Exhibit 10.1







Exhibit 10.1


Loan Number: 1005746







Execution Version






CREDIT AGREEMENT




Dated as of October 25, 2011




by and among




UDR, INC.,

as Borrower,




THE FINANCIAL INSTITUTIONS PARTY HERETO

AND THEIR ASSIGNEES UNDER SECTION 12.5.,

as Lenders,




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




WELLS FARGO SECURITIES, LLC

and

J.P. MORGAN SECURITIES LLC,




as Joint Lead Arrangers

and

Joint Lead Bookrunners,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,

and




BANK OF AMERICA, N.A.,

PNC BANK, NATIONAL ASSOCIATION

and

US BANK NATIONAL ASSOCIATION,

as Documentation Agents




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 
	 	 	 	 
	Article I. Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. General; References to Pacific Time
	 	 	25	 
	Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries
	 	 	25	 
	 
	 	 	 	 
	Article II. Credit Facility
	 	 	25	 
	 
	 	 	 	 
	Section 2.1. Revolving Loans
	 	 	25	 
	Section 2.2. Bid Rate Loans
	 	 	26	 
	Section 2.3. Letters of Credit
	 	 	30	 
	Section 2.4. Swingline Loans
	 	 	34	 
	Section 2.5. Rates and Payment of Interest on Loans
	 	 	36	 
	Section 2.6. Number of Interest Periods
	 	 	37	 
	Section 2.7. Repayment of Loans
	 	 	37	 
	Section 2.8. Prepayments
	 	 	37	 
	Section 2.9. Continuation
	 	 	38	 
	Section 2.10. Conversion
	 	 	38	 
	Section 2.11. Notes
	 	 	38	 
	Section 2.12. Voluntary Reductions of the Commitment
	 	 	39	 
	Section 2.13. Extension of Termination Date
	 	 	39	 
	Section 2.14. Expiration of Maturity Date of Letters of Credit Past Termination Date
	 	 	40	 
	Section 2.15. Amount Limitations
	 	 	40	 
	Section 2.16. Increase in Commitments
	 	 	40	 
	Section 2.17. Funds Transfer Disbursements
	 	 	41	 
	 
	 	 		 
	Article III. Payments, Fees and Other General Provisions
	 	 	42	 
	 
	 	 	 	 
	Section 3.1. Payments
	 	 	42	 
	Section 3.2. Pro Rata Treatment
	 	 	43	 
	Section 3.3. Sharing of Payments, Etc.
	 	 	44	 
	Section 3.4. Several Obligations
	 	 	44	 
	Section 3.5. Fees
	 	 	44	 
	Section 3.6. Computations
	 	 	45	 
	Section 3.7. Usury
	 	 	45	 
	Section 3.8. Statements of Account
	 	 	46	 
	Section 3.9. Defaulting Lenders
	 	 	46	 
	Section 3.10. Taxes; Foreign Lenders
	 	 	49	 
	 
	 	 	 	 
	Article IV. Yield Protection, Etc.
	 	 	50	 
	 
	 	 	 	 
	Section 4.1. Additional Costs; Capital Adequacy
	 	 	50	 
	Section 4.2. Suspension of LIBOR Loans and LIBOR Margin Loans
	 	 	52	 
	Section 4.3. Illegality
	 	 	53	 
	Section 4.4. Compensation
	 	 	53	 
	Section 4.5. Treatment of Affected Loans
	 	 	54	 
	Section 4.6. Affected Lenders
	 	 	54	 
	Section 4.7. Change of Lending Office
	 	 	55	 
	Section 4.8. Assumptions Concerning Funding of LIBOR Loans
	 	 	55	 
	 
	 	 	 	 
	Article V. Conditions Precedent
	 	 	55	 
	 
	 	 	 	 
	Section 5.1. Initial Conditions Precedent
	 	 	55	 
	Section 5.2. Conditions Precedent to All Loans and Letters of Credit
	 	 	57	 





 


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	Article VI. Representations and Warranties
	 	 	58	 
	 
	 	 	 	 
	Section 6.1. Representations and Warranties
	 	 	58	 
	Section 6.2. Survival of Representations and Warranties, Etc.
	 	 	64	 
	 
	 	 	 	 
	Article VII. Affirmative Covenants
	 	 	64	 
	 
	 	 	 	 
	Section 7.1. Preservation of Existence and Similar Matters
	 	 	64	 
	Section 7.2. Compliance with Applicable Law
	 	 	64	 
	Section 7.3. Maintenance of Property
	 	 	64	 
	Section 7.4. Conduct of Business
	 	 	65	 
	Section 7.5. Insurance
	 	 	65	 
	Section 7.6. Payment of Taxes and Claims
	 	 	65	 
	Section 7.7. Books and Records; Inspections
	 	 	65	 
	Section 7.8. Use of Proceeds
	 	 	66	 
	Section 7.9. Environmental Matters
	 	 	66	 
	Section 7.10. Further Assurances
	 	 	66	 
	Section 7.11. Material Contracts
	 	 	66	 
	Section 7.12. REIT Status
	 	 	66	 
	Section 7.13. Guarantors
	 	 	67	 
	Section 7.14. Exchange Listing
	 	 	67	 
	 
	 	 	 	 
	Article VIII. Information
	 	 	67	 
	 
	 	 	 	 
	Section 8.1. Quarterly Financial Statements
	 	 	68	 
	Section 8.2. Year-End Statements
	 	 	68	 
	Section 8.3. Compliance Certificate
	 	 	68	 
	Section 8.4. Other Information
	 	 	69	 
	Section 8.5. Electronic Delivery of Certain Information
	 	 	70	 
	Section 8.6. Public/Private Information
	 	 	71	 
	Section 8.7. USA Patriot Act Notice; Compliance
	 	 	71	 
	 
	 	 	 	 
	Article IX. Negative Covenants
	 	 	71	 
	 
	 	 	 	 
	Section 9.1. Financial Covenants
	 	 	72	 
	Section 9.2. Negative Pledge
	 	 	73	 
	Section 9.3. Restrictions on Intercompany Transfers
	 	 	73	 
	Section 9.4. Merger, Consolidation, Sales of Assets and Other Arrangements.

	 	 	74	 
	Section 9.5. Plans
	 	 	74	 
	Section 9.6. Fiscal Year
	 	 	75	 
	Section 9.7. Modifications of Organizational Documents and Material Contracts
	 	 	75	 
	Section 9.8. Transactions with Affiliates
	 	 	75	 
	Section 9.9. Environmental Matters
	 	 	75	 
	Section 9.10. Investments
	 	 	75	 
	 
	 	 	 	 
	Article X. Default 
	 	 	76	 
	 
	 	 	 	 
	Section 10.1. Events of Default
	 	 	76	 
	Section 10.2. Remedies Upon Event of Default
	 	 	79	 
	Section 10.3. Remedies Upon Default
	 	 	79	 
	Section 10.4. Marshaling; Payments Set Aside
	 	 	79	 
	Section 10.5. Allocation of Proceeds
	 	 	80	 
	Section 10.6. Letter of Credit Collateral Account
	 	 	80	 
	Section 10.7. Rescission of Acceleration by Requisite Lenders
	 	 	81	 
	Section 10.8. Performance by Administrative Agent
	 	 	82	 
	Section 10.9. Rights Cumulative
	 	 	82	 





 


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	Article XI. The Administrative Agent
	 	 	82	 
	 
	 	 	 	 
	Section 11.1. Appointment and Authorization
	 	 	82	 
	Section 11.2. Wells Fargo as Lender
	 	 	83	 
	Section 11.3. Approvals of Lenders
	 	 	84	 
	Section 11.4. Notice of Events of Default
	 	 	84	 
	Section 11.5. Administrative Agent’s Reliance
	 	 	84	 
	Section 11.6. Indemnification of Administrative Agent
	 	 	85	 
	Section 11.7. Lender Credit Decision, Etc.
	 	 	86	 
	Section 11.8. Successor Administrative Agent
	 	 	86	 
	Section 11.9. Titled Agents
	 	 	87	 
	 
	 	 		 
	Article XII. Miscellaneous
	 	 	87	 
	 
	 	 	 	 
	Section 12.1. Notices
	 	 	87	 
	Section 12.2. Expenses
	 	 	89	 
	Section 12.3. Setoff
	 	 	90	 
	Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers
	 	 	90	 
	Section 12.5. Successors and Assigns
	 	 	91	 
	Section 12.6. Amendments and Waivers
	 	 	95	 
	Section 12.7. Nonliability of Administrative Agent and Lenders
	 	 	97	 
	Section 12.8. Confidentiality
	 	 	97	 
	Section 12.9. Indemnification
	 	 	98	 
	Section 12.10. Termination; Survival
	 	 	100	 
	Section 12.11. Severability of Provisions
	 	 	100	 
	Section 12.12. GOVERNING LAW
	 	 	101	 
	Section 12.13. Counterparts
	 	 	101	 
	Section 12.14. Obligations with Respect to Loan Parties
	 	 	101	 
	Section 12.15. Independence of Covenants
	 	 	101	 
	Section 12.16. Limitation of Liability
	 	 	101	 
	Section 12.17. Entire Agreement
	 	 	102	 
	Section 12.18. Construction
	 	 	102	 
	Section 12.19. Headings
	 	 	102	 





 


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	SCHEDULE I

	 	Commitments
	SCHEDULE 1.1.

	 	List of Loan Parties
	SCHEDULE 1.1.(a)

	 	Existing Letters of Credit
	SCHEDULE 6.1.(b)

	 	Ownership Structure
	SCHEDULE 6.1.(f)

	 	Properties
	SCHEDULE 6.1.(g)

	 	Debt and Guaranties
	SCHEDULE 6.1.(i)

	 	Litigation
	SCHEDULE 6.1.(r)

	 	Affiliate Transactions
	SCHEDULE 6.1.(z)

	 	Unencumbered Pool Assets
	 
	 	 
	EXHIBIT A

	 	Form of Assignment and Assumption Agreement
	EXHIBIT B

	 	Form of Bid Rate Note
	EXHIBIT C

	 	Form of Designation Agreement
	EXHIBIT D

	 	Form of Guaranty
	EXHIBIT F

	 	Form of Notice of Borrowing
	EXHIBIT G

	 	Form of Notice of Continuation
	EXHIBIT H

	 	Form of Notice of Conversion
	EXHIBIT I

	 	Form of Notice of Swingline Borrowing
	EXHIBIT J

	 	Form of Revolving Note
	EXHIBIT K

	 	Form of Swingline Note
	EXHIBIT L

	 	Form of Transfer Authorizer Designation Form
	EXHIBIT M

	 	Form of Bid Rate Quote Request
	EXHIBIT N

	 	Form of Bid Rate Quote
	EXHIBIT O

	 	Form of Bid Rate Quote Acceptance
	EXHIBIT P

	 	Form of Opinion of Counsel
	EXHIBIT Q

	 	Form of Compliance Certificate






 


- iv -









 







THIS CREDIT AGREEMENT (this “Agreement”) dated as of October 25, 2011 by and among UDR, INC.,
a corporation formed under the laws of the State of Maryland (the “Borrower”), each of the
financial institutions initially a signatory hereto together with their successors and assignees
under Section 12.5. (the “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative
Agent (the “Administrative Agent”), JPMorgan Chase Bank, N.A., as Syndication Agent (the
“Syndication Agent”) and Bank of America, N.A., PNC Bank, National Association and US Bank National
Association, as Documentation Agents.



WHEREAS, the Administrative Agent, the Issuing Bank and the Lenders desire to make available
to the Borrower a revolving credit facility in the initial amount of $900,000,000.00, with a
swingline subfacility in an initial amount of $100,000,000.00 and a $100,000,000.00 letter of
credit subfacility, on the terms and conditions contained herein.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto agree as follows:



Article I. Definitions




Section 1.1. Definitions.



In addition to terms defined elsewhere herein, the following terms shall have the following
meanings for the purposes of this Agreement:




“Absolute Rate” has the meaning given that term in Section 2.2.(c)(ii)(C).



“Absolute Rate Auction” means a solicitation of Bid Rate Quotes setting forth Absolute Rates
pursuant to Section 2.2.



“Absolute Rate Loan” means a Bid Rate Loan, the interest rate on which is determined on the
basis of an Absolute Rate pursuant to an Absolute Rate Auction.



“Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the
Guaranty.




“Additional Costs” has the meaning given that term in Section 4.1.(b).



“Administrative Agent” means Wells Fargo Bank, National Association as contractual
representative of the Lenders under this Agreement, or any successor Administrative Agent appointed
pursuant to Section 11.8.



“Administrative Questionnaire” means the Administrative Questionnaire completed by each Lender
and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the
Lenders from time to time.




“Affected Lender” has the meaning given that term in Section 4.6.



“Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. In no event shall the Administrative Agent or any Lender be
deemed to be an Affiliate of the Borrower.


 


 









 






“Agreement Date” means the date as of which this Agreement is dated.



“Applicable Facility Fee” means the percentage set forth in the table below corresponding to
the Level at which the “Applicable Margin” is determined in accordance with the definition thereof:



	 	 	 	 	 
	Level	 	Facility Fee	 
	1
	 	 	0.175	%
	2
	 	 	0.175	%
	3
	 	 	0.225	%
	4
	 	 	0.350	%
	5
	 	 	0.450	%






Any change in the applicable Level at which the Applicable Margin is determined shall result in a
corresponding and simultaneous change in the Applicable Facility Fee and shall be subject to the
last two paragraphs of the definition of “Applicable Margin”. The provisions of this definition
shall be subject to Section 2.5.(c).



“Applicable Law” means all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes, executive orders, 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.



“Applicable Margin” means the percentage rate set forth in the table below corresponding to
the level (each a “Level”) into which the Borrower’s Credit Rating then falls. As of the Agreement
Date, the Applicable Margin is determined based on Level 3. Any change in the Borrower’s Credit
Rating which would cause it to move to a different Level shall be effective as of the first day of
the first calendar month immediately following receipt by the Administrative Agent of written
notice delivered by the Borrower in accordance with Section 8.4.(k) that the Borrower’s Credit
Rating has changed; provided, however, if the Borrower has not delivered the notice required by
such Section but the Administrative Agent becomes aware that the Borrower’s Credit Rating has
changed, then the Administrative Agent may, in its sole discretion, adjust the Level effective as
of the first day of the first calendar month following the date the Administrative Agent becomes
aware that the Borrower’s Credit Rating has changed. During any period that the Borrower has
received Credit Ratings that are not equivalent, the Applicable Margin shall be determined by the
higher of such two Credit Ratings; provided, however, that if the ratings of the Rating Agencies
are two pricing Levels apart, then the Applicable Margin shall be based on the Level that falls
between the Levels that correspond to the ratings of the Rating Agencies. During any period for
which the Borrower has received a Credit Rating from only one Rating Agency, then the Applicable
Margin shall be determined based on such Credit Rating so long as such Credit Rating is from either
S&P or Moody’s. During any period that the Borrower has (a) not received a Credit Rating from any
Rating Agency or (b) received a Credit Rating from only one Rating Agency that is neither S&P or
Moody’s, the Applicable Margin shall be determined based on Level 5. The provisions of this
definition shall be subject to Section 2.5.(c).



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Borrower’s Credit Rating	 	Applicable Margin for	 
	Level	 	 	(S&P/Moody’s or equivalent)	 	Revolving Loans	 
	 	1	 	 	A-/A3 (or equivalent) or better
	 	 	1.00	%
	 	2	 	 	BBB+/Baa1 (or equivalent)
	 	 	1.10	%
	 	3	 	 	BBB/Baa2 (or equivalent)
	 	 	1.225	%
	 	4	 	 	BBB-/Baa3 (or equivalent)
	 	 	1.50	%
	 	5	 	 	Lower than BBB-/Baa3 (or
equivalent)
	 	 	1.85	%





 


- 2 -









 





In the event of a downgrade of the Borrower’s Credit Rating by a Rating Agency that causes a
change to the Level as provided above, the Borrower will receive credit for any incremental
borrowing cost and fees should such Rating Agency restore the higher rating within ninety (90) days
of the original Credit Ratings downgrade which resulted in such pricing change.



To the extent an upgrade in the applicable Credit Rating of the Borrower by a Rating Agency
results in a decrease to the Applicable Margin and such upgrade is reversed by such Rating Agency,
within ninety (90) days of the upgrade by such Rating Agency, the Applicable Margin shall be
adjusted accordingly and the Borrower shall be required to pay an amount to the Lenders equal to
the difference between the Applicable Margin based on the restored lower Credit Rating and the
Applicable Margin in effect based on the higher Credit Rating prior to its reversal during the
period of such Credit Ratings upgrade.



“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 any entity that administers or manages a
Lender.



“Assignment and Assumption” means an Assignment and Assumption Agreement among a Lender, an
Eligible Assignee and the Administrative Agent, substantially in the form of Exhibit A.




“Bankruptcy Code” means the Bankruptcy Code of 1978, as amended.



“Base Rate” means the LIBOR Market Index Rate; provided, that if for any reason the LIBOR
Market Index Rate is unavailable, Base Rate shall mean the per annum rate of interest equal to the
Federal Funds Rate plus one and one-half of one percent (1.50%).



“Base Rate Loan” means a Revolving Loan (or any portion thereof) bearing interest at a rate
based on the Base Rate.



“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.




“Bid Rate Borrowing” has the meaning given that term in Section 2.2.(b).




“Bid Rate Loan” means a loan made by a Lender under Section 2.2.(f).



“Bid Rate Note” means a promissory note of the Borrower substantially in the form of Exhibit
B, payable to the order of a Lender as originally in effect and otherwise duly completed.



“Bid Rate Quote” means an offer in accordance with Section 2.2.(c) by a Lender to make a Bid
Rate Loan with one single specified interest rate.




“Bid Rate Quote Request” has the meaning given that term in Section 2.2.(b).


 


- 3 -









 





“Borrower” has the meaning set forth in the introductory paragraph hereof and shall include
the Borrower’s successors and permitted assigns.




“Borrower Information” has the meaning given that term in Section 2.5.(c).



“Business Day” means (a) a day of the week (but not a Saturday, Sunday or holiday) on which
the offices of the Administrative Agent in San Francisco, California are open to the public for
carrying on substantially all of the Administrative Agent’s business functions or other day on
which commercial banks in New York City, New York are not authorized or required by law to remain
closed, and (b) if such day relates to a LIBOR Loan, any such day that is also a day on which
dealings in Dollars are carried on in the London interbank market. Unless specifically referenced
in this Agreement as a Business Day, all references to “days” shall be to calendar days.



“Capitalized Lease Obligation” means obligations under a lease (to pay rent or other amounts
under any lease or other arrangement conveying the right to use) that are required to be
capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized
Lease Obligation is the capitalized amount of such obligation as would be required to be reflected
on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable
date.



“Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent,
for the benefit of the Issuing Bank or the Lenders, as collateral for Letter of Credit Liabilities
or obligations of Lenders to fund participations in respect of Letter of Credit Liabilities, cash
or deposit account balances or, if the Administrative Agent and the Issuing Bank shall agree in
their sole discretion, other credit support, in each case pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the Issuing Bank. “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.



“Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of
America or any of its agencies with maturities of not more than one year from the date acquired;
(b) certificates of deposit with maturities of not more than one year from the date acquired issued
by a United States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member of the Organisation
for Economic Co-operation and Development, or a political subdivision of any such country, acting
through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000
and which bank or its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase
agreements with terms of not more than seven days from the date acquired, for securities of the
type described in clause (a) above and entered into only with commercial banks having the
qualifications described in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State thereof and rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in each
case with maturities of not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended, which have net assets
of at least $500,000,000 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.




“Change of Control” means the occurrence of either of the following events.



(a) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be
deemed to have “beneficial ownership” of all securities that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35.0% of the total voting power of the then outstanding voting stock of
the Borrower; or


 


- 4 -









 





(b) During any period of 12 consecutive months ending after the Agreement Date, individuals
who at the beginning of any such 12 month period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board or whose nomination for election by
the shareholders of the Borrower was approved by a vote of a majority of the directors then still
in office who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved but excluding any director whose initial nomination for, or
assumption of office as, a director occurs as a result of an actual or threatened solicitation of
proxies or consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on behalf of the Board of
Directors) cease for any reason to constitute a majority of the Board of Directors of the Borrower
then in office.



“Commitment” means, as to each Lender (other than the Swingline Lender), such Lender’s
obligation to make Revolving Loans pursuant to Section 2.1., to issue (in the case of the Issuing
Bank) and to participate (in the case of the other Lenders) in Letters of Credit pursuant to
Section 2.3.(i), and to participate in Swingline Loans pursuant to Section 2.4.(e), in an amount up
to, but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s
“Commitment Amount” or as set forth in any applicable Assignment and Assumption, or agreement
executed by a Lender becoming a party hereto in accordance with Section 2.16., as the same may be
reduced from time to time pursuant to Section 2.12. or increased or reduced as appropriate to
reflect any assignments to or by such Lender effected in accordance with Section 12.5. or increased
as appropriate to reflect any increase effected in accordance with Section 2.16.



“Commitment Percentage” means, as to each Lender, the ratio, expressed as a percentage, of (a)
the amount of such Lender’s Commitment to (b) the aggregate amount of the Commitments of all
Lenders; provided, however, that if at the time of determination the Commitments have been
terminated or been reduced to zero, the “Commitment Percentage” of each Lender with a Commitment
shall be the “Commitment Percentage” of such Lender in effect immediately prior to such termination
or reduction.




“Compliance Certificate” has the meaning given that term in Section 8.3.



“Condominium Property” means a Multifamily Property that has been converted into residential
condominium units for the purpose of sale. For purposes of this definition and the definition of
“Condominium Property Value” a Multifamily Property will be deemed “converted” into residential
condominium units once both of the following have occurred: (a) notice of the conversion has been
sent to the tenants of such Property and (b) a declaration of condominium or other similar document
is filed with the applicable Governmental Authority.



“Condominium Property Value” means the sum of the following: (a) the Consolidated Net
Operating Income attributable to such Property for the two quarter period annualized ending
immediately prior to such conversion divided by 6.50%, plus (b) the of cost of capital improvements
made to such Property in connection with such conversion not to exceed 35% of the amount determined
in accordance with the preceding clause (a), minus (c) 90% of the actual contractual sales price of
each individual condominium unit sale prior to any deductions for commissions, fees and any other
expenses; provided, however, no value will be attributed to such Property 24 months after its
conversion. In addition, no value shall be attributable to a Condominium Property at any time
following the earlier of (x) all condominium units of such Property having been sold or otherwise
conveyed (y) the management of such Property having been turned over to such Property’s homeowners’
association and (z) less than 10% of the units remain unsold.


 


- 5 -









 





“Consolidated Adjusted EBITDA” means, for any period for the Consolidated Group, the sum of
Consolidated EBITDA for such period minus a reserve equal to $200 per apartment unit per year.
Except as expressly provided otherwise, the applicable period shall be for the prior two fiscal
quarters ending as of the date of determination.



“Consolidated Assets” means the assets of the members of the Consolidated Group determined in
accordance with GAAP on a consolidated basis.



“Consolidated EBITDA” means for any period for the Consolidated Group, the sum of Consolidated
Net Income (including Consolidated Net Income attributable to units of Condominium Properties prior
to the sale thereof) excluding the following amounts (but only to the extent included in
determining Consolidated Net Income for such period) (a) Consolidated Interest Expense; (b) all
provisions for any Federal, state or other income taxes; (c) depreciation, amortization and other
non-cash charges, (d)gains and losses on Investments and extraordinary gains and losses, (e) taxes
on such excluded gains and tax deductions or credits on account of such excluded losses in each
case on a consolidated basis determined in accordance with GAAP applied on a consistent basis and
(f) to the extent not already included in the immediately preceding clauses (b) through (e) the
Borrower’s Ownership Share of such items of each Unconsolidated Affiliate of the Borrower for such
period. Except as expressly provided otherwise, the applicable period shall be for the prior two
fiscal quarters ending as of the date of determination.



“Consolidated Funded Debt” means total Debt of the Consolidated Group on a consolidated basis.
Indemnities provided to support a Person’s recourse obligation, whether on a consolidated or
unconsolidated Investment shall be included in the definition of Consolidated Funded Debt,
provided, the indemnities associated with the transaction consummated by the Borrower in November
of 2010, pursuant to which an Affiliate of the Borrower became the general partner of UDR/MetLife
Master Limited Partnership shall be excluded from this definition.



“Consolidated Group” means the Borrower and its consolidated Subsidiaries, as determined in
accordance with GAAP applied on a consistent basis.



“Consolidated Interest Expense” means for any period for the Consolidated Group, all interest
expense, including the amortization of debt discount and premium, and the interest component under
capital leases, in each case on a consolidated basis and shall include the Borrower’s Ownership
Share of such interest expense of each Unconsolidated Affiliate of the Borrower for such period.



“Consolidated Net Income” means for any period, the net income of the Consolidated Group on a
consolidated basis determined in accordance with GAAP applied on a consistent basis.



“Consolidated Net Operating Income” means, for any period for any Multifamily Property owned
at the end of the period by a member of the Consolidated Group or an Unconsolidated Affiliate, an
amount equal to (a) the aggregate rental and other income from the operation of such Multifamily
Property during such period minus (b)(i) all expenses and other proper charges incurred in
connection with the operation of such Multifamily Property (including, without limitation, real
estate taxes and bad debt expenses) during such period and (ii) an imputed management fee in the
amount of 3.0% of the aggregate rents received for such Multifamily Property during such period;
but, in any case, before payment of or provision for debt service charges for such period, income
taxes for such period, and depreciation, amortization and other non-cash expenses for such period,
all on a consolidated basis determined in accordance with GAAP. For purposes of determining
Consolidated Net Operating Income, only the Borrower’s Ownership Share of the Consolidated Net
Operating Income of any such Property owned by an Unconsolidated Affiliate of the Borrower shall be
used.


 


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“Consolidated Secured Debt” means for the Consolidated Group on a consolidated basis, all
secured Consolidated Funded Debt. Consolidated Funded Debt secured solely by a pledge of Equity
Interests which is also recourse to the Borrower or a Guarantor shall not be considered to be
Consolidated Secured Debt.



“Consolidated Total Fixed Charges” means, as of the last day of each fiscal quarter for the
Consolidated Group, the sum of (a) the cash portion of Consolidated Interest Expense paid in the
prior two fiscal quarters ending on such day plus (b) regularly scheduled principal payments on
Consolidated Funded Debt (excluding balloon payments) in the prior two fiscal quarters ending on
such day plus (c) all cash dividends and distributions on preferred stock or other preferred
beneficial interests of members of the Consolidated Group paid in the prior two fiscal quarters
ending on such day, all on a consolidated basis determined in accordance with GAAP on a consistent
basis.



“Consolidated Unsecured Debt” means, for the Consolidated Group on a consolidated basis, all
unsecured Consolidated Funded Debt. Consolidated Secured Debt that is secured solely by Equity
Interests and is recourse to the Borrower shall be considered to be Consolidated Unsecured Debt.



“Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.9.



“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.



“Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type
into a Loan of another Type pursuant to Section 2.10.



“Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b)
the Conversion of a Base Rate Loan into a LIBOR Loan, (c) the Continuation of a LIBOR Loan and (d)
the issuance of a Letter of Credit.



“Credit Rating” means the rating assigned by a Rating Agency to the senior unsecured long term
Debt of a Person.



“Debt” means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in respect of money borrowed or
the deferred purchase price of property or services (other than trade debt incurred in the ordinary
course of business); (b) all obligations of such Person (other than trade debt incurred in the
ordinary course of business), whether or not for money borrowed (i) represented by notes payable,
or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar instruments, upon
which interest charges are customarily paid or that are issued or assumed as full or partial
payment for property or services rendered; (c) Capitalized Lease Obligations of such Person
(including ground leases to the extent required under GAAP to be reported as a liability); (d) all
reimbursement obligations of such Person under or in respect of any letters of credit or
acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet
Obligations of such Person; (f) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person
or any other Person, valued at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends; (g) all obligations of such Person in respect of any purchase
obligation, repurchase obligation, takeout commitment or forward equity


 


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 commitment, in each case
evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of
Equity Interests (other than Mandatorily Redeemable Stock)); (h) net obligations under any
Derivatives Contract not entered into as a hedge against existing Debt, in an amount equal to the
Derivatives Termination Value thereof; (i) all Debt of other Persons which such Person has
guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive
involuntary bankruptcy, and other similar exceptions to non-recourse liability); (j) all Debt of
another Person secured by (or for which the holder of such Debt has an existing right, contingent
or otherwise, to be secured by) any Lien on property or assets owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt or other payment
obligation; and (k) such Person’s Ownership Share of the Debt of any Unconsolidated Affiliate of
such Person. By way of example only and not in limitation of the preceding sentence, Debt of any
Person shall include Debt of any partnership or joint venture in which such Person is a general
partner or joint venturer to the extent of such Person’s pro rata share of the ownership of such
partnership or joint venture (except if such Debt, or any portion thereof, is recourse to such
Person, in which case the greater of such Person’s pro rata portion of such Debt or the amount of
the recourse portion of the Debt, shall be included as Debt of such Person). All Loans and
liabilities in respect of Letters of Credit shall constitute Debt of the Borrower. Notwithstanding
the use of GAAP, the calculation of Debt shall not include any fair value adjustments to the
carrying value of liabilities to record such liabilities at fair value pursuant to electing the
fair value option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value
Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to
elect fair value option for financial liabilities.



“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the
United States of America or other applicable jurisdictions from time to time in effect.



“Default” means any of the events specified in Section 10.1., whether or not there has been
satisfied any requirement for the giving of notice, the lapse of time, or both.



“Defaulting Lender” means, subject to Section 3.9.(f), any Lender that (a) has failed to (i)
fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to
be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in
writing that such failure is the result of such Lender’s reasonable determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to
the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its participation in Letters of
Credit or Swingline Loans) within 2 Business Days of the date when due, (b) has notified the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a public statement to
that effect (unless such writing or public statement relates to such Lender’s obligation to fund a
Loan hereunder and states that such position is based on such Lender’s reasonable determination
that a condition precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement) cannot be
satisfied), (c) has failed, within 3 Business Days after written request by the Administrative
Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it
will comply with its prospective funding obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or
(ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee


 


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for
the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a capacity; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of
any equity interest in that Lender or any direct or indirect parent company thereof by a
Governmental Authority so long as such ownership interest does not result in or provide such Lender
with immunity from the jurisdiction of courts within the United States of America or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting
Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.9.(f)) upon
delivery of written notice of such determination to the Borrower, the Issuing Bank, the Swingline
Lender and each Lender.



“Derivatives Contract” means (a) any transaction (including any master agreement, confirmation
or other agreement with respect to any such transaction) now existing or hereafter entered into by
the Borrower or any of its Subsidiaries (i) which is a rate swap transaction, swap option, basis
swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, credit protection transaction, credit swap, credit default swap,
credit default option, total return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather
index transaction or forward purchase or sale of a security, commodity or other financial
instrument or interest (including any option with respect to any of these transactions) or (ii)
which is a type of transaction that is similar to any transaction referred to in clause (i) above
that is currently, or in the future becomes, recurrently entered into in the financial markets
(including terms and conditions incorporated by reference in such agreement) and which is a
forward, swap, future, option or other derivative on one or more rates, currencies, commodities,
equity securities or other equity instruments, debt securities or other debt instruments, economic
indices or measures of economic risk or value, or other benchmarks against which payments or
deliveries are to be made, and (b) any combination of these transactions.



“Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting agreement or provision
relating thereto, (a) for any date on or after the date such Derivatives Contracts have been
terminated or closed out, the termination amount or value determined in accordance therewith, and
(b) for any date prior to the date such Derivatives Contracts have been terminated or closed out,
the then-current mark-to-market value for such Derivatives Contracts, determined based upon one or
more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts
(which may include the Administrative Agent, any Lender, any Specified Derivatives Provider or any
Affiliate of any of them).



“Designated Lender” means a special purpose corporation which is an Affiliate of, or sponsored
by, a Lender, that is engaged in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and that issues (or the parent of which issues) commercial
paper rated at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or the then equivalent
grade) by S&P that, in either case, (a) is organized under the laws of the United States of America
or any state thereof, (b) shall have become a party to this Agreement pursuant to Section 12.5.(h)
and (c) is not otherwise a Lender.




“Designating Lender” has the meaning given that term in Section 12.5.(h).


 


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“Designation Agreement” means a Designation Agreement between a Lender and a Designated Lender
and accepted by the Administrative Agent, substantially in the form of Exhibit C or such other form
as may be agreed to by such Lender, such Designated Lender and the Administrative Agent.



“Development Properties” means (i) multifamily projects under construction, or in
preconstruction phases of the development process, but not yet completed and (ii) Condominium
Properties.




“Dollars” or “$” means the lawful currency of the United States of America.



“Effective Date” means the later of (a) the Agreement Date and (b) the date on which all of
the conditions precedent set forth in Section 5.1. shall have been fulfilled or waived by all of
the Lenders.



“Eligible Assignee” means (a) a Lender (other than a Defaulting Lender), (b) an Affiliate of a
Lender (other than a Defaulting Lender), (c) an Approved Fund and (d) any other Person (other than
a natural person) approved by the Administrative Agent (such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.



“Environmental Laws” means any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without
limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; regulations of the Environmental Protection Agency, any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and
any analogous or comparable state or local laws, regulations or ordinances that concern Hazardous
Materials or protection of the environment.



“Equity Interest” means, with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase
or other acquisition from such Person of any share of capital stock of (or other ownership or
profit interests in) such Person whether or not certificated, any security convertible into or
exchangeable for any share of capital stock of (or other ownership or profit interests in) such
Person or warrant, right or option for the purchase or other acquisition from such Person of such
shares (or such other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or
otherwise existing on any date of determination.



“Equity Transaction” means, with respect to any member of the Consolidated Group, any issuance
of shares of its capital stock or other equity interest, other than an issuance (i) to a member of
the Consolidated Group or (ii) in connection with exercise by a present or former employee, officer
or director under a stock incentive plan, stock option plan or other equity-based compensation plan
or arrangement.



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


 


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“ERISA Event” means, with respect to the ERISA Group, (a) any “reportable event” as defined in
Section 4043 of ERISA with respect to a Plan (other than an event for which the 30-day notice
period is waived); (b) the withdrawal of a member of the ERISA Group from a 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) the incurrence by a member of the ERISA Group of any liability with respect
to the withdrawal or partial withdrawal from any Multiemployer Plan; (d) the incurrence by any
member of the ERISA Group of any liability under Title IV of ERISA with respect to the termination
of any Plan or Multiemployer Plan; (e) the institution of proceedings to terminate a Plan or
Multiemployer Plan by the PBGC; (f) the failure by any member of the ERISA Group to make when due
required contributions to a Multiemployer Plan or Plan unless such failure is cured within 30 days
or the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of
an application for a waiver of the minimum funding standard; (g) any other event or condition that
might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan or the imposition
of liability under Section 4069 or 4212(c) of ERISA; (h) the receipt by any member of the ERISA
Group of any notice or the receipt by any Multiemployer Plan from any member of the ERISA Group of
any notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245 of
ERISA), in reorganization (within the meaning of Section 4241 of ERISA), or in “critical” status
(within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i) 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 any member of the ERISA Group or the imposition of any
Lien in favor of the PBGC under Title IV of ERISA; or (j) a determination that a Plan is, or is
reasonably expected to be, in “at risk” status (within the meaning of Section 430 of the Internal
Revenue Code or Section 303 of ERISA).



“ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under common control,
which, together with the Borrower or any Subsidiary, are treated as a single employer under Section
414 of the Internal Revenue Code.



“Event of Default” means any of the events specified in Section 10.1., provided that any
requirement for notice or lapse of time or any other condition has been satisfied.



“Excluded Subsidiary” means any Subsidiary (a) formed for the specific purpose of holding
title to assets which are collateral for any Consolidated Secured Debt of such Subsidiary; (b)
which is prohibited from Guarantying the Debt of any other Person pursuant to (i) any document,
instrument or agreement evidencing such Consolidated Secured Debt or (ii) a provision of such
Person’s organizational documents which provision was included in such Person’s organizational
documents as a condition to the extension of such Consolidated Secured Debt; and (c) for which none
of the Borrower, any Subsidiary (other than another Excluded Subsidiary) or any other Loan Party
has Guaranteed any of the Debt of such Subsidiary or has any direct obligation to maintain or
preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any specified
levels of operating results, except for customary exceptions for fraud, misapplication of funds,
environmental indemnities, and other similar exceptions to recourse liability.



“Existing Credit Agreement” means that certain Amended and Restated Credit Agreement dated as
of July 27, 2007 by and among the Borrower, the “Lenders” from time to time party thereto, certain
other financial institutions, the Wachovia Bank, National Association (predecessor by merger to the
Administrative Agent), as Agent and the other parties thereto.


 


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“Existing Letters of Credit” means the letters of credit issued and outstanding under the
Existing Credit Agreement and set forth on Schedule 1.1.(a).



“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards
Board.



“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.



“Fee Letter” means that certain fee letter dated as of August 30, 2011, by and between the
Borrower and the Administrative Agent.



“Fees” means the fees and commissions provided for or referred to in Section 3.5. and any
other fees payable by the Borrower hereunder, under any other Loan Document or under the Fee
Letter.



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



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the
Issuing Bank, such Defaulting Lender’s Commitment Percentage of the outstanding Letter of Credit
Liabilities other than Letter of Credit Liabilities as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s
Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders.



“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.



“GAAP” means generally accepted accounting principles in the United States of America set
forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (including Statement of Financial Accounting Standards No. 168, “The
FASB Accounting Standards Codification”) or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession in the United States of America,
which are applicable to the circumstances as of the date of determination.



“Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.


 


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“Governmental Authority” means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other governmental, quasi-governmental,
judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau,
commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance
Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any
comparable authority) or any arbitrator with authority to bind a party at law.



“Gross Asset Value” means from time to time the sum of the following amounts (without
duplication): (a) the product of (i) Consolidated Net Operating Income for the period of two
consecutive fiscal quarters most recently ended attributable to Multifamily Properties (excluding
any Properties covered by either of the immediately following clauses (b) or (c)) owned by any
member of the Consolidated Group at the end of such period, multiplied by (ii) 2 and divided by
(iii) 6.50%; (b) the purchase price paid for any Multifamily Property acquired by any member of the
Consolidated Group during the period of five consecutive fiscal quarters most recently ended (less
any amounts paid as a purchase price adjustment, held in escrow, retained as a contingency reserve,
or other similar arrangements); (c)(i) the Condominium Property Value of all Condominium Properties
owned by any member of the Consolidated Group at the end of the period of two consecutive fiscal
quarters most recently ended; (ii) the current book value of any other Development Property (or
Multifamily Property that was a Development Property at any time during the period of six
consecutive fiscal quarters most recently ended) owned by any member of the Consolidated Group and
(iii) the Renovation Property Value of all Renovation Properties owned by any member of the
Consolidated Group at the end of the period of two consecutive fiscal quarters most recently ended;
(d) unrestricted cash and cash equivalents of the Consolidated Group; (e) the value (based on the
lower of cost or market price determined in accordance with GAAP) of any raw land owned by any
member of the Consolidated Group; (f) the value (based on the lower of cost or market price
determined in accordance with GAAP) of Properties owned by any member of the Consolidated Group
that are developed but that are not Multifamily Properties; (g) the value (based on the lower of
cost or market price determined in accordance with GAAP) of all Multifamily REIT Preferred
Interests; (h) the value (based on the lower of cost or market price determined in accordance with
GAAP) of (i) all promissory notes, including any secured by a Mortgage, payable solely to any
member of the Consolidated Group and the obligors of which are not Affiliates of the Borrower
(excluding any such note where the obligor is more than 60 days past due with respect to any
payment obligation) and (ii) all marketable securities (excluding Marketable Multifamily REIT
Preferred Interests); and (i) the Borrower’s Ownership Share of the preceding items of any
Unconsolidated Affiliate of the Borrower to the extent not already included. Notwithstanding the
foregoing, any determination of Gross Asset Value shall exclude any Investments held by the
Borrower or any Subsidiary in excess of the amounts permitted under Section 9.1.(e).



“Gross Asset Value of the Unencumbered Pool” means Gross Asset Value determined with reference
only to Unencumbered Pool Assets. Notwithstanding the foregoing, the amount by which the value of
Unencumbered Pool Assets that are Investments and other assets subject to the limitations of any of
the subsections of Section 9.1.(e) would, in the aggregate, account for more than 20% of Gross
Asset Value of the Unencumbered Pool shall be excluded for purposes of determining Gross Asset
Value of the Unencumbered Pool.



“Guarantor” means any Person that is party to the Guaranty as a “Guarantor” and shall in any
event include each Material Subsidiary (unless an Excluded Subsidiary) and in any event shall
include United Dominion Realty, L.P.


 


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“Guaranty” or to “Guarantee” by any Person, means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person
except for guaranties of customary exceptions for fraud, misapplication of funds, environmental
indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions to
nonrecourse liability and, without limiting the generality of the foregoing, any obligation, direct
or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part); provided that the
term Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning. “Guaranty” shall also
mean the guaranty executed and delivered pursuant to Section 5.1. or 7.13. and substantially in the
form of Exhibit D.



“Guaranteed Obligations” means, as to each Guarantor, without duplication, all Obligations of
the Borrower (including interest accruing after a bankruptcy, regardless of whether such interest
is allowed as a claim under the bankruptcy code).



“Hazardous Materials” means all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous
substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation
intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or
“EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids
or synthetic gas and drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e)
toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million.




“Intellectual Property” has the meaning given that term in Section 6.1.(s).




“Interest Period” means:



(a) with respect to each LIBOR Loan, each period commencing on the date such LIBOR Loan is
made, or in the case of the Continuation of a LIBOR Loan the last day of the preceding Interest
Period for such Loan, and ending on the date 14 days or the numerically corresponding day in the
first, third or sixth calendar month thereafter, as the Borrower may select in a Notice of
Borrowing, Notice of Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar month; and



(b) with respect to each Bid Rate Loan, the period commencing on the date such Bid Rate Loan
is made and ending on any Business Day not less than 7 nor more than 180 days thereafter, as the
Borrower may select as provided in Section 2.2.(b).



Notwithstanding the foregoing: (i) if any Interest Period for a Loan would otherwise end after the
Termination Date, such Interest Period shall end on the Termination Date; and (ii) each Interest
Period that would otherwise end on a day which is not a Business Day shall end on the immediately
following Business Day (or, if such immediately following Business Day falls in the next calendar
month, on the immediately preceding Business Day).


 


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“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



“Investment” means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, by means of any of the following: (a) the purchase or
other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of
credit to, capital contribution to, Guaranty of Debt of, or purchase or other acquisition of any
Debt of, another Person, including any partnership or joint venture interest in such other Person,
or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets
of another Person that constitute the business or a division or operating unit of another Person.
Any commitment to make an Investment in any other Person, as well as any option of another Person
to require an Investment in such Person, shall constitute an Investment. Except as expressly
provided otherwise, for purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such Investment.



“Investment Grade Rating” means a Credit Rating of BBB-/Baa3 (or the equivalent) or higher
from a Rating Agency.



“Issuing Bank” means Wells Fargo or any other Lender, each in its capacity as an issuer of
Letters of Credit pursuant to Section 2.3.




“L/C Commitment Amount” has the meaning given to that term in Section 2.3.(a).




“L/C Disbursement” has the meaning given to that term in Section 3.9.(b).



“Lender” means each financial institution from time to time party hereto as a “Lender” or a
“Designated Lender,” together with its respective successors and permitted assigns, and, as the
context requires, includes the Swingline Lender; provided, however, that the term “Lender” (i)
shall exclude each Designated Lender when used in reference to any Loan other than a Bid Rate Loan,
the Commitments or terms relating to any Loan other than a Bid Rate Loan and shall further exclude
each Designated Lender for all other purposes under the Loan Documents except that any Designated
Lender which funds a Bid Rate Loan shall, subject to Section 12.5.(d), have only the rights
(including the rights given to a Lender contained in Sections 12.2. and 12.9.) and obligations of a
Lender associated with holding such Bid Rate Loan and (ii) except as otherwise expressly provided
herein, shall exclude any Lender (or its Affiliates) in its capacity as a Specified Derivatives
Provider.



“Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and
Assumption, or such other office of such Lender as such Lender may notify the Administrative Agent
in writing from time to time.




“Letter of Credit” has the meaning given that term in Section 2.3.(a).



“Letter of Credit Collateral Account” means a special deposit account maintained by the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing Bank and the
Lenders, and under its sole dominion and control.



“Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any
application therefor, any certificate or other document presented in connection with a drawing
under such Letter of Credit and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations.


 


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“Letter of Credit Liabilities” means, without duplication, at any time and in respect of any
Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate
unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Issuing Bank) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest under Section 2.3. in
the related Letter of Credit, and the Lender then acting as the Issuing Bank shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter
of Credit after giving effect to the acquisition by the Lenders (other than the Lender then acting
as the Issuing Bank) of their participation interests under such Section.




“Level” has the meaning given that term in the definition of the term “Applicable Margin.”



“LIBOR” means, for the Interest Period for any LIBOR Loan, the rate of interest, rounded up to
the nearest whole multiple of one-hundredth of one percent (0.01%), obtained by dividing (i) the
rate of interest, rounded upward to the nearest whole multiple of one-hundredth of one percent
(0.01%), referred to as the BBA (British Bankers’ Association) LIBOR rate as set forth by any
service selected by the Administrative Agent that has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying such rate for
deposits in Dollars at approximately 9:00 a.m. Pacific time, two (2) Business Days prior to the
date of commencement of such Interest Period for purposes of calculating effective rates of
interest for loans or obligations making reference thereto, for an amount approximately equal to
the applicable LIBOR Loan and for a period of time approximately equal to such Interest Period
by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal)
of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors
of the Federal Reserve System (or against any other category of liabilities which includes deposits
by reference to which the interest rate on LIBOR Loans is determined or any applicable category of
extensions of credit or other assets which includes loans by an office of any Lender outside of the
United States of America). Any change in such maximum rate shall result in a change in LIBOR on
the date on which such change in such maximum rate becomes effective.



“LIBOR Auction” means a solicitation of Bid Rate Quotes setting forth LIBOR Margin Loans based
on LIBOR pursuant to Section 2.2.



“LIBOR Loan” means a Revolving Loan (or any portion thereof) (other than a Base Rate Loan)
bearing interest at a rate based on LIBOR.




“LIBOR Margin” has the meaning given that term in Section 2.2.(c)(ii)(D).



“LIBOR Margin Loan” means a Bid Rate Loan the interest rate on which is determined on the
basis of LIBOR pursuant to a LIBOR Auction.



“LIBOR Market Index Rate” means, for any day, LIBOR as of that day that would be applicable
for a LIBOR Loan having a one-month Interest Period determined at approximately 9:00 a.m. Pacific
time for such day (or if such day is not a Business Day, the immediately preceding Business Day),
notwithstanding the time of determination set forth in clause (i) of the definition of LIBOR. The
LIBOR Market Index Rate shall be determined on a daily basis.


 


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“Lien” as applied to the property of any Person means: (a) any security interest,
encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge,
lien, hypothecation, assignment, charge or lease constituting a Capitalized Lease Obligation,
conditional sale or other title
retention agreement, or other security title or encumbrance of any kind in respect of any property
of such Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Debt or performance of any
other obligation in priority to the payment of the general, unsecured creditors of such Person; and
(c) the filing of any financing statement under the UCC or its equivalent in any jurisdiction,
other than any precautionary filing not otherwise constituting or giving rise to a Lien, including
a financing statement filed (i) in respect of a lease not constituting a Capitalized Lease
Obligation pursuant to Section 9-505 (or a successor provision) of the UCC or its equivalent as in
effect in an applicable jurisdiction or (ii) in connection with a sale or other disposition of
accounts or other assets not prohibited by this Agreement in a transaction not otherwise
constituting or giving rise to a Lien.




“Loan” means a Revolving Loan, a Bid Rate Loan or a Swingline Loan.



“Loan Document” means this Agreement, each Note, the Guaranty, each Letter of Credit Document
and each other document or instrument now or hereafter executed and delivered by a Loan Party in
connection with, pursuant to or relating to this Agreement (other than the Fee Letter and any
Specified Derivatives Contract).



“Loan Party” means each of the Borrower, each other Person who guarantees all or a portion of
the Obligations and/or who pledges any collateral to secure all or a portion of the Obligations.
Schedule 1.1. sets forth the Loan Parties in addition to the Borrower as of the Agreement Date.



“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such
Person which by the terms of such Equity Interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening of any event or
otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or
other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b)
is convertible into or exchangeable or exercisable for Debt or Mandatorily Redeemable Stock, or (c)
is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest
which is redeemable solely in exchange for common stock or other equivalent common Equity
Interests), in each case on or prior to the date on which all Loans are scheduled to be due and
payable in full.



