if
        requested in writing by the Administrative Agent with respect to any Nominated
        Property that is to qualify as an Unencumbered Development Property, evidence
        of
        the cost of such property, an accounting as to all construction and development
        costs incurred to date by Borrower or the applicable Permitted Affiliate
        with
        respect to such property, a budget for expected future construction and
        development costs to complete construction of such property, and a construction
        timetable for such property; and

       

      (g)  any
        other
        information, documentation or other items relating to the Nominated Property
        that Administrative Agent may require in its sole discretion.

      
        
          
          

        

        
          S-59

          
            

          

        

        
          
          

        

      

      Notwithstanding
        anything to the contrary contained herein, no property owned by any subsidiary
        of Borrower of Guarantor shall be counted as an Unencumbered Asset Pool Property
        unless such property is nominated as a Nominated Property pursuant to
Section 4.1
        and
Section 4.2
        and the
        subsidiary becomes a “Permitted Affiliate” hereunder by executing the Payment
        Guaranty and delivering the other documents described in Section 4.2(e)
        hereof.

       

      5.  CONDITIONS
        TO DISBURSEMENTS.

       

      5.1  Conditions
        to Initial Loans.
        The
        obligation of the Lenders to make the initial Loan after the Closing Date
        is
        subject to the satisfaction of all of the following conditions
        precedent:

       

      5.1.1  Deliveries
        to Administrative Agent.
        Administrative Agent shall have received each of the following items, in
        form
        and substance satisfactory to Administrative Agent and the Lenders:

       

      (a)  Loan
        Documents.
        This
        Agreement, each Note (including each Revolving Note, the Swing Line Note
        and
        each Bid Note), the Guaranty, each Payment Guaranty issued by each Permitted
        Affiliate listed on Schedule 1.4,
        and each
        other document the Required Lenders may reasonably require, executed and
        acknowledged as appropriate;

       

      (b)  Authorizations.
        Evidence that the execution, delivery and performance by Borrower, Guarantor
        and
        each Permitted Affiliate, as the case may be, of this Agreement and the other
        Loan Documents have been duly authorized, executed and delivered by Responsible
        Officers of Borrower, Guarantor and each Permitted Affiliate, including,
        without
        limitation, authorizing resolutions and incumbency certificates for such
        Responsible Officers;

       

      (c)  Governing
        Documents.
        Copies
        of Borrower’s current partnership agreement and certificate of limited
        partnership and any amendments and modifications thereto, and Guarantor’s
        articles of incorporation and any amendments and modifications thereto, and
        each
        Permitted Affiliate’s organizational or formation documents;

       

      (d)  Good
        Standing.
        If
        required by Administrative Agent, Certificates of Good Standing for Borrower,
        Guarantor and each Permitted Affiliate from their respective states of
        organization and from any other state in which Borrower, Guarantor and each
        Permitted Affiliate is required to qualify to conduct its business;

       

      (e)  Legal
        Opinions.
        A
        written opinion of Borrower’s legal counsel and a written opinion of Guarantor’s
        and each Permitted Affiliate’s legal counsel, each covering such matters as the
        Required Lenders may reasonably require. The legal counsel and the terms
        of the
        opinion must be reasonably acceptable to Administrative Agent and the
        Lenders;

       

      (f)  Insurance.
        If
        required by Administrative Agent, evidence of any insurance coverage required
        by
Section 6.1.3
        of this
        Agreement;

       

      (g)  Certificate
        Regarding No Default or Material Adverse Change.
        A
        certificate of Borrower’s Responsible Officer, dated the Closing Date,
        certifying that (i) the representations and warranties contained in
        Article 7 are true and correct on and as of 

      
        
          
          

        

        
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      such
        date, as though made on and as of such date; (ii) the calculation of the
        Availability as of the Closing Date is true and correct on and as of such
        date;
        (iii) no Default or Event of Defaults exists or would result from the
        extensions of credit advanced on the Closing Date; and (iv) no material
        adverse change in the business, assets, operations, condition (financial
        or
        otherwise) or prospects of Borrower, Guarantor or any of their subsidiaries
        or
        Affiliates has occurred since December 31, 2005, and Guarantor’s senior
        unsecured debt rating has not changed since September 8, 2005;

       

      (h)  Property
        Information.
        A copy
        of each item described in Sections 4.2(b)
        and
(e)
        and
        evidence of the insurance required under Section 6.1.3
        for each
        Unencumbered Stabilized Asset Pool Property listed in Part
        B
        of
Exhibit A-1
        hereto
        and for each Unencumbered Development Property named in Exhibit A-2
        hereto,

       

      (i)  Other
        Items.
        Any
        other items that Administrative Agent reasonably requires.

       

      Without
        limiting the generality of the provisions of Section 9.4,
        for
        purposes of determining compliance with the conditions specified in this
        Section 5.1,
        each
        Lender that has signed this Agreement shall be deemed to have consented to,
        approved or accepted or to be satisfied with, each document or other matter
        required thereunder to be consented to or approved by or acceptable or
        satisfactory to a Lender unless Administrative Agent shall have received
        written
        notice from such Lender prior to the proposed Closing Date specifying its
        objection thereto.

       

      5.1.2  Payment
        of Fees.
        Borrower shall have paid to Administrative Agent, for its own account or
        for the
        account of the Lenders, as applicable, the fees set forth in the Fee Letter
        that
        are due on or before the Closing Date.

       

      5.1.3  Payment
        of Expenses.
        Payment
        of the expenses of preparing this Agreement and the other Loan Documents,
        including reasonable attorneys’ fees and costs, the review of any Phase I
        environmental site assessments, and any and all other fees due from Borrower
        to
        Administrative Agent.

       

      5.2  Conditions
        of all Borrowings and Letters of Credit.
        The
        obligation of the Lenders to make any Loan (including the initial Loan) or
        of
        the L/C Issuer to issue any Letter of Credit (other than the Existing Letters
        of
        Credit) is subject to the satisfaction of all of the following conditions
        precedent on the relevant borrowing date:

       

      (a)  Administrative
        Agent shall have received a Notice of Committed Borrowing or
        Conversion/Continuation requesting an extension of credit or Borrower shall
        have
        submitted a Bid Request pursuant to Section 2.4;

       

      (b)  The
        requested extension of credit shall not cause the aggregate Outstanding Amount
        of all Loans (including all Swing Loans and Bid Loans) and the Outstanding
        Amount of all L/C Obligations to exceed the Availability at such time and,
        if
        the request is for a Swing Loan, shall not cause the aggregate outstanding
        principal amount of Swing Loans to exceed the Swing Line Availability at
        such
        time and, if the request is for a Bid Loan, shall not cause the aggregate
        outstanding principal amount of Bid Loans to exceed the Bid Loan Sublimit
        at
        such time;

      
        
          
          

        

        
          S-61

          
            

          

        

        
          
          

        

      

      (c)  Administrative
        Agent shall have received a Compliance Certificate from Borrower in the form
        of
Exhibit E
        and
        described in Section 6.3(h)
        representing, among other things, that the requested extension of credit
        shall
        not cause the aggregate Outstanding Amount of Loans (including all Swing
        Loans
        and Bid Loans) and Outstanding Amount of L/C Obligations to exceed the
        Availability at such time or the Swing Line Availability at such time, or
        the
        aggregate outstanding amount of Bid Loans to exceed the Bid Loan Sublimit
        at
        such time, as the case may be, and that Borrower and Guarantor, and any
        subsidiaries or affiliates whose financial results are consolidated with
        those
        of Borrower and Guarantor for reporting purposes, are in compliance with
        all
        other material covenants and financial covenants that each has made in this
        Agreement;

       

      (d)  The
        representations and warranties of Borrower set forth in Article 7
        of this
        Agreement shall be true and correct in all material respects on and as of
        the
        date of such Borrowing with the same force and effect as if made on and as
        of
        such date;

       

      (e)  No
        Default or Event of Default shall exist or result from such
        Borrowing;

       

      (f)  Administrative
        Agent shall have received from Borrower a pro forma calculation of Availability
        and of each of the financial covenants set forth in Sections 6.9,
        6.10, 6.11
        and
6.12;
        and

       

      (g)  If
        Borrower has requested issuance of a Letter of Credit, Administrative Agent
        shall have received a Letter of Credit Application signed by the account
        party
        (and Borrower, if Borrower is not the account party), and the Fronting Fee
        for
        such Letter of Credit described in Section 2.12.2.

       

      6.  COVENANTS
        OF BORROWER.
        Borrower promises to keep each of the following covenants:

       

      6.1  Specific
        Affirmative Covenants.

       

      6.1.1  Compliance
        with Law.
        Guarantor shall comply with all existing and future laws, regulations, orders
        and requirements of, and all agreements with and commitments to, all
        Governmental Authorities having jurisdiction over Guarantor or Guarantor’s
        business. Notwithstanding any contrary provision in this Section, Guarantor
        shall
        have a right to contest all existing and future Requirements of Law
        before
        complying therewith. Borrower
        and
        each
        Permitted Affiliate, as applicable, shall comply with all existing and future
        laws (including Environmental Laws), regulations, orders, building restrictions
        and requirements of, and all agreements with and commitments to, all
        Governmental Authorities having jurisdiction over Borrower or Borrower’s
        business or such Permitted Affiliate or such Permitted Affiliate’s
        business,
        as applicable, including those pertaining to the construction, sale, leasing
        or
        financing of any Unencumbered
        Asset Pool Property or the environmental condition of any Unencumbered Asset
        Pool Property, and with all recorded covenants and restrictions affecting
        any
        Unencumbered Asset Pool Property (all collectively, the “Requirements”).
        Notwithstanding any contrary provision in this Section,
        (i) Borrower
        and each applicable Permitted Affiliate shall have a right to contest all
        existing and future Requirements
        of Law (other than those relating to Environmental Laws) before complying
        therewith, and (ii) Borrower
        and each Permitted Affiliate shall
        have
        a right to contest all existing and future Requirements relating to
        Environmental Laws for one year, before complying therewith, provide that
        no
        Unencumbered Asset Pool Property is in danger of being lost or
        forfeited.

      
        S-62

      

      
      

      6.1.2  Site
        Visits.
        Borrower, each Permitted Affiliate and Guarantor shall allow Administrative
        Agent and Lenders access to each Unencumbered Asset Pool Property at any
        reasonable time upon reasonable written notice by Administrative Agent to
        Borrower (a) for the purpose of inspecting the Unencumbered Asset Pool
        Property, and (b) upon reasonable belief by Administrative Agent or Lenders
        of the existence of a matter that should be investigated, for the purpose
        of
        taking soil or groundwater samples and conducting tests, among other things,
        to
        investigate for the presence of Hazardous Substances. Borrower, each Permitted
        Affiliate and Guarantor shall also allow Administrative Agent to examine,
        copy
        and audit its and their books and records. Neither Administrative Agent nor
        any
        Lender is under any duty to visit or observe any Unencumbered Asset Pool
        Property, and Administrative Agent is under no duty to examine any books
        or
        records. Any site visit, observation or examination by Administrative Agent
        or
        any Lender shall be solely for the purpose of protecting Administrative Agent’s
        and such Lender’s interests and preserving Administrative Agent’s
        rights under the Loan Documents. Neither Administrative Agent nor any Lender
        owes a duty of care to protect Borrower, any Permitted Affiliate, Guarantor
        or
        any other Person against, or to inform Borrower, Guarantor , any Permitted
        Affiliate, Guarantor, or any other Person of, any adverse condition affecting
        any Unencumbered Asset Pool Property, including any
        defects
        in the design or construction of any improvements located on an Unencumbered
        Asset Pool Property or the presence of any Hazardous Substances on an
        Unencumbered Asset Pool Property.

       

      6.1.3  Insurance.
        Borrower and each Permitted Affiliate, as applicable, shall maintain the
        following insurance:

       

      (a)  Special
        Form property damage insurance in non-reporting form on each of its Unencumbered
        Asset Pool Properties, with a policy limit in an amount not less than the
        full
        insurable value of the improvements located on such property on a replacement
        cost basis, including tenant improvements, if any, with a deductible amount,
        if
        any, reasonably satisfactory to Administrative Agent, which insurance shall
        cover such risks as are ordinarily insured against by similar businesses.
        The
        policy shall include a business interruption (or rent loss, if more appropriate)
        endorsement in the amount of six months’ principal and interest payments, taxes
        and insurance premiums, and any other endorsements reasonably required by
        Administrative Agent. In addition, with respect to any Unencumbered Development
        Property, builder’s risk insurance of a type and in an amount customarily
        carried in the case of similar construction in similar locations.
        Notwithstanding the foregoing, earthquake insurance with respect to any
        Unencumbered Asset Pool Property shall not be required unless
        (i) institutional lenders generally require earthquake insurance for
        similar types of multifamily real property in the geographic location where
        such
        Unencumbered Asset Pool Property is located, and (ii) such insurance is
        generally available at commercially reasonable rates.

       

      (b)  Comprehensive
        General Liability coverage with such limits as Administrative Agent may
        reasonably require. This policy shall name Administrative Agent as an additional
        insured. Coverage shall be written on an occurrence basis, not claims made,
        and
        shall cover liability for personal injury, death, bodily injury and damage
        to
        property, products and completed operations.

      
        
          
          

        

        
          S-63

          
            

          

        

        
          
          

        

      

      (c)  Workers’
        compensation insurance for all employees of Borrower and each subsidiary
        in such
        amount as is required by law and including employer’s liability insurance, if
        required by Administrative Agent.

       

      All
        policies of insurance required by Administrative Agent must be issued by
        companies reasonably approved by Administrative Agent and otherwise be
        reasonably acceptable to Administrative Agent as to amount, forms, risk
        coverages and deductibles. In addition, each policy (except workers’
compensation) must provide Administrative Agent at least 30 days’ prior notice
        of cancellation, non-renewal or modification.
        If Borrower or a Permitted Affiliate, as applicable, fails to keep any such
        coverage in effect while
        any
        Commitment is outstanding, Administrative Agent may procure the coverage
        at
        Borrower’s expense. Borrower shall reimburse Administrative Agent, on demand,
        for all premiums advanced by Administrative Agent or Lenders, which advances
        shall be considered to be additional loans to Borrower hereunder at the Default
        Rate applicable to Reference Rate Committed Loans. Neither Administrative
        Agent
        nor any Lender shall, because of accepting, reasonably disapproving, approving
        or obtaining insurance, incur any liability for (i) the existence,
        nonexistence, form or legal sufficiency thereof, (ii) the solvency of any
        insurer, or (iii) the payment of losses.

       

      6.1.4  Preservation
        of Rights.
        Borrower or the applicable Permitted Affiliate shall obtain and preserve
        all
        rights, privileges and franchises necessary or desirable for the operation
        of
        each Unencumbered Asset Pool Property owned by Borrower or such Permitted
        Affiliate. Borrower, Guarantor and each Permitted Affiliate shall also obtain
        and preserve all rights, privileges and franchises necessary or desirable
        for the conduct of Borrower’s, Guarantor’s and such Permitted Affiliate’s
        business.
        Either Borrower or the applicable Permitted
        Affiliate shall maintain
        any Unencumbered Asset Pool Property
        owned by it in good
        condition. Either Borrower or the applicable Permitted Affiliate shall, at
        Borrower’s
        or such Permitted Affiliates sole cost and expense, follow all recommendations
        in any asbestos survey conducted by an expert selected by Borrower or such
        Permitted Affiliate and
        approved
        by Administrative Agent with respect to any Unencumbered Asset Pool Property
        owned by Borrower or such Permitted Affiliate regarding safety conditions
        for,
        and maintenance of, any asbestos containing materials, including any
        recommendation to institute an O&M Plan.

       

      6.1.5  Taxes.
        Borrower,
        Guarantor and each Permitted Affiliate shall make timely payments of all
        local,
        state and federal taxes; provided,
        however, that none of Borrower, Guarantor or any Permitted Affiliate need
        pay
        any such taxes (a) that it is contesting in good faith and by appropriate
        proceedings that were promptly commenced and are being diligently pursued,
        and
        (b) for which Borrower , Guarantor or such Permitted Affiliate, as
        applicable, has created an appropriate reserve or other provision as required
        by
        GAAP, and no material property of Borrower, Guarantor or such Permitted
        Affiliate is in imminent danger of
        being
        lost or forfeited.

       

      
        
          
          

        

        
          S-64

          
            

          

        

        
          
          

        

      

      6.2  Payment
        of Expenses.

       

      (a)  Borrower
        shall pay or reimburse Administrative Agent, within fifteen days after demand,
        for (i) the costs of IntraLinks incurred in connection with the closing of
        the transactions contemplated by the Loan Documents; and (ii) costs,
        expenses and other amounts described in Section 10.4(a)
        hereof.
        Such costs and expenses shall include fees for due diligence and environmental
        services (including only those services performed by Administrative Agent
        or
        Lender employees and the cost of those services that Administrative Agent
        or any
        Lender incurs because it believes that such services are required), legal
        fees
        and expenses of counsel, counsel’s travel expenses associated with any
        syndication, lender meetings or other conferences and any other reasonable
        fees
        and costs for services, regardless of whether such services are furnished
        by
        Administrative Agent’s or any Lender’s employees or by independent
        contractors.

       

      (b)  Borrower
        shall pay or reimburse Administrative Agent for the benefit of each Lender
        within fifteen days after demand for all costs and expenses, including all
        legal, audit and review fees and expenses (including the allocated cost of
        such
        services by Administrative Agent’s employees) incurred by Administrative Agent
        in connection with the enforcement or preservation of any rights or remedies
        under any Loan Document with respect to a Default or an Event of Default
        (including any “workout” or restructuring of the Loans, and any bankruptcy,
        insolvency or other similar proceeding, judicial proceeding or
        arbitration).

       

      Borrower
        acknowledges that none of the fees described in Section 2.12
        include
        amounts payable by Borrower under this Section 6.2.
        All
        such sums incurred by Administrative Agent or any Lender and not immediately
        reimbursed by Borrower within fifteen days of written notice by Administrative
        Agent shall be considered an additional loan to Borrower hereunder at the
        Default Rate applicable to Reference Rate Committed Loans. The agreements
        in
        this Section shall survive the termination of the Commitments and repayment
        of
        all other Obligations.

       

      6.3  Financial
        and Other Information; Certification.
        Borrower shall provide to Administrative Agent the following financial
        information and statements for Guarantor and its consolidated subsidiaries
        prepared on a consolidated basis:

       

      (a)  Within
        90
        days after each fiscal year end, the annual audited consolidated financial
        statements of Borrower and Guarantor prepared in accordance with GAAP, and
        accompanied by the opinion of KPMG LLP or another nationally recognized
        Certified Public Accountant stating that such consolidated financial statements
        present fairly the financial positions of Guarantor and Borrower for the
        periods
        indicated in conformity with GAAP applied on a basis consistent with prior
        years
        and are not subject to any “going concern” or like qualification or exception or
        any qualification or exception as to the scope of such audit.

       

      (b)  Within
        45
        days after the end of each fiscal quarter, quarterly unaudited financial
        statements of Borrower and Guarantor, including cash flow statements, certified
        by a Responsible Officer of Borrower, and (to the extent appropriate), be
        prepared on a consolidated basis according to GAAP.

      
        
          
          

        

        
          S-65

          
            

          

        

        
          
          

        

      

      (c)  Within
        120 days of Guarantor’s fiscal year end, Guarantor’s annual report, certified by
        an appropriate Responsible Officer as being complete and correct in all material
        respects.

       

      (d)  If
        requested by Administrative Agent, copies of Borrower’s and Guarantor’s federal
        income tax return (with all schedule K-1’s attached), within fifteen days
        of filing, and, if requested by Administrative Agent, copies of any extensions
        of the filing date, certified by an appropriate Responsible Officer as being
        complete and correct in all material respects.

       

      (e)  If
        requested by the Administrative Agent, within 45 days after the end of each
        calendar quarter, in form and substance reasonably satisfactory to
        Administrative Agent: (i) an operating statement and rent roll for each
        Unencumbered Stabilized Asset Property, and (ii) a summary of all
        construction and development costs incurred in connection with each Unencumbered
        Development Property during the last calendar quarter and from the date of
        the
        acquisition of such property, plus a budget for expected future construction
        and
        development costs to complete construction of such property (including a
        summary
        of revisions made since the last budget was delivered for such property),
        and a
        construction timetable for such property (including an explanation of extensions
        to such construction timetable made since the last such timetable was delivered
        for such property);

       

      (f)  Copies
        of
        Guarantor’s Form 10-K Annual Report within 90 days of its fiscal year
        end.

       

      (g)  Copies
        of
        Guarantor’s Form 10-Q Quarterly Report within 45 days after the end of each
        calendar quarter except fiscal year end and copies of all statements, reports
        and notices sent or made available generally by Borrower or Guarantor to
        their
        respective security holders at the time they are so sent or made available,
        any
        financial statements contained therein to be certified by the chief financial
        officer of Borrower, and (to the extent appropriate) to be prepared on a
        consolidated basis according to GAAP and to include Borrower and
        Guarantor.

       

      (h)  At
        the
        time of each advance, each extension of credit, and each issuance of a Letter
        of
        Credit hereunder, a Compliance Certificate of Borrower in the form of
Exhibit E
        signed
        and certified by an authorized financial officer of Borrower (i) stating
        specifically that the Outstanding Amount of Loans (including all Swing Loans
        and
        Bid Loans) plus the Outstanding Amount of L/C Obligations is less than or
        equal
        to the Availability, and (ii) setting forth whether there exists as of the
        date of the certificate, any Default or Event of Default under this Agreement
        and, if any such Default or Event of Default exists, specifying the nature
        thereof and the action Borrower is taking and proposes to take with respect
        thereto.

       

      (i)  Within
        60
        days of the end of each calendar quarter and in addition within 90 days of
        the
        end of each calendar year, a Compliance Certificate of Borrower in the form
        of
Exhibit E
        signed
        and certified by an authorized financial officer of Borrower (i) setting
        forth the information and computations (in sufficient detail) to determine
        the
        Gross Asset Value, the Total Liabilities, the Unsecured Debt, the Unencumbered
        Stabilized Asset Property Value, the Unencumbered Development Property Value,
        the aggregate Unencumbered Asset Pool Value, the aggregate Unencumbered Property
        Value, the EBITDA, the Fixed Charges, the Tangible Net Worth, the Secured
        Recourse Debt and 

      
        
          
          

        

        
          S-66

          
            

          

        

        
          
          

        

      

      to
        establish that Borrower is in compliance with all financial covenants set
        forth
        in this Agreement at the end of the period covered by the financial statements
        then being furnished, (ii) stating specifically that the Outstanding Amount
        of Loans (including all Swing Loans and Bid Loans) plus the Outstanding Amount
        of L/C Obligations is less than or equal to the Availability, and
        (iii) setting forth whether there existed as of the date of the most recent
        financial statements of Guarantor and its consolidated subsidiaries and whether
        there exists as of the date of the certificate, any Default or Event of Default
        under this Agreement and, if any such Default or Event of Default exists,
        specifying the nature thereof and the action Borrower is taking and proposes
        to
        take with respect thereto.

       

      (j)  Within
        30
        days after the end of fiscal year, Borrower’s and Guarantor’s one-year calendar
        budget (showing month-by- month projections).

       

      (k)  Within
        90
        days after the end of each fiscal year, an annual business plan for Borrower
        and
        Guarantor in form and content reasonably acceptable to Administrative
        Agent.

       

      (l)  Any
        other
        financial or other information concerning Borrower’s, any Permitted Affiliate’s
        or Guarantor’s affairs and properties as Administrative Agent may reasonably
        request, to be furnished promptly upon such request.

       

      Documents
        required to be delivered pursuant to Section 6.3(f)
        or
(g)
        (to the
        extent any such documents are included in materials otherwise filed with
        the
        SEC) may be delivered electronically and if so delivered, shall be deemed
        to
        have been delivered on the date (i) on which Borrower posts such documents,
        or provides a link thereto on Borrower’s website on the Internet at its website
        address set forth on the signature page hereof (or such other website address
        as
        notified to Administrative Agent and the Lenders); or (ii) on which such
        documents are posted on Borrower’s behalf on an Internet or intranet website, if
        any, to which each Lender and Administrative Agent have access (whether a
        commercial, third-party website or whether sponsored by Administrative Agent);
        provided
        that:
        (A) upon request by Administrative Agent, Borrower shall deliver paper
        copies of such documents to Administrative Agent until a written request
        to
        cease delivering paper copies is given by Administrative Agent, and
        (B) Borrower shall notify (which may be by facsimile or electronic mail)
        Administrative Agent of the posting of any such documents and provide to
        Administrative Agent by electronic mail electronic versions (i.e.,
        soft
        copies) of such documents. Notwithstanding the foregoing in every instance
        Borrower shall be required to provide paper copies of the certificates
Sections 6.3(h)
        and
(i),
        Administrative Agent shall have no obligation to request the delivery or
        to
        maintain copies of the documents referred to above, and in any event shall
        have
        no responsibility to monitor compliance by Borrower with any such request
        for
        delivery, and each Lender shall be solely responsible for maintaining its
        copies
        of such documents.

       

      Each
        of
        Borrower and, by its execution of its consent hereto, Guarantor and each
        Permitted Affiliate, hereby acknowledges that (a) Administrative Agent
        and/or the Arranger will make available to the Lenders and the L/C Issuer
        materials and/or information provided by or on behalf of Borrower, Guarantor
        or
        any Permitted Affiliate hereunder (collectively, “Borrower
        Materials”)
        by
        posting Borrower Materials on IntraLinks or another similar electronic system
        (the “Platform”),
        and
        (b) certain of the Lenders may be “public-side” Lenders (i.e.,
        Lenders
        that do not wish to receive material non-public information with respect
        to
        Borrower, Guarantor, the Permitted Affiliates or their securities) 

      
        
          
          

        

        
          S-67

          
            

          

        

        
          
          

        

      

      (each,
        a
“Public
        Lender”).
        Each
        of Borrower and, by its execution of its consent hereto, Guarantor and each
        Permitted Affiliate, agrees that (w) all Borrower Materials that are to be
        made
        available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
        on the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
Borrower, Guarantor and each Permitted Affiliate shall be deemed to have
        authorized Administrative Agent, the Arranger, the L/C Issuer and the Lenders
        to
        treat such Borrower Materials as not containing any material non-public
        information with respect to Borrower, Guarantor, the Permitted Affiliates
        or
        their securities for purposes of United States Federal and state securities
        laws
        (provided,
        however,
        that to
        the extent such Borrower Materials constitute Information, they shall be
        treated
        as set forth in Section 10.6);
        (y) all Borrower Materials marked “PUBLIC” are permitted to be made
        available through a portion of the Platform designated “Public Investor;” and
        (z) Administrative Agent and the Arranger shall be entitled to treat any
        Borrower Materials that are not marked “PUBLIC” as being suitable only for
        posting on a portion of the Platform not designated “Public Investor.”
Notwithstanding
        the foregoing, neither Borrower nor Guarantor or any Permitted Affiliate
        shall
        be under any obligation to mark any Borrower Materials “PUBLIC.”

       

      6.4  Notices.
        Borrower shall promptly notify Administrative Agent in writing of any knowledge
        that any officer of Borrower, any Permitted Affiliate or Guarantor has
        of:

       

      (a)  any
        litigation affecting Borrower, any Permitted Affiliate, Guarantor, any
        Unencumbered Asset Pool Property, and/or any subsidiary or affiliate of Borrower
        or Guarantor that directly owns
        any Unencumbered Asset Pool Property or any development
        property or whose financial results are consolidated with those of Borrower
        or
        Guarantor for reporting purposes, in each case where the aggregate amount
        at
        risk or at issue (including litigation costs and attorneys’ fees and
        expenses,
        but excluding claims which, in Administrative Agent’s reasonable judgment, are
        expected to be covered by insurance) exceeds: (1) in the case of litigation
        affecting an Unencumbered Asset Pool Property, an aggregate amount of
        $10,000,000, or (2) in the case of litigation affecting Borrower,
        Guarantor, any Permitted Affiliate or any such subsidiary or affiliate of
        Borrower or Guarantor, an aggregate amount of $50,000,000;

       

      (b)  any
        written notice from any Governmental Authority having jurisdiction thereover
        that any property or Borrower’s, any Permitted Affiliate’s or Guarantor’s
        business fails in any material respect to comply with any applicable Law
        (including any Environmental Law), regulation or court order, where the failure
        to comply could have a material adverse effect on Borrower, such Permitted
        Affiliate or Guarantor;

       

      (c)  any
        material adverse change in the physical condition of any Unencumbered Asset
        Pool
        Property
        or Borrower’s, any Permitted Affiliate’s or Guarantor’s financial condition or
        operations, or any other circumstance that materially adversely affects
        Borrower’s or a Permitted Affiliate’s intended use of
        any
        Unencumbered Asset Pool Property or Borrower’s ability to repay the
        Loan;

       

      (d)  any
        Default or Event of Default, and any failure to comply with this Agreement
        or
        any other Loan Document or any other material agreement to which Borrower,
        Guarantor or any Permitted Affiliate is a party, where such noncompliance
        has a
        material adverse effect on the ability of Borrower, Guarantor or any Permitted
        Affiliate to perform their respective obligations under the terms of the
        Loan
        Documents;

      
        
          
          

        

        
          S-68

          
            

          

        

        
          
          

        

      

      (e)  any
        change in Borrower’s or Guarantor’s or any Permitted Affiliate’s name, legal
        structure, jurisdiction of formation, place of business to a state other
        than
        the State of California, or chief executive office to a state other than
        the
        State of California if Borrower or Guarantor has more than one place of
        business;

       

      (f)  any
        actual or threatened condemnation of any portion of any Unencumbered Asset
        Pool
        Property given in writing to Borrower or any Permitted Affiliate, as the
        case
        may be, by any Governmental Authority, or any loss of or substantial damage
        to
        any Unencumbered Asset Pool Property;

       

      (g)  any
        notice of any cancellation, alteration or non-renewal of any insurance coverage
        maintained with respect to any Unencumbered Asset Pool Property;

       

      (h)  any
        written notice received by Borrower from any Governmental Authority that
        any
        Unencumbered Asset Pool Property, or any use activity, operation or maintenance
        thereof or thereon, is not in compliance with any Law, including any
        Environmental Laws, and including notice of (i) any and all enforcement,
        cleanup, removal or other governmental or regulatory actions instituted,
        completed or threatened against Borrower or any Permitted Affiliate or any
        of
        their respective Unencumbered Asset Pool Properties pursuant to any applicable
        Environmental Laws, and (ii) any environmental or similar condition on any
        real property adjoining or in the vicinity of any Unencumbered Asset Pool
        Property of Borrower or any Permitted Affiliate that could reasonably be
        anticipated to cause the applicable Unencumbered Asset Pool Property or any
        part
        thereof to be subject to any restrictions on the ownership, occupancy,
        transferability or use of such Unencumbered Asset Pool Property under any
        Environmental Laws.

       

      6.5  Negative
        Covenants.

       

      6.5.1  Limitations
        on Certain Activities.
        Without
        the prior written consent of the Required Lenders (or Administrative Agent
        at
        the request of
        the Required Lenders), which consent shall not be unreasonably withheld or
        delayed:

       

      (1)  Borrower
        shall not engage
        in
        any business activities that would result in less than 70% of the Gross Asset
        Value being derived from multifamily residential apartments;

       

      (2)  other
        than in the ordinary course of Borrower’s business, Borrower
        shall not lease
        all
        or a substantial part of Borrower’s business or Borrower’s assets;

       

      (3)  neither
        Borrower nor Guarantor shall enter into or invest in any consolidation, merger,
        pool, syndicate or other combination unless Borrower or Guarantor, as
        applicable, is the surviving entity and control of Borrower does not
        change.

       

      (4)  the
        legal
        structure of Borrower shall not change from a limited partnership that is
        an
        operating 

      
        
          
          

        

        
          S-69

          
            

          

        

        
          
          

        

      

      partnership
        whose sole general partner is Guarantor, the legal structure of Guarantor
        shall
        not change from a publicly traded real estate investment trust under the
        provisions of Internal Revenue Code Sections 856 and 857, and the legal
        structure of Borrower and Guarantor shall not change from as a so-called
        up-REIT;

       

      (5)  Borrower’s,
        Guarantor’s or any Permitted Affiliate’s jurisdiction of formation, place of
        business, or chief executive office (if Borrower, Guarantor or such Permitted
        Affiliate has more than one place of business) shall not change except upon
        30
        days’ prior written notice to Administrative Agent;

       

      (6)  Borrower’s
        general partner shall not change from Guarantor; and

       

      (7)  Guarantor
        shall not suffer a change in its executive management such that Keith Guericke
        is no longer chief executive officer, George M. Marcus is no longer chairman
        of
        the board of directors or Michael J. Schall is no longer chief operating
        officer, unless such executive management is replaced by parties reasonably
        acceptable to Administrative Agent within 180 days.

       

      6.5.2  Acquisition
        Down-REITs.
        Borrower and Guarantor shall not in any case:

       

      (1)  form
        additional down-REITs for property acquisitions (an “Acquisition
        down-REIT”)
        unless
        they comply on an on-going basis with each of the following
        conditions:

       

      (i) such
        Acquisition down-REIT is a limited partnership or limited liability company,
        and
        EMC or any wholly owned subsidiary of Borrower or Guarantor shall be the
        sole
        general partner of any such partnership or the sole managing member of such
        limited liability company;

       

      (ii) Guarantor
        and/or Borrower and/or EMC shall have effective management control of each
        Acquisition down-REIT and each property owned by such Acquisition down-REIT;
        and

       

      (iii) limited
        partners or members of such Acquisition down-REIT shall receive only partnership
        units or membership interests in the Acquisition down-REIT and/or cash for
        value
        contributed.

       

      (2)  liquidate
        or dissolve Borrower’s or Guarantor’s business;

       

      (3)  liquidate
        or dissolve the business of any Permitted Affiliate, unless prior to or
        contemporaneously with such liquidation or dissolution, (x) all of the
        Unencumbered Asset Pool Property owned by such Permitted Affiliate is removed
        from the Unencumbered Asset Pool by Borrower pursuant to Section 4.1(b),
        (y) such Unencumbered Asset Pool Property is no longer included in the
        calculation of Availability hereunder, (z) after the removal of such
        Unencumbered Asset Pool Property, the aggregate Outstanding Amount of Loans
        (including all Swing Loans and Bid Loans) plus the Outstanding Amount of
        L/C
        Obligations will be less than or equal to the Availability and no Event of
        Default exists); or

      
        
          
          

        

        
          S-70

          
            

          

        

        
          
          

        

      

      (4)  dispose
        of all or substantially all of Borrower’s or Guarantor’s business or of
        Borrower’s or Guarantor’s assets or the business or assets of any Permitted
        Affiliate (with the exception of a Permitted Affiliate that owns only one
        asset,
        in which case the business or assets of such Permitted Affiliate may disposed
        of
        as long as, prior to or contemporaneously with such disposition, (x) all of
        the Unencumbered Asset Pool Property owned by such Permitted Affiliate is
        removed from the Unencumbered Asset Pool by Borrower pursuant to Section 4.1(b),
        (y) such Unencumbered Asset Pool Property is no longer included in the
        calculation of Availability hereunder, (z) after the removal of such
        Unencumbered Asset Pool Property, the aggregate Outstanding Amount of Loans
        (including all Swing Loans and Bid Loans) plus the Outstanding Amount of
        L/C
        Obligations will be less than or equal to the Availability, the Unencumbered
        Development Property Value will not exceed 20% of the Unencumbered Asset
        Pool
        Value, and no Event of Default exists).

       

      6.6  Type
        of Business; Development Covenants.
        Borrower shall own, manage, finance, lease and/or operate as an owner, developer
        and/or asset manager of multifamily residential properties, and all of
        Borrower’s other business activities and investments shall be incidental
        thereto, with the exception of the investments described in (and limited
        by)
        clause (f) below. Guarantor and its consolidated subsidiaries shall not own
        at any time, on a consolidated basis:

       

      (a) unentitled
        land whose aggregate value exceeds 3% of Gross Asset Value, or entitled and
        unentitled land whose aggregate value exceeds 7.5% of Gross Asset Value;
        or

       

      (b) any
        single development property whose value (at projected total cost) exceeds
        5% of
        Gross Asset Value; or

       

      (c) development
        properties whose aggregate value (at projected total cost) exceeds 25% of
        Gross
        Asset Value; or

       

      (d) Joint
        Venture Investments whose aggregate value exceeds 20% of Gross Asset
        Value;

       

      (e) Capital
        Interests in Acquisition down-REITs the aggregate value of which Capital
        Interests exceeds 5% of Gross Asset Value; or

       

      (f) real
        estate assets (other than multifamily residential properties), or investments
        in, or loans to, companies that own and/or develop real estate (other than
        multifamily residential properties), the aggregate value of which exceeds
        10% of
        Gross Asset Value.

       

      For
        the
        purpose of calculating the development limits contained in Sections 6.6 (a),
        (b)
        and
(c)
        above,
        projects that have not yet attained a stabilized occupancy (which, for this
        purpose only, shall be 90% occupancy) shall be valued at 100% of the projected
        total cost of the project (multiplied, if such project is owned by a Joint
        Venture, by Borrower’s Capital Interest in such Joint Venture). Projects that
        attain 90% occupancy shall no longer be considered for the purpose of
        calculating the development limits contained in Sections 6.6 (a),
        (b)
        and
(c)
        above.

      
        
          
          

        

        
          S-71

          
            

          

        

        
          
          

        

      

      6.7  Performance
        of Acts.
        Upon
        request by Administrative Agent, Borrower, Guarantor and each Permitted
        Affiliate shall perform all acts required of them which may be reasonably
        necessary or advisable to carry out the intent of the Loan
        Documents.

       

      6.8  Keeping
        Guarantor Informed.
        Borrower shall keep Guarantor and each Permitted Affiliate (and any other
        Person
        giving a guaranty to Administrative Agent and Lenders with regard to the
        Loans),
        in its capacity as a guarantor, informed of Borrower’s financial condition and
        business operations and all other circumstances that may affect Borrower’s
        ability to pay or perform its obligations under the Loan Documents. In addition,
        Borrower shall deliver to Guarantor, each Permitted Affiliate and any other
        guarantor all of the financial information required to be furnished to
        Administrative Agent hereunder.

       

      6.9  Maximum
        Total Liabilities to Gross Asset Value.
        (i) Other than during the period of 270 days following an acquisition
        described in clause (ii), Total Liabilities at the end of each calendar quarter
        shall not exceed 60% of Gross Asset Value at such time; and (ii) in the
        event that Guarantor or its consolidated subsidiaries enters into an acquisition
        that is otherwise permitted under this Agreement with an acquisition price
        of
        $200,000,000 or greater, then for a period of up to 270 days following such
        acquisition, Total Liabilities at the end of each calendar quarter following
        such acquisition shall not exceed 65% of Gross Asset Value at such
        time.

       

      6.10  Debt
        Ratios.
        (a) The amount of Unsecured Debt at the end of each calendar quarter shall
        not exceed 60% of the Unencumbered Property Value at such time; (b) the
        Outstanding Amount of all Loans (including all Swing Loans and Bid Loans)
        plus
        the Outstanding Amount of all L/C Obligations shall not exceed 60% of the
        Unencumbered Asset Pool Value; and (c) the amount of Secured Recourse Debt
        at the end of each calendar quarter shall not exceed 10% of the Gross Asset
        Value at such time.

       

      6.11  Fixed
        Charge Coverage Ratio.
        The
        ratio of EBITDA for each calendar quarter divided by the amount of Fixed
        Charges
        for such calendar quarter shall not be less than 1.60:1.0.

       

      6.12  Tangible
        Net Worth.
        The
        Tangible Net Worth of Guarantor and its consolidated subsidiaries at the
        end of
        each calendar quarter must not be less than the sum of (1) $500,000,000
        plus (2) 80% of the net proceeds of all equity issues or sales (including
        common stock, preferred stock, and operating partnership units) that close
        after
        the Closing Date.

       

      6.13  Maximum
        Quarterly Dividends.
        Guarantor shall not declare or pay any distributions or dividends except
        from
        cash flow available for distributions or dividends and earned during the
        immediately preceding fiscal year, and in any event not in excess of 95%
        of
        Funds From Operations on a rolling four calendar quarter basis. The total
        of
        common and preferred stock dividends in any calendar quarter may exceed Funds
        From Operations for the quarter only to the extent necessary for Guarantor
        to
        retain its status as a real estate investment trust under the provisions
        of
        Internal Revenue Code Sections 856 and 857. Notwithstanding the foregoing,
        during the continuance of any Event of Default, aggregate distributions shall
        not exceed the minimum amount that Guarantor must distribute to its shareholders
        in order to qualify as a real estate investment trust under the provisions
        of
        Internal Revenue Code Sections 856 and 857.

