Exhibit 10.1


FIRST AMENDMENT TO SECOND


AMENDED AND RESTATED REVOLVING
LOAN AGREEMENT


 


This FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (this “Amendment”) is made as of November
13, 2007 by and among (a) AvalonBay Communities, Inc. (the “Borrower”), (b) the Banks party
hereto, and (c) Bank of America, N.A. as Administrative Agent (in such
capacity, the “Administrative Agent”) for
the Banks.


WHEREAS, the Borrower,
the Banks and the Administrative Agent are parties to a Second Amended and
Restated Revolving Loan Agreement dated as of November 14, 2006 (the “Loan Agreement”), pursuant to which
the Banks have agreed to make loans to the Borrower on the terms and conditions
set forth therein; and


WHEREAS, the Borrower has
elected to exercise its option to increase the Total Loan Commitment under the
Loan Agreement, and the Banks party hereto are willing to increase their
respective Loan Commitments under the Loan Agreement on the terms and
conditions set forth herein;


NOW, THEREFORE, in consideration
of the foregoing premises, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and fully intending
to be legally bound by this Amendment, the parties hereto agree as follows:


1.             Definitions.  Capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Loan Agreement.


2.             Modifications to Loan Agreement. 
As of the Effective Date (as defined in §4 hereof) the Loan Agreement is
modified as follows:


2.1.         Schedule 1.  Schedule 1 to the
Loan Agreement is hereby modified by deleting said Schedule 1 in its
entirety and substituting the Schedule 1 attached to this Amendment in place thereof.


2.2.         Schedule 2.16.  Schedule 2.16 to the Loan Agreement
is hereby modified by deleting said Schedule 2.16
in its entirety and substituting the Schedule 2.16
attached to this Amendment in place thereof.


2.3.         Exhibit B-1. 
EXHIBIT B-1 to the Loan Agreement is hereby modified by deleting said
EXHIBIT B-1 in its entirety and substituting the EXHIBIT B-1 attached to this
Amendment in place thereof.


2.4.         Acknowledgement. 
The parties acknowledge that as of the Effective Date the Total Loan
Commitment shall be $1,000,000,000.  The
Borrower acknowledges that no further increases of the Total Loan Commitment
may be made under Section 2.19 of the Loan Agreement.

















3.             Provisions Of General
Application.


3.1.         Representations and Warranties. The Borrower hereby represents and
warrants as of the date hereof that (a) each of the representations and
warranties of the Borrower contained in the Loan Agreement, the other Loan
Documents or any document or instrument delivered pursuant to or in connection
with the Loan Agreement or this Amendment are true and correct in all material
respects as of the date as of which they were made and are true and correct in
all material respects at and as of the date of this Amendment (except to the
extent (i) of changes resulting from transactions contemplated or not
prohibited by the Loan Agreement or the other Loan Documents, (ii) of changes
occurring in the ordinary course of business, or (iii) that such
representations and warranties relate expressly to an earlier date), (b) no
Default or Event of Default exists on the date hereof (before and after giving
effect to this Amendment), and (c) this Amendment has been duly authorized,
executed and delivered by the Borrower and is in full force and effect as of
the Effective Date, and the agreements and obligations of the Borrower
contained herein constitute the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with its terms, subject only to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and to the fact that the availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.


The Borrower hereby further
represents and warrants as of the date hereof that the execution, delivery and
performance of this Amendment are within the
Borrower’s corporate powers, have been authorized by all necessary corporate
action, and do not and will not (a) require the consent or approval of its
shareholders or such consent or approval has been obtained, (b) contravene
either its certificate of incorporation or by-laws, (c) to the best of Borrower’s knowledge, violate any provision
of, or require any filing, registration, consent or approval under, any Law
(including, without limitation, Regulation U), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it, (d) result in a breach of or constitute a default under or
require any consent under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which it may be a party or by which it
or its properties may be bound or affected except for consents which have been
obtained, (e) result in, or require, the creation or imposition of any Lien,
upon or with respect to any of its properties now owned or hereafter acquired
or (f) to the best of Borrower’s
knowledge, cause it to be in default under any such Law, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.


