Exhibit 10.35
 EXECUTION VERSION




---



##### 



TABLE OF CONTENTS
 PageARTICLE 1 THE COMMITMENT
    
    
    2Section 1.01. The Commitment
    
    
    2Section 1.02. Requests for Advances
    
    
    3Section 1.03. Maturity Date of Advances; Amortization
    
    
    3Section 1.04. Interest on Advances
    
    
    4Section 1.05. Coupon Rates for Variable DMBS Advances
    
    
    5Section 1.06. Notes
    
    
    6Section 1.07. Reserved
    
    
    6Section 1.08. Conversion from Variable Facility Commitment to Fixed Facility
Commitment
    
    
    6Section 1.09. Limitations on Right to Convert
    
    
    7Section 1.10. Conditions to Conversion
    
    
    7Section 1.11. Yield Maintenance
    
    
    7Section 1.12. Interest Rate Cap
    
    
    8ARTICLE 2 THE ADVANCES
    
    
    8Section 2.01. Rate Setting for an Advance
    
    
    8Section 2.02. DMBS Refinance Confirmation Form for Rollover Variable Advances
    
    
    9Section 2.03. Breakage and other Costs
    
    
    9Section 2.04. Advances
    
    
    9Section 2.05. Determination of Allocable Facility Amount and Valuations
    
    
    10Section 2.06. Future Advances Made on Increased Values
    
    
    10ARTICLE 3 COLLATERAL CHANGES
    
    
    11Section 3.01. Right to Add Collateral
    
    
    11Section 3.02. Procedure for Adding Collateral
    
    
    11Section 3.03. Right to Obtain Releases of Collateral
    
    
    12Section 3.04. Procedure for Obtaining Releases of Collateral
    
    
    12Section 3.05. Right to Substitutions
    
    
    14Section 3.06. Procedure for Substitutions
    
    
    14Section 3.07. Substitution Deposit
    
    
    15ARTICLE 4 INCREASE OF CREDIT FACILITY
    
    
    17Section 4.01. Request to Increase Commitment
    
    
    17Section 4.02. Procedure for Obtaining Increases in Commitment
    
    
    17Section 4.03. Closing
    
    
    17ARTICLE 5 TERMINATION OF FACILITIES
    
    
    18Section 5.01. Right to Complete or Partial Termination of Facilities
    
    
    18Section 5.02. Procedure for Complete or Partial Termination of Facilities
    
    
    18Section 5.03. Right to Terminate Credit Facility
    
    
    18Section 5.04. Procedure for Terminating Credit Facility
    
    
    19
  i




---



##### 



PageARTICLE 6 CONDITIONS PRECEDENT TO ALL REQUESTS
    
    
    19Section 6.01. Conditions Applicable to All Requests
    
    
    19Section 6.02. Conditions Precedent to Initial Advance
    
    
    21Section 6.03. Conditions Precedent to Future Advances
    
    
    22Section 6.04. Conditions Precedent to Addition of an Additional Mortgaged Property to
the Collateral Pool
    
    
    23Section 6.05. Conditions Precedent to Release of Property from the Collateral Pool.
    
    
    24Section 6.06. Conditions Precedent to Substitutions
    
    
    25Section 6.07. Conditions Precedent to Increase in Commitment
    
    
    26Section 6.08. Conditions Precedent to Conversion
    
    
    27Section 6.09. Conditions Precedent to Complete or Partial Termination of
Facilities
    
    
    27Section 6.10. Conditions Precedent to Termination of Credit Facility
    
    
    28Section 6.11. Delivery of Opinion Relating to Advance Request, Addition Request,
Substitution Request, Conversion Request or Expansion Request
    
