exv10w1






Exhibit 10.1



 


 




REVOLVING CREDIT AGREEMENT

dated as of July 13, 2011




among



ERP OPERATING LIMITED PARTNERSHIP,



THE BANKS LISTED HEREIN,



BANK OF AMERICA, N.A.,

as Administrative Agent,



JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,



J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, AND

WELLS FARGO SECURITIES, LLC,

as Joint Lead Arrangers and Joint Book Runners,



and



SUNTRUST BANK,

U.S. BANK NATIONAL ASSOCIATION, and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Documentation Agents



and



CITIBANK, N.A.,

DEUTSCHE BANK SECURITIES INC., and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Co-Documentation Agents


 




 






 









 







TABLE
OF CONTENTS






	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I	 
	 
	 	 	 	 
	DEFINITIONS	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Accounting Terms and Determinations
	 	 	30	 
	Section 1.3 Types of Borrowings
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II	 
	 
	 	 	 	 
	THE CREDITS	 
	 
	 	 	 	 
	Section 2.1 Commitments to Lend
	 	 	30	 
	Section 2.2 Notice of Borrowing
	 	 	32	 
	Section 2.3 Money Market Borrowings
	 	 	33	 
	Section 2.4 Notice to Banks; Funding of Loans
	 	 	38	 
	Section 2.5 Notes
	 	 	39	 
	Section 2.6 Method of Electing Interest Rates
	 	 	40	 
	Section 2.7 Interest Rates
	 	 	42	 
	Section 2.8 Fees
	 	 	43	 
	Section 2.9 Maturity Date
	 	 	44	 
	Section 2.10 Intentionally Omitted
	 	 	45	 
	Section 2.11 Optional Prepayments and Optional Decreases and Termination
	 	 	45	 
	Section 2.12 General Provisions as to Payments
	 	 	46	 
	Section 2.13 Funding Losses
	 	 	48	 
	Section 2.14 Computation of Interest and Fees
	 	 	48	 
	Section 2.15 Use of Proceeds
	 	 	48	 
	Section 2.16 Letters of Credit
	 	 	48	 
	Section 2.17 Letter of Credit Usage Absolute
	 	 	51	 
	Section 2.18 Swingline Loan Subfacility
	 	 	52	 
	Section 2.19 Letters of Credit Maturing after the Maturity Date
	 	 	54	 
	Section 2.20 Special Provisions Regarding Alternate Currency Loans
	 	 	55	 
	Section 2.21 Qualified Borrowers
	 	 	57	 
	Section 2.22 Mandatory Prepayments
	 	 	58	 
	 
	 	 	 	 
	ARTICLE III	 
	 
	 	 	 	 
	CONDITIONS	 
	 
	 	 	 	 
	Section 3.1 Closing
	 	 	59	 
	Section 3.2 Borrowings
	 	 	60	 






i









 






TABLE
OF CONTENTS





	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE IV	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Existence and Power
	 	 	62	 
	Section 4.2 Power and Authority
	 	 	62	 
	Section 4.3 No Violation
	 	 	62	 
	Section 4.4 Financial Information
	 	 	63	 
	Section 4.5 Litigation
	 	 	64	 
	Section 4.6 Compliance with ERISA
	 	 	64	 
	Section 4.7 Environmental Matters
	 	 	64	 
	Section 4.8 Taxes
	 	 	64	 
	Section 4.9 Full Disclosure
	 	 	65	 
	Section 4.10 Solvency
	 	 	65	 
	Section 4.11 Use of Proceeds; Margin Regulations
	 	 	65	 
	Section 4.12 Governmental Approvals
	 	 	65	 
	Section 4.13 Investment Company Act
	 	 	65	 
	Section 4.14 Principal Offices
	 	 	65	 
	Section 4.15 REIT Status
	 	 	65	 
	Section 4.16 No Default
	 	 	65	 
	Section 4.17 Compliance With Law
	 	 	66	 
	Section 4.18 Organizational Documents
	 	 	66	 
	Section 4.19 Qualifying Unencumbered Properties
	 	 	66	 
	 
	 	 	 	 
	ARTICLE V	 	 	 	 
	 
	 	 	 	 
	AFFIRMATIVE AND NEGATIVE COVENANTS	 	 	 	 
	Section 5.1 Information
	 	 	66	 
	Section 5.2 Payment of Obligations
	 	 	69	 
	Section 5.3 Maintenance of Property; Insurance; Leases
	 	 	69	 
	Section 5.4 Conduct of Business and Maintenance of Existence
	 	 	69	 
	Section 5.5 Compliance with Laws
	 	 	70	 
	Section 5.6 Inspection of Property, Books and Records
	 	 	70	 
	Section 5.7 Intentionally Omitted
	 	 	70	 
	Section 5.8 Financial Covenants
	 	 	70	 
	Section 5.9 Restriction on Fundamental Changes
	 	 	71	 
	Section 5.10 Changes in Business
	 	 	71	 
	Section 5.11 Margin Stock
	 	 	72	 
	Section 5.12 Intentionally Omitted
	 	 	72	 
	Section 5.13 EQR Status
	 	 	72	 






ii










 