“Marketable Multifamily REIT Preferred Interest” means a Multifamily REIT Preferred Interest:
(a) having trading privileges on a national securities exchange or that is subject to price
quotations in the over-the-counter market; (b) but not subject to restrictions on the sale,
transfer, assignment, hypothecation or other limitations that would restrict the free transfer of
such Preferred Equity by a member of the Consolidated Group for more than 90 days from purchase or
such Preferred Equity qualifies for an exemption under the Securities Act.



“Material Adverse Effect” means a materially adverse effect on (a) the business, assets,
liabilities, financial condition, or results of operations of the Borrower and its Subsidiaries
taken as a whole, (b) the ability of the Borrower or any other Loan Party to perform its
obligations under any Loan Document to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and remedies of the Lenders and the Administrative Agent
under any of the Loan Documents or (e) the timely payment of the principal of or interest on the
Loans or other amounts payable in connection therewith or the timely payment of all Reimbursement
Obligations.


 


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“Material Contract” means any contract or other arrangement (other than Loan Documents),
whether written or oral, to which the Borrower, any Subsidiary or any other Loan Party is a party
as to
which the breach, nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.



“Material Subsidiary” means any Subsidiary having assets equal to or greater than $20,000,000
in value.




“Moody’s” means Moody’s Investors Service, Inc. and its successors.



“Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument
made by a Person owning an interest in real estate granting a Lien on such interest in real estate
as security for the payment of Debt.



“Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding six plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during such six-year
period.



“Multifamily Property” means a Property on which the improvements consist primarily of an
apartment community.



“Multifamily REIT Preferred Interest” means any Preferred Equity (a) owned by a member of the
Consolidated Group; (b) issued by a non-subsidiary REIT owning primarily residential apartment
communities. Any Multifamily REIT Preferred Interest acquired must be in conjunction with a
multifamily acquisition or series of multifamily acquisitions.



“Negative Pledge” means, with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Debt of the Person owning such
asset or any other Person; provided, however, that an agreement that conditions a Person’s ability
to encumber its assets upon the maintenance of one or more specified ratios that limit such
Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.



“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at
such time.



“Nonrecourse Debt” means, with respect to a Person, Debt for borrowed money in respect of
which recourse for payment (except for customary exceptions for fraud, misapplication of funds,
environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar
customary exceptions to nonrecourse liability) is contractually limited to specific assets of such
Person encumbered by a Lien securing such Debt.




“Note” means a Revolving Note, a Bid Rate Note or a Swingline Note.



“Notice of Borrowing” means a notice substantially in the form of Exhibit E (or such other
form reasonably acceptable to the Administrative Agent and containing the information required in
such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing
the Borrower’s request for a borrowing of Revolving Loans.


 


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“Notice of Continuation” means a notice substantially in the form of Exhibit F (or such other
form reasonably acceptable to the Administrative Agent and containing the information required in
such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.9. evidencing the
Borrower’s request for the Continuation of a LIBOR Loan.



“Notice of Conversion” means a notice substantially in the form of Exhibit G (or such other
form reasonably acceptable to the Administrative Agent and containing the information required in
such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.10. evidencing the
Borrower’s request for the Conversion of a Loan from one Type to another Type.



“Notice of Swingline Borrowing” means a notice substantially in the form of Exhibit H (or such
other form reasonably acceptable to the Administrative Agent and containing the information
required in such Exhibit) to be delivered to the Swingline Lender pursuant to Section 2.4.(b)
evidencing the Borrower’s request for a Swingline Loan.



“Obligations” means, individually and collectively: (a) the aggregate principal balance of,
and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other
Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants
and duties of the Borrower and the other Loan Parties owing to the Administrative Agent, the
Issuing Bank or any Lender of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any promissory
note. For the avoidance of doubt, “Obligations” shall not include Specified Derivatives
Obligations.



“Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed as a
percentage, of (a) the number of rentable apartment units of such Property leased by tenants paying
rent at market rates pursuant to binding leases as to which no monetary default has occurred and is
continuing to (b) the aggregate number of rentable units of such Property.



“Off-Balance Sheet Obligations” means liabilities and obligations of the Borrower or any other
Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of
Regulation S-K promulgated under the Securities Act) which the Borrower would be required to
disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section of the Borrower’s report on Form 10 Q or Form 10 K (or their equivalents) which
the Borrower is required to file with the Securities and Exchange Commission (or any Governmental
Authority substituted therefore).




“OFAC” has the meaning given that term in Section 6.1.(x).



“Ownership Share” means, with respect to any Subsidiary of a Person (other than a Wholly Owned
Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative
nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest
(calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in
accordance with the applicable provisions of the declaration of trust, articles or certificate of
incorporation, articles of organization, partnership agreement, joint venture agreement or other
applicable organizational document of such Subsidiary or Unconsolidated Affiliate.




“Participant” has the meaning given that term in Section 12.5.(d).


 


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“PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.



“Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any
of the provisions of ERISA) or the claims of materialmen, mechanics, carriers, warehousemen or
landlords for labor, materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.6.; (b) Liens
consisting of deposits or pledges made, in the ordinary course of business, in connection with, or
to secure payment of, obligations under workers’ compensation, unemployment insurance or similar
Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property, which do not
materially detract from the value of such property or impair the use thereof in the business of
such Person; and (d) Liens in existence as of the Agreement Date and set forth in Part II of
Schedule 6.1.(f).



“Person” means any natural person, corporation, limited partnership, general partnership,
joint stock company, limited liability company, limited liability partnership, joint venture,
association, company, trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.



“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the
preceding six years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a member of the ERISA
Group.



“Post-Default Rate” means, in respect of any principal of any Loan or any Reimbursement
Obligation that is not paid when due, the rate otherwise applicable plus an additional four
percent (4.0%) per annum and with respect to any other Obligation that is not paid when due
(whether at stated maturity, by acceleration, by optional or mandatory prepayment or otherwise), a
rate per annum equal to the Base Rate as in effect from time to time plus the Applicable
Margin plus four percent (4.0%).



“Preferred Equity” means, with respect to any Person, Equity Interests in such Person which
are entitled to preference or priority over any other Equity Interest in such Person in respect of
the payment of dividends or distribution of assets upon liquidation or both.



“Principal Office” means the office of the Administrative Agent located at 608 Second Avenue
S., 11th Floor, Minneapolis, Minnesota 55402-1916, or any other subsequent office that
the Administrative Agent shall have specified as the Principal Office by written notice to the
Borrower and the Lenders.



“Property” means a parcel (or group of related parcels) of real property developed (or to be
developed) by the Borrower, any Subsidiary or any Unconsolidated Affiliate.



“Qualified Plan” means a Benefit Arrangement that is intended to be tax-qualified
under Section 401(a) of the Internal Revenue Code.



“Rating Agency” means S&P, Moody’s or any other nationally recognized securities rating agency
selected by the Borrower and approved of by the Administrative Agent in writing.




“Register” has the meaning given that term in Section 12.5.(c).


 


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“Regulatory Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy. Notwithstanding anything herein to the contrary, (a) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory
Change”, regardless of the date enacted, adopted or issued



“Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing Bank under a Letter
of Credit.



“REIT” means a Person qualifying for treatment as a “real estate investment trust” under the
Internal Revenue Code.



“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.



“Renovation Property” mean a Property on which the existing building or other improvements are
undergoing renovation and redevelopment that will either (i) disrupt the occupancy of at least 30%
of the square footage of such Property or (ii) temporarily reduce the Consolidated Net Operating
Income attributable to such Property by more than 30% as compared to the immediately preceding
comparable prior period. A Property shall cease to be a Renovation Property upon the earliest to
occur of (i) all improvements (other than tenant improvements on unoccupied space) related to the
redevelopment of such Property having been substantially completed and (ii) once such Property has
achieved a minimum Occupancy Rate of 80.0%.

“Renovation Property Value” means for a Renovation
Property, the sum of the following: (a) the Consolidated Net Operating Income attributable to such
Property for the two quarter period annualized ending immediately prior to the commencement of such
renovation and redevelopment divided by 6.50%, plus (b) the cost of capital improvements made to
such Property in connection with such renovation and redevelopment not to exceed 35% of the amount
determined in accordance with the preceding clause (a); provided, however, (i) the value of (a)
plus (b) above does not exceed 80% of the Borrower’s capped proforma value and (ii) 18 months
following the commencement of such renovation and redevelopment such property will cease to be a
Renovation Property.



“Requisite Lenders” means, as of any date, (a) Lenders having greater than 50% of the
aggregate amount of the Commitments of all Lenders, or (b) if the Commitments have been terminated
or reduced to zero, Lenders holding greater than 50% of the principal amount of the aggregate
outstanding Loans and Letter of Credit Liabilities; provided that (i) in determining such
percentage at any given time, all then existing Defaulting Lenders will be disregarded and
excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) are party
to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders. For
purposes of this definition, a Lender shall be deemed to hold a Swingline Loan or a Letter of
Credit Liability to the extent such Lender has acquired a
participation therein under the terms of this Agreement and has not failed to perform its
obligations in respect of such participation.


 


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“Responsible Officer” means the chief financial officer, the Controller, any Senior Executive
Vice President, or Senior Vice President or the Treasurer.



“Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of Equity Interests to the
holders of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any
Equity Interest of the Borrower or any of its Subsidiaries now or hereafter outstanding; and (c)
any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire any Equity Interests of the Borrower or any of its Subsidiaries now or
hereafter outstanding.



“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal
amount at such time of its outstanding Revolving Loans and such Lender’s participation in Letter of
Credit Liabilities and Swingline Loans at such time.




“Revolving Lender” means a Lender having a Commitment.




“Revolving Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.1.(a).



“Revolving Note” means a promissory note of the Borrower substantially in the form of Exhibit
I, payable to the order of a Lender in a principal amount equal to the amount of such Lender’s
Commitment.



“Securities Act” means the Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.



“Significant Subsidiary” means any Subsidiary having assets equal to or greater than
$50,000,000 in value.



“Solvent” means, when used with respect to any Person, that (a) the fair value and the fair
salable value of its assets (excluding any Debt due from any Affiliate of such Person) are each in
excess of the fair valuation of its total liabilities (including all contingent liabilities
computed at the amount which, in light of all facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and matured liability);
(b) such Person is able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its business and all
business in which it proposes to be engaged.



“Specified Derivatives Contract” means any Derivatives Contract that is made or entered into
at any time, or in effect at any time now or hereafter, whether as a result of an assignment or
transfer or otherwise, between the Borrower and any Specified Derivatives Provider.



“Specified Derivatives Obligations” means all indebtedness, liabilities, obligations,
covenants and duties of the Borrower or its Subsidiaries under or in respect of any Specified
Derivatives Contract, whether direct or indirect, absolute or contingent, due or not due,
liquidated or unliquidated, and whether or not evidenced by any written confirmation.


 


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“Specified Derivatives Provider” means any Lender, or any Affiliate of a Lender that is a
party to a Derivatives Contract at the time the Derivatives Contract is entered into.



“S&P” means Standard & Poor’s rating services, a Standard & Poor’s Financial Services LLC,
business, a subsidiary of the McGraw-Hill Companies, Inc., and its successors.



“Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of
Credit from time to time, as such amount may be increased or reduced from time to time in
accordance with the terms of such Letter of Credit.



“Subsidiary” means, for any Person, any corporation, partnership, limited liability company or
other entity of which at least a majority of the Equity Interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors or other individuals performing
similar functions of such corporation, partnership, limited liability company or other entity
(without regard to the occurrence of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person, and shall include all Persons the accounts of which are
consolidated with those of such Person pursuant to GAAP.



“Swingline Commitment” means the Swingline Lender’s obligation to make Swingline Loans
pursuant to Section 2.4. in an amount up to, but not exceeding the amount set forth in the first
sentence of Section 2.4.(a), as such amount may be reduced from time to time in accordance with the
terms hereof.



“Swingline Lender” means Wells Fargo Bank, National Association, together with its respective
successors and assigns.



“Swingline Loan” means a loan made by the Swingline Lender to the Borrower pursuant to Section
2.4.



“Swingline Maturity Date” means the date which is forty-five (45) Business Days prior to the
Termination Date.



“Swingline Note” means the promissory note of the Borrower substantially in the form of
Exhibit J, payable to the order of the Swingline Lender in a principal amount equal to the amount
of the Swingline Commitment as originally in effect and otherwise duly completed.




“Taxes” has the meaning given that term in Section 3.10.



“Termination Date” means October 23, 2015, or such later date to which the Termination Date
may be extended pursuant to Section 2.13.




“Titled Agent” as the meaning given that term in Section 11.9.



“Transfer Authorizer Designation Form” means a form substantially in the form of Exhibit K to
be delivered to the Administrative Agent pursuant to Section 5.1.(a), as the same may be amended,
restated or modified from time to time with the prior written approval of the Administrative Agent.



“Type” with respect to any Revolving Loan, refers to whether such Loan or portion thereof is a
LIBOR Loan or a Base Rate Loan.



“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.


 


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“Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such
Person holds an Investment, which Investment is accounted for in the financial statements of such
Person on an equity basis of accounting and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial statements of such
Person.



“Unencumbered Pool Asset” means any asset owned by a member of the Consolidated Group or an
Unconsolidated Affiliate of the Borrower and that satisfies all of the following requirements: (a)
such asset is either (i) a Multifamily Property, (ii) a Property that is developed but that is not
a Multifamily Property, (iii) a Development Property or a Renovation Property, (iv) raw land, (v)
promissory notes (vi) marketable securities (including Marketable Multifamily REIT Preferred
Interests) and (vii) Multifamily REIT Preferred Interests; (b) neither such asset, nor any interest
of any member of the Consolidated Group or Unconsolidated Affiliate therein, is subject to any Lien
(other than Permitted Liens of the types described in clauses (a) through (c) of the definition
thereof) or to any Negative Pledge; (c) if such asset is owned by Person other than the Borrower
(i) none of the Borrower’s direct or indirect ownership interest in such Person is subject to any
Lien (other than Permitted Liens of the types described in clauses (a) through (c) of the
definition thereof) or to any Negative Pledge; and (ii) the Borrower directly, or indirectly
through a Subsidiary, has the right to take the following actions without the need to obtain the
consent of any Person: (x) sell, transfer or otherwise dispose of such asset and (y) to create a
Lien on such asset as security for Debt of the Borrower or such Guarantor, as applicable; (d) if
such asset is owned by a Subsidiary or Unconsolidated Affiliate which is not a Guarantor (i) the
Borrower directly, or indirectly through other Subsidiaries, owns at least 51.0% of all outstanding
Equity Interests of such Person; and (ii) such Person is not an obligor with respect to any Debt
(other than unsecured Debt of the type set forth in clauses (c) and (d) of the definition of the
term Debt), provided however, assets held by a “qualified intermediary” in connection with the sale
of a property will not be subject to (i) and (ii) in this clause (d); and (e) in the case of a
Property, such Property is free of all structural defects or major architectural deficiencies (if
developed), title defects, environmental conditions or other adverse matters which, individually or
collectively, materially impair the value of such Property.



“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.




“Wells Fargo” means Wells Fargo Bank, National Association, and its successors and assigns.



“Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the
Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at
the time directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person.



“Withdrawal Liability” means any liability as a result of a complete or partial withdrawal
from a Multiemployer Plan as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 


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Section 1.2. General; References to Pacific Time.



Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP as in effect as of the Agreement Date. Notwithstanding the
preceding sentence, the calculation of liabilities shall not include any fair value adjustments to
the carrying value of liabilities to record such liabilities at fair value pursuant to electing the
fair value option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value
Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to
elect fair value option for financial liabilities. Accordingly, the amount of liabilities shall be
the historical cost basis, which generally is the contractual amount owed adjusted for amortization
or accretion of any premium or discount. References in this Agreement to “Sections”, “Articles”,
“Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto
unless otherwise indicated. References in this Agreement to any document, instrument or agreement
(a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof, to the extent
permitted hereby and (c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated or otherwise modified from time to time to
the extent not otherwise stated herein or prohibited hereby and in effect at any given time.
Wherever from the context it appears appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Unless explicitly set forth to
the contrary, a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of
such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the
Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless
otherwise indicated, all references to time are references to Pacific time.



Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.



When determining compliance by the Borrower with any financial covenant contained in any of
the Loan Documents only the Ownership Share of the Borrower of the financial attributes of a
Subsidiary that is not a Wholly Owned Subsidiary shall be included.



Article II. Credit Facility




Section 2.1. Revolving Loans.



(a) Making of Revolving Loans. Subject to the terms and conditions set forth in this
Agreement, including without limitation, Section 2.15., each Lender severally and not jointly
agrees to make Revolving Loans to the Borrower during the period from and including the Effective
Date to but excluding the Termination Date, in an aggregate principal amount at any one time
outstanding up to, but not exceeding, such Lender’s Commitment. Each borrowing of Base Rate Loans
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess
thereof. Each borrowing and Continuation under Section 2.9. of, and each Conversion under Section
2.10. of Base Rate Loans into, LIBOR Loans shall be in an aggregate minimum of $1,000,000 and
integral multiples of $500,000. Notwithstanding the immediately preceding two sentences but
subject to Section 2.15., a borrowing of Revolving Loans may be in the aggregate amount of the
unused Commitments. Within the foregoing limits and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.



(b) Requests for Revolving Loans. Not later than 9:00 a.m. Pacific time at least one
(1) Business Day prior to a borrowing of Revolving Loans that are to be Base Rate Loans and not
later than 9:00 a.m. Pacific time at least three (3) Business Days prior to a borrowing of
Revolving Loans that are to be LIBOR Loans, the Borrower shall deliver to the Administrative Agent
a Notice of Borrowing. Each Notice of Borrowing shall specify the aggregate principal amount of
the Revolving Loans to be borrowed, the date


 


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 such Revolving Loans are to be borrowed (which must be
a Business Day), the use of the proceeds of such Revolving Loans, the Type of the requested Revolving Loans, and if such Revolving
Loans are to be LIBOR Loans, the initial Interest Period for such Revolving Loans. Each Notice of
Borrowing shall be irrevocable once given and binding on the Borrower. Prior to delivering a
Notice of Borrowing, the Borrower may (without specifying whether a Revolving Loan will be a Base
Rate Loan or a LIBOR Loan) request that the Administrative Agent provide the Borrower with the most
recent LIBOR available to the Administrative Agent. The Administrative Agent shall provide such
quoted rate to the Borrower on the date of such request or as soon as possible thereafter.



(c) Funding of Revolving Loans. Promptly after receipt of a Notice of Borrowing under
the immediately preceding subsection (b), the Administrative Agent shall notify each Lender of the
proposed borrowing. Each Lender shall deposit an amount equal to the Revolving Loan to be made by
such Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately
available funds not later than 9:00 a.m. Pacific time on the date of such proposed Revolving Loans.
Subject to fulfillment of all applicable conditions set forth herein, the Administrative Agent
shall make available to the Borrower in the account specified in the Transfer Authorizer
Designation Form, not later than 12:00 noon Pacific time on the date of the requested borrowing of
Revolving Loans, the proceeds of such amounts received by the Administrative Agent.



(d) Assumptions Regarding Funding by Lenders. With respect to Revolving Loans to be
made after the Effective Date, unless the Administrative Agent shall have been notified by any
Lender that such Lender will not make available to the Administrative Agent a Revolving Loan to be
made by such Lender in connection with any borrowing, the Administrative Agent may assume that such
Lender will make the proceeds of such Revolving Loan available to the Administrative Agent in
accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower the amount of such Revolving Loan to
be provided by such Lender. In such event, if such Lender does not make available to the
Administrative Agent the proceeds of such Revolving Loan, then such Lender and the Borrower
severally agree to pay to the Administrative Agent on demand the amount of such Revolving Loan with
interest thereon, for each day from and including the date such Revolving Loan is made available to
the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a
payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation and
(ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans. If the Borrower and such Lender shall pay the amount of such interest to the Administrative
Agent for the same or overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays to
the Administrative Agent the amount of such Revolving Loan, the amount so paid shall constitute
such Lender’s Revolving Loan included in the borrowing. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a Lender that shall have failed to
make available the proceeds of a Revolving Loan to be made by such Lender.



Section 2.2. Bid Rate Loans.



(a) Bid Rate Loans. At any time during the period from the Effective Date to but
excluding the Termination Date, and so long as the Borrower continues to maintain an Investment
Grade Rating, the Borrower may, as set forth in this Section, request the Revolving Lenders to make
offers to make Bid Rate Loans to the Borrower in Dollars. The Revolving Lenders may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section.


 


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(b) Requests for Bid Rate Loans. When the Borrower wishes to request from the
Revolving Lenders offers to make Bid Rate Loans, it shall give the Administrative Agent notice (a
“Bid Rate Quote Request”) so as to be received no later than 9:00 a.m. Pacific time on (x) the
Business Day immediately preceding the date of borrowing proposed therein, in the case of an
Absolute Rate Auction and (y) the date four (4) Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction. The Administrative Agent shall deliver to each
Revolving Lender a copy of each Bid Rate Quote Request promptly upon receipt thereof by the
Administrative Agent. The Borrower may request offers to make Bid Rate Loans for up to 3 different
Interest Periods in any one Bid Rate Quote Request; provided that if granted each separate Interest
Period shall be deemed to be a separate borrowing (a “Bid Rate Borrowing”). Each Bid Rate Quote
Request shall be substantially in the form of Exhibit L and shall specify as to each Bid Rate
Borrowing all of the following:




(i) the proposed date of such Bid Rate Borrowing, which shall be a Business Day;




(ii) the aggregate amount of such Bid Rate Borrowing which shall be in a minimum amount
of $1,000,000 and integral multiples of $500,000 in excess thereof which shall not cause any
of the limits specified in Section 2.15. to be violated;




(iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute Rate
Loans; and




(iv) the duration of the Interest Period applicable thereto, which shall not extend
beyond the Termination Date.



The Borrower shall not deliver any Bid Rate Quote Request within five Business Days of the giving
of any other Bid Rate Quote Request and the Borrower shall not deliver more than three Bid Rate
Quote Requests in any calendar month.




(c) Bid Rate Quotes.




(i) Each Revolving Lender may submit one or more Bid Rate Quotes, each containing an
offer to make a Bid Rate Loan in response to any Bid Rate Quote Request; provided that, if
the Borrower’s request under Section 2.2.(b) specified more than one Interest Period, such
Revolving Lender may make a single submission containing only one Bid Rate Quote for each
such Interest Period. Each Bid Rate Quote must be submitted to the Administrative Agent not
later than 8:30 a.m. Pacific time (x) on the proposed date of borrowing, in the case of an
Absolute Rate Auction and (y) on the date three (3) Business Days prior to the proposed date
of borrowing, in the case of a LIBOR Auction, provided that the Revolving Lender then acting
as the Administrative Agent may submit a Bid Rate Quote only if it notifies the Borrower of
the terms of the offer contained therein not later than 30 minutes prior to the latest time
by which the Revolving Lenders must submit applicable Bid Rate Quotes. Any Bid Rate Quote
so made shall be irrevocable except with the consent of the Administrative Agent given at
the request of the Borrower. Such Bid Rate Loans may be funded by a Revolving Lender’s
Designated Lender (if any) as provided in Section 12.5.(d); however, such Revolving Lender
shall not be required to specify in its Bid Rate Quote whether such Bid Rate Loan will be
funded by such Designated Lender.




(ii) Each Bid Rate Quote shall be substantially in the form of Exhibit M and shall
specify:




(A) the proposed date of borrowing and the Interest Period therefor;


 


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(B) the principal amount of the Bid Rate Loan for which each such offer is
being made; provided that the aggregate principal amount of all Bid Rate Loans for
which a Revolving Lender submits Bid Rate Quotes (x) may be greater or less than the
Commitment of such Revolving Lender but (y) shall not exceed the principal amount of
the Bid Rate Borrowing for a particular Interest Period for which offers were
requested; provided further that any Bid Rate Quote shall be in a minimum amount of
$1,000,000 and integral multiples of $500,000 in excess thereof;




(C) in the case of an Absolute Rate Auction, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/1,000th of 1%) offered for each
such Absolute Rate Loan (the “Absolute Rate”);




(D) in the case of a LIBOR Auction, the margin above or below applicable LIBOR
(the “LIBOR Margin”) offered for each such LIBOR Margin Loan, expressed as a
percentage (rounded upwards, if necessary, to the nearest 1/1,000th of 1%) to be
added to (or subtracted from) the applicable LIBOR; and




(E) the identity of the quoting Revolving Lender.




Unless otherwise agreed by the Administrative Agent and the Borrower, no Bid Rate Quote
shall contain qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Bid Rate Quote Request and, in particular, no
Bid Rate Quote may be conditioned upon acceptance by the Borrower of all (or some specified
minimum) of the principal amount of the Bid Rate Loan for which such Bid Rate Quote is being
made.



(d) Notification by Administrative Agent. The Administrative Agent shall, as promptly
as practicable after the Bid Rate Quotes are submitted (but in any event not later than 9:30 a.m.
Pacific time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction or (y)
on the date three (3) Business Days prior to the proposed date of borrowing, in the case of a LIBOR
Auction), notify the Borrower of the terms (i) of any Bid Rate Quote submitted by a Revolving
Lender that is in accordance with Section 2.2.(c) and (ii) of any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted by such Revolving
Lender with respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall
be disregarded by the Administrative Agent unless such subsequent Bid Rate Quote is submitted
solely to correct a manifest error in such former Bid Rate Quote. The Administrative Agent’s
notice to the Borrower shall specify (A) the aggregate principal amount of the Bid Rate Borrowing
for which offers have been received and (B) the principal amounts and Absolute Rates or LIBOR
Margins, as applicable, so offered by each Revolving Lender (identifying the Revolving Lender that
made such Bid Rate Quote).




(e) Acceptance by Borrower.




(i) Not later than 10:30 a.m. Pacific time (x) on the proposed date of borrowing, in
the case of an Absolute Rate Auction and (y) on the date three (3) Business Days prior to
the proposed date of borrowing, in the case of a LIBOR Auction, the Borrower shall notify
the Administrative Agent of its acceptance or nonacceptance of the Bid Rate Quotes so
notified to it pursuant to Section 2.2.(d). which notice shall be in the form of Exhibit N.
In the case of acceptance, such notice shall specify the aggregate principal amount of Bid
Rate Quotes for each Interest Period that are accepted. The failure of the Borrower to give
such notice by such time shall constitute nonacceptance. The Borrower may accept any Bid
Rate Quote in whole or in part; provided that:




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


 


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(B) the aggregate principal amount of each Bid Rate Borrowing shall comply with
the provisions of Section 2.2.(b)(ii) and together with all other Bid Rate Loans
then outstanding shall not cause the limits specified in Section 2.15. to be
violated;




(C) acceptance of Bid Rate Quotes may be made only in ascending order of
Absolute Rates or LIBOR Margins, as applicable, in each case beginning with the
lowest rate so offered;




(D) any acceptance in part by the Borrower shall be in a minimum amount of
$1,000,000 and integral multiples of $500,000 in excess thereof; and




(E) the Borrower may not accept any Bid Rate Quote that fails to comply with
Section 2.2.(c) or otherwise fails to comply with the requirements of this
Agreement.




(ii) If Bid Rate Quotes are made by two or more Revolving Lenders with the same
Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate principal amount
than the amount in respect of which Bid Rate Quotes are permitted to be accepted for the
related Interest Period, the principal amount of Bid Rate Loans in respect of which such Bid
Rate Quotes are accepted shall be allocated by the Administrative Agent among such
Revolving Lenders in proportion to the aggregate principal amount of such Bid Rate Quotes.
Determinations by the Administrative Agent of the amounts of Bid Rate Loans shall be
conclusive in the absence of manifest error.



(f) Obligation to Make Bid Rate Loans. The Administrative Agent shall promptly (and
in any event not later than (x) 11:30 a.m. Pacific time on the proposed date of borrowing of
Absolute Rate Loans and (y) on the date three (3) Business Days prior to the proposed date of
borrowing of LIBOR Margin Loans) notify each Revolving Lender as to whose Bid Rate Quote has been
accepted and the amount and rate thereof. A Revolving Lender who is notified that it has been
selected to make a Bid Rate Loan may designate its Designated Lender (if any) to fund such Bid Rate
Loan on its behalf, as described in Section 12.5.(d). Any Designated Lender which funds a Bid Rate
Loan shall on and after the time of such funding become the obligee in respect of such Bid Rate
Loan and be entitled to receive payment thereof when due. No Revolving Lender shall be relieved of
its obligation to fund a Bid Rate Loan, and no Designated Lender shall assume such obligation,
prior to the time the applicable Bid Rate Loan is funded. Any Revolving Lender whose offer to make
any Bid Rate Loan has been accepted shall, not later than 12:30 p.m. Pacific time on the date
specified for the making of such Loan, make the amount of such Loan available to the Administrative
Agent at its Principal Office in immediately available funds, for the account of the Borrower. The
amount so received by the Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower not later than 1:30 p.m. Pacific time on such date by
depositing the same, in immediately available funds, in an account of the Borrower designated by
the Borrower.



(g) No Effect on Commitment. Except for the purpose and to the extent expressly
stated in Section 2.12. and 2.15., the amount of any Bid Rate Loan made by any Revolving Lender
shall not constitute a utilization of such Revolving Lender’s Commitment.


 


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Section 2.3. Letters of Credit.



(a) Letters of Credit. Subject to the terms and conditions of this Agreement,
including without limitation, Section 2.15., the Issuing Bank, on behalf of the Lenders, agrees to
issue for the account of the Borrower during the period from and including the Effective Date to,
but excluding, the date thirty (30) days prior to the Termination Date, one or more standby letters
of credit (each a “Letter of Credit”) up to a maximum aggregate Stated Amount at any one time
outstanding not to exceed $100,000,000.00 as such amount may be reduced from time to time in
accordance with the terms hereof (the “L/C Commitment Amount”). The parties hereto agree that the
Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes of this
Agreement.



(b) Terms of Letters of Credit. At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject
to approval by the Issuing Bank and the Borrower. Notwithstanding the foregoing, in no event may
(i) the expiration date of any Letter of Credit extend beyond the date that is thirty (30) days
prior to the Termination Date, or (ii) any Letter of Credit have an initial duration in excess of
one year; provided, however, a Letter of Credit may contain a provision providing for the automatic
extension of the expiration date in the absence of a notice of non-renewal from the Issuing Bank
but in no event shall any such provision permit the extension of the expiration date of such Letter
of Credit beyond the date that is thirty (30) days prior to the Termination Date; provided,
further, that a Letter of Credit that contains an automatic extension provision may provide for an
extension of its expiration date to a date not more than one year beyond the Termination Date so
long as the Borrower delivers to the Administrative Agent for the benefit of the Lenders no later
than 20 days prior to the Termination Date (A) either (1) cash collateral for such Letter of Credit
on terms acceptable to the Administrative Agent, (2) a backup letter of credit having terms
acceptable to the Administrative Agent and issued by a domestic financial institution having a
rating assigned by a Rating Agency to its senior unsecured long term indebtedness of AA/Aa2 or (3)
other collateral satisfactory to the Administrative Agent and all of the Lenders and (B) a
reimbursement agreement in form and substance acceptable to the Administrative Agent and such other
documents requested by the Administrative Agent evidencing the Borrower’s reimbursement obligations
in respect of such Letter of Credit. The initial Stated Amount of each Letter of Credit shall be
at least $100,000 (or such lesser amount as may be acceptable to the Issuing Bank, the
Administrative Agent and the Borrower).



(c) Requests for Issuance of Letters of Credit. The Borrower shall give the Issuing
Bank and the Administrative Agent written notice at least five (5) Business Days prior to the
requested date of issuance of a Letter of Credit, such notice to describe in reasonable detail the
proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed
to be supported by such Letter of Credit, and in any event shall set forth with respect to such
Letter of Credit the proposed (i) initial Stated Amount, (ii) beneficiary, and (iii) expiration
date. The Borrower shall also execute and deliver such customary applications and agreements for
standby letters of credit, and other forms as requested from time to time by the Issuing Bank.
Provided the Borrower has given the notice prescribed by the first sentence of this subsection and
delivered such applications and agreements referred to in the preceding sentence, subject to the
other terms and conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article 5.2., the Issuing Bank shall issue the requested Letter
of Credit on the requested date of issuance for the benefit of the stipulated beneficiary but in no
event prior to the date five (5) Business Days following the date after which the Issuing Bank has
received all of the items required to be delivered to it under this subsection. The Issuing Bank
shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict
with, or cause the Issuing Bank or any Lender to exceed any limits imposed by, any Applicable Law.
References herein to “issue” and derivations thereof with respect to Letters of Credit shall also
include extensions or modifications of any outstanding Letters of Credit, unless the context
otherwise requires. Upon the written request of the
Borrower, the Issuing Bank shall deliver to the Borrower a copy of each issued Letter of Credit
within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of
Credit Document is inconsistent with a term of any Loan Document, the term of such Loan Document
shall control.


 


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(d) Reimbursement Obligations. Upon receipt by the Issuing Bank from the beneficiary
of a Letter of Credit of any demand for payment under such Letter of Credit, the Issuing Bank shall
promptly notify the Borrower and the Administrative Agent of the amount to be paid by the Issuing
Bank as a result of such demand and the date on which payment is to be made by the Issuing Bank to
such beneficiary in respect of such demand; provided, however, that the Issuing Bank’s failure to
give, or delay in giving, such notice shall not discharge the Borrower in any respect from the
applicable Reimbursement Obligation. The Borrower hereby absolutely, unconditionally and
irrevocably agrees to pay and reimburse the Issuing Bank for the amount of each demand for payment
under such Letter of Credit at or prior to the date on which payment is to be made by the Issuing
Bank to the beneficiary thereunder, without presentment, demand, protest or other formalities of
any kind. Upon receipt by the Issuing Bank of any payment in respect of any Reimbursement
Obligation, the Issuing Bank shall promptly pay to each Lender that has acquired a participation
therein under the second sentence of the immediately following subsection (i) such Lender’s
Commitment Percentage of such payment.



(e) Manner of Reimbursement. Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrower shall advise the Administrative Agent and the
Issuing Bank whether or not the Borrower intends to borrow hereunder to finance its obligation to
reimburse the Issuing Bank for the amount of the related demand for payment and, if it does, the
Borrower shall submit a timely request for such borrowing as provided in the applicable provisions
of this Agreement. If the Borrower fails to so advise the Administrative Agent and the Issuing
Bank, or if the Borrower fails to reimburse the Issuing Bank for a demand for payment under a
Letter of Credit by the date of such payment, the failure of which the Issuing Bank shall promptly
notify the Administrative Agent, then (i) if the applicable conditions contained in Article V.
would permit the making of Revolving Loans, the Borrower shall be deemed to have requested a
borrowing of Revolving Loans (which shall be Base Rate Loans) in an amount equal to the unpaid
Reimbursement Obligation and the Administrative Agent shall give each Revolving Lender prompt
notice of the amount of the Revolving Loan to be made available to the Administrative Agent not
later than 10:00 a.m. Pacific time and (ii) if such conditions would not permit the making of
Revolving Loans, the provisions of subsection (j) of this Section shall apply. The limitations set
forth in the second sentence of Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans
under this subsection.



(f) Effect of Letters of Credit on Commitments. Upon the issuance by the Issuing Bank
of any Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the
Commitment of each Lender shall be deemed to be utilized for all purposes of this Agreement in an
amount equal to the product of (i) such Lender’s Commitment Percentage and (ii) the sum of (A) the
Stated Amount of such Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.



(g) Issuing Bank’s Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligations. In examining documents presented in connection with drawings under
Letters of Credit and making payments under such Letters of Credit against such documents, the
Issuing Bank shall only be required to use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of credit in which it has
not sold participations and making payments under such letters of credit. The Borrower assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing,
none of the Issuing Bank, Administrative Agent nor any of the Lenders shall be responsible for, and
the Borrower’s obligations in respect of Letters of Credit


 


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shall not be affected in any manner by,
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if such document should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
the validity or sufficiency of any instrument transferring or assigning or purporting to transfer
or assign any 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; (iii) failure of the
beneficiary of any Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or not
they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any Letter of
Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of
Credit, or of the proceeds of any drawing under any Letter of Credit; or (viii) any consequences
arising from causes beyond the control of the Issuing Bank, Administrative Agent or the Lenders.
None of the above shall affect, impair or prevent the vesting of any of the Issuing Bank’s or
Administrative Agent’s rights or powers hereunder. Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Letter of Credit, if taken or omitted in the absence
of gross negligence or willful misconduct (as admitted by the Issuing Bank in writing or determined
by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against
the Issuing Bank any liability to the Borrower, the Administrative Agent or any Lender. In this
connection, the obligation of the Borrower to reimburse the Issuing Bank for any drawing made under
any Letter of Credit, and to repay any Revolving Loan made pursuant to the second sentence of the
immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement and any other applicable Letter of
Credit Document under all circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any
term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against the Issuing Bank, the Administrative Agent or
any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the Borrower, the Issuing
Bank, the Administrative Agent, any Lender or any other Person; (E) any demand, statement or any
other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein or made in connection therewith being untrue
or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit or of the proceeds of any drawing under such Letter of Credit;
(G) payment by the Issuing Bank under any Letter of Credit against presentation of a draft or
certificate which does not strictly comply with the terms of such Letter of Credit; and (H) any
other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of
this Section, constitute a legal or equitable defense to or discharge of the Borrower’s
Reimbursement Obligations. Notwithstanding anything to the contrary contained in this Section or
Section 12.9., but not in limitation of the Borrower’s unconditional obligation to reimburse the
Issuing Bank for any drawing made under a Letter of Credit as provided in this Section and to repay
any Revolving Loan made pursuant to the second sentence of the immediately preceding subsection
(e), the Borrower shall have no obligation to indemnify the Administrative Agent, the Issuing Bank
or any Lender in respect of any liability incurred by the Administrative Agent, the Issuing Bank or
such Lender arising solely out of the gross negligence or willful misconduct of the Administrative
Agent, the Issuing Bank or such Lender in respect of a Letter of Credit as determined by a court of
competent jurisdiction in a final, non-appealable judgment. Except as otherwise provided in this
Section, nothing in this Section shall affect any rights the Borrower may have with respect to the
gross negligence or willful misconduct of the Administrative Agent, the Issuing Bank or any Lender
with respect to any Letter of Credit.


 


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(h) Amendments, Etc. The issuance by the Issuing Bank of any amendment, supplement or
other modification to any Letter of Credit shall be subject to the same conditions applicable under
this Agreement to the issuance of new Letters of Credit (including, without limitation, that the
request therefor be made through the Issuing Bank), and no such amendment, supplement or other
modification shall be issued unless either (i) the respective Letter of Credit affected thereby
would have complied with such conditions had it originally been issued hereunder in such amended,
supplemented or modified form or (ii) the Administrative Agent and Requisite Revolving Lenders (or
all of the Revolving Lenders if required by Section 12.6.) shall have consented thereto. In
connection with any such amendment, supplement or other modification, the Borrower shall pay the
fees, if any, payable under the last sentence of Section 3.5.(c).



(i) Lenders’ Participation in Letters of Credit. Immediately upon the issuance by the
Issuing Bank of any Letter of Credit each Lender shall be deemed to have absolutely, irrevocably
and unconditionally purchased and received from the Issuing Bank, without recourse or warranty, an
undivided interest and participation to the extent of such Lender’s Commitment Percentage of the
liability of the Issuing Bank with respect to such Letter of Credit and each Lender thereby shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall
be unconditionally obligated to the Issuing Bank to pay and discharge when due, such Lender’s
Commitment Percentage of the Issuing Bank’s liability under such Letter of Credit. In addition,
upon the making of each payment by a Lender to the Administrative Agent for the account of the
Issuing Bank in respect of any Letter of Credit pursuant to the immediately following subsection
(j), such Lender shall, automatically and without any further action on the part of the Issuing
Bank, Administrative Agent or such Lender, acquire (i) a participation in an amount equal to such
payment in the Reimbursement Obligation owing to the Issuing Bank by the Borrower in respect of
such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s Commitment
Percentage in any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Issuing Bank pursuant to the second
and the last sentences of Section 3.5.(c)).



(j) Payment Obligation of Lenders. Each Lender severally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, on demand in immediately available funds
in Dollars the amount of such Lender’s Commitment Percentage of each drawing paid by the Issuing
Bank under each Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to the immediately preceding subsection (d); provided, however, that in respect of any
drawing under any Letter of Credit, the maximum amount that any Lender shall be required to fund,
whether as a Revolving Loan or as a participation, shall not exceed such Lender’s Commitment
Percentage of such drawing. If the notice referenced in the second sentence of Section 2.3.(e) is
received by a Lender not later than 9:00 a.m. Pacific time, then such Lender shall make such
payment available to the Administrative Agent not later than 12:00 p.m. Pacific time on the date of
demand therefor; otherwise, such payment shall be made available to the Administrative Agent not
later than 11:00 a.m. Pacific time on the next succeeding Business Day. Each Lender’s obligation
to make such payments to the Administrative Agent under this subsection, and the Administrative
Agent’s right to receive the same for the account of the Issuing Bank, shall be absolute,
irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever,
including without limitation, (i) the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of the Borrower or any other Loan Party, (iii) the
existence of any Default or Event of Default, including any Event of Default described in Section
10.1.(e) or (f) or (iv) the termination of the Commitments. Each such payment to the
Administrative Agent for the account of the Issuing Bank shall be made without any offset,
abatement, withholding or deduction whatsoever.


 


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(k) Information to Lenders. Promptly following any change in Letters of Credit
outstanding, the Issuing Bank shall deliver to the Administrative Agent, who shall promptly deliver
the same to each Lender and the Borrower, a notice describing the aggregate amount of all Letters
of Credit outstanding at
such time. Upon the request of any Lender from time to time, the Issuing Bank shall deliver any
other information reasonably requested by such Lender with respect to each Letter of Credit then
outstanding. Other than as set forth in this subsection, the Issuing Bank shall have no duty to
notify the Lenders regarding the issuance or other matters regarding Letters of Credit issued
hereunder. The failure of the Issuing Bank to perform its requirements under this subsection shall
not relieve any Lender from its obligations under the immediately preceding subsection (j).



Section 2.4. Swingline Loans.



(a) Swingline Loans. Subject to the terms and conditions hereof, including without
limitation Section 2.15., the Swingline Lender agrees to make Swingline Loans to the Borrower,
during the period from the Effective Date to but excluding the Swingline Maturity Date, in an
aggregate principal amount at any one time outstanding up to, but not exceeding, the greater of (i)
$100,000,000.00, and (ii) an amount equal to 10% of the aggregate Commitments, as such amount may
be increased or reduced from time to time in accordance with the terms hereof. If at any time the
aggregate principal amount of the Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrower shall immediately pay the Administrative Agent for
the account of the Swingline Lender the amount of such excess. Subject to the terms and conditions
of this Agreement, the Borrower may borrow, repay and reborrow Swingline Loans hereunder.



(b) Procedure for Borrowing Swingline Loans. The Borrower shall give the
Administrative Agent and the Swingline Lender notice pursuant to a Notice of Swingline Borrowing or
telephonic notice of each borrowing of a Swingline Loan. Each Notice of Swingline Borrowing shall
be delivered to the Swingline Lender no later than 9:00 a.m. Pacific time on the proposed date of
such borrowing. Any telephonic notice shall include all information to be specified in a written
Notice of Swingline Borrowing and shall be promptly confirmed in writing by the Borrower pursuant
to a Notice of Swingline Borrowing sent to the Swingline Lender by telecopy on the same day of the
giving of such telephonic notice. Not later than 11:00 a.m. Pacific time on the date of the
requested Swingline Loan and subject to satisfaction of the applicable conditions set forth in
Article 5.2. for such borrowing, the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available funds, at the account specified by
the Borrower in the Notice of Swingline Borrowing.



(c) Interest. Swingline Loans shall bear interest at a per annum rate equal to the
Base Rate as in effect from time to time plus the Applicable Margin or at such other rate or rates
as the Borrower and the Swingline Lender may agree from time to time in writing. Interest on
Swingline Loans is solely for the account of the Swingline Lender (except to the extent a Revolving
Lender acquires a participating interest in a Swingline Loan pursuant to the immediately following
subsection (e)). All accrued and unpaid interest on Swingline Loans shall be payable on the dates
and in the manner provided in Section 2.5. with respect to interest on Base Rate Loans (except as
the Swingline Lender and the Borrower may otherwise agree in writing in connection with any
particular Swingline Loan).



(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the minimum amount
of $1,000,000 and integral multiples of $500,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan must be in
integral multiples of $100,000 or the aggregate principal amount of all outstanding Swingline Loans
(or such other minimum amounts upon which the Swingline Lender and the Borrower may agree) and in
connection with any such prepayment, the Borrower must give the Swingline Lender and the
Administrative Agent prior written notice thereof no later than 10:00 a.m. Pacific time on the day
prior to the date of such prepayment. The Swingline Loans shall, in addition to this Agreement, be
evidenced by the Swingline Note.


 


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(e) Repayment and Participations of Swingline Loans. The Borrower agrees to repay
each Swingline Loan within one Business Day of demand therefor by the Swingline Lender and, in any
event, within thirty (30) Business Days after the date such Swingline Loan was made; provided, that
the proceeds of a Swingline Loan may not be used to pay a Swingline Loan. Notwithstanding the
foregoing, the Borrower shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Swingline Loans on the Swingline Maturity Date (or such earlier date as the
Swingline Lender and the Borrower may agree in writing). In lieu of demanding repayment of any
outstanding Swingline Loan from the Borrower, the Swingline Lender may, on behalf of the Borrower
(which hereby irrevocably directs the Swingline Lender to act on its behalf), request a borrowing
of Revolving Loans that are Base Rate Loans from the Lenders in an amount equal to the principal
balance of such Swingline Loan. The amount limitations contained in the second sentence of Section
2.1.(a) shall not apply to any borrowing of such Revolving Loans made pursuant to this subsection.
The Swingline Lender shall give notice to the Administrative Agent of any such borrowing of
Revolving Loans not later than 9:00 a.m. Pacific time at least one Business Day prior to the
proposed date of such borrowing. Promptly after receipt of such notice of borrowing of Revolving
Loans from the Swingline Lender under the immediately preceding sentence, the Administrative Agent
shall notify each Lender of the proposed borrowing. Not later than 9:00 a.m. Pacific time on the
proposed date of such borrowing, each Lender will make available to the Administrative Agent at the
Principal Office for the account of the Swingline Lender, in immediately available funds, the
proceeds of the Revolving Loan to be made by such Lender. The Administrative Agent shall pay the
proceeds of such Revolving Loans to the Swingline Lender, which shall apply such proceeds to repay
such Swingline Loan. If the Revolving Lenders are prohibited from making Revolving Loans required
to be made under this subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Defaults or Events of Default described in Sections 10.1.(e) or (f)), each
Revolving Lender shall purchase from the Swingline Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender’s Commitment Percentage of such
Swingline Loan, by directly purchasing a participation in such Swingline Loan in such amount and
paying the proceeds thereof to the Administrative Agent for the account of the Swingline Lender in
Dollars and in immediately available funds. A Lender’s obligation to purchase such a participation
in a Swingline Loan shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of setoff, counterclaim,
recoupment, defense or other right which such Lender or any other Person may have or claim against
the Administrative Agent, the Swingline Lender or any other Person whatsoever, (ii) the occurrence
or continuation of a Default or Event of Default (including without limitation, any of the Defaults
or Events of Default described in Sections 10.1. (e) or (f)), or the termination of any Lender’s
Commitment, (iii) the existence (or alleged existence) of an event or condition which has had or
could have a Material Adverse Effect, (iv) any breach of any Loan Document by the Administrative
Agent, any Lender, the Borrower or any other Loan Party, or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact
made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to
recover such amount on demand from such Lender, together with accrued interest thereon for each day
from the date of demand thereof, at the Federal Funds Rate. If such Lender does not pay such
amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender
makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all purposes of the Loan
Documents (other than those provisions requiring the other Lenders to purchase a participation
therein). Further, such Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Revolving Loans, and any other amounts due it hereunder, to the
Swingline Lender to fund Swingline Loans in the amount of the participation in Swingline Loans that
such Lender failed to purchase pursuant to this Section until such amount has been purchased (as a
result of such assignment or otherwise).


 


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Section 2.5. Rates and Payment of Interest on Loans.