    
    28Section 6.12. Delivery of Property-Related Documents
    
    
    28Section 6.13. Additional Collateral
    
    
    30Section 6.14. Letters of Credit
    
    
    30ARTICLE 7 REPRESENTATIONS AND WARRANTIES
    
    
    32Section 7.01. Representations and Warranties of Borrower
    
    
    32Section 7.02. Representations and Warranties of Lender
    
    
    32ARTICLE 8 AFFIRMATIVE COVENANTS OF BORROWER AND GUARANTOR
    
    
    32Section 8.01. Compliance with Agreements
    
    
    32Section 8.02. Maintenance of Existence
    
    
    33Section 8.03. Financial Statements; Accountants Reports; Other Information
    
    
    33Section 8.04. Access to Records; Discussions With Officers and Accountants
    
    
    36Section 8.05. Certificate of Compliance
    
    
    36Section 8.06. Maintain Licenses
    
    
    37Section 8.07. Inform Lender of Material Events
    
    
    37Section 8.08. Compliance with Applicable Law
    
    
    38Section 8.09. Alterations to the Mortgaged Properties
    
    
    38Section 8.10. Loan Document Taxes
    
    
    39Section 8.11. Further Assurances
    
    
    39Section 8.12. Transfer of Ownership Interests in Borrower or Guarantor
    
    
    39Section 8.13. Transfer of Ownership of Mortgaged Property
    
    
    40Section 8.14. Consent to Prohibited Transfers
    
    
    42Section 8.15. Date-Down Endorsements
    
    
    43Section 8.16. Ownership of Mortgaged Properties
    
    
    43Section 8.17. Compliance with Net Worth Test
    
    
    43Section 8.18. Compliance with Liquidity Test
    
    
    43Section 8.19. Change in Property Manager
    
    
    43Section 8.20. Single Purpose Entity
    
    
    43Section 8.21. ERISA
    
    
    44Section 8.22. Consents or Approvals
    
    
    44Section 8.23. Prepayment of Rents
    
    
    44Section 8.24. Affiliate Contracts
    
    
    44Section 8.25. Post Closing Obligation
    
    
    44Section 8.26. Geographical Diversification Requirements
    
    
    45
  ii




---



##### 



PageARTICLE 9 NEGATIVE COVENANTS OF BORROWER
    
    
    45Section 9.01. Other Activities
    
    
    45Section 9.02. Liens
    
    
    45Section 9.03. Indebtedness
    
    
    45Section 9.04. Principal Place of Business
    
    
    45Section 9.05. Condominiums
    
    
    46Section 9.06. Restrictions on Distributions
    
    
    46Section 9.07. No Hedging Arrangements
    
    
    46Section 9.08. Confidentiality of Certain Information
    
    
    46ARTICLE 10 FEES
    
    
    46Section 10.01. Reserved
    
    
    46Section 10.02. Occupancy Deficiency Origination Fee
    
    
    46Section 10.03. Origination Fees
    
    
    47Section 10.04. Due Diligence Fees
    
    
    48Section 10.05. Legal Fees and Expenses
    
    
    49Section 10.06. Failure to Close any Request
    
    
    49ARTICLE 11 EVENTS OF DEFAULT
    
    
    49Section 11.01. Events of Default
    
    
    49ARTICLE 12 REMEDIES
    
    
    51Section 12.01. Remedies; Waivers
    
    
    51Section 12.02. Waivers; Rescission of Declaration
    
    
    52Section 12.03. Lenders Right to Protect Collateral and Perform Covenants and
Other Obligations
    
    
    52Section 12.04. No Remedy Exclusive
    
    
    52Section 12.05. No Waiver
    
    
    53Section 12.06. No Notice
    
    
    53ARTICLE 13 INSURANCE, REAL ESTATE TAXES AND REPLACEMENT RESERVES
    
    
    53Section 13.01. Insurance and Real Estate Taxes
    
    
    53Section 13.02. Replacement Reserves
    
    
    55Section 13.03. Completion/Repair Reserves
    
    
    55ARTICLE 14 LIMITS ON PERSONAL LIABILITY
    
    
    55Section 14.01. Personal Liability to Borrower
    
    
    55Section 14.02. Additional Borrowers
    
    
    57Section 14.03. Borrower Agency Provisions
    
    
    58Section 14.04. Joint and Several Obligation; Cross-Guaranty
    
    
    58Section 14.05. Waivers With Respect to Other Borrower Secured Obligation
    
    
    59Section 14.06. No Impairment
    
    
    62Section 14.07. Election of Remedies
    
    
    63Section 14.08. Subordination of Other Obligations
    
    
    64Section 14.09. Insolvency and Liability of Other Borrower
    
    
    64Section 14.10. Preferences, Fraudulent Conveyances, Etc
    
    
    65Section 14.11. Maximum Liability of Each Borrower
    
    
    66Section 14.12. Liability Cumulative
    
    
    66
  iii




---



##### 



PageARTICLE 15 MISCELLANEOUS PROVISIONS
    
    
    66Section 15.01. Counterparts
    
    
    66Section 15.02. Amendments, Changes and Modifications
    
    
    66Section 15.03. Payment of Costs, Fees and Expenses
    
    
    67Section 15.04. Payment Procedure
    
    
    67Section 15.05. Payments on Business Days
    
    
    68Section 15.06. Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial
    
    
    68Section 15.07. Severability
    
    
    69Section 15.08. Notices
    
    
    69Section 15.09. Further Assurances and Corrective Instruments
    
    
    71Section 15.10. Term of this Agreement
    
    
    72Section 15.11. Assignments; Third-Party Rights
    
    
    72Section 15.12. Headings
    
    
    72Section 15.13. General Interpretive Principles
    
    
    72Section 15.14. Interpretation
    
    
    73Section 15.15. Standards for Decisions, Etc
    
    
    73Section 15.16. Decisions in Writing
    
    
    73Section 15.17. Requests
    
    
    73Section 15.18. Conflicts Between Agreements
    
    
    73Section 15.19. Timing of Decisions
    
    
    74
  iv




---



##### 



EXHIBITS
 EXHIBIT A
    
    Schedule of Initial Mortgaged Properties and Initial ValuationsEXHIBIT B
    
    RESERVEDEXHIBIT C
    
    RESERVEDEXHIBIT D
    
    RESERVEDEXHIBIT E
    
    Confirmation of GuarantyEXHIBIT F
    
    Compliance CertificateEXHIBIT G-1
    
    Borrower Organizational CertificateEXHIBIT G-2
    
    Guarantor Organizational CertificateEXHIBIT H
    
    Conversion RequestEXHIBIT I
    
    Master Credit Facility Agreement Conversion AmendmentEXHIBIT J
    
    Rate FormEXHIBIT K
    
    RESERVEDEXHIBIT L
    
    Advance RequestEXHIBIT M
    
    Request (Addition/Release)EXHIBIT N
    
    Confirmation of ObligationsEXHIBIT O
    
    Expansion RequestEXHIBIT P
    
    Facility Termination RequestEXHIBIT Q
    
    Amendment to Master Credit Facility AgreementEXHIBIT R
    
    Credit Facility Termination RequestEXHIBIT S
    
    RESERVEDEXHIBIT T
    
    RESERVEDEXHIBIT U
    
    Cash Collateral, Security and Custody AgreementEXHIBIT V
    
    Letter of CreditEXHIBIT W-1
    
    Bank Legal Opinion (Foreign)EXHIBIT W-2
    
    Bank Legal Opinion (Domestic)EXHIBIT X
    
    Form of Rent RollAPPENDIX I
    
    DefinitionsSCHEDULE I
    
    List of Borrowers
  v




---



##### 



MASTER CREDIT FACILITY AGREEMENT
  RECITALS
 Exhibit A
  Exhibit
A
 i.e. i.e.