      
        
          
          

        

        
          S-72

          
            

          

        

        
          
          

        

      

      6.14  Negative
        Pledge; Limitations on Affiliate Indebtedness.

       

      (a)  Neither
        Borrower nor any
        Permitted Affiliate shall create,
        assume, or allow any Lien (including any judicial lien) on any Unencumbered
        Asset Pool Property, and neither Borrower nor Guarantor shall create, assume
        or
        allow any Lien (including any judicial lien) on Borrower’s or Guarantor’s direct
        or indirect ownership interests in any Permitted Affiliate, except for Permitted
        Liens.

       

      (b)  Neither
        Borrower nor any Permitted Affiliate shall create, assume or allow any negative
        pledge agreement in favor of any other Person affecting or relating to any
        Unencumbered Asset Pool Property. In addition, neither Borrower, Guarantor
        nor
        any Permitted Affiliate (in this context, an “Obligor”)
        shall
        incur any Indebtedness owing to Borrower, Guarantor, any Permitted Affiliate
        or
        any other Affiliate (in this context, a “Creditor”)
        that
        is in excess of $3,000,000 owing by an Obligor to any Creditor or in excess
        of
        $10,000,000, in the aggregate, owing by the Obligors to any one or more
        Creditors, unless such Indebtedness has been subordinated in right of payment
        to
        the full and prior repayment to Administrative Agent and Lenders of the
        Obligations pursuant to a subordination agreement in form and substance
        acceptable to Administrative Agent in its reasonable discretion (an
“Approved
        Subordination Agreement”).

       

      (c)  Borrower
        and each Permitted Affiliate shall have
        the
        right to contest in good faith by appropriate legal or administrative proceeding
        the validity of any prohibited Lien affecting its properties so long as
        (i) no Event of Default exists and is continuing,
        (ii) Borrower
        or such Permitted Affiliate, as applicable, first deposits with
        Administrative Agent a bond or other security satisfactory to Administrative
        Agent in the amount reasonably required by Administrative Agent;
        (iii) Borrower
        or such Permitted Affiliate, as applicable, immediately
        commences its contest of such Lien and
        continuously pursues the contest in good faith and with due diligence;
        (iv) foreclosure of the Lien is stayed; and (v) Borrower or such
        Permitted Affiliate, as applicable, pays any judgment
        rendered
        for the Lien claimant or other third party, unless such judgment has been
        stayed
        as the result of an appeal, within 30 days after the entry of the judgment.
        Borrower or such
        Permitted Affiliate, as applicable, will discharge or elect to contest and
        post
        an appropriate bond or other security within 30 days of
        written demand by Administrative Agent.

       

      6.15  Change
        in Ownership of Borrower or Management of the Unencumbered Asset Pool
        Property.
        Borrower shall not cause, permit or suffer (a) any change of the general
        partner of Borrower, (b) any change in the control of Guarantor (whether by
        tender offer for a majority of the outstanding shares of Guarantor, a merger
        in
        which Guarantor is not the surviving entity, or otherwise), (c) any
        Permitted Affiliate to be less than wholly-owned (directly or indirectly)
        by
        Borrower or Guarantor, as long as any Unencumbered Asset Pool Property owned
        by
        such Permitted Affiliate is included in the Unencumbered Asset Pool and the
        calculation of Availability; or (d) any Person other than Guarantor or an
        Affiliate of Guarantor to manage an Unencumbered Asset Pool Property.
        Notwithstanding the foregoing, a Permitted Affiliate or, subject to the prior
        written consent of the Required Lenders (except in the case of R.A. Snyder
        Properties, Inc., and ConAm Management Corporation, for which no prior written
        consent shall be required), which consent shall not be unreasonably withheld
        or
        delayed, an independent third-party, may manage an Unencumbered Asset Pool
        Property following the addition of such property into the Unencumbered Asset
        Pool pursuant to Section 4.

      
        
          
          

        

        
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      6.16  Books
        and Records.
        Each of
        Guarantor, Borrower and each Permitted Affiliate and each of their respective
        subsidiaries shall maintain adequate books and records (provided
        that,
        with
        respect to the Permitted Affiliates and subsidiaries, such books and records
        shall mean its income and expense statements).

       

      6.17  Audits.
        Borrower, Guarantor
        and each Permitted Affiliate shall allow
        Administrative Agent and its agents to inspect its properties and examine,
        audit
        and make copies of its books and records at any reasonable time upon reasonable
        notice to Borrower. If any of the properties, books or records of Borrower,
        Guarantor or any
        Permitted Affiliate are
        in
        the possession of a third party, Borrower, Guarantor or such Permitted
        Affiliate, as applicable, shall authorize
        that third party to permit Administrative Agent
        or
        its agents to have access to perform inspections or audits and to respond
        to
        Administrative Agent’s requests for information concerning such properties,
        books and records.

       

      6.18  Cooperation.
        Borrower, Guarantor and each Permitted Affiliate shall take any action
        reasonably requested by Administrative Agent to carry out the intent of this
        Agreement.

       

      6.19  ERISA
        Plans.
        Borrower shall give prompt written notice to Administrative Agent of the
        occurrence of any ERISA Event.

       

      6.20  Use
        of
        Proceeds.
        Borrower shall use the proceeds of the Loan only for (a) financing for
        acquisition, development and/or redevelopment of real and personal property,
        (b) letters of credit, (c) working capital in Borrower’s business, and
        (d) other purposes permitted by Borrower’s organizational documents as they
        appear as of the Closing Date, but not for the repurchase of the common stock
        of
        Guarantor.

       

      6.21  Use
        of
        Proceeds - Ineligible Securities.
        Borrower shall not use any proceeds of the Loans, directly or indirectly,
        to
        purchase or carry, or reduce or retire any loan incurred to purchase or carry,
        any “Margin Stock” (within the meaning of Regulation U of the Board of Governors
        of the Federal Reserve System) or to extend credit to others for the purpose
        of
        purchasing or carrying any Margin Stock.

       

      6.22  Existing
        Convertible “Flipper” Loans.
        Within
        25 days prior to Borrower’s conversion (each, a “Conversion”)
        of any
        portion of the existing $122,378,000 of “flipper” loans from a secured to an
        unsecured status, Borrower shall provide Lender with an executed certificate
        of
        compliance (each, a “Certificate
        of Compliance”)
        notifying Lender of such Conversion and containing a covenant that after
        the
        occurrence of any Conversion Borrower shall continue to be in compliance
        with
        all covenants required under the terms of this Agreement.

       

      7.  Representations
        and Warranties.
        When
        Borrower and Guarantor sign this Agreement, and until Administrative Agent
        and
        Lenders are repaid in full, Borrower and Guarantor make the following
        representations and warranties. Each request for an extension of credit
        constitutes a renewed representation and warranty.

      
        
          
          

        

        
          S-74

          
            

          

        

        
          
          

        

      

      7.1  Organization
        of Borrower, Guarantor and each Permitted Affiliate.
        Borrower is a limited partnership duly formed, validly existing and in good
        standing under the laws of California. Guarantor and each Permitted Affiliate
        is
        an entity duly organized, validly existing and in good standing under the
        laws
        of its state of formation or organization.

       

      7.2  Authorization.
        The
        execution and compliance with this Agreement and each Loan Document to which
        Borrower, Guarantor and each Permitted Affiliate is a party are within such
        Person’s powers, have been duly authorized, and do not conflict with any of such
        Person’s organizational or formation papers.

       

      7.3  Enforceable
        Agreement.
        This
        Agreement is a legal, valid and binding agreement of Borrower, enforceable
        against Borrower in accordance with its terms, and it and any Loan Document
        to
        which it, Guarantor or any Permitted Affiliate is a party, when executed
        and
        delivered, will be similarly legal, valid, binding and enforceable, except
        as
        the same may be limited by insolvency, bankruptcy, reorganization, or other
        laws
        relating to or affecting the enforcement of creditors’ rights or by general
        equitable principles.

       

      7.4  Good
        Standing.
        In each
        state in which Borrower, Guarantor and each Permitted Affiliate does business,
        it is properly licensed, in good standing, and, where required, in compliance
        with fictitious name statutes.

       

      7.5  No
        Conflicts.
        Neither
        Borrower, Guarantor, any Permitted Affiliate, nor the Unencumbered Asset
        Pool
        Property, are in violation of, nor do the terms of this Agreement or any
        other
        Loan Document conflict with, any law (including any Environmental Laws),
        regulation or ordinance, any order of any court or governmental entity, any
        organizational documents of Borrower or Guarantor, or any covenant or agreement
        affecting Borrower, Guarantor or any Permitted Affiliate or the Unencumbered
        Asset Pool Property, which has a material adverse effect on Borrower, Guarantor
        or any Permitted Affiliate or the Unencumbered Asset Pool Property.

       

      7.6  Financial
        Information.
        All
        financial information which has been and will be delivered to Administrative
        Agent, including all information
        relating to the financial condition of Borrower, Guarantor, any Permitted
        Affiliate and the
        Unencumbered Asset Pool Property, did as of its date fairly and accurately
        represent the financial condition being reported on. All such information
        was
        and will be prepared in accordance with GAAP, unless otherwise noted. Since
        December 31, 2004, there has been no material adverse change in the
        financial condition of Borrower, Guarantor, any Permitted Affiliate or the
        Unencumbered Asset Pool Property.

       

      7.7  Borrower
        Not a “Foreign Person”.
        Borrower is not a “foreign person” within the meaning of Section 1445(f)(3)
        of the Internal Revenue Code of 1986, as amended from time to time.

       

      7.8  Lawsuits.
        There
        are no lawsuits, actions, tax claims, investigations, proceedings, or other
        disputes, pending or threatened, in any court or before any arbitrator or
        Governmental Authority that purport to affect Borrower, Guarantor, any
        subsidiaries or affiliates of Borrower or Guarantor, any Unencumbered Asset
        Pool
        Property, or any transaction contemplated by this Agreement or any other
        Loan
        Document that will have a material adverse effect on Borrower, Guarantor,
        any
        Unencumbered Asset Pool Property, or any subsidiaries or 

      
        
          
          

        

        
          S-75

          
            

          

        

        
          
          
affiliates
          of Borrower or Guarantor, or any transaction contemplated by this Agreement
          or
          any other Loan Document, or on the ability of Borrower, Guarantor or any
          of
          their subsidiaries or affiliates, to perform their respective obligations
          under
          the Loan Documents.

      

       

      7.9  Permits,
        Franchises.
        Borrower, Guarantor and each Permitted Affiliate possesses all permits,
        memberships, franchises, contracts and licenses required and all trademark
        rights, trade name rights, patent rights and fictitious name rights necessary
        to
        enable it to conduct the business in which it is now engaged.

       

      7.10  Other
        Obligations.
        None of
        Borrower, Guarantor or any Permitted Affiliate is in material default (taking
        into account all applicable cure periods, if any) on any material obligation
        for
        borrowed money, any purchase money obligation or any other material lease,
        commitment, contract, instrument or obligation.

       

      7.11  Income
        Tax Returns.
        Except
        as otherwise disclosed to Administrative Agent in a writing referring to
        this
Section 7.11,
        Borrower has no knowledge of any pending assessments or adjustments of the
        income tax of Borrower, Guarantor or any Permitted Affiliate in an amount
        in
        excess $500,000 for any year, individually or in the aggregate.

       

      7.12  No
        Event of Default.
        There
        is no event which is, or with notice or lapse of time or both would be, an
        Event
        of Default under this Agreement.

       

      7.13  ERISA
        Plans.

       

      (a)  Borrower
        has fulfilled its obligations, if any, under the minimum funding standards
        of
        ERISA and the Code with respect to each Plan and is in compliance in all
        material respects with the presently applicable provisions of ERISA and the
        Code, and has not incurred any liability with respect to any Plan under
        Title IV of ERISA.

       

      (b)  No
        Reportable Event has occurred.

       

      (c)  No
        action
        by Borrower to terminate or withdraw from any Plan has been taken and no
        notice
        of intent to terminate a Plan has been filed under Section 4041 of
        ERISA.

       

      (d)  No
        proceeding has been commenced with respect to a Plan under Section 4042 of
        ERISA, and no event has occurred or condition exists which might constitute
        grounds for the commencement of such a proceeding.

       

      7.14  Location
        of Borrower.
        Borrower’s place of business (or, if Borrower has more than one place of
        business, its chief executive office) is located at the address listed under
        Borrower’s signature on this Agreement or at such other place as to which
        Borrower has notified Administrative Agent in writing.

       

      7.15  No
        Required Third Party/Governmental Approvals.
        No
        approval, consent, exemption, authorization, or other action by, or notice
        to,
        or filing with any third party or any Governmental Authority, is necessary
        or
        required in connection with the execution, delivery or performance of this
        Agreement or any other Loan Document to which Borrower, Guarantor or any
        Permitted Affiliate is a party, or the enforcement of any such agreements
        against Borrower, Guarantor or any Permitted Affiliate.

      
        
          
          

        

        
          S-76

          
            

          

        

        
          
          

        

      

      7.16  Regulated
        Entities.
        Neither
        Borrower nor any Person controlling Borrower is (a) an “Investment Company”
within the meaning of the Investment Company Act of 1940; or (b) subject to
        regulation under the Public Utility Holding Company Act of 1935, the Federal
        Power Act, the Interstate Commerce Act, any state public utilities code,
        or any
        other federal or state statute or regulation limiting its ability to incur
        Indebtedness.

       

      8.  DEFAULT
        AND REMEDIES.

       

      8.1  Events
        of Default.
        Borrower will be in default under this Agreement upon the occurrence of any
        one
        or more of the following events (“Event
        of Default”):

       

      (a)  Borrower
        fails to make any payment due hereunder, or fails to make any payment demanded
        by Administrative Agent under any Loan Document, on the earlier of (i) the
        Maturity Date or (ii) within fifteen days after (x) the date when due
        or (y) if the payment is unscheduled, the date when payment is demanded by
        Administrative Agent; or

       

      (b)  Borrower
        fails to perform or observe any term, covenant or agreement contained in
        (i) any of
        Sections 6.13
        or
6.21;
        or
        (ii) any of Sections 6.1.3,
        6.3, 6.5, 6.14
        or
        6.17
        and does
        not cure that failure within fifteen days after written notice from
        Administrative Agent; or (iii) Section 6.4
        and does
        not cure that failure within fifteen days after Borrower’s Knowledge of such
        failure; or (iv) Section 6.15
        and does
        not cure such failure within fifteen days after the occurrence of such failure;
        or (v) any of Sections 6.9,
        6.10, 6.11 or 6.12
        and does
        not cure that failure within 45 days after the end of the fiscal quarter
        in
        which such Default arose;

       

      (c)  Borrower
        fails to comply with any covenant contained in this Agreement other than
        those
        referred to in clauses (a) and (b), and does not either cure that failure
        within 30 days after written notice from Administrative Agent, or, if the
        default cannot be cured in 30 days, Borrower fails to promptly commence cure
        (in
        any event, within ten days after receipt of such notice), and thereafter
        diligently prosecute such cure to completion, and complete such cure within
        90
        days after receipt of such notice; or

       

      (d)  (i) Borrower,
        any Permitted Affiliate or Guarantor institutes or consents to the institution
        of any Insolvency Proceeding, makes an assignment for the benefit of creditors
        or applies for or consents to the appointment of any receiver, trustee,
        custodian, conservator, liquidator, rehabilitator or similar officer for
        it or
        for all or any material part of its property; (ii) any receiver, trustee,
        custodian, conservator, liquidator, rehabilitator
        or similar officer is appointed without the application or consent of Borrower,
        any Permitted Affiliate or Guarantor and
        the
        appointment continues undischarged or unstayed for 60 calendar days;
        (iii) any Insolvency Proceeding relating to Borrower, any Permitted
        Affiliate or Guarantor or to all or any material part of its property is
        instituted without the consent of such Person and continues undismissed or
        unstayed for 60 calendar days, or an order for relief is entered in any such
        proceeding; (iv) Borrower, any Permitted Affiliate or Guarantor becomes
        unable or admits in writing its inability or fails generally to pay its debts
        as
        they become due, or (b) any writ or warrant of attachment or execution or
        similar process is issued or levied against all or any material part of the
        property of Borrower, any Permitted Affiliate or Guarantor and is not released,
        vacated or fully bonded within 30 days after its issue or levy; or

      
        S-77

      

      
      

      (e)  Borrower,
        any Permitted Affiliate or Guarantor dissolves or liquidates; or

       

      (f)  Any
        representation or warranty made or given in any of the Loan Documents proves
        to
        be false or misleading in any material respect; or

       

      (g)  Guarantor
        or any Permitted Affiliate breaches or fails to comply with any covenant
        contained in this Agreement or any other Loan Document applicable to it,
        other
        than those defaults included within clause (b) above, and does not cure
        that failure within 30 days after written notice from Administrative Agent,
        or,
        if the default cannot be cured in 30 days, Guarantor or such Permitted Affiliate
        fails to
        promptly commence cure (in any event, within ten days after receipt of such
        notice), and thereafter diligently prosecute such cure to completion, and
        complete such cure within 90 days after receipt of such notice; or

       

      (h)  A
        defined
        event of default occurs under any of the Loan Documents; or

       

      (i)  A
        final
        non-appealable judgment or order is entered against Borrower, any Permitted
        Affiliate or Guarantor that materially adversely affects (i) Borrower’s or
        such Permitted Affiliate’s intended use of one or more of the Unencumbered Asset
        Pool Properties (subject to Borrower’s right to remove any Unencumbered Asset
        Pool Property from the Unencumbered Asset Pool pursuant to Section 4.1(b))
        or
        (ii) Borrower’s, any Permitted Affiliate’s or Guarantor’s ability to repay
        the Loan; or

       

      (j)  Borrower,
        Guarantor or any Permitted Affiliate fails, after the expiration of applicable
        cure periods, if any, to perform any obligation under any other agreement
        Borrower has with Administrative Agent or any Lender or any Affiliate of
        Administrative Agent or any Lender; or

       

      (k)  Borrower,
        Guarantor or a Permitted Affiliate defaults (taking into account applicable
        cure
        periods, if any) in connection with any credit such Person has with any holder
        of Indebtedness of such Person, if (1) the default consists of the failure
        to make a payment in excess of $5,000,000 when due, or (2) one or more
        obligations that are recourse to Borrower, Guarantor or a Permitted Affiliate
        whose outstanding principal amount exceeds $15,000,000 in the aggregate have
        been accelerated; or

       

      (l)  There
        is
        a material adverse change in Borrower’s or Guarantor’s financial condition, or
        an event or condition that materially impairs Borrower’s or a Permitted
        Affiliate’s intended use of one or more of the Unencumbered Asset Pool
        Properties (subject to Borrower’s right to remove any Unencumbered Asset Pool
        Property from the Unencumbered Asset Pool pursuant to Section 4.1(b))
        which
        materially impairs Borrower’s or Guarantor’s ability to repay the Loan;
        or

       

      (m)  Guarantor
        shall no longer qualify as a real estate investment trust under the provisions
        of Code Sections 856 and 857; or

      
        
          
          

        

        
          S-78

          
            

          

        

        
          
          

        

      

      (n)  (i) An
        ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
        has resulted or could reasonably be expected to result in liability of Borrower
        under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
        in an aggregate amount in excess of $15,000,000, or (ii) Borrower or any
        ERISA Affiliate fails to pay when due, after the expiration of any applicable
        grace period, any installment payment with respect to its withdrawal liability
        under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
        amount in excess of $15,000,000; or

       

      (o)  Any
        Loan
        Document, at any time after its execution and delivery and for any reason
        other
        than as expressly permitted hereunder or satisfaction in full of all the
        Obligations, ceases to be in full force and effect (unless such Loan Document
        is
        replaced in a manner reasonably satisfactory to Administrative Agent); or
        any of
        Borrower, Guarantor or a Permitted Affiliate or a subsidiary of any of them
        contests in any manner the validity or enforceability of the remedies of
        Administrative Agent, the L/C Issuer or any Lender under any Loan Document;
        or a
        party to a Loan Document (other than any Lender or Administrative Agent)
        denies
        that it has any further liability or obligation under any Loan Document,
        or
        purports to revoke, terminate or rescind any Loan Document.

       

      Notwithstanding
        the foregoing, any event or circumstance described in the foregoing
        clauses (a)-(o) with respect to any Permitted Affiliate shall not
        constitute an Event of Default hereunder as long as, no later than 30 days
        after
        Borrower’s Knowledge of such event or circumstance, (i) all of the
        Unencumbered Asset Pool Property owned by such Permitted Affiliate is removed
        from the Unencumbered Asset Pool by Borrower pursuant to Section 4.1(b),
        (ii) such Unencumbered Asset Pool Property is no longer included in the
        calculation of Availability hereunder, (iii) after the removal of such
        Unencumbered Asset Pool Property, the aggregate Outstanding Amount of Loans
        (including all Swing Loans and Bid Loans) plus the Outstanding Amount of
        L/C
        Obligations will be less than or equal to the Availability, the Unencumbered
        Development Property Value does not exceed 20% of the Unencumbered Asset
        Pool
        Value, and no Event of Default exists.

       

      8.2  Remedies.
        If any
        Event of Default occurs, Administrative Agent shall, at the request of, or
        may,
        with the consent of, the Required Lenders:

       

      8.2.1  Termination
        of Commitment to Lend.
        Declare
        the Commitment of each Lender to make Loans (including Swing Loans) or the
        commitment of the L/C Issuer to issue Letters of Credit to be terminated,
        whereupon such commitment shall forthwith be terminated; provided, however,
        that
        Administrative Agent and the Lenders shall continue to honor any outstanding
        Letter of Credit; and

       

      8.2.2  Acceleration
        of Loans.
        Declare
        the unpaid principal amount of all outstanding Loans, all interest accrued
        and
        unpaid thereon, and all other amounts owing or payable hereunder or under
        any
        other Loan Document to be immediately due and payable, without presentment,
        demand, protest or other notice of any kind, all of which are hereby expressly
        waived by Borrower; and

       

      8.2.3  Security
        for Letters of Credit.
        Require
        that Borrower deposit with Administrative Agent, for the benefit of the Lenders,
        on demand and as cash security for Borrower’s obligations under the Loan
        Documents, Cash Collateral in an amount equal to the 

      
        
          
          

        

        
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aggregate
          undrawn amount of all then outstanding Letters of Credit (and Borrower
          hereby
          grants to Administrative Agent, as administrative agent for the Lenders,
          a
          security interest in any such amount deposited with Administrative Agent
          (and
          any amount deposited with Administrative Agent pursuant to Section 2.9.3(a)),
          all
          earnings thereon and all proceeds thereof, and as to such amounts Administrative
          Agent shall have the rights and remedies of a secured party under the California
          Uniform Commercial Code); provided
          that
          upon the occurrence of any event specified in Section 8.1(d)
          above
          with respect to Borrower or Guarantor, such amounts shall automatically
          become
          due and payable without further act of Administrative Agent or the Lenders;
          and

      

       

      8.2.4  Exercise
        of Rights and Remedies.
        Exercise all rights and remedies available to it under the Loan Documents
        or
        applicable Law; provided,
        however, that upon the occurrence of any event specified in Section 8.1(d)
        above,
        the obligation of each Lender to make Loans and the obligation of the L/C
        Issuer
        to issue Letters of Credit shall automatically terminate, and the unpaid
        principal amount of all outstanding Loans and all interest and other amounts
        as
        aforesaid shall automatically become due and payable without further act
        of
        Administrative Agent or any Lender.

       

      8.3  Application
        of Funds.
        After
        the exercise of remedies provided for in Section 8.2
        (or
        after the Loans have automatically become immediately due and payable and
        the
        undrawn amount of outstanding Letters of Credit have automatically been required
        to be Cash Collateralized as set forth in the proviso to Section 8.2.3),
        any
        amounts received on account of the Obligations shall be applied by
        Administrative Agent in the following order:

       

      First,
        to
        payment of that portion of the Obligations constituting fees, indemnities,
        expenses and other amounts (including legal fees and expenses and amounts
        payable under Sections 2.12,
        6.2,
        and
10.4)
        payable
        to Administrative Agent in its capacity as such;

       

      Second,
        to
        payment of that portion of the Obligations constituting fees, indemnities
        and
        other amounts (other than principal and interest) payable to the Lenders
        (including amounts payable under Sections 2.12,
        3.1, 3.3, 3.4, 6.2,
        and
10.4),
        ratably among them in proportion to the amounts described in this clause
        Second
        are
        payable to them;

       

      Third,
        to
        payment of that portion of the Obligations constituting accrued and unpaid
        interest on the Loans, L/C Borrowings and other Obligations, ratably among
        the
        Lenders in proportion to the respective amounts described in this clause
        Third
        payable
        to them;

       

      Fourth,
        to
        payment of that portion of the Obligations constituting unpaid principal
        of the
        Loans and L/C Borrowings, ratably among the Lenders in proportion to the
        respective amounts described in this clause Fourth
        held by
        them;

       

      Fifth,
        to
        Administrative Agent for the account of the L/C Issuer to Cash Collateralize
        the
        aggregate undrawn amount of Letters of Credit; and

      
        
          
          

        

        
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      Last,
        the
        balance, if any, after all of the Obligations have been indefeasibly paid
        in
        full, to Borrower or as otherwise required by law.

       

      Subject
        to Section 2.6.5,
        amounts
        used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
        pursuant to clause Fifth
        above
        shall be applied to satisfy drawings under such Letters of Credit as they
        occur.
        If any amount remains on deposit as Cash Collateral after all Letters of
        Credit
        have either been fully drawn or expired, such remaining amount shall be applied
        to the other Obligations, if any, in the order set forth above.

       

      9.  ADMINISTRATIVE
        AGENT.

       

      9.1  Appointment
        and Authority.
        Each of
        the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
        to
        act on its behalf as Administrative Agent hereunder and under the other Loan
        Documents and authorizes Administrative Agent to take such actions on its
        behalf
        and to exercise such powers as are delegated to Administrative Agent by the
        terms hereof or thereof, together with such actions and powers as are reasonably
        incidental thereto. The provisions of this Article 9 are solely for the benefit
        of Administrative Agent, the Lenders and the L/C Issuer, and Borrower
        shall not have rights as a third party beneficiary of any of such
        provisions.

       

      9.2  Rights
        as a Lender.
        The
        Person serving as Administrative Agent hereunder shall have the same rights
        and
        powers in its capacity as a Lender as any other Lender and may exercise the
        same
        as though it were not Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
        requires, include the Person serving as Administrative Agent hereunder in
        its
        individual capacity. Such Person and its Affiliates may accept deposits from,
        lend money to, act as the financial advisor or in any other advisory capacity
        for and generally engage in any kind of business with Borrower or any subsidiary
        or other Affiliate thereof as if such Person were not Administrative Agent
        hereunder and without any duty to account therefor to the Lenders.

       

      9.3  Exculpatory
        Provisions.

       

      9.3.1  Limitation
        of Administrative Agent’s Duties.
        Administrative Agent shall not have any duties or obligations except those
        expressly set forth herein and in the other Loan Documents. Without limiting
        the
        generality of the foregoing, Administrative Agent: (a) shall not be subject
        to any fiduciary or other implied duties, regardless of whether a Default
        or
        Event of Default has occurred and is continuing; (b) shall not have any
        duty to take any discretionary action or exercise any discretionary powers,
        except discretionary rights and powers expressly contemplated hereby or by
        the
        other Loan Documents that Administrative Agent is required to exercise as
        directed in writing by the Required Lenders (or such other number or percentage
        of the Lenders as shall be expressly provided for herein or in the other
        Loan
        Documents), provided
        that
        Administrative Agent shall not be required to take any action that, in its
        opinion or the opinion of its counsel, may expose Administrative Agent to
        liability or that is contrary to any Loan Document or applicable law; and
        (c) shall not, except as expressly set forth herein and in the other Loan
        Documents, have any duty to disclose, and shall not be liable for the failure
        to
        disclose, any 

      
        
          
          

        

        
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information
          relating to Borrower or any of its Affiliates that is communicated to or
          obtained by the Person serving as Administrative Agent or any of its Affiliates
          in any capacity.

      

       

      9.3.2  Limitation
        of Administrative Agent’s Liability.
        Administrative Agent shall not be liable to any Lender for any action taken
        or
        not taken by it (i) with the consent or at the request of the Required
        Lenders (or such other number or percentage of the Lenders as shall be
        necessary, or as Administrative Agent shall believe in good faith shall be
        necessary, under the circumstances as provided in Sections 8.2
        and
9.1),
        or
        (ii) in the absence of its own gross negligence or willful misconduct.
        Administrative Agent shall be deemed not to have knowledge of any Default
        or
        Event of Default unless and until notice describing such Default or Event
        of
        Default is given to Administrative Agent by Borrower, a Lender or the L/C
        Issuer.

       

      9.3.3  Limitation
        of Administrative Agent’s Responsibilities.
        Administrative Agent shall not be responsible to any Lender or L/C Issuer
        for,
        or have any duty to ascertain or inquire for the benefit of any Lender or
        L/C
        Issuer into, (i) any statement, warranty or representation made in or in
        connection with this Agreement or any other Loan Document, (ii) the
        contents of any certificate, report or other document delivered hereunder
        or
        thereunder or in connection herewith or therewith, (iii) the performance or
        observance of any of the covenants, agreements or other terms or conditions
        set
        forth herein or therein or the occurrence of any Default, (iv) the
        validity, enforceability, effectiveness or genuineness of this Agreement,
        any
        other Loan Document or any other agreement, instrument or document, or
        (v) the satisfaction of any condition set forth in Article
        5
        or
        elsewhere herein, other than to confirm receipt of items expressly required
        to
        be delivered to Administrative Agent.

       

      9.4  Reliance
        by Administrative Agent.
        Administrative Agent shall be entitled to rely upon, and shall not incur
        any
        liability to any Lender or L/C Issuer for relying upon, any notice, request,
        certificate, consent, statement, instrument, document or other writing
        (including any electronic message, Internet or intranet website posting or
        other
        distribution) believed by it to be genuine and to have been signed, sent
        or
        otherwise authenticated by the proper Person; ; provided, however, that
        notwithstanding any such notice, request or other direction to the contrary,
        in
        all events the Administrative Agent shall direct that the proceeds of a
        Borrowing be deposited in the account of the Borrower designated to
        Administrative Agent on the Closing Date (the “Designated
        Borrower’s Account”).
        Subject to the foregoing sentence, Administrative Agent also may rely upon
        any
        statement made to it orally or by telephone and believed by it to have been
        made
        by the proper Person, and shall not incur any liability for relying thereon.
        In
        determining compliance with any condition hereunder to the making of a Loan,
        or
        the issuance of a Letter of Credit, that by its terms must be fulfilled to
        the
        satisfaction of a Lender or the L/C Issuer, Administrative Agent may presume
        that such condition is satisfactory to such Lender or the L/C Issuer unless
        Administrative Agent shall have received notice to the contrary from such
        Lender
        or the L/C Issuer prior to the making of such Loan or the issuance of such
        Letter of Credit. Administrative Agent may consult with legal counsel (who
        may
        be counsel for Borrower), independent accountants and other experts selected
        by
        it, and shall not be liable for any action taken or not taken by it in
        accordance with the advice of any such counsel, accountants or
        experts.

       

      9.5  Delegation
        of Duties.
        Administrative Agent may perform any and all of its duties and exercise its
        rights and powers hereunder or under any other Loan Document by or through
        any
        one or more sub-agents appointed by Administrative Agent. Administrative
        Agent
        and

      
        
          
          

        

        
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any
          such
          sub-agent may perform any and all of its duties and exercise its rights
          and
          powers by or through their respective Related Parties. The exculpatory
          provisions of this Article shall apply to any such sub-agent and to the
          Related
          Parties of Administrative Agent and any such sub-agent, and shall apply
          to their
          respective activities in connection with the syndication of the credit
          facilities provided for herein as well as activities as Administrative
          Agent.

      

       

      9.6  Resignation
        of Administrative Agent.

       

      9.6.1  Notice
        of Resignation.
        Administrative Agent may at any time give notice of its resignation to the
        Lenders, the L/C Issuer and Borrower. Upon receipt of any such notice of
        resignation, the Required Lenders shall have the right, in consultation with
        Borrower, to appoint a successor, which shall be a bank with an office in
        the
        United States, or an Affiliate of any such bank with an office in the United
        States; provided
        that as
        long as no Event of Default hereunder has occurred and is continuing, Borrower
        shall have the right to consent to such successor, such consent to not be
        unreasonably withheld. If no such successor shall have been so appointed
        by the
        Required Lenders and shall have accepted such appointment within 30 days
        after the retiring Administrative Agent gives notice of its resignation,
        then
        the retiring Administrative Agent may on behalf of the Lenders and the L/C
        Issuer, appoint a successor Administrative Agent meeting the qualifications
        set
        forth above, provided
        that as
        long as no Event of Default hereunder has occurred and is continuing, Borrower
        shall have the right to consent to such successor, such consent to not be
        unreasonably withheld; provided
        further
        that if
        Administrative Agent shall notify Borrower and the Lenders that no qualifying
        Person has accepted such appointment, then such resignation shall nonetheless
        become effective in accordance with such notice and (1) the retiring
        Administrative Agent shall be discharged from its duties and obligations
        hereunder and under the other Loan Documents and (2) all payments,
        communications and determinations provided to be made by, to or through
        Administrative Agent shall instead be made by or to each Lender and the L/C
        Issuer directly, until such time as the Required Lenders appoint a successor
        Administrative Agent as provided for above in this Section. Upon the acceptance
        of a successor’s appointment as Administrative Agent hereunder, such successor
        shall succeed to and become vested with all of the rights, powers, privileges
        and duties of the retiring (or retired) Administrative Agent, and the retiring
        Administrative Agent shall be discharged from all of its duties and obligations
        hereunder or under the other Loan Documents (if not already discharged therefrom
        as provided above in this Section). The fees payable by Borrower to a successor
        Administrative Agent shall be the same as those payable to its predecessor
        unless otherwise agreed in writing between Borrower and such successor. After
        the retiring Administrative Agent’s resignation hereunder and under the other
        Loan Documents, the provisions of this Article and Section 10.4
        shall
        continue in effect for the benefit of such retiring Administrative Agent,
        its
        sub-agents and their respective Related Parties in respect of any actions
        taken
        or omitted to be taken by any of them while the retiring Administrative Agent
        was acting as Administrative Agent.

       

      9.6.2  Resignation
        by Bank of America.
        Any
        resignation by Bank of America as Administrative Agent pursuant to this Section
        shall also constitute its resignation as L/C Issuer and Swing Line Lender.
        Upon
        the acceptance of a successor’s appointment as Administrative Agent hereunder,
        (a) such successor shall succeed to and become vested with all of the
        rights, powers, privileges and duties of the retiring L/C Issuer and Swing
        Line
        Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be
        discharged from all of their 

      
        
          
          

        

        
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respective
          duties and obligations hereunder or under the other Loan Documents, and
          (c) the successor L/C Issuer shall issue letters of credit in substitution
          for the Letters of Credit, if any, outstanding at the time of such succession
          or
          make other arrangements satisfactory to the retiring L/C Issuer to effectively
          assume the obligations of the retiring L/C Issuer with respect to such
          Letters
          of Credit.

      

       

      9.7  Non-Reliance
        on Administrative Agent and Other Lenders.
        Each
        Lender and the L/C Issuer acknowledges that it has, independently and without
        reliance upon Administrative Agent or any other Lender or any of their Related
        Parties and based on such documents and information as it has deemed
        appropriate, made its own credit analysis and decision to enter into this
        Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
        independently and without reliance upon Administrative Agent or any other
        Lender
        or any of their Related Parties and based on such documents and information
        as
        it shall from time to time deem appropriate, continue to make its own decisions
        in taking or not taking action under or based upon this Agreement, any other
        Loan Document or any related agreement or any document furnished hereunder
        or
        thereunder.

       

      9.8  No
        Other Duties, Etc.
        Anything herein to the contrary notwithstanding, none of the Co-Syndication
        Agents, Sole Lead Arranger or the Sole Book Manager listed on the cover page
        hereof shall have any powers, duties or responsibilities under this Agreement
        or
        any of the other Loan Documents, except in its capacity, as applicable, as
        Administrative Agent, a Lender or the L/C Issuer hereunder.

       

      9.9  Administrative
        Agent May File Proofs of Claim.
        In case
        of the pendency of any receivership, insolvency, liquidation, bankruptcy,
        reorganization, arrangement, adjustment, composition or other judicial
        proceeding relative to Borrower, Guarantor or any Permitted Affiliate,
        Administrative Agent (irrespective of whether the principal of any Loan or
        L/C
        Obligation shall then be due and payable as herein expressed or by declaration
        or otherwise and irrespective of whether Administrative Agent shall have
        made
        any demand on Borrower) shall be entitled and empowered, by intervention
        in such
        proceeding or otherwise (a) to file and prove a claim for the whole amount
        of the principal and interest owing and unpaid in respect of the Loans, L/C
        Obligations and all other Obligations that are owing and unpaid and to file
        such
        other documents as may be necessary or advisable in order to have the claims
        of
        the Lenders, the L/C Issuer and Administrative Agent (including any claim
        for
        the reasonable compensation, expenses, disbursements and advances of the
        Lenders, the L/C Issuer and Administrative Agent and their respective agents
        and
        counsel and all other amounts due the Lenders, the L/C Issuer and Administrative
        Agent under Sections 2.12,
        6.2
        and
10.4)
        allowed
        in such judicial proceeding; and (b) to collect and receive any monies or
        other property payable or deliverable on any such claims and to distribute
        the
        same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
        or other similar official in any such judicial proceeding is hereby authorized
        by each Lender and the L/C Issuer to make such payments to Administrative
        Agent
        and, in the event that Administrative Agent shall consent to the making of
        such
        payments directly to the Lenders and the L/C Issuer, to pay to Administrative
        Agent any amount due for the reasonable compensation, expenses, disbursements
        and advances of Administrative Agent and its agents and counsel, and any
        other
        amounts due Administrative Agent under Sections 2.12,
        6.2
        and
10.4.
        

      
        
          
          

        

        
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      Nothing
        contained herein shall be deemed to authorize Administrative Agent to authorize
        or consent to or accept or adopt on behalf of any Lender or the L/C Issuer
        any
        plan of reorganization, arrangement, adjustment or composition affecting
        the
        Obligations or the rights of any Lender or to authorize Administrative Agent
        to
        vote in respect of the claim of any Lender in any such proceeding.

       

      9.10  Release
        of Permitted Affiliate from Payment Guaranty.
        The
        Lenders irrevocably authorize Administrative Agent, at its option and in
        its
        discretion and without the consent of any Lender, to release any Permitted
        Affiliate from its obligations under its Payment Guaranty if such Person
        ceases
        to be an owner of an Unencumbered Asset Pool Property as a result of a
        transaction permitted hereunder. Upon request by Administrative Agent at
        any
        time, the Required Lenders will confirm in writing Administrative Agent’s
        authority to release any Permitted Affiliate from its obligations under its
        Payment Guaranty pursuant to this Section 9.10.