(a) Rates. The Borrower promises to pay to the Administrative Agent for the account
of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the
period from and including the date of the making of such Loan to but excluding the date such Loan
shall be paid in full, at the following per annum rates:




(i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in
effect from time to time), plus the Applicable Margin for Base Rate Loans;




(ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for such Loan for the
Interest Period therefor, plus the Applicable Margin for LIBOR Loans;




(iii) if such Loan is an Absolute Rate Loan, at the Absolute Rate for such Loan for the
Interest Period therefor quoted by the Lender making such Loan in accordance with Section
2.2.; and




(iv) if such Loan is a LIBOR Margin Loan, at LIBOR for such Loan for the Interest
Period therefor plus the LIBOR Margin quoted by the Lender making such Loan in accordance
with Section 2.2.



Notwithstanding the foregoing, while an Event of Default exists, the Borrower shall pay to the
Administrative Agent for the account of each Lender and the Issuing Bank, as the case may be,
interest at the Post-Default Rate on the outstanding principal amount of any Loan made by such
Lender, on all Reimbursement Obligations and on any other amount payable by the Borrower hereunder
or under the Notes held by such Lender to or for the account of such Lender (including without
limitation, accrued but unpaid interest to the extent permitted under Applicable Law).



(b) Payment of Interest. All accrued and unpaid interest on the outstanding principal
amount of each Loan shall be payable (i) monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective Date and (ii) on any
date on which the principal balance of such Loan is due and payable in full (whether at maturity,
due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable from
time to time on demand. All determinations by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding on the Lenders and the Borrower for all purposes, absent
manifest error.



(c) Borrower Information Used to Determine Applicable Interest Rates. The parties
understand that the applicable interest rate for the Obligations and certain fees set forth herein
may be determined and/or adjusted from time to time based upon the Borrower’s Credit Rating (the
“Borrower Information”). If it is subsequently determined that any such Borrower Information was
incorrect (for whatever reason) at the time it was delivered to the Administrative Agent, and if
the applicable interest rate or fees calculated for any period were lower than they should have
been had the correct information been timely provided, then, such interest rate and such fees for
such period shall be automatically recalculated using correct Borrower Information. The
Administrative Agent shall promptly notify the Borrower in writing of any additional interest and
fees due because of such recalculation, and the Borrower shall pay such additional interest or fees
due to the Administrative Agent, for the account of each Lender, within five (5) Business Days of
receipt of such written notice. Any recalculation of interest or fees required by this provision
shall survive the termination of this Agreement, and this provision shall not in any way limit any
of the Administrative Agent’s, the Issuing Bank’s, or any Lender’s other rights under this
Agreement.


 


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Section 2.6. Number of Interest Periods.



There may be no more than 10 different Interest Periods for LIBOR Loans and LIBOR Margin
Loans, collectively outstanding at the same time.



Section 2.7. Repayment of Loans.



(a) Revolving Loans. The Borrower shall repay the entire outstanding principal amount
of, and all accrued but unpaid interest on, the Revolving Loans on the Termination Date.



(b) Bid Rate Loans. The Borrower shall repay the entire outstanding principal amount
of, and all accrued but unpaid interest on, each Bid Rate Loan on the last day of the Interest
Period of such Bid Rate Loan.



Section 2.8. Prepayments.



(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan (other than a
Bid Rate Loan) at any time without premium or penalty. A Bid Rate Loan may only be prepaid with
the prior written consent of the Lender holding such Bid Rate Loan. The Borrower shall give the
Administrative Agent at least three (3) Business Days prior written notice of the prepayment of any
Loan. Each voluntary prepayment of Loans shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess thereof.




(b) Mandatory.




(i) Commitment Overadvance. If at any time the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and Bid Rate Loans, together with
the aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate amount of
the Commitments, the Borrower shall within one Business Day of demand pay to the
Administrative Agent for the account of the Lenders then holding Commitments (or if the
Commitments have been terminated, then holding outstanding Revolving Loans, Swingline Loans,
Bid Rate Loans and/or Letter of Credit Liabilities), the amount of such excess.




(ii) Bid Rate Facility Overadvance. If at any time the aggregate principal
amount of all outstanding Bid Rate Loans exceeds one-half of the aggregate amount of all
Commitments at such time, then the Borrower shall immediately pay to the Administrative
Agent for the accounts of the applicable Lenders the amount of such excess.




(iii) Application of Mandatory Prepayments. Amounts paid under the preceding
subsections (b)(i) and (b)(ii) shall be applied to pay all amounts of principal outstanding
on the Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2. and
if any Letters of Credit are outstanding at such time, the remainder, if any, shall be
deposited into the Letter of Credit Collateral Account for application to any Reimbursement
Obligations. Amounts paid under the preceding subsection (b)(ii) shall be applied in
accordance with Section 3.2.(g). If the Borrower is required to pay any outstanding LIBOR
Loans or LIBOR Margin Loans by reason of this Section prior to the end of the applicable
Interest Period therefor, the Borrower shall pay all amounts due under Section 4.4.


 


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Section 2.9. Continuation.



So long as no Default or Event of Default exists, the Borrower may on any Business Day, with
respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each Continuation of a LIBOR Loan shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that
amount, and each new Interest Period selected under this Section shall commence on the last day of
the immediately preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Administrative Agent a Notice of Continuation not later than 9:00
a.m. Pacific time on the third Business Day prior to the date of any such Continuation. Such
notice by the Borrower of a Continuation shall be by telecopy, electronic mail or other similar
form of communication in the form of a Notice of Continuation, specifying (a) the proposed date of
such Continuation, (b) the LIBOR Loans and portions thereof subject to such Continuation and (c)
the duration of the selected Interest Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding hereunder. Each Notice of
Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after
receipt of a Notice of Continuation, the Administrative Agent shall notify each Lender of the
proposed Continuation. If the Borrower shall fail to select in a timely manner a new Interest
Period for any LIBOR Loan in accordance with this Section, such Loan will automatically, on the
last day of the current Interest Period therefor, continue as a LIBOR Loan with an Interest Period
of one month; provided, however that if a Default or Event of Default exists, such Loan will
automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate
Loan notwithstanding the first sentence of Section 2.10. or the Borrower’s failure to comply with
any of the terms of such Section.



Section 2.10. Conversion.



The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to
the Administrative Agent by telecopy, electronic mail or other similar form of communication,
Convert all or a portion of a Loan of one Type into a Loan of another Type; provided, however, a
Base Rate Loan may not be Converted into a LIBOR Loan if a Default or Event of Default exists.
Each Conversion of Base Rate Loans into LIBOR Loans shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount. Each such Notice of
Conversion shall be given not later than 9:00 a.m. Pacific time 3 Business Days prior to the date
of any proposed Conversion. Promptly after receipt of a Notice of Conversion, the Administrative
Agent shall notify each Lender of the proposed Conversion. Subject to the restrictions specified
above, each Notice of Conversion shall be by telecopy, electronic mail or other similar form of
communication in the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is
into a LIBOR Loan, the requested duration of the Interest Period of such Loan. Each Notice of
Conversion shall be irrevocable by and binding on the Borrower once given.



Section 2.11. Notes.



(a) Notes. The Revolving Loans made by each Revolving Lender shall, in addition to
this Agreement, also be evidenced by a Revolving Note, payable to the order of such Revolving
Lender in a principal amount equal to the amount of its Commitment as originally in effect and
otherwise duly completed. The Bid Rate Loans made by a Revolving Lender to the Borrower shall, in
addition to this Agreement, also be evidenced by a Bid Rate Note payable to the order of such
Revolving Lender. The Swingline Loans made by the Swingline Lender to the Borrower shall, in
addition to this Agreement, also be evidenced by a Swingline Note payable to the order of the
Swingline Lender.


 


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(b) Records. The date, amount, interest rate, Type and duration of Interest Periods
(if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and such entries shall be
binding on the Borrower absent manifest error; provided, however, that (i) the failure of a Lender
to make any such record shall not affect the obligations of the Borrower under any of the Loan
Documents and (ii) if there is a discrepancy between such records of a Lender and the statements of
accounts maintained by the Administrative Agent pursuant to Section 3.8., in the absence of
manifest error, the statements of account maintained by the Administrative Agent pursuant to
Section 3.8. shall be controlling.



(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i)
written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or
mutilated, and (ii)(A) in the case of loss, theft or destruction, an unsecured agreement of
indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of
mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense
execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or
mutilated Note.



Section 2.12. Voluntary Reductions of the Commitment.



The Borrower shall have the right to terminate or reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include the aggregate
amount of all Letter of Credit Liabilities and the aggregate principal amount of all outstanding
Bid Rate Loans and Swingline Loans) at any time and from time to time without penalty or premium
upon not less than five (5) Business Days prior written notice to the Administrative Agent of each
such termination or reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which in the case of any partial reduction of the Commitments shall not be
less than $10,000,000 and integral multiples of $5,000,000 in excess of that amount in the
aggregate) and shall be irrevocable once given and effective only upon receipt by the
Administrative Agent (“Commitment Reduction Notice”); provided, however, the Borrower may not
reduce the aggregate amount of the Commitments below $200,000,000 unless the Borrower is
terminating the Commitments in full. Promptly after receipt of a Commitment Reduction Notice the
Administrative Agent shall notify each Lender of the proposed termination or Commitment reduction.
The Commitments, once reduced or terminated pursuant to this Section, may not be increased or
reinstated. The Borrower shall pay all interest and fees on the Revolving Loans accrued to the
date of such reduction or termination of the Commitments to the Administrative Agent for the
account of the Revolving Lenders, including but not limited to any applicable compensation due to
each Revolving Lender in accordance with Section 4.4.



Section 2.13. Extension of Termination Date.



The Borrower shall have the right, exercisable one time, to request that the Administrative
Agent and the Revolving Lenders agree to extend the Termination Date by one year. The Borrower may
exercise such right only by executing and delivering to the Administrative Agent at least 90 days
but not more than 180 days prior to the current Termination Date, a written request for such
extension (an “Extension Request”). The Administrative Agent shall notify the Revolving Lenders if
it receives an Extension Request promptly upon receipt thereof. Subject to satisfaction of the
following conditions, the Termination Date shall be extended for one year effective upon receipt by
the Administrative Agent of the Extension Request and payment of the fee referred to in the
following clause (ii): (i) (x) no Default or Event of Default shall exist and (y) the
representations and warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all material respects
(except in the case of a representation or warranty qualified by materiality, in which case such
representation or warranty shall be true and correct in all respects) on and as of the date of such
extension with the same force and effect as if made on and as of such date


 


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 except to the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted under the Loan Documents and (ii) the Borrower shall have paid
the Fees payable under Section 3.5.(e). At any time prior to the effectiveness of any such
extension, upon the Administrative Agent’s request, the Borrower shall deliver to the
Administrative Agent a certificate from a Responsible Officer certifying the matters referred to in
the immediately preceding clauses (i)(x) and (i)(y).



Section 2.14. Expiration of Maturity Date of Letters of Credit Past Termination Date.




If on the date the Commitments are terminated or reduced to zero (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise), there are any Letters of Credit
outstanding hereunder, the Borrower shall, on such date, pay to the Administrative Agent, for its
benefit and the benefit of the Lenders and the Issuing Bank, an amount of money sufficient to cause
the balance of available funds on deposit in the Letter of Credit Collateral Account to equal the
aggregate Stated Amount of such Letters of Credit for deposit into the Letter of Credit Collateral
Account.



Section 2.15. Amount Limitations.



Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall
be required to make a Loan, no Revolving Lender shall make any Bid Rate Loan, the Issuing Bank
shall not be required to issue a Letter of Credit and no reduction of the Commitments pursuant to
Section 2.12. shall take effect, if immediately after the making of such Loan, the issuance of such
Letter of Credit or such reduction in the Commitments:



(a) the aggregate principal amount of all outstanding Revolving Loans, Bid Rate Loans and
Swingline Loans, together with the aggregate amount of all Letter of Credit Liabilities, would
exceed the aggregate amount of the Commitments at such time; or



(b) the aggregate principal amount of all outstanding Bid Rate Loans would exceed 50.0% of the
aggregate amount of the Commitments at such time; or



(c) the aggregate principal amount of all outstanding Loans, together with aggregate amount of
all Letter of Credit Liabilities, would exceed the aggregate amount of the Commitments at such
time.



Section 2.16. Increase in Commitments.



The Borrower shall have the right to request increases in the aggregate amount of the
Commitments by providing written notice to the Administrative Agent, which notice shall be
irrevocable once given; provided, however, that after giving effect to any such
increases the aggregate amount of the Commitments shall not exceed $1,350,000,000.00. Each such
increase in the Commitments must be an aggregate minimum amount of $25,000,000.00 and integral
multiples of $5,000,000.00 in excess thereof. The Administrative Agent, in consultation with the
Borrower, shall manage all aspects of the syndication of such increase in the Commitments,
including decisions as to the selection of the existing Lenders and/or other banks, financial
institutions and other institutional lenders to be approached with respect to such increase and the
allocations of the increase in the Commitments among such existing Lenders and/or other banks,
financial institutions and other institutional lenders. No Lender shall be obligated in any way
whatsoever to increase its Commitment or provide a new Commitment, and any new Lender becoming a
party to this Agreement in connection with any such requested increase must be an Eligible
Assignee. If a new Lender becomes a party to this Agreement, or if any existing Lender is
increasing its Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the
case of an


 


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existing Lender, increases its Commitment) (and as a condition thereto) purchase from the other Lenders its
Commitment Percentage (determined with respect to the Lenders’ respective Commitments and after
giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making
available to the Administrative Agent for the account of such other Lenders, in same day funds, an
amount equal to the sum of (A) the portion of the outstanding principal amount of such Revolving
Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously
made by the other Revolving Lenders under Section 2.3.(j) that have not been repaid, plus
(C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal
amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable,
if any, to such Revolving Lenders under Section 4.4. as a result of the prepayment of any such
Revolving Loans. Effecting the increase of the Commitments under this Section is subject to the
following conditions precedent: (x) no Default or Event of Default shall be in existence on the
effective date of such increase, (y) the representations and warranties made or deemed made by the
Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be
true and correct on the effective date of such increase except to the extent that such
representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct on and as of such earlier date) and
except for changes in factual circumstances specifically and expressly permitted hereunder, and (z)
the Administrative Agent shall have received each of the following, in form and substance
satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative
Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other
necessary action taken by the Borrower to authorize such increase and (B) all corporate or other
necessary action taken by each Guarantor authorizing the guaranty of such increase; and (ii) an
opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent
and the Lenders covering such matters as reasonably requested by the Administrative Agent; and
(iii) new Revolving Notes executed by the Borrower, payable to any new Revolving Lenders and
replacement Revolving Notes executed by the Borrower, payable to any existing Revolving Lenders
increasing their Commitments, in the amount of such Revolving Lender’s Commitment at the time of
the effectiveness of the applicable increase in the aggregate amount of the Commitments. In
connection with any increase in the aggregate amount of the Commitments pursuant to this Section
2.16. any Lender becoming a party hereto shall execute such documents and agreements as the
Administrative Agent may reasonably request.



Section 2.17. Funds Transfer Disbursements.



(a) Generally. The Borrower hereby authorizes the Administrative Agent to disburse
the proceeds of any Loan made by the Lenders or any of their Affiliates pursuant to the Loan
Documents as requested by an authorized representative of the Borrower to any of the accounts
designated in the Transfer Authorizer Designation Form. The Borrower agrees to be bound by any
transfer request: (i) authorized or transmitted by the Borrower; or (ii) made in the Borrower’s
name and accepted by the Administrative Agent in good faith and in compliance with these transfer
instructions, even if not properly authorized by the Borrower. The Borrower further agrees and
acknowledges that the Administrative Agent may rely solely on any bank routing number or
identifying bank account number or name provided by the Borrower to effect a wire or funds transfer
even if the information provided by the Borrower identifies a different bank or account holder than
named by the Borrower. The Administrative Agent is not obligated or required in any way to take
any actions to detect errors in information provided by the Borrower. If the Administrative Agent
takes any actions in an attempt to detect errors in the transmission or content of transfer
requests or takes any actions in an attempt to detect unauthorized funds transfer requests, the
Borrower agrees that no matter how many times the Administrative Agent takes these actions the
Administrative Agent will not in any situation be liable for failing to take or correctly perform
these actions in the future and such actions shall not become any part of the transfer disbursement
procedures authorized under this provision, the Loan Documents, or any agreement between the
Administrative Agent and the Borrower. The Borrower agrees to notify the Administrative Agent of
any errors in the transfer of any funds or of any unauthorized or improperly authorized transfer
requests within fourteen (14) days after the Administrative Agent’s confirmation to the Borrower of
such transfer.


 


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(b) Funds Transfer. The Administrative Agent will, in its sole discretion, determine
the funds transfer system and the means by which each transfer will be made. The Administrative
Agent may delay or refuse to accept a funds transfer request if the transfer would: (i) violate the
terms of this authorization, (ii) require use of a bank unacceptable to the Administrative Agent or
any Lender or prohibited by any Governmental Authority, (iii) cause the Administrative Agent or any
Lender to violate any Federal Reserve or other regulatory risk control program or guideline or (iv)
otherwise cause the Administrative Agent or any Lender to violate any Applicable Law or regulation.



(c) Limitation of Liability. None of the Administrative Agent, the Issuing Bank or
any Lender shall be liable to the Borrower or any other parties for (i) errors, acts or failures to
act of others, including other entities, banks, communications carriers or clearinghouses, through
which the Borrower’s transfers may be made or information received or transmitted, and no such
entity shall be deemed an agent of the Administrative Agent, the Issuing Bank or any Lender, (ii)
any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges
or failures, acts of government, labor disputes, failures in communications networks, legal
constraints or other events beyond Administrative Agent’s, Issuing Bank’s or any Lender’s control,
or (iii) any special, consequential, indirect or punitive damages, whether or not (x) any claim for
these damages is based on tort or contract or (y) the Administrative Agent, the Issuing Bank, any
Lender or the Borrower knew or should have known the likelihood of these damages in any situation.
Neither the Administrative Agent, the Issuing Bank nor any Lender makes any representations or
warranties other than those expressly made in this Agreement.



Article III. Payments, Fees and Other General Provisions




Section 3.1. Payments.



(a) Payments by Borrower. Except to the extent otherwise provided herein, all
payments of principal, interest, Fees and other amounts to be made by the Borrower under this
Agreement, the Notes or any other Loan Document shall be made in Dollars, in immediately available
funds, without setoff, deduction or counterclaim, to the Administrative Agent at the Principal
Office, not later than 11:00 a.m. Pacific time on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have been made on the next
succeeding Business Day). Subject to Section 10.5., the Borrower shall, at the time of making each
payment under this Agreement or any other Loan Document, specify to the Administrative Agent the
amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment
received by the Administrative Agent for the account of a Lender under this Agreement or any Note
shall be paid to such Lender by wire transfer of immediately available funds in accordance with the
wiring instructions provided by such Lender to the Administrative Agent from time to time, for the
account of such Lender at the applicable Lending Office of such Lender. Each payment received by
the Administrative Agent for the account of the Issuing Bank under this Agreement shall be paid to
the Issuing Bank by wire transfer of immediately available funds in accordance with the wiring
instructions provided by the Issuing Bank to the Administrative Agent from time to time, for the
account of the Issuing Bank. In the event the Administrative Agent fails to pay such amounts to
such Lender or the Issuing Bank, as the case may be, within one Business Day of receipt of such
amounts, the Administrative Agent shall pay interest on such amount until paid at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and interest shall continue to
accrue at the rate, if any, applicable to such payment for the period of such extension.


 


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(b) Presumptions Regarding Payments by Borrower. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may (but shall not be obligated to), in reliance
upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent on
demand that amount so distributed to such Lender or the Issuing Bank, 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 the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation.



Section 3.2. Pro Rata Treatment.



Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders
under Sections 2.1.(a), 2.3.(e) and 2.4.(e) shall be made from the Revolving Lenders, each payment
of the fees under Sections 3.5.(a), 3.5.(b), the first sentence of 3.5.(c), and 3.5.(e) shall be
made for the account of the Revolving Lenders, and each termination or reduction of the amount of
the Commitments under Section 2.12. shall be applied to the respective Commitments of the Revolving
Lenders, pro rata according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Revolving Loans shall be made for the account of the Revolving Lenders
pro rata in accordance with the respective unpaid principal amounts of the Revolving Loans held by
them, provided that, subject to Section 3.9., if immediately prior to giving effect to any such
payment in respect of any Revolving Loans the outstanding principal amount of the Revolving Loans
shall not be held by the Revolving Lenders pro rata in accordance with their respective Commitments
in effect at the time such Revolving Loans were made, then such payment shall be applied to the
Revolving Loans in such manner as shall result, as nearly as is practicable, in the outstanding
principal amount of the Revolving Loans being held by the Revolving Lenders pro rata in accordance
with their respective Commitments; (c) each payment of interest on Revolving Loans shall be made
for the account of the Revolving Lenders, pro rata in accordance with the amounts of interest on
such Revolving Loans, then due and payable to the respective Lenders; (d) the making, Conversion
and Continuation of Revolving Loans of a particular Type (other than Conversions provided for by
Sections 4.1.(c) and 4.5.) shall be made pro rata among the Revolving Lenders, according to the
amounts of their respective Revolving Loans, and the then current Interest Period for each Lender’s
portion of each such Loan of such Type shall be coterminous; (e) each prepayment of principal of
Bid Rate Loans by the Borrower pursuant to Section 2.8.(b)(ii) shall be made for account of the
Lenders then owed Bid Rate Loans pro rata in accordance with the respective unpaid principal
amounts of the Bid Rate Loans then owing to each such Lender; (f) the Revolving Lenders’
participation in, and payment obligations in respect of, Swingline Loans under Section 2.4., shall
be in accordance with their respective Commitment Percentages; and (g) the Revolving Lenders’
participation in, and payment obligations in respect of, Letters of Credit under Section 2.3.,
shall be in accordance with their respective Commitment Percentages. All payments of principal,
interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a participating interest
in any such Swingline Loan pursuant to Section 2.4.(e), in which case such payments shall be pro
rata in accordance with such participating interests).


 


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Section 3.3. Sharing of Payments, Etc.



If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to
the Borrower under this Agreement or shall obtain payment on any other Obligation owing by the
Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien,
counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or other payments made by
or on behalf the Borrower or any other Loan Party to a Lender (other than any payment in respect of
Specified Derivatives Obligations) not in accordance with the terms of this Agreement and such
payment should be distributed to the Lenders in accordance with Section 3.2. or Section 10.5., as
applicable, such Lender shall promptly purchase from the other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made by the other
Lenders or other Obligations owed to such other Lenders in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the Lenders shall share
the benefit of such payment (net of any reasonable expenses which may actually be incurred by such
Lender in obtaining or preserving such benefit) in accordance with the requirements of Section 3.2.
or Section 10.5., as applicable. To such end, all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such payment is rescinded
or must otherwise be restored. The Borrower agrees that any Lender so purchasing a participation
(or direct interest) in the Loans or other Obligations owed to such other Lenders may exercise all
rights of set-off, banker’s lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans in the amount of such participation.
Nothing contained herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise and retain the benefits of exercising, any such right with respect
to any other indebtedness or obligation of the Borrower.



Section 3.4. Several Obligations.



No Lender shall be responsible for the failure of any other Lender to make a Loan or to
perform any other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be made or performed by
it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform
any other obligation to be made or performed by such other Lender.



Section 3.5. Fees.



(a) Closing Fee. On the Effective Date, the Borrower agrees to pay to the
Administrative Agent and each Lender all loan fees as have been agreed to in writing by the
Borrower and the Administrative Agent.



(b) Facility Fees. During the period from the Effective Date to but excluding the
Termination Date, the Borrower agrees to pay to the Administrative Agent for the account of the
Revolving Lenders a facility fee equal to the daily aggregate amount of the Commitments (whether or
not utilized) times a rate equal to (i) the Applicable Facility Fee divided by (ii) 360. Such fee
shall be payable quarterly in arrears on the last day of each March, June, September and December
during the term of this Agreement and, if such date is not the last day of March, June, September,
or December, on the Termination Date or any earlier date of termination of the Commitments or
reduction of the Commitments to zero. The Borrower acknowledges that the fee payable hereunder is
a bona fide commitment fee and is intended as reasonable compensation to the Lenders for committing
to make funds available to the Borrower as described herein and for no other purposes.



(c) Letter of Credit Fees. The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Lender a letter of credit fee at a rate per annum equal to the
Applicable Margin for LIBOR Loans times the daily average Stated Amount of each Letter of Credit
for the period from and including the date of issuance of such Letter of Credit (x) to and
including the date such Letter of Credit expires or is cancelled or (y) to but excluding the date
such Letter of Credit is drawn in full. In addition to such fees, the Borrower shall pay to the
Issuing Bank solely for its own account, a fronting fee in respect of each Letter of Credit equal
to one-


 


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eighth of one percent (0.125% %) of the initial Stated Amount of such Letter of Credit; provided, however, in no event shall the aggregate
amount of such fee in respect of any Letter of Credit be less than $500. The fees provided for in
this subsection shall be nonrefundable and payable, in the case of the fee provided for in the
first sentence, in arrears (i) quarterly on the last day of each March, June, September and
December, (ii) if such date is not the last day of March, June, September, or December on the
Termination Date, (iii) on the date the Commitments are terminated or reduced to zero and (iv)
thereafter from time to time on demand of the Administrative Agent and in the case of the fee
provided for in the second sentence, at the time of issuance of such Letter of Credit. The
Borrower shall pay directly to the Issuing Bank from time to time on demand all commissions,
charges, costs and expenses in the amounts customarily charged or incurred by the Issuing Bank from
time to time in like circumstances with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or any other transaction relating thereto.



(d) Bid Rate Loan Fees. The Borrower agrees to pay to the Administrative Agent a fee
equal to $2,000 at the time of each Bid Rate Quote Request made hereunder for services rendered by
the Administrative Agent in connection with the Bid Rate Loans.



(e) Revolving Credit Extension Fee. If the Borrower exercises its right to extend the
Termination Date in accordance with Section 2.13., the Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Lender a fee equal to 0.175% of the amount of such
Revolving Lender’s Commitment (whether or not utilized). Such fee shall be due and payable in full
on the date the Administrative Agent receives the Extension Request pursuant to such Section.



(f) Administrative and Other Fees. The Borrower agrees to pay the administrative and
other fees of the Administrative Agent as provided in the Fee Letter and as may be otherwise agreed
to in writing from time to time by the Borrower and the Administrative Agent.



Section 3.6. Computations.



Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any
other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual
number of days elapsed.



Section 3.7. Usury.



In no event shall the amount of interest due or payable on the Loans or other Obligations
exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by
the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be
credited as a payment of principal, unless the Borrower shall notify the respective Lender in
writing that the Borrower elects to have such excess sum returned to it forthwith. It is the
express intent of the parties hereto that the Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully
paid by the Borrower under Applicable Law. The parties hereto hereby agree and stipulate that the
only charge imposed upon the Borrower for the use of money in connection with this Agreement is and
shall be the interest specifically described in Section 2.5.(a)(i) through (iv) and, with respect
to Swingline Loans, in Section 2.4.(c). Notwithstanding the foregoing, the parties hereto further
agree and stipulate that all agency fees, syndication fees, facility fees, closing fees, letter of
credit fees, underwriting fees, default charges, late charges, funding or “breakage” charges,
increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the
Administrative Agent or any Lender to third parties or for damages incurred by the Administrative
Agent or any Lender, in each case, in connection with the transactions contemplated by this
Agreement and the other Loan Documents, are charges made to compensate the Administrative Agent or
any such Lender for underwriting or administrative services and costs or losses performed or
incurred, and to be performed or
incurred, by the Administrative Agent and the Lenders in connection with this Agreement and shall
under no circumstances be deemed to be charges for the use of money. All charges other than
charges for the use of money shall be fully earned and nonrefundable when due.


 


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Section 3.8. Statements of Account.



The Administrative Agent will account to the Borrower monthly with a statement of Loans,
accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan
Documents, and such account rendered by the Administrative Agent shall be deemed conclusive upon
the Borrower absent manifest error. The failure of the Administrative Agent to deliver such a
statement of accounts shall not relieve or discharge the Borrower from any of its obligations
hereunder.



Section 3.9. Defaulting Lenders.



Notwithstanding anything to the contrary contained in this Agreement, if any Revolving Lender
becomes a Defaulting Lender, then, until such time as such Revolving Lender is no longer a
Defaulting Lender, to the extent permitted by Applicable Law:



(a) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
the definition of Requisite Lenders.



(b) Defaulting Lender Waterfall. Any payment of principal, interest, Fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article X. or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 3.3. shall be applied at such
time or times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender
to the Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the
Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with
subsection (e) below; fourth, as the Borrower may request (so long as no Default or Event
of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower,
to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting
Lender’s potential future funding obligations with respect to Loans under this Agreement and (y)
Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to such Defaulting
Lender with respect to future Letters of Credit issued under this Agreement, in accordance with
subsection (e) below; sixth, to the payment of any amounts owing to the Lenders, the
Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the Issuing Bank or the Swingline Lender against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any
amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment
is a payment of the principal amount of any Loans or amounts owing by such Defaulting Lender under
Section 2.3.(j) in respect of Letters of Credit (such amounts “L/C Disbursements”), in respect of
which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were
made or the related Letters of Credit were issued at a time when the conditions set forth in
Article V. were satisfied or waived, such payment shall be applied solely to pay the Loans of, and
L/C


 


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Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time
as all Loans and funded and unfunded participations in Letter of Credit Liabilities and Swingline
Loans are held by the Revolving Lenders pro rata in accordance with their respective Commitment
Percentages (determined without giving effect to the immediately following subsection (d)). Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this
subsection shall be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto.




(c) Certain Fees.




(i) No Defaulting Lender shall be entitled to receive any Fee payable under Section
3.5.(b) for any period during which that Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).




(ii) Each Defaulting Lender shall be entitled to receive any Fee payable under Section
3.5.(c) for any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Commitment Percentage of the stated amount of Letters of Credit for which
it has provided Cash Collateral pursuant to the immediately following subsection (e).




(iii) With respect to any Fee not required to be paid to any Defaulting Lender pursuant
to the immediately preceding clauses (i) or (ii), the Borrower shall (x) pay to each
Non-Defaulting Lender that portion of any such Fee otherwise payable to such Defaulting
Lender with respect to such Defaulting Lender’s participation in Letter of Credit
Liabilities or Swingline Loans that has been reallocated to such Non-Defaulting Lender
pursuant to the immediately following subsection (d), (y) pay to each Issuing Bank and
Swingline Lender, as applicable, the amount of any such Fee otherwise payable to such
Defaulting Lender to the extent allocable to such Issuing Bank’s or Swingline Lender’s
Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining
amount of any such Fee.



(d) Reallocation of Participations to Reduce Fronting Exposure. All or any part of
such Defaulting Lender’s participation in Letter of Credit Liabilities and Swingline Loans shall be
reallocated among the Non-Defaulting Lenders in accordance with their respective Commitment
Percentages (determined without regard to such Defaulting Lender’s Commitment) but only to the
extent that (x) the conditions set forth in Article V. are satisfied at the time of such
reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at
such time, the Borrower shall be deemed to have represented and warranted that such conditions are
satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit
Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No
reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Revolving Lender having become a Defaulting Lender,
including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s
increased exposure following such reallocation.




(e) Cash Collateral, Repayment of Swingline Loans.




(i) If the reallocation described in the immediately preceding subsection (d) above
cannot, or can only partially, be effected, the Borrower shall, without prejudice to any
right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in
an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash
Collateralize the Issuing Bank’s Fronting Exposure in accordance with the procedures set
forth in this subsection.


 


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(ii) At any time that there shall exist a Defaulting Lender, within 2 Business Days
following the written request of the Administrative Agent or the Issuing Bank (with a copy
to the Administrative Agent), the Borrower shall Cash Collateralize the Issuing Bank’s
Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to
the immediately preceding subsection (d) and any Cash Collateral provided by such Defaulting
Lender) in an amount not less than the aggregate Fronting Exposure of the Issuing Bank with
respect to Letters of Credit issued and outstanding at such time.




(iii) The Borrower, and to the extent provided by any Defaulting Lender, such
Defaulting Lender, hereby grant to the Administrative Agent, for the benefit of the Issuing
Bank, and agree to maintain, a first priority security interest in all such Cash Collateral
as security for the Defaulting Lenders’ obligation to fund participations in respect of
Letter of Credit Liabilities, to be applied pursuant to the immediately following clause
(iv). If at any time the Administrative Agent determines that Cash Collateral is subject to
any right or claim of any Person other than the Administrative Agent and the Issuing Bank as
herein provided, or that the total amount of such Cash Collateral is less than the aggregate
Fronting Exposure of the Issuing Bank with respect to Letters of Credit issued and
outstanding at such time, the Borrower will, promptly upon demand by the Administrative
Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount
sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided
by the Defaulting Lender).




(iv) Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral provided under this Section in respect of Letters of Credit shall be applied to
the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of
Letter of Credit Liabilities (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) for which the Cash Collateral was so
provided, prior to any other application of such property as may otherwise be provided for
herein.




(v) Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing
Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant
to this subsection following (x) the elimination of the applicable Fronting Exposure
(including by the termination of Defaulting Lender status of the applicable Revolving
Lender), or (y) the determination by the Administrative Agent and the Issuing Bank that
there exists excess Cash Collateral; provided that, subject to the immediately
preceding subsection (b), the Person providing Cash Collateral and the Issuing Bank may
agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or
other obligations and provided further that to the extent that such Cash
Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the
security interest granted pursuant to the Loan Documents.



(f) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the Issuing Bank agree in writing in their reasonable discretion that a Revolving Lender
is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral), that Revolving Lender
will, to the extent applicable, purchase at par that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to
be held pro rata by the Revolving Lenders in accordance with their respective Commitment
Percentages (determined without giving effect to the immediately preceding subsection (d)),
whereupon such Revolving Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to Fees accrued or payments made by or on
behalf of the Borrower while that Revolving Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Revolving Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Revolving Lender’s having
been a Defaulting Lender.


 


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(g) New Swingline Loans/Letters of Credit. So long as any Revolving Lender is a
Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans
unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline
Loan and (ii) the Issuing Bank shall not be required to issue, extend, renew or increase any Letter
of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect
thereto.



Section 3.10. Taxes; Foreign Lenders.



(a) Taxes Generally. All payments by the Borrower of principal of, and interest on,
the Loans and all other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes (other than withholding taxes) that would not be
imposed but for a connection between the Administrative Agent, the Issuing Bank or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by virtue of the
activities of the Administrative Agent, the Issuing Bank or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or measured by the
Issuing Bank’s or any Lender’s assets, net income, receipts or branch profits, (iv) any taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other charges arising after the
Agreement Date solely as a result of or attributable to a Lender changing its designated Lending
Office after the date such Lender becomes a party hereto, and (v) any taxes imposed by Sections
1471 through Section 1474 of the Internal Revenue Code (including any official interpretations
thereof, collectively “FATCA”) on any “withholdable payment” payable to such recipient as a result
of the failure of such recipient to satisfy the applicable requirements as set forth in FATCA after
December 31, 2012 (such non-excluded items being collectively called “Taxes”). If any withholding
or deduction from any payment to be made by the Borrower hereunder is required in respect of any
Taxes pursuant to any Applicable Law, then the Borrower will:




(i) pay directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;




(ii) promptly forward to the Administrative Agent an official receipt or other
documentation satisfactory to the Administrative Agent evidencing such payment to such
Governmental Authority; and




(iii) pay to the Administrative Agent for its account or the account of the applicable
Lender or the Issuing Bank, as the case may be, such additional amount or amounts as is
necessary to ensure that the net amount actually received by the Administrative Agent, the
Issuing Bank or such Lender will equal the full amount that the Administrative Agent, the
Issuing Bank or such Lender would have received had no such withholding or deduction been
required.



(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Administrative Agent, for its account
or the account of the Issuing Bank or respective Lender, as the case may be, the required receipts
or other required documentary evidence, the Borrower shall indemnify the Administrative Agent, the
Issuing Bank and the Lenders for any incremental Taxes, interest or penalties that may become
payable by the Administrative Agent, the Issuing Bank or any Lender as a result of any such
failure. For purposes of this Section, a
distribution hereunder by the Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.


 


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(c) Tax Forms. Prior to the date that any Lender or Participant organized under the
laws of a jurisdiction other than that in which the Borrower is a resident for tax purposes becomes
a party hereto, such Person shall deliver to the Borrower and the Administrative Agent such
certificates, documents or other evidence, as required by the Internal Revenue Code or Treasury
Regulations issued pursuant thereto (including Internal Revenue Service Forms W-8ECI and W-8BEN, as
applicable, or appropriate successor forms), properly completed, currently effective and duly
executed by such Lender or Participant establishing that payments to it hereunder and under the
Notes are (i) not subject to United States Federal backup withholding tax and (ii) not subject to
United States Federal withholding tax under the Internal Revenue Code. Each such Lender or
Participant shall, to the extent it may lawfully do so, (x) deliver further copies of such forms or
other appropriate certifications on or before the date that any such forms expire or become
obsolete and after the occurrence of any event requiring a change in the most recent form delivered
to the Borrower or the Administrative Agent and (y) obtain such extensions of the time for filing,
and renew such forms and certifications thereof, as may be reasonably requested by the Borrower or
the Administrative Agent. The Borrower shall not be required to pay any amount pursuant to the
last sentence of subsection (a) above to any Lender or Participant that is organized under the laws
of a jurisdiction other than that in which the Borrower is a resident for tax purposes or the
Administrative Agent, if it is organized under the laws of a jurisdiction other than that in which
the Borrower is a resident for tax purposes, if such Lender, such Participant or the Administrative
Agent, as applicable, fails to comply with the requirements of this subsection. If any such Lender
or Participant, to the extent it may lawfully do so, fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from such payment to such Lender such
amounts as are required by the Internal Revenue Code. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such Lender shall indemnify
the Administrative Agent therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this Section, and costs and
expenses (including all reasonable fees and disbursements of any law firm or other external counsel
and the allocated cost of internal legal services and all disbursements of internal counsel) of the
Administrative Agent. The obligation of the Lenders under this Section shall survive the
termination of the Commitments, repayment of all Obligations and the resignation or replacement of
the Administrative Agent.



(d) USA Patriot Act Notice; Compliance. In order for the Administrative Agent to
comply with the USA Patriot Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), prior to any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America becoming a party hereto, the Administrative Agent may
request, and such Lender or Participant shall provide to the Administrative Agent, its name,
address, tax identification number and/or such other identification information as shall be
necessary for the Administrative Agent to comply with federal law.



Article IV. Yield Protection, Etc.




Section 4.1. Additional Costs; Capital Adequacy.



(a) Capital Adequacy. If on or after the Agreement Date any Lender or any Participant
determines that compliance with any law or regulation or with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of law), regardless
of whether arising from a Regulatory Change or not, affects or would affect the amount of capital
required or expected to be maintained by such Lender or such Participant, or any corporation
controlling such Lender
or such Participant, as a consequence of, or with reference to, such Lender’s Commitments or its
making or maintaining Loans or participating in Letters of Credit below the rate which such Lender
or such Participant or such corporation controlling such Lender or such Participant could have
achieved but for such compliance (taking into account the policies of such Lender or such
Participant or such corporation with regard to capital), then the Borrower shall, from time to
time, within thirty (30) days after written demand by such Lender or such Participant, pay to such
Lender or such Participant additional amounts sufficient to compensate such Lender or such
Participant or such corporation controlling such Lender or such Participant to the extent that such
Lender or such Participant determines such increase in capital is allocable to such Lender’s or
such Participant’s obligations hereunder.


 


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(b) Additional Costs. In addition to, and not in limitation of the immediately
preceding subsection, the Borrower shall promptly pay to the Administrative Agent for the account
of a Lender from time to time such amounts as such Lender may determine to be necessary to
compensate such Lender for any costs incurred by such Lender that it determines are attributable to
its making or maintaining of any LIBOR Loans or LIBOR Margin Loans or its obligation to make any
LIBOR Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement
or any of the other Loan Documents in respect of any of such LIBOR Loans or LIBOR Margin Loans or
such obligation or the maintenance by such Lender of capital in respect of its LIBOR Loans or LIBOR
Margin Loans or its Commitments (such increases in costs and reductions in amounts receivable being
herein called “Additional Costs”), resulting from any Regulatory Change that: (i) changes the
basis of taxation of any amounts payable to such Lender under this Agreement or any of the other
Loan Documents in respect of any of such LIBOR Loans or LIBOR Margin Loans or its Commitments
(other than taxes imposed on or measured by the overall net income of such Lender or of its Lending
Office for any of such LIBOR Loans or LIBOR Margin Loans by the jurisdiction in which such Lender
has its principal office or such Lending Office), or (ii) imposes or modifies any reserve, special
deposit or similar requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other similar reserve requirement applicable to any other category of liabilities
or category of extensions of credit or other assets by reference to which the interest rate on
LIBOR Loans or LIBOR Margin Loans is determined to the extent utilized when determining LIBOR for
such Loans) relating to any extensions of credit or other assets of, or any deposits with or other
liabilities of, or other credit extended by, or any other acquisition of funds by such Lender (or
its parent corporation), or any commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder) or (iii) has or would have the effect of reducing the rate of
return on capital of such Lender to a level below that which such Lender could have achieved but
for such Regulatory Change (taking into consideration such Lender’s policies with respect to
capital adequacy).



(c) Lender’s Suspension of LIBOR Loans and LIBOR Margin Loans. Without limiting the
effect of the provisions of the immediately preceding subsection (a) and (b), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other liabilities of such Lender
that includes deposits by reference to which the interest rate on LIBOR Loans or LIBOR Margin Loans
is determined as provided in this Agreement or a category of extensions of credit or other assets
of such Lender that includes LIBOR Loans or LIBOR Margin Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets that it may hold, then, if
such Lender so elects by notice to the Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans into, LIBOR Loans
and/or the obligation of a Revolving Lender that has outstanding a Bid Rate Quote to make LIBOR
Margin Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 4.5. shall apply).


 


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(d) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but without
duplication), if as a result of any
Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter
issued by any Governmental Authority there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or with respect to or
measured by reference to Letters of Credit and the result shall be to increase the cost to the
Issuing Bank of issuing (or any Lender of purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Issuing Bank or any Lender hereunder in respect of any Letter of Credit,
then, upon demand by the Issuing Bank or such Lender, the Borrower shall pay promptly to the
Issuing Bank or, in the case of such Lender, in each case within 3 Business Days of demand, to the
Administrative Agent for the account of such Lender, from time to time as specified by the Issuing
Bank or such Lender, such additional amounts as shall be sufficient to compensate the Issuing Bank
or such Lender for such increased costs or reductions in amount.



(e) Notification and Determination of Additional Costs. Each of the Administrative
Agent, Issuing Bank, each Lender, and each Participant, as the case may be, agrees to notify the
Borrower of any event occurring after the Agreement Date entitling the Administrative Agent, the
Issuing Bank, such Lender or such Participant to compensation under any of the preceding
subsections of this Section as promptly as practicable; provided, however, that the failure of the
Administrative Agent, the Issuing Bank, any Lender or any Participant to give such notice shall not
release the Borrower from any of its obligations hereunder (and in the case of a Lender, to the
Administrative Agent). The Administrative Agent, the Issuing Bank, each Lender and each
Participant, as the case may be, agrees to furnish to the Borrower (and in the case of the Issuing
Bank, a Lender or a Participant to the Administrative Agent as well) a certificate setting forth
the basis and amount of each request for compensation under this Section. Determinations by the
Administrative Agent, the Issuing Bank, such Lender, or such Participant, as the case may be, of
the effect of any Regulatory Change shall be conclusive and binding for all purposes, absent
manifest error and provided that such determinations are made on a reasonable basis and in good
faith.



Section 4.2. Suspension of LIBOR Loans and LIBOR Margin Loans.



Anything herein to the contrary notwithstanding, if, on or prior to the determination of LIBOR
for any Interest Period:




(a) the Administrative Agent reasonably determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred to in the
definition of LIBOR are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for LIBOR Loans as provided herein
or is otherwise unable to determine LIBOR;




(b) the Administrative Agent reasonably determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the definition of LIBOR upon
the basis of which the rate of interest for LIBOR Loans for such Interest Period is to be
determined are not likely to adequately cover the cost to any Lender of making or
maintaining LIBOR Loans for such Interest Period; or




(c) any Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR
Margin Loan reasonably determines (which determination shall be conclusive) that LIBOR will
not adequately and fairly reflect the cost to such Revolving Lender of making or maintaining
such LIBOR Margin Loan;


 


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then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so
long as such condition remains in effect, (i) the Lenders shall be under no obligation to, and
shall not,
make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the
Borrower shall, on the last day of each current Interest Period for each outstanding LIBOR Loan,
either prepay such Loan or Convert such Loan into a Base Rate Loan and (ii) in the case of clause
(c) above, no Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin
Loan shall be under any obligation to make such Loan.



Section 4.3. Illegality.



Notwithstanding any other provision of this Agreement, (a) if any Lender shall determine
(which determination shall be conclusive and binding) that it is unlawful for such Lender to honor
its obligation to make or maintain LIBOR Loans hereunder and/or (b) if any Lender that has an
outstanding Bid Rate Quote shall determine (which determination shall be conclusive and binding)
that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Margin Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a copy of such notice
to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert Loans
of any other Type into, LIBOR Loans shall be suspended and/or such Lender’s obligation to make
LIBOR Margin Loans shall be suspended, in each case, until such time as such Lender may again make
and maintain LIBOR Loans or LIBOR Margin Loans (in which case the provisions of Section 4.5. shall
be applicable).



Section 4.4. Compensation.



The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the
request of such Lender through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender reasonably determines is attributable to:




(a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan or a Bid
Rate Loan, or Conversion of a LIBOR Loan, made by such Lender for any reason (including,
without limitation, acceleration) on a date other than the last day of the Interest Period
for such Loan; or




(b) any failure by the Borrower for any reason (including, without limitation, the
failure of any of the applicable conditions precedent specified in Article 5.2. to be
satisfied) to borrow a LIBOR Loan or a Bid Rate Loan from such Lender on the date for such
borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.



Not in limitation of the foregoing, such compensation shall include, without limitation, (i) in the
case of a LIBOR Loan, an amount equal to the then present value of (A) the amount of interest that
would have accrued on such LIBOR Loan for the remainder of the Interest Period at the rate
applicable to such LIBOR Loan, less (B) the amount of interest that would accrue on the same LIBOR
Loan for the same period if LIBOR were set on the date on which such LIBOR Loan was repaid, prepaid
or Converted or the date on which the Borrower failed to borrow, Convert or Continue such LIBOR
Loan, as applicable, calculating present value by using as a discount rate LIBOR quoted on such
date and (ii) in the case of a Bid Rate Loan, the sum of such losses and expenses as the Lender or
Designated Lender who made such Bid Rate Loan may reasonably incur by reason of such prepayment,
including without limitation any losses or expenses incurred in obtaining, liquidating or employing
deposits from third parties. Upon the Borrower’s request, the Administrative Agent shall provide
the Borrower with a statement setting forth the basis for requesting such compensation and the
method for determining the amount thereof. Any such statement shall be conclusive absent manifest
error, provided such determinations are made on a reasonable basis and in good faith.


 


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Section 4.5. Treatment of Affected Loans.



(a) If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(c), Section 4.2. or
Section 4.3. then such Lender’s LIBOR Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case of a
Conversion required by Section 4.1.(c), Section 4.2., or Section 4.3. on such earlier date as such
Lender may specify to the Borrower with a copy to the Administrative Agent) and, unless and until
such Lender gives notice as provided below that the circumstances specified in Section 4.1.,
Section 4.2. or Section 4.3. that gave rise to such Conversion no longer exist:




(i) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans
shall be applied instead to its Base Rate Loans; and




(ii) all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans
shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such
Lender that would otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans.



If such Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in Section 4.1.(c) or 4.3. that gave rise to the Conversion of such
Lender’s LIBOR Loans pursuant to this Section no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders
are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans
and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Commitments.



(b) If the obligation of a Lender to make LIBOR Margin Loans shall be suspended pursuant to
Section 4.1.(c) or 4.2., then the LIBOR Margin Loans of such Lender shall be automatically due and
payable on such date as such Lender may specify to the Borrower by written notice with a copy to
the Administrative Agent.



Section 4.6. Affected Lenders.