---



##### 



ARTICLE 1
THE COMMITMENT
 Section 1.01. The Commitment.
  Variable Facility Commitment
 Section 2.06
  Fixed Facility Commitment Section 2.06
  2




---



##### 



Section 1.02. Requests for Advances.
 Section 2.04
 Section 1.03. Maturity Date of Advances; Amortization.
 Variable Advances; Amortization
  Fixed Advances; Amortization
  3




---



##### 



Prepayment
   Section 1.04. Interest on Advances.
 Partial Month Interest Section 1.04 Section 1.05 Section 1.04
 Variable DMBS Advances
 Discount Section 2.01 i.e.
  4




---



##### 



Variable Facility Fee
 Variable Structured ARM Advances
 Adjustable Rate
 Fixed Advances
 Annual Interest Rate
 Monthly Payment
 Section 1.05. Coupon Rates for Variable DMBS Advances.
 DMBS Imputed Interest Rate
  5




---



##### 



Section 1.06. Notes.
 Variable Advances
 Fixed Advances
 Section 1.07. Reserved.
 Section 1.08. Conversion from Variable Facility Commitment to Fixed Facility Commitment.
 Section 1.09 Section
1.03(b)
 Request Section 1.09(c)
 Closing Section 1.09 Section 1.10
 Minimum Remaining Amount of Variable DMBS Advances
  6




---



##### 



Section 1.09. Limitations on Right to Convert.
  Reserved
 Minimum Request
 Obligation to Prepay Variable Advances
 Failure to Convert
 Section 1.10. Conditions to Conversion.
 Section 6.08 Section 6.11 Section 6.01
 Section 1.11. Yield Maintenance.
   7




---



##### 



Section 1.12. Interest Rate Cap.
 Interest Rate Cap
 ARTICLE 2
THE ADVANCES
 Section 2.01. Rate Setting for an Advance.
  Preliminary, Nonbinding Quote
 Rate Setting Rate Setting Date Maximum Annual Coupon Rate
 Rate Confirmation DMBS Commitment Fannie Mae Commitment
  8




---



##### 



Section 2.02. DMBS Refinance Confirmation Form for Rollover Variable Advances.
  Section 2.03. Breakage and other Costs.
  Section 2.04. Advances.
  Section 6.02 Section 6.11 Section 6.01
 Section 6.03 Section 6.11 Section 6.01
  9




---



##### 



Section 2.05. Determination of Allocable Facility Amount and Valuations.
 Initial Determinations Section 2.05(b)
 Monitoring Determinations Section 8.03
 Section 2.06. Future Advances Made on Increased Values.
   10




---



##### 



ARTICLE 3
COLLATERAL CHANGES
 Section 3.01. Right to Add Collateral.
  Section 3.02. Procedure for Adding Collateral.
 Section 3.02
 Request Section 15.17
 Underwriting
  11




---



##### 



Closing Section 6.04 Section 6.11 Section 6.12 Section 6.01
 Section 3.03. Right to Obtain Releases of Collateral.
 Article 3 Section 15.17
 Section 3.04. Procedure for Obtaining Releases of Collateral.
 Request
  12




---



##### 



Closing Section 6.05 Section 6.01
 Release Price Release Price Section 3.06(c)(ii)
 Application of Release Price
 Release of Borrower and Guarantor
  13




---



##### 



Section 3.05. Right to Substitutions.
 Article 3 Section 15.17 Substitute
Mortgaged Property " Substitution 
 Section 3.06. Procedure for Substitutions.
 Request
 Underwriting
   Section 3.06(b)
  14




---



##### 



Closing Section 3.05 Section 3.06 Section 6.04 Section 6.05 Section 6.06 Section 6.11 Section 6.12 Section 6.01
  Property Delivery Deadline Section 3.06(c)
 Section 3.07. SubstitutionDeposit.
 The Deposit Substitution Deposit Section 3.07(b)
 Substitution Deposit Amount Substitution Deposit Substitution Cost Deposit
  15




---



##### 



Failure to Close Substitution Section
3.06(c)(ii)
 Substitution Deposit Disbursement Sections 3.05 3.06 6.06 6.11 6.12 Section 6.01
  16




---



##### 



ARTICLE 4
INCREASE OF CREDIT FACILITY
 Section 4.01. Request to Increase Commitment.
 Expansion
 Maximum Amount of Increase in Commitment
 Minimum Request
 Terms and Conditions
 Section 4.02. Procedure for Obtaining Increases in Commitment.
      Section 4.03. Closing.
 Section 6.07 Section 6.11 Section 6.01
  17




---



##### 



ARTICLE 5
TERMINATION OF FACILITIES
 Section 5.01. Right to Complete or Partial Termination of Facilities.
  Section 5.02. Procedure for Complete or Partial Termination of Facilities.
 Request Complete
Variable Facility Termination Complete Fixed Facility Termination
   Section 6.05
 Closing Section 6.09 Section 6.01
 Section 5.03. Right to Terminate Credit Facility.
   18




---



##### 



Section 5.04. Procedure for Terminating Credit Facility.
 Request
 Closing Section 6.10
 ARTICLE 6
CONDITIONS PRECEDENT TO ALL REQUESTS
 Section 6.01. Conditions Applicable to All Requests.
 General Conditions
 Geographical Diversification Wind Down Notice
 Payment of Expenses Section 10.05
  19




---



##### 



No Material Adverse Change
 No Default
 No Insolvency
 No Untrue Statements
 Representations and Warranties
 No Condemnation or Casualty
  20




---



##### 



Delivery of Closing Documents
     Covenants Article 8 Article 9
 Execution
 Section 6.02. Conditions Precedent to Initial Advance.
       21




---



##### 



Section 1.04
 Section 10.03(a) Section 10.03(a) Section 10.04(a)
 Section 6.03. Conditions Precedent to Future Advances.
        Section 1.04
    22




---



##### 



Section 6.04. Conditions Precedent to Addition of an Additional Mortgaged Property to
the Collateral Pool.
   Section 3.05
   23




---



##### 



Section 14.02
   Section 6.05. Conditions Precedent to Release of Property from the Collateral Pool.
        24




---



##### 



Remaining Mortgaged Properties
    Section 6.06. Conditions Precedent to Substitutions.
        25




---



##### 



Section 6.07. Conditions Precedent to Increase in Commitment.
       26




---



##### 



Section 6.08. Conditions Precedent to Conversion.
       Section 6.09. Conditions Precedent to Complete or Partial Termination of Facilities.
      27