 


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3.2.         No Other Changes.  Except as
otherwise expressly provided or contemplated by this Amendment, all of the
terms, conditions and provisions of the Loan Agreement remain unaltered and in
full force and effect.  The Loan
Agreement and this Amendment shall be read and construed as one agreement.  The making of the modifications in this
Amendment does not imply any obligation or agreement by the Administrative
Agent or any Bank to make any other amendment, waiver, modification or consent
as to any matter on any subsequent occasion. 
This Amendment shall be a Loan Document under the Loan Agreement.


3.3.         Governing Law.  This Amendment
shall be deemed to be a contract under the laws of the State of New York.  This Amendment and the rights and obligations
of each of the parties hereto are contracts under the laws of the State of New
York and shall for all purposes be construed in accordance with and governed by
the laws of such State (excluding the laws applicable to conflicts or choice of
law).


3.4.         Assignment.  This Amendment
shall be binding upon and inure to the benefit of each of the parties hereto
and their respective permitted successors and assigns.


3.5.         Counterparts.  This Amendment
may be executed in any number of counterparts, but all such counterparts shall
together constitute but one and the same agreement.  In making proof of this Amendment, it shall
not be necessary to produce or account for more than one counterpart thereof
signed by each of the parties hereto. 
Delivery of an executed counterpart of this Amendment by facsimile or
other electronic transmission, with confirmation of receipt or record of
transmission, shall be effective as delivery of a manually executed counterpart
of this Amendment.


4.             Effectiveness of this Amendment. 
This Amendment shall become effective on the date on which the following
conditions precedent are satisfied (such date being hereinafter referred to as
the “Effective Date”):


(a)           Execution and delivery to the
Administrative Agent by each of those Banks increasing its Loan Commitment, the
Borrower and the Administrative Agent of this Amendment.


(b)           Execution and delivery to the
Administrative Agent of (i) a certificate of the Borrower confirming that there
have been no changes to its certificate of incorporation or by-laws since
November 14, 2006, or (ii) if there have been changes to the Borrower’s
certificate of incorporation or by-laws since such date, a secretary’s
certificate of the Borrower certifying as to such changes.


(c)           Delivery to the Administrative Agent
of an incumbency certificate of the Borrower and of resolutions of the board of
directors of the Borrower authorizing this Amendment.


 


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(d)           Payment by the Borrower of (i) the
fees payable to the Syndication Agent described in the Fee Letter dated as of
November 13, 2007 (the “Fee Letter”), (ii) the upfront fees payable to those
Banks increasing their Loan Commitments described in the Fee Letter, which fees
shall be paid to the Administrative Agent for the account of the Banks, and
(iii) all expenses due and payable on or before the Effective Date, including,
without limitation, reasonable attorneys’ fees and expenses and other costs and
expenses incurred in connection with this Amendment, including those payable
under Section 3.05 of the Loan Agreement.


(e)           Delivery to the Administrative Agent
by Goodwin Procter LLP, as counsel to the Borrower, of an opinion addressed to
the Banks and the Administrative Agent in form and substance reasonably
satisfactory to the Administrative Agent.


(f)            Execution and delivery by the
Borrower of (i) New Notes and Supplemental Notes payable to those Banks
increasing their Loan Commitments and (ii) a new Bid Rate Loan Note reflecting
the increased amount of the Bid Borrowing Limit.


[Remainder of page left blank intentionally]


 


 


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IN WITNESS WHEREOF, the undersigned
have duly executed and delivered this First Amendment as of the date first set
forth above.


 


	
   

  	
  AVALONBAY
  COMMUNITIES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Joanne M. Lockridge

  
	
   

  	
  Name:

  	
  Joanne M. Lockridge

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  BANK OF AMERICA, N.A.  

  (as Bank and Administrative Agent)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Misbah Seyal

  
	
   

  	
  Name:

  	
  Misbah Seyal

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  JPMORGAN CHASE BANK, N.A.  