If (a) a Lender requests compensation pursuant to Section 3.10. or 4.1., and the Requisite
Lenders are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to
Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
4.1.(b) or 4.3. but the obligation of the Requisite Lenders shall not have been suspended under
such Sections, then, so long as there does not then exist any Default or Event of Default, the
Borrower may demand that such Lender (the “Affected Lender”), and upon such demand the Affected
Lender shall promptly, assign its Commitment to an Eligible Assignee subject to and in accordance
with the provisions of Section 12.5.(b) for a purchase price equal to (x) the aggregate principal
balance of all Loans then owing to the Affected Lender, plus (y) the aggregate amount of payments
previously made by the Affected Lender under Section 2.3.(j) that have not been repaid, plus (z)
any accrued but unpaid interest thereon and accrued but unpaid fees owing to the Affected Lender,
or any other amount as may be mutually agreed upon by such Affected Lender and Eligible Assignee.
Each of the Administrative Agent and the Affected Lender shall reasonably cooperate in effectuating
the replacement of such Affected Lender under this Section, but at no time shall the Administrative
Agent, such Affected Lender nor any other Lender nor any Titled Agent be


 


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 obligated in any way whatsoever to initiate any such replacement or to assist in finding an
Eligible Assignee. The exercise by the Borrower of its rights under this Section shall be at the
Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent, the
Affected Lender or any of the other Lenders. The terms of this Section shall not in any way limit
the Borrower’s obligation to pay to any Affected Lender compensation owing to such Affected Lender
pursuant to this Agreement (including, without limitation, pursuant to Sections 3.10., 4.1. or
4.4.) with respect to any period up to the date of replacement.



Section 4.7. Change of Lending Office.



Each Lender agrees that it will use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate an alternate Lending Office with respect to any
of its Loans affected by the matters or circumstances described in Sections 3.10., 4.1. or 4.3. to
reduce the liability of the Borrower or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as determined by such Lender in its sole
discretion, except that such Lender shall have no obligation to designate a Lending Office located
in the United States of America.



Section 4.8. Assumptions Concerning Funding of LIBOR Loans.



Calculation of all amounts payable to a Lender under this Article shall be made as though such
Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount of the
LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided, however,
that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this Article.



Article V. Conditions Precedent




Section 5.1. Initial Conditions Precedent.



The obligation of the Lenders to effect or permit the occurrence of the first Credit Event
hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the
satisfaction or waiver of the following conditions precedent:



(a) The Administrative Agent shall have received each of the following, in form and substance
satisfactory to the Administrative Agent:




(i) counterparts of this Agreement executed by each of the parties hereto;




(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each
applicable Lender (including any Designated Lender, if applicable) and complying with the
terms of Section 2.11.(a) and the Swingline Note executed by the Borrower;




(iii) the Guaranty executed by each of the Guarantors initially to be a party thereto;




(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, addressed
to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;




(v) the certificate or articles of incorporation or formation, articles of
organization, certificate of limited partnership, declaration of trust or other comparable
organizational
instrument (if any) of each Loan Party certified as of a recent date by the Secretary of
State of the state of formation of such Loan Party;


 


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(vi) a certificate of good standing (or certificate of similar meaning) with respect to
each Loan Party issued as of a recent date by the Secretary of State of the state of
formation of each such Loan Party and certificates of qualification to transact business or
other comparable certificates issued as of a recent date by each Secretary of State (and any
state department of taxation, as applicable) of each state in which such Loan Party is
required to be so qualified and where failure to be so qualified could reasonably be
expected to have a Material Adverse Effect;




(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party with respect to each of
the officers of such Loan Party authorized to execute and deliver the Loan Documents to
which such Loan Party is a party, and in the case of the Borrower, currently authorized to
execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline
Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of
Continuation;




(viii) copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a
corporation, the operating agreement, if a limited liability company, the partnership
agreement, if a limited or general partnership, or other comparable document in the case of
any other form of legal entity and (B) all corporate, partnership, member or other necessary
action taken by such Loan Party to authorize the execution, delivery and performance of the
Loan Documents to which it is a party;




(ix) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal
quarter ending September 30, 2011;




(x) a Transfer Authorizer Designation Form effective as of the Agreement Date;




(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan
Parties under the Existing Credit Agreement shall have been paid in full and all commitments
are terminated;




(xii) evidence that the Fees, if any, then due and payable under Section 3.5., together
with all other fees, expenses and reimbursement amounts due and payable to the
Administrative Agent and any of the Lenders, including without limitation, the fees and
expenses of counsel to the Administrative Agent, have been paid;




(xiii) insurance certificates, or other evidence, providing that the insurance coverage
required under Section 7.5. (including, without limitation, both property and liability
insurance) is in full force and effect; and




(xiv) such other documents, agreements and instruments as the Administrative Agent, or
any Lender through the Administrative Agent, may reasonably request; and




(b) In the good faith judgment of the Administrative Agent:




(i) there shall not have occurred or become known to the Administrative Agent or any of
the Lenders any event, condition, situation or status since the date of the information
contained in the financial and business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the
Lenders prior to the Agreement Date that has had or could reasonably be expected to result
in a Material Adverse Effect;


 


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(ii) no litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be expected to (A)
result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect, the ability of the Borrower or
any other Loan Party to fulfill its obligations under the Loan Documents to which it is a
party;




(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and
waivers, and shall have made or given all necessary filings and notices as shall be required
to consummate the transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document
or instrument to which any Loan Party is a party or by which any of them or their respective
properties is bound, except for such approvals, consents, waivers, filings and notices the
receipt, making or giving of which could not reasonably be likely to (A) have a Material
Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower or any other Loan
party to fulfill its obligations under the Loan Documents to which it is a party;




(iv) the Borrower and each other Loan Party shall have provided all information
requested by the Administrative Agent and each Lender in order to comply with the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and




(v) there shall not have occurred or exist any other material disruption of financial
or capital markets that could reasonably be expected to materially and adversely affect the
transactions contemplated by the Loan Documents.



Section 5.2. Conditions Precedent to All Loans and Letters of Credit.



The obligations of (i) Lenders to make any Loans and (ii) the Issuing Bank to issue Letters of
Credit are each subject to the further conditions precedent that: (a) no Default or Event of
Default shall exist as of the date of the making of such Loan or date of issuance of such Letter of
Credit or would exist immediately after giving effect thereto, and no violation of the limits
described in Section 2.15. would occur after giving effect thereto; (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party, shall be true and correct in all material respects (except in the
case of a representation or warranty qualified by materiality, in which case such representation or
warranty shall be true and correct in all respects) on and as of the date of the making of such
Loan or date of issuance of such Letter of Credit with the same force and effect as if made on and
as of such date except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties shall have been true
and correct in all material respects (except in the case of a representation or warranty qualified
by materiality, in which case such representation or warranty shall be true and correct in all
respects) on and as of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted hereunder and (c) in the case of the borrowing of Revolving
Loans, the Administrative Agent shall have received a timely Notice of Borrowing, or in the case of
a Swingline Loan, the Swingline Lender shall have received a timely Notice of Swingline Borrowing.
Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit
Event, as of the date of the occurrence of such
Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative
Agent and the Lenders at the time any Loan is made or any Letter of Credit is issued that all
conditions to the making of such Loan or issuing of such Letter of Credit contained in this Article
V. have been satisfied.


 


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Article VI. Representations and Warranties




Section 6.1. Representations and Warranties.



In order to induce the Administrative Agent and each Lender to enter into this Agreement and
to make Loans and, in the case of the Issuing Bank, to issue Letters of Credit, the Borrower
represents and warrants to the Administrative Agent, the Issuing Bank and each Lender as follows:



(a) Organization; Power; Qualification. Each of the Borrower, the other Loan Parties
and the other Subsidiaries is a corporation, partnership or other legal entity, duly organized or
formed, validly existing and in good standing under the jurisdiction of its incorporation or
formation, has the power and authority to own or lease its respective properties and to carry on
its respective business as now being and hereafter proposed to be conducted and is duly qualified
and is in good standing as a foreign corporation, partnership or other legal entity, and authorized
to do business, in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material Adverse Effect.



(b) Ownership Structure. Part I of Schedule 6.1.(b) is, as of the Agreement Date, a
complete and correct list of all Subsidiaries of the Borrower setting forth for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding any
Equity Interest in such Subsidiary, (iii) the nature of the Equity Interests held by each such
Person, (iv) the percentage of ownership of such Subsidiary represented by such Equity Interests
and (v) whether such Subsidiary is a Material Subsidiary and/or an Excluded Subsidiary. As of the
Agreement Date, except as disclosed in such Schedule (A), each of the Borrower and its Subsidiaries
owns, free and clear of all Liens, and has the unencumbered right to vote, all outstanding Equity
Interests in each Person shown to be held by it on such Schedule, (B) all of the issued and
outstanding capital stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (C) there are no outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without limitation, any
stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, any such Person. As of the Agreement
Date, Part II of Schedule 6.1.(b) correctly sets forth all Unconsolidated Affiliates of the
Borrower, including the correct legal name of such Person, the type of legal entity which each such
Person is, and all Equity Interests in such Person held directly or indirectly by the Borrower.



(c) Authorization of Loan Documents and Borrowings. The Borrower has the right and
power, and has taken all necessary action to authorize it, to borrow and obtain other extensions of
credit hereunder. The Borrower and each other Loan Party has the right and power, and has taken
all necessary action to authorize it, to execute, deliver and perform each of the Loan Documents
and the Fee Letter to which it is a party in accordance with their respective terms and to
consummate the transactions contemplated hereby and thereby. The Loan Documents and the Fee Letter
to which the Borrower or any other Loan Party is a party have been duly executed and delivered by
the duly authorized officers of such Person and each is a legal, valid and binding obligation of
such Person enforceable against such Person in accordance with its respective terms, except as the
same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of
creditors generally and the availability of equitable remedies for
the enforcement of certain obligations (other than the payment of principal) contained herein or
therein and as may be limited by equitable principles generally.


 


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(d) Compliance of Loan Documents with Laws. The execution, delivery and performance
of this Agreement, the other Loan Documents to which any Loan Party is a party and of the Fee
Letter in accordance with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require
any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating
to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a
default under the organizational documents of any Loan Party, or any indenture, agreement or other
instrument to which the Borrower or any other Loan Party is a party or by which it or any of its
respective properties may be bound; or (iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter acquired by any Loan Party other
than in favor of the Administrative Agent for its benefit and the benefit of the Lenders and the
Issuing Bank.



(e) Compliance with Law; Governmental Approvals. Each of the Borrower, the other Loan
Parties and the other Subsidiaries is in compliance with each Governmental Approval and all other
Applicable Laws relating to it except for noncompliances which, and Governmental Approvals the
failure to possess which, could not, individually or in the aggregate, reasonably be expected to
cause a Default or Event of Default or have a Material Adverse Effect.



(f) Title to Properties; Liens. Schedule 6.1.(f) is, as of the Agreement Date, a
complete and correct listing of all real estate assets of the Borrower and each other Loan Party,
setting forth, for each such Property, the current occupancy status of such Property and whether
such Property is a Development Property or Renovation Property and, if such Property is a
Development Property or Renovation Property, the status of completion of such Property. Each of
the Borrower, each other Loan Party and each other Subsidiary has good, marketable and legal title
to, or a valid leasehold interest in, its respective assets.



(g) Existing Debt. Schedule 6.1.(g) is, as of the Agreement Date, a complete and
correct listing of all Debt (including all Guarantees) of each of the Borrower and the other Loan
Parties, and if such Debt is secured by any Lien, a description of all of the property subject to
such Lien. As of the Agreement Date, the Borrower and the other Loan Parties have performed and are
in compliance with all of the terms of such Debt and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with the giving of notice,
the lapse of time, or both, would constitute a default or event of default, exists with respect to
any such Debt.



(h) Material Contracts. Each of the Borrower, the other Loan Parties and the other
Subsidiaries that is party to any Material Contract has performed and is in compliance with all of
the terms of such Material Contract, and no default or event of default, or event or condition
which with the giving of notice, the lapse of time, or both, would constitute such a default or
event of default, exists with respect to any such Material Contract.



(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no actions, suits
or proceedings pending (nor, to the knowledge of any Loan Party, are there any actions, suits,
investigations or proceedings threatened, nor is there any basis therefor) against or in any other
way relating adversely to or affecting the Borrower, any other Loan Party, any other Subsidiary or
any of their respective property in any court or before any arbitrator of any kind or before or by
any other Governmental Authority which, (i) could reasonably be expected to have a Material Adverse
Effect or (ii) in any manner draws into question the validity or enforceability of any Loan
Document or the Fee Letter. There are no strikes, slow downs, work stoppages or walkouts or other
labor disputes in progress or threatened relating to, any Loan Party or any other Subsidiary.


 


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(j) Taxes. All federal, state and other tax returns of the Borrower, each other Loan
Party and each other Subsidiary required by Applicable Law to be filed have been duly filed, and
all federal, state and other taxes, assessments and other governmental charges or levies upon, each
Loan Party, each other Subsidiary and their respective properties, income, profits and assets which
are due and payable have been paid, except any such nonpayment or non-filing which is at the time
permitted under Section 7.6. As of the Agreement Date, none of the United States income tax
returns of the Borrower, any other Loan Party or any other Subsidiary is under audit. All charges,
accruals and reserves on the books of the Borrower, the other Loan Parties and the other
Subsidiaries in respect of any taxes or other governmental charges are in accordance with GAAP.



(k) Financial Statements. The Borrower has furnished to each Lender copies of (i) the
audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries for the fiscal
years ended December 31, 2009, and December 31, 2010, and the related audited consolidated
statements of operations, shareholders’ equity and cash flow for the fiscal years ended on such
dates, with the opinion thereon of Ernst & Young LLP, and (ii) the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries for the fiscal quarter ended June 30, 2011,
and the related unaudited consolidated statements of operations, shareholders’ equity and cash flow
of the Borrower and its consolidated Subsidiaries for the two fiscal quarter period ended on such
date. Such financial statements (including in each case related schedules and notes, if any) are
complete and correct in all material respects and present fairly, in accordance with GAAP
consistently applied throughout the periods involved, the consolidated financial position of the
Borrower and its consolidated Subsidiaries as at their respective dates and the results of
operations and the cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments and to the addition of footnotes and other
presentation items). Neither the Borrower nor any of its Subsidiaries has on the Agreement Date
any material contingent liabilities, liabilities, liabilities for taxes, unusual or long-term
commitments or unrealized or forward anticipated losses from any unfavorable commitments that would
be required to be set forth in its financial statements or notes thereto, except as referred to or
reflected or provided for in the financial statements described in the first sentence of this
Section 6.1.(k).



(l) No Material Adverse Change. Since December 31, 2010, there has been no event,
change, circumstance or occurrence that could reasonably be expected to have a Material Adverse
Effect. Each of the Borrower, the other Loan Parties and the other Subsidiaries is Solvent.




(m) ERISA.




(i) Each Benefit Arrangement is in compliance with the applicable provisions of ERISA,
the Internal Revenue Code and other Applicable Laws in all material respects. Except with
respect to Multiemployer Plans, each Qualified Plan (A) has received a favorable
determination from the Internal Revenue Service applicable to such Qualified Plan’s current
remedial amendment cycle (as defined in Revenue Procedure 2007-44 or “2007-44” for short),
(B) has timely filed for a favorable determination letter from the Internal Revenue Service
during its staggered remedial amendment cycle (as defined in 2007-44) and such application
is currently being processed by the Internal Revenue Service, (C) had filed for a
determination letter prior to its “GUST remedial amendment period” (as defined in 2007-44)
and received such determination letter and the staggered remedial amendment cycle first
following the GUST remedial amendment period for such Qualified Plan has not yet expired, or
(D) is maintained under a prototype plan and may rely upon a favorable opinion letter issued
by the Internal Revenue Service with respect to such prototype plan. To the best knowledge
of the Borrower, nothing has occurred which would cause the loss of its reliance on each
Qualified Plan’s favorable determination letter or opinion letter.


 


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(ii) With respect to any Benefit Arrangement that is a retiree welfare benefit
arrangement, all amounts have been accrued on the applicable ERISA Group’s financial
statements in accordance with FASB ASC 715. The “benefit obligation” of all Plans does not
exceed the “fair market value of plan assets” for such Plans by more than $10,000,000 all as
determined by and with such terms defined in accordance with FASB ASC 715.




(iii) Except as could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect: (i) no ERISA Event has occurred or is expected to occur;
(ii) there are no pending, or to the best knowledge of the Borrower, threatened, claims,
actions or lawsuits or other action by any Governmental Authority, plan participant or
beneficiary with respect to a Benefit Arrangement; (iii) there are no violations of the
fiduciary responsibility rules with respect to any Benefit Arrangement; and (iv) no member
of the ERISA Group has engaged in a non-exempt “prohibited transaction,” as defined in
Section 406 of ERISA and Section 4975 of the Internal Revenue Code, in connection with any
Plan, that would subject any member of the ERISA Group to a tax on prohibited transactions
imposed by Section 502(i) of ERISA or Section 4975 of the Internal Revenue Code.



(n) Absence of Default. None of the Loan Parties or any of the other Subsidiaries is
in default under its certificate or articles of incorporation or formation, bylaws, partnership
agreement or other similar organizational documents, and no event has occurred, which has not been
remedied, cured or waived: (i) which constitutes a Default or an Event of Default; or (ii) which
constitutes, or which with the passage of time, the giving of notice, or both, would constitute, a
default or event of default by, any Loan Party or any other Subsidiary under any agreement (other
than this Agreement) or judgment, decree or order to which any such Person is a party or by which
any such Person or any of its respective properties may be bound where such default or event of
default could, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



(o) Environmental Laws. Each of the Borrower, each other Loan Party and the other
Subsidiary: (i) is in compliance with all Environmental Laws applicable to its business, operations
and the Properties, (ii) has obtained all Governmental Approvals which are required under
Environmental Laws, and each such Governmental Approval is in full force and effect, and (iii) is
in compliance with all terms and conditions of such Governmental Approvals, where with respect to
each of the immediately preceding clauses (i) through (iii) the failure to obtain or to comply with
could reasonably be expected to have a Material Adverse Effect. Except for any of the following
matters that could not reasonably be expected to have a Material Adverse Effect, no Loan Party has
any knowledge of, or has received notice of, any past, present, or pending releases, events,
conditions, circumstances, activities, practices, incidents, facts, occurrences, actions, or plans
that, with respect to any Loan Party or any other Subsidiary, their respective businesses,
operations or with respect to the Properties, may: (x) cause or contribute to an actual or alleged
violation of or noncompliance with Environmental Laws, (y) cause or contribute to any other
potential common-law or legal claim or other liability, or (z) cause any of the Properties to
become subject to any restrictions on ownership, occupancy, use or transferability under any
Environmental Law or require the filing or recording of any notice, approval or disclosure document
under any Environmental Law and, with respect to the immediately preceding clauses (x) through (z)
is based on or related to the on-site or off-site manufacture, generation, processing,
distribution, use, treatment, storage, disposal, transport, removal, clean up or handling, or the
emission, discharge, release or threatened release of any wastes or Hazardous Material, or any
other requirement under Environmental Law. There is no civil, criminal, or administrative action,
suit, demand, claim, hearing, notice, or demand letter, mandate, order, lien, request,
investigation, or proceeding pending or, to the Borrower’s knowledge after due inquiry, threatened,
against the Borrower, any other Loan Party or any other Subsidiary relating in


 


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 any way to
Environmental Laws which, reasonably could be expected to have a Material Adverse Effect. None of the Properties is listed on or proposed for listing on the National Priority List
promulgated pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of
1980 and its implementing regulations, or any state or local priority list promulgated pursuant to
any analogous state or local law. To the Borrower’s knowledge, no Hazardous Materials generated at
or transported from the Properties are or have been transported to, or disposed of at, any location
that is listed or proposed for listing on the National Priority List or any analogous state or
local priority list, or any other location that is or has been the subject of a clean-up, removal
or remedial action pursuant to any Environmental Law, except to the extent that such transportation
or disposal could not reasonably be expected to result in a Material Adverse Effect.



(p) Investment Company. None of the Borrower, any other Loan Party or any other
Subsidiary is (i) an “investment company” or a company “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or (ii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow money or obtain other
extensions of credit or to consummate the transactions contemplated by this Agreement or to perform
its obligations under any Loan Document to which it is a party.



(q) Margin Stock. None of the Borrower, any other Loan Party or any other Subsidiary
is engaged principally, or as one of its important activities, in the business of extending credit
for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U of the Board of Governors of the Federal Reserve System.



(r) Affiliate Transactions. Except as permitted by Section 9.8. or as otherwise set
forth on Schedule 6.1.(s), none of the Borrower, any other Loan Party or any other Subsidiary is a
party to or bound by any agreement or arrangement with any Affiliate.



(s) Intellectual Property. Each of the Loan Parties and each other Subsidiary owns or
has the right to use, under valid license agreements or otherwise, all patents, licenses,
franchises, trademarks, trademark rights, service marks, service mark rights, trade names, trade
name rights, trade secrets and copyrights (collectively, “Intellectual Property”) necessary to the
conduct of its businesses, without known conflict with any patent, license, franchise, trademark,
trademark right, service mark, service mark right, trade secret, trade name, copyright, or other
proprietary right of any other Person. All such Intellectual Property is fully protected and/or
duly and properly registered, filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances to the extent necessary to conduct the business of the
applicable Loan Party. No material claim has been asserted by any Person with respect to the use
of any such Intellectual Property by the Borrower, any other Loan Party or any other Subsidiary, or
challenging or questioning the validity or effectiveness of any such Intellectual Property. The
use of such Intellectual Property by the Borrower, the other Loan Parties and the other
Subsidiaries does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the part of the
Borrower, any other Loan Party or any other Subsidiary that could reasonably be expected to have a
Material Adverse Effect.



(t) Business. As of the Agreement Date, the Borrower, the other Loan Parties and the
other Subsidiaries are engaged in the business of owning, selling, acquiring, renovating,
developing and managing apartment communities, together with other business activities incidental
thereto.



(u) Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation
will be payable with respect to the transactions contemplated hereby. No other similar fees or
commissions will be payable by any Loan Party for any other services rendered to the Borrower, any
other Loan Party or any other Subsidiary ancillary to the transactions contemplated hereby.


 


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(v) Accuracy and Completeness of Information. All written information, reports and
other papers and data (other than financial projections and other forward looking statements)
furnished to the Administrative Agent or any Lender by, on behalf of, or at the direction of, the
Borrower, any other Loan Party or any other Subsidiary were, at the time the same were so
furnished, complete and correct in all material respects, or, in the case of financial statements,
present fairly, in accordance with GAAP consistently applied throughout the periods involved, the
financial position of the Persons involved as at the date thereof and the results of operations for
such periods (subject, as to interim statements, to changes resulting from normal year end audit
adjustments and absence of full footnote disclosure and presentation items), and in any case, all
such written information, reports, other papers and data and financial statements (other than
financial projections and other forward looking statements), to the knowledge of the Borrower do
not contain, or will not contain, any untrue statement of a material fact, or do not omit, or will
not omit, any material fact necessary in order to make the statements contained therein not
misleading. All financial projections and other forward looking statements prepared by or on
behalf of the Borrower, any other Loan Party or any other Subsidiary that have been or may
hereafter be made available to the Administrative Agent or any Lender were or will be prepared in
good faith based on reasonable assumptions. No fact is known to any Loan Party which has had, or
may in the future have (so far as any Loan Party can reasonably foresee), a Material Adverse Effect
which has not been set forth in the financial statements referred to in Section 6.1.(k) or in such
information, reports or other papers or data or otherwise disclosed in writing to the
Administrative Agent and the Lenders.



(w) Not Plan Assets; No Prohibited Transactions. None of the assets of the Borrower,
any other Loan Party or any other Subsidiary constitutes “plan assets” within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder. Assuming that no
Lender funds any amount payable by it hereunder with “plan assets,” as that term is defined in 29
C.F.R. 2510.3-101, the execution, delivery and performance of this Agreement and the other Loan
Documents, and the extensions of credit and repayment of amounts hereunder, do not and will not
constitute “prohibited transactions” under ERISA or the Internal Revenue Code.



(x) OFAC. None of the Borrower, any of the other Loan Parties, any of the other
Subsidiaries, or any other Affiliate of the Borrower: (i) is a person named on the list of
Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”) available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml or as otherwise published from time to
time; (ii) is (A) an agency of the government of a country, (B) an organization controlled by a
country, or (C) a person resident in a country that is subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml, or as otherwise published from time to
time, as such program may be applicable to such agency, organization or person; or (iii) derives
any of its assets or operating income from investments in or transactions with any such country,
agency, organization or person; and none of the proceeds from any Loan, and no Letter of Credit,
will be used to finance any operations, investments or activities in, or make any payments to, any
such country, agency, organization, or person.



(y) REIT Status. The Borrower qualifies as, and has elected to be treated as, a REIT
and is in compliance with all requirements and conditions imposed under the Internal Revenue Code
to allow the Borrower to maintain its status as a REIT.



(z) Unencumbered Pool Assets. As of the Agreement Date, Schedule 6.1.(z) is a correct
and complete list of all Unencumbered Pool Assets. Each of the assets included by the Borrower in
calculations of Gross Asset Value of the Unencumbered Pool satisfies all of the requirements
contained in the definition of “Unencumbered Pool Asset”.


 


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(aa) Insurance. The Borrower, each Loan Party and each Subsidiary maintains the
insurance of the types and in the amount as required by Section 7.5.



Section 6.2. Survival of Representations and Warranties, Etc.



All statements contained in any certificate, financial statement or other instrument delivered
by or on behalf of any Loan Party or any other Subsidiary to the Administrative Agent or any Lender
pursuant to or in connection with this Agreement or any of the other Loan Documents (including, but
not limited to, any such statement made in or in connection with any amendment thereto or any
statement contained in any certificate, financial statement or other instrument delivered by or on
behalf of any Loan Party prior to the Agreement Date and delivered to the Administrative Agent or
any Lender in connection with the underwriting or closing the transactions contemplated hereby)
shall constitute representations and warranties made by the Borrower under this Agreement. All
representations and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date, the date on which any
extension of the Termination Date is effectuated pursuant to Section 2.13. and at and as of the
date of the occurrence of each Credit Event, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects (except in the case of a
representation or warranty qualified by materiality, in which case such representation or warranty
shall be true and correct in all respects) on and as of such earlier date) and except for changes
in factual circumstances expressly and specifically permitted hereunder. All such representations
and warranties shall survive the effectiveness of this Agreement, the execution and delivery of the
Loan Documents and the making of the Loans and the issuance of the Letters of Credit.



Article VII. Affirmative Covenants




For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner provided for
in Section 12.6., the Borrower shall comply with the following covenants:



Section 7.1. Preservation of Existence and Similar Matters.



Except as otherwise permitted under Section 9.4., the Borrower shall, and shall cause each
other Loan Party and each other Subsidiary to, preserve and maintain its respective existence,
rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation
and qualify and remain qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could reasonably be expected
to have a Material Adverse Effect.



Section 7.2. Compliance with Applicable Law.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, comply
with all Applicable Law, including the obtaining of all Governmental Approvals, the failure with
which to comply could reasonably be expected to have a Material Adverse Effect.



Section 7.3. Maintenance of Property.



In addition to the requirements of any of the other Loan Documents, the Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, (a) protect and preserve all of its
respective material properties, including, but not limited to, all Intellectual Property necessary
to the conduct of its respective business, and maintain in good repair, working order and condition
all tangible properties,
ordinary wear and tear excepted, and (b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so that the business
carried on in connection therewith may be properly conducted at all times.


 


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Section 7.4. Conduct of Business.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, carry
on its respective businesses as described in Section 6.1.(t) and not enter into any line of
business (a) not otherwise engaged in by such Person as of the Agreement Date or (b) not incidental
to the businesses as described in Section 6.1.(t).



Section 7.5. Insurance.



In addition to the requirements of any of the other Loan Documents, the Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, maintain insurance with such
insurers, on such properties, in such amounts and against such risks (excluding terrorist insurance
and mold insurance and, to the extent the same are not commercially available or available at
commercially reasonable rates, earthquake insurance or windstorm insurance) as is consistent with
insurance maintained by businesses of comparable size and type of the Borrower, the other Loan
Parties or other Subsidiaries, as applicable, and in the same line of business as the Borrower, the
other Loan Parties or other Subsidiaries, as applicable, and furnish to the Administrative Agent
upon request a detailed list, stating the names of the insurance companies, the amounts and rates
of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.



Section 7.6. Payment of Taxes and Claims.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, pay
and discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims
of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and
rentals which, if unpaid, might become a Lien on any properties of such Person; provided, however,
that this Section shall not require the payment or discharge of any such tax, assessment, charge,
levy or claim which is being contested in good faith by appropriate proceedings which operate to
suspend the collection thereof and for which adequate reserves have been established on the books
of such Person in accordance with GAAP.



Section 7.7. Books and Records; Inspections.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, keep
proper books of record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities. The Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, permit representatives of the
Administrative Agent or any Lender to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers, employees and independent
public accountants (in the presence of an officer of the Borrower if an Event of Default does not
then exist), all at such reasonable times during business hours and as often as may reasonably be
requested and so long as no Event of Default exists, with reasonable prior notice. The Borrower
shall be obligated to reimburse the Administrative Agent and the Lenders for their costs and
expenses incurred in connection with the exercise of their rights under this Section only if such
exercise occurs while a Default or Event of Default exists. If requested by the Administrative
Agent, the Borrower shall execute an authorization letter addressed to its accountants authorizing
the Administrative Agent or any Lender to discuss the financial affairs of the Borrower, any other Loan
Party or any other Subsidiary with the Borrower’s accountants.


 


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Section 7.8. Use of Proceeds.



The Borrower will use the proceeds of Loans only (a) to finance capital expenditures and the
repayment of Debt of the Borrower and its Subsidiaries and (b) to provide for the general working
capital needs of the Borrower and its Subsidiaries and for other general corporate purposes of the
Borrower and its Subsidiaries. The Borrower shall only use Letters of Credit for the same purposes
for which it may use the proceeds of Loans. The Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, use any part of such proceeds to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within
the meaning of Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying any such margin
stock.



Section 7.9. Environmental Matters.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, comply
with all Environmental Laws the failure with which to comply could reasonably be expected to have a
Material Adverse Effect. The Borrower shall comply, and shall cause each other Loan Party and each
other Subsidiary to comply, and the Borrower shall use, and shall cause each other Loan Party and
each other Subsidiary to use, commercially reasonable efforts to cause all other Persons occupying,
using or present on the Properties to comply, with all Environmental Laws in all material respects.
The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, promptly
take all actions and pay or arrange to pay all costs necessary for it and for the Properties to
comply in all material respects with all Environmental Laws and all Governmental Approvals,
including actions to remove and dispose of all Hazardous Materials and to clean up the Properties
as required under Environmental Laws. The Borrower shall, and shall cause each other Loan Party
and each other Subsidiary to, promptly take all actions necessary to prevent the imposition of any
Liens on any of their respective properties arising out of or related to any Environmental Laws.
Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative
Agent or any Lender.



Section 7.10. Further Assurances.




At the Borrower’s cost and expense and upon request of the Administrative Agent, the Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to, duly execute and deliver
or cause to be duly executed and delivered, to the Administrative Agent such further instruments,
documents and certificates, and do and cause to be done such further acts that may be reasonably
necessary or advisable in the reasonable opinion of the Administrative Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan Documents.



Section 7.11. Material Contracts.



The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, duly
and punctually perform and comply with any and terms and conditions of each Material Contract, the
breach of which would permit the termination of such Material Contract.



Section 7.12. REIT Status.



The Borrower shall maintain its status as, and election to be treated as, a REIT under the
Internal Revenue Code.


 


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Section 7.13. Guarantors.



(a) Within 45 days of any Person becoming a Material Subsidiary (other than an Excluded
Subsidiary) after the Agreement Date, the Borrower shall deliver to the Administrative Agent each
of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession
Agreement executed by such Subsidiary and (ii) the items that would have been delivered under
subsections (iv) through (viii) and (xiv) of Section 5.1.(a) if such Subsidiary had been a Material
Subsidiary on the Agreement Date; provided, however, promptly (and in any event
within 30 days) upon any Excluded Subsidiary ceasing to be subject to the restriction which
prevented it from becoming a Guarantor on the Effective Date or delivering an Accession Agreement
pursuant to this Section, as the case may be, such Subsidiary shall comply with the provisions of
this Section.



(b) The Borrower may request in writing that the Administrative Agent release, and upon
receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so
long as: (i) such Guarantor meets, or will meet simultaneously with its release from the Guaranty,
all of the provisions of the definition of the term “Excluded Subsidiary” or has ceased to be, or
simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary; (ii)
such Guarantor is not otherwise required to be a party to the Guaranty under the immediately
preceding subsection (a); (iii) no Default or Event of Default shall then be in existence or would
occur as a result of such release, including without limitation, a Default or Event of Default
resulting from a violation of any of the covenants contained in Section 9.1.; (iv) the
representations and warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all material respects
on and as of the date of such release with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents; and (v) the Administrative Agent shall have
received such written request at least 10 Business Days prior to the requested date of release.
Delivery by the Borrower to the Administrative Agent of any such request shall constitute a
representation by the Borrower that the matters set forth in the preceding sentence (both as of the
date of the giving of such request and as of the date of the effectiveness of such request) are
true and correct with respect to such request.



Section 7.14. Exchange Listing.



The Borrower shall maintain at least one class of common shares of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or which is the subject of
price quotations in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System.



Article VIII. Information




For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.6., the Borrower shall furnish to the Administrative Agent for distribution to each of
the Lenders:


 


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Section 8.1. Quarterly Financial Statements.



As soon as available and in any event within 5 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 60 days after the close of
each of the
first, second and third fiscal quarters of the Borrower), the unaudited consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such period and the related unaudited
consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries for such period, setting forth in each case in comparative form the figures as of the
end of and for the corresponding periods of the previous fiscal year, all of which shall be
certified by the chief financial officer of the Borrower, in his or her opinion, to present fairly,
in accordance with GAAP (provided that such statements shall not include footnotes and other
presentation items) and in all material respects, the consolidated financial position of the
Borrower and its Subsidiaries as at the date thereof and the results of operations for such period
(subject to normal year-end audit adjustments).



Section 8.2. Year-End Statements.



As soon as available and in any event within 5 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 90 days after the end of
each fiscal year of the Borrower), the audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of
income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal
year, setting forth in comparative form the figures as at the end of and for the previous fiscal
year, all of which shall be certified by (a) the chief financial officer of the Borrower, in his or
her opinion, to present fairly, in accordance with GAAP and in all material respects, the
consolidated financial position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period and (b) independent certified public accountants of
recognized national standing, whose certificate shall be unqualified and who shall have authorized
the Borrower to deliver such financial statements and certification thereof to the Agent and the
Lenders pursuant to this Agreement.



Section 8.3. Compliance Certificate.



At the time the financial statements are furnished pursuant to Sections 8.1. and 8.2., a
certificate substantially in the form of Exhibit P (a “Compliance Certificate”) executed on behalf
of the Borrower by a Responsible Officer (a) setting forth in reasonable detail as of the end of
such quarterly accounting period or fiscal year, as the case may be, the calculations required to
establish whether the Borrower was in compliance with the covenants contained in Section 9.1.; (b)
stating, to the best of his or her knowledge, after due inquiry, that no Default or Event of
Default exists, or, if such is not the case, specifying such Default or Event of Default and its
nature, when it occurred, whether it is continuing and the steps being taken by the Borrower with
respect to such event, condition or failure and (c) during such quarterly accounting period or
fiscal year, as the case may be, each of the members of the Consolidated Group has observed or
performed in all material respects its agreements and covenants, and has satisfied in all material
respects the conditions, in each case set forth in this Agreement and each other Loan Document to
which such Person is a party. In addition, if the Administrative Agent or the Requisite Lenders
reasonably believe that a Default or Event of Default may exist or may be likely to occur, the
Borrower shall deliver to the Administrative Agent within 30 days of the Administrative Agent’s
request a Compliance Certificate with respect to any other fiscal month end; provided, that the
Borrower shall not be required to provide a Compliance Certificate pursuant to this sentence more
than once during any fiscal quarter. Each Compliance Certificate shall be accompanied by a
reasonably detailed list of all assets included in calculations of Gross Asset Value of the
Unencumbered Pool and shall disclose which assets have been added or removed from such calculation
since the previous list delivered to the Agent.


 


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Section 8.4. Other Information.



(a) Promptly upon receipt thereof, copies of all reports, if any, submitted to the Borrower or
its Board of Directors by its independent public accountants including, without limitation, any
management report;



(b) Within five (5) Business Days of the filing thereof, copies of all registration statements
(excluding the exhibits thereto (unless requested by the Administrative Agent) and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which any Loan Party or any other Subsidiary shall file
with the Securities and Exchange Commission (or any Governmental Authority substituted therefor) or
any national securities exchange;



(c) Promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of
all financial statements, reports and proxy statements so mailed and promptly upon the issuance
thereof copies of all press releases issued by the Borrower, any Subsidiary or any other Loan
Party;



(d) If any ERISA Event shall occur that individually, or together with any other ERISA Event
that has occurred, could reasonably be expected to have a Material Adverse Effect, a certificate of
a Responsible Officer setting forth details as to such occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group is required or proposes to take;



(e) To the extent any Loan Party or any other Subsidiary is aware of the same, prompt notice
of the commencement of any proceeding or investigation by or before any Governmental Authority and
any action or proceeding in any court or other tribunal or before any arbitrator against or in any
other way relating to, or affecting, any Loan Party or any other Subsidiary or any of their
respective properties, assets or businesses which could reasonably be expected to have a Material
Adverse Effect, and prompt notice of the receipt of notice that any United States income tax
returns of any Loan Party or any other Subsidiary are being audited;



(f) A copy of any amendment adverse to the interest of the Lenders to the certificate or
articles of incorporation or formation, bylaws, partnership agreement or other similar
organizational documents of the Borrower, any other Loan Party or any other Subsidiary, promptly
upon, and in any event, within 15 days of, the effectiveness thereof;



(g) Prompt notice of (i) any change in the senior management of the Borrower, any other Loan
Party or any other Subsidiary, (ii) any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of any Loan Party or any other Subsidiary or
(iii) the occurrence of any other event which, in the case of any of the immediately preceding
clauses (i) through (iii), has had, or could reasonably be expected to have, a Material Adverse
Effect;



(h) Notice of the occurrence of any of the following promptly upon a Responsible Office or the
Borrower obtaining knowledge thereof: (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time, the giving of notice, or otherwise, would constitute
a default or event of default by any Loan Party or any other Subsidiary under any Material Contract
to which any such Person is a party or by which any such Person or any of its respective properties
may be bound;



(i) Prompt notice of any order, judgment or decree in excess of $25,000,000 having been
entered against any Loan Party or any other Subsidiary or any of their respective properties or
assets;


 


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(j) Any notification of a material violation of any Applicable Law or any inquiry shall have
been received by any Loan Party or any other Subsidiary from any Governmental Authority;



(k) Promptly, upon any change in the Borrower’s Credit Rating, a certificate stating that the
Borrower’s Credit Rating has changed and the new Credit Rating that is in effect;



(l) Promptly, upon each request, information identifying the Borrower as a Lender may request
in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001));



(m) Promptly, and in any event within five (5) Business Days after the Borrower obtains
knowledge thereof, written notice of the occurrence of any of the following: (i) the Borrower, any
Loan Party or any other Subsidiary shall receive notice that any violation of or noncompliance with
any Environmental Law has or may have been committed or is threatened; (ii) the Borrower, any Loan
Party or any other Subsidiary shall receive notice that any administrative or judicial complaint,
order or petition has been filed or other proceeding has been initiated, or is about to be filed or
initiated against any such Person alleging any violation of or noncompliance with any Environmental
Law or requiring any such Person to take any action in connection with the release or threatened
release of Hazardous Materials; (iii) the Borrower, any Loan Party or any other Subsidiary shall
receive any notice from a Governmental Authority or private party alleging that any such Person may
be liable or responsible for any costs associated with a response to, or remediation or cleanup of,
a release or threatened release of Hazardous Materials or any damages caused thereby; or (iv) the
Borrower, any Loan Party or any other Subsidiary shall receive notice of any other fact,
circumstance or condition that could reasonably be expected to form the basis of an environmental
claim, and the matters covered by notices referred to in any of the immediately preceding clauses
(i) through (iv), whether individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;



(n) From time to time and promptly upon each request, such data, certificates, reports,
statements, opinions of counsel, documents or further information regarding any Property or the
business, assets, liabilities, financial condition, results of operations or business prospects of
the Borrower, any of its Subsidiaries, or any other Loan Party as the Administrative Agent or any
Lender may reasonably request.



Section 8.5. Electronic Delivery of Certain Information.



(a) Documents required to be delivered pursuant to the Loan Documents shall be delivered by
electronic communication and delivery, including, the Internet, e-mail or intranet websites to
which the Administrative Agent and each Lender have access (including a commercial, third-party
website such as www.sec.gov <http://www.sec.gov> or a website sponsored or hosted by the
Administrative Agent or the Borrower) provided that the foregoing shall not apply to (i) notices to
any Lender (or the Issuing Bank) pursuant to Article II. and (ii) any Lender that has notified the
Administrative Agent and the Borrower that it cannot or does not want to receive electronic
communications. The Administrative Agent or the Borrower may, in its discretion and subject to the
next sentence, agree to accept notices and other communications to it hereunder by electronic
delivery pursuant to procedures approved by it for all or particular notices or communications.
Documents or notices delivered electronically shall be deemed to have been delivered twenty-four
(24) hours after the date and time on which the Administrative Agent or the Borrower posts such
documents or the documents become available on a commercial website (provided that documents posted
on http://www.sec.gov shall be deemed to have been delivered when posted) and the Administrative
Agent or Borrower notifies each Lender of said posting (provided that no notice shall be required
for any document posted on http://www.sec.gov) and provides a link thereto provided if such notice
or other


 


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communication is not sent or posted during the normal business hours of the recipient, said posting date and time shall be deemed to have commenced as of 9:00 a.m. Pacific
time on the opening of business on the next business day for the recipient. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the certificate required by Section 8.3. to the Administrative Agent and shall deliver paper
copies of any documents to the Administrative Agent or to any Lender that requests such paper
copies until a written request to cease delivering paper copies is given by the Administrative
Agent or such Lender. Except for the certificates required by Section 8.3., the Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the
documents delivered electronically, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery. Each Lender shall be solely
responsible for requesting delivery to it of paper copies and maintaining its paper or electronic
documents.



(b) Documents required to be delivered pursuant to Article II. may be delivered electronically
to a website provided for such purpose by the Administrative Agent pursuant to the procedures
provided to the Borrower by the Administrative Agent.



Section 8.6. Public/Private Information.



The Borrower shall cooperate with the Administrative Agent in connection with the publication
of certain materials and/or information provided by or on behalf of the Borrower. Documents
required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the
Borrower to the Administrative Agent and the Lenders (collectively, “Information Materials”)
pursuant to this Article and the Borrower shall designate Information Materials (a) that are either
available to the public or not material with respect to the Borrower and its Subsidiaries or any of
their respective securities for purposes of United States federal and state securities laws, as
“Public Information” and (b) that are not Public Information as “Private Information”.



Section 8.7. USA Patriot Act Notice; Compliance.



The USA Patriot Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
and federal regulations issued with respect thereto require all financial institutions to obtain,
verify and record certain information that identifies individuals or business entities which open
an “account” with such financial institution. Consequently, a Lender (for itself and/or as
Administrative Agent for all Lenders hereunder) may from time-to-time request, and the Borrower
shall, and shall cause the other Loan Parties to, provide to such Lender, such Loan Party’s name,
address, tax identification number and/or such other identification information as shall be
necessary for such Lender to comply with federal law. An “account” for this purpose may include,
without limitation, a deposit account, cash management service, a transaction or asset account, a
credit account, a loan or other extension of credit, and/or other financial services product.



Article IX. Negative Covenants




For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.6., the Borrower shall comply with the following covenants:


 


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Section 9.1. Financial Covenants.



(a) Maximum Leverage Ratio. The ratio of (i) Consolidated Funded Debt to (ii) Gross
Asset Value (the “Leverage Ratio”), to exceed 0.60 to 1.0 at any time; provided, however, (A) upon
the election of the Borrower, if a member of the Consolidated Group consummates an acquisition or
merger permitted
by Section 9.4. the Leverage Ratio may be increased to, and the Borrower shall not permit the
Leverage Ratio to exceed, 0.65 to 1.0 at any time during the consecutive four-fiscal quarter period
that begins as of the first day of the fiscal quarter in which such acquisition or merger was
consummated (the “Leverage Ratio Increase Period”) and (B) (I) Consolidated Funded Debt shall be
adjusted by deducting therefrom an amount equal to the lesser of (x) the amount by which the
unrestricted cash and cash equivalents of the Consolidated Group at the end of such fiscal quarter
exceeds $35,000,000 and (y) Consolidated Funded Debt that by its terms is scheduled to mature on or
before the date that is 24 months from the date of calculation, and (II) Gross Asset Value shall be
adjusted by deducting therefrom the amount by which Consolidated Funded Debt is adjusted under the
preceding clause (B)(I) of this proviso; provided further, however, that the Borrower may not elect
to increase the Leverage Ratio as provided in clause (A) of this proviso (x) more than two times
during the term of this Agreement and (y) unless one full fiscal quarter has elapsed between the
end of the first Leverage Ratio Increase Period and the beginning of the second Leverage Ratio
Increase Period.



(b) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Consolidated Adjusted
EBITDA for the two fiscal quarter period of the Borrower most recently ending (annualized) to (ii)
Consolidated Total Fixed Charges for such period (annualized), to be less than 1.50 to 1.00 at the
end of any fiscal quarter.



(c) Maximum Secured Debt. The ratio of (i) Consolidated Secured Debt to (ii) Gross
Asset Value, to be greater than 0.40 to 1.00 at any time.



(d) Minimum Unencumbered Pool Leverage Ratio. The ratio of (i) Gross Asset Value of
the Unencumbered Pool to (ii) Consolidated Unsecured Debt, to be less than 1.50 to 1.00 at the end
of any fiscal quarter; provided, however, that (A) Consolidated Unsecured Debt shall be adjusted by
deducting therefrom an amount equal to the lesser of (x) the amount by which the unrestricted cash
and cash equivalents of the Consolidated Group at the end of such fiscal quarter exceeds
$35,000,000 and (y) Consolidated Unsecured Debt that by its terms is scheduled to mature on or
before the date that is 24 months from the date of calculation, and (B) Gross Asset Value of the
Unencumbered Pool shall be adjusted by deducting therefrom the amount by which Consolidated
Unsecured Debt is adjusted under the preceding clause (A).



(e) Permitted Investments. The Borrower shall not, and shall not permit any Subsidiary
to, make any Investment in or otherwise own the following items which would cause the aggregate
value of such holdings of the Borrower and such other Subsidiaries to exceed 30.0% of Gross Asset
Value at any time (or in the case of promissory notes and marketable securities described in
subsection (v) below to exceed 10.0% of Gross Asset Value at any time):




(i) Investments in partnerships, joint ventures, Unconsolidated Affiliates, and other
Persons that, in each case, are not Subsidiaries, with the value thereof determined in a
manner consistent with the definition of Gross Asset Value or, if not contemplated under the
definition of Gross Asset Value, as determined in accordance with GAAP;




(ii) Development Properties valued at book value, Condominium Properties valued at
their Condominium Property Value, and Renovation Properties valued at their Renovation
Property Value;




(iii) Properties that are developed but that are not Multifamily Properties, with value
based on the lower of cost or market price determined in accordance with GAAP;




(iv) raw land, valued at current book value;


 


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(v) promissory notes, including any secured by a Mortgage, payable solely to any member
of the Consolidated Group and the obligors of which are not Affiliates of the Borrower, and
all marketable securities, with value based on the lower of cost or market price determined
in accordance with GAAP; and




(vi) Investments in Multifamily REIT Preferred Interests; provided, however, such
Investments must be acquired or otherwise made in connection with the acquisition of a
portfolio of Multifamily Properties or a series of Multifamily Properties.



(f) Dividends and Other Restricted Payments. Subject to the following sentence, if a
Default or Event of Default exists, the Borrower shall not, and shall not permit any other member
of the Consolidated Group to, declare or make any Restricted Payment; provided,
however, that: (a) Subsidiaries may pay Restricted Payments to the Borrower or any other
Subsidiary and (b) the Borrower may only declare or make cash distributions to its shareholders
during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the
Borrower to remain in compliance with Section 7.12. If a Default or Event of Default specified in
Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or if as a result of the
occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to
Section 10.2.(a), the Borrower shall not, and shall not permit any other member of the Consolidated
Group to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary.



Section 9.2. Negative Pledge.



(a) The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary
(other than an Excluded Subsidiary) to, create, assume, or incur any Lien (other than Permitted
Liens) upon any of its properties, assets, income or profits of any character whether now owned or
hereafter acquired if immediately prior to the creation, assumption or incurring of such Lien, or
immediately thereafter, a Default or Event of Default is or would be in existence, including
without limitation, a Default or Event of Default resulting from a violation of any of the
covenants contained in Section 9.1.