---



##### 



Section 6.10. Conditions Precedent to Termination of Credit Facility.
    Section 6.11. Delivery of Opinion Relating to Advance Request, Addition Request,
Substitution Request, Conversion Request or Expansion Request.
  Section 6.12. Delivery of Property-Related Documents.
      28




---



##### 



29




---



##### 



Section 6.13. Additional Collateral.
 Additional Collateral Assumed Mortgage Principal
Amount
 Section 6.14. Letters of Credit.
 Letter of Credit Requirements
  30




---



##### 



Draws Under Letter of Credit
    Deposit to Cash Collateral Agreement
 Default Draws
     Legal Opinion Exhibit W-1 Exhibit W-2
  31




---



##### 



ARTICLE 7
REPRESENTATIONS AND WARRANTIES
 Section 7.01. Representations and Warranties of Borrower.
  Section 7.02. Representations and Warranties of Lender.
  Due Organization
 Power and Authority
 Due Authorization
 ARTICLE 8
AFFIRMATIVE COVENANTS OF BORROWER AND GUARANTOR
  Section 8.01. Compliance with Agreements.
    32




---



##### 



Section 8.02. Maintenance of Existence.
   Section 8.03. Financial Statements; Accountants Reports; Other Information.
   Annual Financial Statements
  33




---



##### 



Quarterly Financial Statements
 Quarterly Property Statements
 Annual Property Statements
 Monthly Property Statements
 Updated Rent Rolls
  34




---



##### 



Security Deposit Information
 Accountants Reports; Other Reports
 Ownership Interests
 Annual Budgets
 Federal Tax Returns
 Section 8.03
 Section 8.03
  35




---



##### 



Section 8.04. Access to Records; Discussions With Officers and Accountants.
       Section 8.05. Certificate of Compliance.
 Section 8.03(a) Section 8.03(b) Article 8
  36




---



##### 



Section 8.06. Maintain Licenses.
  Section 8.07. Inform Lender of Material Events.
  Defaults
 Regulatory Proceedings
  Bankruptcy Proceedings
 Environmental Claim
  37




---



##### 



Material Adverse Effects Section 8.03
 Accounting Changes
 Legal and Regulatory Status
 Change in Senior Management
 Section 8.08. Compliance with Applicable Law.
  Section 8.09. Alterations to the Mortgaged Properties.
 Alterations provided, however,
  38




---



##### 



Section 8.10. Loan Document Taxes.
 Loan Document Taxes
 Section 8.11. Further Assurances.
  Section 8.12. Transfer of Ownership Interests in Borrower or Guarantor.
 Prohibition on Transfers
 Permitted Transfers
    39




---



##### 



Section 8.13. Transfer of Ownership of Mortgaged Property.
 Prohibition on Transfers
 Permitted Transfers
    40




---



##### 



Assumption of Collateral Pool
 New Collateral Pool Borrower
        41




---



##### 



Section 8.14. Consent to Prohibited Transfers.
 Consent to Prohibited Transfers Sections 8.12 and 8.13
          42




---



##### 



Section 8.15. Date-Down Endorsements.
  Section 8.16. Ownership of Mortgaged Properties.
  Section 8.17. Compliance with Net Worth Test.
  Section 8.18. Compliance with Liquidity Test.
  Section 8.19. Change in Property Manager.
   Section 8.20. Single Purpose Entity .
   43




---



##### 



Section 8.21. ERISA.
  Section 8.22. Consents or Approvals.
  Section 8.23. Prepayment of Rents.
  Section 8.24. Affiliate Contracts.
  Section 8.25. Post Closing Obligation.
   44




---



##### 



Section 8.26. Geographical Diversification Requirements.
  ARTICLE 9
NEGATIVE COVENANTS OF BORROWER
  Section 9.01. Other Activities.
     Section 9.02. Liens.
  Section 9.03. Indebtedness.
  Section 9.04. Principal Place of Business.
   45




---



##### 



Section 9.05. Condominiums.
  Section 9.06. Restrictions on Distributions.
  Section 9.07. No Hedging Arrangements.
  Section 9.08. Confidentiality of Certain Information.
  ARTICLE 10
FEES
 Section 10.01. Reserved.
 Section 10.02. Occupancy Deficiency Origination Fee.
   46




---



##### 



Deficiency Notice
 Second Deficiency
Notice
 Section 10.03. Origination Fees.
 Initial Origination Fee Initial Origination Fee
 Expansion Origination Fee Article 4 Expansion Origination
Fee
  47




---



##### 



Section 10.04. Due Diligence Fees.
 Initial Due Diligence Fees Initial Due Diligence Fees
 Additional Due Diligence Fees for Additional Collateral Additional Collateral Due Diligence
Fees Additional
Collateral Due Diligence Deposit
  48




---



##### 



Section 10.05. Legal Fees and Expenses.
 Initial Legal Fees
 Fees and Expenses Associated with Requests
 Section 10.06. Failure to Close any Request.
  ARTICLE 11
EVENTS OF DEFAULT
 Section 11.01. Events of Default.
 Event of Default
   Article 9
   49




---



##### 



50




---



##### 



ARTICLE 12
REMEDIES
 Section 12.01. Remedies; Waivers.
      51




---



##### 



Section 12.02. Waivers; Rescission of Declaration.
  Section 12.03. Lenders Right to Protect Collateral and Perform Covenants and Other
Obligations.
  Section 12.04. No Remedy Exclusive.
   52




---



##### 



Section 12.05. No Waiver.
  Section 12.06. No Notice.
  ARTICLE 13
INSURANCE, REAL ESTATE TAXES AND REPLACEMENT RESERVES
 Section 13.01. Insurance and Real Estate Taxes.
 Insurance and Tax Escrow; Waiver; Real Estate Tax Letter of Credit Required Escrow
Payments Section 13.01
  53