       

      10.  MISCELLANEOUS
        PROVISIONS.

       

      10.1  Amendments
        and Waivers.
        No
        amendment or waiver of any provision of this Agreement or any other Loan
        Document, and no consent with respect to any departure by Borrower, Guarantor
        or
        any Permitted Affiliate therefrom, shall be effective unless the same shall
        be
        in writing and signed by the Required Lenders (or by Administrative Agent
        at the
        written request of the Required Lenders) and, in the case of an amendment,
        by
        Borrower or Guarantor or, if required, a Permitted Affiliate, and acknowledged
        by Administrative Agent, and then any such waiver or consent shall be effective
        only in the specific instance and for the specific purpose for which given;
        provided,
        however, that no such waiver, amendment or consent shall:

       

      (a)  waive
        any
        condition set forth in Section 5.1
        without
        the written consent of each Lender;

       

      (b)  increase
        the aggregate Commitment or increase the Commitment of any Lender without
        the
        written consent of such Lender;

       

      (c)  postpone
        or delay any date fixed by this Agreement or any other Loan Document for
        any
        payment of principal, interest, fees or other amounts due to the Lenders,
        or any
        of them, hereunder or under any other Loan Document without the written consent
        of each Lender directly affected thereby;

       

      (d)  reduce
        the rate of interest or any fees or other amounts payable in connection with
        the
        Loans or L/C Borrowings except as expressly provided in this Agreement without
        the written consent of each Lender directly affected thereby; provided,
        however,
        that
        only the consent of the Required Lenders shall be necessary (i) to amend
        the definition of “Default Rate” or to waive any obligation of Borrower to pay
        interest or Letter of Credit Fees at the Default Rate, or (ii) to amend any
        financial covenant hereunder (or any defined term used therein) even if the
        effect of such amendment would be to reduce the rate of interest on any Loan
        or
        L/C Borrowing or to reduce any fee payable hereunder;

       

      (e)  change
        Section 2.17
        or
Section 8.3
        in a
        manner that would alter the pro rata sharing of payments required thereby
        without the written consent of each Lender;

      
        
          
          

        

        
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      (f)  change
        the voting percentage of the Commitments or of the aggregate unpaid principal
        amount of the Loans that is required for the Lenders, or any of them, to
        take
        any action hereunder (e.g.,
        the
        provisions of this Section 10.1
        or the
        definition of the term “Required Lenders”), without the written consent of each
        Lender;

       

      (g)  amend
        this or any provision requiring consent of all Lenders for action by the
        Lenders
        or Administrative Agent, without the written consent of each Lender;
        or

       

      (h)  discharge
        Borrower, Guarantor or any Permitted Affiliate, or release all or substantially
        all of the collateral securing the Obligations, if any, without the written
        consent of each Lender, except as otherwise may be provided in the Loan
        Documents (including Section 9.10
        hereof,
        which permits the release of a Permitted Affiliate without the consent of
        the
        Lenders under the terms and conditions set forth therein), or except where
        only
        the consent of the Required Lenders is expressly required by any Loan
        Document;

       

      and,
        provided further,
        that
        (i) no amendment, waiver or consent shall, unless in writing and signed by
        the L/C Issuer in addition to the Lenders required above, affect the rights
        or
        duties of the L/C Issuer under this Agreement or any Issuer Document relating
        to
        any Letter of Credit issued or to be issued by it; (ii) no amendment,
        waiver or consent shall, unless in writing and signed by the Swing Line Lender
        in addition to the Lenders required above, affect the rights or duties of
        the
        Swing Line Lender under this Agreement; (iii) no amendment, waiver or
        consent shall, unless in writing and signed by Administrative Agent in addition
        to the Lenders required above, affect the rights or duties of Administrative
        Agent under this Agreement or any other Loan Document; and (iv) the Fee
        Letter may be amended, or rights or privileges thereunder waived, in a writing
        executed only by the parties thereto. Notwithstanding anything to the contrary
        herein, no Defaulting Lender shall have any right to approve or disapprove
        any
        amendment, waiver or consent hereunder, except that the Commitment of such
        Lender may not be increased or extended without the consent of such
        Lender.

       

      10.2  Notices;
        Effectiveness; Electronic Communication.

       

      (a)  Notices
        Generally.
        Except
        in the case of notices and other communications expressly permitted to be
        given
        by telephone (and except as provided in Section 10.2(b)
        below),
        all notices and other communications provided for herein shall be in writing
        and
        shall be delivered by hand or overnight courier service, mailed by certified
        or
        registered mail or sent by facsimile as follows, and all notices and other
        communications expressly permitted hereunder to be given by telephone shall
        be
        made to the applicable telephone number, as follows:

       

      (i)  if
        to
        Borrower, Administrative Agent, the L/C Issuer or the Swing Line Lender,
        to the
        address, facsimile number, electronic mail address or telephone number specified
        for such Person on Schedule 1.2;
        and

       

      (ii)  if
        to any
        other Lender, to the address, facsimile number, electronic mail address or
        telephone number specified in its Administrative Questionnaire.

       

      Notices
        sent by hand or overnight courier service, or mailed by certified or registered
        mail, shall be deemed to have been given when received; notices sent by
        facsimile shall be deemed to have been given when sent (except that, if not
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      recipient,
        shall be deemed to have been given at the opening of business on the next
        business day for the recipient). Notices delivered through electronic
        communications to the extent provided in Section 10.2(b)
        below,
        shall be effective as provided in such Section 10.2(b).

       

      (b)  Electronic
        Communications.
        (i) Notices and other communications to the Lenders and the L/C Issuer
        hereunder may be delivered or furnished by electronic communication (including
        e-mail and Internet or intranet websites) pursuant to procedures approved
        by
        Administrative Agent, provided
        that the
        foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant
        to
Article
        2
        if such
        Lender or the L/C Issuer, as applicable, has notified Administrative Agent
        that
        it is incapable of receiving notices under such Article by electronic
        communication. Administrative Agent or Borrower may, in its discretion, agree
        to
        accept notices and other communications to it hereunder by electronic
        communications pursuant to procedures approved by it, provided
        that
        approval of such procedures may be limited to particular notices or
        communications, and (ii) unless Administrative Agent otherwise prescribes,
        (y) notices and other communications sent to an e-mail address shall be
        deemed received upon the sender’s receipt of an acknowledgement from the
        intended recipient (such as by the “return receipt requested” function, as
        available, return e-mail or other written acknowledgement), provided
        that if
        such notice or other communication is not sent during the normal business
        hours
        of the recipient, such notice or communication shall be deemed to have been
        sent
        at the opening of business on the next business day for the recipient, and
        (z) notices or communications posted to an Internet or intranet website
        shall be deemed received upon the deemed receipt by the intended recipient
        at
        its e-mail address as described in the foregoing clause (y) of notification
        that such notice or communication is available and identifying the website
        address therefor.

       

      (c)  The
        Platform.
        THE
        PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
        BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
        OR
        THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
        IN OR
        OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
        IMPLIED
        OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
        PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
        VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
        THE
        BORROWER MATERIALS OR THE PLATFORM. In no event shall Administrative Agent
        or
        any of its Related Parties (collectively, the “Agent
        Parties”)
        have
        any liability to Borrower, Guarantor, any Lender, the L/C Issuer or any other
        Person for losses, claims, damages, liabilities or expenses of any kind (whether
        in tort, contract or otherwise) arising out of Borrower’s, Guarantor’s or
        Administrative Agent’s transmission of Borrower Materials through the Internet,
        except to the extent that such losses, claims, damages, liabilities or expenses
        are determined by a court of competent jurisdiction by a final and nonappealable
        judgment to have resulted from the gross negligence or willful misconduct
        of
        such Agent Party; provided,
        however,
        that in
        no event shall any Agent Party have any liability to Borrower, Guarantor,
        any
        Lender, the L/C Issuer or any other Person for indirect, special, incidental,
        consequential or punitive damages (as opposed to direct or actual
        damages).

      
        
          
          

        

        
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      (d)  Change
        of Address, Etc.
        Each of
        Borrower, Administrative Agent, the L/C Issuer and the Swing Line Lender
        may
        change its address, facsimile or telephone number for notices and other
        communications hereunder by notice to the other parties hereto. Each other
        Lender may change its address, facsimile or telephone number for notices
        and
        other communications hereunder by notice to Borrower, Administrative Agent,
        the
        L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to
        notify
        Administrative Agent from time to time to ensure that Administrative Agent
        has
        on record (i) an effective address, contact name, telephone number,
        facsimile number and electronic mail address to which notices and other
        communications may be sent and (ii) accurate wire instructions for such
        Lender.

       

      (e)  Reliance
        by Administrative Agent, L/C Issuer and Lenders. Administrative
        Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon
        any
        notices (including telephonic Notices of Borrowing) purportedly given by
        or on
        behalf of Borrower by a Person identifying himself or herself as a Responsible
        Officer, even if (i) such notices were not made in a manner specified
        herein, were incomplete or were not preceded or followed by any other form
        of
        notice specified herein, or (ii) the terms thereof, as understood by the
        recipient, varied from any confirmation thereof. Borrower shall indemnify
        Administrative Agent, the L/C Issuer, each Lender and the Related Parties
        of
        each of them from all losses, costs, expenses and liabilities resulting from
        the
        reliance by such Person on each notice purportedly given by or on behalf
        of
        Borrower by a Person identifying himself or herself as a Responsible Officer.
        All telephonic notices to and other telephonic communications with
        Administrative Agent may be recorded by Administrative Agent, and each of
        the
        parties hereto hereby consents to such recording.

       

      10.3  No
        Waiver; Cumulative Remedies.
        No
        failure by any Lender, the L/C Issuer or Administrative Agent to exercise,
        and
        no delay by any such Person in exercising, any right, remedy, power or privilege
        hereunder shall operate as a waiver thereof; nor shall any single or partial
        exercise of any right, remedy, power or privilege hereunder preclude any
        other
        or further exercise thereof or the exercise of any other right, remedy, power
        or
        privilege. The rights, remedies, powers and privileges herein provided are
        cumulative and not exclusive of any rights, remedies, powers and privileges
        provided by law.

       

      10.4  Costs
        and Expenses; Indemnity; Waiver of Consequential Damages, Etc.

       

      (a)  Costs
        and Expenses.
        Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
        Administrative Agent and its Affiliates (including the reasonable fees, charges
        and disbursements of counsel for Administrative Agent), in connection with
        the
        syndication of the credit facilities provided for herein, the preparation,
        negotiation, execution and delivery of this Agreement and the other Loan
        Documents or any amendments, modifications or waivers of the provisions hereof
        or thereof (whether or not the transactions contemplated hereby or thereby
        shall
        be consummated), and (ii) all reasonable out-of-pocket expenses incurred by
        Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
        and disbursements of any counsel for Administrative Agent, any Lender or
        the L/C
        Issuer),
        and
        shall pay all fees and time charges for attorneys who may be employees of
        Administrative Agent, any Lender or the L/C Issuer, in connection with the
        enforcement or protection of its rights (A) in connection with this
        Agreement
        and the other Loan Documents, including 

      
        
          
          

        

        
          S-88

          
            

          

        

        
          
          

        

      

      its
        rights under this Section, or (B) in connection with the Loans made or
        Letters of Credit issued hereunder, including all such out-of-pocket expenses
        incurred during any workout, restructuring or negotiations in respect of
        such
        Loans or Letters of Credit.

       

      (b)  Indemnification
        by the Borrower.
        Borrower shall indemnify Administrative Agent (and any sub-agent thereof),
        each
        Lender and the L/C Issuer, and each Related Party of any of the foregoing
        Persons (each such Person being called an “Indemnitee”)
        against, and hold each Indemnitee harmless from, any and all losses, claims,
        damages, liabilities and related expenses (including the fees, charges and
        disbursements of any counsel for any Indemnitee),
        and
        shall indemnify and hold harmless each Indemnitee from all fees and time
        charges
        and disbursements for attorneys who may be employees of any
        Indemnitee,
        incurred by any Indemnitee or asserted against any Indemnitee by any third
        party
        or by Borrower, Guarantor or any Permitted Affiliate arising out of, in
        connection with, or as a result of (i) the execution or delivery of this
        Agreement, any other Loan Document or any agreement or instrument contemplated
        hereby or thereby, the performance by the parties hereto of their respective
        obligations hereunder or thereunder, the consummation of the transactions
        contemplated hereby or thereby, or, in the case of Administrative Agent (and
        any
        sub-agent thereof) and its Related Parties only, the administration of this
        Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit
        or the use or proposed use of the proceeds therefrom (including any refusal
        by
        the L/C Issuer to honor a demand for payment under a Letter of Credit if
        the
        documents presented in connection with such demand do not strictly comply
        with
        the terms of such Letter of Credit), (iii) any actual or alleged presence
        or release of Hazardous Substances on or from any property owned or operated
        by
        Borrower or any of its subsidiaries, or any liability under any Environmental
        Laws related in any way to Borrower or any of its subsidiaries, or (iv) any
        actual or prospective claim, litigation, investigation or proceeding relating
        to
        any of the foregoing, whether based on contract, tort or any other theory,
        whether brought by a third party or by Borrower, Guarantor or any Permitted
        Affiliate, and regardless of whether any Indemnitee is a party thereto;
provided
        that
        such indemnity shall not, as to any Indemnitee, be available to the extent
        that
        such losses, claims, damages, liabilities or related expenses (x) are
        determined by a court of competent jurisdiction by final and nonappealable
        judgment to have resulted from the gross negligence or willful misconduct
        of
        such Indemnitee or (y) result from a claim brought by Borrower, Guarantor
        or any Permitted Affiliate against an Indemnitee for breach in bad faith
        of such
        Indemnitee’s obligations hereunder or under any other Loan Document, if
        Borrower, Guarantor or such Permitted Affiliate has obtained a final and
        nonappealable judgment in its favor on such claim as determined by a court
        of
        competent jurisdiction.

       

      (c)  Reimbursement
        by Lenders.
        To the
        extent that Borrower for any reason fails to indefeasibly pay any amount
        required under Sections 10.4(a)
        or
(b)
        to be
        paid by it to Administrative Agent (or any sub-agent thereof), the L/C Issuer
        or
        any Related Party of any of the foregoing, each Lender severally agrees to
        pay
        to Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
        Party, as the case may be, such Lender’s Pro Rata Share (determined as of the
        time that the applicable unreimbursed expense or indemnity payment is sought)
        of
        such unpaid amount, provided
        that the
        unreimbursed expense or indemnified loss, claim, damage, liability or related
        expense, as the case may be, was incurred by or asserted against Administrative
        Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
        or
        against any Related Party of any of the foregoing acting for Administrative
        Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.
        The obligations of the Lenders under this Section 10.4(c)
        are
        subject to the provisions of Section 2.16.2.

      
        
          
          

        

        
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      (d)  Payments.
        All
        amounts due under this Section shall be payable not later than fifteen days
        after demand therefor.

       

      (e)  Survival.
        The
        agreements in this Section shall survive the resignation of Administrative
        Agent
and
        the
        L/C Issuer,
        the
        replacement of any Lender, the termination of the Commitments and the repayment,
        satisfaction or discharge of all the other Obligations.

       

      10.5  Successors
        and Assigns.

       

      (a)  Successors
        and Assigns Generally.
        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 Administrative Agent and 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 Section 10.5(b),
        (ii) by way of participation in accordance with the provisions of
Section 10.5(d),
        or
        (iii) by way of pledge
        or
        assignment of a security interest subject to the restrictions of Section 10.5(f).
        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 Section 10.5(d)
        and,
        to the extent expressly contemplated hereby, the Related Parties of each
        of
        Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
        right, remedy or claim under or by reason of this Agreement.

       

      (b)  Assignment
        by Lenders.
        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 Commitment and the Loans (including for purposes of this clause (a),
        participations in L/C Obligations and in Swing Loans) at the time owing to
        it;
provided
        that
        (i) except in the case of an assignment of the entire remaining amount of
        the assigning Lender's Commitment and the Loans 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 Commitment (which
        for
        this purpose includes Loans 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 unless
        each of Administrative Agent and, so long as no Event of Default has occurred
        and is continuing, Borrower otherwise consents (each such consent not to
        be
        unreasonably withheld or delayed), provided
        that
        concurrent assignments to members of an Assignee Group and concurrent
        assignments from members of an Assignee Group to a single Eligible Assignee
        (or
        to an Eligible Assignee and members of its Assignee Group) will be treated
        as a
        single assignment for purposes of determining whether such minimum amount
        has
        been met; (ii) 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 Loans or the Commitment assigned, except
        that
        this clause (ii) shall not apply to rights in respect of Bid Loans or Swing
        Loans; (iii) any assignment of a Commitment must be approved by
        Administrative Agent, the L/C Issuer and the Swing Line Lender (which consent
        will not be unreasonably withheld or delayed) unless the Person that is the
        proposed assignee is itself a Lender (whether or not the proposed assignee
        would
        otherwise qualify as an Eligible Assignee); and (iv) the parties to each
        assignment shall execute and deliver to Administrative Agent an Assignment
        and
        Assumption, 

      
        
          
          

        

        
          S-90

          
            

          

        

        
          
          
together
          with a processing and recordation fee in the amount, if any, required as
          set
          forth in Schedule 1.5,
          and the
          Eligible Assignee, if it shall not be a Lender, shall deliver to Administrative
          Agent an Administrative Questionnaire. Subject to acceptance and recording
          thereof by Administrative Agent pursuant to clause (b) of this Section,
          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 3.1,
          3.3,
          3.4,
          and
10.4
          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
          Revolving Note and Bid Note to the assignee Lender and, in such event,
          the
          assigning Lender shall return the original Revolving Note and Bid Note
          for
          cancellation and, if the assignment is for a portion of the assigning Lender’s
          Commitment, replacement by a new Revolving Note issued by Borrower and
          evidencing the assigning Lender’s reduced Commitment. Any assignment or transfer
          by a Lender of rights or obligations under this Agreement that does not
          comply
          with this Section shall be treated for purposes of this Agreement as a
          sale by
          such Lender of a participation in such rights and obligations in accordance
          with
          clause (d) of this Section. Notwithstanding the foregoing, assignment of
          the obligations of the L/C Issuer after the resignation of Bank of America
          as
          L/C Issuer, or any other successor thereafter acting as L/C Issuer, shall
          be
          governed by Section 10.5(h)
          hereof.

      

       

      (c)  Register.
        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 Commitments of, and principal amounts of
        the
        Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
        from time to time (the “Register”).
        The
        entries in the Register shall be conclusive, and Borrower, Administrative
        Agent
        and the 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 each of Borrower and the L/C Issuer at any
        reasonable time and from time to time upon reasonable prior notice. In addition,
        at any time that a request for a consent for a material or substantive change
        to
        the Loan Documents is pending, any Lender may request and receive from
        Administrative Agent a copy of the Register.

       

      (d)  Participations.
        Any
        Lender may at any time, without the consent of, or notice to, Borrower or
        Administrative Agent, 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 Commitment and/or the Loans (including
        such
        Lender’s participations in L/C Obligations and/or Swing Loans) owing to it);
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 and (iii) Borrower,
        Guarantor, each Permitted Affiliate, Administrative Agent and the other Lenders
        shall 

      
        
          
          

        

        
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continue
          to deal solely and directly with such Lender in connection with such Lender's
          rights and obligations under this Agreement. 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 clauses (a)-(g)
          of
Section 10.1
          that
          directly affects such Participant. Subject to clause (e) of this Section,
          Borrower agrees that each Participant shall be entitled to the benefits
          of
Sections 3.1,
          3.3,
          3.4,
          and
10.4 to
          the
          same extent as if it were a Lender and had acquired its interest by assignment
          pursuant to clause (b) of this Section.

      

       

      (e)  Limitations
        on Participant Rights.
        A
        Participant shall not be entitled to receive any greater payment under
Section 3.1
        or
3.3 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 3.1
        unless
        Borrower is notified of the participation sold to such Participant and such
        Participant agrees, for the benefit of Borrower, to comply with Sections 3.1.5
        and
3.3.3
        as
        though it were a Lender.

       

      (f)  Certain
        Pledges.
        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, if
        any) 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)  Electronic
        Execution of Assignments.
        The
        words “execution,” “signed,” “signature,” and words of like import in any
        Assignment and Assumption shall be deemed to include electronic signatures
        or
        the keeping of records in electronic form, each of which shall be of the
        same
        legal effect, validity or enforceability as a manually executed signature
        or the
        use of a paper-based recordkeeping system, as the case may be, to the extent
        and
        as provided for in any applicable law, including the Federal Electronic
        Signatures in Global and National Commerce Act, the New York State Electronic
        Signatures and Records Act, or any other similar state laws based on the
        Uniform
        Electronic Transactions Act.

       

      (h)  Resignation
        as L/C Issuer or Swing Line Lender after Assignment.
        Notwithstanding anything to the contrary contained herein, if at any time
        Bank
        of America assigns all of its Commitment and Loans pursuant to clause (a)
        above, Bank of America may, (i) upon 30 days’ notice to Borrower and the
        Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to Borrower,
        resign as Swing Line Lender. In the event of any such resignation as L/C
        Issuer
        or Swing Line Lender, Borrower shall be entitled to appoint from among the
        Lenders a successor L/C Issuer or Swing Line Lender hereunder and, if such
        designated appointee agrees to act as successor L/C Issuer or Swing Line
        Lender
        hereunder, Lenders hereby agree to accept such appointment; provided,
        however,
        that no
        failure by Borrower to appoint any such successor shall affect the resignation
        of Bank of America as L/C Issuer or Swing Line Lender, as the case may be.
        In
        addition, if Bank of America fails to issue a Letter of Credit under
Section 2.1.2(b)
        hereof
        because the issuance of such Letter of Credit would violate any 

      
        
          
          

        

        
          S-92

          
            

          

        

        
          
          
of
          its
          policies, Bank of America will, upon the request of Borrower, resign as
          L/C
          Issuer hereunder and Borrower shall be entitled to appoint from among the
          Lenders a successor L/C Issuer hereunder and, if such designated appointee
          agrees to act as successor L/C Issuer hereunder, Lenders hereby agree to
          accept
          such appointment; provided,
          however,
          that no
          failure by Borrower to appoint any such successor shall affect the resignation
          of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer,
          it
          shall retain all the rights and obligations of the L/C Issuer hereunder
          with
          respect to all Letters of Credit outstanding as of the effective date of
          its
          resignation as L/C Issuer and all L/C Obligations with respect thereto
          (including the right to require the Lenders to make Reference Rate Committed
          Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.6.1).
          If
          Bank of America resigns as Swing Line Lender, it shall retain all the rights
          of
          the Swing Line Lender provided for hereunder with respect to Swing Loans
          made by
          it and outstanding as of the effective date of such resignation, including
          the
          right to require the Lenders to make Reference Rate Committed Loans or
          fund risk
          participations in outstanding Swing Loans pursuant to Section 2.2.5.
          Upon
          the appointment of a successor L/C Issuer and/or Swing Line Lender,
          (a) such successor shall succeed to and become vested with all of the
          rights, powers, privileges and duties of the retiring L/C Issuer or Swing
          Line
          Lender, as the case may be, and (b) the successor L/C Issuer shall issue
          letters of credit in substitution for the Letters of Credit, if any, outstanding
          at the time of such succession or make other arrangements satisfactory
          to Bank
          of America to effectively assume the obligations of Bank of America with
          respect
          to such Letters of Credit.

      

       

      10.6  Confidentiality.
        Each of
        Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
        confidentiality of the Information (as defined below), except that Information
        may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
        representatives (it being understood that the Persons to whom such disclosure
        is
        made will be informed of the confidential nature of such Information and
        instructed to keep such Information confidential), (b) to the extent
        requested by any regulatory authority purporting to have jurisdiction over
        it
        (including any self-regulatory authority, such as the National Association
        of
        Insurance Commissioners), (c) to the extent required by applicable laws or
        regulations or by any subpoena or similar legal process, (d) to any other
        party hereto, (e) in connection with the exercise of any remedies hereunder
        or under any other Loan Document or any action or proceeding relating to
        this
        Agreement or any other Loan Document or the enforcement of rights hereunder
        or
        thereunder, (f) subject to an agreement containing provisions substantially
        the same as those of this Section, to (i) any assignee of or Participant
        in, or any prospective assignee of or Participant in, any of its rights or
        obligations under this Agreement or (ii) any actual or prospective
        counterparty (or its advisors) to any swap or derivative transaction relating
        to
        Borrower and its obligations, (g) with the consent of Borrower or
        (h) to the extent such Information (x) becomes publicly available
        other than as a result of a breach of this Section or (y) becomes available
        to Administrative Agent, any Lender, the L/C Issuer or any of their respective
        Affiliates on a nonconfidential basis from a source other than
        Borrower.

       

      For
        purposes of this Section, “Information”
means
        all information received from Borrower or any subsidiary thereof relating
        to
        Borrower or any subsidiary thereof or any of their respective businesses,
        other
        than any such information that is available to Administrative Agent, any
        Lender
        or the L/C Issuer on a nonconfidential basis prior to disclosure by Borrower
        or
        any subsidiary thereof, provided
        that, in


      
        
          
          

        

        
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the
          case
          of information received from Borrower or any subsidiary thereof after the
          date
          hereof, such information is clearly identified at the time of delivery
          as
          confidential. Any Person required to maintain the confidentiality of Information
          as provided in this Section shall be considered to have complied with its
          obligation to do so if such Person has exercised the same degree of care
          to
          maintain the confidentiality of such Information as such Person would accord
          to
          its own confidential information.

      

       

      Each
        of
        Administrative Agent, the Lenders and the L/C Issuer acknowledges that
        (a) the Information may include material non-public information concerning
        Borrower or a subsidiary thereof, as the case may be, (b) it has developed
        compliance procedures regarding the use of material non-public information
        and
        (c) it will handle such material non-public information in accordance with
        applicable Law, including Federal and state securities Laws.

       

      10.7  Right
        of Setoff.
        If an
        Event of Default shall have occurred and be continuing, each Lender and the
        L/C
        Issuer is hereby authorized at any time and from time to time, to the fullest
        extent permitted by applicable law, to set off and apply any and all deposits
        (general or special, time or demand, provisional or final, in whatever currency)
        at any time held and other obligations (in whatever currency) at any time
        owing
        by such Lender or the L/C Issuer to or for the credit or the account of Borrower
        against any and all of the obligations of Borrower now or hereafter existing
        under this Agreement or any other Loan Document to such Lender or the L/C
        Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
        have
        made any demand under this Agreement or any other Loan Document and although
        such obligations of Borrower may
        be
        contingent or unmatured or are owed to a branch or office of such Lender
        or the
        L/C Issuer different from the branch or office holding such deposit or obligated
        on such indebtedness. The rights of each Lender and the L/C Issuer under
        this
        Section are in addition to other rights and remedies (including other rights
        of
        setoff) that such Lender, the L/C Issuer or their respective Affiliates may
        have. Each Lender and the L/C Issuer agrees to notify Borrower and
        Administrative Agent promptly after any such setoff and application,
provided
        that the
        failure to give such notice shall not affect the validity of such setoff
        and
        application.

       

      10.8  No
        Third Parties Benefited.
        This
        Agreement is made and entered into for the sole protection and benefit of
        the
        parties signing this Agreement and their successors and assigns. No trust
        is
        created by this Agreement and no other persons or entities shall have any
        right
        of action under this Agreement or any right to the Loan funds.

       

      10.9  Payments
        Set Aside.
        To the
        extent that any payment by or on behalf of Borrower, Guarantor or any Permitted
        Affiliate is made to Administrative Agent, the L/C Issuer or any Lender,
        or
        Administrative Agent, the L/C Issuer or any Lender exercises its right of
        setoff, and such payment or the proceeds of such setoff or any part thereof
        is
        subsequently invalidated, declared to be fraudulent or preferential, set
        aside
        or required (including pursuant to any settlement entered into by Administrative
        Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a
        trustee, receiver or any other party, in connection with any Insolvency
        Proceeding or otherwise, then (a) to the extent of such recovery, the
        obligation or part thereof originally intended to be satisfied shall be revived
        and continued in full force and effect as if such payment had not been made
        or
        such setoff had not occurred, and (b) each Lender and the L/C Issuer
        severally agrees to pay to Administrative Agent upon demand its applicable
        share
        (without duplication) of any amount so recovered from or repaid by
        Administrative Agent, plus interest thereon from the date of such demand
        to the
        date such payment is made at a rate per annum equal to the Federal Funds
        

      
        
          
          

        

        
          S-94

          
            

          

        

        
          
          
Rate
          from
          time to time in effect. The obligations of the Lenders and the L/C Issuer
          under
          clause (b) of the preceding sentence shall survive the payment in full of
          the Obligations and the termination of this Agreement.

      

       

      10.10  Counterparts;
        Integration; Effectiveness.
        This
        Agreement may be executed in counterparts (and by different parties hereto
        in
        different counterparts), each of which shall constitute an original, but
        all of
        which when taken together shall constitute a single contract. This Agreement
        and
        the other Loan Documents constitute the entire contract among the parties
        relating to the subject matter hereof and supersede any and all previous
        agreements and understandings, oral or written, relating to the subject matter
        hereof. This Agreement shall become effective when it shall have been executed
        by Administrative Agent and when Administrative Agent shall have received
        counterparts hereof that, when taken together, bear the signatures of each
        of
        the other parties hereto. Delivery of an executed counterpart of a signature
        page of this Agreement by telecopy shall be effective as delivery of a manually
        executed counterpart of this Agreement.

       

      10.11  Survival
        of Representations and Warranties.
        All
        representations and warranties made hereunder and in any other Loan Document
        or
        other document delivered pursuant hereto or thereto or in connection herewith
        or
        therewith shall survive the execution and delivery hereof and thereof. Such
        representations and warranties have been or will be relied upon by
        Administrative Agent and each Lender, regardless of any investigation made
        by
        Administrative Agent or any Lender or on their behalf and notwithstanding
        that
        Administrative Agent or any Lender may have had notice or knowledge of any
        Default or Event of Default at the time of any credit extension, and shall
        continue in full force and effect as long as any Loan or any other Obligation
        hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
        remain outstanding.

       

      10.12  Severability.
        If any
        provision of this Agreement or the other Loan Documents is held to be illegal,
        invalid or unenforceable, (a) the legality, validity and enforceability of
        the remaining provisions of this Agreement and the other Loan Documents shall
        not be affected or impaired thereby and (b) the parties shall endeavor in
        good faith negotiations to replace the illegal, invalid or unenforceable
        provisions with valid provisions the economic effect of which comes as close
        as
        possible to that of the illegal, invalid or unenforceable provisions. The
        invalidity of a provision in a particular jurisdiction shall not invalidate
        or
        render unenforceable such provision in any other jurisdiction.

       

      10.13  Replacement
        of Lenders.
        If any
        Lender requests compensation under Section 3.4,
        or if
        the Borrower is required to pay any additional amount to any Lender or any
        Governmental Authority for the account of any Lender pursuant to Section 3.1
        or
Section 3.3,
        or if
        any Lender is a Defaulting Lender, then the Borrower may, at its sole expense
        and effort, upon notice to such Lender and the Administrative Agent, require
        such Lender to assign and delegate, without recourse (in accordance with
        and
        subject to the restrictions contained in, and consents required by, Section 10.5),
        all of
        its interests, rights and obligations under this Agreement and the related
        Loan
        Documents to an assignee that shall assume such obligations (which assignee
        may
        be another Lender, if a Lender accepts such assignment), provided
        that:

      
        
          
          

        

        
          S-95

          
            

          

        

        
          
          

        

      

      (a)  the
        Borrower shall have paid to the Administrative Agent the assignment fee
        specified in Section 10.5(b);

       

      (b)  such
        Lender shall have received payment of an amount equal to the outstanding
        principal of its Loans and L/C Advances, accrued interest thereon, accrued
        fees
        and all other amounts payable to it hereunder and under the other Loan Documents
        (including any amounts under Section 3.4)
        from
        the assignee (to the extent of such outstanding principal and accrued interest
        and fees) or the Borrower (in the case of all other amounts);

       

      (c)  in
        the
        case of any such assignment resulting from a claim for compensation under
        Section 3.3
        or
        payments required to be made pursuant to Section 3.1,
        such
        assignment will result in a reduction in such compensation or payments
        thereafter; and

       

      (d)  such
        assignment does not conflict with applicable Laws.

       

      (e)  A
        Lender
        shall not be required to make any such assignment or delegation if, prior
        thereto, as a result of a waiver by such Lender or otherwise, the circumstances
        entitling the Borrower to require such assignment and delegation cease to
        apply.

       

      10.14  Governing
        Law; Jurisdiction; Etc.

       

      (a)  GOVERNING
        LAW.
        THIS
        AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
        LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE
        CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING
        EFFECT
        TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
        ANY
        JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
        RIGHTS AND DUTIES OF THE PARTIES.

       

      (b)  SUBMISSION
        TO JURISDICTION.
        THE
        BORROWER AND THE ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY
        SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
        THE
        COURTS OF THE STATE OF CALIFORNIA
        SITTING
        IN SAN
        FRANCISCO
        COUNTY
        AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN
        DISTRICT OF CALIFORNIA,
        AND ANY
        APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
        OF OR
        RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
        OR
        ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
        UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
        PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA
        STATE
        COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
        COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
        ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
        JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
        LAW.

      
        
          
          

        

        
          S-96

          
            

          

        

        
          
          
NOTHING
          IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
          THAT THE
          ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
          BRING
          ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
          AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION
          WHERE
          THE BORROWER OR ITS PROPERTIES ARE LOCATED.

      

       

      (c)  WAIVER
        OF VENUE.
        THE
        BORROWER AND THE ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY
        WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
        THAT IT
        MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
        ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN
        ANY
        COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
        HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
        LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
        OR
        PROCEEDING IN ANY SUCH COURT.

       

      (d)  SERVICE
        OF PROCESS.
        EACH
        PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
        FOR NOTICES IN SECTION 10.2(a).
        NOTHING
        IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS
        IN
        ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

       

      10.15  Waiver
        of Jury Trial.
        EACH
        PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
        APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
        DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
        OTHER
        LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
        BASED
        ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
        THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
        EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
        LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
        IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
        AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
        CERTIFICATIONS IN THIS SECTION.

       

      10.16  Judicial
        Reference.
        If any
        action or proceeding by or against any party hereto in connection with any
        of
        the transactions contemplated by this Agreement or any other Loan Document
        is
        filed in a forum in which predispute waivers of the right to trial by jury
        are
        invalid under applicable law, (a) the court shall, and is hereby directed
        to, make a general reference pursuant to California Code of Civil Procedure
        Section 638 (or similar applicable law) to a referee (who shall be a single
        active or retired judge) to hear and determine all of the issues in such
        action
        or proceeding (whether of fact or of law) and to report a statement of decision,
        provided that at the option of any party to such proceeding, any such issues
        pertaining to a “provisional remedy” (or similar term) as defined in California
        Code of Civil Procedure Section 1281.8 (or similar applicable law) shall be
        heard and determined by the court, and (b) the prevailing party. or the
        non-dismissing party in the event of a voluntary dismissal by the party
        instituting the action, shall be entitled to the full amount of all fees
        and
        expenses of any referee appointed in such action or proceeding.

      
        S-97

      

      
      

      10.17  USA
        PATRIOT Act Notice.
        Each
        Lender that is subject to the Act (as hereinafter defined) and Administrative
        Agent (for itself and not on behalf of any Lender) hereby notifies Borrower
        that
        pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
        107-56
        (signed into law October 26, 2001)) (the “Act”),
        it is
        required to obtain, verify and record information that identifies Borrower,
        which information includes the name and address of Borrower and other
        information that will allow such Lender or Administrative Agent, as applicable,
        to identify Borrower in accordance with the Act.

       

      10.18  Time
        of the Essence.
        Time is
        of the essence of the Loan Documents.

       

      10.19  No
        Fiduciary Relationship.
        In
        connection with all aspects of each transaction contemplated by the Loan
        Documents, Borrower, Guarantor and each Permitted Affiliate acknowledges
        and
        agrees that: (i) the Loan Documents and any related arranging or other
        services described in any of the Loan Documents (or in any commitment letter
        by
        Bank of America, the Arranger or any affiliate thereof) is an arm’s-length
        commercial transaction between Borrower and its affiliates, on the one hand,
        and
        the Arranger, on the other hand, and Borrower, Guarantor, each Permitted
        Affiliate and their respective affiliates are capable of evaluating and
        understanding and understand and accept the terms, risks and conditions of
        the
        transactions contemplated by the Loan Documents; (ii) in connection with
        the process leading to such transaction, Bank of America and the Arranger
        each
        is and has been acting solely as a principal and is not the financial advisor,
        agent or fiduciary, for Borrower, Guarantor, any Permitted Affiliate or any
        of
        their respective affiliates, stockholders, creditors or employees or any
        other
        party; (iii) neither Bank of America nor the Arranger has assumed or will
        assume an advisory, agency or fiduciary responsibility in Borrower’s,
        Guarantor’s, any Permitted Affiliate’s or any of their respective affiliates’
favor with respect to any of the transactions contemplated by the Loan Documents
        or the process leading thereto (irrespective of whether Bank of America or
        the
        Arranger has advised or is currently advising any such Person or its affiliates
        on other matters) and neither Bank of America nor the Arranger has any
        obligation to Borrower, Guarantor, any Permitted Affiliate or any of their
        respective affiliates with respect to the transactions contemplated by the
        Loan
        Documents except those obligations expressly set forth herein and therein;
        (iv) Bank of America and the Arranger and their respective affiliates may
        be engaged in a broad range of transactions that involve interests that differ
        from those of Borrower, Guarantor, the Permitted Affiliates and their respective
        affiliates and Bank of America and the Arranger have no obligation to disclose
        any of such interests by virtue of any advisory, agency or fiduciary
        relationship; and (v) Bank of America and the Arranger have not provided
        any legal, accounting, regulatory or tax advice with respect to any of the
        transactions contemplated by the Loan Documents and Borrower, Guarantor,
        any
        Permitted Affiliate and their respective affiliates have consulted their
        own
        legal, accounting, regulatory and tax advisors to the extent they have deemed
        appropriate. Borrower, Guarantor and each Permitted Affiliate hereby waive
        and
        release, to the fullest extent permitted by law, any claims that it may have
        against Bank of America and the Arranger with respect to any breach or alleged
        breach of agency or fiduciary duty relating to the transactions contemplated
        by
        the Loan Documents.

      
        
          
          

        

        
          S-98

          
            

          

        

        
          
          

        

      

      10.20  Amendment
        and Restatement.
        This
        Agreement amends and restates the Existing Agreement in full.

       

      [Remainder
        of page intentionally left blank]

      
 

      
        
          S-99

        

        
          
          

          
            

          

        

        
          
          

        

      

      IN
        WITNESS WHEREOF, Borrower and the other parties hereto have executed this
        Agreement as of the date first above written.

       

      


      ESSEX
        PORTFOLIO, L.P.,

      a
        California limited partnership

      


      By:   ESSEX
        PROPERTY TRUST, INC.,

                   
        a
        Maryland corporation, its General Partner

      


      By:     /s/
        Jordan E. Ritter 

         
Jordan
        E.
        Ritter

       Senior
        Vice President

      


      


      925
        East
        Meadow Drive

      Palo
        Alto, CA 94303

      Attn: Mark
        J.
        Mikl (facsimile: (650) 843-1514)

                
Jordan
        E.
        Ritter (facsimile: (650) 858-1372)

      Internet
        Website: www.essexpropertytrust.com

    

     

     

     

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    



    BANK
      OF AMERICA, N.A.,

    as
      Administrative Agent

    


    By:     /s/
      Kathleen Carry 

        Kathleen
      Carry

        
Vice
      President

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    



    BANK
      OF AMERICA, N.A.,

    as
      L/C
      Issuer, Swing Line Lender and

    Lender

    


    By:     /s/
      James
      P. Johnson 

        James
      P.
      Johnson

        
Managing
      Director

    


     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    UNION
      BANK OF CALIFORNIA, N.A.,

    as
      Lender

    


    By:     /s/
      Edward C. Thompson 

        Edward
      C.
      Thompson

        
Assistant
      Vice President

    


    


     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    COMERICA
      BANK,

    as
      Lender

    


    By:     /s/
      Casey
      L. Ostrander 

        
Casey
      L.
      Ostrander

          
      Vice President

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    KEYBANK
      NATIONAL ASSOCIATION,

    as
      Lender

    


    By:     /s/
      Scott
      Childs

       
Scott
      Childs

        
Vice
      President

    


     

     

     

     

     

     

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    PNC
      BANK, NATIONAL ASSOCIATION,

    as
      Lender

    


    By:     /s/
      Karen
      J. Kennedy 

        Karen
      J.
      Kennedy

        
Vice
      President

    


    
 

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    CHEVY
      CHASE BANK, F.S.B.,

    as
      Lender

    


    By:     /s/
      Marie
      Nwofor 

        Marie
      Nwofor

        
Assistant
      Vice President

    


     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    JPMORGAN
      CHASE BANK, N.A.,

    as
      Lender

    


    By:     /s/
      Susan
      M. Tate 

        Susan
      M.
      Tate

        
Vice
      President

    


     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    CONSENT
      OF GUARANTOR

     

    Essex
      Property Trust, Inc., a Maryland corporation, consents to the foregoing Fourth
      Amended and Restated Revolving Credit Agreement, makes the representations
      set
      forth in Article
      7
      that
      apply to Guarantor and agrees to be bound by the covenants of Articles 6
      and
10
      that
      apply to Guarantor and reaffirms its obligations under the Third Amended and
      Restated Payment Guaranty, dated the date of this Agreement.