(b) The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary
(other than an Excluded Subsidiary) to, enter into, assume or otherwise be bound by any Negative
Pledge except for a Negative Pledge contained in (i) an agreement (x) evidencing Debt which the
Borrower, such Loan Party or such Subsidiary may create, incur, assume, or permit or suffer to
exist under this Agreement, (y) which Debt is secured by a Lien permitted to exist under the Loan
Documents, and (z) which prohibits the creation of any other Lien on only the property securing
such Debt as of the date such agreement was entered into; or (ii) an agreement relating to the sale
of a Subsidiary or assets pending such sale, provided that in any such case the Negative Pledge
applies only to the Subsidiary or the assets that are the subject of such sale.



Section 9.3. Restrictions on Intercompany Transfers.



The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary
(other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary
to: (a) pay dividends or make any other distribution on any of such Subsidiary’s capital stock or
other equity interests owned by the Borrower or any Subsidiary; (b) pay any Debt owed to the
Borrower or any Subsidiary; (c) make loans or advances to the Borrower or any Subsidiary; or (d)
transfer any of its property or assets to the Borrower or any Subsidiary; other than (i) with
respect to clauses (a) through (d) those encumbrances or
restrictions contained in any Loan Document or, (ii) with respect to clause (d), customary
provisions restricting assignment of any agreement entered into by the Borrower, any other Loan
Party or any Subsidiary in the ordinary course of business.


 


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Section 9.4. Merger, Consolidation, Sales of Assets and Other Arrangements.



The Borrower shall not, and shall not permit any Subsidiary or other Loan Party to: (i) enter
into any transaction of merger or consolidation; (ii) liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any substantial part
of its business or assets, whether now owned or hereafter acquired; provided,
however, that:



(a) any of the actions described in the immediately preceding clauses (i) through (iii) may be
taken with respect to any Subsidiary or any other Loan Party (other than the Borrower) so long as
immediately prior to the taking of such action, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would exist; notwithstanding the foregoing, a Loan
Party (other than the Borrower) may enter into a transaction of merger pursuant to which such Loan
Party is not the survivor of such merger only if (i) the Borrower shall have given the
Administrative Agent and the Lenders at least 10 Business Days’ prior written notice of such
merger, such notice to include a certification to the effect that immediately after and after
giving effect to such action, no Default or Event of Default is or would be in existence; provided
that if the survivor of such merger is (or is to become) a Loan Party, then such notice and
certification may be given within 5 Business Days after the consummation of such merger; (ii) if
the survivor entity is a Material Subsidiary (and not an Excluded Subsidiary and not already a Loan
Party), the Borrower complies with the requirements of Section 7.13. within the time period
provided in such Section; and (iii) such Loan Party and the survivor entity each takes such other
action and delivers such other documents, instruments, opinions and agreements as the
Administrative Agent may reasonably request;



(b) the Borrower, its Subsidiaries and the other Loan Parties may lease and sublease their
respective assets, as lessor or sublessor (as the case may be), in the ordinary course of their
business;



(c) a Person may merge with and into the Borrower so long as (i) the Borrower, is the survivor
of such merger, (ii) immediately prior to such merger, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence, and (iii) the Borrower
shall have given the Administrative Agent and the Lenders at least 10 Business Days’ prior written
notice of such merger, such notice to include a certification as to the matters described in the
immediately preceding clause (ii) (except that such prior notice shall not be required in the case
of the merger of a Subsidiary with and into the Borrower); and




(d) the Borrower and each Subsidiary may sell, transfer or dispose of assets among themselves.



Section 9.5. Plans.



The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to,
permit any of its respective assets to become or be deemed to be “plan assets” within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder. The
Borrower shall not cause or permit to occur, and shall not permit any other member of the ERISA
Group to cause or permit to occur, any ERISA Event if such ERISA Event could reasonably be expected
to have a Material Adverse Effect.


 


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Section 9.6. Fiscal Year.



The Borrower shall not, and shall not permit any other Loan Party or other Subsidiary to,
change its fiscal year from that in effect as of the Agreement Date.



Section 9.7. Modifications of Organizational Documents and Material Contracts.



The Borrower shall not, and shall not permit any other Loan Party to, amend, supplement,
restate or otherwise modify its certificate or articles of incorporation or formation, by-laws,
operating agreement, declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification (a) is materially adverse
to the interest of the Administrative Agent, the Issuing Bank or the Lenders or (b) could
reasonably be expected to have a Material Adverse Effect. The Borrower shall not enter into, and
shall not permit any other Loan Party to enter into, any amendment or modification to any Material
Contract which could reasonably be expected to have a Material Adverse Effect.



Section 9.8. Transactions with Affiliates.



The Borrower shall not permit to exist or enter into, and shall not permit any other Loan
Party to permit to exist or enter into, any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate, except (a) as set
forth on Schedule 6.1.(r) or (b) transactions in the ordinary course of and pursuant to the
reasonable requirements of the business of the Borrower or such other Loan Party and upon fair and
reasonable terms which are no less favorable to the Borrower or such other Loan Party than would be
obtained in a comparable arm’s length transaction with a Person that is not an Affiliate.
Notwithstanding the foregoing, no payments may be made with respect to any items set forth on such
Schedule 6.1.(r) if a Default or Event of Default exists or would result therefrom.



Section 9.9. Environmental Matters.



The Borrower shall not, and shall not permit any other Loan Party, any other Subsidiary or any
other Person to, use, generate, discharge, emit, manufacture, handle, process, store, release,
transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties
in material violation of any Environmental Law or in a manner that could reasonably be expected to
lead to any material environmental claim or pose a material risk to human health, safety or the
environment. Nothing in this Section shall impose any obligation or liability whatsoever on the
Administrative Agent or any Lender.



Section 9.10. Investments.



The Borrower shall not, and shall not permit any other Loan Party to, directly or indirectly,
acquire, make or purchase any Investment, or permit any Investment of such Person to be outstanding
on and after the Agreement Date, other than the following:



(a) Investments in Subsidiaries in existence on the Agreement Date and disclosed on Part I of
Schedule 6.1.(b);



(b) Investments to acquire Equity Interests of a Subsidiary or any other Person who after
giving effect to such acquisition would be a Subsidiary, so long as if such Subsidiary is (or after
giving effect to such Investment would become) a Material Subsidiary, and is not an Excluded
Subsidiary, the terms and conditions set forth in Section 7.13. are satisfied;


 


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(c) Investments permitted under Section 9.1.(e);




(d) Investments in Cash Equivalents;



(e) loans and advances to officers and employees for moving, entertainment, travel and other
similar expenses in the ordinary course of business consistent with past practices; and



(f) any other Investment so long as immediately prior to making such Investment, and
immediately thereafter and after giving effect thereto, no Default or Event of Default is or would
be in existence.



Article X. Default




Section 10.1. Events of Default.



Each of the following shall constitute an Event of Default, whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or
pursuant to any judgment or order of any Governmental Authority:



(a) Default in Payment. The Borrower (i) shall fail to pay when due under this
Agreement or any other Loan Document (whether upon demand, at maturity, by reason of acceleration
or otherwise) the principal of, or any interest on, any of the Loans or any Reimbursement
Obligation, or (ii) shall fail to pay any of the other payment Obligations owing by the Borrower
under this Agreement, any other Loan Document or the Fee Letter, or any other Loan Party shall fail
to pay when due any payment obligation owing by such Loan Party under any Loan Document to which it
is a party and, solely with respect to this clause (ii), such failure shall continue for a period
of 2 Business Days.




(b) Default in Performance.




(i) Any Loan Party shall fail to perform or observe any term, covenant, condition or
agreement on its part to be performed or observed and contained in Article VIII. or Article
IX.; or




(ii) Any Loan Party shall fail to perform or observe any term, covenant, condition or
agreement contained in this Agreement or any other Loan Document to which it is a party and
not otherwise mentioned in this Section, and in the case of this subsection (b)(ii) only,
such failure shall continue for a period of 30 days after the earlier of (x) the date upon
which a Responsible Officer of the Borrower or such other Loan Party obtains knowledge of
such failure or (y) the date upon which the Borrower has received written notice of such
failure from the Administrative Agent.



(c) Misrepresentations. Any written statement, representation or warranty made or
deemed made by or on behalf of any Loan Party under this Agreement or under any other Loan
Document, or any amendment hereto or thereto, or in any other writing or statement at any time
furnished by, or at the direction of, any Loan Party to the Administrative Agent, the Issuing Bank
or any Lender, shall at any time prove to have been incorrect or misleading in any material respect
when furnished or made or deemed made.


 


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(d) Debt Cross-Default.




(i) The Borrower, any other Loan Party or any other Subsidiary shall fail to make any
payment when due and payable in respect of any Debt (other than the Loans and Reimbursement
Obligations and Nonrecourse Debt) having an aggregate outstanding principal amount (or, in
the case of any Derivatives Contract, having, without regard to the effect of any close-out
netting provision, a Derivatives Termination Value), in each case individually or in the
aggregate with all other Debt as to which such a failure exists, of $100,000,000 or more,
and, in any event, shall include the Debt outstanding under (x) the Term Loan Agreement
dated as of December 29, 2010 by and among the Borrower, Wells Fargo as Agent and the
Lenders from time to time party thereto and (y) the Term Loan Agreement dated as of December
14, 2009 by and among the Borrower, Regions Bank, PNC Bank, National Association, U.S. Bank
National Association and the other signatories thereto (“Material Debt”); or




(ii) (x) The maturity of any Material Debt shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument evidencing, providing for the
creation of or otherwise concerning such Material Debt or (y) any Material Debt shall have
been required to be prepaid or repurchased prior to the stated maturity thereof; or




(iii) Any other event shall have occurred and be continuing which, if after giving
effect to any applicable cure period remains uncured, would permit any holder or holders of
any Material Debt, any trustee or agent acting on behalf of such holder or holders or any
other Person, to accelerate the maturity of any such Material Debt or require any such
Material Debt to be prepaid or repurchased prior to its stated maturity.



(e) Voluntary Bankruptcy Proceeding. The Borrower, any other Loan Party or any other
Significant Subsidiary shall: (i) commence a voluntary case under the Bankruptcy Code or other
federal bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take
advantage of any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent to, or fail to
contest in a timely and appropriate manner, any petition filed against it in an involuntary case
under such bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection (f); (iv) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they become due; (vi)
make a general assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to
creditors under any Applicable Law; or (viii) take any corporate or partnership action for the
purpose of effecting any of the foregoing.



(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Borrower, any other Loan Party or any other Significant Subsidiary (other than, with
respect to Significant Subsidiaries, a case or proceeding relating solely to Nonrecourse Debt) in
any court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code or other federal
bankruptcy laws (as now or hereafter in effect) or under any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of such Person, or of all or any substantial part of the assets, domestic or foreign, of such
Person, and in the case of either clause (i) or (ii) such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive days, or an order granting the remedy or
other relief requested in such case or proceeding (including, but not limited to, an order for
relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.


 


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(g) Revocation of Loan Documents. Any Loan Party shall (or shall attempt to) disavow,
revoke or terminate any Loan Document or the Fee Letter to which it is a party or shall otherwise
challenge or contest in any action, suit or proceeding in any court or before any Governmental
Authority the validity or enforceability of any Loan Document or the Fee Letter or any Loan
Document or the Fee Letter shall cease to be in full force and effect (except as a result of the
express terms thereof).



(h) Judgment. A judgment or order for the payment of money or for an injunction or
other non-monetary relief shall be entered against the Borrower, any other Loan Party, or any other
Subsidiary by any court or other tribunal and (i) such judgment or order shall continue for a
period of thirty (30) days without being paid, stayed or dismissed through appropriate appellate
proceedings and (ii) either (A) the amount of such judgment or order for which insurance has not
been acknowledged in writing by the applicable insurance carrier (or the amount as to which the
insurer has denied liability) exceeds, individually or together with all other such judgments or
orders entered against the Loan Parties, $25,000,000 or (B) in the case of an injunction or other
non-monetary relief, such injunction or judgment or order could reasonably be expected to have a
Material Adverse Effect.



(i) Attachment. A warrant, writ of attachment, execution or similar process shall be
issued against any property of the Borrower, any other Loan Party or any other Subsidiary, other
than Property that secures only Nonrecourse Debt, which exceeds, individually or together with all
other such warrants, writs, executions and processes, $25,000,000 in amount and such warrant, writ,
execution or process shall not be paid, discharged, vacated, stayed or bonded for a period of
thirty (30) days; provided, however, that if a bond has been issued in favor of the claimant or
other Person obtaining such warrant, writ, execution or process, the issuer of such bond shall
execute a waiver or subordination agreement in form and substance satisfactory to the
Administrative Agent pursuant to which the issuer of such bond subordinates its right of
reimbursement, contribution or subrogation to the Obligations and waives or subordinates any Lien
it may have on the assets of the Borrower or any Subsidiary.




(j) ERISA.




(i) Any ERISA Event shall have occurred that results or could reasonably be expected to
result in liability to any member of the ERISA Group aggregating in excess of $25,000,000;
or




(ii) The “benefit obligation” of all Plans exceeds the “fair market value of plan
assets” for such Plans by more than $25,000,000, all as determined, and with such terms
defined, in accordance with FASB ASC 715.



(k) Loan Documents. An Event of Default (as defined therein) shall occur under any of
the other Loan Documents.



(l) Change of Control. A Change of Control shall occur.


 


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Section 10.2. Remedies Upon Event of Default.




Upon the occurrence of an Event of Default the following provisions shall apply:




(a) Acceleration; Termination of Facilities.




(i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of, and all accrued interest on, the
Loans and the Notes at
the time outstanding, (B) an amount equal to the Stated Amount of all Letters of Credit
outstanding as of the date of the occurrence of such Event of Default for deposit into the
Letter of Credit Collateral Account and (C) all of the other Obligations, including, but not
limited to, the other amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents shall become immediately and
automatically due and payable without presentment, demand, protest, or other notice of any
kind, all of which are expressly waived by the Borrower on behalf of itself and the other
Loan Parties, and (2) the Commitments and the Swingline Commitment and the obligation of the
Issuing Bank to issue Letters of Credit hereunder, shall all immediately and automatically
terminate.




(ii) Optional. If any other Event of Default shall exist, the Administrative
Agent may, and at the direction of the Requisite Lenders shall: (1) declare (A) the
principal of, and accrued interest on, the Loans and the Notes at the time outstanding, (B)
an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of
the occurrence of such Event of Default for deposit into the Letter of Credit Collateral
Account and (C) all of the other Obligations, including, but not limited to, the other
amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or
any of the other Loan Documents to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived by the Borrower on behalf of itself and the
other Loan Parties, and (2) terminate the Commitments and the Swingline Commitment and the
obligation of the Issuing Bank to issue Letters of Credit hereunder.



(b) Loan Documents. The Requisite Lenders may direct the Administrative Agent to, and
the Administrative Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.



(c) Applicable Law. The Requisite Lenders may direct the Administrative Agent to, and
the Administrative Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.



(d) Appointment of Receiver. To the extent permitted by Applicable Law, the
Administrative Agent and the Lenders shall be entitled to the appointment of a receiver for the
assets and properties of the Borrower and its Subsidiaries, without notice of any kind whatsoever
and without regard to the adequacy of any security for the Obligations or the solvency of any party
bound for its payment, to take possession of all or any portion of the business operations of the
Borrower and its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.



Section 10.3. Remedies Upon Default.



Upon the occurrence of a Default specified in Section 10.1.(f), the Commitments shall
immediately and automatically terminate.



Section 10.4. Marshaling; Payments Set Aside.



None of the Administrative Agent, the Issuing Bank, any Lender or any Specified Derivatives
Provider shall be under any obligation to marshal any assets in favor of any Loan Party or any
other party or against or in payment of any or all of the Obligations or the Specified Derivatives
Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative
Agent, the Issuing Bank, any Lender or any Specified Derivatives Provider, or the Administrative
Agent, the Issuing Bank, any


 


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Lender or any Specified Derivatives Provider enforce their security
interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such recovery, the Obligations or
Specified Derivatives Obligations, or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.



Section 10.5. Allocation of Proceeds.




If an Event of Default exists and maturity of any of the Obligations has been accelerated, all
payments received by the Administrative Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the Borrower hereunder
or thereunder, shall be applied in the following order and priority:




(a) amounts due to the Administrative Agent, the Issuing Bank and the Lenders in
respect of expenses due under Section 12.2. until paid in full, and then Fees;




(b) payments of interest on Swingline Loans;




(c) payments of interest on all other Loans and Reimbursement Obligations to be applied
for the ratable benefit of the Lenders and the Issuing Bank;




(d) payments of principal of Swingline Loans;




(e) payments of principal of all other Loans, Reimbursement Obligations and other
Letter of Credit Liabilities, to be applied for the ratable benefit of the Lenders and the
Issuing Bank, as the case may be, in such order and priority as the Lenders and the Issuing
Bank, as the case may be, may determine in their sole discretion; provided, however, to the
extent that any amounts available for distribution pursuant to this subsection are
attributable to the issued but undrawn amount of an outstanding Letter of Credit, such
amounts shall be paid to the Administrative Agent for deposit into the Letter of Credit
Collateral Account;




(g) amounts due to the Administrative Agent and the Lenders pursuant to Sections 11.6.
and 12.9.;




(h) payments of all other Obligations and other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders; and




(i) any amount remaining after application as provided above, shall be paid to the
Borrower or whomever else may be legally entitled thereto.



Section 10.6. Letter of Credit Collateral Account.



(a) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities and the other Obligations, the Borrower hereby pledges and grants to the Administrative
Agent, for the ratable benefit of the Administrative Agent, the Issuing Bank and the Lenders as
provided herein, a security interest in all of its right, title and interest in and to the Letter
of Credit Collateral Account and the balances from time to time in the Letter of Credit Collateral
Account (including the investments and reinvestments therein provided for below). The balances
from time to time in the Letter of Credit Collateral Account shall not constitute payment of any
Letter of Credit Liabilities until applied
by the Issuing Bank as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Letter of Credit Collateral Account shall be subject to
withdrawal only as provided in this Section.


 


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(b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the Administrative Agent shall
determine in its sole discretion. All such investments and reinvestments shall be held in the name
of and be under the sole dominion and control of the Administrative Agent for the ratable benefit
of the Administrative Agent, the Issuing Bank and the Lenders; provided, that all earnings
on such investments will be credited to and retained in the Letter of Credit Collateral Account.
The Administrative Agent shall exercise reasonable care in the custody and preservation of any
funds held in the Letter of Credit Collateral Account and shall be deemed to have exercised such
care if such funds are accorded treatment substantially equivalent to that which the Administrative
Agent accords other funds deposited with the Administrative Agent, it being understood that the
Administrative Agent shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any funds held in the Letter of Credit Collateral
Account.



(c) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of
such Letter of Credit, the Borrower and the Lenders authorize the Administrative Agent to use the
monies deposited in the Letter of Credit Collateral Account to reimburse the Issuing Bank for the
payment made by the Issuing Bank to the beneficiary with respect to such drawing or the payee with
respect to such presentment.



(d) If an Event of Default exists, the Administrative Agent may (and, if instructed by the
Requisite Lenders, shall) in its (or their) discretion at any time and from time to time elect to
liquidate any such investments and reinvestments and apply the proceeds thereof to the Obligations
in accordance with Section 10.5.



(e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in
or credited to the Letter of Credit Collateral Account exceed the aggregate amount of the Letter of
Credit Liabilities then due and owing, the Administrative Agent shall, from time to time, at the
request of the Borrower, deliver to the Borrower within 10 Business Days after the Administrative
Agent’s receipt of such request from the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, such of amount of the credit balances in the Letter of
Credit Collateral Account as exceeds the aggregate amount of Letter of Credit Liabilities at such
time. When all of the Obligations shall have been indefeasibly paid in full and no Letters of
Credit remain outstanding, the Administrative Agent shall deliver to the Borrower, against receipt
but without any recourse, warranty or representation whatsoever, the balances remaining in the
Letter of Credit Collateral Account.



(f) The Borrower shall pay to the Administrative Agent from time to time such fees as the
Administrative Agent normally charges for similar services in connection with the Administrative
Agent’s administration of the Letter of Credit Collateral Account and investments and reinvestments
of funds therein.



Section 10.7. Rescission of Acceleration by Requisite Lenders.



If at any time after acceleration of the maturity of the Loans and the other Obligations, the
Borrower shall pay all arrears of interest and all payments on account of principal of the
Obligations which shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of principal of and
accrued interest on the Obligations

due and payable solely by virtue of acceleration) shall become remedied or waived to the
satisfaction of the Requisite Lenders, then by written notice to the Borrower, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind and annul the
acceleration and its consequences. The provisions of the preceding sentence are intended merely to
bind all of the Lenders to a decision which may be made at the election of the Requisite Lenders,
and are not intended to benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are
satisfied.



 


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Section 10.8. Performance by Administrative Agent.



If the Borrower or any other Loan Party shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Administrative Agent may, after notice to the Borrower,
perform or attempt to perform such covenant, duty or agreement on behalf of the Borrower or such
other Loan Party after the expiration of any cure or grace periods set forth herein. In such
event, the Borrower shall, at the request of the Administrative Agent, promptly pay any amount
reasonably expended by the Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the applicable Post-Default Rate from the
date of such expenditure until paid. Notwithstanding the foregoing, neither the Administrative
Agent nor any Lender shall have any liability or responsibility whatsoever for the performance of
any obligation of the Borrower under this Agreement or any other Loan Document.



Section 10.9. Rights Cumulative.



The rights and remedies of the Administrative Agent, the Issuing Bank, the Lenders and the
Specified Derivatives Providers under this Agreement, each of the other Loan Documents, the Fee
Letter and Specified Derivatives Contracts shall be cumulative and not exclusive of any rights or
remedies which any of them may otherwise have under Applicable Law. In exercising their respective
rights and remedies the Administrative Agent, the Issuing Bank, the Lenders and the Specified
Derivatives Providers may be selective and no failure or delay by the Administrative Agent, the
Issuing Bank, any of the Lenders or any of the Specified Derivatives Providers in exercising any
right shall operate as a waiver of it, nor shall any single or partial exercise of any power or
right preclude its other or further exercise or the exercise of any other power or right.



Article XI. The Administrative Agent




Section 11.1. Appointment and Authorization.



Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take such
action as contractual representative on such Lender’s behalf and to exercise such powers under this
Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not
in limitation of the foregoing, each Lender authorizes and directs the Administrative Agent to
enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with
the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders
of the powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall
be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on
the Administrative Agent duties or obligations other than those expressly provided for herein.
Without limiting the generality of the foregoing, the use of the terms “Agent”, “Administrative
Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or


 


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 express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is
merely a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. The Administrative Agent shall deliver to
each Lender, promptly upon receipt thereof by the Administrative Agent, copies of each of the
financial statements, certificates, notices and other documents delivered to the Administrative
Agent pursuant to Article VIII. that the Borrower is not otherwise required to deliver directly to
the Lenders. The Administrative Agent will furnish to any Lender, upon the request of such Lender,
a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or
notice furnished to the Administrative Agent by the Borrower, any other Loan Party or any other
Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already
delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document.
As to any matters not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other
provision of this Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding anything in this
Agreement to the contrary, the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to this Agreement or
any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Administrative
Agent may exercise any right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders have directed the
Administrative Agent otherwise. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of the Requisite Lenders, or where applicable, all the Lenders.



Section 11.2. Wells Fargo as Lender.



Wells Fargo, as a Lender or as a Specified Derivatives Provider, as the case may be, shall
have the same rights and powers under this Agreement and any other Loan Document and under any
Specified Derivatives Contract, as the case may be, as any other Lender or Specified Derivatives
Provider and may exercise the same as though it were not the Administrative Agent; and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wells Fargo in each case
in its individual capacity. Wells Fargo and its Affiliates may each accept deposits from, maintain
deposits or credit balances for, invest in, lend money to, act as trustee under indentures of,
serve as financial advisor to, and generally engage in any kind of business with the Borrower, any
other Loan Party or any other Affiliate thereof as if it were any other bank and without any duty
to account therefor to the Issuing Bank, other Lenders, or any other Specified Derivatives
Providers. Further, the Administrative Agent and any Affiliate may accept fees and other
consideration from the Borrower for services in connection with this Agreement or any Specified
Derivatives Contract, or otherwise without having to account for the same to the Issuing Bank, the
other Lenders or any other Specified Derivatives Providers. The Issuing Bank and the Lenders
acknowledge that, pursuant to such activities, Wells Fargo or its Affiliates may receive
information regarding the Borrower, other Loan Parties, other Subsidiaries and other Affiliates
(including information that may be subject to confidentiality obligations in favor of such Person)
and acknowledge that the Administrative Agent shall be under no obligation to provide such
information to them.


 


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Section 11.3. Approvals of Lenders.



All communications from the Administrative Agent to any Lender requesting such Lender’s
determination, consent, approval or disapproval (a) shall be given in the form of a written notice
to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall otherwise describe
the matter or issue to be resolved, (c) shall include, if reasonably requested by such Lender and
to the extent not previously provided to such Lender, written materials and, as appropriate, a
brief summary of all oral information provided to the Administrative Agent by the Borrower in
respect of the matter or issue to be resolved, and (d) shall include the Administrative Agent’s
recommended course of action or determination in respect thereof. Unless a Lender shall give
written notice to the Administrative Agent that it specifically objects to the recommendation or
determination of the Administrative Agent (together with a reasonable written explanation of the
reasons behind such objection) within ten (10) Business Days (or such lesser or greater period as
may be specifically required under the express terms of the Loan Documents) of receipt of such
communication, such Lender shall be deemed to have conclusively approved of or consented to such
recommendation or determination; provided, however, that this sentence shall not apply to
amendments, waivers or consents that require the written consent of each Lender directly and
adversely affected thereby pursuant to Section 12.6.(b).



Section 11.4. Notice of Events of Default.



The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
a Default or Event of Default unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing with reasonable specificity such Default or
Event of Default and stating that such notice is a “notice of default.” If any Lender (excluding
the Lender which is also serving as the Administrative Agent) becomes aware of any Default or Event
of Default, it shall promptly send to the Administrative Agent such a “notice of default”.
Further, if the Administrative Agent receives such a “notice of default,” the Administrative Agent
shall give prompt notice thereof to the Lenders.



Section 11.5. Administrative Agent’s Reliance.



Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither
the Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be
liable for any action taken or not taken by it under or in connection with this Agreement or any
other Loan Document, except for its or their own gross negligence or willful misconduct in
connection with its duties expressly set forth herein or therein as determined by a court of
competent jurisdiction in a final non-appealable judgment. Without limiting the generality of the
foregoing, the Administrative Agent may consult with legal counsel (including its own counsel or
counsel for the Borrower or any other Loan Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or counsel: (a) makes
any warranty or representation to any Lender, the Issuing Bank or any other Person, or shall be
responsible to any Lender, the Issuing Bank or any other Person for any statement, warranty or
representation made or deemed made by the Borrower, any other Loan Party or any other Person in or
in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants or conditions of
this Agreement or any other Loan Document or the satisfaction of any conditions precedent under
this Agreement or any Loan Document on the part of the Borrower or other Persons, or to inspect the
property, books or records of the Borrower or any other Person; (c) shall be responsible to any
Lender or the Issuing Bank for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other instrument or document
furnished pursuant thereto or any collateral covered thereby or the perfection or priority of any
Lien in favor of the Administrative Agent on behalf of the Lenders, the Issuing Bank and the
Specified Derivatives Providers


 


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in any such collateral; (d) shall have any liability in respect of any recitals, statements,
certifications, representations or warranties contained in any of the Loan Documents or any other
document, instrument, agreement, certificate or statement delivered in connection therewith; and
(e) shall incur any liability under or in respect of this Agreement or any other Loan Document by
acting upon any notice, consent, certificate or other instrument or writing (which may be by
telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or given by
the proper party or parties. The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct as determined by a court of competent jurisdiction in a final
non-appealable judgment.



Section 11.6. Indemnification of Administrative Agent.



Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with
such Lender’s respective Commitment Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, reasonable out-of-pocket costs
and expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against the Administrative Agent (in its capacity as Administrative Agent but not as a
Lender) in any way relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Administrative Agent under the Loan
Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall be
liable for any portion of such Indemnifiable Amounts to the extent resulting from the
Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment; provided, however, that no action
taken in accordance with the directions of the Requisite Lenders (or all of the Lenders, if
expressly required hereunder) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section. Without limiting the generality of the foregoing, each Lender agrees
to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) promptly upon demand for its ratable share of any
out-of-pocket expenses (including the reasonable fees and expenses of the counsel to the
Administrative Agent) incurred by the Administrative Agent in connection with the preparation,
negotiation, execution, administration, or enforcement (whether through negotiations, legal
proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of
the parties under, the Loan Documents, any suit or action brought by the Administrative Agent to
enforce the terms of the Loan Documents and/or collect any Obligations, any “lender liability” suit
or claim brought against the Administrative Agent and/or the Lenders, and any claim or suit brought
against the Administrative Agent and/or the Lenders arising under any Environmental Laws. Such
out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of
the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is
not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative
Agent that the Administrative Agent will reimburse the Lenders if it is actually and finally
determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder or under the other Loan Documents and the termination of this
Agreement. If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount
following payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such reimbursement on a ratable
basis with each Lender making any such payment.


 


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Section 11.7. Lender Credit Decision, Etc.



Each of the Lenders and the Issuing Bank expressly acknowledges and agrees that neither the
Administrative Agent nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other Affiliates has made any representations or warranties to the Issuing
Bank or such Lender and that no act by the Administrative Agent hereafter taken, including any
review of the affairs of the Borrower, any other Loan Party or any other Subsidiary or Affiliate,
shall be deemed to constitute any such representation or warranty by the Administrative Agent to
the Issuing Bank or any Lender. Each of the Lenders and the Issuing Bank acknowledges that it has
made its own credit and legal analysis and decision to enter into this Agreement and the
transactions contemplated hereby, independently and without reliance upon the Administrative Agent,
any other Lender or counsel to the Administrative Agent, or any of their respective officers,
directors, employees, agents or counsel, and based on the financial statements of the Borrower, the
other Loan Parties, the other Subsidiaries and other Affiliates, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the other Loan Parties, the
other Subsidiaries and other Persons, its review of the Loan Documents, the legal opinions required
to be delivered to it hereunder, the advice of its own counsel and such other documents and
information as it has deemed appropriate. Each of the Lenders and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent, any
other Lender or counsel to the Administrative Agent or any of their respective officers, directors,
employees and agents, and based on such review, advice, documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not taking action under
the Loan Documents. The Administrative Agent shall not be required to keep itself informed as to
the performance or observance by the Borrower or any other Loan Party of the Loan Documents or any
other document referred to or provided for therein or to inspect the properties or books of, or
make any other investigation of, the Borrower, any other Loan Party or any other Subsidiary.
Except for notices, reports and other documents and information expressly required to be furnished
to the Lenders and the Issuing Bank by the Administrative Agent under this Agreement or any of the
other Loan Documents, the Administrative Agent shall have no duty or responsibility to provide any
Lender or the Issuing Bank with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the Borrower, any other
Loan Party or any other Affiliate thereof which may come into possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or other Affiliates.
Each of the Lenders and the Issuing Bank acknowledges that the Administrative Agent’s legal counsel
in connection with the transactions contemplated by this Agreement is only acting as counsel to the
Administrative Agent and is not acting as counsel to any Lender or the Issuing Bank.



Section 11.8. Successor Administrative Agent.



The Administrative Agent may resign at any time as Administrative Agent under the Loan
Documents by giving written notice thereof to the Lenders and the Borrower. The Administrative
Agent may be removed as administrative agent by the Requisite Lenders (other than the Lender then
acting as Administrative Agent) and the Borrower upon 30 days’ prior written notice if the
Administrative Agent is found by a court of competent jurisdiction in a final judgment to have
committed gross negligence or willful misconduct in the course of performing its duties hereunder.
Upon any such resignation or removal, the Requisite Lenders (other than the Lender then acting as
Administrative Agent, in the case of the removal of the Administrative Agent under the immediately
preceding sentence) shall have the right to appoint a successor Administrative Agent which
appointment shall, provided no Default or Event of Default exists, be subject to the Borrower’s
approval, which approval shall not be unreasonably withheld or delayed (except that the


 


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 Borrower
shall, in all events, be deemed to have approved each Lender and any of its Affiliates as a successor Administrative Agent). If no successor Administrative
Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall
have accepted such appointment, within 30 days after the current Administrative Agent’s giving of
notice of resignation or the Lenders’ removal of the current Administrative Agent, then the current
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and
otherwise shall be an Eligible Assignee. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
current Administrative Agent, and the current Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents. Such successor Administrative Agent shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or shall make other arrangements satisfactory to the current Administrative Agent,
in either case, to assume effectively the obligations of the current Administrative Agent with
respect to such Letters of Credit. After any Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this Article XI. shall continue to inure to
its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
under the Loan Documents. Notwithstanding anything contained herein to the contrary, the
Administrative Agent may assign its rights and duties under the Loan Documents to any of its
Affiliates by giving the Borrower and each Lender prior written notice.



Section 11.9. Titled Agents.



Each of the Syndication Agent and the Documentation Agents (each a “Titled Agent”) in each
such respective capacity, assumes no responsibility or obligation hereunder, including, without
limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an
agent hereunder for the Lenders. The titles given to the Titled Agents are solely honorific and
imply no fiduciary responsibility on the part of the Titled Agents to the Administrative Agent, any
Lender, the Issuing Bank, the Borrower or any other Loan Party and the use of such titles does not
impose on the Titled Agents any duties or obligations greater than those of any other Lender or
entitle the Titled Agents to any rights other than those to which any other Lender is entitled.



Article XII. Miscellaneous




Section 12.1. Notices.



Unless otherwise provided herein (including without limitation as provided in Section 8.5.),
communications provided for hereunder shall be in writing and shall be mailed, telecopied, or
delivered as follows:




If to the Borrower:




UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Attn: Treasurer

Telephone: (720) 283-6142

Telecopy: (720) 283-2453


 


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with a copy to:




Snell & Wilmer L.L.P.

1200 Seventeenth Street

Suite 1900

Denver, Colorado 80202

Attn: David G. Thatcher, Esq.

Telephone: (303) 634-1246

Telecopy: (303) 634-2020




If to the Administrative Agent:




Wells Fargo Bank, National Association

4643 S. Ulster Street

Suite 1400

Denver, CO 80237

Attn: Derek Evans

Telephone: (303) 741-8785

Telecopier: (303) 741-0867




If to the Administrative Agent under Article II.:




Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Avenue S., 11th Floor

Minneapolis, Minnesota 55402-1916

Attn: Kelly Milham

Telecopier: (866) 656-0051

Telephone: (612) 667-5381




If to the Issuing Bank:




Wells Fargo Bank, National Association

4643 S. Ulster Street

Suite 1400

Denver, CO 80237

Attn: Derek Evans

Telephone: (303) 741-8785

Telecopier: (303) 741-0867




If to any other Lender:




To such Lender’s address or telecopy number as set forth in the applicable
Administrative Questionnaire


 


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or, as to each party at such other address as shall be designated by such party in a written notice
to the other parties delivered in compliance with this Section; provided, a Lender or the Issuing
Bank shall only be required to give notice of any such other address to the Administrative Agent
and the Borrower. All such notices and other communications shall be effective (i) if mailed, upon
the first to occur of receipt or
the expiration of three (3) days after the deposit in the United States Postal Service mail,
postage prepaid and addressed to the address of the Borrower or the Administrative Agent, the
Issuing Bank and Lenders at the addresses specified; (ii) if telecopied, when transmitted; (iii) if
hand delivered or sent by overnight courier, when delivered; or (iv) if delivered in accordance
with Section 8.5. to the extent applicable; provided, however, that, in the case of the immediately
preceding clauses (i), (ii) and (iii), non-receipt of any communication as of the result of any
change of address of which the sending party was not notified or as the result of a refusal to
accept delivery shall be deemed receipt of such communication. Notwithstanding the immediately
preceding sentence, all notices or communications to the Administrative Agent, the Issuing Bank or
any Lender under Article II. shall be effective only when actually received. None of the
Administrative Agent, the Issuing Bank or any Lender shall incur any liability to any Loan Party
(nor shall the Administrative Agent incur any liability to the Issuing Bank or the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the Administrative Agent, the
Issuing Bank or such Lender, as the case may be, believes in good faith to have been given by a
Person authorized to deliver such notice or for otherwise acting in good faith hereunder. Failure
of a Person designated to get a copy of a notice to receive such copy shall not affect the validity
of notice properly given to another Person.



Section 12.2. Expenses.



The Borrower agrees (a) to pay or reimburse the Administrative Agent for all of its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement or modification to, any of the Loan Documents
(including due diligence expense and reasonable travel expenses related to closing), and the
consummation of the transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and all costs and expenses of the
Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar
information transmission systems in connection with the Loan Documents, (b) to pay or reimburse the
Administrative Agent, the Issuing Bank and the Lenders for all their reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under the Loan Documents
and the Fee Letter, including the reasonable fees and disbursements of their respective counsel
(including the allocated fees and expenses of in-house counsel) and any payments in indemnification
or otherwise payable by the Lenders to the Administrative Agent pursuant to the Loan Documents, (c)
to pay, and indemnify and hold harmless the Administrative Agent, the Issuing Bank and the Lenders
from, any and all recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection with the execution
and delivery of any of the Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or reimburse the reasonable
fees and disbursements of counsel to the Administrative Agent, the Issuing Bank and any Lender
incurred in connection with the representation of the Administrative Agent, the Issuing Bank or
such Lender in any matter relating to or arising out of any bankruptcy or other proceeding of the
type described in Sections 10.1.(e) or 10.1.(f), including, without limitation (i) any motion for
relief from any stay or similar order, (ii) the negotiation, preparation, execution and delivery of
any document relating to the Obligations and (iii) the negotiation and preparation of any
debtor-in-possession financing or any plan of reorganization of the Borrower or any other Loan
Party, whether proposed by the Borrower, such Loan Party, the Lenders or any other Person, and
whether such fees and expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding. If the Borrower shall fail to
pay any amounts required to be paid by it pursuant to this Section, the Administrative Agent and/or
the Lenders may pay such amounts on behalf of the Borrower and such amounts shall be deemed to be
Obligations owing hereunder.


 


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Section 12.3. Setoff.



Subject to Section 3.3. and in addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, the Borrower hereby authorizes the
Administrative Agent, the Issuing Bank, each Lender, each Affiliate of the Administrative Agent,
the Issuing Bank or any Lender, and each Participant, at any time or from time to time while an
Event of Default exists, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, but in the case of the Issuing Bank, a Lender, an Affiliate of the
Issuing Bank or a Lender, or a Participant, subject to receipt of the prior written consent of the
Requisite Lenders exercised in their sole discretion, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held
or owing by the Administrative Agent, the Issuing Bank, such Lender, any Affiliate of the
Administrative Agent, the Issuing Bank or such Lender, or such Participant, to or for the credit or
the account of the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been declared to be, or have
otherwise become, due and payable as permitted by Section 10.2., and although such Obligations
shall be contingent or unmatured.



Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.



(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE
PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN
ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE FEE LETTER OR IN CONNECTION WITH OR BY REASON OF ANY OTHER SUIT,
CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE
AGENT, THE ISSUING BANK OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN
DOCUMENTS.



(b) THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL
NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR
EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER,
THE ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK 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,
LITIGATION OR


 


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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 AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER
LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES
NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER
OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.



(c) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER AT ITS ADDRESS FOR
NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT,
PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30) DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL
BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED
FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS.



(d) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.



Section 12.5. 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 neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the 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 the immediately following subsection (b), (ii) by way of participation in accordance
with the provisions of the immediately following subsection (d) or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of the immediately following
subsection (f) (and, subject to the last sentence of the immediately following subsection (b), any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in the immediately following subsection (d) and, to the extent expressly
contemplated hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) Assignments 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 at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of an
assigning Revolving Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and




(B) in any case not described in the immediately preceding subsection (A), the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the 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 in the case of any assignment of a Commitment, unless each
of the Administrative Agent and, so long as no Default or Event of Default shall
exist, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that if, after giving effect to such
assignment, the amount of the Commitment held by such assigning Lender or the
outstanding principal balance of the Loans of such assigning Lender, as applicable,
would be less than $5,000,000 in the case of a Commitment or Revolving Loans, then
such assigning Lender shall assign the entire amount of its Commitment and the Loans
at the time owing to it.




(ii) Proportionate Amounts. 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 Loan or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of a Bid Rate Loan.




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by clause (i)(B) of this subsection (b) and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed; provided, that the Borrower’s refusal to consent to an assignment to a
Person that does not have a tangible net worth of $500,000,000 or more shall not, in
and of itself, be unreasonable) shall be required unless (x) a Default or Event of
Default shall exist at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within 5 Business Days after
having received notice thereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of a
Commitment if such assignment is to a Person that is not already a Lender with a
Commitment, an Affiliate of such a Lender or an Approved Fund with respect to such a
Lender; and


 


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(C) the consent of the Swingline Lender and the Issuing Bank (such consent not
to be unreasonably withheld or delayed) shall be required for any assignment in
respect of a Commitment if such assignment is to a Person that is not already a
Lender with a Commitment, an Affiliate of such a Lender or an Approved Fund with
respect to such a Lender.




(iv) Assignment and Assumption; Notes. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $4,500 ($7,500 for assignments involving a Defaulting
Lender) for each assignment, and the assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. If requested by the transferor Lender
or the Assignee, upon the consummation of any assignment, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so that new Notes
are issued to the Assignee and such transferor Lender, as appropriate.




(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.




(vii) Assignments by Specified Derivatives Provider. If the assigning Lender
(or its Affiliate) is a Specified Derivatives Provider and if after giving effect to such
assignment such Lender will hold no further Loans or Commitments under this Agreement, such
Lender shall undertake such assignment only contemporaneously with an assignment by such
Lender (or its Affiliate, as the case may be) of all of its Specified Derivatives Contracts
to the Assignee or another Lender (or Affiliate thereof).



Subject to acceptance and recording thereof by the Administrative Agent pursuant to the immediately
following subsection (c), from and after the effective date specified in each Assignment and
Assumption, the 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 4.4., 12.2. and 12.9. and the other provisions of this
Agreement and the other Loan Documents as provided in Section 12.10. with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
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 the immediately following subsection (d).



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Principal 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 owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and
the Borrower, the 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 the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the 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 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) the
Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement or any
required consent or approval of such Lender under this Agreement (provided that this clause (iii)
shall not affect a Lender’s rights or obligations with respect to any participation agreement
described in the immediately following sentence). 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 (w) increase such Lender’s Commitment, (x) extend
the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender,
(y) reduce the rate at which interest is payable thereon or (z) release any Guarantor from its
Obligations under the Guaranty. Subject to the immediately following subsection (e), the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.10., 4.1., 4.4. to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by Applicable Law, each Participant also
shall be entitled to the benefits of Section 12.3. as though it were a Lender, provided such
Participant agrees to be subject to Section 3.3. as though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 3.10. and 4.1. than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.10. unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower and the Administrative
Agent, to comply with Section 3.10.(c) 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 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) No Registration. Each Lender agrees that, without the prior written consent of
the Borrower and the Administrative Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of, or filings in
respect of, any Loan or Note under the Securities Act or any other securities laws of the United
States of America or of any other jurisdiction.


 


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(h) Designated Lenders. Any Lender (each, a “Designating Lender”) may at any time
while the Borrower has been assigned an Investment Grade Rating designate one Designated Lender to
fund Bid Rate Loans on behalf of such Designating Lender subject to the terms of this subsection,
and the provisions in the immediately preceding subsections (b) and (d) shall not apply to such
designation. No Lender may designate more than one Designated Lender. The parties to each such designation shall
execute and deliver to the Administrative Agent for its acceptance a Designation Agreement. Upon
such receipt of an appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender, the Administrative Agent will accept
such Designation Agreement and give prompt notice thereof to the Borrower, whereupon (i) the
Borrower shall execute and deliver to the Designating Lender a Bid Rate Note payable to the order
of the Designated Lender, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Lender shall become a party to this Agreement with a right to make Bid
Rate Loans on behalf of its Designating Lender pursuant to Section 2.2. after the Borrower has
accepted a Bid Rate Loan (or portion thereof) of the Designating Lender, and (iii) the Designated
Lender shall not be required to make payments with respect to any obligations in this Agreement
except to the extent of excess cash flow of such Designated Lender which is not otherwise required
to repay obligations of such Designated Lender which are then due and payable; provided, however,
that regardless of such designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to the Borrower, the Administrative Agent and the Lenders for each
and every of the obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without limitation, any indemnification obligations under
Section 11.6. and any sums otherwise payable to the Borrower by the Designated Lender. Each
Designating Lender shall serve as the agent of the Designated Lender and shall on behalf of, and to
the exclusion of, the Designated Lender: (i) receive any and all payments made for the benefit of
the Designated Lender and (ii) give and receive all communications and notices and take all actions
hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under
or relating to this Agreement and the other Loan Documents. Any such notice, communication, vote,
approval, waiver, consent or amendment shall be signed by the Designating Lender as agent for the
Designated Lender and shall not be signed by the Designated Lender on its own behalf and shall be
binding on the Designated Lender to the same extent as if signed by the Designated Lender on its
own behalf. The Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No Designated Lender may
assign or transfer all or any portion of its interest hereunder or under any other Loan Document,
other than assignments to the Designating Lender which originally designated such Designated
Lender. The Borrower, the Lenders and the Administrative Agent each hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting against any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur of (x) one year and
one day after the payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (y) the Termination Date. In connection with any such designation, the
Designating Lender shall pay to the Administrative Agent an administrative fee for processing such
designation in the amount of $2,000.



Section 12.6. Amendments and Waivers.



(a) Generally. Except as otherwise expressly provided in this Agreement, (i) any
consent or approval required or permitted by this Agreement or any other Loan Document to be given
by the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document may be
amended, (iii) the performance or observance by the Borrower, any other Loan Party or any other
Subsidiary of any terms of this Agreement or such other Loan Document may be waived, and (iv) the
continuance of any Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders),
and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which
is party thereto.




 


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(b) Consent
of Lenders Directly Affected. In addition to the foregoing requirements, no amendment,
waiver or consent shall, unless in writing,
and signed by each of the Lenders directly and
adversely affected thereby (or the Administrative Agent at the written direction of such
Lenders), do any of the following:




(i) increase the Commitments of the Lenders (excluding any increase as a result of an
assignment of Commitments permitted under Section 12.5. and any increases contemplated under
Section 2.16.) or subject the Lenders to any additional obligations;




(ii) reduce the principal of, or interest that has accrued or the rates of interest
that will be charged on the outstanding principal amount of, any Loans or other Obligations;




(iii) reduce the amount of any Fees payable to the Lenders hereunder;




(iv) modify the definition of “Termination Date” (except in accordance with Section
2.13.), otherwise postpone any date fixed for any payment of principal of, or interest on,
any Loans or for the payment of Fees or any other Obligations, or extend the expiration date
of any Letter of Credit beyond the Termination Date;




(v) modify the definition of “Commitment Percentage” or amend or otherwise modify the
provisions of Section 3.2.;




(vi) amend this Section or amend the definitions of the terms used in this Agreement or
the other Loan Documents insofar as such definitions affect the substance of this Section;




(vii) modify the definition of the term “Requisite Lenders” or modify in any other
manner the number or percentage of the Lenders required to make any determinations or waive
any rights hereunder or to modify any provision hereof;




(viii) release any Guarantor from its obligations under the Guaranty except as
contemplated by Section 7.13.(b) or waive or release any indemnification obligation of a
Loan Party in writing;




(ix) waive a Default or Event of Default under Section 10.1.(a), except as provided in
Section 10.7.; or




(x) amend, or waive the Borrower’s compliance with, Section 2.15.



(d) Amendment of Administrative Agent’s Duties, Etc. No amendment, waiver or consent
unless in writing and signed by the Administrative Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Administrative Agent
under this Agreement or any of the other Loan Documents. Any amendment, waiver or consent relating
to Section 2.4. or the obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such action, require the
written consent of the Swingline Lender. Any amendment, waiver or consent relating to Section 2.3.
or the obligations of the Issuing Bank under this Agreement or any other Loan Document shall, in
addition to the Lenders required hereinabove to take such action, require the written consent of
the Issuing Bank. Any amendment, waiver or consent with respect to any Loan Document that (i)
diminishes the rights of a Specified Derivatives Provider in a manner or to an extent dissimilar to
that affecting the Lenders or (ii) increases the liabilities or obligations of a Specified
Derivatives Provider shall, in addition to the Lenders required hereinabove to take such action,
require the consent of the Lender that is (or having an Affiliate that is) such Specified
Derivatives Provider. No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon and any amendment, waiver or consent shall be effective only in
the specific instance
and for the specific purpose set forth therein. No course of dealing or delay or omission on
the part of the Administrative Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. Any Event of Default occurring hereunder shall
continue to exist until such time as such Event of Default is waived in writing in accordance with
the terms of this Section, notwithstanding any attempted cure or other action by the Borrower, any
other Loan Party or any other Person subsequent to the occurrence of such Event of Default. Except
as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand
upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.