---



##### 



Revocation of Waiver
  Section 13.01(a)
   Real Estate Tax Letter of Credit
   (1)
    
    if any Borrower shall fail to perform its obligations under Section
13.01(a); or
 (2)
    
    upon the occurrence of (A) an Event of Default; or (B) a Potential Event of
Default of which the Borrower has knowledge has occurred and continued for two (2)
Business Days; or
 (3)
    
    if 30 days prior to the expiration of the Real Estate Tax Letter of Credit, the
Real Estate Tax Letter of Credit has not been extended for a term of at least 364 days
or has not been substituted with a replacement Real Estate Tax Letter of Credit which
satisfies the requirements of this Agreement; or
 (4)
    
    upon the downgrading of the ratings of the long-term or short term debt
obligations of the LOC Bank below the requirements of Fannie Mae then in effect,
provided Borrower does not immediately take action to substitute the Real Estate Tax
Letter of Credit with a replacement Real Estate Tax Letter of Credit which satisfies
the requirements of this Agreement and does not deliver such replacement Real Estate
Tax Letter of Credit within thirty (30) days of such downgrading.
   54




---



##### 



Section 13.02. Replacement Reserves.
  Section 13.03. Completion/Repair Reserves.
  ARTICLE 14
LIMITS ON PERSONAL LIABILITY
 Section 14.01. Personal Liability to Borrower .
 Article 14
 Exceptions to Limits on Personal Liability Debt Service Amounts Rents
  55




---



##### 



Full Recourse
  (A)
    
    Any Borrower (i) commences a voluntary case (or, if applicable, a joint case)
under any chapter of the Bankruptcy Code or otherwise or consents to or fails to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under any chapter of the Bankruptcy Code or otherwise, (ii) institutes
(by petition, application, answer, consent or otherwise) any other bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding relating to it under the laws of any jurisdiction, (iii) makes a
general assignment for the benefit of creditors, (iv) applies for, consents to or
acquiesces in the appointment of any receiver, liquidator, custodian, sequestrator,
trustee or similar officer for it or for all or any substantial part of the Mortgaged
Properties or (v) admits in writing its inability to pay its debts generally as they
mature.
 (B)
    
    Any Borrower, any Affiliate of Borrower, any Guarantor or any Affiliate of
Guarantor files an involuntary petition against any Borrower under any chapter of the
Bankruptcy Code or under any other bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding relating to
Borrower under the laws of any jurisdiction.
 (C)
    
    Both (1) an involuntary petition under any chapter of the Bankruptcy Code is
filed against any Borrower, or any Borrower directly or indirectly becomes the subject
of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it under the laws of any
jurisdiction, or in equity, and (ii) any Borrower, any Affiliate of Borrower, any
Guarantor or any Affiliate of Guarantor has acted in concert or conspired with such
creditors of Borrower (other than Fannie Mae or Lender) to cause the filing thereof.
  56




---



##### 



Miscellaneous Mortgaged Property
 Section 14.02. Additional Borrowers .
       57




---



##### 



Section 14.03. Borrower Agency Provisions.
   Section 14.04. Joint and Several Obligation; Cross-Guaranty.
   58




---



##### 



Section 14.05. Waivers With Respect to Other Borrower Secured Obligation.
 Other Borrower Secured Obligation Waiving
Borrower
    59




---



##### 



60




---



##### 



61




---



##### 



Section 14.06. No Impairment.
   62




---



##### 



Section 14.07. Election of Remedies.
    63




---



##### 



Section 14.08. Subordination of Other Obligations.
 Subordinated Obligations
  Section 14.09. Insolvency and Liability of Other Borrower.
 Subject Borrower Other Borrower
  64




---



##### 



Section 14.10. Preferences, Fraudulent Conveyances, Etc.
 Rescinded Payment
  65




---



##### 



Section 14.11. Maximum Liability of Each Borrower.
 Fraudulent Transfer Laws
 Section 14.12. Liability Cumulative.
  ARTICLE 15
 Section 15.01. Counterparts.
  Section 15.02. Amendments, Changes and Modifications.
   66




---



##### 



Section 15.03. Payment of Costs, Fees and Expenses.
 Section 10.05
      Section 15.04. Payment Procedure.
   67




---



##### 



Section 15.05. Payments on Business Days.
  Section 15.06. Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial.
   68




---



##### 



Section 15.07. Severability.
  Section 15.08. Notices.
 Manner of Giving Notice notices notice
     69




---



##### 



addressed to the parties as follows:
 As to Borrower:
    
    
    
    Education Realty Operating Partnership, LP530 Oak Court Drive, Suite 300Memphis, TN 38117Attention: Paul Bower and Olan BrevardTelecopy: (901) 259-2594with a copy to:
    
    
    
    Bass, Berry & Sims PLCThe Tower at Peabody Place100 Peabody Place, Suite 900Memphis, TN 38103Attention: John A. StemmlerTelecopy: (901) 543-5999As to Lender:
    
    
    
    Red Mortgage Capital, Inc.Two Miranova Place, 12th FloorColumbus, Ohio 43215Attention: Servicing ManagerTelecopy: (614) 857-1620with a copy to Servicer:
    
    
    
    Red Mortgage Capital, Inc.Two Miranova Place, 12th FloorColumbus, Ohio 43215Attention: Director, Loan Servicing and Asset
ManagementTelecopy: (614) 857-1610with a copy to:
    
    
    
    Arent Fox LLP1675 BroadwayNew York, New York 10019Attention: David L. Dubrow, Esq.Telecopy: (212) 484-3990
  70




---



##### 



As to Fannie Mae:
    
    
    
    Fannie Mae3900 Wisconsin Avenue, N.W.Washington, D.C. 20016-2899Attention: Vice President for Multifamily Asset ManagementTelecopy No.: (301) 280-2064with a copy to Servicer:
    
    
    
    Red Mortgage Capital, Inc.Two Miranova Place, 12th FloorColumbus, Ohio 43215Attention: Director, Loan Servicing and Asset
ManagementTelecopy: (614) 857-1610with a copy to:
    
    
    