     

    Dated
      as
      of March 24, 2006           
      ESSEX
      PROPERTY TRUST, INC.,

    a
      Maryland corporation, as Guarantor

    


    By:         
      /s/
      Jordan E. Ritter 

      
      Jordan E. Ritter

      
      Senior Vice President

    


    925
      East
      Meadow Drive

    Palo
      Alto, CA 94303

    Attn.:
      Mark J. Mikl and Jordan
      E.
      Ritter

    


     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    CONSENT
      OF PERMITTED AFFILIATES

     

    Each
      of
      the undersigned, as “Permitted Affiliates” under the foregoing Credit Agreement,
      consents to the foregoing Fourth Amended and Restated Revolving Credit
      Agreement, makes the representations set forth in Article
      7
      that
      apply to such Permitted Affiliate, and agrees to be bound by the covenants
      of
Articles
      4, 6
      and
10
      that
      apply to such Permitted Affiliate and reaffirms its obligations under its Second
      Amended and Restated Payment Guaranty, dated the date of this
      Agreement.

     

    Dated
      as
      of March 24, 2006

    


    PERMITTED
      AFFILIATES:

    


    JMS
      ACQUISITION LLC, a Delaware limited liability company

     

    By:       
      Essex
      Portfolio, L.P.,

         
      a California limited partnership,

         
      its Sole Member

     

      By:         
      Essex
      Property Trust, Inc.,

      a
      Maryland
      corporation,

      its
      General
      Partner

     

      By:    /s/
      Jordan E. Ritter

        
      Jordan E. Ritter

        
      Senior Vice President

     

    JAYSAC,
      LTD., Texas limited partnership

     

    By: Jaysac
      GP
      Corp., a Delaware corporation,

    its
      General Partner

     

      By:    /s/
      Jordan E. Ritter

       
      Jordan E. Ritter

       
      Senior Vice President

     

    JAYSAC
      GP
      CORP., a Delaware corporation

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
                                ESSEX
        BRIDLE TRAILS,
        L.P., a California limited partnership

    

     

    By: Essex
      Management Corporation, a California  

           corporation,

          
its
      General Partner

     

    By:      /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    ESSEX
      BRISTOL PARTNERS, L.P., a California limited partnership

    By:
      Essex
      Management Corporation, a California

    corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

    


    


    ESSEX
      BUNKER HILL, L.P., a California limited partnership

    By: Essex
      Bunker Hill Corporation,

    a
      California corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    ESSEX
      COLUMBUS LLC, a Delaware limited liability company

    By: Essex
      Columbus, Inc.,

    a
      California corporation,

    its
      Managing Member

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ESSEX
      LORRAINE LLC, a Delaware limited liability company

    By: Essex
      Lorraine, Inc.,

    a
      California corporation,

    its
      Managing Member

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    ESSEX
      MAPLE LEAF, L.P., a California limited partnership

    By: Essex
      Management Corporation,

    a
      California corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    ESSEX
      MARINA CITY CLUB, L.P., a California limited partnership

    By: Essex
      MCC, LLC,

    a
      Delaware limited liability company,

    its
      General Partner

     

    By:
       Essex
      Portfolio, L.P.,

    a
      California limited partnership,

    its
      Sole
      Member

     

    By: Essex
      Property Trust, Inc.,

    a
      Maryland corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
                                ESSEX
        MEADOWOOD,
        L.P., a California limited partnership

    

    By: Essex
      Meadowood Corporation,

    a
      California corporation, its General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

    


    


    ESSEX
      PARK BOULEVARD, LLC, a Delaware limited liability company

    By: Essex
      Portfolio, L.P.,

    a
      California limited partnership,

    its
      Sole
      Member

     

    By: Essex
      Property Trust, Inc.,

    a
      Maryland corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

                
      Jordan
      E.
      Ritter

                
      Senior
      Vice President

     

    ESSEX
      SPRING LAKE, L.P., a California limited partnership

    By: Essex
      Management Corporation,

    a
      California corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    ESSEX
      TRACY DEVELOPMENT, INC.,

    a
      California corporation

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    JACKSON
      SCHOOL VILLAGE LIMITED PARTNERSHIP, a California limited
      partnership

    By: Essex
      Portfolio, L.P.,

    a
      California limited partnership,

    its
      Sole
      Member

     

    By:         
      Essex
      Property Trust, Inc.,

    a
      Maryland corporation,

    its
      General Partner

     

    By:   /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

     

    NEWPORT
      BEACH NORTH LLC, a Delaware limited liability company


    By: Newport
      Beach North, Inc.,

    a
      Delaware corporation,

    its
      Managing Member

     

    By:     /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President


    


    PARK
      HILL
      LLC, a Washington limited liability company

    By: Essex
      Portfolio, L.P.,

    a
      California limited partnership,

    its
      Sole
      Member

    


    By:        
      Essex
      Property Trust, Inc.,

    a
      Maryland corporation,

    its
      General Partner

     

    By:    /s/
      Jordan E. Ritter

    Jordan
      E.
      Ritter

    Senior
      Vice President

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      EXHIBIT
        A-1

      


      UNENCUMBERED
        STABILIZED ASSET POOL PROPERTIES

      


      AS
        OF MARCH 24, 2006

      


      
        	
                Part
                  A:

              	
                Currently
                  Existing Properties:

              


      

       

      
        	
                PROPERTY
                  NAME

              	
                NAME
                  OF OWNER

              	
                #
                  OF UNITS

              	
                LOCATION

              
	
                Marina
                  Cove #

              	
                Essex
                  Portfolio, L.P.

              	
                292

              	
                Santa
                  Clara, CA

              
	
                Bristol
                  Commons

              	
                Essex
                  Bristol Partners L.P

              	
                188

              	
                Sunnyvale,
                  CA

              
	
                Foothill
                  Gardens

              	
                Essex
                  Portfolio, L.P.

              	
                132

              	
                San
                  Ramon, CA

              
	
                Twin
                  Creeks

              	
                Essex
                  Portfolio, L.P.

              	
                44

              	
                San
                  Ramon, CA

              
	
                Marina
                  City Club #

              	
                Essex
                  Marina City Club, L.P.

              	
                101

              	
                Marina
                  Del Rey, CA

              
	
                Mirabella
                  (Marina View)

              	
                Essex
                  Portfolio, L.P.

              	
                188

              	
                Marina
                  Del Rey, CA

              
	
                Monterra
                  del Mar (Windsor Terrace)

              	
                Essex
                  Portfolio, L.P.

              	
                123

              	
                Pasadena,
                  CA

              
	
                Avondale
                  at Warner Center

              	
                Essex
                  Portfolio, L.P.

              	
                446

              	
                Woodland
                  Hills, CA

              
	
                Lofts
                  at Pinehurst, The (Villa Scandia)

              	
                Essex
                  Portfolio, L.P.

              	
                118

              	
                Ventura,
                  CA

              
	
                Alpine
                  Country

              	
                JMS
                  Acquisition LLC

              	
                108

              	
                Alpine,
                  CA

              
	
                Cambridge

              	
                JMS
                  Acquisition LLC

              	
                40

              	
                Chula
                  Vista, CA

              
	
                Woodlawn
                  Colonial

              	
                JMS
                  Acquisition LLC

              	
                159

              	
                Chula
                  Vista, CA

              
	
                Mesa
                  Village

              	
                JMS
                  Acquisition LLC

              	
                133

              	
                Claremont,
                  CA

              
	
                Tierra
                  del Sol/Norte

              	
                JMS
                  Acquisition LLC

              	
                156

              	
                El
                  Cajon, CA

              
	
                Grand
                  Regency

              	
                JMS
                  Acquisition LLC

              	
                60

              	
                Escondido,
                  CA

              
	
                Country
                  Villas

              	
                JMS
                  Acquisition LLC

              	
                180

              	
                Oceanside,
                  CA

              
	
                Emerald
                  Palms

              	
                JMS
                  Acquisition LLC

              	
                152

              	
                San
                  Diego, CA

              
	
                Vista
                  Capri - North

              	
                JMS
                  Acquisition LLC

              	
                106

              	
                San
                  Diego, CA

              
	
                Carlton
                  Heights

              	
                JMS
                  Acquisition LLC

              	
                70

              	
                Santee,
                  CA

              
	
                Shadow
                  Point

              	
                JMS
                  Acquisition LLC

              	
                172

              	
                Spring
                  Valley, CA

              
	
                Salmon
                  Run at Perry Creek

              	
                Essex
                  Portfolio, L.P.

              	
                132

              	
                Bothell,
                  WA

              
	
                Laurels
                  at Mill Creek

              	
                Essex
                  Portfolio, L.P.

              	
                164

              	
                Mill
                  Creek, WA

              
	
                Linden
                  Square

              	
                Essex
                  Portfolio, L.P.

              	
                183

              	
                Seattle,
                  WA

              
	
                Meadows
                  @ Cascade Park

              	
                Essex
                  Portfolio, L.P.

              	
                198

              	
                Vancouver,
                  WA

              
	
                Village
                  @ Cascade Park

              	
                Essex
                  Portfolio, L.P.

              	
                192

              	
                Vancouver,
                  WA

              
	
                St.
                  Cloud Apartments

              	
                Jaysac,
                  Ltd.

              	
                302

              	
                Houston,
                  TX

              
	
                TOTAL:

              	
                 

              	
                4139

              	
                 

              


      

      


      
        	
                #

              	
                Properties
                  subject to a financeable ground lease; provided, however, as to
                  Marina
                  Cove, only 1 parcel is subject to such a ground
                  lease.

              


      


      
        
          
          

        

        
          A(1)-1

          
            

          

        

        
          
          

        

      


      
        	
                Part
                  B:

              	
                Properties
                  Added Since the Closing Date of the Existing Credit
                  Agreement:

              


      

      



      
        	
                PROPERTY
                  NAME

              	
                NAME
                  OF OWNER

              	
                #
                  OF UNITS

              	
                LOCATION

              
	
                Jackson
                  School Village*

              	
                Jackson
                  School Village Limited Partnership

              	
                200

              	
                Hillsboro,
                  OR

              
	
                Bunker
                  Hill*

              	
                Essex
                  Bunker Hill, L.P.

              	
                456

              	
                Los
                  Angeles, CA

              
	
                Spring
                  Lake*

              	
                Essex
                  Spring Lake, L.P.

              	
                69

              	
                Seattle,
                  WA

              
	
                Maple
                  Leaf*

              	
                Essex
                  Maple Leaf, L.P.

              	
                48

              	
                Seattle,
                  WA

              
	
                Meadowood*1

              	
                Essex
                  Meadowood, L.P.

              	
                320

              	
                Simi
                  Valley, CA

              
	
                Columbus

                (aka
                  Hampton Court)

              	
                Essex
                  Columbus LLC

              	
                83

              	
                Glendale,
                  CA

              
	
                Bridle
                  Trails*

              	
                Essex
                  Bridle Trails, L.P.

              	
                92

              	
                Kirkland,
                  WA

              
	
                Lorraine*

                (aka
                  Hampton Place)

              	
                Essex
                  Lorraine LLC

              	
                132

              	
                Glendale,
                  CA

              
	
                Park
                  Hill

              	
                Park
                  Hill LLC

              	
                245

              	
                Issaquah,
                  WA

              
	
                Mission
                  Hills

              	
                Essex
                  Portfolio, L.P.

              	
                282

              	
                Oceanside,
                  CA

              
	
                Mountain
                  View

              	
                Essex
                  Portfolio, L.P.

              	
                106

              	
                Camarillo,
                  CA

              
	
                Pinehurst
                  #

              	
                Essex
                  Portfolio, L.P.

              	
                28

              	
                Ventura,
                  CA

              
	
                Woodside
                  Village*

              	
                Newport
                  Beach North LLC

              	
                145

              	
                Ventura,
                  CA

              
	
                Fairway

                (aka
                  Fairway at Big Canyon) #

              	
                Essex
                  Portfolio, L.P.

              	
                74

              	
                Newport
                  Beach, CA

              
	
                Landmark

              	
                Essex
                  Portfolio, L.P.

              	
                285

              	
                Hillsboro,
                  OR

              
	
                Wilshire
                  Promenade

              	
                Essex
                  Portfolio, L.P.

              	
                149

              	
                Fullerton,
                  CA

              
	
                Cedar
                  Terrace

              	
                JMS
                  Acquisition LLC

              	
                180

              	
                Bellevue,
                  WA

              
	
                Marbella

              	
                Essex
                  Portfolio, L.P.

              	
                60

              	
                Los
                  Angeles, CA

              
	
                TOTAL:

              	
                 

              	
                2954

              	
                 

              


      

      


      
        	
                *

              	
                Properties
                  owned at least 99% by Borrower or a Permitted
                  Affiliates

              


      

      
        	
                #

              	
                Properties
                  subject to a financeable ground
                  lease

              


      

      
      

       

      _________________________ 

      
        	
                1

              	
                Meadowood
                  will be added as a Unencumbered Stabilized Asset Pool Property
                  as of
                  February ___, 2006.

              


      


      
        
          
          

        

        
          A(1)-2

          
            

          

        

        
          
          

        

      

       

      EXHIBIT
        A-2

       

      UNENCUMBERED
        WORK IN PROCESS PROPERTIES

       

      AS
        OF MARCH 24, 2006

       

      
        	
                PROPERTY
                  NAME

              	
                NAME
                  OF OWNER 

              	
                LOCATION
                  

              
	
                Moorpark

              	
                Essex
                  Portfolio, L.P.

              	
                Moorpark,
                  CA

              
	
                Tracy

              	
                Essex
                  Tracy Development, Inc.

              	
                Tracy,
                  CA

              
	
                Park
                  Blvd

              	
                Essex
                  Park Boulevard, LLC

              	
                Palo
                  Alto, CA

              
	
                Grand
                  Ave.

              	
                Essex
                  Park Boulevard, LLC

              	
                Oakland,
                  CA

              


      

      

        
          
            
            

          

          
            A(2)-1

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        B

      


      FORM
        OF NOTICE OF COMMITTED BORROWING OR
        CONVERSION/CONTINUATION

      


      Date:__________,
        ____

      


      
        	
                To:

              	
                Bank
                  of America, N.A., as Administrative
                  Agent

              


      

      


      Ladies
        and Gentlemen:

      


      Reference
        is made to that certain Fourth Amended and Restated Revolving Credit Agreement
        dated as of March 24, 2006, among Essex Portfolio L.P., a California limited
        partnership (“Borrower”),
        the
        financial institutions from time to time party thereto (the “Lenders”),
        and
        Bank of America, N.A., individually as a Lender and as administrative agent
        (in
        such capacity, “Administrative
        Agent”)
        and as
        Swing Line Lender and as L/C Issuer (as amended, restated, extended,
        supplemented or otherwise modified in writing from time to time, the
“Agreement”;
        the
        terms defined therein being used herein as therein defined).

      


      The
        undersigned hereby requests (select one):

      


      
        	 	
                [
                  ]

              	
                A
                  Borrowing of Committed Loans

              


      

      
        	 	
                [
                  ]

              	
                A
                  Borrowing of Swing Loans

              


      

      
        	 	
                [
                  ]

              	
                A
                  Conversion or Continuation of Committed
                  Loans

              


      

      
        	 	
                [
                  ]

              	
                Issuance
                  of a Letter of Credit (Letter of Credit Application
                  enclosed)

              


      

      


      Borrower’s
        new Availability under the Agreement $__________.

      


      
        	
                1.

              	
                On
                  __________ (a Business Day).

              


      

      


      
        	
                2.

              	
                In
                  the amount of $ __________.

              


      

      


      
        	
                3.

              	
                Comprised
                  of [type of credit requested]:

              


      

      
        	 	
                [
                  ]

              	
                Swing
                  Loan

              


      

      
        	 	
                [
                  ]

              	
                Reference
                  Rate Committed Loan

              


      

      
        	 	
                [
                  ]

              	
                LIBOR
                  Committed Loan

              


      

      
        	 	
                [
                  ]

              	
                Letter
                  of Credit

              


      

      


      
        	
                4.

              	
                If
                  applicable: with an Interest Period of _________
                  months.

              


      

      


      The
        foregoing request complies with the requirements of [Section 2.3
        (for a
        Borrowing of Committed Loans and Issuance of Letters of Credit)] [Section
        2.7
        (for a
        conversion/continuation of Committed Loans)] of the Agreement. The undersigned
        hereby certifies that the following

       

      
        
          
          

        

        
          B-1

          
            

          

        

        
          
          

        

      

       

      statements
        are true on the date hereof, and will be true on the above date, before and
        after giving effect to the application of the proceeds therefrom:

      


      (a)    After
        giving effect to the requested Borrowing or Letter of Credit, the Outstanding
        Amount of Loans (including all Swing Loans and Bid Loans) plus the Outstanding
        Amount of L/C Obligations shall not exceed the Availability, the aggregate
        outstanding amount of the Swing Loans shall not exceed the Swing Line
        Availability, and the aggregate outstanding amount of Bid Loans shall not
        exceed
        the Bid Loan Sublimit.

      


      (b)    Borrower
        and Guarantor, and any Subsidiaries or affiliates whose financial results
        are
        consolidated with those of Borrower and Guarantor for reporting purposes,
        are in
        compliance with all of the material covenants and financial covenants in
        the
        Agreement.

      


      (c)    All
        of
        the representations and warranties contained in the Agreement and the other
        Loan
        Documents are true and correct as of the date hereof and shall be true and
        correct on the date of the Borrowing or the issuance of the requested Letter
        of
        Credit, both before and after giving effect to such Borrowing or issuance
        of the
        requested Letter of Credit; provided,
        however, that the representations and warranties set forth in the Agreement
        regarding financial statements shall be deemed to be made with respect to
        the
        financial statements most recently delivered to Administrative Agent pursuant
        to
        the Agreement.

      


      (d)    No
        Default or Event of Default has occurred and is continuing on the date hereof
        or
        after giving effect to the requested extension of credit.

      


      (e)    The
        proceeds of the Borrowing, or the purpose of the Letter of Credit, are only
        as
        permitted by the Agreement.

      


      (f)    No
        act,
        omission, change or event which would have a material adverse effect on Borrower
        has occurred since the date of the Agreement.

      


      (g)    Enclosed
        are the documents and information requested by Lender as a condition to the
        requested Borrowing or the issuance of the Letter of Credit.**

       

      
        	
                Dated
                  as of _____________, 200__

              	 	
                ESSEX
                  PORTFOLIO, L.P.,

              	 
	 	 	
                a
                  California limited partnership

              	 
	 	 	 	 	 
	 	 	
                By:

              	
                Essex
                  Property Trust, Inc.,
                  a
                    Maryland corporation,

                  
                    its
                      General Partner

                     

                     

                  

                

              
	 	 	 	
                By:

              	 
	 
	 
	 	 	 	
                Name:

              	 
	 	 	 	
                Title:

              	 


      

      


      
        	
                **

              	
                Pursuant
                  to Section 9.4 of the Credit Agreement, the proceeds of a Borrowing
                  must
                  be sent to the Designated Account.

              


      

      

        
          
            
            

          

          
            B-2

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        C

      


      FORM
        OF LETTER OF CREDIT APPLICATION

      


      See
        Attached



      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      [See
        sf-2035657]

      

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        D-1

      


      SUPPLEMENTAL
        SIGNATURE PAGE

      


      (EXISTING
        CO-LENDER)

      


      
        	 	
                Re:

              	
                Fourth
                  Amended and Restated Revolving Credit Agreement (the “Credit
                  Agreement”),
                  dated as of March 24, 2006, among Essex Portfolio, L.P., the several
                  financial institutions from time to time party thereto (each a
                  “Lender”
                  and collectively, the “Lenders”),
                  and Bank of America, N.A., individually as a Lender and as administrative
                  agent for the Lenders (in such capacity, the “Administrative
                  Agent”)
                  and as Swing Line Lender and as L/C Issuer. Capitalized terms used
                  below
                  and not otherwise defined shall have the meanings given such terms
                  in the
                  Credit Agreement.

              


      

      


      Pursuant
        to Section 2.14
        of the
        Credit Agreement, the undersigned agrees to increase its Commitment to
        $_____________ (and accordingly increase the Maximum Commitment Amount to
        $_____________), which represents a revised Pro Rata Share of ___________%
        of
        the combined Commitments of all the Lenders, effective as of _________________,
        20___ (the “Effective
        Date”).
        The
        undersigned further agrees to continue to be bound by all of the terms and
        conditions of the Credit Agreement.

       

      
        	 
	 	 
	
                By

              	 
	 	 
	 	 
	 	
                [Printed
                  Name and Title]

              


      


      
        
          
          

        

        
          D-1-1

          
            

          

        

        
          
          

        

      


      ACKNOWLEDGED
        AND APPROVED:

      


      We
        hereby
        consent to and approve the foregoing supplement to the Credit Agreement,
        and
        acknowledge and agree that as of the Effective Date the Maximum Commitment
        Amount is increased to $_____________, and the Commitment of _______________
        _____________________, is increased to $_____________. We further agree that
        the
        foregoing supplement to the Credit Agreement, and the amendments effected
        thereby, shall not alter, diminish or otherwise affect any obligations under
        the
        Credit Agreement or any other Loan Document except as expressly set forth
        above.
        This acknowledgment and approval may be executed in any number of counterparts,
        each of which shall constitute an original and all of which, taken together,
        shall constitute a single agreement.

      


      Date:_____________,
        20___

      


      “Borrower”

      


      ESSEX
        PORTFOLIO, L.P.,


      a
        California limited partnership

       

      
        	
                By:

              	
                ESSEX
                  PROPERTY TRUST, INC., 
                  a
                    Maryland corporation

                

              
	 	
                By:
                  

              	
                 

              
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      “Administrative
        Agent”

      


      BANK
        OF
        AMERICA, N.A.,


      as
        Administrative Agent

       

      
        	
                By:
                  

              	
                 

              
	
                 

              	
                Kathleen
                  Carry

              
	
                 

              	
                Vice
                  President

              


      

       

      “Guarantor”
        

       

      
        	
                ESSEX
                  PROPERTY TRUST, INC.,


                a
                  Maryland corporation

              
	 
	
                By:

              	
                 

              
	
                Name:

              	
                 

              
	
                Title:

              	
                 

              


      

      

        
          
            
            

          

          
            D-1-2

            
              

            

          

          
            
            

          

        

“Permitted
        Affiliates”:

      


      JMS
        ACQUISITION LLC, a Delaware limited liability company

      


      
        	
                By:

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 
	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 
	 	 	
                By:
                  

              	 
	 	 	
                Name:

              	 
	 	 	
                Title:

              	 


      

      


      
        	
                JAYSAC,
                  LTD., Texas limited partnership

              
	 
	
                By:

              	
                Jaysac
                  GP Corp., a Delaware corporation, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                JAYSAC
                  GP CORP., a Delaware corporation

              
	 	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      

      


      
        	
                ESSEX
                  BRIDLE TRAILS, L.P., a California 

                limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      


      
        
          
          

        

        
          D-1-3

          
            

          

        

        
          
          

        

      

       

      
        	
                ESSEX
                  BRISTOL PARTNERS, L.P., 
a California limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                ESSEX
                  BUNKER HILL, L.P., 
a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Bunker Hill Corporation, 
a California corporation, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                ESSEX
                  COLUMBUS LLC, 
a Delaware limited liability company

              
	 
	
                By:

              	
                Essex
                  Columbus, Inc., 
a California corporation, 
its Managing
                  Member

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        
          
          

        

        
          D-1-4

          
            

          

        

        
          
          

        

         

      

      
        	
                ESSEX
                  LORRAINE LLC, 
a Delaware limited liability company

              
	
                 

              
	
                By:

              	
                Essex
                  Lorraine, Inc., 
a California corporation, 
its Managing
                  Member

              
	 	 
	
                 

              	
                By:
                  

              	
                 

              
	
                 

              	
                Name:

              	 
	
                 

              	
                Title:

              	 


      

      


      
        	
                ESSEX
                  MAPLE LEAF, L.P., a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, a California corporation, its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        	
                ESSEX
                  MARINA CITY CLUB, L.P., 
a California limited
                  partnership

              
	 
	
                By

              	
                Essex
                  MCC, LLC, 
a Delaware limited liability company, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 	 
	 	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 	 
	 	 	 	
                By:
                  

              	 
	 	 	 	
                Name:

              	 
	 	 	 	
                Title:

              	 


      

       

      
        
           

        

        
          D-1-5

          
            

          

        

        
           

        

         

      

      
        	
                ESSEX
                  MEADOWOOD, L.P., 
a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Meadowood Corporation,

                a
                  California corporation, 
its General Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                ESSEX
                  PARK BOULEVARD, LLC, 
a Delaware limited liability
                  company

              
	 
	
                By:

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
bits Sole
                  Member

              
	 	 	 
	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 	 
	 	 	
                By:
                  

              	 
	 	 	
                Name:

              	 
	 	 	
                Title:

              	 


      

      


      
        	
                ESSEX
                  SPRING LAKE, L.P., 
a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                ESSEX
                  TRACY DEVELOPMENT, INC., 
a California corporation

              
	 	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      

      

        
          
            
            

          

          
            D-1-6

            
              

            

          

          
            
            

          

        

      

       

      
        	
                JACKSON
                  SCHOOL VILLAGE LIMITED PARTNERSHIP, 
a California limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 
	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 
	 	 	
                By:
                  

              	 
	 	 	
                Name:

              	 
	 	 	
                Title:

              	 


      

      


      
        	
                NEWPORT
                  BEACH NORTH LLC, 
a Delaware limited liability
                  company

              
	 
	
                By:

              	
                Newport
                  Beach North, Inc., 
a Delaware corporation, 
its Managing
                  Member

              
	 	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      


      
        	
                PARK
                  HILL LLC, 
a Washington limited liability company

              
	 
	
                By:

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 
	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 	 
	 	 	
                By:
                  

              	 
	 	 	
                Name:

              	 
	 	 	
                Title:

              	 


      

      

        
          
            
            

          

          
            D-1-7

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        D-2

      


      SUPPLEMENTAL
        SIGNATURE PAGE


      (NEW
        CO-LENDER)

      


      


      
        	 	
                Re:

              	
                Fourth
                  Amended and Restated Revolving Credit Agreement (the “Credit
                  Agreement”),
                  dated as of March 24, 2006, among Essex Portfolio, L.P., the several
                  financial institutions from time to time party thereto (each a
                  “Lender”
                  and collectively, the “Lenders”),
                  and Bank of America, N.A., individually as a Lender and as administrative
                  agent for the Lenders (in such capacity, the “Administrative
                  Agent”)
                  and as Swing Line Lender and as L/C Issuer. Capitalized terms used
                  below
                  and not otherwise defined shall have the meanings given such terms
                  in the
                  Credit Agreement.

              


      

      


      Pursuant
        to Section 2.14
        of the
        Credit Agreement, the undersigned agrees to become a Lender under the Credit
        Agreement as if originally named therein, with a Commitment of $_____________
        (increasing the Maximum Commitment Amount to $_____________), which represents
        a
        Pro Rata Share of ___________% of the combined Commitments of all the Lenders,
        effective as of _________________, 20___ (the “Effective
        Date”).
        The
        undersigned further agrees to be bound by all of the terms and conditions
        of the
        Credit Agreement.

       

      
        	 
	 	 
	 	 
	
                By

              	 
	 	 
	 	 
	 	
                [Printed
                  Name and Title]

              


      


      
        
          
          

        

        
          D-2-1

          
            

          

        

        
          
          

        

      


      Offshore
        and Domestic Lending Offices,

        Addresses
          for Notices:

      

      
        	 	
                ,

              
	
                as
                  a Lender

              
	 	 
	 	 
	 	 
	 	 
	 	 
	
                Attention:

              	 	 
	 	 	 
	
                Telephone:

              	 	 
	
                Telecopier:

              	 	 
	 	 	 
	
                Payment
                  Information:

              
	 	 	 
	
                ABA
                  No.:

              	 	 
	
                Account
                  Number:

              	 	 
	
                At:

              	 	 
	
                Reference:

              	 	 
	
                Admin.
                  Contact:

              	 	 
	
                Telephone:

              	 	 
	
                Telecopier:

              	 	 


      


      
        
          
          

        

        
          D-2-2

          
            

          

        

        
          
          

        

      


      ACKNOWLEDGED
        AND APPROVED:

      


      We
        hereby
        consent to and approve the foregoing supplement to the Credit Agreement,
        and
        acknowledge and agree that as of the Effective Date the Maximum Commitment
        Amount is increased to $_____________, and __________________ has become
        a
        Lender under the Credit Agreement as if originally named therein, with a
        Commitment of ____________________. We further agree that the foregoing
        supplement to the Credit Agreement, and the amendments effected thereby,
        shall
        not alter, diminish or otherwise affect any obligations under the Credit
        Agreement or any other Loan Document except as expressly set forth above.
        This
        acknowledgment and approval may be executed in any number of counterparts,
        each
        of which shall constitute an original and all of which, taken together, shall
        constitute a single agreement.

      


      Date:_____________,
        20___

      


      “Borrower”

       

      
        	
                ESSEX
                  PORTFOLIO, L.P.,

                a
                  California limited partnership

              
	 
	
                By:

              	
                ESSEX
                  PROPERTY TRUST, INC., 

                a
                  Maryland corporation

              
	 	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      

      
 

      “Administrative
        Agent”

       

      
        	
                BANK
                  OF AMERICA, N.A.,

                as
                  Administrative Agent

              
	 
	
                By:

              	 
	
                Name:

              	 
	
                Title:

              	 


      

      


      


      “Guarantor”
        

       

      
        	
                ESSEX
                  PROPERTY TRUST, INC.,

                a
                  Maryland corporation

              
	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      


      
        
          
          

        

        
          D-2-3

          
            

          

        

        
          
          

        

      


      “Permitted
        Affiliates”:
        


        JMS
          ACQUISITION LLC, a Delaware limited liability company

        


        
          	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole
                    Member

                
	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

        


        
          	
                  JAYSAC,
                    LTD., Texas limited partnership

                
	 
	
                  By:

                	
                  Jaysac
                    GP Corp., 
a Delaware corporation, 
its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  JAYSAC
                    GP CORP., 
a Delaware corporation

                
	 	 
	
                  By:
                    

                	 
	
                  Name:

                	 
	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    BRIDLE TRAILS, L.P., 
a California limited
                    partnership

                
	 
	
                  By:

                	
                  Essex
                    Management Corporation, 
a California corporation, its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        


        
          
            
            

          

          
            D-2-4

            
              

            

          

          
            
            

          

        

         

        
          	
                  ESSEX
                    BRISTOL PARTNERS, L.P., 
a California limited
                    partnership

                
	 
	
                  By:

                	
                  Essex
                    Management Corporation, 
a California corporation, 
its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    BUNKER HILL, L.P., 
a California limited partnership

                
	 
	
                  By:

                	
                  Essex
                    Bunker Hill Corporation, 
a California corporation, 
its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    COLUMBUS LLC, 
a Delaware limited liability company

                
	 
	
                  By:

                	
                  Essex
                    Columbus, Inc., 
a California corporation, 
its Managing
                    Member

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

         

        
          
            
            

          

          
            D-2-5

            
              

            

          

          
            
            

          

           

        

        
          	
                  ESSEX
                    LORRAINE LLC, 
a Delaware limited liability company

                
	
                   

                
	
                  By:

                	
                  Essex
                    Lorraine, Inc., 
a California corporation, 
its Managing
                    Member

                
	 	 
	
                   

                	
                  By:
                    

                	
                   

                
	
                   

                	
                  Name:

                	 
	
                   

                	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    MAPLE LEAF, L.P., a California limited partnership

                
	 
	
                  By:

                	
                  Essex
                    Management Corporation, a California corporation, its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

         

        
          	
                  ESSEX
                    MARINA CITY CLUB, L.P., 
a California limited
                    partnership

                
	 
	
                  By

                	
                  Essex
                    MCC, LLC, 
a Delaware limited liability company, 
its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole
                    Member

                
	 	 	 
	 	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 	 
	 	 	 	
                  By:
                    

                	 
	 	 	 	
                  Name:

                	 
	 	 	 	
                  Title:

                	 


        

         

         

        
          
             

          

          
            D-2-6

            
              

            

          

          
             

          

           

        

        
          	
                  ESSEX
                    MEADOWOOD, L.P., 
a California limited partnership

                
	 
	
                  By:

                	
                  Essex
                    Meadowood Corporation,

                  a
                    California corporation, 
its General Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    PARK BOULEVARD, LLC, 
a Delaware limited liability
                    company

                
	 
	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
bits Sole
                    Member

                
	 	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    SPRING LAKE, L.P., 
a California limited partnership

                
	 
	
                  By:

                	
                  Essex
                    Management Corporation, 
a California corporation, 
its General
                    Partner

                
	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  ESSEX
                    TRACY DEVELOPMENT, INC., 
a California corporation

                
	 	 
	
                  By:
                    

                	 
	
                  Name:

                	 
	
                  Title:

                	 


        

        

          
            
              
              

            

            
              D-2-7

              
                

              

            

            
              
              

            

          

        

         

        
          	
                  JACKSON
                    SCHOOL VILLAGE LIMITED PARTNERSHIP, 
a California limited
                    partnership

                
	 
	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole
                    Member

                
	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

        


        
          	
                  NEWPORT
                    BEACH NORTH LLC, 
a Delaware limited liability
                    company

                
	 
	
                  By:

                	
                  Newport
                    Beach North, Inc., 
a Delaware corporation, 
its Managing
                    Member

                
	 	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

        


        
          	
                  PARK
                    HILL LLC, 
a Washington limited liability company

                
	 
	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole
                    Member

                
	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

        

          
            
              
              

            

            
              D-2-8

              
                

              

            

            
              
              

            

          

        

         

      

      EXHIBIT
        E

      


      COMPLIANCE
        CERTIFICATE

      


      [See
        sf-2036908]

      

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        F

      


      FORM
        OF ASSIGNMENT AND ASSUMPTION

      


      THIS
        ASSIGNMENT AND ASSUMPTION
        (the
“Assignment
        and Assumption”)
        is
        dated as of the Effective Date set forth below and is entered into by and
        between [Insert name of Assignor] (the “Assignor”)
        and
        [Insert name of Assignee] (the “Assignee”).
        Capitalized terms used but not defined herein shall have the meanings given
        to
        them in the Credit Agreement identified below (as amended, the “Credit
        Agreement”),
        receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
        Terms and Conditions set forth in Annex 1
        attached
        hereto are hereby agreed to and incorporated herein by reference and made
        a part
        of this Assignment and Assumption as if set forth herein in full.

      


      For
        an
        agreed consideration, the Assignor hereby irrevocably sells and assigns to
        the
        Assignee, and the Assignee hereby irrevocably purchases and assumes from
        the
        Assignor, subject to and in accordance with the Standard Terms and Conditions
        and the Credit Agreement, as of the Effective Date inserted by the
        Administrative Agent as contemplated below, (i) all of the Assignor’s
        rights and obligations in its capacity as a Lender under the Credit Agreement
        and any other documents or instruments delivered pursuant thereto to the
        extent
        related to the amount and percentage interest identified below of all of
        such
        outstanding rights and obligations of the Assignor under the respective
        facilities identified below (including, without limitation, Swing Loans,
        Letters
        of Credit, the Guaranty and each Payment Guaranty included in such facilities)
        and (ii) to the extent permitted to be assigned under applicable law, all
        claims, suits, causes of action and any other right of the Assignor (in its
        capacity as a Lender) against any Person, whether known or unknown, arising
        under or in connection with the Credit Agreement, any other documents or
        instruments delivered pursuant thereto or the loan transactions governed
        thereby
        or in any way based on or related to any of the foregoing, including, but
        not
        limited to, contract claims, tort claims, malpractice claims, statutory claims
        and all other claims at law or in equity related to the rights and obligations
        sold and assigned pursuant to clause (i) above (the rights and obligations
        sold and assigned pursuant to clauses (i) and (ii) above being
        referred to herein collectively as, the “Assigned
        Interest”).
        Such
        sale and assignment is without recourse to the Assignor and, except as expressly
        provided in this Assignment and Assumption, without representation or warranty
        by the Assignor.

      

        
          	 	
                  1.

                	
                  Assignor:    ___________________________________________

                


        

        


        
          	 	
                  2.

                	
                  Assignee:    ___________________________________________

                


        

        


        
          	 	 	
                  [and
                    is an Affiliate/Approved Fund of [identify Lender]
                    ]

                


        

        


        
          	 	
                  3.

                	
                  Borrower(s):        ___________________________________________

                


        

        


        
          	 	
                  4.

                	
                  Administrative
                    Agent:    Bank of
                    America, N.A., as the administrative agent under the Credit
                    Agreement

                


        

        


        
          	 	
                  5.

                	
                  Credit
                    Agreement:    Fourth Amended
                    and Restated Revolving Credit Agreement, dated as of April 30,
                    2004, among
                    Essex Portfolio, L.P., the several financial institutions from
                    time to
                    time party thereto (each a “Lender”
                    and collectively, the 

                


        

      

       

      
        
          
          

        

        
          F-1

          
            

          

        

        
          
          

        

      


      
        	 	 	
                “Lenders”),
                  and Bank of America, N.A., individually as a Lender and as administrative
                  agent for the Lenders (in such capacity, the “Administrative
                  Agent”)
                  and as Swing Line Lender and as L/C
                  Issuer.

              


      

       

      

        
          	 	
                  6.

                	
                  Assigned
                    Interest:    ___________________________________________

                


        

      

       

      
        	
                Facility
                  Assigned

              	
                Aggregate
                  Amount of Commitment/ Loans for all Lenders*

              	
                Amount
                  of Commitment/Loans Assigned*

              	
                Percentage
                  Assigned of Commitment/Loans2

              	
                CUSIP
                  Number

              
	 	
                $

              	
                $

              	
                ____________%

              	 
	 	
                $

              	
                $

              	
                ____________%

              	 
	 	
                $

              	
                $

              	
                ____________%

              	 


      

      


      
        	 	
                [7.

              	
                Trade
                  Date:_________]3

              


      

      


      Effective
        Date: ______________, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
        SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
        THEREFOR.]

      


      The
        terms
        set forth in this Assignment and Assumption are hereby agreed to:

       

      
        
          
            	
                    ASSIGNOR

                     

                    [NAME
                      OF ASSIGNOR]

                  
	 	 
	 	 
	
                    By

                  	 
	
                    Title:

                  	 


          

           

          
            	
                    ASSIGNEE

                     

                    [NAME
                      OF ASSIGNEE]

                  
	 	 
	 	 
	
                    By

                  	 
	
                    Title:

                  	 


          

        

        
          

        

      

      
        	
                *

              	
                Amount
                  to be adjusted by the counterparties to take into account any payments
                  or
                  prepayments made between the Trade Date and the Effective
                  Date.

              


      

      
        	
                2

              	
                Set
                  forth, to at least 9 decimals, as a percentage of the Commitment/Loans
                  of
                  all Lenders thereunder.

              


      

      
        	
                3

              	
                To
                  be completed if the Assignor and the Assignee intend that the minimum
                  assignment amount is to be determined as of the Trade
                  Date.

              


      


      
        
          
          

        

        
          F-2

          
            

          

        

        
          
          

        

      

      

        
          	
                  Consented
                    to and Accepted:

                   

                
	
                  BANK
                    OF AMERICA, N.A.,

                  as
                    Administrative Agent

                
	 
	
                  By:
                    

                	 
	 	
                  Kathleen
                    Carry

                  Vice
                    President

                


        

        


        
          	
                  BANK
                    OF AMERICA, N.A.,

                  as
                    L/C Issuer and Swing Line Lender

                
	 
	
                  By:
                    

                	 
	 	
                  James
                    P. Johnson

                  Managing
                    Director

                


        

        


        
          	
                  [Consented
                    to:]4

                   

                  ESSEX
                    PORTFOLIO, L.P.,

                  a
                    California limited partnership

                   

                
	
                  By:

                	
                  ESSEX
                    PROPERTY TRUST, INC.,

                  a
                    Maryland corporation

                  its
                    General Partner

                
	
                	 
	
                  By

                	
                   


                	 
	
                  Name:

                	
                   

                	 
	
                  Title:

                	
                   

                	 


        

      

       

      
        

      

      
        	
                4

              	
                To
                  be added only if the consent of Borrower is required by the terms
                  of the
                  Credit Agreement.