 


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Section 12.7. Nonliability of Administrative Agent and Lenders.



The relationship between the Borrower, on the one hand, and the Lenders, the Issuing Bank and
the Administrative Agent, on the other hand, shall be solely that of borrower and lender. None of
the Administrative Agent, the Issuing Bank or any Lender shall have any fiduciary responsibilities
to the Borrower and no provision in this Agreement or in any of the other Loan Documents, and no
course of dealing between or among any of the parties hereto, shall be deemed to create any
fiduciary duty owing by the Administrative Agent, the Issuing Bank or any Lender to any Lender, the
Borrower, any Subsidiary or any other Loan Party. None of the Administrative Agent, the Issuing
Bank or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or operations.



Section 12.8. Confidentiality.



Except as otherwise provided by Applicable Law, the Administrative Agent, the Issuing Bank and
each Lender shall maintain the confidentiality of all Information (as defined below) in accordance
with its customary procedure for handling confidential information of this nature and in accordance
with safe and sound banking practices but in any event may make disclosure: (a) to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other 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) subject to an agreement containing provisions substantially the same
as those of this Section, to (i) any actual or proposed Assignee, Participant or other transferee
in connection with a potential transfer of any Commitment or participation therein as permitted
hereunder, or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, or (iii) CUSIP Service Bureau;
(c) as required or requested by any Governmental Authority or representative thereof or pursuant to
legal process or in connection with any legal proceedings, or as otherwise required by Applicable
Law; (d) to the Administrative Agent’s, Issuing Bank’s or such Lender’s independent auditors and
other professional advisors (provided they shall be notified of the confidential nature of the
information); (e) in connection with the exercise of any remedies under any Loan Document (or any
Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any
such Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to
the extent such Information (i) becomes publicly available other than as a result of a breach of
this Section actually known by the Administrative Agent, the Issuing Bank or such Lender to be a
breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank, any
Lender or any Affiliate of the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower or any Affiliate of the Borrower; (g)
to the extent requested by, or required to be disclosed to, any nationally recognized rating agency
or regulatory or similar authority (including any self-regulatory authority, such as the National
Association of Insurance Commissioners) having or purporting to have jurisdiction over it; (h) to
bank trade publications, such information to consist of deal terms and other information
customarily found in such publications; (i) to any other party hereto; and (j) with the consent of
the Borrower. Notwithstanding the foregoing, the Administrative Agent, the Issuing Bank and
each Lender may disclose any such confidential information, without notice to the Borrower or any
other Loan Party, to Governmental Authorities in connection with any regulatory examination of the
Administrative Agent, the Issuing Bank or such Lender or in accordance with the regulatory
compliance policy of the Administrative Agent, the Issuing Bank or such Lender. As used in this
Section, the term “Information” means all information received from the Borrower, any other Loan
Party, any other Subsidiary or Affiliate relating to any Loan Party or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower, any
other Loan Party, any other Subsidiary or any Affiliate, provided that, in the case of any such
information received from the Borrower, any other Loan Party, any other Subsidiary or any Affiliate
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.


 


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Section 12.9. Indemnification.



(a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the
Administrative Agent, the Issuing Bank, the Lenders, all of the Affiliates of each of the
Administrative Agent, the Issuing Bank or any of the Lenders, and their respective directors,
officers, shareholders, agents, employees and counsel (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified Costs”):
losses, costs, claims, penalties, damages, liabilities, deficiencies, judgments or expenses of
every kind and nature (including, without limitation, amounts paid in settlement, court costs and
the fees and disbursements of counsel incurred in connection with any litigation, investigation,
claim or proceeding or any advice rendered in connection therewith, but excluding Indemnified Costs
indemnification in respect of which is specifically covered by Section 3.10. or 4.1. or expressly
excluded from the coverage of such Sections) incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of the proceeds of
the Loans or Letters of Credit; (iv) the Administrative Agent’s, the Issuing Bank’s or any Lender’s
entering into this Agreement; (v) the fact that the Administrative Agent, the Issuing Bank and the
Lenders have established the credit facility evidenced hereby in favor of the Borrower; (vi) the
fact that the Administrative Agent, the Issuing Bank and the Lenders are creditors of the Borrower
and have or are alleged to have information regarding the financial condition, strategic plans or
business operations of the Borrower and the Subsidiaries; (vii) the fact that the Administrative
Agent, the Issuing Bank and the Lenders are material creditors of the Borrower and are alleged to
influence directly or indirectly the business decisions or affairs of the Borrower and the
Subsidiaries or their financial condition; (viii) the exercise of any right or remedy the
Administrative Agent, the Issuing Bank or the Lenders may have under this Agreement or the other
Loan Documents; (ix) any civil penalty or fine assessed by the OFAC against, and all costs and
expenses (including counsel fees and disbursements) incurred in connection with defense thereof by,
the Administrative Agent, the Issuing Bank or any Lender as a result of conduct of the Borrower,
any other Loan Party or any other Subsidiary that violates a sanction administered or enforced by
the OFAC; or (x) any violation or non-compliance by the Borrower or any Subsidiary of any
Applicable Law (including any Environmental Law) including, but not limited to, any Indemnity
Proceeding commenced by (A) the Internal Revenue Service or state taxing authority or (B) any
Governmental Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking remedial or other action
to cause the Borrower or its Subsidiaries (or its respective properties) (or the Administrative
Agent and/or the Lenders and/or the Issuing Bank as
successors to the Borrower) to be in compliance with such Environmental Laws; provided, however,
that the Borrower shall not be obligated to indemnify any Indemnified Party for any acts or
omissions of such Indemnified Party in connection with matters described in this subsection to the
extent arising from the gross negligence or willful misconduct of such Indemnified Party, as
admitted by an Indemnified Party in writing or determined by a court of competent jurisdiction in a
final, non-appealable judgment.


 


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(b) The Borrower’s indemnification obligations under this Section shall apply to all Indemnity
Proceedings arising out of, or related to, the foregoing whether or not an Indemnified Party is a
named party in such Indemnity Proceeding. In this connection, this indemnification shall cover all
Indemnified Costs of any Indemnified Party in connection with any deposition of any Indemnified
Party or compliance with any subpoena (including any subpoena requesting the production of
documents). This indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by other creditors of the Borrower or any Subsidiary, any shareholder of the Borrower or
any Subsidiary (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account debtor of the Borrower
or any Subsidiary or by any Governmental Authority. If indemnification is to be sought hereunder by
an Indemnified Party, then such Indemnified Party shall notify the Borrower of the commencement of
any Indemnity Proceeding; provided, however, that the failure to so notify the Borrower shall not
relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this
Section 12.9.



(c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency
of any bankruptcy proceeding filed by or against the Borrower and/or any Subsidiary.



(d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled
to indemnification hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction or such Indemnified Party admits in writing that such Indemnified Party
is not so entitled to indemnification hereunder.



(e) Subject to Section 12.9(f), an Indemnified Party may conduct its own investigation and
defense of, and may formulate its own strategy with respect to, any Indemnity Proceeding covered by
this Section and, as provided above, all Indemnified Costs incurred by such Indemnified Party shall
be reimbursed by the Borrower. No action taken by legal counsel chosen by an Indemnified Party in
investigating or defending against any such Indemnity Proceeding shall vitiate or in any way impair
the obligations and duties of the Borrower hereunder to indemnify and hold harmless each such
Indemnified Party; provided, however, that if (i) the Borrower is required to indemnify an
Indemnified Party pursuant hereto and (ii) the Borrower has provided evidence reasonably
satisfactory to such Indemnified Party that the Borrower has the financial wherewithal to reimburse
such Indemnified Party for any amount paid by such Indemnified Party with respect to such Indemnity
Proceeding, such Indemnified Party shall not settle or compromise any such Indemnity Proceeding
without the prior written consent of the Borrower (which consent shall not be unreasonably withheld
or delayed). Notwithstanding the foregoing, an Indemnified Party may settle or compromise any such
Indemnity Proceeding without the prior written consent of the Borrower where (x) no monetary relief
is sought against such Indemnified Party in such Indemnity Proceeding or (y) there is an allegation
of a violation of law by such Indemnified Party.


 


 - 99 - 









 





(f) Notwithstanding the above, following the notification contemplated by Section 12.9.(b),
the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon
such election, it shall not be liable for any legal costs subsequently incurred by such Indemnified
Party (other than reasonable costs of investigation and providing evidence) in connection
therewith, unless (i) the
Borrower and the Indemnified Party have failed to agree in writing to the retention of such
counsel, (ii) the named parties to any such Indemnity Proceeding (including any impleaded parties)
include the Borrower and such Indemnified Party and representation of both parties by the same
counsel would, in the opinion of counsel to such Indemnified Party, be inappropriate due to actual
or potential conflicts of interests between the Borrower and such Indemnified Party or (iii) the
Indemnified Party reasonably determines that there may be legal defenses available to it which are
different from or in addition to those available to the Borrower. The Borrower shall not settle,
compromise, consent to the entry of judgment or otherwise seek to terminate such Indemnity
Proceeding without the consent of the Indemnified Party, which consent shall not be unreasonably
withheld, conditioned or delayed provided that Borrower may settle or compromise such Indemnity
Proceeding without such consent if only monetary relief is sought against such Indemnified Party.



(g) If and to the extent that the obligations of the Borrower under this Section are
unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under Applicable Law.



(h) The Borrower’s obligations under this Section shall survive any termination of this
Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are
in addition to, and not in substitution of, any of the other obligations set forth in this
Agreement or any other Loan Document to which it is a party.



References in this Section 12.9. to “Lender” or “Lenders” shall be deemed to include such Persons
(and their Affiliates) in their capacity as Specified Derivatives Providers.



Section 12.10. Termination; Survival.



This Agreement shall terminate at such time as (a) all of the Commitments have been
terminated, (b) all Letters of Credit have terminated or expired or been canceled, (c) none of the
Lenders is obligated any longer under this Agreement to make any Loans and the Issuing Bank is no
longer obligated under this Agreement to issue Letters of Credit and (d) all Obligations (other
than obligations which survive as provided in the following sentence) have been paid and satisfied
in full. The indemnities to which the Administrative Agent, the Issuing Bank and the Lenders are
entitled under the provisions of Sections 3.10., 4.1., 4.4., 11.6., 12.2. and 12.9. and any other
provision of this Agreement and the other Loan Documents, and the provisions of Section 12.4.,
shall continue in full force and effect and shall protect the Administrative Agent, the Issuing
Bank and the Lenders (i) notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and (ii) at all times
after any such party ceases to be a party to this Agreement with respect to all matters and events
existing on or prior to the date such party ceased to be a party to this Agreement.



Section 12.11. Severability of Provisions.



If any provision of this Agreement or the other Loan Documents shall be determined by a court
of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed severed
from the Loan Documents, and the validity, legality and enforceability of the remaining provisions
shall remain in full force as though the invalid, illegal, or unenforceable provision had never
been part of the Loan Documents.


 


 - 100 - 









 





Section 12.12. GOVERNING LAW.



THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



Section 12.13. Counterparts.



To facilitate execution, this Agreement and any amendments, waivers, consents or supplements
may be executed in any number of counterparts as may be convenient or required (which may be
effectively delivered by facsimile, in portable document format (“PDF”) or other similar electronic
means). It shall not be necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single document. It shall not be necessary in making proof of this
document to produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto.



Section 12.14. Obligations with Respect to Loan Parties.



The obligations of the Borrower to direct or prohibit the taking of certain actions by the
other Loan Parties as specified herein shall be absolute and not subject to any defense the
Borrower may have that the Borrower does not control such Loan Parties.



Section 12.15. Independence of Covenants.



All covenants hereunder shall be given in any jurisdiction independent effect so that if a
particular action or condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken or condition
exists.



Section 12.16. Limitation of Liability.



None of the Administrative Agent, the Issuing Bank or any Lender, or any Affiliate, officer,
director, employee, attorney, or agent of the Administrative Agent, the Issuing Bank or any Lender
shall have any liability with respect to, and the Borrower hereby waives, releases, and agrees not
to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by the Borrower in connection with, arising out of, or in any way related to,
this Agreement, any of the other Loan Documents or the Fee Letter, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower hereby waives,
releases, and agrees not to sue the Administrative Agent, the Issuing Bank or any Lender or any of
the Administrative Agent’s, the Issuing Bank’s or any Lender’s Affiliates, officers, directors,
employees, attorneys, or agents for punitive damages in respect of any claim in connection with,
arising out of, or in any way related to, this Agreement, any of the other Loan Documents, the Fee
Letter, or any of the transactions contemplated by this Agreement or financed hereby.


 


 - 101 - 









 





Section 12.17. Entire Agreement.



This Agreement, the Notes, the other Loan Documents and the Fee Letter embody the final,
entire agreement among the parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the subject matter hereof
and
thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto. There are no oral agreements among the
parties hereto.



Section 12.18. Construction.



The Administrative Agent, the Issuing Bank, the Borrower and each Lender acknowledge that each
of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement and the other Loan Documents with its legal counsel and that this
Agreement and the other Loan Documents shall be construed as if jointly drafted by the
Administrative Agent, the Issuing Bank, the Borrower and each Lender.



Section 12.19. Headings.



The paragraph and section headings in this Agreement are provided for convenience of reference
only and shall not affect its construction or interpretation.



[Signatures on Following Pages]




 


 - 102 - 









 







IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be executed by
their authorized officers all as of the day and year first above written.



	 	 	 	 	 
	 	UDR, Inc., a Maryland Corporation

 	 
	 	By:  	/s/ William T. O’Shields III

 	 
	 	 	Name:  	William T. O’Shields III	 
	 	 	Title:  	Vice
President-Treasurer	 
	 



[Signatures Continued on Next Page]




 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender

 	 
	 	By:  	/s/ J. Derek Evans	 
	 	 	Name:  	J. Derek Evans	 
	 	 	Title:  	Senior Vice President	 
	 



[Signatures Continued on Next Page]




 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	JPMorgan Chase Bank, N.A. 



	 
	 	By:  	/s/ Kimberly Turner	 
	 	 	Name:  	Kimberly Turner	 
	 	 	Title:  	Executive Director	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.



	 
	 	By:  	/s/ James P. Johnson	 
	 	 	Name:  	James P. Johnson	 
	 	 	Title:  	Senior Vice President	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION



	 
	 	By:  	/s/ James A. Harmann	 
	 	 	Name:  	James A. Harmann	 
	 	 	Title:  	Senior Vice President	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	US BANK, NA 



	 
	 	By:  	/s/ Andrew B. Hyde	 
	 	 	Name:  	Andrew B. Hyde	 
	 	 	Title:  	Vice President	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	CITIBANK, NA 



	 
	 	By:  	/s/ John C. Rowland	 
	 	 	Name:  	John C. Rowland	 
	 	 	Title:  	Vice President	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A. 



	 
	 	By:  	/s/ Michael King	 
	 	 	Name:  	Michael King	 
	 	 	Title:  	Authorized Signatory	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	REGIONS BANK



	 
	 	By:  	/s/ Rob MacGregor	 
	 	 	Name:  	Rob
MacGregor	 
	 	 	Title:  	Director	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	ROYAL BANK OF CANADA



	 
	 	By:  	/s/ David Cole	 
	 	 	Name:  	David Cole	 
	 	 	Title:  	Authorized Signatory	 
	 



 


 









 




[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	UNION BANK, N.A.



	 
	 	By:  	/s/ Katherine Brandt	 
	 	 	Name:  	Katherine Brandt	 
	 	 	Title:  	Vice President	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	COMPASS BANK



	 
	 	By:  	/s/ Richard Malloy	 
	 	 	Name:  	Richard Malloy	 
	 	 	Title:  	Vice President	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH



	 
	 	By:  	/s/ Mikhail Faybusovich	 
	 	 	Name:  	Mikhail Faybusovich	 
	 	 	Title:  	Director	 
	 
	 	By:  	/s/ Vipul Dhadda	 
	 	 	Name:  	Vipul Dhadda	 
	 	 	Title:  	Associate	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	SUNTRUST BANK



	 
	 	By:  	/s/ Gregory T. Horstman	 
	 	 	Name:  	Gregory T. Horstman	 
	 	 	Title:  	Senior Vice President	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	BRANCH BANKING AND RUST COMPANY



	 
	 	By:  	/s/ Ahaz A. Armstrong	 
	 	 	Name:  	Ahaz A. Armstrong	 
	 	 	Title:  	Assistant Vice President	 
	 



 


 









 





[Signature Page to Credit Agreement with UDR, Inc.]




	 	 	 	 	 
	 	CAPITAL ONE, N.A.



	 
	 	By:  	/s/ Frederick H. Denecke	 
	 	 	Name:  	Frederick H. Denecke	 
	 	 	Title:  	Vice President	 
	 



 


 









 





SCHEDULE I




Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Pro Rata Percentage	 
	Wells Fargo Bank, National Association
	 	$	90,000,000.00	 	 	 	10.00000000	%
	JPMorgan Chase Bank, N.A.
	 	$	90,000,000.00	 	 	 	10.00000000	%
	Bank of America, N.A.
	 	$	75,000,000.00	 	 	 	8.33333333	%
	PNC Bank National Association
	 	$	75,000,000.00	 	 	 	8.33333333	%
	US Bank, NA
	 	$	75,000,000.00	 	 	 	8.33333333	%
	Citibank, NA
	 	$	60,000,000.00	 	 	 	6.66666667	%
	Morgan Stanley Bank, N.A.
	 	$	60,000,000.00	 	 	 	6.66666667	%
	Regions Bank
	 	$	60,000,000.00	 	 	 	6.66666667	%
	Royal Bank of Canada
	 	$	60,000,000.00	 	 	 	6.66666667	%
	Union Bank, N.A.
	 	$	60,000,000.00	 	 	 	6.66666667	%
	Compass Bank
	 	$	45,000,000.00	 	 	 	5.00000000	%
	Credit Suisse AG, Cayman Islands Branch
	 	$	45,000,000.00	 	 	 	5.00000000	%
	SunTrust Bank
	 	$	45,000,000.00	 	 	 	5.00000000	%
	Branch Banking and Trust Company
	 	$	35,000,000.00	 	 	 	3.88888889	%
	Capital One, N.A.
	 	$	25,000,000.00	 	 	 	2.77777778	%
	TOTAL
	 	$	900,000,000.00	 	 	 	100.00000000	%





 


 









 




SCHEDULE 1.1




List of Loan Parties




Borrower




UDR, Inc.



Guarantors




AAC Funding IV, LLC

AAC Funding Partnership II

Andover House LLC

Ashwood Commons North LLC

Ashwood Commons, L.L.C.

CMP-1, LLC

Coastal Monterey Properties, L.L.C.

Continental 146 Fund LLC

DCO 2400 14th Street LLC

DCO Arbors at Lee Vista LLC

DCO Bennett Development LP

DCO Brookhaven Center LP

DCO Glenwood Urban LP

DCO Highlands LLC

DCO Holdings, Inc.

DCO Millenia LLC

DCO Mission Bay LP

DCO Option 2 LLC

DCO Pine Avenue LP

DCO Realty LP LLC

DCO Realty Surprise LLC

DCO Realty Woodlands LP

DCO Realty, Inc.

DCO Savoye LLC

Harding Park, Inc.

Hawthorne Apartments, LLC

Heritage Communities LLC

HPI Option 2 LLC

Inlet Bay at Gateway, LLC

Jamestown of St. Matthews Limited Partnership

LPC Millenia Place Apartments LLC

LPC Plantation Apartments, LP

MacAlpine Place Apartment Partners, Ltd.

Ninety Five Wall Street LLC

Northbay Properties II, LP

Polo Park Apartments LLC

RE3, Inc.

Sierra Palms Condominiums LLC

The Commons of Columbia, Inc.

UDR 1818 Platinum LLC

UDR Arborview Associates LLC

UDR California Properties, LLC

UDR Calvert, LLC

UDR Carriage Homes, LLC

UDR Crane Brook LLC

UDR Crossroads, L.P.

UDR Domain Brewers Hill LLC

UDR Garrison Square LLC

UDR Holdings, LLC

UDR of Tennessee, L.P.

UDR Presidential Greens, L.L.C.

UDR Presidio, LP

UDR Ridgewood (II) Garden, LLC

UDR Rivergate LLC

UDR Texas Properties, LLC

UDR Towers By The Bay LLC

UDR Villa Venetia Apartments, L.P.

UDR Virginia Properties, LLC

UDR/Pacific Los Alisos, L.P.

United Dominion Realty, L.P.

View 14 Investments LLC

Waterside Towers, L.L.C.

Winterland San Francisco Partners





 


- 5 -











 




SCHEDULE 1.1(a)




Existing
Letters of Credit




	 	 	 	 	 	 	 	 	 
	Standby Letter of Credit #	 	Face Amount	 	 	Maturity Date	 
	IS0001229
	 	$	40,677.00	 	 	 	06/30/2012	 
	IS0002500
	 	$	909,357.00	 	 	 	06/26/2012	 
	SM202356
	 	$	95,000.00	 	 	 	08/01/2012	 
	SM231145W
	 	$	285,433.00	 	 	 	06/26/2012	 
	SM231148W
	 	$	275,332.00	 	 	 	06/26/2012	 
	SM231755W
	 	$	501,774.67	 	 	 	08/02/2012	 
	SM231757W
	 	$	219,975.00	 	 	 	08/02/2012	 
	SM231758W
	 	$	128,957.09	 	 	 	08/02/2012	 
	SM232913
	 	$	101,654.27	 	 	 	10/09/2012	 
	SM235788
	 	$	22,500.00	 	 	 	10/08/2012	 
	SM236875
	 	$	40,000.00	 	 	 	04/01/2012	 
	UDR INC00131
	 	$	50,000,000.00	 	 	 	11/07/2011	 
	UDR INC00132
	 	$	280,000,000.00	 	 	 	11/07/2011	 
	UDR INC00133
	 	$	20,000,000.00	 	 	 	10/25/2011	 
	UDR INC00134
	 	$	13,000,000.00	 	 	 	11/01/2011	 







 















 




UDR, Inc.

Schedule 6.1.(b) — List of Loan Parties (Consolidated List)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Greater than	 	Included /	 	 
	Entities	 	Domestic State	 	20MM	 	Excluded	 	Ownership
	AAC Funding IV, LLC

	 	CA
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (99.9%) Manager 
AAC Funding IV, Inc. (0.1%) Member
	AAC Funding Partnership II

	 	DE
	 	Material
	 	Included
	 	United Dominon Realty, L.P. (99%) GP 
AAC Funding II, Inc. (1%) GP
	Andover House LLC

	 	DE
	 	Material
	 	Included
	 	Andover Member 1 LLC (100%)
	Ashwood Commons North LLC

	 	WA
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	Ashwood Commons, LLC

	 	WA
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	CMP-1, LLC

	 	DE
	 	Material
	 	Included
	 	FMP Member, Inc. (0.1%) Administrative Member 
Coastal Monterey Properties LLC (99.9%) Member
	Coastal Monterey Properties, LLC

	 	DE
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (99.9%) Member 
AAC Funding Partnership II (0.1%) Member
	Continental 146 Fund, LLC

	 	WI
	 	Material
	 	Included
	 	UDR California Properties, LLC (100%)
	DCO 2400 14th Street LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	DCO Arbors at Lee Vista LLC

	 	DE
	 	Material
	 	Included
	 	DCO Holdings, Inc. (100%)
	DCO Bennett Development, LP

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Brookhaven Center LP

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Glenwood Urban LP

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Highlands LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	DCO Holdings, Inc.

	 	DE
	 	Material
	 	Included
	 	RE3, Inc.(100%)
	DCO Millenia, LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	DCO Mission Bay LP

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Option 2 LLC

	 	DE
	 	Material
	 	Included
	 	DCO Holdings, Inc. (100%)
	DCO Pine Avenue LP

	 	DE
	 	Material
	 	Included
	 	DCO Holdings, Inc. (99.9%) GP 
DCO Holdings LP LLC (0.1%) LP
	DCO Realty LP LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	DCO Realty Surprise LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	DCO Realty Woodlands LP

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Realty, Inc.

	 	DE
	 	Material
	 	Included
	 	RE3, Inc.(100%)
	DCO Savoye LLC

	 	DE
	 	Material
	 	Included
	 	DCO Realty, Inc. (100%)
	Harding Park, Inc.

	 	DE
	 	Material
	 	Included
	 	RE3, Inc.(100%)
	Hawthorne Apartments, LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	Heritage Communities LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%) LP
	HPI Option 2 LLC

	 	DE
	 	Material
	 	Included
	 	Harding Park, Inc. (100%)
	Inlet Bay at Gateway, LLC

	 	DE
	 	Material
	 	Included
	 	AAC Funding Partnership II (100%)
	Jamestown of St. Matthews Limited Partnership

	 	OH
	 	Material
	 	Included
	 	United Dominon Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	LPC Millenia Place Apartments LLC

	 	DE
	 	Material
	 	Included
	 	DCO Millenia LLC (100%)
	LPC Plantation Apartments, LP

	 	DE
	 	Material
	 	Included
	 	St. Johns GP, LLC (0.1%) GP 
UDR Texas Properties LLC (99.9%) LP
	MacAlpine Place Apartment Partners, Ltd.

	 	FL
	 	Material
	 	Included
	 	UDRT of Delaware 4 LLC (1%) GP 
United Dominon Realty, L.P. (99%) LP
	Ninety Five Wall Street LLC

	 	DE
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (100%)
	Northbay Properties II, LP

	 	CA
	 	Material
	 	Included
	 	United Dominon Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	Polo Park Apartments LLC

	 	DE
	 	Material
	 	Included
	 	Polo Park Manager LLC (1%) Managing Member 
United Dominon Realty, L.P. (99%) Member
	RE3, Inc

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	Sierra Palms Condominiums, LLC

	 	DE
	 	Material
	 	Included
	 	Harding Park, Inc. (100%)
	The Commons of Columbia, Inc.

	 	VA
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR 1818 Platinum LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Arborview Associates LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR California Properties, LLC

	 	VA
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Calvert, LLC

	 	DE
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (100%)
	UDR Carriage Homes, LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Crane Brook LLC

	 	DE
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (100%)
	UDR Crossroads, L.P.

	 	DE
	 	Material
	 	Included
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Domain Brewers Hill LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Garrison Square LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Holdings, LLC

	 	VA
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (100%)
	UDR of Tennessee, LP

	 	VA
	 	Material
	 	Included
	 	UDR, Inc. (1%) GP and (98%) LP 
United Dominon Realty, L.P. (1%) LP
	UDR Presidential Greens, LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Presidio, LP

	 	DE
	 	Material
	 	Included
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Ridgewood (II) Garden, LLC

	 	VA
	 	Material
	 	Included
	 	United Dominion Realty, L.P. (100%)
	UDR Rivergate LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Texas Properties, LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (0.5%) Managing Member 
UDR Holdings, LLC (99.5) Member





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Greater than	 	Included /	 	 
	Entities	 	Domestic State	 	20MM	 	Excluded	 	Ownership
	UDR Towers By The Bay LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR Villa Venetia Apartments, LP

	 	DE
	 	Material
	 	Included
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Virginia Properties, LLC

	 	VA
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	UDR, Inc.

	 	MD
	 	Material
	 	Included
	 	Publicly Traded
	UDR/Pacific Los Alisos, LP

	 	DE
	 	Material
	 	Included
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	United Dominion Realty, LP

	 	DE
	 	Material
	 	Included
	 	UDR, Inc., (0.0616%) GP and (97.0248%) 
LP and (0.676%) Class A LP Outside LPs (2.8459%) LP
	View 14 Investments LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (100%)
	Waterside Towers, LLC

	 	DE
	 	Material
	 	Included
	 	UDR, Inc. (95%) Managing Member 
Trilon Plaza Company (Outside Member — 5%)
	Winterland San Francisco Partners

	 	CA
	 	Material
	 	Included
	 	United Dominon Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	AAC Funding Partnership III

	 	DE
	 	Material
	 	Excluded
	 	UDR Holdings, LLC (1%) GP 
United Dominion Realty, L.P. (99%) GP
	Bellevue Plaza Development LLC

	 	DE
	 	Material
	 	Excluded
	 	DCO Realty, Inc. (100%)
	Circle Towers LLC

	 	DE
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	Consolidated-Hampton, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Properties LLC (100%)
	Coronado South Apartments, LP

	 	DE
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	DCO Caroline Development LLC

	 	DE
	 	Material
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Gessner Development, LP

	 	DE
	 	Material
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Savoye 2 LLC

	 	DE
	 	Material
	 	Excluded
	 	DCO Realty, Inc. (100%)
	Governour’s Square of Columbus Co.

	 	OH
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	Jefferson at Marina del Rey, LP

	 	DE
	 	Material
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	UDR 10 Hanover LLC

	 	DE
	 	Material
	 	Excluded
	 	Hanover Square SPE LLC (100%)
	UDR Altamira Place, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Calvert’s Walk Associates Limited Partnership

	 	MD
	 	Material
	 	Excluded
	 	UDR Calverts Walk GP, LLC (1%) GP 
UDR Texas Properties LLC (99%) LP
	UDR Chelsea LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR, Inc. (99.9%) Member 
UDR Chelsea Member LLC (0.1%) Managing Member
	UDR Harbor Greens, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Huntington Vista, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Inwood LLC

	 	DE
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Lakeside Mill LLC

	 	VA
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Legacy at Mayland, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Marina Pointe LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Maryland Properties, LLC

	 	VA
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Newport Beach North, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Okeeheelee LLC

	 	DE
	 	Material
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Pinebrook, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Rancho Cucamonga, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP II, LLC (0.1%) GP 
AAC Funding Partnership II (99.9%) LP
	UDR Ridge at Blue Hills LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR, Inc. (100%)
	UDR River Terrace LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Properties LLC (100%)
	UDR Wellington Place LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Properties LLC (100%)
	UDR Windjammer, L.P.

	 	DE
	 	Material
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	Windemere at Sycamore Highlands, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR California Properties, LLC (100%)
	Woodlake Village, LP

	 	CA
	 	Material
	 	Excluded
	 	United Dominon Realty, L.P. (99%) GP 
UDR, Inc. (1%) LP
	20 Lambourne LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Consolidated-Hampton, LLC (100%)
	AAC Funding II, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	AAC Funding IV, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	AAC Seattle I, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	AAC/FSC Crown Pointe Investors, LLC

	 	WA
	 	Immaterial
	 	Excluded
	 	AAC/FSC Seattle Properties, LLC (100%)
	AAC/FSC Hilltop Investors, LLC

	 	WA
	 	Immaterial
	 	Excluded
	 	AAC/FSC Seattle Properties, LLC (100%)
	AAC/FSC Seattle Properties, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (98.1%) Managing Member 
AAC Seattle I, Inc. (1.9%) Member
	Andover Member 1 LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Andover Member 2 LLC (99%) Managing Member 
Winerland San Francisco Partners (1%) Member
	Andover Member 2 LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Winterland San Francisco Partners (100%)
	Arizona Properties, LLC

	 	VA
	 	Immaterial
	 	Excluded
	 	Harding Park, Inc.
	ASR Investments Corporation

	 	MD
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	Bella Terra Villas LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc.
	Bellevue JV LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	Calvert’s Walk LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR Calvert’s Walk Associates Limited Partnership (100%)
	Coit Road, LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Holdings, Inc. (1%) GP 

Ridgewood (I) Townhomes LLC (99%) LP
	DCO 1015 Grandview LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (99.9%) GP 

DCO Realty LP LLC (0.1%) LP
	DCO 3033 Wilshire LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Greater than	 	Included /	 	 
	Entities	 	Domestic State	 	20MM	 	Excluded	 	Ownership
	DCO Addison at Brookhaven LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (99.9%) GP 

DCO Realty LP LLC (0.1%) LP
	DCO Beach LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Beach Walk LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Beach LLC (90%) Managing Member 
Crescent Place Management, LLC (10%) Non-Managing Member
	DCO Belmont Townhomes LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Borgata, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Holdings, Inc. (100%)
	DCO Brooks Apartments LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Clipper Pointe LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO College Park LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Garden Oaks LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Glenwood Apartments GP LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Glenwood Apartments LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Glenwood Apartments GP LLC (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Greenbrook Apartments LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Greenhaven LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Holdings LP LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Holdings, Inc. (100%)
	DCO Market LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Riachi at One21 LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Holdings, Inc. (0.1%) GP 
DCO Holdings LP LLC (99.9%) LP
	DCO Seaport LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	DCO Springhaven LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	DCO Talisker LP

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (0.1%) GP 
DCO Realty LP LLC (99.9%) LP
	Dominion Constant Friendship LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	Dominion Eden Brook LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	The Commons of Columbia, Inc. (100%)
	Dominion Kings Place LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	The Commons of Columbia, Inc. (100%)
	Eastern Residential, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	Management Company Services, Inc. (100%)
	FMP Member, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	Hanover Square SPE LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	Harding Park LP LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Harding Park, Inc. (100%)
	HPI 2161 Sutter LP

	 	DE
	 	Immaterial
	 	Excluded
	 	Harding Park, Inc. (99.9%) GP 
Harding Park LP LLC (0.1%) LP
	HPI Canyon Oaks LP

	 	DE
	 	Immaterial
	 	Excluded
	 	Harding Park, Inc. (99.9%) GP 
Harding Park LP LLC (0.1%) LP
	Inwood Development LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	Lakeside Port Orange LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Holdings, Inc. (100%)
	LPC Mustang Park LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Millenia LLC (100%)
	Management Company Services, Inc.

	 	DE
	 	Immaterial
	 	Excluded
	 	RE3, Inc.(100%)
	Parkers Landing Townhomes, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Harding Park, Inc. (100%)
	St. Johns GP, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR Texas Properties LLC
	Town Square Commons, LLC

	 	DC
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	Trilon Townhouses, LLC

	 	DC
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (95%) Managing Member 
Trilon Plaza Company (5%) Member
	UDR Aspen Creek, LLC

	 	VA
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR California GP II, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	AAC Funding Partnership II (100%)
	UDR California GP, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Calverts Walk GP LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR Texas Properties LLC (100%)
	UDR Carlsbad Apartments, LP

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Chelsea Member LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Developers, Inc.

	 	VA
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Foxglove Associates, L.L.C.

	 	MD
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Midlands Acquisition LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	UDR Ocean Villa Apartments, LP

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR California GP, LLC (0.1%) GP 
United Dominon Realty, L.P. (99.9%) LP
	UDR Ohio Properties, LLC

	 	VA
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR South Carolina Trust

	 	MD
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR Woodland Apartments II, LP

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR Woodland GP, LLC (0.1%) GP 
UDR, Inc. (99.9%) LP
	UDR Woodland GP, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDRT of Delaware 4 LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	United Dominion Realty, L.P. (100%)
	Western Residential, Inc.

	 	VA
	 	Immaterial
	 	Excluded
	 	Management Company Services, Inc. (100%)





 


 









 





UDR, Inc.

Schedule 6.1.(b) — List of Loan Parties (Unconsolidated List)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Greater than	 	Included /	 	 
	Entities	 	Domestic State	 	20MM	 	Excluded	 	Ownership
	101 Colorado High-Rise, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	1020 Tower, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	10420 McKinley Partners, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	10700 Wilshire, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	13th and Market Properties LLC

	 	DE
	 	Material
	 	Excluded
	 	THC/13th And Market Development LLC (95%) Managing Member 
DCO Market LLC (5%) Member
	1900 McKinney Properties, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	24 Hundred Properties LLC

	 	DE
	 	Material
	 	Excluded
	 	K/UDR Venture LLC (100%)
	Acoma High-Rise, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Apartments on Chestnut Limited Partnership

	 	DE
	 	Material
	 	Excluded
	 	Domus SPE General Partner, LLC (0.5%) GP 
UDR/MetLife Master Limited Partnerhsip (99.5%) LP
	Ardrey Kell Townhomes, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Ashton Judiciary Square, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Cedar Street High-Rise, L.P.

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Easton Partners, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Foxborough Lodge Limited Partnership

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	HMS SouthPark Residential LLC

	 	DE
	 	Material
	 	Excluded
	 	HMS Southpark Residential, LLC (100%)
	Icon Tower, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	L.A. Southpark High-Rise, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Lenox Farms Limited Partnership

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Lodge at Ames Pond Limited Partnership

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Lofts at Charles River Landing , LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Lofts on Miracle Mile, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Olive Way High-Rise LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Riverway Residential, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 

UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Sandpiper Cove, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Strata Properties, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Towson Promenade, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Tremont Partners, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	UDR Lakeline Villas LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR Lincoln at Towne Square II LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR Lincoln at Towne Square LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR Red Stone Ranch, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR Stone Canyon LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR The Bradford, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR The Cliffs LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR The Legend at Park Ten LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR The Mandolin, LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	UDR The Meridian LLC

	 	DE
	 	Material
	 	Excluded
	 	UDR Texas Ventures LLC (100%)
	Washington VUE, LP

	 	DE
	 	Material
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	1001 Properties, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	465 N. Park Drive, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	6104 Hollywood, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Ashton at Dublin Station, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Boulevard Residential, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	DCO Stoughon LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	DCO Realty, Inc. (100%)
	Domain College Park, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Domus SPE General Partner LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife GP, LLC (100%)
	HMS Master Limited Partnership

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/ML Venture LLC (0%) GP 
UDR/MetLife Mall Ventures Limited Partnership (60%) LP 

Outside Patners (40%) LP
	K/UDR Venture LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/K Venture LLC (30%) Manager 
K/UDR Venture Fund Investor LLC (70%) Member
	Kelvin and Jamboree Properties, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	La Jolla Wilshire, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Portico Properties, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	K/UDR Venture LLC (100%)





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Greater than	 	Included /	 	 
	Entities	 	Domestic State	 	20MM	 	Excluded	 	Ownership
	Stoughton Residential, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	THC/UDR Development Venture LLC (100%)
	THC/UDR Development Venture LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	THC Development Venture 2010 LLC (5%) Managing Member 
DCO Stoughton LLC (95%) Member
	THC/UDR Domain College Park LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	THC College Park Development Venture LLC (95%) Managing Member 
DCO College Park LLC (5%) Member
	The Paseo Del Mar I, LP

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife G.P. LLC (0.1%) GP 
UDR/MetLife Master Limited Partnerhsip (99.9%) LP
	Towson Holdings, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Towson Promenade, LLC (100%)
	UDR Texas Ventures LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR TX Fund LLC (20%) Managing Member 
Fannie Mae (80%) Member
	UDR TX Fund LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	Lincoln TC II, L.P. (100%)
	UDR/K Venture Member

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	UDR/MetLife G.P,. LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	UDR/MetLife Mall Ventures Limited Partnership

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/ML Venture LLC (1%) GP and (20.12%) LP 
Metropolitan Life Insurance Company (78.88%) LP
	UDR/MetLife Master Limited Partnership

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/ML Venture LLC (1%) GP and (varies per property) LP 
Metropolitan Life Insurance Company (varies per property) LP
	UDR/ML Venture LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR, Inc. (100%)
	West El Camino Real , LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)
	Wilshire Crescent Heights, LLC

	 	DE
	 	Immaterial
	 	Excluded
	 	UDR/MetLife Master Limited Partnership (100%)







 


 












 




UDR, Inc.

Schedule 6.1.(f) — Properties



	 	 	 	 	 	 	 	 	 
	List of Real Property Owned
	 	 	 	 	 	 	 	 
	Finisterra

	 	1250 W. Grove Parkway
	 	Tempe
	 	AZ	 	 
	Lumiere Chandler Condos

	 	1100 North Priest
	 	Chandler
	 	AZ	 	 
	Residences at Stadium Village

	 	16485 N. Stadium Way
	 	Surprise
	 	AZ	 	 
	Sierra Canyon

	 	17500 N. 67th Avenue
	 	Glendale
	 	AZ	 	 
	Sierra Foothills

	 	13601 S. 44th Street
	 	Phoenix
	 	AZ	 	 
	Waterford at Peoria

	 	14109 N. 83rd Avenue
	 	Peoria
	 	AZ	 	 
	1818 Platinum Triangle

	 	1818 S. State College Blvd.
	 	Anaheim
	 	CA	 	 
	2000 Post III

	 	2161 Sutter Street
	 	San Francisco
	 	CA	 	 
	2000 Post Street

	 	2000 Post Street
	 	San Francisco
	 	CA	 	 
	388 Beale

	 	388 Beale Street
	 	San Francisco
	 	CA	 	 
	Bay Terrace

	 	3204 Casa De Campo Way
	 	San Mateo
	 	CA	 	 
	Birch Creek

	 	575 S. Rengstorff Avenue
	 	Mountain View
	 	CA	 	 
	Boronda Manor

	 	2073 Santa Rita Street
	 	Salinas
	 	CA	 	 
	Cambridge Court

	 	939 Heather Circle #1
	 	Salinas
	 	CA	 	 
	Coronado at Newport — North

	 	880 Irvine Avenue
	 	Newport Beach
	 	CA	 	 
	Coronado South

	 	1700 16th Street
	 	Newport Beach
	 	CA	 	 
	Crossroads Apartments

	 	5378 Clayton Road
	 	Concord
	 	CA	 	 
	Edgewater

	 	355 Berry Street
	 	San Francisco
	 	CA	 	 
	Foothills Tennis Village

	 	5 Marcia Way
	 	Roseville
	 	CA	 	 
	Foxborough

	 	501 E. Katella Avenue
	 	Orange
	 	CA	 	 
	Garden Court

	 	1044 John Street
	 	Salinas
	 	CA	 	 
	Harbor at Mesa Verde

	 	2700 Peterson Place
	 	Costa Mesa
	 	CA	 	 
	Highlands Of Marin

	 	1050 Cresta Way
	 	San Rafael
	 	CA	 	 
	Highlands of Marin Phase II

	 	1050 Cresta Way
	 	San Rafael
	 	CA	 	 
	Huntington Villas

	 	16761 Viewpoint Lane
	 	Huntington Beach
	 	CA	 	 
	Huntington Vista

	 	21551 Brookhurst Street
	 	Huntington Beach
	 	CA	 	 
	Jefferson at Marina del Rey

	 	3221 Carter Avenue
	 	Marina Del Rey
	 	CA	 	 
	Laurel Tree

	 	1185 Monroe Street
	 	Salinas
	 	CA	 	 
	Marina Playa

	 	3500 Granada Avenue
	 	Santa Clara
	 	CA	 	 
	Marina Pointe

	 	13603 Marina Pointe Dr.
	 	Marina del Rey
	 	CA	 	 
	Missions at Back Bay

	 	1330 SE Bristol Street
	 	Costa Mesa
	 	CA	 	 
	Ocean Villas

	 	4401 Dallas Drive
	 	Oxnard
	 	CA	 	 
	Pacific Shores

	 	7701 Warner Avenue
	 	Huntington Beach
	 	CA	 	 
	Pine Brook Village

	 	1555 Mesa Verde Drive East
	 	Costa Mesa
	 	CA	 	 
	Pine Brook Village II

	 	1555 Mesa Verde Drive East
	 	Costa Mesa
	 	CA	 	 
	Pine@Sixth

	 	595 Pine Street
	 	Long Beach
	 	CA	 	 
	Presidio at Rancho Del Oro

	 	4401 Mission Avenue
	 	Oceanside
	 	CA	 	 
	River Terrace

	 	730 Agnew Road
	 	Santa Clara
	 	CA	 	 
	Rosebeach

	 	16124 Rosecrans Avenue
	 	La Mirada
	 	CA	 	 
	Summit at Mission Bay

	 	3103 Clairemont Drive
	 	San Diego
	 	CA	 	 
	The Pointe At Harden Ranch

	 	2260 N. Main Street
	 	Salinas
	 	CA	 	 
	The Pointe At Northridge

	 	436 Noice Drive
	 	Salinas
	 	CA	 	 
	The Pointe At Westlake

	 	60 Stephanie Drive
	 	Salinas
	 	CA	 	 
	Tierra Del Rey

	 	4250 Glencoe Avenue
	 	Marina del Rey
	 	CA	 	 
	Verano at Town Square

	 	8200 Haven Avenue, Suite 102
	 	Rancho Cucamonga
	 	CA	 	 
	Villa Venetia

	 	2775 Mesa Verde Drive East
	 	Costa Mesa
	 	CA	 	 
	Villas at Carlsbad

	 	2600 Kremeyer Circle
	 	Carlsbad
	 	CA	 	 
	Vista Del Rey

	 	1151 Walnut Avenue
	 	Tustin
	 	CA	 	 
	Waterstone at Murrieta

	 	24850 Hancock Avenue
	 	Murrieta
	 	CA	 	 
	Windemere at Sycamore Highland

	 	5925 Sycamore Canyon Boulevard
	 	Riverside
	 	CA	 	 
	Woodlake Village

	 	200 Bicentennial Circle
	 	Sacramento
	 	CA	 	 
	Andover House

	 	1200 14th Street NW
	 	Washington
	 	DC	 	 
	Commons at Town Square

	 	907 6th Street SW
	 	Washington
	 	DC	 	 
	View 14

	 	2303 14th St NW
	 	Washington
	 	DC	 	 
	Waterside Towers

	 	907 6th Street SW
	 	Washington
	 	DC	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	Waterside Townhomes