    Arent Fox LLP1675 BroadwayNew York, NY 10019Attention: David L. Dubrow, Esq.Telecopy No.: (212) 484-3990
 Change of Notice Address
 Section 15.09. Further Assurances and Corrective Instruments.
 Further Assurances
 Further Documentation
 Compliance with Investor Requirements
  71




---



##### 



Section 15.10. Term of this Agreement.
  Section 15.11. Assignments; Third-Party Rights.
  Section 15.12. Headings.
  Section 15.13. General Interpretive Principles.
   72




---



##### 



Section 15.14. Interpretation.
  Section 15.15. Standards for Decisions, Etc.
  Section 15.16. Decisions in Writing.
  Section 15.17. Requests.
 Section 2.06
 Section 15.18. Conflicts Between Agreements.
   73




---



##### 



Section 15.19. Timing of Decisions.
     74




---



##### 



BORROWER:EDR TAMPA LIMITED PARTNERSHIP, a Delaware
limited partnershipBy:
    
    EDR Tampa, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Tampa, Inc., a Delaware corporation, its
managerBy:
    
    /s/ Olan BrevardName: Olan BrevardTitle:   Vice President
 EDR STILLWATER LIMITED PARTNERSHIP, a
Delaware limited partnershipBy:
    
    EDR Stillwater, LLC, a Delaware limited liability company, its general partnerBy:
    
    EDR Stillwater, Inc., a Delaware corporation,
its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
  S-1




---



##### 



EDR WESTERN MICHIGAN LIMITED
PARTNERSHIP, a Delaware limited partnershipBy:
    
    EDR Western Michigan, LLC, a Delaware limited liability company, its general partnerBy:
    
    EDR Western Michigan, Inc., a Delaware corporation,
its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
 EDR WABASH LIMITED PARTNERSHIP, a Delaware
limited partnershipBy:
    
    EDR Wabash, LLC, a Delaware limited liability company, its general partnerBy:
    
    EDR Wabash, Inc., a Delaware corporation,
its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
 EDR COLUMBUS LIMITED PARTNERSHIP, a
Delaware limited partnershipBy:
    
    EDR Columbus, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Columbus, Inc., a Delaware corporation,
its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
  S-2




---



##### 



EDR STATE COLLEGE LIMITED PARTNERSHIP, a
Delaware limited partnershipBy:
    
    EDR State College, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR State College, Inc., a Delaware corporation,
its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
 EDR COLUMBIA LIMITED PARTNERSHIP, a
Delaware limited partnershipBy:
    
    EDR Columbia, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Columbia, Inc., a Delaware corporation, its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
 EDR KNOXVILLE LIMITED PARTNERSHIP, a
Delaware limited partnershipBy:
    
    EDR Knoxville, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Knoxville, Inc., a Delaware corporation, its managerBy:
    
    /s/ Olan Brevard

Name: Olan BrevardTitle:   Vice President
  S-3




---



##### 



EDR LUBBOCK LIMITED PARTNERSHIP,
a Delaware limited partnershipBy:
    
    EDR Lubbock, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Lubbock, Inc.,
a Delaware corporation, its managerBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice PresidentEDR TUCSON PHASE II LIMITED PARTNERSHIP,
a Delaware limited partnershipBy:
    
    EDR Tucson, LLC, a Delaware limited liability
company, its general partnerBy:
    
    EDR Tucson, Inc.,
a Delaware corporation, its managerBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice PresidentEDR MURFREESBORO, LLC, a Delaware limited
liability companyBy:
    
    EDR Manager, LLC, a Delaware limited liability
company, its ManagerBy:
    
    Education Realty Operating Partnership, LP,
a Delaware limited partnership, its ManagerBy:
    
    Education Realty OP GP, Inc., a Delaware
corporation, its General PartnerBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice President
  S-4




---



##### 



EDR AUBURN, LLC,a Delaware limited liability
companyBy:
    
    EDR Manager, LLC, a Delaware limited liability
company, its ManagerBy:
    
    Education Realty Operating Partnership, LP,
a Delaware limited partnership, its ManagerBy:
    
    Education Realty OP GP, Inc., a Delaware
corporation, its General PartnerBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice PresidentEDR STATESBORO, LLC, a Delaware limited liability
companyBy:
    
    EDR Manager, LLC, a Delaware limited liability
company, its ManagerBy:
    
    Education Realty Operating Partnership, LP,
a Delaware limited partnership, its ManagerBy:
    
    Education Realty OP GP, Inc., a Delaware
corporation, its General PartnerBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice President
 [Signatures continue on following page.]
  S-5




---



##### 



GUARANTOR:EDUCATION REALTY OPERATING PARTNERSHIP, LP,
a Delaware limited partnershipBy:
    
    Education Realty OP GP, Inc.
a Delaware corporation, its general partnerBy:
   
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice President
 EDUCATION REALTY TRUST, INC., a Maryland corporationBy:
    
    /s/ Olan BrevardName: Olan Brevard
Title:   Vice President
 [Signatures continue on following page.]
  S-6




---



##### 



LENDER:RED MORTGAGE CAPITAL, INC.,an Ohio corporationBy:
    /s/ R. Barth KallmertenName:
    R. Barth KallmertenTitle:
    Senior Managing Director  S-7




---



##### 



Schedule 1
  
  Schedule 1-1




---



##### 



Acquiring Person
 Addition Fee Section 3.02
 (i)
    
    40 basis points, multiplied by(ii)
    
    the Allocable Facility Amount of the Additional Mortgaged Property, as determined by Lender.
 Addition Loan Documents Article 3
 Addition Request Exhibit
M Section 3.02(a)
 Additional Borrower
 Additional Collateral
 Additional Collateral Due Diligence Deposit Section 10.04(b).
 Additional Collateral Due Diligence Fees Section
10.04(b)
 Additional Mortgaged Property Article 3
  Appendix I-1