              


      

      

        
          
            
            

          

          
            F-3

            
              

            

          

          
            
            

          

        

      

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      ANNEX
        1 TO ASSIGNMENT AND ASSUMPTION

      


      ESSEX
        PORTFOLIO, L.P.


      FOURTH
        AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


      DATED
        AS
        OF MARCH 24,
        2006

      


      STANDARD
        TERMS AND CONDITIONS FOR


      ASSIGNMENT
        AND ASSUMPTION

      


      1.    Representations
        and Warranties.

      


      1.1    Assignor.
        The
        Assignor (a) represents and warrants that (i) it is the legal and
        beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
        free and clear of any lien, encumbrance or other adverse claim, and
        (iii) it has full power and authority, and has taken all action necessary,
        to execute and deliver this Assignment and Assumption and to consummate the
        transactions contemplated hereby; and (b) assumes no responsibility with
        respect to (i) any statements, warranties or representations made in or in
        connection with the Credit Agreement or any other Loan Document, (ii) the
        execution, legality, validity, enforceability, genuineness, sufficiency or
        value
        of the Loan Documents or any collateral thereunder, (iii) the financial
        condition of Borrower, any of its subsidiaries or affiliates or any other
        Person
        obligated in respect of any Loan Document or (iv) the performance or
        observance by Borrower, any of its subsidiaries or affiliates or any other
        Person of any of their respective obligations under any Loan
        Document.

      


      1.2.    Assignee.
        The
        Assignee (a) represents and warrants that (i) it has full power and
        authority, and has taken all action necessary, to execute and deliver this
        Assignment and Assumption and to consummate the transactions contemplated
        hereby
        and to become a Lender under the Credit Agreement, (ii) it meets all
        requirements of an Eligible Assignee under the Credit Agreement (subject
        to
        receipt of such consents as may be required under the Credit Agreement),
        (iii) from and after the Effective Date, it shall be bound by the
        provisions of the Credit Agreement as a Lender thereunder and, to the extent
        of
        the Assigned Interest, shall have the obligations of a Lender thereunder,
        (iv) it has received a copy of the Credit Agreement, together with copies
        of the most recent financial statements delivered pursuant to Section 6.3
        thereof,
        as applicable, and such other documents and information as it has deemed
        appropriate to make its own credit analysis and decision to enter into this
        Assignment and Assumption and to purchase the Assigned Interest on the basis
        of
        which it has made such analysis and decision independently and without reliance
        on the Administrative Agent or any other Lender, and (v) if it is a foreign
        Lender, attached to the Assignment and Assumption is any documentation required
        to be delivered by it pursuant to the terms of the Credit Agreement, duly
        completed and executed by the Assignee; and (b) agrees that (i) it
        will, independently and without reliance on the Administrative Agent, the
        Assignor or any other Lender, and based on such documents and information
        as it
        shall deem appropriate at the time, continue to make its own credit decisions
        in
        taking or not taking action under the Loan Documents, and (ii) it will
        perform in accordance with their terms all of the obligations which by the
        terms
        of the Loan Documents are required to be performed by it as a
        Lender.

      

        
          
            
            

          

          
            FA-1

            
              

            

          

          
            
            

          

        

      

       

      2.    Payments.
        From
        and after the Effective Date, the Administrative Agent shall make all payments
        in respect of the Assigned Interest (including payments of principal, interest,
        fees and other amounts) to the Assignor for amounts which have accrued to,
        but
        excluding, the Effective Date and to the Assignee for amounts which have
        accrued
        from and after the Effective Date.

      


      3.    General
        Provisions.
        This
        Assignment and Assumption shall be binding upon, and inure to the benefit
        of,
        the parties hereto and their respective successors and assigns. This Assignment
        and Assumption may be executed in any number of counterparts, which together
        shall constitute one instrument. Delivery of an executed counterpart of a
        signature page of this Assignment and Assumption by telecopy shall be effective
        as delivery of a manually executed counterpart of this Assignment and
        Assumption. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT IS TO BE CONSTRUED IN
        ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
        (AS
        PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR
        SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE THAT
        WOULD
        CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL
        LAWS OF THE STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF THE
        PARTIES.

      

        
          
            
            

          

          
            FA-2

            
              

            

          

          
            
            

          

        

      

      


      EXHIBIT
        G-1


      FORM
        OF PAYMENT GUARANTY (GUARANTOR)

      


      [See
        Attached]


      
        
          
          

        

        
          G(1)

          
            

          

        

        
          
          

        

      

       

      THIRD
        AMENDED AND RESTATED PAYMENT GUARANTY


      (Guarantor
        - Revolving Loans and Letters of Credit)

      


      THIS
        THIRD AMENDED AND RESTATED PAYMENT GUARANTY
        (this
“Guaranty”)
        is
        dated as of March 24, 2006, and is made by ESSEX PROPERTY TRUST, INC., a
        Maryland corporation (“Guarantor”),
        in
        favor of Bank of America, N.A., as administrative agent (in such capacity,
        “Administrative
        Agent”)
        for
        the lenders (each, a “Lender”
and
        collectively, “Lenders”)
        from
        time to time party to the Agreement (as hereinafter defined) and as Swing
        Line
        Lender and L/C Issuer (each a “Guaranteed
        Party”,
        and
        collectively, the “Guaranteed
        Parties”).
        

      


      Factual
        Background

      


      A.    Essex
        Portfolio, L.P., a California limited partnership (“Borrower”),
        Administrative Agent and the lenders party thereto entered into a Third Amended
        and Restated Revolving Credit Agreement dated as of April 30, 2004 (as amended
        from time to time, the “Existing
        Agreement”),
        pursuant to which such lenders agreed to make available to Borrower an unsecured
        revolving line of credit and letter of credit facility (the “Credit
        Line”)
        to
        Borrower on the terms and subject to the conditions set forth
        therein.

      


      B.    In
        connection with the Existing Agreement, Guarantor executed a Second Amended
        and
        Restated Payment Guaranty (the “Existing
        Payment Guaranty”),
        dated
        as of April 30, 2004, to induce the lenders to extend the Credit Line to
        Borrower under the Existing Agreement.

      


      C.    Borrower,
        Administrative Agent, Lenders, Swing Line Lender and L/C Issuer are entering
        into a Fourth Amended and Restated Revolving Credit Agreement, dated as of
        the
        date hereof (the “Agreement”),
        which
        Agreement amends and restates the Existing Agreement in full. In connection
        with
        the Agreement, Lenders have agreed to increase and extend the term of the
        Credit
        Line and enter into certain other amendments of the Existing
        Agreement.

      


      D.    Guarantor
        is executing this Guaranty to induce Lenders to increase and extend the term
        of
        the Credit Line and enter into certain other amendments of the Existing
        Agreement. This Guaranty amends, restates and supersedes in full the Existing
        Payment Guaranty.

      


      E.    This
        Guaranty is one of several Loan Documents, as defined and designated in the
        Agreement. The Loan Documents also include the Agreement and certain other
        specified instruments and agreements. Capitalized terms used in this Guaranty
        shall have the meanings set forth in Section 33
        below or
        in the text of this Guaranty and, if not defined in Section
        33
        below or
        otherwise herein, shall have the meanings given to them in the Agreement.
        

      


      Guaranty

      


      Section
        1. Guaranty
        of Credit Line.
        Guarantor hereby unconditionally and irrevocably guaranties to the Guaranteed
        Parties, and their respective successors, transferees and assigns, the full
        and
        prompt payment of the Credit Line when due (whether at stated maturity, by
        required prepayment, declaration, acceleration, demand or otherwise) and
        performance of the indebtedness, liabilities and other obligations of Borrower
        to the Guaranteed Parties under or in

      

        
          
            
            

          

          
            G(1)-1

            
              

            

          

          
            
            

          

        

      

       

      connection
        with the Agreement, the Notes and the other Loan Documents, and unconditionally
        and irrevocably agrees to pay to Administrative Agent, for its own account
        and
        for the account of the other Guaranteed Parties, upon the occurrence of an
        Event
        of Default under and as defined in the Agreement, the full amount of the
        Credit
        Line. This is a guaranty of payment, not of collection. If Borrower defaults
        in
        the payment when due of all or any part of the Credit Line, Guarantor shall
        in
        lawful money of the United States pay to Administrative Agent or order, on
        demand, all sums due and owing on the Credit Line, including all interest,
        charges, fees and other sums, costs and expenses.

      


      Section
        2.    Credit
        Line.
        In this
        Guaranty, the term “Credit
        Line”
is
        broadly defined to mean and include all primary, secondary, direct, indirect,
        fixed and contingent obligations of Borrower to pay principal, interest,
        prepayment charges, late charges, loan fees and any other fees, charges,
        sums,
        costs and expenses which may be owing at any time under the Loan Documents,
        as
        any or all of them may from time to time be modified, amended, extended or
        renewed, including all unpaid principal of the Loans, all amounts owing in
        respect of the L/C Obligations, all interest accrued thereon, all
        indemnification obligations of Borrower under or in connection with the
        Agreement, the Notes and the other Loan Documents, and all other amounts
        payable
        by Borrower to the Guaranteed Parties thereunder or in connection therewith,
        including all such amounts that may be or hereafter become unenforceable
        or be
        or hereafter become an allowed or disallowed claim under any Insolvency
        Proceeding, and including interest that accrues after the commencement by
        or
        against Borrower or any Affiliate thereof under any Insolvency Proceeding
        naming
        such Person as the debtor in such proceeding. For purposes of this Guaranty,
        the
        Credit Line includes all such obligations which may arise in connection with
        any
        transactions between Borrower and Lenders which may afford interest rate
        protection to all or part of the Credit Line, if any, and all other
        indebtedness, liabilities and obligations to be paid or performed by Guarantor
        in connection with this Guaranty (including any and all amounts due under
        Section 22).

      


      Section
        3.    Rights
        of Administrative Agent and the other Guaranteed Parties.
        Guarantor authorizes Administrative Agent and/or the other Guaranteed Parties
        to
        perform any or all of the following acts at any time in its sole discretion,
        all
        without notice to Guarantor and without affecting Guarantor’s obligations under
        this Guaranty:

      


      (a)    alter
        any
        terms of the Credit Line or any part of it, including renewing, compromising,
        extending or accelerating, or otherwise changing the time for payment of,
        or
        increasing or decreasing the rate of interest on, the Credit Line or any
        part of
        it;

      


      (b)    take
        and
        hold security for the Credit Line or this Guaranty, accept additional or
        substituted security for either, and subordinate, exchange, enforce, waive,
        release, compromise, fail to perfect and sell or otherwise dispose of any
        such
        security;

      


      (c)    direct
        the order and manner of any sale of all or any part of any security now or
        later
        to be held for the Credit Line or this Guaranty, and Administrative Agent
        or any
        other Guaranteed Party may also bid at any such sale;

      


      (d)    apply
        any
        payments or recoveries from Borrower, Guarantor or any other source, and
        any
        proceeds of any security, to Borrower’s obligations under the Loan
        Documents

      

        
          
            
            

          

          
            G(1)-2

            
              

            

          

          
            
            

          

        

in
        such
        manner, order and priority as Administrative Agent may elect whether or not
        those obligations are guarantied by this Guaranty or secured at the time
        of the
        application;

      


      (e)    release
        Borrower of its liability for the Credit Line or any part of it;

      


      (f)    substitute,
        add or release any one or more guarantors or endorsers; or

      


      (g)    in
        addition to the Credit Line, extend other credit to Borrower, and may take
        and
        hold security for the credit so extended, all without affecting Guarantor’s
        liability under this Guaranty.

      


      Section
        4.    Guaranty
        to be Absolute.
        Guarantor expressly agrees that until the Credit Line is paid and performed
        in
        full and each and every term, covenant and condition of this Guaranty is
        fully
        performed, Guarantor shall not be released by or because of:

      


      (a)    any
        act
        or event that might otherwise discharge, reduce, limit or modify Guarantor’s
        obligations under this Guaranty;

      


      (b)    any
        waiver, extension, modification, forbearance, delay or other act or omission
        of
        Administrative Agent or any other Guaranteed Party, or its failure to proceed
        promptly or otherwise as against Borrower, Guarantor or any
        security;

      


      (c)    any
        action, omission or circumstance which might increase the likelihood that
        Guarantor may be called upon to perform under this Guaranty or which might
        affect the rights or remedies of Guarantor as against Borrower or any other
        Person;

      


      (d)    any
        dealings occurring at any time between Borrower, Administrative Agent or
        any
        other Guaranteed Party, whether relating to the Credit Line or otherwise;
        or

      


      (e)    any
        action of Administrative Agent or any other Guaranteed Party described in
        Section
        3
        above.

      


      Guarantor
        hereby acknowledges that absent this Section
        4,
        Guarantor might have a defense to the enforcement of this Guaranty as a result
        of one or more of the foregoing acts, omissions, agreements, waivers or matters.
        Guarantor hereby expressly waives and surrenders any defense to any liability
        under this Guaranty based upon any of such acts, omissions, agreements, waivers
        or matters. 

      


      Section
        5.    Liability
        of Guarantor.
        Guarantor’s obligations under this Guaranty are and shall be independent,
        absolute, unconditional and irrevocable, and shall not be affected by any
        circumstance which might constitute a discharge of a surety or guarantor,
        other
        than the indefeasible payment and performance in full of the Credit Line.
        Guarantor’s liability with respect to the Credit Line shall remain in full force
        and effect without regard to, and shall not be impaired or affected by, any
        Insolvency Proceeding with respect to Borrower, Guarantor or any other Person,
        or any assignment or other transfer of any Guaranteed Party’s interests in and
        rights under this Guaranty or the other Loan Documents, or any claim, defense,
        counterclaim or setoff (other than that of prior performance), that Borrower,
        Guarantor or any other Person may have or assert; or any amendment,
        modification, renewal, extension, cancellation or surrender of 

      

        
          
            
            

          

          
            G(1)-3

            
              

            

          

          
            
            

          

        

any
        Loan
        Document or any collateral that may at any time secure the Credit Line, or
        any
        Guaranteed Party’s exchange, release, or waiver of any other guaranty of all or
        any part of the Credit Line or any other indebtedness, obligations or
        liabilities of Borrower or any other guarantor to any Guaranteed Party under
        the
        Credit Line. 

      


      Section
        6.    Guarantor’s
        Waivers.
        Guarantor waives:

      


      (a)    all
        statutes of limitations as a defense to any action or proceeding brought
        against
        Guarantor by Administrative Agent, to the fullest extent permitted by
        law;

      


      (b)    any
        right
        it may have to require Administrative Agent or any other Guaranteed Party
        to
        proceed against Borrower, proceed against or exhaust any security held from
        Borrower, or pursue any other remedy in Administrative Agent’s or any other
        Guaranteed Party’s power to pursue;

      


      (c)    any
        defense based on any claim that Guarantor’s obligations exceed or are more
        burdensome than those of Borrower;

      


      (d)    any
        defense based on: (i) any legal disability of Borrower, (ii) any release,
        discharge, modification, impairment or limitation of the liability of Borrower
        to Administrative Agent or any other Guaranteed Party from any cause, whether
        consented to by Administrative Agent or any other Guaranteed Party or arising
        by
        operation of law or from any Insolvency Proceeding, and (iii) any rejection
        or
        disaffirmance of the Credit Line, or any part of it, or any security held
        for
        it, in any such Insolvency Proceeding;

      


      (e)    any
        defense based on any action taken or omitted by Administrative Agent or any
        other Guaranteed Party in any Insolvency Proceeding involving Borrower,
        including any election to have Administrative Agent’s or any other Guaranteed
        Party’s claim allowed as being secured, partially secured or unsecured, any
        extension of credit by Lenders to Borrower in any Insolvency Proceeding,
        and the
        taking and holding by Administrative Agent or the other Guaranteed Parties
        of
        any security for any such extension of credit;

      


      (f)    all
        presentments, demands for performance, notices of nonperformance, protests,
        notices of protest, notices of dishonor, notices of acceptance of this Guaranty
        and of the existence, creation, or incurring of new or additional indebtedness,
        and demands and notices of every kind except for any demand or notice by
        Administrative Agent to Guarantor expressly provided for in Section
        1;

      


      (g)    any
        defense based on or arising out of any defense that Borrower may have to
        the
        payment or performance of the Credit Line or any part of it; and

      


      (h)    any
        defense based on or arising out of any action of Administrative Agent or
        any
        Lender described in Section
        3
        or
Section
        4
        above.

      


      Section
        7.    Waivers
        of Subrogation and Other Rights and Defenses.

      


      (a)    Upon
        a
        default by Borrower, Administrative Agent and/or any other Guaranteed Party
        in
        their sole discretion, without prior notice to or consent of Guarantor, may
        

      

        
          
            
            

          

          
            G(1)-4

            
              

            

          

          
            
            

          

        

elect
        to:
        (i) foreclose either judicially or nonjudicially against any real or
        personal property security they may hold for the Credit Line, (ii) accept a
        transfer of any such security in lieu of foreclosure, (iii) compromise or
        adjust the Credit Line or any part of it or make any other accommodation
        with
        Borrower or Guarantor, or (iv) exercise any other remedy against Borrower
        or any security. No such action by Administrative Agent and/or any other
        Guaranteed Party shall release or limit the liability of Guarantor, who shall
        remain liable under this Guaranty after the action, even if the effect of
        the
        action is to deprive Guarantor of any subrogation rights, rights of indemnity,
        or other rights to collect reimbursement from Borrower for any sums paid
        to
        Administrative Agent for its own account or for the account of any other
        Guaranteed Party, whether contractual or arising by operation of law or
        otherwise. Guarantor expressly agrees that under no circumstances shall it
        be
        deemed to have any right, title, interest or claim in or to any real or personal
        property to be held by Administrative Agent or any other Guaranteed Party
        or any
        third party after any foreclosure or transfer in lieu of foreclosure of any
        security for the Credit Line.

      


      (b)    Regardless
        of whether Guarantor may have made any payments to Administrative Agent for
        its
        own account or for the account of any other Guaranteed Party, Guarantor waives,
        until all indebtedness, liabilities and other obligations of Borrower to
        the
        Guaranteed Parties under or in connection with the Agreement, the Notes and
        the
        other Loan Documents have been indefeasibly paid in full: (i) all rights
        of
        subrogation, all rights of indemnity, and any other rights to collect
        reimbursement from Borrower for any sums paid to Administrative Agent or
        any
        other Guaranteed Party, whether contractual or arising by operation of law
        (including the United States Bankruptcy Code or any successor or similar
        statute) or otherwise, (ii) all rights to participate in any security now
        or
        later to be held by Administrative Agent or the other Guaranteed Parties
        for the
        Credit Line, and (iii) all rights to enforce any remedy that Administrative
        Agent or any other Guaranteed Party may have against Borrower.

      


      (c)    Guarantor
        waives Guarantor’s rights of subrogation and reimbursement and any other rights
        and defenses available to Guarantor by reason of Sections 2787 to 2855,
        inclusive, of the California Civil Code including, without limitation, any
        defenses Guarantor may have to the Guaranty obligation by reason of an election
        of remedies by Administrative Agent or any other Guaranteed Party, and any
        and
        all benefits that otherwise might be available to such Guarantor under
        California Civil Code §§1432, 2809, 2810, 2815, 2819, 2839, 2845, 2848, 2849,
        2850, 2899 and 3433 and California Code of Civil Procedure §§580a, 580b, 580d
        and 726. Accordingly, Guarantor waives all rights and defenses that Guarantor
        may have because Borrower’s debt may at any time be secured by real property.
        This means, among other things: (A) the Guaranteed Parties may collect from
        Guarantor without first foreclosing on any real or personal property collateral
        that may at any time be pledged by Borrower; and (B) if the Administrative
        Agent forecloses on any real property collateral that may at any time be
        pledged
        by Borrower: (1) the amount of the debt may be reduced only by the price
        for which such collateral is sold at the foreclosure sale, even if such
        collateral is worth more than the sale price, and (2) the Guaranteed
        Parties may collect from Guarantor even if the Administrative Agent, by
        foreclosing on such real property collateral, has destroyed any right Guarantor
        may have to collect from Borrower. This is an unconditional and irrevocable
        waiver of any rights and defenses Guarantor may have because Borrower’s debt may
        at any time be secured by real property. These rights and defenses include,
        but
        are not limited to, any rights of defenses based upon Section 580a, 580b,
        580d or 726 of the California Code of Civil Procedure.

      

        
          
            
            

          

          
            G(1)-5

            
              

            

          

          
            
            

          

        

      

       

      (d)    Guarantor
        waives all right and defenses arising out of an election of remedies by
        Administrative Agent or the other Guaranteed Parties, even though that election
        of remedies has destroyed Guarantor’s rights of subrogation and reimbursement
        against Borrower.

      


      (e)    No
        provision or waiver in this Guaranty shall be construed as limiting the
        generality of any other waiver contained in this Guaranty.

      


      Section
        8.    Continuing
        Guaranty; Reinstatement.
        This
        Guaranty is a continuing guaranty and agreement of subordination relating
        to any
        Guaranteed Obligations, including Guaranteed Obligations which may exist
        continuously or which may arise from time to time under successive transactions,
        and Guarantor expressly acknowledges that this Guaranty shall remain in full
        force and effect notwithstanding that there may be periods in which no
        Guaranteed Obligations exist. This Guaranty shall continue in effect and
        be
        binding upon Guarantor until termination of the Commitments and payment and
        performance in full of the Guaranteed Obligations. This Guaranty shall continue
        to be effective or shall be reinstated and revived, as the case may be, if,
        for
        any reason, any payment of the Guaranteed Obligations by or on behalf of
        Borrower shall be rescinded, invalidated, declared to be fraudulent or
        preferential, set aside, voided or otherwise required to be repaid to Borrower,
        its estate, trustee, receiver or any other Person (including under the
        Bankruptcy Code or other state or federal law), or must otherwise be restored
        by
        any Guaranteed Party, whether as a result of Insolvency Proceedings or
        otherwise. To the extent any payment is so rescinded, set aside, voided or
        otherwise repaid or restored, the Guaranteed Obligations shall be revived
        in
        full force and effect without reduction or discharge for such payment.


      


      Section
        9.    Information
        Regarding Borrower and the Property.
        Before
        signing this Guaranty, Guarantor investigated the financial condition and
        business operations of Borrower, the present and former condition, uses and
        ownership of the Unencumbered Asset Pool, and such other matters as Guarantor
        deemed appropriate to assure itself of Borrower’s ability to discharge its
        obligations under the Loan Documents. Guarantor assumes full responsibility
        for
        that due diligence, as well as for keeping informed of all matters which
        may
        affect Borrower’s ability to pay and perform its obligations to Administrative
        Agent and the other Guaranteed Parties. Neither Administrative Agent nor
        any
        Lender has a duty to disclose to Guarantor any information that Administrative
        Agent or any Lender may have or receive about Borrower’s financial condition or
        business operations, or any other circumstances bearing on Borrower’s ability to
        perform.

      


      Section
        10.    Subordination.
        Any
        rights of Guarantor, whether now existing or later arising, to receive payment
        on account of any indebtedness (including interest) owed to it by Borrower,
        or
        to withdraw capital invested by it in Borrower, or to receive distributions
        from
        Borrower, shall at all times be subordinate as to lien and time of payment
        and
        in all other respects to the full and prior repayment to Administrative Agent
        and the other Guaranteed Parties of the Credit Line. Guarantor shall not
        be
        entitled to enforce or receive payment of any sums hereby subordinated until
        the
        Credit Line has been paid and performed in full and any such sums received
        in
        violation of this Guaranty shall be received by Guarantor in trust for
        Administrative Agent and the other Guaranteed Parties. The foregoing
        notwithstanding, Guarantor is not prohibited from receiving (a) such
        reasonable management fees or reasonable salary from Borrower as Administrative
        Agent may find reasonably acceptable from time to time, 

      

        
          
            
            

          

          
            G(1)-6

            
              

            

          

          
            
            

          

        

(b)    distributions
        from Borrower in an amount equal to any income taxes imposed on Guarantor
        which
        are attributable to Borrower’s income from any property owned by Borrower, and
        (c) distributions or dividends from Borrower from cash flow available for
        such distributions or dividends that was earned during the immediately preceding
        fiscal year in an amount that does not exceed ninety-five percent (95%) of
        Funds
        From Operations on a rolling four calendar quarter basis. Notwithstanding
        the
        above, Guarantor may receive distributions from Borrower to pay common and
        preferred stock dividends in any calendar quarter in an amount that exceeds
        Funds From Operations for such calendar quarter only to the extent necessary
        to
        enable Guarantor to make distributions necessary to continue to qualify as
        a
        REIT as that term is defined in Section
        12(b)
        of this
        Guaranty.

      


      Section
        11.    Guarantor’s
        Representations and Warranties.
        Guarantor represents and warrants that:

      


      (a)    Financial
        Statements True and Correct.
        All
        financial statements and other financial information furnished or to be
        furnished to Administrative Agent are or will be true and correct in all
        material respects determined according to GAAP unless otherwise provided
        for
        herein and do or will fairly represent the financial condition of Guarantor
        (including all contingent liabilities) (for purposes of this Section
        11(a),
        the
        term “material respects” means any variance in the aggregate amount of
        $10,000,000.00);

      


      (b)    Financial
        Statements According to GAAP.
        All
        financial statements were or will be prepared in accordance with
        GAAP;

      


      (c)    No
        Material Adverse Change.
        There
        has been no material adverse change in Guarantor’s financial condition since the
        dates of the statements most recently furnished to Administrative
        Agent;

      


      (d)    Organization
        of Guarantor.
        Guarantor is a corporation duly formed, validly existing and in good standing
        under the laws of Maryland;

      


      (e)    Authorization.
        The
        execution and compliance with this Guaranty, the Agreement, and the other
        Loan
        Documents to which Guarantor is a party are within Guarantor’s powers, have been
        duly authorized, and do not conflict with any of Guarantor’s organizational
        documents;

      


      (f)    Enforceable
        Agreement.
        This
        Guaranty is a legal, valid and binding agreement of Guarantor, enforceable
        against Guarantor in accordance with its terms, and any other Loan Document
        to
        which Guarantor is a party, when executed and delivered, will be similarly
        legal, valid, binding and enforceable, except to the extent that the enforcement
        of the rights and remedies of Administrative Agent or the other Guaranteed
        Parties may hereafter be subject to bankruptcy, insolvency, reorganization,
        moratorium or similar laws affecting generally the enforcement of creditors’
rights and remedies, and the availability of equitable remedies may be subject
        to the discretion of the court before which any proceeding thereof is
        brought;

      


      (g)    Good
        Standing.
        In each
        state in which Guarantor does business, it is, where required, properly
        licensed, in good standing and in compliance with fictitious name
        statutes;

      

        
          
            
            

          

          
            G(1)-7

            
              

            

          

          
            
            

          

        

      

       

      (h)    No
        Conflicts.
        Guarantor, to the best of its knowledge, is not in violation of, nor do the
        terms of this Guaranty or any other Loan Document conflict with, any law
        (including Environmental Laws), regulation or ordinance, any order of any
        court
        or governmental entity, or any covenant or agreement affecting Guarantor
        which
        would materially and adversely affect Guarantor’s ability to perform its
        obligations under this Guaranty or under any other Loan Document to which
        Guarantor is a party; and

      


      (i)    Lawsuits.
        There
        is no lawsuit, tax claim or other dispute pending or threatened against
        Guarantor which, if lost, would materially adversely impair Guarantor’s
        financial condition or ability to repay the Credit Line.

       

      (j)    Other
        Obligations.
        Guarantor is not in material default (taking into account all applicable
        cure
        periods, if any) on any material obligation for borrowed money, any purchase
        money obligation or any other material lease, commitment, contract, instrument
        or obligation.

      


      (k)    No
        Required Third Party/Governmental Approvals.
        No
        approval, consent, exemption, authorization, or other action by, or notice
        to,
        or filing with any third party or any Governmental Authority, is necessary
        or
        required in connection with the execution, delivery or performance of this
        Guaranty or any other Loan Document to which Guarantor is a party.

      


      (l)    Solvency.
        Immediately prior to and after and giving effect to the incurrence of
        Guarantor’s obligations under this Guaranty Guarantor is and will be Solvent.
“Solvent” shall mean that (i) the fair value of Guarantor’s assets is
        greater than the amount of Guarantor’s liabilities as such value is established
        and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy
        Code and, in the alternative, for purposes of the California Uniform Fraudulent
        Transfer Act and any other applicable fraudulent conveyance statute;
        (ii) the present fair saleable value of Guarantor’s assets is not less than
        the amount that will be required to pay the probable liability of Guarantor
        on
        its debts as they become absolute and matured; (iii) Guarantor is able to
        realize upon its assets and pay its debts and other liabilities as they mature
        in the normal course of business; (iv) Guarantor does not intend to, and
        does not believe that it will, incur debts or liabilities beyond Guarantor’s
        ability to pay as such debts and liabilities mature; and (v) Guarantor is
        not engaged in business or a transaction, and is not about to engage in business
        or a transaction, for which Guarantor’s property would constitute unreasonably
        small capital.

      


      Section
        12.    Affirmative
        Covenants.
        Guarantor promises to keep each of the following covenants:

      


      (a)    Compliance
        with Law.
        Guarantor shall comply with all existing and future laws, regulations, orders,
        building restrictions and requirements of, and all agreements with and
        commitments to, all Governmental Authorities having jurisdiction over Guarantor
        or Guarantor’s business. Notwithstanding any contrary provision in this Section,
        Guarantor shall
        have a right to contest all existing and future Requirement
        of Law before complying therewith. 

      


      (b)    REIT
        Status.
        Guarantor has elected and shall continue to elect to be taxed as, and shall
        conduct its affairs in a manner so as to retain its status as a real estate
        investment 

      

        
          
            
            

          

          
            G(1)-8

            
              

            

          

          
            
            

          

        

trust
        (“REIT”)
        pursuant to Sections 856 and 857 of the Internal Revenue Code of 1986, as
        amended from time to time (the “Code”).

      


      (c)    Stock
        Listing.
        Guarantor shall maintain a listing on the New York Stock Exchange.

      


      (d)    Financial
        and Other Information.
        Guarantor shall keep true and correct financial books and records, using
        generally accepted accounting principles consistently applied, or such other
        accounting principles as Administrative Agent in its reasonable judgment
        may
        find acceptable from time to time. Guarantor shall provide Administrative
        Agent
        with the items specified in Sections
        6.3(a), (b), (c), (d), (f), (g)
        and
(k)
        of the
        Agreement with respect to Guarantor, and any other financial or other
        information concerning Guarantor’s affairs and property as Administrative Agent
        may reasonably request, to be furnished promptly upon such request.

      


      (e)    Agreement
        Covenants.
        Guarantor shall observe, perform and comply with all covenants expressly
        applicable to Guarantor set forth in Articles
        6
        and
10
        of the
        Agreement, which by their terms Borrower is required to cause Guarantor to
        observe, perform and comply with, as if such covenants were set forth in
        full
        herein.

      


      Section
        13.    Negative
        Covenants.

      


      (a)    Without
        Administrative Agent’s prior written consent, which consent shall not be
        unreasonably withheld or delayed, Guarantor shall not:

      


      (i)    enter
        into or invest in any consolidation, merger, pool, syndicate or other
        combination unless Guarantor is the surviving entity and control of Guarantor
        does not change;

      


      (ii)    change
        the legal structure of Guarantor from a publicly traded real estate investment
        trust under the provisions of Sections 856 and 857 of the Code, or change
        the
        legal structure of Guarantor as a so-called up-REIT, or without 30 days’ prior
        written notice to Administrative Agent, change Guarantor’s jurisdiction of
        formation, place of business or chief executive office if Guarantor has more
        than one place of business; or

      


      (iii)    withdraw
        as Borrower’s general partner, or allow Guarantor to suffer a change in its
        executive management such that Keith Guericke is no longer Chief Executive
        Officer, George M. Marcus is no longer Chairman of the Board of Directors
        or
        Michael J. Schall is no longer Chief Operating Officer, unless such executive
        management is replaced by parties reasonably acceptable to Administrative
        Agent
        within 180 days.

      


      (b)    Guarantor
        shall not in any case:

      


      (i)    form
        additional unconsolidated down-REITs for property acquisitions (an “Acquisition
        down-REIT”)
        unless
        they comply on an on-going basis with each of the following
        conditions:

      

        
          
            
            

          

          
            G(1)-9

            
              

            

          

          
            
            

          

        

      

       

      A.    such
        Acquisition down-REIT is a limited partnership or limited liability company,
        and
        Essex Management Corporation (“EMC”)
        or any
        wholly owned subsidiary of Borrower or Guarantor shall be the sole general
        partner of any such partnership or the sole managing member of such limited
        liability company;

      


      B.    Guarantor
        and/or Borrower and/or EMC shall have effective management control of each
        Acquisition down-REIT and each property owned by such Acquisition down-REIT;
        and

      


      C.    limited
        partners or members of such Acquisition down-REIT shall receive only partnership
        units or membership interests in the Acquisition down-REIT and/or cash for
        value
        contributed;

      


      (ii)    liquidate
        or dissolve Guarantor’s business or, as general partner of Borrower, cause or
        permit Borrower to liquidate or dissolve Borrower’s business; or

      


      (iii)    dispose
        of all or substantially all of Guarantor’s business or Guarantor’s assets or, as
        general partner of Borrower, cause or permit Borrower to dispose of all or
        substantially all of Borrower’s business or Borrower’s assets.

      


      Section
        14.    Governing
        Law; Jurisdiction and Dispute Resolution.

      


      (i)    GOVERNING
        LAW.
        THIS
        GUARANTY IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
        LAWS
        OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA
        CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO
        ANY
        CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
        JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
        RIGHTS AND DUTIES OF THE PARTIES.

      


      (ii)    SUBMISSION
        TO JURISDICTION.
        GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE AGENT,
        EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
        TO
        THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA
        SITTING
        IN SAN
        FRANCISCO
        COUNTY
        AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN
        DISTRICT OF CALIFORNIA,
        AND ANY
        APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
        OF OR
        RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
        OR
        ENFORCEMENT OF ANY JUDGMENT, AND GUARANTOR AND EACH GUARANTEED PARTY (BY
        ITS
        ACCEPTANCE OF THIS GUARANTY) IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
        ALL
        CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
        IN SUCH CALIFORNIA
        STATE
        COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
        COURT. GUARANTOR AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS GUARANTY)
        AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE



      
        
          
          

        

        
          G(1)-10

          
            

          

        

        
          
          

        

      


      CONCLUSIVE
        AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN
        ANY
        OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN
        DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY GUARANTEED PARTY MAY OTHERWISE HAVE
        TO
        BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN
        DOCUMENT AGAINST GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION
        WHERE THE GUARANTOR OR ITS PROPERTIES ARE LOCATED.

      


      (iii)    WAIVER
        OF VENUE.
        GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE AGENT,
        EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
        BY
        APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
        OF
        VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
        OR
        ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (a) OF THIS
        SECTION. GUARANTOR AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE OF THIS
        GUARANTY) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
        APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
        SUCH
        ACTION OR PROCEEDING IN ANY SUCH COURT.

      


      (iv)    SERVICE
        OF PROCESS.
        GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
        FOR
        NOTICES IN SECTION 20.
        NOTHING
        IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY GUARANTEED PARTY TO SERVE PROCESS
        IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

       

      (v)    WAIVER
        OF JURY TRIAL.
        GUARANTOR AND EACH OTHER GUARANTEED PARTY (BY ITS ACCEPTANCE HEREOF) HEREBY
        IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
        RIGHT
        IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
        ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR
        THE
        TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
        OR
        ANY OTHER THEORY). GUARANTOR AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE
        HEREOF) (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
        OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
        WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
        AND
        (ii) ACKNOWLEDGES THAT IT HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND
        THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
        CERTIFICATIONS IN THIS SECTION.

      


      (vi)    Judicial
        Reference.
        If any
        action or proceeding by or against any party hereto in connection with any
        of
        the transactions contemplated by this Guaranty or any other Loan Document
        is
        filed in a forum in which predispute waivers of the right to trial by jury
        are
        invalid under applicable law, (a) the court shall, and is hereby directed
        to,
        make a general reference pursuant to California Code of Civil Procedure Section
        638 (or similar applicable law) 


      
        
          
          

        

        
          G(1)-11

          
            

          

        

        
          
          

        

      


      to
        a
        referee (who shall be a single active or retired judge) to hear and determine
        all of the issues in such action or proceeding (whether of fact or of law)
        and
        to report a statement of decision, provided that at the option of any party
        to
        such proceeding, any such issues pertaining to a “provisional remedy” (or
        similar term) as defined in California Code of Civil Procedure Section 1281.8
        (or similar applicable law) shall be heard and determined by the court, and
        (b) the prevailing party, or the non-dismissing party in the event of a
        voluntary dismissal by the party instituting the action, shall be entitled
        to
        the full amount of all fees and expenses of any referee appointed in such
        action
        or proceeding. 

      


      Section
        15.    Authorization;
        No Violation.
        Guarantor is authorized to execute, deliver and perform under this Guaranty,
        which is a valid and binding obligation of Guarantor, except as the same
        may be
        limited by insolvency, bankruptcy, reorganization, or other laws relating
        to or
        affecting the enforcement of creditors’ rights or by general equitable
        principles. No provision or obligation of Guarantor contained in this Guaranty
        violates any applicable law, regulation or ordinance, or any order or ruling
        of
        any court or governmental agency. No such provision or obligation conflicts
        with, or constitutes a breach or default under, any agreement to which Guarantor
        is a party. No consent, approval or authorization of or notice to any person
        or
        entity is required in connection with Guarantor’s execution of and obligations
        under this Guaranty.

      


      Section
        16.    Additional
        and Independent Obligations.
        Guarantor’s obligations under this Guaranty are in addition to its obligations
        under any other existing or future guaranties, each of which shall remain
        in
        full force and effect until it is expressly modified or released in a writing
        signed by Administrative Agent. Guarantor’s obligations under this Guaranty are
        independent of those of Borrower on the Credit Line. Administrative Agent
        or any
        other Guaranteed Party may bring a separate action, or commence a separate
        reference or arbitration proceeding against Guarantor without first proceeding
        against Borrower, any other person or any security that Administrative Agent
        or
        any other Guaranteed Party may hold, and without pursuing any other remedy.
        Administrative Agent’s rights under this Guaranty shall not be exhausted by any
        action by Administrative Agent until the Credit Line has been paid and performed
        in full.

      


      Section
        17.    No
        Waiver; Consents; Cumulative Remedies.
        Each
        waiver by Administrative Agent must be in writing, and no waiver shall be
        construed as a continuing waiver. No waiver shall be implied from Administrative
        Agent’s or any other Guaranteed Party’s delay in exercising or failure to
        exercise any right or remedy against Borrower, Guarantor or any security.
        Consent by Administrative Agent or the other Guaranteed Parties to any act
        or
        omission by Borrower or Guarantor shall not be construed as a consent to
        any
        other or subsequent act or omission, or as a waiver of the requirement for
        Administrative Agent’s or the other Guaranteed Parties’ consent to be obtained
        in any future or other instance. All remedies of Administrative Agent or
        the
        other Guaranteed Parties against Borrower and Guarantor are
        cumulative.

      


      Section
        18.    No
        Release.
        Guarantor shall not be released from its obligations under this Guaranty
        except
        by a writing signed by Administrative Agent and the other Guaranteed
        Parties.

      

        
          
            
            

          

          
            G(1)-12

            
              

            

          

          
            
            

          

        

      

       

      Section
        19.    Heirs,
        Successors and Assigns; Participations.
        The
        terms of this Guaranty shall bind and benefit the heirs, legal representatives,
        successors and assigns of Administrative Agent, each Guaranteed Party and
        Guarantor; provided,
        however, that Guarantor may not assign this Guaranty, or assign or delegate
        any
        of its rights or obligations under this Guaranty, without the prior written
        consent of Administrative Agent, given only with the consent of all of the
        other
        Guaranteed Parties in each instance. Each Lender shall have the right to
        transfer its Commitment and its outstanding Loans to any other Person on
        the
        terms and subject to the conditions set forth in Section
        10.5
        of the
        Agreement. Without the consent of or notice to Guarantor, Administrative
        Agent
        and the other Guaranteed Parties may disclose to any prospective or actual
        purchasers of any interest in any Loan or any other loans made by Lenders
        to
        Borrower (in the case of a prospective purchase of an interest in the Loans
        or
        any other loan, upon Lender’s receiving its standard confidentiality letter from
        the prospective purchaser of the interest in the Loan or any other loan),
        any
        financial or other information relating to Guarantor, this Guaranty or any
        security that may at any time be given for this Guaranty.