	 	907 6th Street SW
	 	Washington
	 	DC	 	 
	Alafaya Woods

	 	407 Alafaya Woods Blvd.
	 	Oviedo
	 	FL	 	 
	Altamira Place Apartment Homes

	 	700 Altamira Circle
	 	Altamonte Springs
	 	FL	 	 
	Antlers

	 	8433 Southside Boulevard
	 	Jacksonville
	 	FL	 	 
	Arbors at Lee Vista

	 	5900 Bent Pine Drive
	 	Orlando
	 	FL	 	 
	Ashton @ Waterford

	 	12137 Ashton Manor Drive
	 	Orlando
	 	FL	 	 
	Bay Meadow

	 	13621 Feather Sound Circle East
	 	Clearwater
	 	FL	 	 
	Cambridge

	 	14138 Monterey Pines Drive
	 	Tampa
	 	FL	 	 
	Gallery at Bayport II

	 	5365 Harborside Drive
	 	Tampa
	 	FL	 	 
	Greentree

	 	9480 Princeton Sq. Blvd.
	 	Jacksonville
	 	FL	 	 
	Hunters Ridge

	 	1400 Plantation Blvd.
	 	Plant City
	 	FL	 	 
	Inlet Bay

	 	12000 4th Street North
	 	St. Petersburg
	 	FL	 	 
	Island Walk

	 	5365 Harborside Drive
	 	Tampa
	 	FL	 	 
	Lakewood Place

	 	1701 Lake Chapman Drive
	 	Brandon
	 	FL	 	 
	Los Altos

	 	311 Los Altos Way
	 	Altamonte Springs
	 	FL	 	 
	Lotus Landing

	 	595 Lotus Landing Blvd.
	 	Altamonte Springs
	 	FL	 	 
	MacAlpine Place

	 	152 Macalpine Way
	 	Dunedin
	 	FL	 	 
	Mallards of Brandywine

	 	3165 Brandywine Road
	 	Deland
	 	FL	 	 
	PIERPOINT Port Orange

	 	1010 North Swallow Tail Dr.
	 	Port Orange
	 	FL	 	 
	Regatta Shore

	 	2335 W. Seminole Blvd.
	 	Sanford
	 	FL	 	 
	Riverbridge

	 	50 Olive Tree Circle
	 	Greenacres
	 	FL	 	 
	Seabrook

	 	3114 Terry Brook Drive
	 	Winter Park
	 	FL	 	 
	Seville On The Green

	 	300 Sheoah Blvd.
	 	Winter Springs
	 	FL	 	 
	St Johns Plantation

	 	7595 Baymeadows Circle West
	 	Jacksonville
	 	FL	 	 
	Sugar Mill Creek

	 	8500 Belcher Road
	 	Pinellas Park
	 	FL	 	 
	Summit West

	 	11500 Summit West Blvd.
	 	Temple Terrace
	 	FL	 	 
	The Breyley Apartments

	 	1820 Sunset Point Road
	 	Clearwater
	 	FL	 	 
	The Canopy Apartment Villas

	 	5762 Folkstone Lane
	 	Orlando
	 	FL	 	 
	The Groves

	 	3780 S. Clyde Morris Blvd.
	 	Port Orange
	 	FL	 	 
	The Kensley Apartment Homes

	 	6371 Collins Road
	 	Jacksonville
	 	FL	 	 
	The Place on Millenia Blvd

	 	5215 Millenia Blvd.
	 	Orlando
	 	FL	 	 
	The Vintage Lofts at West End

	 	801 N. Rome Avenue
	 	Tampa
	 	FL	 	 
	Westland

	 	6710 Collins Road
	 	Jacksonville
	 	FL	 	 
	14 North

	 	1000 Crane Brook Way
	 	Peabody
	 	MA	 	 
	Garrison Square

	 	32 Garrison St.
	 	Boston
	 	MA	 	 
	Inwood West

	 	1 Inwood Drive
	 	Woburn
	 	MA	 	 
	Ridge at Blue Hills

	 	800 West Street
	 	Braintree
	 	MA	 	 
	20 Lambourne

	 	20 Lambourne Rd.
	 	Towson
	 	MD	 	 
	Arborview Apartments

	 	1300 Liriope Court
	 	Belcamp
	 	MD	 	 
	Brittingham Square

	 	1500 Sharen Dr.
	 	Salisbury
	 	MD	 	 
	Calvert’s Walk

	 	200 Fox Hall Drive
	 	Bel Air
	 	MD	 	 
	Domain Brewers Hill

	 	1200 S. Conkling St.
	 	Baltimore
	 	MD	 	 
	Dominion At Eden Brook

	 	7310 Eden Brook Dr.
	 	Columbia
	 	MD	 	 
	Dominion Constant Freindship

	 	499 Crisfield Dr.
	 	Abingdon
	 	MD	 	 
	Dominion Kings Place

	 	7525 Murray Hill Rd.
	 	Columbia
	 	MD	 	 
	Ellicott Grove Apartments

	 	3005 Oak Green Circle
	 	Ellicott City
	 	MD	 	 
	Greens At Cross Court

	 	1200 S. Washington St.
	 	Easton
	 	MD	 	 
	Greens At Schumaker Pond

	 	701 College Lane
	 	Salisbury
	 	MD	 	 
	Lakeside Mill

	 	100 Chase Mill Circle
	 	Owings Mills
	 	MD	 	 
	Liriope Apartments

	 	1300 Liriope Court
	 	Belcamp
	 	MD	 	 
	Ridgewood

	 	4101 Postgate Terrace
	 	Silver Spring
	 	MD	 	 
	Tamar Meadow

	 	8600 Cobblefield Drive
	 	Columbia
	 	MD	 	 
	The Tribute on Glenwood

	 	1300 Tribute Center Dr.
	 	Raleigh
	 	NC	 	 
	21 Chelsea

	 	120 West 21st Street
	 	New York
	 	NY	 	 
	95 Wall Street

	 	95 Wall Street
	 	New York
	 	NY	 	 
	Rivergate

	 	401 E 34th St
	 	New York
	 	NY	 	 
	Andover Park

	 	15282 SW Teal Boulevard
	 	Beaverton
	 	OR	 	 
	Hunt Club

	 	6142 SW Bonita Road
	 	Lake Oswego
	 	OR	 	 
	Tualatin Heights

	 	9301 SW Sagert Road
	 	Tualatin
	 	OR	 	 
	Breckenridge

	 	1600 Nesbitt Lane
	 	Madison
	 	TN	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	Brookridge

	 	249 Brookidge Trail
	 	Nashville
	 	TN	 	 
	Carrington Hills

	 	3750 Carothers Parkway
	 	Franklin
	 	TN	 	 
	Colonnade

	 	4100 Central Pike
	 	Hermitage
	 	TN	 	 
	Hickory Run

	 	1080 W. Main St.
	 	Hendersonville
	 	TN	 	 
	Legacy Hill

	 	501 Shadowood Drive
	 	Nashville
	 	TN	 	 
	Polo Park

	 	100 Jackson Downs Blvd.
	 	Nashville
	 	TN	 	 
	The Preserve at Brentwood

	 	370 Oakley Drive
	 	Nashville
	 	TN	 	 
	Clipper Pointe Apartments

	 	4015 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	Garden Oaks

	 	4005 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	Glenwood Apartments

	 	3800 Spring Valley Road
	 	Addison
	 	TX	 	 
	Greenbrook Apartments

	 	3789 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	Greenhaven Village Apartments

	 	3900 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	Highlands of Preston

	 	2523 Ohio Drive
	 	Plano
	 	TX	 	 
	Inn @ Los Patios

	 	8700 Post Oak
	 	San Antonio
	 	TX	 	 
	Laurelwoode

	 	10333 Research Forest Drive
	 	Magnolia
	 	TX	 	 
	Legacy Village

	 	7008 Bishop, Suite 1106
	 	Plano
	 	TX	 	 
	Residences at the Domain

	 	11400 Domain Drive
	 	Austin
	 	TX	 	 
	Springhaven

	 	3820 Spring Valley Road
	 	Addison
	 	TX	 	 
	Talisker of Addison

	 	3925 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	The Addison at Brookhaven

	 	4010 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	The Belmont

	 	2500 Bennett St.
	 	Dallas
	 	TX	 	 
	The Brooks

	 	3767 Brookhaven Club Drive
	 	Addison
	 	TX	 	 
	THIRTY377

	 	3377 Blackburn St.
	 	Dallas
	 	TX	 	 
	Tiburon

	 	8989 West Road
	 	Houston
	 	TX	 	 
	VP Phase I South

	 	3850 Vitruvian Way
	 	Addison
	 	TX	 	 
	Carriage Homes at Wyndham

	 	5600 Mulholland Drive
	 	Glen Allen
	 	VA	 	 
	Circle Towers

	 	9335 Lee Highway, Suite 100
	 	Fairfax
	 	VA	 	 
	Delancey at Shirlington

	 	4220 Campbell Avenue
	 	Arlington
	 	VA	 	 
	Dominion Creekwood

	 	5700 Woodcreek Circle
	 	Richmond
	 	VA	 	 
	Dominion English Hills

	 	8800 Queensmere Place
	 	Richmond
	 	VA	 	 
	Dominion Lake Ridge

	 	3216 Bluff View Court
	 	Lake Ridge
	 	VA	 	 
	Dominion Middle Ridge

	 	12280 Creekview Circle
	 	Woodbridge
	 	VA	 	 
	Dominion Olde West

	 	5541 Olde West Court
	 	Richmond
	 	VA	 	 
	Dominion Waterside At Lynnhaven

	 	888 South Clubhouse Road
	 	Virginia Beach
	 	VA	 	 
	Dominion West End

	 	3900 Acadia Lane
	 	Richmond
	 	VA	 	 
	Dominion Yorkshire Downs

	 	101 Little Bay Avenue
	 	Yorktown
	 	VA	 	 
	Eastwind

	 	1997 Eastwood Villa Lane
	 	Virginia Beach
	 	VA	 	 
	Forest Lake At Oyster Point

	 	307 St. Thomas Dr.
	 	Newport News
	 	VA	 	 
	Gayton Pointe Townhomes

	 	9712 Tartuffe Drive
	 	Richmond
	 	VA	 	 
	Greens At Falls Run

	 	2500 Green Tree Road
	 	Fredericksburg
	 	VA	 	 
	Heather Lake

	 	99 #189 Tide Mill Lane
	 	Hampton
	 	VA	 	 
	Legacy at Mayland

	 	8800 Queensmere Place
	 	Richmond
	 	VA	 	 
	Manor At England Run

	 	101 Knights Court
	 	Fredericksburg
	 	VA	 	 
	Manor At England Run II

	 	101 Knights Court
	 	Fredericksburg
	 	VA	 	 
	Manor At England Run III

	 	101 Knights Court
	 	Fredericksburg
	 	VA	 	 
	Presidential Greens

	 	3904 Executive Avenue
	 	Alexandria
	 	VA	 	 
	Sullivan Place

	 	5575 Vincent Gate Terrace
	 	Alexandria
	 	VA	 	 
	The Calvert

	 	3110 Mount Vernon Avenue
	 	Alexandria
	 	VA	 	 
	The Whitmore

	 	4301 Columbia Pike
	 	Arlington
	 	VA	 	 
	Waterside At Ironbridge

	 	11800 Lake Falls Drive
	 	Chester
	 	VA	 	 
	Wellington Place at Olde Town

	 	10303 7th Regiment Drive
	 	Manassas
	 	VA	 	 
	Woodscape

	 	581 Calla Court
	 	Newport News
	 	VA	 	 
	989 elements residential

	 	989 112th Avenue
	 	Bellevue
	 	WA	 	 
	Arbor Terrace

	 	1800 Sidney Avenue
	 	Port Orchard
	 	WA	 	 
	Arbor Terrace II

	 	1800 Sidney Avenue
	 	Port Orchard
	 	WA	 	 
	Ashwood Commons II

	 	989 112th Avenue
	 	Bellevue
	 	WA	 	 
	Aspen Creek

	 	12724 104th Ave. Court East
	 	Puyallup
	 	WA	 	 
	Borgata Apartment Homes

	 	37 103rd Avenue NE
	 	Bellevue
	 	WA	 	 
	Crowne Pointe

	 	3788 NE 4th Street
	 	Renton
	 	WA	 	 
	Elements Too

	 	989 112th Avenue
	 	Bellevue
	 	WA	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	Hearthstone at Merrill Creek

	 	1901 Merrill Creek Parkway
	 	Everett
	 	WA	 	 
	Hilltop

	 	500 Monroe Avenue NE
	 	Renton
	 	WA	 	 
	Island Square

	 	2758 78th Avenue SE
	 	Mercer Island
	 	WA	 	 
	The Hawthorne Apartments

	 	14701 Main Street
	 	Mill Creek
	 	WA	 	 
	The Kennedy Building

	 	907 NE 45th Street
	 	Seattle
	 	WA	 	 
	 
	 	 	 	 	 	 	 	 
	Non-MF / Development / Condo
	 	 	 	 	 	 	 	 
	Grandview DCO

	 	1011 & 1015 Grandview
	 	Glendale
	 	CA
	 	Commercial
	Brookhaven Shopping Center

	 	14380 Marsh Lane
	 	Addison
	 	TX
	 	Commercial
	Circle Towers Office Bldg

	 	9335 Lee Highway, Suite 100
	 	Fairfax
	 	VA
	 	Commercial
	Hanover Village

	 	Commercial Held for Investment
	 	Hanover County
	 	VA
	 	Commercial
	Bellevue Plaza retail

	 	139 106th Avenue
	 	Bellevue
	 	WA
	 	Commercial
	CitySouth

	 	3014 Los Prados
	 	San Mateo
	 	CA
	 	Redevelopment
	Barton Creek Landing

	 	2800 Bartons Bluff Lane
	 	Austin
	 	TX
	 	Redevelopment
	Mission Bay

	 	 	 	San Francisco
	 	CA
	 	Under Development
	Mission Viejo

	 	 	 	Mission Viejo
	 	CA
	 	Under Development
	2400 14th Street

	 	2400 14th Street
	 	Washington
	 	DC
	 	Under Development
	Belmont Townhomes

	 	 	 	Addison
	 	TX
	 	Under Development
	VP Phase I North

	 	3850 Brookhaven Club Dr
	 	Addison
	 	TX
	 	Under Development
	Signal Hill Apartments

	 	15051 Jefferson Davis Highway
	 	Woodbridge
	 	VA
	 	Under Development
	3033 Wilshire

	 	3033 Wilshire
	 	Los Angeles
	 	CA
	 	Land
	Presidio Land

	 	4401 Mission Avenue
	 	Oceanside
	 	CA
	 	Land
	Waterside land

	 	907 6th Street SW
	 	Washington
	 	DC
	 	Land
	Parkers Landing II

	 	6362 West Longboat Blvd.
	 	Tampa
	 	FL
	 	Land
	Vitruvian Infrastructure

	 	Development Infrastructure
	 	Addison
	 	TX
	 	Land
	 
	 	 	 	 	 	 	 	 
	Real Property Leased
	 	 	 	 	 	 	 	 
	Denver Office

	 	1745 Shea Center Drive, Suite 200
	 	Highlands Ranch
	 	CO	 	 
	Dallas Office

	 	5430 LBJ Freeway, Suite 1250
	 	Dallas
	 	TX	 	 
	Houston Office

	 	11200 Richmond Avenue, Suite 350
	 	Houston
	 	TX	 	 
	Glenn Allen Office

	 	5620 Cox Road, Suite 200
	 	Glen Allen
	 	VA	 	 
	 
	 	 	 	 	 	 	 	 
	Ground Leases
	 	 	 	 	 	 	 	 
	Almaden Lake Village

	 	1045 Coleman Road
	 	San Jose
	 	CA	 	 
	Birch Creek

	 	575 S. Rengstorff Avenue
	 	Mountain View
	 	CA	 	 
	Marina Playa

	 	3500 Granada Avenue
	 	Santa Clara
	 	CA	 	 
	10 Hanover Square

	 	10 Hanover Square
	 	New York
	 	NY	 	 
	Domus

	 	3411 Chestnut
	 	Philadelphia
	 	PA	 	 
	Eastwind I & II

	 	1997 Eastwood Villa Lane
	 	Virginia Beach
	 	VA	 	 
	Sullivan Place

	 	5575 Vincent Gate Terrace
	 	Alexandria
	 	VA	 	 
	 
	 	 	 	 	 	 	 	 
	UDR / KFH JV (UDR 30% Interest)
	 	 	 	 
	Portico Apartments

	 	1203 Fidler Lane
	 	Siver Spring
	 	MD	 	 
	Alexan Twenty400

	 	2400 24th Road South
	 	Arlington
	 	VA	 	 
	 
	 	 	 	 	 	 	 	 
	Texas JV (UDR 20% Interest)
	 	 	 	 	 	 	 	 
	Lakeline Villas

	 	2201 South Lakeline Blvd.
	 	Cedar Park
	 	TX	 	 
	Lincoln at Towne Square

	 	8205 Towne Maine Drive
	 	Plano
	 	TX	 	 
	Lincoln at Towne Square Ph II

	 	8205 Towne Maine Drive
	 	Plano
	 	TX	 	 
	Red Stone Ranch

	 	1600 South Lakeline Blvd.
	 	Cedar Park
	 	TX	 	 
	Stone Canyon

	 	10919 West Road
	 	Houston
	 	TX	 	 
	The Bradford

	 	15902 Highway 3
	 	Webster
	 	TX	 	 
	The Cliffs

	 	1635 Jefferson Cliffs Way
	 	Arlington
	 	TX	 	 
	The Legend at Park Ten

	 	15000 Park Row
	 	Houston
	 	TX	 	 
	The Mandolin

	 	2525 Highway 360
	 	Euless
	 	TX	 	 
	The Meridian II

	 	3620 Huffins Blvd.
	 	Carrollton
	 	TX	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	UDR / MetLife JV (UDR
Approx ~12% Interest)
	 	 	 	 	 	 
	717 Olympic

	 	717 West Olympic Blvd
	 	Los Angeles
	 	CA	 	 
	Ashton Candlestick Cove

	 	301 Executive Park Blvd.
	 	San Francisco
	 	CA	 	 
	Ashton Westwood

	 	10700 Wilshire Blvd
	 	Los Angeles
	 	CA	 	 
	Current

	 	1551 Union Street
	 	San Diego
	 	CA	 	 
	Strata

	 	969 Market Street
	 	San Diego
	 	CA	 	 
	Viridian

	 	5659 West 8th Street
	 	Los Angeles
	 	CA	 	 
	Acoma

	 	816 Acoma Street
	 	Denver
	 	CO	 	 
	Ashton Judiciary Square

	 	750 3rd Street NW
	 	Washington
	 	DC	 	 
	Lodge at Lake Crest

	 	10420 N. McKinley Drive
	 	Tampa
	 	FL	 	 
	Charles River Landing

	 	300 2nd Avenue
	 	Needham
	 	MA	 	 
	Lenox Farms

	 	550 Liberty Street
	 	Braintree
	 	MA	 	 
	Lodge at Ames Pond

	 	One Ames Hill Drive
	 	Tewksbury
	 	MA	 	 
	Lodge at Foxborough

	 	400 Foxborough Blvd.
	 	Foxborough
	 	MA	 	 
	Towson Promenade

	 	707 York Road
	 	Towson
	 	MD	 	 
	Ashton South End

	 	125 W. Tremont Avenue
	 	Charlotte
	 	NC	 	 
	Hawfield Farms

	 	16311 Hawfield Way Drive
	 	Charlotte
	 	NC	 	 
	The Residence at South Park

	 	4300 Sharon Road
	 	Charlotte
	 	NC	 	 
	Domus

	 	3411 Chestnut
	 	Philadelphia
	 	PA	 	 
	1900 McKinney

	 	1900 McKinney
	 	Dallas
	 	TX	 	 
	7 Riverway

	 	7 Riverway
	 	Houston
	 	TX	 	 
	Ashton Town Lake

	 	101 Colorado Street
	 	Austin
	 	TX	 	 
	Cirque

	 	2500 N. Houston Street
	 	Dallas
	 	TX	 	 
	Crescent Falls Church

	 	2121 Westmoreland Street
	 	Arlington
	 	VA	 	 
	Ashton Bellevue

	 	10710 NE 10th Street
	 	Bellevue
	 	WA	 	 
	Ten20

	 	1020 108th Avenue NE
	 	Bellevue
	 	WA	 	 
	The Olivian

	 	809 Olive Way
	 	Seattle
	 	WA	 	 
	Ashton at Dublin

	 	 	 	Dublin
	 	CA
	 	Land
	Crescent Heights

	 	 	 	Los Angeles
	 	CA
	 	Land
	Domain Mountainview

	 	 	 	Mountain View
	 	CA
	 	Land
	Hollywood and Grower

	 	 	 	Los Angeles
	 	CA
	 	Land
	Orange County Jamboree

	 	 	 	Irvine
	 	CA
	 	Land
	Wilshire at La Jolla

	 	 	 	Los Angeles
	 	CA
	 	Land
	Paseo del Mar

	 	 	 	Casselberry
	 	FL
	 	Land
	Streeterville

	 	 	 	Chicago
	 	IL
	 	Land
	Domain at College Park

	 	 	 	College Park
	 	MD
	 	Land
	Ashton Post Oak

	 	 	 	Houston
	 	TX
	 	Land
	Cadillac Phase I

	 	 	 	Bellevue
	 	WA
	 	Land
	 
	 	 	 	 	 	 	 	 
	UDR / Hanvoer JV
(UDR 95% Interest)
	 	 	 	 	 	 
	13th and Market

	 	 	 	San Diego
	 	CA
	 	Under Development
	The Lodge at Stoughton

	 	 	 	Stoughton
	 	MA
	 	Under Development
	Domain College Park

	 	 	 	College Park
	 	MD
	 	Under Development






 


 









 



UDR, Inc.

Schedule 6.1.(g) — Debt and Guaranties




	 	 	 	 	 	 	 	 
	Description	 	Debt Balance 9/30/11	 	Category	 	Type
	10 Hanover
	 		192,000,000	 	Mortgage	 	Consolidated Secured Debt
	20 Lambourne
	 		32,897,856	 	Mortgage	 	Consolidated Secured Debt
	21 Chelsea
	 		30,852,343	 	Mortgage	 	Consolidated Secured Debt
	Circle Towers
	 		71,000,000	 	Mortgage	 	Consolidated Secured Debt
	Coronado at Newport — North
	 		48,592,931	 	Mortgage	 	Consolidated Secured Debt
	Inwood West
	 		55,544,429	 	Mortgage	 	Consolidated Secured Debt
	Jefferson at Marina del Rey
	 		100,000,000	 	Mortgage	 	Consolidated Secured Debt
	Ocean Villa
	 		8,680,679	 	Mortgage	 	Consolidated Secured Debt
	Pine Brook Village
	 		18,270,000	 	Mortgage	 	Consolidated Secured Debt
	Ridge at Blue Hills
	 		23,392,433	 	Mortgage	 	Consolidated Secured Debt
	Talisker of Addison
	 		7,167,522	 	Mortgage	 	Consolidated Secured Debt
	Thirty377
	 		32,008,141	 	Mortgage	 	Consolidated Secured Debt
	Tiburon
	 		17,159,026	 	Mortgage	 	Consolidated Secured Debt
	Windjammer
	 		19,145,000	 	Mortgage	 	Consolidated Secured Debt
	Signal Hill Apartments
	 		42,136,344	 	Construction	 	Consolidated Secured Debt
	VP Phase I North
	 		24,889,670	 	Construction	 	Consolidated Secured Debt
	Bellevue
	 		22,270,500	 	Construction / Land	 	Consolidated Secured Debt
	Almaden Lake Village
	 		27,000,000	 	Bond	 	Consolidated Secured Debt
	Marina Pointe
	 		67,700,000	 	Bond	 	Consolidated Secured Debt
	Arbor Terrace I
	 		5,472,281	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Arbor Terrace II
	 		4,209,447	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Coronado South
	 		103,525,334	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Crown Pointe
	 		8,229,469	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Foothills Tennis Village
	 		15,629,075	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Green Tree Place
	 		17,930,376	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Hilltop
	 		7,607,072	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Sierra Canyon
	 		12,035,068	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Sugar Mill Creek
	 		7,330,451	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Tualatin Heights
	 		10,079,370	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Windemere at Sycamore Highlands
	 		26,970,528	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Woodlake Village
	 		30,981,529	 	FNMA-ARCS II	 	Consolidated Secured Debt
	Andover Park
	 		15,937,596	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Calvert’s Walk
	 		18,042,562	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Dominion At Eden Brook
	 		21,308,266	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Edgewater
	 		45,106,405	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Harbor at Mesa Verde
	 		47,091,087	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Hunt Club
	 		17,020,150	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Huntington Villas
	 		55,751,516	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Huntington Vista
	 		31,273,774	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Legacy Village
	 		59,299,887	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Residences at the Domain
	 		25,079,161	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Sierra Foothills
	 		20,977,485	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Verano at Towne Square
	 		54,308,111	 	FNMA-ARCS VII	 	Consolidated Secured Debt
	Alafaya Woods
	 		20,443,537	 	FNMA-Green Park	 	Consolidated Secured Debt
	Ashton @ Waterford Lakes
	 		26,468,634	 	FNMA-Green Park	 	Consolidated Secured Debt
	Dominion Kings Place
	 		16,438,415	 	FNMA-Green Park	 	Consolidated Secured Debt
	Dominion Lake Ridge
	 		23,055,573	 	FNMA-Green Park	 	Consolidated Secured Debt
	Dominion Middle Ridge
	 		33,747,509	 	FNMA-Green Park	 	Consolidated Secured Debt
	Dominion West End
	 		26,085,536	 	FNMA-Green Park	 	Consolidated Secured Debt
	Hunters Ridge (FL)
	 		22,010,759	 	FNMA-Green Park	 	Consolidated Secured Debt
	Lakewood Place
	 		20,965,944	 	FNMA-Green Park	 	Consolidated Secured Debt
	Los Altos
	 		24,831,758	 	FNMA-Green Park	 	Consolidated Secured Debt
	The Preserve at Brentwood
	 		25,075,548	 	FNMA-Green Park	 	Consolidated Secured Debt
	Aspen Creek
	 		10,819,093	 	FNMA-Red Capital	 	Consolidated Secured Debt
	Dominion Constant Friendship
	 		10,683,003	 	FNMA-Red Capital	 	Consolidated Secured Debt
	Lakeside Mill
	 		15,241,992	 	FNMA-Red Capital	 	Consolidated Secured Debt
	Legacy at Mayland
	 		41,507,210	 	FNMA-Red Capital	 	Consolidated Secured Debt
	Wellington Place at Olde Town
	 		28,680,802	 	FNMA-Red Capital	 	Consolidated Secured Debt
	Altamira Place
	 		15,640,205	 	FNMA-Red Capital II	 	Consolidated Secured Debt
	Reserve and Park at Riverbridge
	 		40,133,018	 	FNMA-Red Capital II	 	Consolidated Secured Debt
	River Terrace
	 		33,130,377	 	FNMA-Red Capital II	 	Consolidated Secured Debt
	Missions at Back Bay
	 		11,325,977	 	FNMA-Key Bank	 	Consolidated Secured Debt
	Tamar Meadow
	 		17,602,269	 	FNMA-Key Bank	 	Consolidated Secured Debt
	The Kennedy
	 		17,941,399	 	FNMA-Key Bank	 	Consolidated Secured Debt
	Vista Del Rey
	 		12,659,355	 	FNMA-Key Bank	 	Consolidated Secured Debt
	$100 Million Medium-Term Notes
	 		100,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	$100 Million Medium-Term Notes
	 		83,260,000	 	Unsecured	 	Consolidated Unsecured Debt
	$100 Million Term Loan
	 		100,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	$125 Million Medium-Term Notes
	 		122,500,000	 	Unsecured	 	Consolidated Unsecured Debt
	$150 Million Debentures
	 		15,644,000	 	Unsecured	 	Consolidated Unsecured Debt
	$150 Million Medium-Term Notes
	 		128,500,000	 	Unsecured	 	Consolidated Unsecured Debt
	$200 Million Medium-Term Notes
	 		184,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	$250 Million Medium-Term Notes
	 		325,175,000	 	Unsecured	 	Consolidated Unsecured Debt
	$250 Million Term Loan
	 		250,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	$300 Million Medium Term Notes
	 		300,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	Wachovia $600M Revolver 2009
	 		362,000,000	 	Unsecured	 	Consolidated Unsecured Debt
	 
	 		 	 	 	 	 
	Adjustments
	 		25,292,839	 	 	 	 
	Premium (Discount) on MTN
	 		(3,454,201)	 	 	 	 
	Deferred Hedge Gain
	 		36,213	 	 	 	 
	 
	 		 	 	 	 	 
	Total Consolidated Debt
	 	$	3,989,344,639	 	 	 	 





 


 








 





UDR, Inc.

Schedule 6.1.(z) — Unencumbered Pool Assets




	 	 	 	 	 
	Description	 	REO Balance 

9/30/11	 
	Rivergate
	 	 	440,900,087	 
	95 Wall Street
	 	 	324,250,720	 
	Island Square
	 	 	113,018,202	 
	Sullivan Place
	 	 	107,719,794	 
	Elements Too
	 	 	106,813,256	 
	View 14
	 	 	103,695,312	 
	Villa Venetia
	 	 	100,255,424	 
	Garrison Square
	 	 	98,220,981	 
	Delancey at Shirlington
	 	 	89,276,143	 
	388 Beale
	 	 	88,569,741	 
	Pine Brook Village II
	 	 	88,161,147	 
	Addison Development
	 	 	84,508,442	 
	Tierra Del Rey
	 	 	78,017,861	 
	Lake Pines
	 	 	73,194,881	 
	1818 Platinum Triangle
	 	 	68,741,052	 
	Andover House
	 	 	68,351,075	 
	The Belmont
	 	 	66,462,464	 
	Savoye
	 	 	66,213,853	 
	14 North
	 	 	62,642,111	 
	2000 Post Street
	 	 	61,233,758	 
	2400 14th Street
	 	 	58,317,929	 
	Highlands Of Marin
	 	 	57,683,566	 
	989 elements residential
	 	 	54,735,853	 
	The Pointe At Harden Ranch
	 	 	53,422,120	 
	MacAlpine Place
	 	 	52,423,406	 
	The Vintage Lofts at West End
	 	 	51,690,342	 
	The Place on Millenia Blvd
	 	 	50,691,604	 
	Waterstone at Murrieta
	 	 	50,495,133	 
	The Tribute on Glenwood
	 	 	49,826,143	 
	Residences at Stadium Village
	 	 	49,274,594	 
	Waterside Towers
	 	 	48,770,992	 
	Domain Brewers Hill
	 	 	45,507,858	 
	Summit at Mission Bay
	 	 	44,595,929	 
	St Johns Plantation
	 	 	42,531,725	 
	Inlet Bay
	 	 	42,496,415	 
	Highlands of Preston
	 	 	39,836,727	 
	The Whitmore
	 	 	39,407,926	 
	Hearthstone at Merrill Creek
	 	 	39,393,119	 
	The Hawthorne Apartments
	 	 	38,405,875	 
	Carriage Homes at Wyndham
	 	 	38,203,694	 
	Marina Playa
	 	 	37,684,850	 
	Barton Creek Landing
	 	 	37,305,714	 
	Presidential Greens
	 	 	37,257,893	 
	Island Walk
	 	 	37,043,782	 
	Presidio at Rancho Del Oro
	 	 	36,866,861	 





 


 









 





	 	 	 	 	 
	Description	 	REO Balance 

9/30/11	 
	Polo Park
	 	 	35,924,341	 
	The Kensley Apartment Homes
	 	 	35,568,007	 
	Gayton Pointe Townhomes
	 	 	34,687,811	 
	Arborview Apartments
	 	 	34,358,451	 
	Carrington Hills
	 	 	34,271,091	 
	Ellicott Grove Apartments
	 	 	34,196,336	 
	Highlands of Marin Phase II
	 	 	33,621,954	 
	Ridgewood -apts side
	 	 	32,800,537	 
	Finisterra
	 	 	31,927,655	 
	Borgata Apartment Homes
	 	 	31,173,907	 
	The Canopy Apartment Villas
	 	 	31,019,658	 
	The Calvert — apt side
	 	 	30,238,522	 
	Mission Bay
	 	 	30,237,435	 
	Arbors at Lee Vista DCO
	 	 	30,197,182	 
	Cambridge Court
	 	 	28,929,519	 
	Rosebeach
	 	 	27,729,550	 
	Westland
	 	 	27,533,474	 
	Antlers
	 	 	27,172,667	 
	Birch Creek
	 	 	26,316,159	 
	UDR Pacific Los Alisos, LP
	 	 	25,435,349	 
	Waterford at Peoria
	 	 	25,417,074	 
	Bay Terrace
	 	 	25,278,854	 
	Gallery at Bayport II
	 	 	25,208,191	 
	Pine@Sixth
	 	 	24,478,512	 
	Lumiere Chandler Condos
	 	 	23,961,372	 
	Laurelwoode
	 	 	23,909,024	 
	Dominion English Hills
	 	 	21,727,413	 
	Waterside At Ironbridge
	 	 	21,557,313	 
	Brookhaven Shopping Center
	 	 	21,542,454	 
	Hickory Run
	 	 	21,429,775	 
	Regatta Shore
	 	 	21,117,230	 
	Colonnade
	 	 	21,036,129	 
	Bay Meadow
	 	 	20,706,084	 
	The Breyley Apartments
	 	 	20,660,850	 
	Foxborough
	 	 	20,370,572	 
	Inn @ Los Patios
	 	 	19,407,828	 
	Dominion Olde West
	 	 	19,367,316	 
	Boronda Manor
	 	 	19,304,671	 
	The Pointe At Northridge
	 	 	19,135,065	 
	Grandview DCO
	 	 	19,073,597	 
	Manor At England Run
	 	 	18,984,725	 
	Villas at Carlsbad
	 	 	18,721,690	 
	Crossroads Apartments
	 	 	18,655,512	 
	Lotus Landing
	 	 	18,490,498	 
	Forest Lake At Oyster Point
	 	 	17,760,232	 
	Clipper Pointe Apartments
	 	 	17,341,906	 
	Woodscape
	 	 	16,601,620	 
	PIERPOINT Port Orange
	 	 	16,119,069	 
	Cambridge
	 	 	16,115,988	 
	3033 Wilshire
	 	 	15,843,212	 
	Dominion Yorkshire Downs
	 	 	14,978,442	 
	Legacy Hill
	 	 	14,808,884	 





 


 









 





	 	 	 	 	 
	Description	 	REO Balance 

9/30/11	 
	Summit West
	 	 	14,140,637	 
	Seville On The Green
	 	 	13,784,881	 
	Heather Lake
	 	 	13,485,159	 
	Seabrook
	 	 	13,102,377	 
	DCO Beach Walk LLC
	 	 	12,878,000	 
	Greens At Falls Run
	 	 	12,655,221	 
	2000 Post III
	 	 	12,492,416	 
	Waterside land
	 	 	12,083,734	 
	Breckenridge
	 	 	11,895,848	 
	Greens At Schumaker Pond
	 	 	11,837,655	 
	Laurel Tree
	 	 	11,735,815	 
	The Pointe At Westlake
	 	 	11,725,917	 
	Dominion Waterside At Lynnhave
	 	 	11,438,862	 
	Eastwind
	 	 	11,193,971	 
	The Groves
	 	 	10,777,615	 
	Springhaven
	 	 	10,730,061	 
	Commercial Assets
	 	 	10,176,453	 
	Brookridge
	 	 	9,935,863	 
	Greens At Cross Court
	 	 	9,668,903	 
	Glenwood Apartments
	 	 	9,490,032	 
	Garden Court
	 	 	9,372,043	 
	Liriope Apartments
	 	 	9,268,950	 
	Brittingham Square
	 	 	9,166,143	 
	Mallards of Brandywine
	 	 	9,158,506	 
	Manor At England Run III
	 	 	8,982,045	 
	Commons at Town Square
	 	 	8,867,072	 
	Manor At England Run II
	 	 	8,713,800	 
	Garden Oaks
	 	 	8,554,619	 
	Dominion Creekwood
	 	 	4,846,636	 
	Non Property Accounts
	 	 	4,815,483	 
	Waterside Townhomes
	 	 	4,510,422	 
	The Calvert — commercial side
	 	 	2,806,133	 
	Parkers Landing II TRS
	 	 	2,471,956	 
	Presidio Land
	 	 	2,444,811	 
	Hanover Village
	 	 	1,623,915	 
	Sullivan Place Shuttle Bus
	 	 	64,623	 
	The Addison at Brookhaven
	 	 	10,039	 
	Greenbrook Apartments
	 	 	718	 
	 	 	 	 
	Total Unencumbered REO
	 	$	5,017,474,399	 
	 
	 	 	 	 
	Promissory Notes
	 	 	7,800,000	 
	Marketable Securities
	 	 	—	 







 


 












 





Execution Version




EXHIBIT A




FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT




This Assignment and Assumption Agreement
(the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below
([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees]3 hereunder are several and not joint.]4 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][each]
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][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], 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][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] 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][the respective Assignors] under the respective facilities
identified below (including without limitation any guarantees 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)][the respective Assignors (in
their respective capacities as Lenders)] 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 by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.



	 	 	 	 	 
	1. Assignor[s]:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 






 







	 	 	 
	1	 	For bracketed language here and elsewhere in this form relating to
the Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.

	 
	2	 	For bracketed language here and elsewhere in this form relating to
the Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.

	 
	3	 	Select as appropriate.

	 
	4	 	Include bracketed language if there are either multiple Assignors
or multiple Assignees.



 


 









 









	 	 	 
	2. Assignee[s]:
	 	 
	 

	 	 
	 
	 

	 	 
	 
	 	 
	 

	 	[for each
Assignee, indicate [Affiliate][Approved
Fund] of [identify Lender]
	 
	 	 
	3. Borrower(s):

	 	UDR, Inc.
	 
	 	 
	4. Administrative Agent:

	 	Wells Fargo Bank, National Association,

as the administrative agent under the

Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	The $900,000,000.00 Credit Agreement dated
as of October
 _____, 2011 among UDR, Inc.,
the Lenders parties thereto, Wells Fargo
Bank, National Association, as
Administrative Agent, and the other parties
thereto.
	 
	 	 
	6. Assigned Interest[s]:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Commitment/	 	 	Commitment/	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Loans for all	 	 	Loans	 	 	Commitment/	 	 	CUSIP	 
	Assignor[s]5	 	Assignee[s]6	 	 	Assigned7	 	 	Lenders8	 	 	Assigned9	 	 	Loans10	 	 	Number	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 





 







	 	 	 
	5	 	List each Assignor, as appropriate.

	 
	6	 	List each Assignee, as appropriate.

	 
	7	 	Fill in the appropriate terminology for the types of facilities
under the Credit Agreement that are being assigned under this Assignment (e.g.
“Commitment”, “Revolving Loan”, etc.)

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

	 
	9	 	In the case of an assignment of the entire remaining amount of an
assigning Revolving Lender’s Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned. In any case not described in
the immediately preceding sentence, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the 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 in the case of any assignment of a Commitment, unless each
of the Administrative Agent and, so long as no Default or Event of Default
shall exist, the Borrower otherwise consents; (each such consent not to be
unreasonably withheld or delayed); provided, however, that if, after giving
effect to such assignment, the amount of the Commitment held by such assigning
Lender or the outstanding principal balance of the Loans of such assigning
Lender, as applicable, would be less than $5,000,000 in the case of a
Commitment or Revolving Loans, then such assigning Lender shall assign the
entire amount of its Commitment and the Loans at the time owing to it.

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




 


A-2









 








[7. Trade Date:                          ]11




 







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



[Signature Pages Follow]



 


A-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[S]12



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	

ASSIGNEE[S]13



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Page Break]

 	 




 







	 	 	 
	12	 	Add additional signature blocks as needed.

	 
	13	 	Add additional signature blocks as needed.




 


A-4









 





[Consented to and]14 Accepted:



WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent




	 	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	[Consented to:]15



UDR, INC.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 




 







	 	 	 
	14	 	To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.

	 
	15	 	Include signature of the Borrower only if required under Section
12.5.(b) of the Credit Agreement.




 


A-5









 





ANNEX 1




[                    ]16




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




1. Representations and Warranties.



1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] 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 the 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
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



1.2. Assignee[s]. [The][Each] 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 the requirements to be an Eligible Assignee as
defined in the Credit Agreement (subject to such consents, if any, as may be required under such
definition), (iii) from and after the Effective Date specified for this Assignment and Assumption,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest and either it, or the person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive
copies of the financial statements referenced in Section 6.1.(k) thereof or of the most recent
financial statements delivered pursuant to Section 8.1 or 8.2. thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, (vi) it has, independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase [the][such] Assigned Interest, and (vii) 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][such] Assignee; and (b) agrees that
(i) it will, independently and without reliance on the Administrative Agent, [the][any] 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.



 







	 	 	 
	16	 	Describe Credit Agreement at option of Administrative Agent.




 


A-6









 





2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued
prior to, on or after the Effective Date specified for this Assignment and Assumption. The
Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to such Effective Date or with respect to the making of this
assignment directly between themselves.



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 shall be governed
by, and construed in accordance with, the law of the State of New York.


 


A-7









 





EXHIBIT B




FORM OF BID RATE NOTE




                    , 2011




FOR VALUE RECEIVED, the undersigned, UDR, INC., a Maryland corporation (the “Borrower”),
hereby promises to pay to the order of                     
(the “Lender”), in care of Wells Fargo
Bank, National Association, as Administrative Agent (the “Administrative Agent”) to Wells Fargo
Bank, National Association, 608 Second Ave. South, 11th Floor, Minneapolis, Minnesota
55402, or at such other address as may be specified in writing by the Administrative to the
Borrower, the aggregate unpaid principal amount of Bid Rate Loans made by the Lender to the
Borrower under the Credit Agreement, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each such Bid Rate Loan, at
such office at the rates and on the dates provided in the Credit Agreement.



The date, amount, interest rate and maturity date of each Bid Rate Loan made by the Lender to
the Borrower, and each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the Borrower to make a
payment when due of any amount owing under the Credit Agreement or hereunder in respect of the Bid
Rate Loans made by the Lender.



This Note is one of the Bid Rate Notes referred to in the Credit Agreement dated as of October

 _____, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, the financial institutions party thereto and their
assignees under Section 12.5 thereof (the “Lenders”), the Administrative, and the other parties
thereto, and evidences Bid Rate Loans made by the Lender thereunder. Terms used but not otherwise
defined in this Note have the respective meanings assigned to them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Bid Rate Loans upon the terms and conditions
specified therein.



Except as permitted by Section 12.5. of the Credit Agreement, this Note may not be assigned by
the Lender to any other Person.



THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



The Borrower hereby waives presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices.




Time is of the essence for this Bid Rate Note.



IN WITNESS WHEREOF, the undersigned has executed and delivered this Bid Rate Note under seal
as of the date first written above.



[Signature Page Follows]



 


B-1









 





	 	 	 	 	 
	 	

UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


B-2









 







EXHIBIT C




FORM OF DESIGNATION AGREEMENT





THIS DESIGNATION AGREEMENT dated as of
 _____,
 _____ 
(the “Agreement”) by and among
                     (the “Designating Lender”),                      (the “Designated
Lender”) and Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative
Agent”).



WHEREAS, the Designating Lender is a Lender under that certain Credit Agreement dated as of
October
 _____, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among UDR, Inc. (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.5 thereof (the “Lenders”), the Administrative Agent,
and the other parties thereto;



WHEREAS, pursuant to Section 12.5(h) of the Credit Agreement, the Designating Lender desires
to designate the Designated Lender as its “Designated Lender” under and as defined in the Credit
Agreement; and



WHEREAS, the Administrative Agent consents to such designation on the terms and conditions set
forth herein.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged by the parties hereto, the parties hereto hereby agree as follows:



Section 1. Designation. Subject to the terms and conditions of this Agreement, the
Designating Lender hereby designates the Designated Lender, and the Designated Lender hereby
accepts such designation, to have a right to make Bid Rate Loans on behalf of the Designating
Lender pursuant to Section 2.2. of the Credit Agreement. Any assignment by the Designating Lender
to the Designated Lender of rights to make a Bid Rate Loan shall only be effective at the time such
Bid Rate Loan is funded by the Designated Lender. The Designated Lender, subject to the terms and
conditions hereof, hereby agrees to make such accepted Bid Rate Loans and to perform such other
obligations as may be required of it as a Designated Lender under the Credit Agreement.



Section 2. Designating Lender Not Discharged. Notwithstanding the designation of the
Designated Lender hereunder, the Designating Lender shall be and remain obligated to the Borrower,
the Administrative Agent and the Lenders for each and every of the obligations of the Designating
Lender and its related Designated Lender with respect to the Credit Agreement and the other Loan
Documents, including, without limitation, any indemnification obligations under Section 11.7 of the
Credit Agreement and any sums otherwise payable to the Borrower by the Designated Lender.



Section 3. No Representations by Designating Lender. The Designating Lender makes no
representation or warranty and, except as set forth in Section 8 below, assumes no responsibility
pursuant to this Agreement with respect to (a) any statements, warranties or representations made
in or in connection with any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument and document
furnished pursuant thereto and (b) the financial condition of the Borrower, any Subsidiary or any
other Loan Party or the performance or observance by the Borrower or any other Loan Party of any of
its respective obligations under any Loan Document to which it is a party or any other instrument
or document furnished pursuant thereto.


 


C-1









 





Section 4. Representations and Covenants of Designated Lender. The Designated Lender
makes and confirms to the Administrative Agent, the Designating Lender, and the other Lenders all
of the representations, warranties and covenants of a Lender under Article XI of the Credit
Agreement. Not in limitation of the foregoing, the Designated Lender (a) represents and warrants
that it (i) is legally authorized to enter into this Agreement; (ii) is an “accredited investor”
(as such term is used in Regulation D of the Securities Act) and (iii) meets the requirements of a
“Designated Lender” contained in the definition of such term contained in the Credit Agreement; (b)
confirms that it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements referred to therein or delivered pursuant thereto and such other
documents and information (including without limitation the Loan Documents) as it has deemed
appropriate to make its own credit analysis and decision to enter into this Agreement; (c)
confirms that it has, independently and without reliance upon the Administrative Agent, or any
Affiliate thereof, the Designating Lender or any other Lender and based on such financial
statements and such other documents and information, made its own credit and legal analysis and
decision to become a Designated Lender under the Credit Agreement; (d) appoints and authorizes the
Administrative Agent to take such action as contractual representative on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the
terms thereof together with such powers as are reasonably incidental thereto; and (e) agrees that
it will become a party to and shall be bound by the Credit Agreement, the other Loan Documents to
which the other Lenders are a party on the Effective Date (as defined below) and will perform in
accordance therewith all of the obligations which are required to be performed by it as a
Designated Lender. The Designated Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the Designating Lender 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 Credit Agreement or any Note or pursuant
to any other obligation. The Designated Lender acknowledges and agrees that except as expressly
required under the Credit Agreement, the Administrative Agent shall have no duty or responsibility
whatsoever, either initially or on a continuing basis, to provide the Designated Lender with any
credit or other information with respect to the Borrower, any Subsidiary or any other Loan Party or
to notify the Designated Lender of any Default or Event of Default.



Section 5. Appointment of Designating Lender as Attorney-In-Fact. The Designated
Lender hereby appoints the Designating Lender as the Designated Lender’s agent and
attorney-in-fact, and grants to the Designating Lender an irrevocable power of attorney, to receive
any and all payments to be made for the benefit of the Designated Lender under the Credit
Agreement, to deliver and receive all notices and other communications under the Credit Agreement
and other Loan Documents and to exercise on the Designated Lender’s behalf all rights to vote and
to grant and make approvals, waivers, consents of amendments to or under the Credit Agreement or
other Loan Documents. Any document executed by the Designating Lender on the Designated Lender’s
behalf in connection with the Credit Agreement or other Loan Documents shall be binding on the
Designated Lender. Each of the Borrower, the Administrative Agent and each of the Lenders may rely
on and are beneficiaries of the preceding provisions.



Section 6. Acceptance by the Administrative Agent. Following the execution of this
Agreement by the Designating Lender and the Designated Lender, the Designating Lender will (i)
deliver to the Administrative Agent a duly executed original of this Agreement for acceptance by
the Administrative Agent and (ii) pay to the Administrative Agent the fee, if any, payable under
the applicable provisions of the Credit Agreement whereupon this Agreement shall become effective
as of the date of such acceptance or such other date as may be specified on the signature page
hereof (the “Effective Date”).


 


C-2









 





Section 7. Effect of Designation. Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date, the Designated Lender shall be a party to the
Credit Agreement with a right to make Bid Rate Loans as a Lender pursuant to Section 2.2. of the
Credit Agreement and the rights and obligations of a Lender related thereto; provided,
however, that the Designated Lender shall not be
required to make payments with respect to such obligations except to the extent of excess cash
flow of the Designated Lender which is not otherwise required to repay obligations of the
Designated Lender which are then due and payable. Notwithstanding the foregoing, the Designating
Lender, as agent for the Designated Lender, shall be and remain obligated to the Borrower, the
Administrative Agent and the Lenders for each and every of the obligations of the Designated Lender
and the Designating Lender with respect to the Credit Agreement.



Section 8. Indemnification of Designated Lender. The Designating Lender
unconditionally agrees to pay or reimburse the Designated Lender and save the Designated Lender
harmless against all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed or
asserted by any of the parties to the Loan Documents against the Designated Lender, in its capacity
as such, in any way relating to or arising out of this Agreement or any other Loan Documents or any
action taken or omitted by the Designated Lender hereunder or thereunder, provided that the
Designating Lender shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements if the same results
from the Designated Lender’s gross negligence or willful misconduct.



Section 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.



Section 10. Counterparts. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the same agreement.



Section 11. Headings. Section headings have been inserted herein for convenience
only and shall not be construed to be a part hereof.



Section 12. Amendments; Waivers. This Agreement may not be amended, changed, waived
or modified except by a writing executed by all parties hereto.



Section 13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.



Section 14. Definitions. Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.



[Signature Page Follows]



 


C-3









 





IN WITNESS WHEREOF, the parties hereto have duly executed this Designation Agreement as of the
date and year first written above.



	 	 	 	 	 
	 	

EFFECTIVE DATE:                                         



DESIGNATING LENDER:



[NAME OF DESIGNATING LENDER]
 	 
	 	 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	
DESIGNATED LENDER:



[NAME OF DESIGNATED LENDER]

 	 

	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Accepted as of the date first written above.



ADMINISTRATIVE AGENT:



WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent




	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


C-4









 







EXHIBIT D




FORM OF GUARANTY





THIS GUARANTY dated as of                     , 2011 executed and delivered by each of the
undersigned and the other Persons from time to time party hereto pursuant to the execution and
delivery of an Accession Agreement in the form of Annex I hereto (all of the undersigned, together
with such other Persons each a “Guarantor” and collectively, the “Guarantors”) in favor of WELLS
FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent (the “Administrative
Agent”) for the Lenders under that certain Credit Agreement dated as of October
 _____, 2011 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among UDR, Inc., a corporation formed under the laws of the State of Maryland (the
“Borrower”), each of the financial institutions initially a signatory thereto together with their
successors and assignees under Section 12.5. (the “Lenders”), Wells Fargo Bank, National
Association, as Administrative Agent (the “Administrative Agent”), the Administrative Agent, and
the other parties thereto, for its benefit and the benefit of the Lenders, and the Issuing Bank
(the Administrative Agent, the Lenders, and the Issuing Bank, each individually a “Guarantied
Party” and collectively, the “Guarantied Parties”).