---



##### 



Adjustable Rate
 Advance
 Advance Amount
 Advance Request Exhibit L Section 2.04
 Affiliate
 Aggregate Debt Service Coverage Ratio
  to
  Aggregate Loan to Value Ratio
  to
   Appendix I-2




---



##### 



Agreement
 Allocable Facility Amount
 Amortization Period
 Applicable Law
 Appraisal
 Appraised Value
 Assignment and Subordination of Management Agreement
 Assignment of Leases and Rents
  Appendix I-3




---



##### 



Bankruptcy Code
 Bankruptcy Event Section 14.01(b)
 Borrower
 Borrower Agent
 Borrower Parties
 Business Day
 Calendar Quarter
 Calendar Year
 Cap Rate 2.05(b)
 Cash Collateral Account
 Cash Collateral Agreement Exhibit U
 Cash Equivalents
    Appendix I-4




---



##### 



Cash Interest Rate
 Certificate of Borrower Parties
 Change of Control
 Closing Date
 Collateral
  Appendix I-5




---



##### 



Collateral Pool
 Commitment
 Complete Fixed Facility Termination Section
5.02(a)
 Complete Variable Facility Termination Section 5.02(a)
 Compliance Certificate Exhibit F
 Completion/Repair and Security Agreement
 Confirmation of Guaranty Exhibit
E
 Confirmation of Obligations Exhibit N
 Contribution Agreement
 Controlled
 Controlled Group
 Conversion Amendment Exhibit I Section 1.08
  Appendix I-6




---



##### 



Conversion Documents Section 1.08
 Conversion Request Exhibit
H Section 1.08
 Coupon Rate Section 1.05
 Coverage and LTV Tests
   Credit Facility
 Credit Facility Termination Documents Article 5
 Credit Facility Termination Request Exhibit R Section 5.04(a)
 Debt Service Amounts Section 14.01(a)
  Appendix I-7




---



##### 



Debt Service Coverage Ratio
  to
  Dedicated Student Housing Property
 Deficient Mortgaged Properties
 Discount
 (i)
    
    the face amount of the DMBS backed by the Variable DMBS Advance, over(ii)
    
    the Price of the DMBS backed by the Variable DMBS Advance.
 DMBS
 DMBS Commitment Section 2.01(c)
 DMBS Imputed Interest Rate Section 1.05
 DMBS Issue Date
 DMBS Delivery Date
 DUS Guide
  Appendix I-8




---



##### 



ERISA
 EROP Guarantor
 Event of Default Article 11
 Expansion Article 4
 Expansion Loan Documents Article 4
 Expansion Origination Fee Section 10.03(b)
 Expansion Request Exhibit O
 Facility Debt Service
  (A)
    
    each Variable DMBS Advance Outstanding shall be deemed to require level
monthly payments of principal and interest (at an interest rate equal to
(A) the Three-Month LIBOR rate on the specified date plus (B) the Variable
Facility Fee plus (C) up to 300 basis points plus (D) any Monthly Cap Escrow
Payment for the succeeding twelve (12) month period) in an amount necessary
to fully amortize the original principal amount of the Variable Facility
Commitment with respect to a Variable DMBS Advance over the Amortization
Period, with such amortization deemed to commence on the first day of the
twelve (12) month period; and
  Appendix I-9




---



##### 



(B)
    
    each Variable Structured ARM Advance
Outstanding shall be deemed to require level monthly payments of
principal and interest
(at an interest rate equal to (A) the One-Month LIBOR or Three-Month
LIBOR rate (as applicable) on the specified date plus (B) the
Variable Facility Fee plus (C) the Margin plus (D) up to 300 basis
points plus (E) any Monthly Cap Escrow Payment for the succeeding
twelve (12) month period) in an amount necessary to fully amortize
the original principal amount of the Variable Facility Commitment
with respect to a Variable Structured ARM Advance over the
Amortization Period deemed to commence on the first day of the twelve
(12) month period; and(C)
    
    each Fixed Advance Outstanding shall require
level monthly payments of principal and interest (at the Cash Interest
Rate for the Fixed Advance) in an amount necessary to fully amortize
the original principal amount of the Fixed Advance over the
Amortization Period, with such amortization to commence on the first
day of the twelve (12) month period; and(D)
    
    each Fixed Advance to be obtained shall be
deemed to require level monthly payments of principal and interest at a
rate equal to the estimated Cash Interest Rate for such Fixed Advance
in an amount necessary to fully amortize the original principal amount
of such Fixed Advance over the Amortization Period, with such
amortization deemed to commence on the first day of the twelve (12)
month period.
 Section
3.04(c)
  (A)
    
    each Variable DMBS Advance shall be deemed to
require level monthly payments of principal and interest (at the Coupon
Rate for such Variable DMBS Advance) in an amount necessary to fully
amortize the original principal amount of the Variable DMBS Advance
over the Amortization Period, with such amortization deemed to commence
on the first day of the twelve (12) month period; and
  Appendix I-10




---



##### 



(B)
    
    each Variable Structured ARM Advance shall be
deemed to require level monthly payments of principal and interest (at
the Adjustable Rate for such Variable Structured ARM Advance) in an
amount necessary to fully amortize the original principal amount of the
Variable Structured ARM Advance over the Amortization Period, with such
amortization deemed to commence on the first day of the twelve (12)
month period; and
 (C)
    
    each Fixed Advance shall require level monthly
payments of principal and interest (at the Cash Interest Rate for such
Fixed Advance) in an amount necessary to fully amortize the original
principal amount of the Fixed Advance over the Amortization Period,
with such amortization to commence on the first day of the twelve (12)
month period.
 Facility Termination Document Exhibit Q Section 5.02
 Facility Termination Request Exhibit P Section 5.02
 Fannie Mae et seq
 Fees
 Fifteenth Anniversary
 First Anniversary
 Fixed Advance
 Fixed Facility Section 1.01
 Fixed Facility Availability Period
  Appendix I-11