  (as Bank and Syndication Agent)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marc E. Costantino

  
	
   

  	
  Name:

  	
  Marc E. Costantino

  
	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Matthew Ricketts

  
	
   

  	
  Name:

  	
  Matthew Ricketts

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  DEUTSCHE BANK TRUST

  COMPANY AMERICAS

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ J.T. Johnston Coe

  
	
   

  	
  Name:

  	
  J.T. Johnston Coe

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Brenda Casey

  
	
   

  	
  Name:

  	
  Brenda Casey

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel Twenge

  
	
   

  	
  Name:

  	
  Daniel Twenge

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen F. Gray

  
	
   

  	
  Name:

  	
  Stephen F. Gray

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
								



 


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  SUNTRUST BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Nancy B. Richards

  
	
   

  	
  Name:

  	
  Nancy B. Richards

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Irja R. Otsa

  
	
   

  	
  Name:

  	
  Irja R. Otsa

  
	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mary E. Evans

  
	
   

  	
  Name:

  	
  Mary E. Evans

  
	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  REGIONS BANK (F/K/A AMSOUTH BANK)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kerri Raines

  
	
   

  	
  Name:

  	
  Kerri Raines

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David Applebaum

  
	
   

  	
  Name:

  	
  David Applebaum

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  PNC BANK, NATIONAL 

  ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ William R. Lynch, III

  
	
   

  	
  Name:

  	
  William R. Lynch, III

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  SCOTIABANC INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ J.F. Todd

  
	
   

  	
  Name:

  	
  J.F. Todd

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
								



 


	
   

  	
  BANK OF TOKYO-MITSUBISHI UFJ, 

  LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ James T. Taylor

  
	
   

  	
  Name:

  	
  James T. Taylor

  
	
   

  	
  Title:

  	
  Vice President

  
								



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EXHIBIT B-1


BID RATE
LOAN NOTE


$                                                                                                                                                              New
York, New York


 


                                                                                                                                                        [Date]


 


For value received, AvalonBay Communities, Inc., a Maryland
corporation (“Borrower”), hereby promises
to pay to the order of Bank of America, N.A., as administrative agent (“Administrative Agent”), or its
successors or assigns for the account of the respective Banks making Bid Rate
Loans or their respective successors or assigns (for the further account of
their respective Applicable Lending Offices), at the principal office of
Administrative Agent located at 777 Main Street, Hartford, CT  06115, the principal sum of                    
Dollars ($        ), or, if less, the
amount loaned by one or more of said Banks under their respective Bid Rate
Loans to Borrower pursuant to the Loan Agreement (as defined below) and
actually outstanding, in lawful money of the United States and in immediately
available funds, in accordance with the terms set forth in the Loan
Agreement.  Borrower also promises to pay
interest on the unpaid principal balance hereof, for the period such balance is
outstanding, in like money, at said office for the account of said Banks for
the further account of their respective Applicable Lending Offices, at the
times and at the rates per annum as provided in the Loan Agreement.  Any amount of principal hereof which is not
paid when due, whether at stated maturity, by acceleration, or otherwise, shall
bear interest from the date when due until said principal amount is paid in
full, payable on demand, at the rate set forth in the Loan Agreement.


 


The date and amount of each Bid Rate Loan to Borrower under the
Loan Agreement referred to below, the name of the Bank making the same, the
interest rate applicable thereto and the maturity date thereof (i.e., the end
of the Interest Period Applicable thereto) shall be recorded by Administrative
Agent on its records and may be endorsed by Administrative Agent on the
schedule attached hereto and any continuation thereof.


 


This Note is the Bid Rate Loan Note referred to in the Second
Amended and Restated Revolving Loan Agreement dated as of November 14, 2006 (as
the same may be amended from time to time, the “Loan
Agreement”) among Borrower, the Banks named therein and
Administrative Agent, as administrative agent for the Banks.  All of the terms, conditions and provisions
of the Loan Agreement are hereby incorporated by reference.  All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Loan Agreement.


 


The Loan Agreement contains, among other things, provisions for
the prepayment of and acceleration of this Note upon the happening of certain
stated events.


 


No recourse shall be had under this Note against the Borrower’s Principals except as and to the
extent set forth in Section 11.02 of the Loan Agreement.


 


All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.


 


This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the State of New York, provided that, as to the
maximum lawful rate of interest which may be charged or collected, if the Laws
applicable to a particular Bank permit it to charge or collect a higher rate
than the Laws of the State of New York, then such Law applicable to such Bank
shall apply to such Bank under this Note.


 


	
   

  	
  AVALONBAY
  COMMUNITIES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
									



 


 


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  Bid Rate Loan Number

  	
   

  	
  Date

  	
   

  	
  Amount of Bid Rate Loan

  	
   

  	
  Interest Rate

  	
   

  	
  Expiration of Interest Period

  	
   

  	
  Notation Made By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


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