      


      Section
        20.    Notices.
        All
        notices and other communications provided for herein shall be in writing
        and
        shall be delivered by hand or overnight courier service, mailed by certified
        or
        registered mail or sent by telecopier, in the case of Guarantor, to the address
        or telecopier number specified on the signature page hereof, and in the case
        of
        the Administrative Agent, the L/C Issuer and the Lenders, to the addresses
        or
        telecopier numbers specified in the Credit Agreement. Notices sent by hand
        or
        overnight courier service, or mailed by certified or registered mail, shall
        be
        deemed to have been given when received; notices sent by telecopier shall
        be
        deemed to have been given when sent (except that, if not given during normal
        business hours for the recipient, shall be deemed to have been given at the
        opening of business on the next business day for the recipient). Each of
        Guarantor and the Guaranteed Parties may change its address or telecopier
        number
        for notices and other communications hereunder by notice to the other
        parties.

      


      Section
        21.    Rules
        of Construction.
        In this
        Guaranty, the word “Borrower”
        includes each of the named Borrower, each other Loan Party and any other
        person
        who at any time assumes or otherwise becomes primarily liable for all or
        any
        part of the obligations of the named Borrower on the Credit Line. The word
        “person” includes any individual, company, trust or other legal entity of any
        kind. The word “include(s)” means “include(s), without limitation,” and the word
“including” means “including, but not limited to.” When the context and
        construction so require, all words used in the singular shall be deemed to
        have
        been used in the plural and vice versa. No listing of specific instances,
        items
        or matters in any way limits the scope or generality of any language of this
        Guaranty. All headings appearing in this Guaranty are for convenience only
        and
        shall be disregarded in construing this Guaranty. The rules of interpretation
        set forth in Section
        1.2
        of the
        Agreement shall be applicable to this Guaranty and are incorporated herein
        by
        this reference.

      


      Section
        22.    Costs
        and
        Expenses; Indemnification. 

      


      (a)    Costs
        and Expenses.
        Guarantor shall pay (i) all reasonable out-of-pocket expenses incurred by
        the Administrative Agent and its Affiliates (including the reasonable fees,
        charges and disbursements of counsel for the Administrative Agent), in
        connection with the preparation, negotiation, execution and delivery of this
        Guaranty and the other Guarantor 


      
        
          
          

        

        
          G(1)-13

          
            

          

        

        
          
          

        

      


      Documents
        or any amendments, modifications or waivers of the provisions hereof or thereof
        (whether or not the transactions contemplated hereby or thereby shall be
        consummated), and (ii) all out-of-pocket expenses incurred by the
        Administrative Agent or any other Guaranteed Party (including the fees, charges
        and disbursements of any counsel for any Guaranteed Party), in connection
        with
        the enforcement or protection of its rights in connection with this Guaranty
        and
        the other Loan Documents, including its rights under this Section, including
        all
        such out-of-pocket expenses incurred during any workout, restructuring or
        negotiations in respect of the Guaranteed Obligations.

      


      (b)    Indemnification.
        Guarantor shall indemnify the Administrative Agent (and any sub-agent thereof),
        each other Guaranteed Party, and each Related Party of any of the foregoing
        Persons (each such Person being called an “Indemnitee”)
        against, and hold each Indemnitee harmless from, any and all losses, claims,
        damages, liabilities and related expenses (including the fees, charges and
        disbursements of any counsel for any Indemnitee), incurred by any Indemnitee
        or
        asserted against any Indemnitee by any third party or by Guarantor or any
        other
        Loan Party arising out of, in connection with, or as a result of (i) the
        execution or delivery of this Guaranty or any other Loan Document or any
        agreement or instrument contemplated hereby or thereby, the performance by
        the
        parties hereto or thereto of their respective obligations hereunder or
        thereunder or the consummation of the transactions contemplated hereby or
        thereby, (ii) any Loan or Letter of Credit or the use or proposed use of
        the proceeds therefrom (including any refusal by the L/C Issuer to honor
        a
        demand for payment under a Letter of Credit if the documents presented in
        connection with such demand do not strictly comply with the terms of such
        Letter
        of Credit), (iii) any actual or alleged presence or release of Hazardous
        Materials on or from any property owned or operated by Borrower or any of
        its
        Subsidiaries, or any Environmental Liability related in any way to Borrower
        or
        any of its Subsidiaries, or (iv) any actual or prospective claim,
        litigation, investigation or proceeding relating to any of the foregoing,
        whether based on contract, tort or any other theory, whether brought by a
        third
        party or by Borrower or any other Loan Party, and regardless of whether any
        Indemnitee is a party thereto; provided
        that
        such indemnity shall not, as to any Indemnitee, be available to the extent
        that
        such losses, claims, damages, liabilities or related expenses (x) are
        determined by a court of competent jurisdiction by final and nonappealable
        judgment to have resulted from the gross negligence or willful misconduct
        of
        such Indemnitee or (y) result from a claim brought by Borrower or any other
        Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
        obligations hereunder or under any other Loan Document, if Borrower or such
        other Loan Party has obtained a final and nonappealable judgment in its favor
        on
        such claim as determined by a court of competent jurisdiction. 

      


      (c)    Interest.
        Any
        amounts payable to by Guarantor under this Section 22
        or
        otherwise under this Guaranty if not paid upon demand shall bear interest
        from
        the date of such demand until paid in full, at a fluctuating interest rate
        per
        annum at all times equal to the Default Rate applicable to Reference Rate
        Committed Loans to the fullest extent permitted by applicable Law. Any such
        interest shall be due and payable upon demand and shall be calculated on
        the
        basis of a year of 365 or 366 days, as the case may be, and the actual number
        of
        days elapsed. 

      


      (d)    Payment.
        All
        amounts due under this Section
        22
        shall be
        payable within fifteen days after demand therefor.

      

        
          
            
            

          

          
            G(1)-14

            
              

            

          

          
            
            

          

        

      

       

      (e)    Survival.
        The
        agreements in this Section
        22
        shall
        survive the resignation of the Administrative Agent and the L/C Issuer, the
        replacement of any Lender, the termination of the Commitments and the repayment,
        satisfaction or discharge of all the other Guaranteed Obligations.

      


      Section
        23.    Consideration.
        Guarantor acknowledges that it expects to benefit from Lenders’ extension of the
        Credit Line to Borrower because of its relationship to Borrower, and that
        it is
        executing this Guaranty in consideration of that anticipated
        benefit.

       

      Section
        24.    Payments.

      


      (a)    Guarantor
        hereby agrees, in furtherance of the foregoing provisions of this Guaranty
        and
        not in limitation of any other right which any Guaranteed Party or any other
        Person may have against Guarantor by virtue hereof, upon the failure of Borrower
        to pay any of the Guaranteed Obligations when and as the same shall become
        due,
        whether at stated maturity, by required prepayment, declaration, acceleration,
        demand or otherwise (including amounts that would become due but for the
        operation of the automatic stay under §362(a) of the Bankruptcy Code), Guarantor
        shall forthwith pay, or cause to be paid, in cash, to the Administrative
        Agent
        an amount equal to the amount of the Guaranteed Obligations then due as
        aforesaid (including interest which, but for the filing of a petition in
        any
        Insolvency Proceeding with respect to Borrower, would have accrued on such
        Guaranteed Obligations, whether or not a claim is allowed against Borrower
        for
        such interest in any such Insolvency Proceeding). Guarantor shall make each
        payment hereunder, unconditionally in full without set-off, counterclaim
        or
        other defense, on the day when due in Dollars, in immediately available funds,
        to the Administrative Agent at such office of the Administrative Agent and
        to
        such account as the Administrative Agent shall specify in writing to
        Guarantor.

      


      (b)    Any
        and
        all payments by or on account of any Guaranteed Obligation hereunder or under
        any other Guarantor Document shall be made free and clear of and without
        reduction or withholding for any Indemnified Taxes or Other Taxes, provided
        that if
        Guarantor shall be required by applicable law to deduct any Indemnified Taxes
        (including any Other Taxes) from such payments, then (i) the sum payable
        shall be increased as necessary so that after making all required deductions
        (including deductions applicable to additional sums payable under this Section)
        the Guaranteed Party receives an amount equal to the sum it would have received
        had no such deductions been made, (ii) Guarantor shall make such deductions
        and (iii) Guarantor shall timely pay the full amount deducted to the
        relevant Governmental Authority in accordance with applicable law.

      


      (c)    Without
        limiting the provisions of paragraph (b) above, Guarantor shall timely pay
        any
        Other Taxes to the relevant Governmental Authority in accordance with applicable
        law.

      


      (d)    Guarantor
        shall indemnify the Guaranteed Parties, within ten days after demand therefor,
        for the full amount of any Indemnified Taxes or Other Taxes (including
        Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
        amounts payable under this Section) paid by the Guaranteed Parties and any
        penalties, interest and reasonable expenses arising therefrom or with respect
        thereto, whether or not such Indemnified Taxes or 


      
        
          
          

        

        
          G(1)-15

          
            

          

        

        
          
          

        

      


      Other
        Taxes were correctly or legally imposed or asserted by the relevant Governmental
        Authority. A certificate as to the amount of such payment or liability delivered
        to Guarantor by a Guaranteed Party (with a copy to the Administrative Agent),
        or
        by the Administrative Agent on its own behalf or on behalf of another Guaranteed
        Party, shall be conclusive absent manifest error.

      


      (e)    As
        soon
        as practicable after any payment of Indemnified Taxes or Other Taxes by
        Guarantor to a Governmental Authority, Guarantor shall deliver to the
        Administrative Agent the original or a certified copy of a receipt issued
        by
        such Governmental Authority evidencing such payment, a copy of the return
        reporting such payment or other evidence of such payment reasonably satisfactory
        to the Administrative Agent.

      


      (f)    Any
        payments by Guarantor hereunder the application of which is not otherwise
        provided for herein, shall be applied in the order specified in Section
        8.3
        of the
        Credit Agreement.

      


      (g)    To
        the
        extent that any payment by or on behalf of Borrower is made to the
        Administrative Agent or any other Guaranteed Party, or the Administrative
        Agent
        or any other Guaranteed Party exercises its right of setoff, and such payment
        or
        the proceeds of such setoff or any part thereof is subsequently invalidated,
        declared to be fraudulent or preferential, set aside or required (including
        pursuant to any settlement entered into by the Administrative Agent or any
        other
        Guaranteed Party in its discretion) to be repaid to a trustee, receiver or
        any
        other party, in connection with any proceeding under any Insolvency Proceeding
        or otherwise, then (i) to the extent of such recovery, the obligation or
        part
        thereof originally intended to be satisfied shall be revived and continued
        in
        full force and effect as if such payment had not been made or such setoff
        had
        not occurred, and (ii) each Lender and the L/C Issuer severally (by its
        acceptance hereof) agrees to pay to the Administrative Agent upon demand
        its
        applicable share (without duplication) of any amount so recovered from or
        repaid
        by the Administrative Agent, plus interest thereon from the date of such
        demand
        to the date such payment is made at a rate per annum equal to the Federal
        Funds
        Rate from time to time in effect. The obligations of the Lenders and the
        L/C
        Issuer under clause (ii) of the preceding sentence shall survive the payment
        in
        full of the Guaranteed Obligations and the termination of this
        Guaranty.

      


      (h)    Notwithstanding
        anything to the contrary contained herein or in Guarantor Document, the interest
        paid or agreed to be paid hereunder and under the other Guarantor Documents
        shall not exceed the maximum rate of non-usurious interest permitted by
        applicable Law (the “Maximum
        Rate”).
        If
        the Administrative Agent or any other Guaranteed Party shall receive interest
        in
        an amount that exceeds the Maximum Rate, the excess interest shall be applied
        to
        the principal of the Guaranteed Obligations or, if it exceeds such unpaid
        principal, refunded to Guarantor. In determining whether the interest contracted
        for, charged, or received by the Administrative Agent or any other Guaranteed
        Party exceeds the Maximum Rate, such Person may, to the extent permitted
        by
        applicable Law, (i) characterize any payment that is not principal as an
        expense, fee, or premium rather than interest, (ii) exclude voluntary
        prepayments and the effects thereof, and (iii) amortize, prorate, allocate,
        and
        spread in equal or unequal parts the total amount of interest throughout
        the
        contemplated term of the Obligations hereunder.


      
        
          
          

        

        
          G(1)-16

          
            

          

        

        
          
          

        

      


      (i)    The
        agreements in this Section
        24
        shall
        survive the payment of all Guaranteed Obligations.

      


      Section
        25.    Stay
        of Acceleration.
        In
        the
        event that acceleration of the time for payment of any of the obligations
        guaranteed hereunder is stayed, in connection with any Insolvency Proceeding
        commenced by or against Guarantor or Borrower, or otherwise, all such amounts
        shall nonetheless be payable by Guarantor immediately upon demand by the
        Administrative Agent. 

      


      Section
        26.    Setoff.
        If
        an
        Event of Default shall have occurred and be continuing, each Lender and the
        L/C
        Issuer is hereby authorized at any time and from time to time, to the fullest
        extent permitted by applicable law, to set off and apply any and all deposits
        (general or special, time or demand, provisional or final, in whatever currency)
        at any time held and other obligations (in whatever currency) at any time
        owing
        by such Lender or the L/C Issuer to or for the credit or the account of
        Guarantor against any and all of the obligations of Guarantor now or hereafter
        existing under this Guaranty or any other Guarantor Document to such Lender
        or
        the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer
        shall have made any demand under this Guaranty or any other Loan Document
        and
        although such obligations of Guarantor may be contingent or unmatured or
        are
        owed to a branch or office of such Lender or the L/C Issuer different from
        the
        branch or office holding such deposit or obligated on such indebtedness.
        The
        rights of each Lender and the L/C Issuer under this Section are in addition
        to
        other rights and remedies (including other rights of setoff) that such Lender
        or
        the L/C Issuer may have. Each Lender and the L/C Issuer (by its acceptance
        hereof) agrees to notify Guarantor and the Administrative Agent promptly
        after
        any such setoff and application, provided
        that the
        failure to give such notice shall not affect the validity of such setoff
        and
        application.

      


      Section
        27.    Integration;
        Modifications.
        This
        Guaranty (a) amends and restates in full the Existing Payment Guaranty, (b)
        integrates all the terms and conditions mentioned in or incidental to this
        Guaranty, (c) supersedes all oral negotiations and prior writings with respect
        to its subject matter, and (d) is intended by Guarantor, the Administrative
        Agent and the other Guaranteed Parties as the final expression of the agreement
        with respect to the terms and conditions set forth in this Guaranty and as
        the
        complete and exclusive statement of the terms agreed to by Guarantor, the
        Administrative Agent and the other Guaranteed Parties. No representation,
        understanding, promise or condition shall be enforceable against Guarantor
        or
        any Guaranteed Party unless it is contained in this Guaranty. This Guaranty
        may
        not be modified except in a writing signed by both Administrative Agent and
        Guarantor. No course of prior dealing, usage of trade, parol or extrinsic
        evidence of any nature shall be used to supplement, modify or vary any of
        the
        terms hereof.

      


      Section
        28.    Miscellaneous.
        The
        legal incapacity of any Guarantor shall not terminate the obligations of
        such
        Guarantor under this Guaranty, including its obligations with regard to future
        advances under the Loan Documents. The liability of all persons who are in
        any
        manner obligated under this Guaranty shall be joint and several. The illegality
        or unenforceability of one or more provisions of this Guaranty shall not
        affect
        any other provision. Time is of the essence in the performance of this Guaranty
        by Guarantor.

      



      
        
          
          

        

        
          G(1)-17

          
            

          

        

        
          
          

        

      


      Section
        29.    Counsel.
        Guarantor acknowledges that Guarantor has had adequate opportunity to carefully
        read this Guarantee and to consult with an attorney of Guarantor’s choice prior
        to signing it.

      


      Section
        30.    USA
        PATRIOT Act Notice.
        Each
        Lender that is subject to the Act (as hereinafter defined) and the
        Administrative Agent (for itself and not on behalf of any Lender) hereby
        notifies Guarantor that pursuant to the requirements of the USA Patriot Act
        (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”),
        it is
        required to obtain, verify and record information that identifies Guarantor,
        which information includes the name and address of Guarantor and other
        information that will allow such Lender or the Administrative Agent, as
        applicable, to identify Guarantor in accordance with the Act.

      


      Section
        31.    Time
        is of the Essence.
        Time is
        of the essence of this Guaranty and the other Guarantor Documents. 

      


      Section
        32.    Severability.
        If any
        provision of this Guaranty or the other Guarantor Documents is held to be
        illegal, invalid or unenforceable, (a) the legality, validity and enforceability
        of the remaining provisions of this Guaranty and the other Guarantor Documents
        shall not be affected or impaired thereby and (b) the parties shall endeavor
        in
        good faith negotiations to replace the illegal, invalid or unenforceable
        provisions with valid provisions the economic effect of which comes as close
        as
        possible to that of the illegal, invalid or unenforceable provisions. The
        invalidity of a provision in a particular jurisdiction shall not invalidate
        or
        render unenforceable such provision in any other jurisdiction.

      


      Section
        33.    Defined
        Terms.
        As used
        in this Guaranty (including in the recitals hereof), the following terms
        shall
        have the following meanings:

      


      “Bankruptcy
        Code”
means
        the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
        seq.).

      


      “Excluded
        Taxes”
means,
        with respect to any Guaranteed Party or any other recipient of any payment
        to be
        made by or on account of any Guaranteed Obligation hereunder, (a) taxes imposed
        on or measured by its overall net income (however denominated), and franchise
        taxes imposed on it, under the laws of any Governmental Authority, (b) any
        branch profits taxes imposed by any Governmental Authority, and (c) in the
        case
        of a Guaranteed Party that is a Foreign Lender, any withholding tax that
        is
        imposed on amounts payable to such Foreign Lender at the time such Foreign
        Lender becomes a party to the Agreement (or designates a new Lending Office)
        or
        is attributable to such Foreign Lender’s failure or inability (other than as a
        result of a Change in Law) to comply with Section 3.1.5
        of the
        Agreement, except to the extent that such Foreign Lender (or its assignor,
        if
        any) was entitled, at the time of designation of a new Lending Office (or
        assignment), to receive additional amounts with respect to such withholding
        tax
        pursuant to Section 3.1.5
        of the
        Agreement.

      


      “Guaranteed
        Obligations”
means
        the obligations guaranteed by Guarantor hereunder, as set forth in Sections
        1
        and
2
        hereof.

      


      “Guaranteed
        Parties”
means
        the Administrative Agent, the L/C Issuer, the Swing Line Lender and the
        Lenders.


      
        
          
          

        

        
          G(1)-18

          
            

          

        

        
          
          

        

      


      “Guarantor
        Documents”
means
        this Guaranty and all other certificates, documents, agreements and instruments
        delivered to any Guaranteed Party under or in connection with this
        Guaranty.

      


      “Indemnified
        Taxes”
means
        Taxes other than Excluded Taxes.

      


      “Loan
        Party”
means
        Borrower, Guarantor and each Permitted Affiliate.

      


      “Other
        Taxes”
means
        all present or future stamp or documentary taxes or any other excise or property
        taxes, charges or similar levies arising from any payment made hereunder
        or
        under any other Guarantor Document or from the execution, delivery or
        enforcement of, or otherwise with respect to, this Guaranty or any other
        Guarantor Document. Other Taxes shall not include any Excluded
        Taxes.

      


      “Taxes”
means
        all present or future taxes, levies, imposts, duties, deductions, withholdings,
        assessments, fees or other charges imposed by any Governmental Authority
        and
        arising from any payment made hereunder or under any other Guarantor Document
        or
        from the execution, delivery or enforcement of, or otherwise with respect
        to,
        this Guaranty or any other Guarantor Document, including any interest, additions
        to tax or penalties applicable thereto.


      
        
          
          

        

        
          G(1)-19

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, Guarantor has executed this Third Amended and Restated Payment
        Guaranty, as of the date first above written.

       

      
        	
                ESSEX
                  PROPERTY TRUST, INC.,


                a
                  Maryland corporation

              
	 
	
                By:

              	
                 

              
	
                Name:

              	
                 

              
	Title:	 
	 	 
	
                Address
                  Where Notices to Guarantor are to be Sent: 

                


                Essex
                  Property Trust, Inc.

                925
                  E. Meadow Drive

                Palo
                  Alto, California 94303

                Attn:
                  Mark J. Mikl and Jordan E. Ritter 

                Facsimile:
                  (650) 843-1514 and (650) 858-1372 

                


                Address
                  Where Notices to Administrative Agent are to be sent: 

                


                Bank
                  of America, N.A.

                1455
                  Market Street, CA5-701-05-19

                San
                  Francisco, CA 94103

                Attention:
                  Kathleen Carry

                Telephone:
                  (415) 436-4001

                Facsimile:
                  (415) 503-5001

                Electronic
                  Mail:
                  kathleen.carry@bankofamerica.com

              


      

      

        
          
            
            

          

          
            G(1)-20

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        G-2

      


      FORM
        OF PAYMENT GUARANTY (PERMITTED AFFILIATE)

       

      [See
        Attached]

      

        
          
            
            

          

          
            G(2)

            
              

            

          

          
            
            

          

        

      

       

      SECOND
        AMENDED AND RESTATED PAYMENT GUARANTY


      (Permitted
        Affiliate - Revolving Loans and Letters of Credit)

      


      THIS
        SECOND AMENDED AND RESTATED PAYMENT GUARANTY
        (this
“Payment
        Guaranty”)
        is
        dated as of March 24, 2006, and is made by each entity named in the
        signature pages hereof (each a “Permitted
        Affiliate”
and
        collectively, the “Permitted
        Affiliates”),
        in
        favor of Bank of America, N.A., as administrative agent (in such capacity,
        “Administrative
        Agent”)
        for
        the lenders (each, a “Lender”
and
        collectively, “Lenders”)
        from
        time to time party to the Agreement (as hereinafter defined) and as Swing
        Line
        Lender and L/C Issuer (each a “Guaranteed
        Party”,
        and
        collectively, the “Guaranteed
        Parties”).
        

      


      Factual
        Background

      


      A.    Essex
        Portfolio, L.P., a California limited partnership (“Borrower”),
        Administrative Agent and the lenders party thereto entered into a Third Amended
        and Restated Revolving Credit Agreement dated as of April 30, 2004 (as
        amended from time to time, the “Existing
        Agreement”),
        pursuant to which such lenders agreed to make available to Borrower an unsecured
        revolving line of credit and letter of credit facility (the “Credit
        Line”)
        to
        Borrower on the terms and subject to the conditions set forth
        therein.

      


      B.    In
        connection with the Existing Agreement, each of JMS Acquisition LLC, Jaysac
        GP
        Corp. and Jaysac, Ltd. executed an Amended and Restated Payment Guaranty,
        dated
        as of April 30, 2004 (the “Existing
        Payment Guaranty”),
        to
        induce the lenders to extend the Credit Line to Borrower under the Existing
        Agreement. 

      


      C.    Borrower,
        Administrative Agent, Lenders, Swing Line Lender and L/C Issuer are entering
        into a Fourth Amended and Restated Revolving Credit Agreement dated as of
        the
        date hereof (the “Agreement”),
        which
        Agreement amends and restates the Existing Agreement in full. In connection
        with
        the Agreement, Lenders have agreed to increase and extend the term of the
        Credit
        Line and enter into certain other amendments of the Existing
        Agreement.

      


      D.    Each
        Permitted Affiliate is executing this Payment Guaranty to induce Lenders
        to
        extend the term of the Credit Line and enter into certain other amendments
        of
        the Existing Agreement. This Payment Guaranty amends, restates and supersedes
        in
        full each of the Existing Payment Guaranty. 

      


      E.    This
        Payment Guaranty is one of several Loan Documents, as defined and designated
        in
        the Agreement. The Loan Documents also include the Agreement and certain
        other
        specified instruments and agreements. Capitalized terms used in this Payment
        Guaranty shall have the meanings set forth in Section 35
        below or
        in the text of this Payment Guaranty and, if not defined in Section 35
        below or
        otherwise herein, shall have the meanings given to them in the Agreement.
        


      
        
          
          

        

        
          G(2)-1

          
            

          

        

        
          
          

        

      


      Guaranty

      


      Section
        1.    Guaranty
        of Credit Line; Limitation. 

      


      (a)    Each
        Permitted Affiliate hereby unconditionally and irrevocably jointly and severally
        guaranties to the Guaranteed Parties, and their respective successors,
        transferees and assigns, the full and prompt payment of the Credit Line when
        due
        (whether at stated maturity, by required prepayment, declaration, acceleration,
        demand or otherwise) and performance of the indebtedness, liabilities and
        other
        obligations of Borrower to the Guaranteed Parties under or in connection
        with
        the Agreement, the Notes and the other Loan Documents, and unconditionally
        and
        irrevocably agrees to pay to Administrative Agent, for its own account and
        for
        the account of the other Guaranteed Parties, upon the occurrence of an Event
        of
        Default under and as defined in the Agreement, the full amount of the Credit
        Line. This is a guaranty of payment, not of collection. If Borrower defaults
        in
        the payment when due of all or any part of the Credit Line, Permitted Affiliates
        shall in lawful money of the United States pay to Administrative Agent or
        order,
        on demand, all sums due and owing on the Credit Line, including all interest,
        charges, fees and other sums, costs and expenses.

      


      (b)    Notwithstanding
        anything to the contrary contained herein, to the extent that any Permitted
        Affiliate shall, under this Payment Guaranty, repay any of the Credit Line,
        the
        liability of such Permitted Affiliate hereunder shall be limited to an amount
        equal to the maximum amount of liability for payments on the Credit Line
        which
        could be asserted against such Permitted Affiliate hereunder without (i)
        rendering such Permitted Affiliate “insolvent” within the meaning of Section
        101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer
        Act
        (“UFTA”)
        or
        Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”),
        (ii)
        rendering such Permitted Affiliate no longer Solvent, or (iii) rendering
        such
        Permitted Affiliate’s obligations hereunder unlawful or subject to avoidance as
        a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code
        or
        any comparable provisions of applicable state law (collectively, the
“Fraudulent
        Transfer Laws”),
        in
        each case after giving effect to all other liabilities of such Permitted
        Affiliate, contingent or otherwise, that are relevant under the Fraudulent
        Transfer Laws (the greatest amount payable by such Permitted Affiliate without
        rendering such Permitted Affiliate’s obligations hereunder unlawful or being
        subject to avoidance under the Fraudulent Transfer Laws being at any time,
        the
“Maximum
        Liability”).
        To
        the extent that any Permitted Affiliate shall, under this Payment Guaranty,
        repay any of the Credit Line, then such Permitted Affiliate shall, subject
        to
        the provisions of Sections
        7
        and
10
        below,
        be entitled to contribution and indemnification from, and be reimbursed by,
        each
        of the other Permitted Affiliates with respect thereto in an amount, for
        each
        other Permitted Affiliate, equal to a fraction of such payment, the numerator
        of
        which fraction is such other Permitted Affiliate’s Maximum Liability as of the
        date of determination and the denominator of which is the sum of the Maximum
        Liability of such Permitted Affiliate and all of the other Permitted Affiliates
        as of the date of determination.

      


      Section
        2.    Credit
        Line.
        In this
        Payment Guaranty, the term “Credit
        Line”
is
        broadly defined to mean and include all primary, secondary, direct, indirect,
        fixed and contingent obligations of Borrower to pay principal, interest,
        prepayment charges, late charges, loan fees and any other fees, charges,
        sums,
        costs and expenses which may be owing at any time under the Loan Documents,
        as
        any or all of them may from time to time be modified, amended, extended



      
        
          
          

        

        
          G(2)-2

          
            

          

        

        
          
          

        

      


      or
        renewed, including all unpaid principal of the Loans, all amounts owing in
        respect of the L/C Obligations, all interest accrued thereon, all
        indemnification obligations of Borrower under or in connection with the
        Agreement, the Notes and the other Loan Documents, and all other amounts
        payable
        by Borrower to the Guaranteed Parties thereunder or in connection therewith,
        including all such amounts that may be or hereafter become unenforceable
        or be
        or hereafter become an allowed or disallowed claim under any Insolvency
        Proceeding, and including interest that accrues after the commencement by
        or
        against Borrower or any Affiliate thereof under any Insolvency Proceeding
        naming
        such Person as the debtor in such proceeding. For purposes of this Payment
        Guaranty, the Credit Line includes all such obligations which may arise in
        connection with any transactions between Borrower and Lenders which may afford
        interest rate protection to all or part of the Credit Line, if any, and all
        other indebtedness, liabilities and obligations to be paid or performed by
        Permitted Affiliates in connection with this Payment Guaranty (including
        any and
        all amounts due under Section 22).

      


      Section
        3.    Rights
        of Administrative Agent and the other Guaranteed Parties.
        Each
        Permitted Affiliate authorizes Administrative Agent and/or the other Guaranteed
        Parties to perform any or all of the following acts at any time in its sole
        discretion, all without notice to any Permitted Affiliate and without affecting
        any Permitted Affiliate’s obligations under this Payment Guaranty:

      


      (a)    alter
        any
        terms of the Credit Line or any part of it, including renewing, compromising,
        extending or accelerating, or otherwise changing the time for payment of,
        or
        increasing or decreasing the rate of interest on, the Credit Line or any
        part of
        it;

      


      (b)    take
        and
        hold security for the Credit Line or this Payment Guaranty, accept additional
        or
        substituted security for either, and subordinate, exchange, enforce, waive,
        release, compromise, fail to perfect and sell or otherwise dispose of any
        such
        security;

      


      (c)    direct
        the order and manner of any sale of all or any part of any security now or
        later
        to be held for the Credit Line or this Payment Guaranty, and Administrative
        Agent or any other Guaranteed Party may also bid at any such sale;

      


      (d)    apply
        any
        payments or recoveries from Borrower, any Permitted Affiliate, any other
        guarantor or any other source, and any proceeds of any security, to Borrower’s
        obligations under the Loan Documents in such manner, order and priority as
        Administrative Agent may elect whether or not those obligations are guarantied
        by this Payment Guaranty or secured at the time of the application;

      


      (e)    release
        Borrower of its liability for the Credit Line or any part of it;

      


      (f)    substitute,
        add or release any one or more guarantors or endorsers; or

      


      (g)    in
        addition to the Credit Line, extend other credit to Borrower, and may take
        and
        hold security for the credit so extended, all without affecting any Permitted
        Affiliate’s liability under this Payment Guaranty.

      


      Section
        4.    Guaranty
        to be Absolute.
        Each
        Permitted Affiliate expressly agrees that until the Credit Line is paid and
        performed in full and each and every term, covenant and 


      
        
          
          

        

        
          G(2)-3

          
            

          

        

        
          
          

        

      


      condition
        of this Payment Guaranty is fully performed, none of the Permitted Affiliates
        shall be released by or because of:

      


      (a)    any
        act
        or event that might otherwise discharge, reduce, limit or modify any Permitted
        Affiliate’s obligations under this Payment Guaranty;

      


      (b)    any
        waiver, extension, modification, forbearance, delay or other act or omission
        of
        Administrative Agent or any other Guaranteed Party, or its failure to proceed
        promptly or otherwise as against Borrower, any Permitted Affiliate, any other
        guarantor or any security;

      


      (c)    any
        action, omission or circumstance which might increase the likelihood that
        any
        Permitted Affiliate may be called upon to perform under this Payment Guaranty
        or
        which might affect the rights or remedies of any Permitted Affiliate as against
        Borrower or any other Person;

      


      (d)    any
        dealings occurring at any time between Borrower, Administrative Agent or
        any
        other Guaranteed Party, whether relating to the Credit Line or otherwise;
        or

      


      (e)    any
        action of Administrative Agent or any other Guaranteed Party described in
        Section
        3
        above.

      


      Each
        Permitted Affiliate hereby acknowledges that absent this Section
        4,
        each
        Permitted Affiliate might have a defense to the enforcement of this Payment
        Guaranty as a result of one or more of the foregoing acts, omissions,
        agreements, waivers or matters. Each Permitted Affiliate hereby expressly
        waives
        and surrenders any defense to any liability under this Payment Guaranty based
        upon any of such acts, omissions, agreements, waivers or matters. 

      


      Section
        5.    Liability
        of Permitted Affiliates.
        Each
        Permitted Affiliate’s obligations under this Payment Guaranty are and shall be
        independent, absolute, unconditional and irrevocable, and shall not be affected
        by any circumstance which might constitute a discharge of a surety or guarantor,
        other than the indefeasible payment and performance in full of the Credit
        Line.
        Each Permitted Affiliate’s liability with respect to the Credit Line shall
        remain in full force and effect without regard to, and shall not be impaired
        or
        affected by, any Insolvency Proceeding with respect to Borrower, any Permitted
        Affiliate or any other Person, or any assignment or other transfer of any
        Guaranteed Party’s interests in and rights under this Payment Guaranty or the
        other Loan Documents, or any claim, defense, counterclaim or setoff (other
        than
        that of prior performance), that Borrower, any Permitted Affiliate or any
        other
        Person may have or assert; or any amendment, modification, renewal, extension,
        cancellation or surrender of any Loan Document or any collateral that may
        at any
        time secure the Credit Line, or any Guaranteed Party’s exchange, release, or
        waiver of any other guaranty of all or any part of the Credit Line or any
        other
        indebtedness, obligations or liabilities of Borrower or any other guarantor
        to
        any Guaranteed Party under the Credit Line. 

      


      Section
        6.    Permitted
        Affiliate’s Waivers.
        Each
        Permitted Affiliate waives:

      


      (a)    all
        statutes of limitations as a defense to any action or proceeding brought
        against
        any Permitted Affiliate by Administrative Agent, to the fullest extent permitted
        by law;


      
        
          
          

        

        
          G(2)-4

          
            

          

        

        
          
          

        

      


      (b)    any
        right
        it may have to require Administrative Agent or any other Guaranteed Party
        to
        proceed against Borrower, proceed against or exhaust any security held from
        Borrower, or pursue any other remedy in Administrative Agent’s or any other
        Guaranteed Party’s power to pursue;

      


      (c)    any
        defense based on any claim that any Permitted Affiliate’s obligations exceed or
        are more burdensome than those of Borrower;

      


      (d)    any
        defense based on: (i) any legal disability of Borrower, (ii) any release,
        discharge, modification, impairment or limitation of the liability of Borrower
        to Administrative Agent or any other Guaranteed Party from any cause, whether
        consented to by Administrative Agent or any other Guaranteed Party or arising
        by
        operation of law or from any Insolvency Proceeding, and (iii) any rejection
        or
        disaffirmance of the Credit Line, or any part of it, or any security held
        for
        it, in any such Insolvency Proceeding;

      


      (e)    any
        defense based on any action taken or omitted by Administrative Agent or any
        other Guaranteed Party in any Insolvency Proceeding involving Borrower,
        including any election to have Administrative Agent’s or any other Guaranteed
        Party’s claim allowed as being secured, partially secured or unsecured, any
        extension of credit by Lenders to Borrower in any Insolvency Proceeding,
        and the
        taking and holding by Administrative Agent or the other Guaranteed Parties
        of
        any security for any such extension of credit;

      


      (f)    all
        presentments, demands for performance, notices of nonperformance, protests,
        notices of protest, notices of dishonor, notices of acceptance of this Payment
        Guaranty and of the existence, creation, or incurring of new or additional
        indebtedness, and demands and notices of every kind except for any demand
        or
        notice by Administrative Agent to such Permitted Affiliate expressly provided
        for in Section
        1;

      


      (g)    any
        defense based on or arising out of any defense that Borrower may have to
        the
        payment or performance of the Credit Line or any part of it; and

      


      (h)    any
        defense based on or arising out of any action of Administrative Agent or
        any
        Lender described in Section
        3
        or
Section
        4
        above.

      


      Section
        7.    Waivers
        of Subrogation and Other Rights and Defenses.

      


      (a)    Upon
        a
        default by Borrower, Administrative Agent and/or any other Guaranteed Party
        in
        their sole discretion, without prior notice to or consent of any Permitted
        Affiliate, may elect to: (i) foreclose either judicially or nonjudicially
        against any real or personal property security they may hold for the Credit
        Line, (ii) accept a transfer of any such security in lieu of foreclosure,
        (iii) compromise or adjust the Credit Line or any part of it or make any
        other accommodation with Borrower, any Permitted Affiliate or any other
        guarantor, or (iv) exercise any other remedy against Borrower or any
        security. No such action by Administrative Agent and/or any other Guaranteed
        Party shall release or limit the liability of any Permitted Affiliate, who
        shall
        remain liable under this Payment Guaranty after the action, even if the effect
        of the action is to deprive such Permitted Affiliate of any subrogation rights,
        rights of indemnity, or other rights to collect reimbursement from Borrower
        for
        any sums paid to Administrative Agent for its own account or for the account
        of
        any other Guaranteed Party, whether contractual or 


      
        
          
          

        

        
          G(2)-5

          
            

          

        

        
          
          

        

      


      arising
        by operation of law or otherwise. Each Permitted Affiliate expressly agrees
        that
        under no circumstances shall it be deemed to have any right, title, interest
        or
        claim in or to any real or personal property to be held by Administrative
        Agent
        or any other Guaranteed Party or any third party after any foreclosure or
        transfer in lieu of foreclosure of any security for the Credit
        Line.

      


      (b)    Regardless
        of whether any Permitted Affiliate may have made any payments to Administrative
        Agent for its own account or for the account of any other Guaranteed Party,
        each
        Permitted Affiliate waives, until all indebtedness, liabilities and other
        obligations of Borrower to the Guaranteed Parties under or in connection
        with
        the Agreement, the Notes and the other Loan Documents have been indefeasibly
        paid in full: (i) all rights of subrogation, all rights of indemnity, and
        any
        other rights to collect reimbursement from Borrower, any other Permitted
        Affiliate or any other guarantor for any sums paid to Administrative Agent
        or
        any other Guaranteed Party, whether contractual or arising by operation of
        law
        (including the United States Bankruptcy Code or any successor or similar
        statute) or otherwise, (ii) all rights to participate in any security now
        or
        later to be held by Administrative Agent or the other Guaranteed Parties
        for the
        Credit Line, and (iii) all rights to enforce any remedy that Administrative
        Agent or any other Guaranteed Party may have against Borrower, any other
        Permitted Affiliate or any other guarantor.

      


      (c)    Each
        Permitted Affiliate waives such Permitted Affiliate’s rights of subrogation and
        reimbursement and any other rights and defenses available to such Permitted
        Affiliate by reason of Sections 2787 to 2855, inclusive, of the California
        Civil
        Code including, without limitation, any defenses such Permitted Affiliate
        may
        have to the Payment Guaranty obligation by reason of an election of remedies
        by
        Administrative Agent or any other Guaranteed Party, and any and all benefits
        that otherwise might be available to such Permitted Affiliate under California
        Civil Code §§1432, 2809, 2810, 2815, 2819, 2839, 2845, 2848, 2849, 2850, 2899
        and 3433 and California Code of Civil Procedure §§580a, 580b, 580d and 726.
        Accordingly, each Permitted Affiliate waives all rights and defenses that
        such
        Permitted Affiliate may have because Borrower’s debt may at any time be secured
        by real property. This means, among other things: (A) the Guaranteed
        Parties may collect from such Permitted Affiliate without first foreclosing
        on
        any real or personal property collateral that may at any time be pledged
        by
        Borrower; and (B) if the Administrative Agent forecloses on any real
        property collateral that may at any time be pledged by Borrower: (1) the
        amount of the debt may be reduced only by the price for which such collateral
        is
        sold at the foreclosure sale, even if such collateral is worth more than
        the
        sale price, and (2) the Guaranteed Parties may collect from such Permitted
        Affiliate even if the Administrative Agent, by foreclosing on such real property
        collateral, has destroyed any right such Permitted Affiliate may have to
        collect
        from Borrower. This is an unconditional and irrevocable waiver of any rights
        and
        defenses any Permitted Affiliate may have because Borrower’s debt may at any
        time be secured by real property. These rights and defenses include, but
        are not
        limited to, any rights of defenses based upon Section 580a, 580b, 580d or
        726 of the California Code of Civil Procedure.