---



##### 



Fixed Facility Commitment Section 1.08 Article 4 Article 5
 Fixed Facility Note
 Future Advance
 GAAP
 General Conditions Article 6
 Geographical Diversification Requirements
     Governmental Approval
 Governmental Authority
 Gross Revenues
  Appendix I-12




---



##### 



Guarantor
 Guaranty
 Hazardous Substance Activity
 Hedging Arrangement
 Impositions
  Appendix I-13




---



##### 



Indebtedness
      guaranteeing person primary obligations primary obligor Contingent Obligation
 Initial Advance
  Appendix I-14




---



##### 



Initial Borrower
 Initial Closing Date
 Initial Commitment Amount
 Initial Due Diligence Deposit Section
10.04(a)
 Initial Due Diligence Fees Section
10.04(a)
 Initial Mortgaged Properties Exhibit A
 Initial Origination Fee Section
10.03(a)
 Initial Security Instruments
 Initial Valuation Exhibit A
 Interest Rate Cap Section 1.12
 Interest Rate Cap Documents
 Insurance Policy
 Internal Revenue Code
 Lease
  Appendix I-15




---



##### 



Lender
 Letter of Credit Exhibit V
 LIBOR
 Lien
 Liquidity
 Loan Document Taxes Section 8.10
 Loan Documents Section 6.01
 Loan to Value Ratio
  to
  LOC Bank
  Appendix I-16




---



##### 



Margin
 Material Adverse Effect
 Maximum Annual Coupon Rate Section
2.01(b)
 Monthly Cap Escrow Payment
 Moodys
 Mortgaged Properties
 Multiemployer Plan
 Multifamily Residential Property
 Net Operating Income
  Appendix I-17




---



##### 



Net Worth
 Non-Dedicated Student Housing Property
 Note
 Obligations
 Occupancy Deficiency Origination Fee
 One-Month LIBOR
 Operating Expenses e.g. e.g.
  Appendix I-18




---



##### 



Organizational Certificate Exhibits G-1 G-2
 Organizational Documents
 Outstanding outstanding
 Ownership Interests
 PBGC
 Permits
 Permitted Liens
 Person
 Plan
  Appendix I-19




---



##### 



Pledge, Interest Rate Cap Agreement
 Potential Event of Default
 Price
 Prohibited Person
 Property
 Rate Change Date
 Rate Form Section 2.01(b) Exhibit J
 Rate Setting Date Section 2.01(b)
  Appendix I-20




---



##### 



Real Estate Tax Letter of Credit Exhibit V
 REIT Guarantor
 Release Documents
 Release Fee
 Release Mortgaged Property Article 3
 Release Price Section 3.04(c)
 Release Request Exhibit
M Section 3.04(a)
 Remaining Mortgaged Properties Section
6.05(g)
 Rent Roll Exhibit X
 Rental Property
 Replacement Reserve Agreement
 Request
 Required Escrow Payments
 Rescinded Payment
  Appendix I-21




---



##### 



Rollover Variable Advance
 S&P
 Security
 Security Documents
 Security Instrument
 Senior Management
 Servicer
 Single-Purpose
 (i)
    
    has been a duly formed and existing partnership, corporation or limited
liability company, as the case may be;
 (ii)
    
    has been duly qualified in each jurisdiction in which such qualification was at
such time necessary for the conduct of its business;
 (iii)
    
    has complied with the provisions of its organizational documents and the laws
of its jurisdiction of formation in all respects;
 (iv)
    
    has observed all customary formalities regarding its partnership or corporate
existence, as the case may be;
  Appendix I-22




---



##### 



(v)
    
    has accurately maintained its financial statements, accounting records and
other partnership or corporate documents separate from those of any other Person;(vi)
    
    has not commingled its assets or funds with those of any other Person;
 (vii)
    
    has identified itself in all dealings with creditors (other than trade
creditors in the ordinary course of business and creditors for the construction of
improvements to property on which such Person has a non-contingent contract to purchase
such property) under its own name and as a separate and distinct entity;
 (viii)
    
    has been adequately capitalized in light of its contemplated business operations;
 (ix)
    
    has not assumed, guaranteed or become obligated for the liabilities of any
other Person (except in connection with the Credit Facility or the endorsement of
negotiable instruments in the ordinary course of business) or held out its credit as
being available to satisfy the obligations of any other Person;
 (x)
    
    has not acquired obligations or securities of any other Person;
 (xi)
    
    in relation to a Borrower, except for loans made in the ordinary course of
business to Affiliates, has not made loans or advances to any other Person;
 (xii)
    
    has not entered into and was not a party to any transaction with any Affiliate
of such Person, except in the ordinary course of business and on terms which are no
less favorable to such Person than would be obtained in a comparable arms-length
transaction with an unrelated third party;
 (xiii)
    
    has paid the salaries of its own employees, if any, and maintained a sufficient
number of employees in light of its contemplated business operations;
 (xiv)
    
    has allocated fairly and reasonably any overhead for shared office space;
 (xv)
    
    has not engaged in a non-exempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Internal Revenue Code; and
 (xvi)
    
    has complied with the requirements of Section 33 of the Security Instrument.
 Sixth Anniversary
 Substitution
 Substitution Fee Section 3.05
 Substitution Request
  Appendix I-23




---



##### 



Survey
 Targeted Entity
 Taxes
 Term of this Agreement Section 15.10
 Termination Date
 Third Anniversary
 Three-Month LIBOR
 Title Company
 Title Insurance Policies
  Appendix I-24




---



##### 



Transfer
   Underwriting Requirements
 Valuation dividing 
 (i)
    
    the Net Operating Income of such Rental Property, by(ii)
    
    the most recent Cap Rate determined by Lender.
  Variable Advance
 Variable DMBS Advance
 Variable Facility Section 1.01
  Appendix I-25




---



##### 



Variable Facility Availability Period
 Variable Facility Commitment Article 4 Section 1.08 Article 5
 Variable Facility Fee Article 4
 Variable Facility Note
 Variable Facility Termination Date
 Variable Structured ARM Advance
 Wind Down Notice Section 6.01(a)
  Appendix I-26