WHEREAS, pursuant to the Credit Agreement, the Administrative Agent, the Issuing Bank, the
Swingline Lender and the Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;



WHEREAS, each Guarantor is directly or indirectly owned or controlled by the Borrower, or is
otherwise an Affiliate of the Borrower;



WHEREAS, the Borrower and each Guarantor, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an integrated operation
and have determined it to be in their mutual best interests to obtain financing from the Guarantied
Parties through their collective efforts;



WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Guarantied Parties making such financial accommodations available to the Borrower under the
Credit Agreement and, accordingly, each Guarantor is willing to guarantee the Borrower’s
obligations to the Guarantied Parties on the terms and conditions contained herein; and



WHEREAS, each Guarantor’s execution and delivery of this Guaranty is a condition to the
Administrative Agent and the other Guarantied Parties’ making such financial accommodations to the
Borrower.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor agrees as follows:



Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of all of the following (collectively referred to as the
“Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower or any other
Loan Party to any Lender or the Administrative Agent under or in connection with the Credit
Agreement and any other Loan Document to which the Borrower or such other Loan Party is a party,
including without limitation, the repayment of all principal of the Revolving Loans and Swingline
Loans, and the Reimbursement Obligations, and the payment of all interest, fees, charges,
reasonable attorneys’ fees and other amounts payable to any Lender, the Issuing Bank or the
Administrative Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments or substitutions of the
foregoing; (c) all expenses, including, without limitation, reasonable attorneys’ fees and
disbursements, that are incurred by the Administrative Agent or any other Guarantied Party in the
enforcement of any of the foregoing or any obligation of such Guarantor hereunder and (d) all other
Obligations.


 


D-1









 





Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly, the
Guarantied Parties shall not be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy the Guarantied Parties may have against the Borrower,
any other Loan Party or any other Person or commence any suit or other proceeding against the
Borrower, any other Loan Party or any other Person in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any other Loan Party or any other Person; or
(c) to make demand of the Borrower, any other Loan Party or any other Person or to enforce or seek
to enforce or realize upon any collateral security held by the Guarantied Parties which may secure
any of the Guarantied Obligations.



Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Guarantied Parties with respect thereto. The liability of each
Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with
its terms and shall remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including without limitation, the following (whether or not such Guarantor consents
thereto or has notice thereof):



(a) (i) any change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or any
portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guarantied Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action
or inaction under or in respect of, the Credit Agreement, any of the other Loan Documents, or any
other documents, instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;



(b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan
Documents or any other document, instrument or agreement referred to therein or evidencing
any Guarantied Obligations or any assignment or transfer of any of the foregoing;



(c) any furnishing to the Guarantied Parties of any security for the Guarantied Obligations,
or any sale, exchange, release or surrender of, or realization on, any collateral securing any of
the Guarantied Obligations;



(d) any settlement or compromise of any of the Guarantied Obligations, any security therefor,
or any liability of any other party with respect to the Guarantied Obligations, or any
subordination of the payment of the Guarantied Obligations to the payment of any other liability of
the Borrower or any other Loan Party;



(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower, any other Loan Party
or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;


 


D-2









 





(f) any act or failure to act by the Borrower, any other Loan Party or any other Person which
may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;



(g) any nonperfection or impairment of any security interest or other Lien on any collateral,
if any, securing in any way any of the Guarantied Obligations;



(h) any application of sums paid by the Borrower, any Guarantor or any other Person with
respect to the liabilities of the Borrower to the Guarantied Parties, regardless of what
liabilities of the Borrower remain unpaid;



(i) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the
exercise thereof;



(j) any defense, set off, claim or counterclaim (other than indefeasible payment and
performance in full) which may at any time be available to or be asserted by the Borrower, any
other Loan party or any other Person against the Administrative Agent or any Lender;



(k) any change in corporate existence, structure or ownership of the Borrower or any other
Loan Party;



(l) any statement, representation or warranty made or deemed made by or on behalf of the
Borrower, any Guarantor or any other Loan Party under any Loan Document, or any amendment hereto or
thereto, proves to have been incorrect or misleading in any respect; or



(m) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, a Guarantor hereunder (other than indefeasible payment in full).



Section 4. Action with Respect to Guarantied Obligations. The Guaranteed Parties
may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and
without discharging any Guarantor from its obligations hereunder, take any and all actions
described in Section 3. and may otherwise: (a) amend, modify, alter or supplement the terms of any
of the Guarantied Obligations, including, but not limited to, extending or shortening the time of
payment of any of the Guarantied Obligations or changing the interest rate that may accrue on any
of the Guarantied Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any
other Loan Document; (c) sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Guarantied Obligations; (d) release any Loan Party or other Person
liable in any manner for the payment or collection of the Guarantied Obligations; (e) exercise, or
refrain from exercising, any rights against the Borrower, any other Loan Party or any other Person;
and (f) apply any sum, by whomsoever paid or however realized, to the Guarantied Obligations in
such order as the Guarantied Parties shall elect.



Section 5. Representations and Warranties. Each Guarantor hereby makes to the
Administrative Agent and the other Guarantied Parties all of the representations and warranties
made by the Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Loan Documents, as if the same were set forth herein in full.



Section 6. Covenants. Each Guarantor will comply with all covenants with which the
Borrower is to cause such Guarantor to comply under the terms of the Credit Agreement or any of the
other Loan Documents.


 


D-3









 





Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable
Law, hereby waives notice of acceptance hereof or any presentment, demand, protest or notice of any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.



Section 8. Inability to Accelerate Loan. If the Guarantied Parties or any of them
are prevented under Applicable Law or otherwise from demanding or accelerating payment of any of
the Guarantied Obligations by reason of any automatic stay or otherwise, the Administrative Agent
and/or the other Guarantied Parties shall be entitled to receive from each Guarantor, upon demand
therefor, the sums which otherwise would have been due had such demand or acceleration occurred.



Section 9. Reinstatement of Guarantied Obligations. If claim is ever made on the
Administrative Agent or any other Guarantied Party for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guarantied Obligations, and the
Administrative Agent or such other Guarantied Party repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body of competent jurisdiction, or
(b) any settlement or compromise of any such claim effected by the Administrative Agent or such
other Guarantied Party with any such claimant (including the Borrower or a trustee in bankruptcy
for the Borrower), then and in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding on it, notwithstanding any revocation hereof or
the cancellation of the Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain liable to the
Administrative Agent or such other Guarantied Party for the amounts so repaid or recovered to the
same extent as if such amount had never originally been paid to the Administrative Agent or such
other Guarantied Party.



Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account of the Borrower, such Guarantor shall be subrogated to the rights of the payee
against the Borrower; provided, however, that such Guarantor shall not enforce any
right or receive any payment by way of subrogation or otherwise take any action in respect of any
other claim or cause of action such Guarantor may have against the Borrower arising by reason of
any payment or performance by such Guarantor pursuant to this Guaranty, unless and until all of the
Guarantied Obligations have been indefeasibly paid and performed in full. If any amount shall be
paid to such Guarantor on account of or in respect of such subrogation rights or other claims or
causes of action, such Guarantor shall hold such amount in trust for the benefit of the Guarantied
Parties and shall forthwith pay such amount to the Administrative Agent to be credited and applied
against the Guarantied Obligations, whether matured or unmatured, in accordance with the terms of
the Credit Agreement or to be held by the Administrative Agent as collateral security for any
Guarantied Obligations existing.



Section 11. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, fees, expenses, premiums or otherwise, shall be paid in full,
without set-off or counterclaim or any deduction or withholding whatsoever (including any Taxes),
and if such Guarantor is required by Applicable Law or by any Governmental Authority to make any
such deduction or withholding such Guarantor shall pay to the Administrative Agent and the Lenders
such additional amount as will result in the receipt by the Administrative Agent and the Lenders of
the full amount payable hereunder had such deduction or withholding not occurred or been required.


 


D-4









 





Section 12. Set-off. In addition to any rights now or hereafter granted under any of
the other Loan Documents or Applicable Law and not by way of limitation of any such rights, each
Guarantor hereby authorizes each Guarantied Party and each Participant, at any time while an Event
of Default exists, without any prior notice to such Guarantor or to any other Person, any such
notice being hereby
expressly waived, but in the case of a Lender, the Issuing Bank or a Participant subject to receipt
of the prior written consent of the Administrative Agent in its sole discretion, to set-off and to
appropriate and to apply any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Administrative Agent, the Issuing Bank, such Lender
or such Participant or any affiliate of the Administrative Agent, the Issuing Bank, such Lender or
such Participant to or for the credit or the account of such Guarantor against and on account of
any of the Guarantied Obligations, although such obligations shall be contingent or unmatured.
Each Guarantor agrees, to the fullest extent permitted by Applicable Law, that any Participant may
exercise rights of setoff or counterclaim and other rights with respect to its participation as
fully as if such Participant were a direct creditor of such Guarantor in the amount of such
participation.



Section 13. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of the Guarantied Parties that all obligations and liabilities of the Borrower to such
Guarantor of whatever description, including without limitation, all intercompany receivables of
such Guarantor from the Borrower (collectively, the “Junior Claims”) shall be subordinate and
junior in right of payment to all Guarantied Obligations. If an Event of Default shall exist, then
no Guarantor shall accept any direct or indirect payment (in cash, property or securities, by
setoff or otherwise) from the Borrower on account of or in any manner in respect of any Junior
Claim until all of the Guarantied Obligations have been indefeasibly paid in full.



Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
Administrative Agent and the other Guarantied Parties that in any Proceeding, such Guarantor’s
maximum obligation hereunder shall equal, but not exceed, the maximum amount which would not
otherwise cause the obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Guarantied Parties) to be avoidable or unenforceable against such Guarantor in
such Proceeding as a result of Applicable Law, including without limitation, (a) Section 548 of the
Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”) and (b) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such Proceeding, whether by virtue of Section
544 of the Bankruptcy Code or otherwise. The Applicable Laws under which the possible avoidance or
unenforceability of the obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Guarantied Parties) shall be determined in any such Proceeding are referred to as
the “Avoidance Provisions”. Accordingly, to the extent that the obligations of any Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the maximum
Guarantied Obligations for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, as of the time any of the Guarantied Obligations are deemed to have been incurred
under the Avoidance Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Guarantied Parties), to be subject to avoidance under
the Avoidance Provisions. This Section is intended solely to preserve the rights of the
Administrative Agent and the other Guarantied Parties hereunder to the maximum extent that would
not cause the obligations of any Guarantor hereunder to be subject to avoidance under the Avoidance
Provisions, and no Guarantor or any other Person shall have any right or claim under this Section
as against the Guarantied Parties that would not otherwise be available to such Person under the
Avoidance Provisions.



Section 15. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of the Borrower and the other Loan Parties, and
of all other circumstances bearing upon the risk of nonpayment of any of the Guarantied Obligations
and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that neither the Administrative Agent nor any other Guarantied Party shall have any duty
whatsoever to advise any Guarantor of information regarding such circumstances or risks.


 


D-5









 





Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.




SECTION 17. WAIVER OF JURY TRIAL.



(a) EACH GUARANTOR, AND EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES BY
ACCEPTING THE BENEFITS HEREOF, ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN SUCH GUARANTOR,
THE ADMINISTRATIVE AGENT OR ANY OF THE OTHER GUARANTIED PARTES WOULD BE BASED ON DIFFICULT AND
COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE GUARANTORS, THE ADMINISTRATIVE AGENT AND THE
OTHER GUARANTIED PARTIES HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY
PARTY HERETO ARISING OUT OF THIS GUARANTY.



(b) EACH GUARANTOR, AND EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER GUARANTIED PARTIES BY
ACCEPTING THE BENEFITS HEREOF, HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT LOCATED IN THE
SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN NEW YORK, NEW YORK SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE GUARANTORS, THE
ADMINISTRATIVE AGENT OR ANY OF THE OTHER GUARANTIED PARTIES, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS GUARANTY. EACH GUARANTOR AND EACH OF THE GUARANTIED PARTIES EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM
AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION
SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY OTHER
GUARANTIED PARTY OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY OTHER GUARANTIED PARTY OF
ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.



(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION, CANCELLATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS
GUARANTY.



Section 18. Loan Accounts. The Administrative Agent and each Lender and the
Swingline Lender may maintain books and accounts setting forth the amounts of principal, interest
and other sums paid and payable with respect to the Guarantied Obligations arising under or in
connection with the Credit Agreement, and in the case of any dispute relating to any of the
outstanding amount, payment or receipt of any of such Guarantied Obligations or otherwise, the
entries in such books and accounts shall constitute prima facie evidence of the amounts and other
matters set forth therein. The failure of the
Administrative Agent, the Swingline Lender or any Lender to maintain such books and accounts shall
not in any way relieve or discharge any Guarantor of any of its obligations hereunder.


 


D-6









 





Section 19. Waiver of Remedies. No delay or failure on the part of the
Administrative Agent or any other Guarantied Party in the exercise of any right or remedy it may
have against any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no single
or partial exercise by the Administrative Agent or any other Guarantied Party of any such right or
remedy shall preclude any other or further exercise thereof or the exercise of any other such right
or remedy.



Section 20. Termination. This Guaranty shall remain in full force and effect with
respect to each Guarantor until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement and all Specified
Derivatives Contracts in accordance with their respective terms and the termination, cancellation
or expiration of all Letters of Credit.



Section 21. Successors and Assigns. Each reference herein to the Administrative
Agent or any other Guarantied Party shall be deemed to include such Person’s respective successors
and assigns (including, but not limited to, any holder of the Guarantied Obligations) in whose
favor the provisions of this Guaranty also shall inure, and each reference herein to each Guarantor
shall be deemed to include such Guarantor’s successors and assigns, upon whom this Guaranty also
shall be binding. The Guarantied Parties may, in accordance with the applicable provisions of the
Credit Agreement, assign, transfer or sell any Guarantied Obligation, or grant or sell
participations in any Guarantied Obligations, to any Person without the consent of, or notice to,
any Guarantor and without releasing, discharging or modifying any Guarantor’s obligations
hereunder. Each Guarantor hereby consents to the delivery by the Administrative Agent or any other
Guarantied Party to any Assignee or Participant (or any prospective Assignee or Participant) of any
financial or other information regarding the Borrower or any Guarantor. No Guarantor may assign or
transfer its rights or obligations hereunder to any Person without the prior written consent of all
Lenders and any such assignment or other transfer to which all of the Lenders have not so consented
shall be null and void.



Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE GUARANTORS
HEREUNDER SHALL BE JOINT AND SEVERAL, AND, ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE
FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF
EACH OF THE OTHER GUARANTORS HEREUNDER.



Section 23. Amendments. This Guaranty may not be amended except in writing signed by
the Administrative Agent and each Guarantor, subject to Section 12.6. of the Credit Agreement.



Section 24. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Administrative Agent at
its Principal Office, not later than 12:00 p.m. Eastern time, on the date one Business Day after
demand therefor.



Section 25. Notices. All notices, requests and other communications hereunder shall
be in writing (including facsimile transmission or similar writing) and shall be given (a) to each
Guarantor at its address set forth below its signature hereto, (b) to the Administrative Agent or
any other Guarantied Party at its address for notices provided for in the Credit Agreement, or (c)
as to each such party at such other address as such party shall designate in a written notice to
the other parties. Each such notice, request or other communication shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand delivered, when
delivered; provided, however, that any notice of a change of address for notices
shall not be effective until received.


 


D-7









 





Section 26. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



Section 27. Headings. Section headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.




Section 28. Trustees, Etc. Not Liable.



IN THE CASE OF ANY GUARANTOR THAT IS A TRUST, NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR
AGENT OF SUCH GUARANTOR SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, SUCH GUARANTOR. ALL PERSONS DEALING WITH SUCH GUARANTOR, IN ANY
WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH GUARANTOR FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE
OF ANY OBLIGATION OWING BY SUCH GUARANTOR HEREUNDER. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT
ANY OBLIGATIONS OF ANY LOAN PARTY.



Section 29. Limitation of Liability. Neither the Administrative Agent nor any other
Guarantied Party, nor any affiliate, officer, director, employee, attorney, or agent of the
Administrative Agent or any other Guarantied Party, shall have any liability with respect to, and
each Guarantor hereby waives, releases, and agrees not to sue any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by a Guarantor in
connection with, arising out of, or in any way related to, this Guaranty or any of the other Loan
Documents, or any of the transactions contemplated by this Guaranty, the Credit Agreement or any of
the other Loan Documents. Each Guarantor hereby waives, releases, and agrees not to sue the
Administrative Agent or any other Guarantied Party or any of the Administrative Agent’s or any
other Guarantied Party’s affiliates, officers, directors, employees, attorneys, or agents for
punitive damages in respect of any claim in connection with, arising out of, or in any way related
to, this Guaranty, the Credit Agreement or any of the other Loan Documents, or any of the
transactions contemplated by thereby.



Section 30. Electronic Delivery of Certain Information. Each Guarantor acknowledges
and agrees that information regarding the Guarantor may be delivered electronically pursuant to
Section 8.5. of the Credit Agreement.


 


D-8









 





Section 31. Definitions. (a) For the purposes of this Guaranty:



“Proceeding” means any of the following: (i) a voluntary or involuntary case
concerning any Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a
custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed
for, or takes charge of, all or any substantial part of the property of any Guarantor; (iii) any
other proceeding under any Applicable Law, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up or composition for adjustment of debts, whether now or hereafter in
effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general assignment for the benefit
of creditors; (vii) any Guarantor shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; (viii) any Guarantor shall call a
meeting of its creditors with a view to arranging a composition or adjustment of its debts; (ix)
any Guarantor shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or (x) any corporate action shall be taken by any Guarantor
for the purpose of effecting any of the foregoing.



(b) Terms not otherwise defined herein are used herein with the respective meanings given them
in the Credit Agreement.



[Signature Page Follows]



 


D-9









 





IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.



	 	 	 	 	 
	 	
[GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	Address for Notices for all Guarantors:



c/o UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Attn: Treasurer

Telephone: (720) 283-6142

Telecopy: (720) 283-2453
 	 



 


D-10









 





ANNEX I




FORM OF ACCESSION AGREEMENT




THIS ACCESSION AGREEMENT dated as of                     ,
 _____, executed and delivered by
                    , a                      (the “New Guarantor”) in favor of WELLS FARGO BANK,
NATIONAL ASSOCIATION, in its capacity as Administrative Agent (the “Administrative Agent”) for the
Lenders under that certain Credit Agreement dated as of                     , 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among UDR,
Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”), each of the
financial institutions initially a signatory thereto together with their successors and assignees
under Section 12.5. (the “Lenders”), Wells Fargo Bank, National Association, as Administrative
Agent (the “Administrative Agent”), the Administrative Agent, and the other parties thereto, for
its benefit and the benefit of the Lenders, and the Issuing Bank (the Administrative Agent, the
Lenders, and the Issuing Bank, each individually a “Guarantied Party” and collectively, the
“Guarantied Parties”).



WHEREAS, pursuant to the Credit Agreement, the Guarantied Parties have agreed to make
available to the Borrower certain financial accommodations on the terms and conditions set forth in
the Credit Agreement;



  WHEREAS, New Guarantor is owned or controlled by the Borrower, or is otherwise an
Affiliate of the Borrower;



WHEREAS, the Borrower, the New Guarantor and the existing Guarantors of the Borrower, though
separate legal entities, are mutually dependent on each other in the conduct of their respective
businesses as an integrated operation and have determined it to be in their mutual best interests
to obtain financing from the Guarantied Parties through their collective efforts;



WHEREAS, New Guarantor acknowledges that it will receive direct and indirect benefits from the
Guarantied Parties making such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, New Guarantor is willing to guarantee the Borrower’s obligations to the
Guarantied Parties on the terms and conditions contained herein; and



WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to the
Administrative Agent and the other Guarantied Parties continuing to make such financial
accommodations to the Borrower.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:




Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a
“Guarantor” under the Guaranty dated as of October
 _____, 2011 (as amended, restated or otherwise
modified from time to time, the “Guaranty”), made by the Guarantors party thereto in favor of the
Administrative Agent, for its benefit and the benefit of the other Guarantied Parties, and assumes
all obligations of a “Guarantor” thereunder, all as if the New Guarantor had been an original
signatory to the Guaranty. Without limiting the generality of the foregoing, the New Guarantor
hereby:



(a) irrevocably and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all Guarantied Obligations
(as defined in the Guaranty);



 


D-11









 





(b) makes to the Administrative Agent and the other Guarantied Parties as of the date hereof
each of the representations and warranties contained in Section 5 of the Guaranty and agrees to be
bound by each of the covenants contained in Section 6 of the Guaranty; and



(c) consents and agrees to each provision set forth in the Guaranty.



SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.



Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit Agreement.



[Signature Pages Follow]



 


D-12









 





IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be duly executed
and delivered under seal by its duly authorized officers as of the date first written above.




	 	 	 	 	 
	 	
[NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	
(CORPORATE SEAL)

 	 
	 	Address for Notices:


c/o UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Attn: Treasurer

Telephone: (720) 283-6142

Telecopy: (720) 283-2453
 	 




Accepted:



	 	 	 	 
	WELLS FARGO BANK, NATIONAL

   ASSOCIATION, as Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



 


D-13









 





EXHIBIT E




FORM OF NOTICE OF BORROWING




                    , 20_____


Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. thereof (the
“Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative
Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.




	 	1.	 	Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower hereby
requests that the Lenders make Revolving Loans to the Borrower in an aggregate
principal amount equal to $                    1.

	 
	 	2.	 	The Borrower requests that such Revolving Loans be made available to the
Borrower on                     , 20_.2

	 
	 	3.	 	The proceeds of this borrowing of such Loans will be used for
                    , which is consistent with the terms of Section 7.8. of the
Credit Agreement.

	 
	 	4.	 	The Borrower hereby requests that such Revolving Loans be of the following
Type:

	 
	 	 	 	[Check one box only]





o Base Rate Loan

o LIBOR Loan, with an initial Interest Period for a duration of:




[Check one box only]




 







	 	 	 
	1	 	Each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess
thereof. Each borrowing and Continuation, and each Conversion, of Base Rate
Loans into LIBOR Loans shall be in an aggregate minimum of $1,000,000 and
integral multiples of $500,000. Notwithstanding the immediately preceding two
sentences but subject to Section 2.16 of the Credit Agreement, a borrowing of
Revolving Loans may be in the aggregate amount of the unused Commitments.
Within the foregoing limits and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.

	 
	2	 	Must be a Business Day




 


E-1









 




o fourteen days

o one month

o three months

o six months




The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date
hereof, as of the date of the making of the requested Revolving Loans, and immediately after giving
effect to the making of such Revolving Loans, (a) no Default or Event of Default exists or would
exist, and none of the limits specified in Section 2.15. of the Credit Agreement would be violated;
and (b) the representations and warranties made or deemed made by the Borrower and each other Loan
Party in the Loan Documents to which any of them is a party, are and shall be true and correct in
all material respects (except in the case of a representation or warranty qualified by materiality,
in which case such representation or warranty shall be true and correct in all respects) with the
same force and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly permitted under the Loan
Documents. In addition, the Borrower certifies to the Administrative Agent and the Lenders that
all conditions to the making of the requested Revolving Loans contained in Article V. of the Credit
Agreement will have been satisfied at the time such Revolving Loans are made.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Borrowing
as of the date first written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


E-2









 





EXHIBIT F




FORM OF NOTICE OF CONTINUATION




                    , 20_____ 





Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.



Pursuant to Section 2.9. of the Credit Agreement, the Borrower hereby requests a Continuation
of LIBOR Loans under the Credit Agreement, and in that connection sets forth below the information
relating to such Continuation as required by such Section of the Credit Agreement:




	 	1.	 	The requested date of such Continuation is                     , 20
 _____1.

	 
	 	2.	 	The aggregate principal amount of the LIBOR Loans subject to the requested
Continuation is $                     and the portion of such principal amount
subject to such Continuation is
$                    2.

	 
	 	3.	 	The current Interest Period of the LIBOR Loans subject to such Continuation
ends on                     , 20__.

	 
	 	4.	 	The duration of the Interest Period for the LIBOR Loans or portion thereof
subject to such Continuation is:

	 
	 	 	 	[Check one box only]





o fourteen days

o one month

o three months

o six months





 



	 	 	 
	1	 	Must be a Business Day

	 
	2	 	Each Continuation of a LIBOR Loan shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess of
that amount.




 


F-1









 





The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date
hereof, as of the proposed date of the requested Continuation, and immediately after giving effect
to such Continuation, (a) no Default or Event of Default exists or would exist, and none of the
limits specified in Section 2.15. of the Credit Agreement would be violated; and (b) the
representations and warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, are and shall be true and correct in all material
respects (except in the case of a representation or warranty qualified by materiality, in which
case such representation or warranty shall be true and correct in all respects) with the same force
and effect as if made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and except for changes
in factual circumstances specifically and expressly permitted under the Loan Documents.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


F-2









 





EXHIBIT G




FORM OF NOTICE OF CONVERSION




                    , 20_____ 





Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.



Pursuant to Section 2.10. of the Credit Agreement, the Borrower hereby requests a Conversion
of Loans of one Type into Loans of another Type under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion as required by such Section of the
Credit Agreement:




	 	1.	 	The requested date of such Conversion is
 _____, 20_____1.

	 
	 	2.	 	The Type of Loans to be Converted pursuant hereto is currently2:

	 
	 	 	 	[Check one box only]





o Base Rate Loan

o LIBOR Loan





	 	3.	 	The aggregate principal amount of the Loans subject to the requested Conversion
is $                     and the portion of such principal amount subject to such
Conversion is
$                    3.






 







	 	 	 
	1	 	Must be a Business Day

	 
	2	 	A Base Rate Loan may not be Converted into a LIBOR Loan if a
Default or Event of Default exists.

	 
	3	 	Each Conversion of Base Rate Loans into LIBOR Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess of that amount.




 


G-1









 






	 	4.	 	The amount of such Loans to be so Converted is to be converted into Loans of
the following Type:

	 
	 	 	 	[Check one box only]





o Base Rate Loan

o LIBOR Loan, with an initial Interest Period for a duration of:




[Check one box only]



o fourteen days

o one month

o three months

o six months




The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date
hereof, as of the proposed date of the requested Conversion, and immediately after giving effect to
such Conversion, (a) no Default or Event of Default exists or would exist, and none of the limits
specified in Section 2.15. of the Credit Agreement would be violated; and (b) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party, are and shall be true and correct in all material respects (except
in the case of a representation or warranty qualified by materiality, in which case such
representation or warranty shall be true and correct in all respects) with the same force and
effect as if made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and except for changes
in factual circumstances specifically and expressly permitted under the Loan Documents.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Conversion
as of the date first written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


G-2









 





EXHIBIT H




FORM OF NOTICE OF SWINGLINE BORROWING




                    , 20_____ 





Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.




	 	1.	 	Pursuant to Section 2.4.(b) of the Credit Agreement, the Borrower hereby
requests that the Swingline Lender make a Swingline Loan to the Borrower in an amount
equal to
$                    1.

	 
	 	2.	 	The Borrower requests that such Swingline Loan be made available to the
Borrower on                     , 20_____2.

	 
	 	3.	 	The Borrower requests that the proceeds of such Swingline Loan be made
available to the Borrower by                     .

	 
	 	4.	 	The proceeds of this borrowing of such Loans will be used for
                    , which is consistent with the terms of Section 7.8. of the
Credit Agreement.

	 
	 	5.	 	Account information where Swingline Loan proceeds should be disbursed:  ______________________________






 







	 	 	 
	1	 	Each Swingline Loan shall be in the minimum amount of $1,000,000
and integral multiples of $500,000 in excess thereof, or such other minimum
amounts agreed to by the Swingline Lender and the Borrower.

	 
	2	 	 Must be a Business Day




 


H-1









 





The Borrower hereby certifies to the Administrative Agent, the Swingline Lender and the
Lenders that as of the date hereof, as of the date of the making of the requested Swingline Loan,
and immediately after giving effect to the making of such Swingline Loan, (a) no Default or Event
of Default exists or would exist, and none of the limits specified in Section 2.15. of the Credit
Agreement would be violated; and (b) the representations and warranties made or deemed made by the
Borrower and each other Loan Party in the Loan Documents to which any of them is a party, are and
shall be true and correct in all material respects (except in the case of a representation or
warranty qualified by materiality, in which case such representation or warranty shall be true and
correct in all respects) with the same force and effect as if made on and as of such date except to
the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate on and as of such
earlier date) and except for changes in factual circumstances specifically and expressly permitted
under the Loan Documents. In addition, the Borrower certifies to the Administrative Agent, the
Swingline Lender and the Lenders that all conditions to the making of the requested Swingline Loan
contained in Article V. of the Credit Agreement will have been satisfied at the time such Swingline
Loan is made.



If notice of the requested borrowing of this Swingline Loan was previously given by telephone,
this notice is to be considered the written confirmation of such telephone notice required by
Section 2.4.(b) of the Credit Agreement.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Swingline
Borrowing as of the date first written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


H-2









 





EXHIBIT I




FORM OF REVOLVING NOTE




			
	 	 	 
	$                    
	 	                    , 2011






FOR VALUE RECEIVED, the undersigned, UDR, INC., a corporation formed under the laws of the
State of Maryland (the “Borrower”) hereby unconditionally promises to pay to the order of
                     (the “Lender”), in care of Wells Fargo Bank, National Association, as
Administrative Agent (the “Administrative Agent”), to Wells Fargo Bank, National Association, 608
Second Ave. South, 11th Floor, Minneapolis, Minnesota 55402, or at such other address as
may be specified by the Administrative Agent to the Borrower, the principal sum of
                     AND
_____ /100 DOLLARS ($                    ), or such lesser amount as may be the then
outstanding and unpaid balance of all Revolving Loans made by the Lender to the Borrower pursuant
to, and in accordance with the terms of, the Credit Agreement.



The Borrower further agrees to pay interest at said office, in like money, on the unpaid
principal amount owing hereunder from time to time on the dates and at the rates and at the times
specified in the Credit Agreement.



This Revolving Note is one of the “Revolving Notes” referred to in the Credit Agreement dated
as of October
_____, 2011 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among the Borrower, the financial institutions party thereto
and their assignees under Section 12.5. thereof, the Administrative Agent, and the other parties
thereto, and is subject to, and entitled to, all provisions and benefits thereof. Capitalized
terms used herein and not defined herein shall have the respective meanings given to such terms in
the Credit Agreement. The Credit Agreement, among other things, (a) provides for the making of
Revolving Loans by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the Dollar amount first above mentioned, (b) permits the prepayment
of the Loans by the Borrower subject to certain terms and conditions and (c) provides for the
acceleration of the Revolving Loans upon the occurrence of certain specified events.



The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.




Time is of the essence for this Revolving Note.



THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



[This Note is given in replacement of the Revolving Note dated
 _____, 20
 _____, in the original
principal amount of $
 _____ 
previously delivered to the Lender under the Credit Agreement. THIS
NOTE IS NOT INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS
OWING UNDER OR IN CONNECTION WITH THE OTHER NOTE.]



[Signature Page Follows]



 


I-1









 





IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note under seal
as of the date written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


I-2









 





EXHIBIT J




FORM OF SWINGLINE NOTE




			
	 	 	 
	$100,000,000
	 	                    , 2011






FOR VALUE RECEIVED, the undersigned, UDR, INC., a corporation incorporated under the laws of
the State of Maryland (the “Borrower”), hereby promises to pay to the order of WELLS FARGO BANK,
NATIONAL ASSOCIATION (the “Swingline Lender”) at its address at 608 Second Ave. South,
11th Floor, Minneapolis, Minnesota 55402, or at such other address as may be specified
by the Swingline Lender to the Borrower, the principal sum of ONE HUNDRED MILLION AND NO/100
DOLLARS ($100,000,000) (or such lesser amount as shall equal the aggregate unpaid principal amount
of Swingline Loans made by the Swingline Lender to the Borrower under the Credit Agreement), on the
dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.



The date, amount of each Swingline Loan, and each payment made on account of the principal
thereof, shall be recorded by the Swingline Lender on its books and, prior to any transfer of this
Swingline Note, endorsed by the Swingline Lender on the schedule attached hereto or any
continuation thereof, provided that the failure of the Swingline Lender to made any such
recordation or endorsement shall not affect the obligations of the Borrower to make a payment when
due of any amount owing under the Credit Agreement or hereunder in respect of the Swingline Loans.



This Swingline Note is the “Swingline Note” referred to in the Credit Agreement dated as of
October
 _____, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among the Borrower, the financial institutions party thereto and their
assignees under Section 12.5. thereof, the Administrative Agent, and the other parties thereto, and
evidences Swingline Loans made to the Borrower thereunder. Terms used but not otherwise defined in
this Swingline Note have the respective meanings assigned to them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Swingline Note upon
the occurrence of certain events and for prepayments of Swingline Loans upon the terms and
conditions specified therein.



THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.



The Borrower hereby waives presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices. No failure to exercise, and
no delay in exercising any rights hereunder on the part of the holder hereof shall operate as a
waiver of such rights.




Time is of the essence for this Swingline Note.



[Signature Page Follows]



 


J-1









 





IN WITNESS WHEREOF, the undersigned has executed and delivered this Swingline Note under seal
as of the date first written above.



	 	 	 	 	 
	 	
UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


J-2









 





SCHEDULE OF SWINGLINE LOANS




This Note evidences Swingline Loans made under the within-described Credit Agreement to the
Borrower, on the dates and in the principal amounts set forth below, subject to the payments and
prepayments of principal set forth below:



	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	Unpaid	 	 
	 	 	Amount of	 	Amount Paid	 	Principal	 	Notation
	Date of Loan	 	Loan	 	or Prepaid	 	Amount	 	Made By
	 

	 	 
	 	 
	 	 
	 	 







 


J-3











 




EXHIBIT K




FORM OF TRANSFER AUTHORIZER DESIGNATION FORM

(For Disbursement of Loan Proceeds by Funds Transfer)




o  NEW   o  REPLACE PREVIOUS DESIGNATION   o  ADD   o  CHANGE   o  DELETE LINE NUMBER

o  INITIAL LOAN DISBURSEMENT




The following representatives of UDR, INC. (“Borrower”) are authorized to request the
disbursement of Loan Proceeds and initiate funds transfers for Loan Number 1005467 dated October

 _____, 2011 among the Borrower, each of the financial institutions initially a signatory thereto
together with their successors and assignees under Section 12.5. (the “Lenders”) and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”).
Administrative Agent is authorized to rely on this Transfer Authorizer Designation until it has
received a new Transfer Authorizer Designation signed by Borrower, even in the event that any or
all of the foregoing information may have changed.



	 	 	 	 	 	 	 
	 	 	 	 	 	 	Maximum Wire
	 	 	Name	 	Title	 	Amount1
	1.

	 	 
	 	 
	 	 
	2.

	 	 
	 	 
	 	 
	3.

	 	 
	 	 
	 	 
	4.

	 	 
	 	 
	 	 
	5.

	 	 
	 	 
	 	 






Initial Loan Disbursement Authorization   o Not Applicable  o   Applicable —
Administrative Agent is hereby authorized to accept wire transfer instructions from
                     (ie. specify title company escrow) to be delivered, via fax, email, letter or
other method, to Administrative Agent for title/escrow #                     and/or loan #                    . Said
instructions shall include the title/escrow company’s Receiving Party Account Name, city and state,
Receiving Party Account Number, Receiving Lender’s (ABA) Routing Number, Maximum Transfer Amount
required, Borrower’s name, title order/escrow number to which Administrative Agent shall fund the
Initial Loan Disbursement under the loan number referenced above. The amount of said transfer
shall not exceed $                    . Borrower acknowledges and agrees that the acceptance of and wire
transfer of funds by Administrative Agent in accordance with the title/escrow company instructions
shall be governed by this Transfer Authorizer Designation form and any other Loan Documents dated
                     by and between Administrative Agent and Borrower. Administrative Agent shall not be
further required to confirm said wiring instructions received from title/escrow company with
Borrower. This Initial Loan Disbursement Authorization is in effect until the Termination Date
after which time a new authorization request shall be required. Borrower shall instruct
title/escrow company via a separate letter, to deliver said wiring instructions in writing,
directly to Administrative Agent at its address. Borrower also hereby authorizes Lender to attach
a copy of
the title/escrow company’s written wire instructions to this Transfer Authorizer Designation form
upon receipt of said instructions.


 


K-1









 





Beneficiary Bank and Account Holder Information




1.




	 	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 
	 
	 	 
	Further Credit Information/Instructions:
	 	 






2.




	 	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 
	 
	 	 
	Further Credit Information/Instructions:
	 	 






3.




	 	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 
	 
	 	 
	Further Credit Information/Instructions:
	 	 








	 	 	 
	1	 	Maximum Wire Amount may not exceed the Loan Amount.




 


K-2









 





	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 






“BORROWER”




	 	 	 	 	 	 	 
	By:
	 	 	 	 
	 	 	   
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





 


K-3









 





EXHIBIT L




FORM OF BID RATE QUOTE REQUEST




                    , _____




Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.




	 	1.	 	The Borrower hereby requests Bid Rate Quotes for the following proposed Bid
Rate Borrowings:






	 	 	 	 	 	 	 
	Borrowing Date	 	Amount1	 	Type2	 	Interest Period3
	                    ,
 _____ 


	 	$                    
	 	                    
	 	
 _____ 
days







	 	2.	 	Borrower’s Credit Rating, as applicable, as of the date hereof is:






	 	 	 	 	 
	 

	 	S&P
	 	                                        
	 

	 	Moody’s
	 	                                        
	 

	 	[Other]
	 	                                        






 







	 	 	 
	1	 	Minimum amount of $1,000,000 or larger multiple of $500,000.

	 
	2	 	Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR
Margin (for LIBOR Margin Loan).

	 
	3	 	No less than 7 days and up to 180 days after the borrowing date
and must end on a Business Day.




 


L-1









 






	 	3.	 	The proceeds of this Bid Rate Borrowing will be used for the following
purpose:                                         .

	 
	 	4.	 	After giving effect to the Bid Rate Borrowing requested herein, the total
amount of Bid Rate Loans outstanding shall be $                    .26






The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date
hereof, as of the date of the making of the requested Bid Rate Loans, and after making such Bid
Rate Loans, (a) no Default or Event of Default exists or will exist, and (b) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party are and shall be true and correct in all material respects, except
to the extent that such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties were true and accurate on and as of such
earlier date) and except for changes in factual circumstances specifically and expressly permitted
under the Credit Agreement. In addition, the Borrower certifies to the Administrative Agent and
the Lenders that all conditions to the making of the requested Bid Rate Loans contained in Article
V. of the Credit Agreement will have been satisfied at the time such Bid Rate Loans are made.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Bid Rate Quote
Request as of the date first written above.



	 	 	 	 	 
	 	

UDR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 







	 	 	 
	26	 	Must not be in excess of one-half of the aggregate amount of all
existing Commitments.




 


L-2









 





EXHIBIT M




FORM OF BID RATE QUOTE




Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:                     




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.



In response to Borrower’s Bid Rate Quote Request dated
 _____, 200_, the undersigned
hereby makes the following Bid Rate Quote(s) on the following terms:




	 	1.	 	Quoting Lender:                    

	 
	 	2.	 	Person to contact at quoting Lender:                    

	 
	 	3.	 	The undersigned offers to make Bid Rate Loan(s) in the following principal
amount(s), for the following Interest Period(s) and at the following Bid Rate(s):






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Borrowing Date	 	Amount1	 	 	Type2	 	 	Interest Period3	 	 	Bid Rate	 
	                    , 200__
	 	$	                    	 	 	 	                    	 	 	                    days	 	 	                    	%
	                    , 200__
	 	$	                    	 	 	 	                    	 	 	                    days	 	 	                    	%
	                    , 200__
	 	$	                    	 	 	 	                    	 	 	                    days	 	 	                    	%






 







	 	 	 
	1	 	Minimum amount of $1,000,000 or integral multiples of $500,000.

	 
	2	 	Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR
Margin (for LIBOR Margin Loan).

	 
	3	 	No less than 7 days and up to 180 days after the borrowing date
and must end on a Business Day.




 


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The undersigned understands and agrees that the offer(s) set forth above, subject to
satisfaction of the applicable conditions set forth in the Credit Agreement, irrevocably
obligate[s] the undersigned to make the Bid Rate Loan(s) for which any offer(s) [is/are] accepted,
in whole or in part.



	 	 	 	 	 
	 	
[Name of Quoting Lender]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 


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EXHIBIT N




FORM OF BID RATE QUOTE ACCEPTANCE




__________________, 200_




Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916

Attn:
 _____ 





Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of October
 _____, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5. (the “Lenders”),
Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and
the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.



Borrower hereby accepts the following offer(s) of Bid Rate Quotes to be made available to the
Borrower on
 _____, 200_:



	 	 	 	 	 	 	 	 	 
	Quote Date	 	Quoting Lender	 	 	Amount Accepted	 
	                    , 200__
	 	 	                                 	 	 	$	                                 	 
	                    , 200__
	 	 	                                 	 	 	$	                                 	 
	                    , 200__
	 	 	                                 	 	 	$	                                 	 






The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date
hereof, as of the date of the making of the requested Bid Rate Loans, and after making such Bid
Rate Loans, (a) no Default or Event of Default exists or will exist, and (b) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party are and shall be true and correct in all material respects, except
to the extent that such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly permitted under
the Credit Agreement. In addition, the Borrower certifies to the Administrative Agent and the
Lenders that all conditions to the making of the requested Bid Rate Loans contained in Article V.
of the Credit Agreement will have been satisfied at the time such Bid Rate Loans are made.


 


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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Bid Rate Quote
Acceptance as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	UDR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







 


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EXHIBIT O




FORM OF OPINION OF COUNSEL




Wells Fargo Bank, National Association

Minneapolis Loan Center

MAC N9303-110

608 Second Ave. South, 11th Floor

Minneapolis, Minnesota 55402-1916




The Lenders party to the Credit Agreement
referred to below




Ladies and Gentlemen:



We have acted as counsel to UDR, Inc., a corporation formed under the laws of the State of
Maryland (the “Borrower”), in connection with the negotiation, execution and delivery of that
certain Credit Agreement dated as of October
 _____ 
2011 (the “Credit Agreement”), by and among the
Borrower, each of the financial institutions initially a signatory thereto together with their
assignees pursuant to Section 12.5. and Wells Fargo Bank, National Association, as Administrative
Agent. We have also acted as counsel to
 _____ 
(each a “Guarantor” and
collectively, the “Guarantors”, and together with the Borrower collectively referred to as the
“Loan Parties”) in connection with the Guaranty dated as of October
 _____ 
2011, made by each
Guarantor in favor of the Administrative Agent and the Lenders. All capitalized terms used but not
defined herein shall have the meanings set forth in the Credit Agreement.




In these capacities, we have reviewed the following:




(a) the Credit Agreement;




(b) Revolving Notes;




(c) Swingline Note;




(d) [Bid Rate Notes] [if necessary]




(e) the Guaranty; and




(f) [other Loan Documents].



The documents and instruments set forth in items (a) through (f) above are referred to herein as
the “Loan Documents”.



In addition to the foregoing, we have reviewed the articles of incorporation and by-laws,
certificates of limited partnership and limited partnership agreements, deeds of trust or other
similar organizational documents, as applicable, of each Loan Party and certain resolutions of the
board of directors, as applicable, of each Loan Party (collectively, the “Organizational
Documents”) and have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, and other instruments, and made such other
investigations of law and fact, as we have deemed necessary or advisable for the purposes of
rendering this opinion. In our examination of documents, we assumed the genuineness of all signatures on documents presented to us as originals (other than the signatures of officers of
the Loan Parties) and the conformity to originals of documents presented to us as conformed or
reproduced copies.


 


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Based upon the foregoing, and subject to all of the qualifications and assumptions set forth
herein, we are of the opinion that:



1. The Borrower (i) is duly organized as a corporation and is validly existing and in good
standing under the laws of the State of Maryland and (ii) has the power to execute, deliver and
perform the Loan Documents to which it is a party, to own and use its assets, and to conduct its
business as presently conducted and as proposed to be conducted immediately following the
consummation of the transactions contemplated by the Credit Agreement. The Borrower is qualified
to transact business as a foreign corporation in
 _____.



2. Each Guarantor (i) is duly organized as a [corporation] and is validly existing and in good
standing under the laws of its jurisdiction of organization and (ii) has the power to execute,
deliver and perform the Loan Documents to which it is a party, to own and use its assets, and to
conduct its business as presently conducted and as proposed to be conducted immediately following
the consummation of the transactions contemplated by the Credit Agreement. Each Guarantor is
qualified to transact business as a foreign corporation in
 _____.]



3. Each Loan Party has duly authorized the execution and delivery of the Loan Documents to
which it is a party and all performance by each Loan Party thereunder. Each of the Loan Parties
has duly executed and delivered such Loan Documents.



4. The execution and delivery by each Loan Party of the Loan Documents to which it is a party
do not, and if such Loan Party were now to perform its obligations under such Loan Documents, such
performance would not, result in any:




(a) violation of such Loan Party’s respective Organizational Documents, as applicable;



(b) violation of any existing federal or state constitution, statute, regulation, rule, order,
or law to which such Loan Party or its assets are subject;



(c) breach or violation of or default under, any agreements, instruments, indentures or other
documents evidencing any indebtedness for money borrowed or any other material agreement to which,
to our knowledge, such Loan Party is bound or under which such Loan Party or its assets is subject;



(d) creation or imposition of a contractual lien or security interest in, on or against the
assets of such Loan Party under any material written agreements to which such Loan Party is a party
or by which such Loan Party or its assets are bound; or



(e) violation of any judicial or administrative decree, writ, judgment or order to which, to
our knowledge, such Loan Party or its assets are subject.



5. The execution, delivery and performance by each of the Loan Parties of each Loan Document
to which it is a party, and the consummation of the transactions thereunder, do not and will not
require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority of the United States of America, the State of
Maryland or the States of New York or
 _____.


 


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6. The Loan Documents constitute the legal, valid and binding obligations of the Loan Parties,
enforceable against the respective Loan Parties in accordance with their respective terms, except
that the foregoing opinion is subject to: (a) applicable bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws relating to or affecting the enforcement of creditors’
rights generally and (b) the fact that equitable remedies or relief (including, but not limited to,
the remedy of specific performance) are subject to the discretion of the court before which any
such remedies or relief may be sought.



7. To our knowledge, there are no judgments outstanding against any of the Loan Parties or
affecting any of their respective assets, nor is there any litigation or other proceeding against
any of the Loan Parties or its assets pending or overtly threatened.



8. None of the Loan Parties is, or, after giving effect to any Loan will be, subject to
regulation under the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur indebtedness for borrowed money.



10. Assuming that Borrower applies the proceeds of the Loans and as provided in the Credit
Agreement, the transactions contemplated by the Loan Documents do not violate the provisions of
Regulations T, U or X of the Federal Reserve Board.



11. The consideration to be paid to the Lenders for the financial accommodations to be
provided to the Loan Parties pursuant to the Credit Agreement does not violate any law of the State
of New York relating to interest and usury.



[Customary Qualifications/Assumptions/Limitations]




Very truly yours,





 


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EXHIBIT P




FORM OF COMPLIANCE CERTIFICATE




Reference is made to the Credit Agreement dated as of           , 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among UDR, Inc., a corporation formed under the laws of the State of Maryland (the “Borrower”),
each of the financial institutions initially a signatory thereto together with their successors and
assignees under Section 12.5. (the “Lenders”), Wells Fargo Bank, National Association, as
Administrative Agent (the “Administrative Agent”), and the other parties thereto.



Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given to them in the Credit Agreement.



Pursuant to Section 8.3. of the Credit Agreement, the undersigned hereby certifies to the
Administrative Agent and the Lenders that:



1. The undersigned is the            27 of the Borrower.



2. The undersigned has reviewed the terms of the Credit Agreement and has made a review of the
transactions, financial condition and other affairs of the Borrower and its Subsidiaries.



3. To the best of the undersigned’s knowledge, information and belief after due inquiry, no
Default or Event of Default exists [If such is not the case, specify such Default or Event of
Default and its nature, when it occurred and whether it is continuing and the steps being taken by
the Borrower with respect to such event, condition or failure].



4. Attached hereto as Schedule 1 are reasonably detailed calculations establishing whether the
Parent and the Borrower were in compliance with the covenants contained in Section 9.1. of the
Credit Agreement as of the end of the relevant quarterly accounting period, fiscal year, or other
fiscal period covered by the financial statements furnished along with this certificate.



5. The representations and warranties made or deemed made by the Parent, the Borrower and the
other Loan Parties in the Loan Documents to which any is a party, are true and correct in all
material respects on and as of the date hereof except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents.



 




	 	 	 
	27	 	Must be the chief financial officer, treasurer, or chief accounting officer of the Borrower.



 


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IN WITNESS WHEREOF, the undersigned has signed this Compliance Certificate on and as of
          , 20     .



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





 


P-2









 





Schedule 1




[calculations to be attached]





 


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