      


      (d)    Each
        Permitted Affiliate waives all right and defenses arising out of an election
        of
        remedies by Administrative Agent or the other Guaranteed Parties, even though
        that election of remedies has destroyed such Permitted Affiliate’s rights of
        subrogation and reimbursement against Borrower.


      
        
          
          

        

        
          G(2)-6

          
            

          

        

        
          
          

        

      


      (e)    No
        provision or waiver in this Payment Guaranty shall be construed as limiting
        the
        generality of any other waiver contained in this Payment Guaranty.

      


      Section
        8.    Continuing
        Guaranty; Reinstatement.
        This
        Guaranty is a continuing guaranty and agreement of subordination relating
        to any
        Guaranteed Obligations, including Guaranteed Obligations which may exist
        continuously or which may arise from time to time under successive transactions,
        and each Permitted Affiliate expressly acknowledge that this Payment Guaranty
        shall remain in full force and effect notwithstanding that there may be periods
        in which no Guaranteed Obligations exist. This Guaranty shall continue in
        effect
        and be binding upon each Permitted Affiliate until termination of the
        Commitments and payment and performance in full of the Guaranteed Obligations.
        This Guaranty shall continue to be effective or shall be reinstated and revived,
        as the case may be, if, for any reason, any payment of the Guaranteed
        Obligations by or on behalf of Borrower (or receipt of any proceeds of
        Collateral) shall be rescinded, invalidated, declared to be fraudulent or
        preferential, set aside, voided or otherwise required to be repaid to Borrower,
        its estate, trustee, receiver or any other Person (including under the
        Bankruptcy Code or other state or federal law), or must otherwise be restored
        by
        any Guaranteed Party, whether as a result of Insolvency Proceedings or
        otherwise. To the extent any payment is so rescinded, set aside, voided or
        otherwise repaid or restored, the Guaranteed Obligations shall be revived
        in
        full force and effect without reduction or discharge for such payment.


      


      Section
        9.    Information
        Regarding Borrower and the Property.
        Before
        signing this Payment Guaranty, each Permitted Affiliate investigated the
        financial condition and business operations of Borrower, the present and
        former
        condition, uses and ownership of the Unencumbered Asset Pool, and such other
        matters as each Permitted Affiliate deemed appropriate to assure itself of
        Borrower’s ability to discharge its obligations under the Loan Documents. Each
        Permitted Affiliate assumes full responsibility for that due diligence, as
        well
        as for keeping informed of all matters which may affect Borrower’s ability to
        pay and perform its obligations to Administrative Agent and the other Guaranteed
        Parties. Neither Administrative Agent nor any Lender has a duty to disclose
        to
        any Permitted Affiliate any information that Administrative Agent or any
        Lender
        may have or receive about Borrower’s financial condition or business operations,
        or any other circumstances bearing on Borrower’s ability to
        perform.

      


      Section
        10.    Subordination.
        Any
        rights of any Permitted Affiliate, whether now existing or later arising,
        to
        receive payment on account of any indebtedness (including interest) owed
        to it
        by Borrower or any other Permitted Affiliate, or to withdraw capital invested
        by
        it in Borrower or any other Permitted Affiliate, or to receive distributions
        from Borrower or any other Permitted Affiliate, shall at all times be
        subordinate as to lien and time of payment and in all other respects to the
        full
        and prior repayment to Administrative Agent and the other Guaranteed Parties
        of
        the Credit Line. After and during the continuation of an Event of Default,
        each
        Permitted Affiliate shall not be entitled to enforce or receive payment of
        any
        sums hereby subordinated until the Credit Line has been paid and performed
        in
        full and any such sums received in violation of this Payment Guaranty shall
        be
        received by such Permitted Affiliate in trust for Administrative Agent and
        the
        other Guaranteed Parties. The foregoing notwithstanding, as long as no Event
        of
        Default is continuing, the Permitted Affiliates may from receive such reasonable
        management fees or reasonable salary from Borrower as Administrative Agent
        may



      
        
          
          

        

        
          G(2)-7

          
            

          

        

        
          
          

        

      


      find
        reasonably acceptable from time to time and may receive from Borrower and
        retain
        any other amounts that are not prohibited by the terms of the
        Agreement.

      


      Section
        11.    Permitted
        Affiliates’ Representations and Warranties.
        Each
        Permitted Affiliate represents and warrants that:

      


      (a)    Financial
        Statements True and Correct.
        All
        financial information furnished or to be furnished to Administrative Agent
        regarding such Permitted Affiliate are or will be true and correct in all
        material respects determined according to GAAP unless otherwise provided
        for
        herein and do or will fairly represent the financial condition of such Permitted
        Affiliate (including all contingent liabilities) (for purposes of this
Section 11(a),
        the
        term “material respects” means any variance in the aggregate amount of
        $10,000,000.00);

      


      (b)    No
        Material Adverse Change.
        There
        has been no material adverse change in any Permitted Affiliate’s financial
        condition since the dates of the statements most recently furnished to
        Administrative Agent;

      


      (c)    Organization
        of Permitted Affiliate.
        Each
        Permitted Affiliate is a corporation, partnership, or limited liability company
        duly organized or formed, validly existing and in good standing under the
        laws
        of the jurisdiction of its incorporation or organization;

      


      (d)    Authorization.
        The
        execution and compliance with this Payment Guaranty, the Agreement, and the
        other Loan Documents to which any Permitted Affiliate is a party are within
        such
        Permitted Affiliate’s powers, have been duly authorized, and do not conflict
        with any of such Permitted Affiliate’s organizational documents;

      


      (e)    Enforceable
        Agreement.
        This
        Payment Guaranty is a legal, valid and binding agreement of each Permitted
        Affiliate, enforceable against such Permitted Affiliate in accordance with
        its
        terms, and any other Loan Document to which such Permitted Affiliate is a
        party,
        when executed and delivered, will be similarly legal, valid, binding and
        enforceable, except to the extent that the enforcement of the rights and
        remedies of Administrative Agent or the other Guaranteed Parties may hereafter
        be subject to bankruptcy, insolvency, reorganization, moratorium or similar
        laws
        affecting generally the enforcement of creditors’ rights and remedies, and the
        availability of equitable remedies may be subject to the discretion of the
        court
        before which any proceeding thereof is brought;

      


      (f)    Good
        Standing.
        In each
        state in which each Permitted Affiliate does business, such Permitted Affiliate
        is, where required, properly licensed, in good standing and in compliance
        with
        fictitious name statutes;

      


      (g)    No
        Conflicts.
        Each
        Permitted Affiliate, to the best of such Permitted Affiliate’s knowledge, is not
        in violation of, nor do the terms of this Payment Guaranty or any other Loan
        Document conflict with, any law (including Environmental Laws), regulation
        or
        ordinance, any order of any court or governmental entity, or any covenant
        or
        agreement affecting any Permitted Affiliate which would materially and adversely
        affect such Permitted Affiliate’s ability to perform its obligations under this
        Payment Guaranty or under any other Loan Document to which such Permitted
        Affiliate is a party; and


      
        
          
          

        

        
          G(2)-8

          
            

          

        

        
          
          

        

      


      (h)    Lawsuits.
        There
        is no lawsuit, tax claim or other dispute pending or threatened against any
        Permitted Affiliate which, if lost, would materially adversely impair such
        Permitted Affiliate’s financial condition or ability to repay the Credit
        Line.

      


      (i)    Other
        Obligations.
        Each
        Permitted Affiliate is not in material default (taking into account all
        applicable cure periods, if any) on any material obligation for borrowed
        money,
        any purchase money obligation or any other material lease, commitment, contract,
        instrument or obligation.

      


      (j)    No
        Required Third Party/Governmental Approvals.
        No
        approval, consent, exemption, authorization, or other action by, or notice
        to,
        or filing with any third party or any Governmental Authority, is necessary
        or
        required in connection with the execution, delivery or performance of this
        Payment Guaranty or any other Loan Document to which any Permitted Affiliate
        is
        a party.

      


      (k)    Solvency.
        Immediately prior to and after and giving effect to the incurrence of the
        Permitted Affiliates’ obligations under this Payment Guaranty each Permitted
        Affiliate is and will be Solvent. “Solvent” shall mean that (i) the fair
        value of such Permitted Affiliate’s assets is greater than the amount of such
        Permitted Affiliate’s liabilities as such value is established and liabilities
        evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in
        the alternative, for purposes of the California Uniform Fraudulent Transfer
        Act
        and any other applicable fraudulent conveyance statute; (ii) the present
        fair saleable value of such Permitted Affiliate’s assets is not less than the
        amount that will be required to pay the probable liability of such Permitted
        Affiliate on its debts as they become absolute and matured; (iii) such
        Permitted Affiliate is able to realize upon its assets and pay its debts
        and
        other liabilities as they mature in the normal course of business;
        (iv) such Permitted Affiliate does not intend to, and does not believe that
        it will, incur debts or liabilities beyond such Permitted Affiliate’s ability to
        pay as such debts and liabilities mature; and (v) such Permitted Affiliate
        is not engaged in business or a transaction, and is not about to engage in
        business or a transaction, for which such Permitted Affiliate’s property would
        constitute unreasonably small capital.

      


      Section
        12.    Affirmative
        Covenant.
        Each
        Permitted Affiliate promises to keep the following covenant:

      


      (a)    Compliance
        with Law.
        Each
        Permitted Affiliate shall comply with all existing and future laws (including
        Environmental Laws), regulations, orders, building restrictions and requirements
        of, and all agreements with and commitments to, all Governmental Authorities
        having jurisdiction over such Permitted Affiliate or such Permitted Affiliate’s
        business,
        as applicable, including those pertaining to the construction, sale, leasing
        or
        financing of any Unencumbered
        Asset Pool Property or the environmental condition of any Unencumbered Asset
        Pool Property, and with all recorded covenants and restrictions affecting
        any
        Unencumbered Asset Pool Property (all collectively, the “Requirements”).
        Notwithstanding any contrary provision in this Section,
        (i) each
        Permitted Affiliate shall have a right to contest all existing and future
        Requirements
        of Law (other than those relating to Environmental Laws) before complying
        therewith, and (ii) each
        Permitted Affiliate shall
        have
        a right to contest all existing and future Requirements relating to
        Environmental Laws for one year, before complying 


      
        
          
          

        

        
          G(2)-9

          
            

          

        

        
          
          

        

      


      therewith,
        provide that no Unencumbered Asset Pool Property is in danger of being lost
        or
        forfeited.

      


      (b)    Agreement
        Covenants.
        Each
        Permitted Affiliate shall observe, perform and comply with all covenants
        expressly applicable to such Permitted Affiliate set forth in Articles
        4, 6
        and
10
        of the
        Agreement, which by their terms Borrower is required to cause such Permitted
        Affiliate to observe, perform and comply with, as if such covenants were
        set
        forth in full herein.

      


      Section
        13.    Negative
        Covenants.
        Without
        Administrative Agent’s prior written consent, which consent shall not be
        unreasonably withheld or delayed, no Permitted Affiliate’s jurisdiction of
        formation, place of business, or chief executive office (if such Permitted
        Affiliate has more than one place of business) shall change, except upon
        thirty
        (30) days’ prior written notice to Administrative Agent.

      


      Section
        14.    Governing
        Law; Jurisdiction and Dispute Resolution.

      


      (vii)    GOVERNING
        LAW.
        THIS
        PAYMENT GUARANTY IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
        INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5
        OF THE
        CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING
        EFFECT
        TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
        ANY
        JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
        RIGHTS AND DUTIES OF THE PARTIES.

      


      (viii)    SUBMISSION
        TO JURISDICTION.
        EACH
        PERMITTED AFFILIATE AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE
        AGENT, EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
        PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
        CALIFORNIA
        SITTING
        IN SAN
        FRANCISCO
        COUNTY
        AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN
        DISTRICT OF CALIFORNIA,
        AND ANY
        APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
        OF OR
        RELATING TO THIS PAYMENT GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
        OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PERMITTED AFFILIATE AND EACH GUARANTEED
        PARTY (BY ITS ACCEPTANCE OF THIS PAYMENT GUARANTY) IRREVOCABLY AND
        UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
        PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA
        STATE
        COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
        COURT. AND EACH PERMITTED AFFILIATE AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE
        OF THIS PAYMENT GUARANTY) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
        OR
        PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
        BY
        SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
        PAYMENT GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
        ANY
        GUARANTEED PARTY 


      
        
          
          

        

        
          G(2)-10

          
            

          

        

        
          
          

        

      


      MAY
        OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS PAYMENT
        GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY PERMITTED AFFILIATE OR ITS
        PROPERTIES IN THE COURTS OF ANY JURISDICTION WHERE SUCH PERMITTED AFFILIATE
        OR
        ITS PROPERTIES ARE LOCATED.

      


      (ix)    WAIVER
        OF VENUE.
        EACH
        PERMITTED AFFILIATE AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE
        AGENT, IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
        BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
        LAYING
        OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PAYMENT
        GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
        PARAGRAPH (a) OF THIS SECTION. EACH PERMITTED AFFILIATE AND EACH GUARANTEED
        PARTY (BY ITS ACCEPTANCE OF THIS PAYMENT GUARANTY) IRREVOCABLY WAIVES, TO
        THE
        FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
        FORUM
        TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

      


      (x)    SERVICE
        OF PROCESS.
        EACH
        PERMITTED AFFILIATE IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
        PROVIDED FOR NOTICES IN SECTION 20.
        NOTHING
        IN THIS PAYMENT GUARANTY WILL AFFECT THE RIGHT OF ANY GUARANTEED PARTY TO
        SERVE
        PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

      


      (xi)    WAIVER
        OF JURY TRIAL.
        EACH
        PERMITTED AFFILIATE AND EACH GUARANTEED PARTY (BY ITS ACCEPTANCE HEREOF)
        IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
        RIGHT
        IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
        ARISING OUT OF OR RELATING TO THIS PAYMENT GUARANTY OR ANY OTHER LOAN DOCUMENT
        OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
        TORT OR ANY OTHER THEORY). EACH PERMITTED AFFILIATE AND EACH GUARANTEED PARTY
        (BY ITS ACCEPTANCE HEREOF) (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
        ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
        SUCH
        OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
        FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT HAVE BEEN INDUCED TO ENTER
        INTO THIS PAYMENT GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
        THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

      


      (xii)    Judicial
        Reference.
        If any
        action or proceeding by or against any party hereto in connection with any
        of
        the transactions contemplated by this Payment Guaranty or any other Loan
        Document is filed in a forum in which predispute waivers of the right to
        a trial
        by jury are invalid under applicable law, (a) the court shall, and is hereby
        directed to, make a general reference pursuant to California Code of Civil
        Procedure Section 638 (or similar applicable law) to a referee (who shall
        be a
        single active or retired judge) to hear and determine 


      
        
          
          

        

        
          G(2)-11

          
            

          

        

        
          
          

        

      


      all
        of
        the issues in such action or proceeding (whether of fact or of law) and to
        report a statement of decision, provided that at the option of any party
        to such
        proceeding, any such issues pertaining to a “provisional remedy” (or similar
        term) as defined in California Code of Civil Procedure Section 1281.8 (or
        similar applicable law) shall be heard and determined by the court, and
        (b) the prevailing party, or the non-dismissing party in the event of a
        voluntary dismissal by the party instituting the action, shall be entitled
        to
        the full amount of all fees and expenses of any referee appointed in such
        action
        or proceeding. 

      


      Section
        15.    Authorization;
        No Violation.
        Each
        Permitted Affiliate is authorized to execute, deliver and perform under this
        Payment Guaranty, which is a valid and binding obligation of such Permitted
        Affiliate, except as the same may be limited by insolvency, bankruptcy,
        reorganization, or other laws relating to or affecting the enforcement of
        creditors’ rights or by general equitable principles. No provision or obligation
        of any Permitted Affiliate contained in this Payment Guaranty violates any
        applicable law, regulation or ordinance, or any order or ruling of any court
        or
        governmental agency. No such provision or obligation conflicts with, or
        constitutes a breach or default under, any agreement to which such Permitted
        Affiliate is a party. No consent, approval or authorization of or notice
        to any
        person or entity is required in connection with such Permitted Affiliate’s
        execution of and obligations under this Payment Guaranty.

      


      Section
        16.    Additional
        and Independent Obligations.
        Each
        Permitted Affiliate’s obligations under this Payment Guaranty are in addition to
        its obligations under any other existing or future guaranties, each of which
        shall remain in full force and effect until it is expressly modified or released
        in a writing signed by Administrative Agent in accordance with the terms
        of the
        Agreement. Each Permitted Affiliate’s obligations under this Payment Guaranty
        are joint and several, and are independent of those of each other Permitted
        Affiliate, each other guarantor and Borrower on the Credit Line. Administrative
        Agent or any other Guaranteed Party may bring a separate action, or commence
        a
        separate reference or arbitration proceeding against any Permitted Affiliate
        without first proceeding against Borrower, any other Permitted Affiliate,
        any
        other guarantor, any other Person or any security that Administrative Agent
        or
        any other Guaranteed Party may hold, and without pursuing any other remedy.
        Administrative Agent’s rights under this Payment Guaranty shall not be exhausted
        by any action by Administrative Agent until the Credit Line has been paid
        and
        performed in full.

      


      Section
        17.    No
        Waiver; Consents; Cumulative Remedies.
        Each
        waiver by Administrative Agent must be in writing, and no waiver shall be
        construed as a continuing waiver. No waiver shall be implied from Administrative
        Agent’s or any other Guaranteed Party’s delay in exercising or failure to
        exercise any right or remedy against Borrower, any Permitted Affiliate, any
        other guarantor or any security. Consent by Administrative Agent or the other
        Guaranteed Parties to any act or omission by Borrower, any Permitted Affiliate,
        any other guarantor or any other Person shall not be construed as a consent
        to
        any other or subsequent act or omission, or as a waiver of the requirement
        for
        Administrative Agent’s or the other Guaranteed Parties’ consent to be obtained
        in any future or other instance. All remedies of Administrative Agent or
        the
        other Guaranteed Parties against Borrower, each Permitted Affiliate and each
        other guarantor are cumulative.


      
        
          
          

        

        
          G(2)-12

          
            

          

        

        
          
          

        

      


      Section
        18.    No
        Release.
        Each
        Permitted Affiliate shall not be released from its obligations under this
        Payment Guaranty except by a writing signed by Administrative Agent in
        accordance with the terms of the Agreement.

      


      Section
        19.    Heirs,
        Successors and Assigns; Participations.
        The
        terms of this Payment Guaranty shall bind and benefit the heirs, legal
        representatives, successors and assigns of Administrative Agent, each Guaranteed
        Party and each Permitted Affiliate; provided,
        however,
        that no
        Permitted Affiliate may assign this Payment Guaranty, or assign or delegate
        any
        of its rights or obligations under this Payment Guaranty, without the prior
        written consent of Administrative Agent in accordance with the terms of the
        Agreement. Each Lender shall have the right to transfer its Commitment and
        its
        outstanding Loans to any other Person on the terms and subject to the conditions
        set forth in Section
        10.5
        of the
        Agreement. Without the consent of or notice to any Permitted Affiliate,
        Administrative Agent and the other Guaranteed Parties may disclose to any
        prospective or actual purchasers of any interest in any Loan or any other
        loans
        made by Lenders to Borrower (in the case of a prospective purchase of an
        interest in the Loans or any other loan, upon Lender’s receiving its standard
        confidentiality letter from the prospective purchaser of the interest in
        the
        Loan or any other loan), any financial or other information relating to any
        Permitted Affiliate, this Payment Guaranty or any security that may at any
        time
        be given for this Payment Guaranty.

      


      Section
        20.    Notices.
        All
        notices and other communications provided for herein shall be in writing
        and
        shall be delivered by hand or overnight courier service, mailed by certified
        or
        registered mail or sent by telecopier, in the case of any Permitted Affiliate,
        to the address or telecopier number specified on the signature page hereof,
        and
        in the case of the Administrative Agent, the L/C Issuer and the Lenders,
        to the
        addresses or telecopier numbers specified in the Agreement. Notices sent
        by hand
        or overnight courier service, or mailed by certified or registered mail,
        shall
        be deemed to have been given when received; notices sent by telecopier shall
        be
        deemed to have been given when sent (except that, if not given during normal
        business hours for the recipient, shall be deemed to have been given at the
        opening of business on the next business day for the recipient). Each of
        the
        Permitted Affiliates and the Guaranteed Parties may change its address or
        telecopier number for notices and other communications hereunder by notice
        to
        the other parties.

      


      Section
        21.    Rules
        of Construction.
        In this
        Payment Guaranty, the word “Borrower”
        includes each of the named Borrower, each other Loan Party and any other
        person
        who at any time assumes or otherwise becomes primarily liable for all or
        any
        part of the obligations of the named Borrower on the Credit Line. The word
        “person” includes any individual, company, trust or other legal entity of any
        kind. The word “include(s)” means “include(s), without limitation,” and the word
“including” means “including, but not limited to.” When the context and
        construction so require, all words used in the singular shall be deemed to
        have
        been used in the plural and vice versa. No listing of specific instances,
        items
        or matters in any way limits the scope or generality of any language of this
        Payment Guaranty. All headings appearing in this Payment Guaranty are for
        convenience only and shall be disregarded in construing this Payment Guaranty.
        The rules of interpretation set forth in Section
        1.2
        of the
        Agreement shall be applicable to this Payment Guaranty and are incorporated
        herein by this reference.

      


      Section
        22.    Costs
        and
        Expenses; Indemnification. 


      
        
          
          

        

        
          G(2)-13

          
            

          

        

        
          
          

        

      


      (xiii)    Costs
        and Expenses.
        Each
        Permitted Affiliate shall pay (i) all reasonable out-of-pocket expenses
        incurred by the Administrative Agent and its Affiliates (including the
        reasonable fees, charges and disbursements of counsel for the Administrative
        Agent), in connection with the preparation, negotiation, execution and delivery
        of this Payment Guaranty and the other Guarantor Documents or any amendments,
        modifications or waivers of the provisions hereof or thereof (whether or
        not the
        transactions contemplated hereby or thereby shall be consummated), and
        (ii) all out-of-pocket expenses incurred by the Administrative Agent or any
        other Guaranteed Party (including the fees, charges and disbursements of
        any
        counsel for any Guaranteed Party) in connection with the enforcement or
        protection of its rights in connection with this Payment Guaranty and the
        other
        Loan Documents, including its rights under this Section, including all such
        out-of-pocket expenses incurred during any workout, restructuring or
        negotiations in respect of the Guaranteed Obligations. 

      


      (xiv)    Indemnification.
        Each
        Permitted Affiliate shall indemnify the Administrative Agent (and any sub-agent
        thereof), each other Guaranteed Party, and each Related Party of any of the
        foregoing Persons (each such Person being called an “Indemnitee”)
        against, and hold each Indemnitee harmless from, any and all losses, claims,
        damages, liabilities and related expenses (including the fees, charges and
        disbursements of any counsel for any Indemnitee) incurred by any Indemnitee
        or
        asserted against any Indemnitee by any third party or by any Permitted Affiliate
        or any other Loan Party arising out of, in connection with, or as a result
        of
        (i) the execution or delivery of this Payment Guaranty or any other Loan
        Document or any agreement or instrument contemplated hereby or thereby, the
        performance by the parties hereto or thereto of their respective obligations
        hereunder or thereunder or the consummation of the transactions contemplated
        hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed
        use of the proceeds therefrom (including any refusal by the L/C Issuer to
        honor
        a demand for payment under a Letter of Credit if the documents presented
        in
        connection with such demand do not strictly comply with the terms of such
        Letter
        of Credit), (iii) any actual or alleged presence or release of Hazardous
        Materials on or from any property owned or operated by Borrower, any Permitted
        Affiliates or any of its Subsidiaries, or any Environmental Liability related
        in
        any way to Borrower, any Permitted Affiliate or any of its Subsidiaries,
        or
        (iv) any actual or prospective claim, litigation, investigation or
        proceeding relating to any of the foregoing, whether based on contract, tort
        or
        any other theory, whether brought by a third party or by Borrower or any
        other
        Loan Party, and regardless of whether any Indemnitee is a party thereto;
        provided
        that
        such indemnity shall not, as to any Indemnitee, be available to the extent
        that
        such losses, claims, damages, liabilities or related expenses (x) are
        determined by a court of competent jurisdiction by final and nonappealable
        judgment to have resulted from the gross negligence or willful misconduct
        of
        such Indemnitee or (y) result from a claim brought by Borrower or any other
        Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
        obligations hereunder or under any other Loan Document, if Borrower or such
        other Loan Party has obtained a final and nonappealable judgment in its favor
        on
        such claim as determined by a court of competent jurisdiction. 

      


      (xv)    Interest.
        Any
        amounts payable to by any Permitted Affiliate under this Section 22
        or
        otherwise under this Payment Guaranty if not paid upon demand shall bear
        interest from the date of such demand until paid in full, at a fluctuating
        interest rate per annum at all times equal to the Reference Rate applicable
        to
        Reference Rate Committed Loans to the fullest extent permitted by applicable
        Law. Any such interest shall be due and payable upon 


      
        
          
          

        

        
          G(2)-14

          
            

          

        

        
          
          

        

      


      demand
        and shall be calculated on the basis of a year of 365 or 366 days, as the
        case
        may be, and the actual number of days elapsed.

      


      (xvi)    Payment.
        All
        amounts due under this Section
        22
        shall be
        payable within fifteen days after demand therefor.

      


      (xvii)    Survival.
        The
        agreements in this Section
        22
        shall
        survive the resignation of the Administrative Agent and the L/C Issuer, the
        replacement of any Lender, the termination of the Commitments and the repayment,
        satisfaction or discharge of all the other Guaranteed Obligations.

      


      Section
        23.    Consideration.
        Each
        Permitted Affiliate acknowledges that it expects to benefit from Lenders’
extension of the Credit Line to Borrower because of its relationship to
        Borrower, and that it is executing this Payment Guaranty in consideration
        of
        that anticipated benefit.

      


      Section
        24.    Payments

      


      (a)    Each
        Permitted Affiliate hereby agrees, in furtherance of the foregoing provisions
        of
        this Payment Guaranty and not in limitation of any other right which any
        Guaranteed Party or any other Person may have against any Permitted Affiliate
        by
        virtue hereof, upon the failure of Borrower to pay any of the Guaranteed
        Obligations when and as the same shall become due, whether at stated maturity,
        by required prepayment, declaration, acceleration, demand or otherwise
        (including amounts that would become due but for the operation of the automatic
        stay under §362(a) of the Bankruptcy Code), such Permitted Affiliate shall
        forthwith pay, or cause to be paid, in cash, to the Administrative Agent
        an
        amount equal to the amount of the Guaranteed Obligations then due as aforesaid
        (including interest which, but for the filing of a petition in any Insolvency
        Proceeding with respect to Borrower, would have accrued on such Guaranteed
        Obligations, whether or not a claim is allowed against Borrower for such
        interest in any such Insolvency Proceeding). Each Permitted Affiliate shall
        make
        each payment hereunder, unconditionally in full without set-off, counterclaim
        or
        other defense, on the day when due in Dollars, in immediately available funds,
        to the Administrative Agent at such office of the Administrative Agent and
        to
        such account as the Administrative Agent shall specify in writing to the
        Permitted Affiliates.

      


      (b)    Any
        and
        all payments by or on account of any Guaranteed Obligation hereunder or under
        any other Guarantor Document shall be made free and clear of and without
        reduction or withholding for any Indemnified Taxes or Other Taxes, provided
        that if
        any Permitted Affiliate shall be required by applicable law to deduct any
        Indemnified Taxes (including any Other Taxes) from such payments, then
        (i) the sum payable shall be increased as necessary so that after making
        all required deductions (including deductions applicable to additional sums
        payable under this Section) the Guaranteed Party receives an amount equal
        to the
        sum it would have received had no such deductions been made, (ii) such
        Permitted Affiliate shall make such deductions and (iii) such Permitted
        Affiliate shall timely pay the full amount deducted to the relevant Governmental
        Authority in accordance with applicable law.


      
        
          
          

        

        
          G(2)-15

          
            

          

        

        
          
          

        

      


      (c)    Without
        limiting the provisions of paragraph (b) above, each Permitted Affiliate
        shall
        timely pay any Other Taxes to the relevant Governmental Authority in accordance
        with applicable law.

      


      (d)    Each
        Permitted Affiliate shall indemnify the Guaranteed Parties, within fifteen
        days
        after demand therefor, for the full amount of any Indemnified Taxes or Other
        Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
        or
        attributable to amounts payable under this Section) paid by the Guaranteed
        Parties and any penalties, interest and reasonable expenses arising therefrom
        or
        with respect thereto, whether or not such Indemnified Taxes or Other Taxes
        were
        correctly or legally imposed or asserted by the relevant Governmental Authority.
        A certificate as to the amount of such payment or liability delivered to
        any
        Permitted Affiliate by a Guaranteed Party (with a copy to the Administrative
        Agent), or by the Administrative Agent on its own behalf or on behalf of
        another
        Guaranteed Party, shall be conclusive absent manifest error.

      


      (e)    As
        soon
        as practicable after any payment of Indemnified Taxes or Other Taxes by any
        Permitted Affiliate to a Governmental Authority, such Permitted Affiliate
        shall
        deliver to the Administrative Agent the original or a certified copy of a
        receipt issued by such Governmental Authority evidencing such payment, a
        copy of
        the return reporting such payment or other evidence of such payment reasonably
        satisfactory to the Administrative Agent.

      


      (f)    Any
        payments by any Permitted Affiliate hereunder the application of which is
        not
        otherwise provided for herein, shall be applied in the order specified in
        Section
        8.3
        of the
        Credit Agreement.

      


      (g)    To
        the
        extent that any payment by or on behalf of Borrower is made to the
        Administrative Agent or any other Guaranteed Party, or the Administrative
        Agent
        or any other Guaranteed Party exercises its right of setoff, and such payment
        or
        the proceeds of such setoff or any part thereof is subsequently invalidated,
        declared to be fraudulent or preferential, set aside or required (including
        pursuant to any settlement entered into by the Administrative Agent or any
        other
        Guaranteed Party in its discretion) to be repaid to a trustee, receiver or
        any
        other party, in connection with any proceeding under any Insolvency Proceeding
        or otherwise, then (i) to the extent of such recovery, the obligation or
        part
        thereof originally intended to be satisfied shall be revived and continued
        in
        full force and effect as if such payment had not been made or such setoff
        had
        not occurred, and (ii) each Lender and the L/C Issuer severally (by its
        acceptance hereof) agrees to pay to the Administrative Agent upon demand
        its
        applicable share (without duplication) of any amount so recovered from or
        repaid
        by the Administrative Agent, plus interest thereon from the date of such
        demand
        to the date such payment is made at a rate per annum equal to the Federal
        Funds
        Rate from time to time in effect. The obligations of the Lenders and the
        L/C
        Issuer under clause (ii) of the preceding sentence shall survive the payment
        in
        full of the Guaranteed Obligations and the termination of this Payment
        Guaranty.

      


      (h)    Notwithstanding
        anything to the contrary contained herein or in Guarantor Document, the interest
        paid or agreed to be paid hereunder and under the other Guarantor Documents
        shall not exceed the maximum rate of non-usurious interest permitted by
        applicable Law (the “Maximum
        Rate”).
        If
        the Administrative Agent or any other Guaranteed Party shall receive interest
        in
        an amount that exceeds the Maximum Rate, the excess interest shall be applied
        


      
        
          
          

        

        
          G(2)-16

          
            

          

        

        
          
          

        

      


      to
        the
        principal of the Guaranteed Obligations or, if it exceeds such unpaid principal,
        refunded to such Permitted Affiliate. In determining whether the interest
        contracted for, charged, or received by the Administrative Agent or any other
        Guaranteed Party exceeds the Maximum Rate, such Person may, to the extent
        permitted by applicable Law, (i) characterize any payment that is not principal
        as an expense, fee, or premium rather than interest, (ii) exclude voluntary
        prepayments and the effects thereof, and (iii) amortize, prorate, allocate,
        and
        spread in equal or unequal parts the total amount of interest throughout
        the
        contemplated term of the Obligations hereunder.

      


      (i)    The
        agreements in this Section
        24
        shall
        survive the payment of all Guaranteed Obligations.

      


      Section
        25.    Stay
        of Acceleration.
        In
        the
        event that acceleration of the time for payment of any of the obligations
        guaranteed hereunder is stayed, in connection with any Insolvency Proceeding
        commenced by or against any Permitted Affiliate or Borrower, or otherwise,
        all
        such amounts shall nonetheless be payable jointly and severally by each
        Permitted Affiliate immediately upon demand by the Administrative Agent.
        

      


      Section
        26.    Setoff.
        If
        an
        Event of Default shall have occurred and be continuing, each Lender and the
        L/C
        Issuer is hereby authorized at any time and from time to time, to the fullest
        extent permitted by applicable law, to set off and apply any and all deposits
        (general or special, time or demand, provisional or final, in whatever currency)
        at any time held and other obligations (in whatever currency) at any time
        owing
        by such Lender or the L/C Issuer to or for the credit or the account of any
        Permitted Affiliate against any and all of the obligations of the Permitted
        Affiliates now or hereafter existing under this Payment Guaranty or any other
        Guarantor Document to such Lender or the L/C Issuer, irrespective of whether
        or
        not such Lender or the L/C Issuer shall have made any demand under this Payment
        Guaranty or any other Loan Document and although such obligations of such
        Permitted Affiliate may be contingent or unmatured or are owed to a branch
        or
        office of such Lender or the L/C Issuer different from the branch or office
        holding such deposit or obligated on such indebtedness. The rights of each
        Lender and the L/C Issuer under this Section are in addition to other rights
        and
        remedies (including other rights of setoff) that such Lender or the L/C Issuer
        may have. Each Lender and the L/C Issuer (by its acceptance hereof) agrees
        to
        notify the affected Permitted Affiliate and the Administrative Agent promptly
        after any such setoff and application, provided
        that the
        failure to give such notice shall not affect the validity of such setoff
        and
        application.

      


      Section
        27.    Integration;
        Modifications.
        This
        Payment Guaranty (a) amends and restates in full all of the Existing Payment
        Guaranty, (b) integrates all the terms and conditions mentioned in or incidental
        to this Payment Guaranty, (c) supersedes all oral negotiations and prior
        writings with respect to its subject matter, and (d) is intended by each
        Permitted Affiliate, the Administrative Agent and the other Guaranteed Parties
        as the final expression of the agreement with respect to the terms and
        conditions set forth in this Payment Guaranty and as the complete and exclusive
        statement of the terms agreed to by each Permitted Affiliate, the Administrative
        Agent and the other Guaranteed Parties. No representation, understanding,
        promise or condition shall be enforceable against any Permitted Affiliate
        or any
        Guaranteed Party unless it is contained in this Payment Guaranty. This Payment
        Guaranty may not be modified except in a writing signed by both Administrative
        Agent and the Permitted Affiliate that is to be bound by such modification.
        No
        course of prior dealing, usage of trade, parol or 


      
        
          
          

        

        
          G(2)-17

          
            

          

        

        
          
          

        

      


      extrinsic
        evidence of any nature shall be used to supplement, modify or vary any of
        the
        terms hereof.

      


      Section
        28.    Miscellaneous.
        The
        legal incapacity of any Permitted Affiliate shall not terminate the obligations
        of such Permitted Affiliate under this Payment Guaranty, including its
        obligations with regard to future advances under the Loan Documents. The
        liability of all persons who are in any manner obligated under this Payment
        Guaranty shall be joint and several. The illegality or unenforceability of
        one
        or more provisions of this Payment Guaranty shall not affect any other
        provision. Time is of the essence in the performance of this Payment Guaranty
        by
        each Permitted Affiliate.

      


      Section
        29.    Counsel.
        Each
        Permitted Affiliate acknowledges that such Permitted Affiliate has had adequate
        opportunity to carefully read this Guarantee and to consult with an attorney
        of
        such Permitted Affiliate’s choice prior to signing it.

      


      Section
        30.    Future
        Permitted Affiliates.
        At such
        time following the date hereof as any subsidiary of Borrower, Guarantor or
        any
        Permitted Affiliate becomes an owner of an Unencumbered Asset Pool Property
        (an
“Acceding
        Permitted Affiliate”),
        such
        Acceding Permitted Affiliate shall execute and deliver to the Administrative
        Agent an accession agreement substantially in the form of Annex 1 (the
“Accession
        Agreement”),
        signifying its agreement to be bound by the provisions of this Payment Guaranty
        as a Permitted Affiliate to the same extent as if such Acceding Permitted
        Affiliate had originally executed this Payment Guaranty as of the date
        hereof.

      


      Section
        31.    Counterparts.
        This
        Payment Guaranty may be executed in one or more counterparts, each of which
        shall be deemed an original, but all of which together shall constitute one
        and
        the same instrument.

      


      Section
        32.    USA
        PATRIOT Act Notice.
        Each
        Lender that is subject to the Act (as hereinafter defined) and the
        Administrative Agent (for itself and not on behalf of any Lender) hereby
        notifies each Permitted Affiliate that pursuant to the requirements of the
        USA
        Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
        (the “Act”),
        it is
        required to obtain, verify and record information that identifies such Permitted
        Affiliate, which information includes the name and address of such Permitted
        Affiliate and other information that will allow such Lender or the
        Administrative Agent, as applicable, to identify such Permitted Affiliate
        in
        accordance with the Act.

      


      Section
        33.    Time
        is of the Essence.
        Time is
        of the essence of this Payment Guaranty and the other Guarantor
        Documents. 

      


      Section
        34.    Severability.
        If any
        provision of this Payment Guaranty or the other Guarantor Documents is held
        to
        be illegal, invalid or unenforceable, (a) the legality, validity and
        enforceability of the remaining provisions of this Payment Guaranty and the
        other Guarantor Documents shall not be affected or impaired thereby and (b)
        the
        parties shall endeavor in good faith negotiations to replace the illegal,
        invalid or unenforceable provisions with valid provisions the economic effect
        of
        which comes as close as possible to that of the illegal, invalid or



      
        
          
          

        

        
          G(2)-18

          
            

          

        

        
          
          

        

      


      unenforceable
        provisions. The invalidity of a provision in a particular jurisdiction shall
        not
        invalidate or render unenforceable such provision in any other
        jurisdiction.

      


      Section
        35.    Defined
        Terms.
        As used
        in this Payment Guaranty (including in the recitals hereof), the following
        terms
        shall have the following meanings:

      


      “Bankruptcy
        Code”
means
        the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
        seq.).

      


      “Excluded
        Taxes”
means,
        with respect to any Guaranteed Party or any other recipient of any payment
        to be
        made by or on account of any Guaranteed Obligation hereunder, (a) taxes imposed
        on or measured by its overall net income (however denominated), and franchise
        taxes imposed on it, under the laws of any Governmental Authority, (b) any
        branch profits taxes imposed by the United States or any similar tax imposed
        by
        any Governmental Authority, and (c) in the case of a Guaranteed Party that
        is a Foreign Lender, any withholding tax that is imposed on amounts payable
        to
        such Foreign Lender at the time such Foreign Lender becomes a party to the
        Agreement (or designates a new Lending Office) or is attributable to such
        Foreign Lender’s failure or inability (other than as a result of a Change in
        Law) to comply with Section 3.1.5
        of the
        Agreement, except to the extent that such Foreign Lender (or its assignor,
        if
        any) was entitled, at the time of designation of a new Lending Office (or
        assignment), to receive additional amounts with respect to such withholding
        tax
        pursuant to Section 3.1.5
        of the
        Agreement.

      


      “Guaranteed
        Obligations”
means
        the obligations guaranteed by the Permitted Affiliates hereunder, as set
        forth
        in Sections
        1
        and
2
        hereof.

      


      “Guaranteed
        Parties”
means
        the Administrative Agent, the L/C Issuer, the Swing Line Lender and the
        Lenders.

      


      “Guarantor
        Documents”
means
        this Payment Guaranty and all other certificates, documents, agreements and
        instruments delivered to any Permitted Affiliate under or in connection with
        this Payment Guaranty.

      


      “Indemnified
        Taxes”
means
        Taxes other than Excluded Taxes.

      


      “Loan
        Party”
means
        Borrower, Guarantor and each Permitted Affiliate.

      


      “Other
        Taxes”
means
        all present or future stamp or documentary taxes or any other excise or property
        taxes, charges or similar levies arising from any payment made hereunder
        or
        under any other Guarantor Document or from the execution, delivery or
        enforcement of, or otherwise with respect to, this Payment Guaranty or any
        other
        Guarantor Document. Other Taxes shall not include any Excluded
        Taxes.

      


      “Taxes”
means
        all present or future taxes, levies, imposts, duties, deductions, withholdings,
        assessments, fees or other charges imposed by any Governmental Authority
        and
        arising from any payment made hereunder or under any other Guarantor Document
        or
        from the execution, delivery or enforcement of, or otherwise with respect
        to,
        this Payment Guaranty or any other Guarantor Document, including any interest,
        additions to tax or penalties applicable thereto.

      


      [Remainder
        of page left blank intentionally]


      
        
          
          

        

        
          G(2)-19

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, each Permitted Affiliate has executed this Second Amended
        and
        Restated Payment Guaranty, as of the date first above written.

       

      
        Address
          Where Notices to Administrative Agent are to be Sent: 

         

        Bank
          of
          America, N.A.

        1455
          Market Street, CA5-701-05-19

        San
          Francisco, CA 94103

        Attention:
          Kathleen Carry

        Telephone:
          (415) 436-4001

        Facsimile:
          (415) 503-5001

         

      

      
        
 

      
        JMS
          ACQUISITION LLC, a Delaware limited liability company

        


        
          	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole Member
                    and Manager

                
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

      

       

      
        Address
          where Notices are to be sent: 

        JMS
          Acquisition, LLC

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
 

      
        	
                JAYSAC,
                  LTD., Texas limited partnership

              
	 
	
                By:

              	
                Jaysac
                  GP Corp., 
a Delaware corporation, 
its General
                  Partner

              
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Jaysac,
          Ltd.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        

      

       

      
        	
                JAYSAC
                  GP CORP., 
a Delaware corporation

              
	 	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Jaysac
          GP
          Corp

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
          
          

        

        
          G(2)-20

          
            

          

        

        
          
          

        

      

       

      
        	
                ESSEX
                  BRIDLE TRAILS, L.P., 
a California limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, its General
                  Partner

              
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Bridle Trails, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        

      

       

      
        	
                ESSEX
                  BRISTOL PARTNERS, L.P., 
a California limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, 
its General
                  Partner

              
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Bristol Partners, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        

      

       

      
        	
                ESSEX
                  BUNKER HILL, L.P., 
a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Bunker Hill Corporation, 
a California corporation, 
its General
                  Partner

              
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Bunker Hill, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
 

      
        	
                ESSEX
                  LORRAINE LLC, 
a Delaware limited liability company

              
	
                 

              
	
                By:

              	
                Essex
                  Lorraine, Inc., 
a California corporation, 
its Managing
                  Member

              
	
                 

              	
                By:
                  

              	
                 

              
	
                 

              	
                Name:

              	 
	
                 

              	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Lorraine LLC

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
          
          

        

        
          G(2)-21

          
            

          

        

        
          
          

        

      

       

      
        	
                ESSEX
                  MAPLE LEAF, L.P., a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, a California corporation, its General
                  Partner

              
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Maple Leaf, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        

      

       

      
        	
                ESSEX
                  MARINA CITY CLUB, L.P., 
a California limited
                  partnership

              
	 
	
                By

              	
                Essex
                  MCC, LLC, 
a Delaware limited liability company, 
its General
                  Partner

              
	 	
                By:
                  

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 	
                By:
                  

              	 
	 	 	 	
                Name:

              	 
	 	 	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Marina City Club, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

         

        
          

        

         

        
          	
                  ESSEX
                    MEADOWOOD, L.P., 
a California limited partnership

                
	 
	
                  By:

                	
                  Essex
                    Meadowood Corporation,

                  a
                    California corporation, 
its General Partner

                
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

         

        
          Address
            where Notices are to be sent: 

          Essex
            Meadowood, L.P.

          c/o
            Essex
            Property Trust, Inc.

          925
            E.
            Meadow Drive

          Palo
            Alto, California 94303

          Attn:
            Mark J. Mikl and Jordan E. Ritter 

          Facsimile:
            (650) 843-1514 and (650) 858-1372

        

         

        
          
 

        
          	
                  ESSEX
                    PARK BOULEVARD, LLC, 
a Delaware limited liability
                    company

                
	 
	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
bits Sole
                    Member

                
	 	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

         

        
          Address
            where Notices are to be sent: 

          Essex
            Park Boulevard, LLC

          c/o
            Essex
            Property Trust, Inc.

          925
            E.
            Meadow Drive

          Palo
            Alto, California 94303

          Attn:
            Mark J. Mikl and Jordan E. Ritter 

          Facsimile:
            (650) 843-1514 and (650) 858-1372

        

         

      

      
        
          
          

        

        
          G(2)-22

          
            

          

        

        
          
          

        

      

       

      
        	
                ESSEX
                  SPRING LAKE, L.P., 
a California limited partnership

              
	 
	
                By:

              	
                Essex
                  Management Corporation, 
a California corporation, 
its General
                  Partner

              
	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Spring Lake, L.P.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
 

      
        	
                ESSEX
                  TRACY DEVELOPMENT, INC., 
a California corporation

              
	 	 
	
                By:
                  

              	 
	
                Name:

              	 
	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Essex
          Tracy Development, Inc.

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        
 

      
        	
                JACKSON
                  SCHOOL VILLAGE LIMITED PARTNERSHIP, 
a California limited
                  partnership

              
	 
	
                By:

              	
                Essex
                  Portfolio, L.P., 
a California limited partnership, 
its Sole
                  Member

              
	 	 
	 	
                By:

              	
                Essex
                  Property Trust, Inc., 
a Maryland corporation, 
its General
                  Partner

              
	 	 	 
	 	 	
                By:
                  

              	 
	 	 	
                Name:

              	 
	 	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Jackson
          School Village Limited Partnership

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

       

      
        

      

       

      
        	
                NEWPORT
                  BEACH NORTH LLC, 
a Delaware limited liability
                  company

              
	 
	
                By:

              	
                Newport
                  Beach North, Inc., 
a Delaware corporation, 
its Managing
                  Member

              
	 	 	 
	 	
                By:
                  

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

       

      
        Address
          where Notices are to be sent: 

        Newport
          Beach North LLC

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

      
 

      
        
          
          

        

        
          G(2)-23

          
            

          

        

        
          
          

        

      


      


      
        
          	
                  PARK
                    HILL LLC, 
a Washington limited liability company

                
	 
	
                  By:

                	
                  Essex
                    Portfolio, L.P., 
a California limited partnership, 
its Sole
                    Member

                
	 	 
	 	
                  By:

                	
                  Essex
                    Property Trust, Inc., 
a Maryland corporation, 
its General
                    Partner

                
	 	 	 	 
	 	 	
                  By:
                    

                	 
	 	 	
                  Name:

                	 
	 	 	
                  Title:

                	 


        

         

        
          Address
            where Notices are to be sent: 

          Park
            Hill
            LLC

          c/o
            Essex
            Property Trust, Inc.

          925
            E.
            Meadow Drive

          Palo
            Alto, California 94303

          Attn:
            Mark J. Mikl and Jordan E. Ritter 

          Facsimile:
            (650) 843-1514 and (650) 858-1372

           

          
            
 

        

        
          	
                  ESSEX
                    COLUMBUS LLC, 
a Delaware limited liability company

                
	 
	
                  By:

                	
                  Essex
                    Columbus, Inc., 
a California corporation, 
its Managing
                    Member

                
	 	
                  By:
                    

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

         

      

      
        Address
          to where Notices are to be sent:

        Essex
          Columbus LLC

        c/o
          Essex
          Property Trust, Inc.

        925
          E.
          Meadow Drive

        Palo
          Alto, California 94303

        Attn:
          Mark J. Mikl and Jordan E. Ritter 

        Facsimile:
          (650) 843-1514 and (650) 858-1372

      

      

        
          
            
            

          

          
            G(2)-24

            
              

            

          

          
            
            

          

        

      

       

      Annex
        1

      to
        the Guaranty

      


      FORM
        OF ACCESSION AGREEMENT

      


      
        	
                To:

              	
                Bank
                  of America, N.A. as Administrative
                  Agent

              


      

      


      
        	
                Re:

              	
                _________________

              


      

      


      Ladies
        and Gentlemen:

      


      This
        Accession Agreement is made and delivered pursuant to Section
        30
        of that
        certain Second Amended and Restated Payment Guaranty dated as of March 24,
        2006 (as amended, modified, renewed or extended from time to time, the
“Payment
        Guaranty”),
        made
        by each Permitted Affiliate named in the signature pages thereof (each a
        “Permitted
        Affiliate”),
        in
        favor of the Lenders party to the Agreement referred to below, and the L/C
        Issuer, the Swing Line Lender and Bank of America, N.A., as Administrative
        Agent
        (in such capacity, the “Administrative
        Agent”).
        All
        capitalized terms used in this Accession Agreement and not otherwise defined
        herein shall have the meanings assigned to them in either the Payment Guaranty
        or the Agreement.

      


      Essex
        Portfolio, L.P., a California limited partnership (“Borrower”),
        is
        party to that certain Fourth Amended and Restated Credit Agreement dated
        as of
        March 24, 2006 (the “Agreement”)
        by and
        among Borrower, the Lenders from time to time party thereto (the “Lenders”),
        the
        L/C Issuer, the Swing Line Lender and the Administrative Agent.

      


      The
        undersigned, ___________________________ [insert
        name of acceding Permitted Affiliate],
        a
        _____________________ [corporation,
        partnership, limited liability company, etc.],
        is a
        direct or indirect wholly-owned subsidiary of Borrower, Guarantor or any
        Permitted Affiliate that owns an Unencumbered Asset Pool Property and hereby
        acknowledges for the benefit of the Guaranteed Parties that it shall be a
        “Permitted Affiliate” for all purposes of the Payment Guaranty effective from
        the date hereof. The undersigned confirms that the representations and
        warranties set forth in Section
        11
        of the
        Payment Guaranty are true and correct in all material respects as to the
        undersigned as of the date hereof.

      


      Without
        limiting the foregoing, the undersigned hereby agrees to perform all of the
        obligations of a Permitted Affiliate under, and to be bound in all respects
        by
        the terms of, the Payment Guaranty, including, without limitation, Section
        11, Section
        12
        and
Section
        13
        thereof,
        to the same extent and with the same force and effect as if the undersigned
        were
        an original signatory thereto.

      

        
          
            
            

          

          
            A-1

            
              

            

          

          
            
            

          

        

      

       

      This
        Accession Agreement shall constitute a Loan Document under the
        Agreement.

      


      THIS
        ACCESSION AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
        THE
        INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5
        OF THE
        CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING
        EFFECT
        TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
        ANY
        JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
        RIGHTS AND DUTIES OF THE PARTIES.

      


      IN
        WITNESS WHEREOF, the undersigned has executed this Accession Agreement, as
        of
        the date first above written.

      


      
        	 	
                [Acceding
                  Permitted Affiliate]

              
	 	
                By

              	 
	 	
                Title

              	 
	 	 	 
	 	
                Address
                  for Notices:

              
	 	
                c/o

              	 
	 	 
	 	 
	 	
                Attn.:

              	 
	 	
                Fax
                  No.:

              	 
	 	
                Email:

              	 


      

      

        
          
            
            

          

          
            A-2

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        H-1

      


      FORM
        OF REVOLVING NOTE

      


      AMENDED
        AND RESTATED REVOLVING NOTE

      


      


      
        	
                $____________________

              	
                San
                  Francisco, California 

              


      

      March 24,
        2006

      


      FOR
        VALUE
        RECEIVED, ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”),
        promises to pay to the order of ______________________ (“Lender”),
        at
        the offices of Bank of America, N.A., Administrative Agent for Lender, at
        901
        Main Street, TX1-492-14-14, Dallas, Texas 75202-3714, or at such other place
        as
        Lender may designate in writing from time to time, the sum of
        ______________________ DOLLARS ($______________________), or the aggregate
        unpaid principal amount outstanding hereunder, whichever may be the lesser,
        in
        immediately available funds and lawful money of the United States of
        America.

      


      Interest
        shall accrue on amounts outstanding hereunder in accordance with that certain
        Fourth Amended and Restated Revolving Credit Agreement, dated as of
        March 24, 2006 (the “Agreement”),
        among
        Borrower, the financial institutions party thereto (collectively, the
“Lenders”),
        and
        Bank of America, N.A., as Administrative Agent for the Lenders (in such
        capacity, the “Administrative
        Agent”),
        Swing
        Line Lender and L/C Issuer (capitalized terms used and not defined herein
        shall
        have the meanings given to them in the Agreement). Pursuant thereto, interest
        shall accrue on amounts outstanding hereunder from time to time: (a) at a
        fluctuating per annum rate equal to the Reference Rate plus the Applicable
        Reference Rate Committed Loan Margin, or (b) at Borrower’s option, subject
        to the terms of the Agreement, at a per annum rate equal to the LIBOR Rate
        plus
        the Applicable LIBOR Committed Loan Margin. A change in the interest rate
        for
        Reference Rate Loans shall take effect on the day specified in the public
        announcement of the change in the Reference Rate. Except as otherwise specified
        in the Agreement, interest shall be computed on the basis of a 360-day year
        and
        actual days elapsed. Interest shall become due and payable in accordance
        with
        the terms of the Agreement.

      


      All
        unpaid principal and interest outstanding hereunder shall be due and payable
        as
        provided in the Agreement. This Note may be amended, modified, supplemented
        or
        replaced as provided in the Agreement.

      


      This
        Note
        is one of the Notes referred to in the Agreement, and is issued in conjunction
        with, and is entitled to all of the rights, benefits and privileges provided
        in,
        the Agreement, as now existing or as the same may from time to time be
        supplemented, modified or amended. The Agreement, among other things, provides
        that amounts outstanding hereunder from time to time may be repaid pursuant
        to
        the Agreement and reborrowed from time to time pursuant to the Agreement,
        and
        contains provisions for acceleration of the maturity hereof upon the happening
        


      
        
          
          

        

        
          H(1)-1

          
            

          

        

        
          
          

        

      


      of
        certain stated events. This Note is entitled to the benefits of the Guaranty
        and
        each Payment Guaranty.

      


      [This
        Note, amends and restate in full that certain [Second] Amended and Restated
        Revolving Note dated April 30, 2004, made by the undersigned and payable
        to the
        order of the Lender, in the maximum principal amount of $______________________
        (the “Original
        Note”),
        which
        Original Note was made pursuant to that certain Third Amended and Restated
        Revolving Loan Agreement dated as of April 30, 2004, among the undersigned,
        as “Borrower”, Bank of America, N.A, as “Administrative Agent”, and the lenders
        party thereto, which Third Amended and Restated Revolving Loan Agreement
        has
        been amended and restated in full by the Agreement.]*

      


      Lender
        may endorse on a schedule annexed to this Note the date, amount and maturity
        of
        each Loan that it makes pursuant to the Agreement and the amount of each
        payment
        of principal that Borrower makes with respect thereto. Borrower irrevocably
        authorizes Lender to endorse this Note, and Lender’s record shall be conclusive
        absent manifest error; provided,
        however, that Lender’s failure to make, or its error in making, a notation on
        the attached schedule with respect to any Loan shall not limit or otherwise
        affect Borrower’s obligations to Lender hereunder or under the
        Agreement.

      


      Borrower
        waives presentment, demand, protest, notice of protest, notice of nonpayment
        or
        dishonor and all other notices in connection with the delivery, acceptance,
        performance, default or enforcement of this Note. Time is of the essence
        hereof.

      


      This
        Note
        has been executed by the undersigned in the State of California. THIS NOTE
        IS TO
        BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE
        STATE
        OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE
        OR
        ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE OF
        LAW
        RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
        THAN
        THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES OF
        THE
        PARTIES.

      


      
        	
                ESSEX
                  PORTFOLIO, L.P.,

                a
                  California limited partnership

              
	
                By:

              	
                ESSEX
                  PROPERTY TRUST, INC.,

                a
                  Maryland corporation

              
	 	
                By:

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      


      
        
          
          

        

        
          H(1)-2

          
            

          

        

        
          
          

        

      


      EXHIBIT
        H-2

      


      FORM
        OF SWING LINE NOTE

      


      SECOND
        AMENDED AND RESTATED REVOLVING NOTE


      (Swing
        Line)

      


      


      
        	
                $25,000,000.00

              	
                San
                  Francisco, California 

              


      

      March 24,
        2006

      


      FOR
        VALUE
        RECEIVED, ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”),
        promises to pay to the order of BANK OF AMERICA, N.A. (“Swing
        Line Lender”),
        at
        the offices of Bank of America, N.A., Administrative Agent for Swing Line
        Lender, at 901 Main Street, TX1-492-14-14, Dallas, Texas 75202-3714, or at
        such
        other place as Swing Line Lender may designate in writing from time to time,
        the
        sum of TWENTY-FIVE MILLION DOLLARS ($25,000,000.00), or the aggregate unpaid
        principal amount outstanding hereunder, whichever may be the lesser, in
        immediately available funds and lawful money of the United States of
        America.

      


      Interest
        shall accrue on amounts outstanding hereunder in accordance with that certain
        Fourth Amended and Restated Revolving Credit Agreement, dated as of
        March 24, 2006 (the “Agreement”),
        among
        Borrower, the financial institutions party thereto (collectively, the
“Lenders”),
        and
        Bank of America, N.A., as Administrative Agent for the Lenders (in such
        capacity, the “Administrative
        Agent”),
        Swing
        Line Lender and L/C Issuer (capitalized terms used and not defined herein
        shall
        have the meanings given to them in the Agreement). Pursuant thereto, interest
        shall accrue on amounts outstanding hereunder from time to time at a fluctuating
        per annum rate equal to the Reference Rate plus the Applicable Reference
        Rate
        Committed Loan Margin. A change in the interest rate for Swing Line Loans
        shall
        take effect on the day specified in the public announcement of the change
        in the
        Reference Rate. Except as otherwise specified in the Agreement, interest
        shall
        be computed on the basis of a 360-day year and actual days elapsed. Interest
        shall become due and payable in accordance with the terms of the
        Agreement.

      


      All
        unpaid principal and interest outstanding hereunder shall be due and payable
        as
        provided in the Agreement.

      


      This
        is
        the Swing Line Note referred to in the Agreement, and is issued in conjunction
        with, and is entitled to all of the rights, benefits and privileges provided
        in,
        the Agreement, as now existing or as the same may from time to time be
        supplemented, modified or amended. The Agreement, among other things, provides
        that amounts outstanding hereunder from time to time may be repaid pursuant
        to
        the Agreement and reborrowed from time to time pursuant to the Agreement,
        and
        contains provisions for acceleration of the maturity hereof upon the happening
        of certain stated events. This Swing Line Note is entitled to the benefits
        of
        the Guaranty and each Payment Guaranty.

      


      This
        Swing Line Note amends and restates in full that certain Amended and Restated
        Revolving Note (Swing Line), dated April 30, 2004, made by the undersigned
        and payable to the 


      
        
          
          

        

        
          H(2)-1

          
            

          

        

        
          
          

        

      


      order
        of
        Bank of America, N.A. in the maximum principal amount of $25,000,000, which
        Revolving Note (Swing Line) was made pursuant to that certain Third Amended
        and
        Restated Revolving Loan Agreement dated as of April 30, 2004, among the
        undersigned, as “Borrower”, Bank of America, N.A, as “Administrative Agent”, and
        the Swing Line Lenders party thereto, which agreement has been amended and
        restated in full by the Agreement.

      


      Swing
        Line Lender may endorse on a schedule annexed to this Swing Line Note the
        date,
        amount and maturity of each Swing Loan that it makes pursuant to the Agreement
        and the amount of each payment of principal that Borrower makes with respect
        thereto. Borrower irrevocably authorizes Swing Line Lender to endorse this
        Swing
        Line Note, and Swing Line Lender’s record shall be conclusive absent manifest
        error; provided,
        however, that Swing Line Lender’s failure to make, or its error in making, a
        notation on the attached schedule with respect to any Swing Loan shall not
        limit
        or otherwise affect Borrower’s obligations to Swing Line Lender hereunder or
        under the Agreement.

      


      Borrower
        waives presentment, demand, protest, notice of protest, notice of nonpayment
        or
        dishonor and all other notices in connection with the delivery, acceptance,
        performance, default or enforcement of this Swing Line Note. Time is of the
        essence hereof.

      


      This
        Swing Line Note has been executed by the undersigned in the State of California.
        THIS SWING LINE NOTE IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
        THE
        INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5
        OF THE
        CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING
        EFFECT
        TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
        ANY
        JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE
        RIGHTS AND DUTIES OF THE PARTIES.

      


      
        	
                ESSEX
                  PORTFOLIO, L.P.,

                a
                  California limited partnership

              
	
                By:

              	
                ESSEX
                  PROPERTY TRUST, INC.,

                a
                  Maryland corporation

              
	 	
                By:

              	 
	 	
                Name:

              	 
	 	
                Title:

              	 


      

      

        
          
            
            

          

          
            H(2)-2

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        H-3

      


      FORM
        OF BID NOTE

      


      


      BID
        NOTE

      


      


      San
        Francisco, California

      March 24,
        2006

      


      FOR
        VALUE
        RECEIVED, ESSEX PORTFOLIO, L.P., a California limited partnership (“Borrower”),
        promises to pay to the order of ______________________ (“Lender”),
        at
        the offices of Bank of America, N.A., Administrative Agent for Lender, at
        901
        Main Street, TX1-492-14-14, Dallas, Texas 75202-3714, or at such other place
        as
        Lender may designate in writing from time to time, the principal amount of
        each
        Bid Loan from time to time made by the Lender to Borrower under the Agreement
        referenced below, in immediately available funds and lawful money of the
        United
        States of America.

      


      Interest
        shall accrue on the unpaid principal amount of each Bid Loan from the date
        of
        such Bid Loan until such principal is repaid in full, in accordance with
        that
        certain Fourth Amended and Restated Revolving Credit Agreement, dated as
        of
        March 24, 2006 (the “Agreement”),
        among
        Borrower, the financial institutions party thereto (collectively, the
“Lenders”),
        and
        Bank of America, N.A., as Administrative Agent for the Lenders (in such
        capacity, the “Administrative
        Agent”),
        Swing
        Line Lender and L/C Issuer (capitalized terms used and not defined herein
        shall
        have the meanings given to them in the Agreement). Pursuant thereto, interest
        shall accrue on amounts outstanding hereunder from time to time: (a) at a
        fluctuating per annum rate equal to the Absolute Rate, or (b) at Borrower’s
        option, subject to the terms of the Agreement, at a per annum rate equal
        to the
        LIBOR Rate plus the margin specified by the Lender pursuant to Section
        2.4
        of the
        Agreement. Except as otherwise specified in the Agreement, interest shall
        be
        computed on the basis of a 360-day year and actual days elapsed. Interest
        shall
        become due and payable in accordance with the terms of the
        Agreement.

      


      All
        unpaid principal and interest outstanding hereunder shall be due and payable
        as
        provided in the Agreement. This Bid Note may be amended, modified, supplemented
        or replaced as provided in the Agreement.

      


      This
        Bid
        Note is one of the Notes referred to in the Agreement, and is issued in
        conjunction with, and is entitled to all of the rights, benefits and privileges
        provided in, the Agreement, as now existing or as the same may from time
        to time
        be supplemented, modified or amended. The Agreement, among other things,
        provides that amounts outstanding hereunder from time to time may be repaid
        pursuant to the Agreement, and contains provisions for acceleration of the
        maturity hereof upon the happening of certain stated events. This Bid Note
        is
        entitled to the benefits of the Guaranty and each Payment
        Guaranty.


      
        
          
          

        

        
          H(3)-1

          
            

          

        

        
          
          

        

      


      Lender
        may endorse on a schedule annexed to this Bid Note the date, amount and maturity
        of each Bid Loan that it makes pursuant to the Agreement and the amount of
        each
        payment of principal that Borrower makes with respect thereto. Borrower
        irrevocably authorizes Lender to endorse this Bid Note, and Lender’s record
        shall be conclusive absent manifest error; provided,
        however, that Lender’s failure to make, or its error in making, a notation on
        the attached schedule with respect to any Bid Loan shall not limit or otherwise
        affect Borrower’s obligations to Lender hereunder or under the
        Agreement.

      


      Borrower
        waives presentment, demand, protest, notice of protest, notice of nonpayment
        or
        dishonor and all other notices in connection with the delivery, acceptance,
        performance, default or enforcement of this Bid Note. Time is of the essence
        hereof.

      


      This
        Bid
        Note has been executed by the undersigned in the State of California. THIS
        BID
        NOTE IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS
        OF
        THE STATE OF CALIFORNIA (AS PERMITTED BY SECTION 1646.5 OF THE CALIFORNIA
        CIVIL
        CODE OR ANY SIMILAR SUCCESSOR PROVISION), WITHOUT GIVING EFFECT TO ANY CHOICE
        OF
        LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
        OTHER
        THAN THE INTERNAL LAWS OF THE STATE OF CALIFORNIA TO THE RIGHTS AND DUTIES
        OF
        THE PARTIES.

       

      
        
          	
                  ESSEX
                    PORTFOLIO, L.P.,

                  a
                    California limited partnership

                
	
                  By:

                	
                  ESSEX
                    PROPERTY TRUST, INC.,

                  a
                    Maryland corporation

                
	 	
                  By:

                	 
	 	
                  Name:

                	 
	 	
                  Title:

                	 


        

      

       

      
        
          
          

        

        
          H(3)-2

          
            

          

        

        
          
          

        

      


      Bid
        Loans and Payments with respect thereto

       

      
        	
                Date

              	 	
                Type
                  of Bid Loan Made

              	 	
                Amount
                  of Bid Loan Made

              	 	
                End
                  of Interest Period

              	 	
                Amount
                  of Principal or Interest Paid This Date

              	 	
                Outstanding
                  Principal Balance This Date

              	 	
                Notation
                  Made By

              
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 


      

      

        
          
            
            

          

          
            H(3)-3

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        I-1

      


      FORM
        OF BID REQUEST

       

      
        	
                To:

              	
                Bank
                  of America, N.A., as Administrative
                  Agent

              


      

      Ladies
        and Gentlemen:

      


      Reference
        is made to that certain Fourth Amended and Restated Revolving Credit Agreement
        dated as of March 24, 2006, among Essex Portfolio L.P., a California
        limited partnership (“Borrower”),
        the
        financial institutions from time to time party thereto (the “Lenders”),
        and
        Bank of America, N.A., individually as a Lender and as administrative agent
        (in
        such capacity, “Administrative
        Agent”)
        and as
        Swing Line Lender and as L/C Issuer (as amended, restated, extended,
        supplemented or otherwise modified in writing from time to time, the
“Agreement”;
        the
        terms defined therein being used herein as therein defined).

      


      The
        Lenders are invited to make Bid Loans:

      


      
        	
                1.

              	
                On
                  ______________________ (a Business
                  Day).

              


      

      


      
        	
                2.

              	
                In
                  an aggregate amount not exceeding $______________________ (with
                  any
                  sublimits set forth below).

              


      

      


      
        	
                3.

              	
                Comprised
                  of (select one):

              


      

      
        	
                o 
Bid
                  Loans
                  based on an Absolute Rate

              	
                o 
Bid
                  Loans based on a LIBOR
                  Rate

              


      

      


      
        	
                Bid
                  Loan No.

              	
                Interest
                  Period requested5

              	
                Maximum
                  principal amount requested

              
	
                1

              	
                _______days/mos

              	
                $
                  _______________

              
	
                2

              	
                _______days/mos

              	
                $
                  _______________

              
	
                3

              	
                _______days/mos

              	
                $
                  _______________

              


      

      


      The
        Bid
        Borrowing requested herein complies with the requirements of Section
        2.4
        of the
        Agreement. The undersigned hereby certifies that the following statements
        are
        true on the date hereof, and will be true on the above date, before and after
        giving effect to the application of the proceeds therefrom:

      
         

        
          

        

      

      
        	
                5

              	
                14
                  to 180 days for a bid Loan based on an Absolute Rate; one to six
                  months
                  for a Bid Loan based on a LIBOR
                  Rate.

              


      

      

        
          
            
            

          

          
            I(1)-1

            
              

            

          

          
            
            

          

        

      

       

      (a)    The
        Outstanding Amount of Loans plus the Outstanding Amount of L/C Obligations
        shall
        not, after giving effect to the requested Bid Borrowing, exceed the
        Availability.

      


      (b)    All
        of
        the representations and warranties contained in the Agreement and the other
        Loan
        Documents are true and correct as of the date hereof and shall be true and
        correct on the date of the Bid Borrowing, both before and after giving effect
        to
        such Bid Borrowing; provided,
        however, that the representations and warranties set forth in the Agreement
        regarding financial statements shall be deemed to be made with respect to
        the
        financial statements most recently delivered to Administrative Agent pursuant
        to
        the Agreement.

      


      (c)    No
        Default or Event of Default has occurred and is continuing on the date hereof
        or
        after giving effect to the requested Bid Borrowing.

      


      (d)    The
        proceeds of the Bid Borrowing are only as permitted by the
        Agreement;

      


      (e)    No
        act,
        omission, change or event which would have a material adverse effect on Borrower
        has occurred since the date of the Agreement.

      


      (f)    Enclosed
        are the documents and information requested by Lender as a condition to the
        requested Bid Borrowing.

      


      Borrower
        authorizes the Administrative Agent to deliver this Bid Request to the Lenders.
        Responses by the Lenders must be in substantially the form of Exhibit
        I-2
        to the
        Agreement and must be received by the Administrative Agent by the time specified
        in Section 2.4
        of the
        Agreement for submitting Competitive Bids.

       

      
        
          
            	
                    Dated
                      as of _____________, 200__

                  	
                    ESSEX
                      PORTFOLIO, L.P., 
a
                      California limited partnership

                  
	 	 
	 	
                    By:

                  	
                    Essex
                      Property Trust, Inc.,
a
                      Maryland corporation, 
its General Partner

                  
	 	 	 	 
	 	 	 	 
	 	 	
                    By:

                  	 
	 	 	
                    Name:

                  	 
	 	 	
                    Title:

                  	 


          

           

        

      

      
        
          
            
            

          

          
            I(1)-2

            
              

            

          

          
            
            

          

        

      

       

      EXHIBIT
        I-2

      


      FORM
        OF COMPETITIVE BID

      


      __________,
        ____

      
        	
                To:

              	
                Bank
                  of America, N.A., as Administrative
                  Agent

              


      

      


      Ladies
        and Gentlemen:

      


      Reference
        is made to that certain Fourth Amended and Restated Revolving Credit Agreement
        dated as of March 24, 2006, among Essex Portfolio L.P., a California
        limited partnership (“Borrower”),
        the
        financial institutions from time to time party thereto (the “Lenders”),
        and
        Bank of America, N.A., individually as a Lender and as administrative agent
        (in
        such capacity, “Administrative
        Agent”)
        and as
        Swing Line Lender and as L/C Issuer (as amended, restated, extended,
        supplemented or otherwise modified in writing from time to time, the
“Agreement”;
        the
        terms defined therein being used herein as therein defined).

      


      In
        response to the Bid Request dated _________________________, ____, the
        undersigned offers to make the following Bid Loan(s):

      


      
        	 	
                1.

              	
                Borrowing
                  date: _________________________ (a Business
                  Day).

              


      

      


      
        	 	
                2.

              	
                In
                  an aggregate amount not exceeding $_________________________ (with
                  any
                  sublimits set forth below).

              


      

      


      
        	 	
                3.

              	
                Comprised
                  of:

              


      

       

      
        	
                Bid
                  Loan No.

              	
                Interest
                  Period Offered6

              	
                Bid
                  Maximum

              	
                Absolute
                  Rate Bid or LIBOR Margin Bid*

              
	
                1

              	
                _______days/mos

              	
                $
                  _______________

              	
                (-
                  +) _______%

              
	
                2

              	
                _______days/mos

              	
                $
                  _______________

              	
                (-
                  +) _______%

              
	
                3

              	
                _______days/mos

              	
                $
                  _______________

              	
                (-
                  +) _______%

              


      

       

      
        

      

      
        	
                6

              	
                14
                  to 360 days for a bid Loan based on an Absolute Rate; one to twelve
                  months
                  for a Bid Loan based on the LIBOR
                  Rate.

              


      

      
        	
                *

              	
                Expressed
                  in multiples of 1/100th of a basis
                  point.

              


      

      

        
          
            
            

          

          
            I(2)-1

            
              

            

          

          
            
            

          

        

Contact
        Person: ________________________________  
        Telephone: ________________________________

       

      
        
          	 	
                  [LENDER]

                
	 	 	 
	 	 	 
	 	
                  By:
                    

                	 
	 	
                  Name:
                    

                	 
	 	
                  Title:

                	 


        

      

       

        
          

        

      

      THIS
        SECTION IS TO BE COMPLETED BY THE BORROWER IF IT WISHES TO ACCEPT ANY OFFERS
        CONTAINED IN THIS COMPETITIVE BID:

      The
        offers made above are hereby accepted in the amounts set forth
        below:

      


      
        	
                Bid
                  Loan No.

              	
                Principal
                  Amount Accepted

              
	 	
                $

              
	 	
                $

              
	 	
                $

              


      

      


      
        
          	
                  ESSEX
                    PORTFOLIO, L.P., a
                    California limited partnership

                
	 	 
	
                  By:

                	
                  Essex
                    Property Trust, Inc., a
                    Maryland corporation,its General Partner

                
	 	 
	
                  By:

                	 
	
                  Name:

                	 
	
                  Title:

                	 


        

      

       

      
        
          
            
            

          

          
            I(2)-2

            
              

            

          

          
            
            

          

        

      

       

      SCHEDULE
        1.1

      


      LENDERS
        NAMES, ADDRESSES AND PRO RATA SHARES

       

      
        	
                Lender

              	 	
                Commitment

              	 	
                Pro
                  Rata Share

              	 
	
                Bank
                  of America, N.A.

              	 	
                $

              	
                34,500,000

              	 	 	
                17.25

              	
                %

              
	
                PNC
                  Bank National Association

              	 	
                $

              	
                34,000,000

              	 	 	
                17.00

              	
                %

              
	
                Union
                  Bank of California, N.A.

              	 	
                $

              	
                34,000,000

              	 	 	
                17.00

              	
                %

              
	
                JPMorgan
                  Chase Bank, N.A.

              	 	
                $

              	
                27,500,000

              	 	 	
                13.75

              	
                %

              
	
                KeyBank
                  National Association

              	 	
                $

              	
                25,000,000

              	 	 	
                12.50

              	
                %

              
	
                Comerica
                  Bank

              	 	
                $

              	
                25,000,000

              	 	 	
                12.50

              	
                %

              
	
                Chevy
                  Chase Bank, F.S.B.

              	 	
                $

              	
                20,000,000

              	 	 	
                10.00

              	
                %

              
	
                TOTAL

              	 	
                $

              	
                200,000,000

              	 	 	
                100.00

              	
                %

              


      

      

        
          
            
            

          

          
            Sch1.1-1

            
              

            

          

          
            
            

          

        

SCHEDULE
        1.2

      


      ADMINISTRATIVE
        AGENT’S OFFICE; 

      


      AGENT’S
        PAYMENT OFFICE

      


      BORROWER:

      


      ESSEX
        PORTFOLIO, L.P.

      Care
        of:
        Essex
        Property Trust, Inc.

      925
        East
        Meadow Drive

      Palo
        Alto, CA 94303

      Attn:
        Mark J. Mikl and Jordan E. Ritter 

      Facsimile:
        (650) 843-1514 and (650) 858-1372

      Telephone:
        (650) 849-1614 and (650) 849-1659

      Email:
        mmikl@essexpropertytrust.com and jritter@essexpropertytrust.com

      


      ADMINISTRATIVE
        AGENT:

      


      Administrative
        Agent’s
        Office 

      (for
        payments and Requests for Credit Extensions):

       

      Bank
        of
        America, N.A.

      901
        Main
        Street, 14th Floor, TX1-492-14-14

      Dallas,
        TX 75202-3714 

      Attention:
        Sharon M. Tolin

      Telephone:
        (214) 209-0203

      Facsimile:
        (214) 290-9645

      Electronic
        Mail: sharon.m.tolin@bankofamerica.com 

      Account
        No.: 1292000883

      Ref:
        Essex Property Trust

      ABA#
        111000012

      


      Other
        Notices as Administrative Agent:

       

      Bank
        of
        America, N.A.

      1455
        Market Street, CA5-701-05-19

      San
        Francisco, CA 94103

      Attention:
        Kathleen Carry

      Telephone:
        (415) 436-4001

      Facsimile:
        (415) 503-5001

      Electronic
        Mail: kathleen.carry@bankofamerica.com


      
        
          
          

        

        
          Sch1.2-1

          
            

          

        

        
          
          

        

      


      L/C
        ISSUER:

      


      Bank
        of
        America, N.A.

      Trade
        Operations - Los Angeles

      1000
        W.
        Temple Street, CA9-705-07-05

      Los
        Angeles, CA 90012-1514

      Attention:
        Stella Rosales, AVP; Trade Finance SVC Center Coordinator

      Telephone:213-481-7828

      Facsimile:
        213-580-8441

      Electronic
        Mail: Stella.Rosales@bankofamerica.com

      


      


      SWING
        LINE LENDER:

      


      Bank
        of
        America, N.A.

      901
        Main
        Street, 14th Floor

      Dallas,
        TX 75202-3714 

      Attention:
        Sharon M. Tolin

      Telephone:
        (214) 209-0203

      Facsimile:
        (214) 290-9645

      Electronic
        Mail: sharon.m.tolin@bankofamerica.com 

      Account
        No.: 1292000883

      Ref:
        Essex Property Trust

      ABA#
        111000012

      

        
          
            
            

          

          
            Sch1.2-2

            
              

            

          

          
            
            

          

        

SCHEDULE
        1.3

      


      EXISTING
        LETTERS OF CREDIT

      


      
        	
                L/C
                  no. 

              	
                Amount

              	
                Expiry
                  Date

              	
                Beneficiary

              
	 	 	 	 
	
                3065020
                  

              	
                $1,902,400

              	
                8/26/06

              	
                The
                  Travelers Indemnity Co.

              


      

      

        
          
            
            

          

          
            Sch1.3-1

            
              

            

          

          
            
            

          

        

      

       

      SCHEDULE
        1.4

      


      PERMITTED
        AFFILIATES

      


      JMS
        Acquisition LLC

       

      Jaysac,
        Ltd.

       

      Jaysac
        GP
        Corp.

       

      Essex
        Bridle Trails, L.P.

       

      Essex
        Bristol Partners, L.P.

       

      Essex
        Bunker Hill, L.P.

       

      Essex
        Columbus LLC

       

      Essex
        Lorraine LLC

       

      Essex
        Maple Leaf, L.P.

       

      Essex
        Marina City Club, L.P.

       

      Essex
        Meadowood, L.P.

       

      Essex
        Park Boulevard, LLC

       

      Essex
        Spring Lake, L.P.

       

      Essex
        Tracy Development, Inc.

       

      Jackson
        School Village Limited Partnership

       

      Newport
        Beach North LLC

       

      Park
        Hill
        LLC

      



      
        
          
          

        

        
          Sch1.4-1

          
            

          

        

        
          
          

        

      


      SCHEDULE
        1.5

      


      PROCESSING
        AND RECORDATION FEES

      


      The
        Administrative Agent will charge a processing and recordation fee (an
“Assignment
        Fee”)
        in the
        amount of $3,500 for each assignment; provided,
        however,
        that in
        the event of two or more concurrent assignments to members of the same Assignee
        Group (which may be effected by a suballocation of an assigned amount among
        members of such Assignee Group) or two or more concurrent assignments by
        members
        of the same Assignee Group to a single Eligible Assignee (or to an Eligible
        Assignee and members of its Assignee Group), the Assignment Fee will be $3,500
        plus the amount set forth below:

      


      
        	
                Transaction

              	
                Assignment
                  Fee

              
	 	 
	
                First
                  four concurrent assignments or suballocations to members of an
                  Assignee
                  Group (or from members of an Assignee Group, as
                  applicable)

              	
                -0-

              
	
                Each
                  additional concurrent assignment or suballocation to a member of
                  such
                  Assignee Group (or from a member of such Assignee Group, as
                  applicable)

              	
                $500

              


      

       

      Sch.1.5-1