TABLE
OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE VI	 	 	 	 
	 
	 	 	 	 
	DEFAULTS	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Events of Default
	 	 	72	 
	Section 6.2 Rights and Remedies
	 	 	75	 
	Section 6.3 Notice of Default
	 	 	75	 
	Section 6.4 Actions in Respect of Letters of Credit
	 	 	76	 
	Section 6.5 Distribution of Proceeds after Default
	 	 	78	 
	 
	 	 	 	 
	ARTICLE VII	 
	 
	 	 	 	 
	THE AGENTS	 
	 
	 	 	 	 
	Section 7.1 Appointment and Authorization
	 	 	78	 
	Section 7.2 Agency and Affiliates
	 	 	78	 
	Section 7.3 Action by Administrative Agent
	 	 	78	 
	Section 7.4 Consultation with Experts
	 	 	78	 
	Section 7.5 Liability of Administrative Agent, Syndication Agent, Documentation Agents
	 	 	79	 
	Section 7.6 Indemnification
	 	 	79	 
	Section 7.7 Credit Decision
	 	 	80	 
	Section 7.8 Successor Administrative Agent or Syndication Agent
	 	 	80	 
	Section 7.9 Consents and Approvals
	 	 	81	 
	 
	 	 	 	 
	ARTICLE VIII	 
	 
	 	 	 	 
	CHANGE IN CIRCUMSTANCES	 
	 
	 	 	 	 
	Section 8.1 Basis for Determining Interest Rate Inadequate or Unfair
	 	 	81	 
	Section 8.2 Illegality
	 	 	82	 
	Section 8.3 Increased Cost and Reduced Return
	 	 	83	 
	Section 8.4 Taxes
	 	 	84	 
	Section 8.5 Base Rate Loans Substituted for Affected Euro-Dollar Loans
	 	 	87	 
	Section 8.6 Dodd-Frank Wall Street Reform and Consumer Protection Act and Basel III
	 	 	87	 
	 
	 	 	 	 
	ARTICLE IX	 
	 
	 	 	 	 
	MISCELLANEOUS	 
	 
	 	 	 	 
	Section 9.1 Notices
	 	 	88	 






iii









 




TABLE
OF CONTENTS





	 	 	 	 	 
	 	 	 	Page	 
	Section 9.2 No Waivers
	 	 	88	 
	Section 9.3 Expenses; Indemnification
	 	 	88	 
	Section 9.4 Sharing of Set-Offs
	 	 	89	 
	Section 9.5 Amendments and Waivers
	 	 	90	 
	Section 9.6 Successors and Assigns
	 	 	91	 
	Section 9.7 Collateral
	 	 	94	 
	Section 9.8 Governing Law; Submission to Jurisdiction
	 	 	94	 
	Section 9.9 Counterparts; Integration; Effectiveness
	 	 	95	 
	Section 9.10 WAIVER OF JURY TRIAL
	 	 	95	 
	Section 9.11 Survival
	 	 	95	 
	Section 9.12 Domicile of Loans
	 	 	95	 
	Section 9.13 Limitation of Liability
	 	 	95	 
	Section 9.14 Recourse Obligation
	 	 	96	 
	Section 9.15 Confidentiality
	 	 	96	 
	Section 9.16 Defaulting Lenders
	 	 	96	 
	Section 9.17 No Bankruptcy Proceedings
	 	 	99	 
	Section 9.18 Down REIT Guaranties
	 	 	99	 
	Section 9.19 USA PATRIOT Act Notice
	 	 	100	 
	Section 9.20 Public/Private Information
	 	 	100	 
	Section 9.21 Intentionally Omitted
	 	 	101	 
	Section 9.22 No Advisory or Fiduciary Responsibility
	 	 	101	 






	 

	 

	Schedule 1.1 - Mandatory Cost Formulae

	Schedule 2.16 - Letters of Credit Transferred to New Revolver

	Schedule 2.3 - Money Market Loans Transferred to New Revolver

	Exhibit A-1 - Form of Designated Lender Note

	Exhibit A-2 - Form of Note

	Exhibit A-3 - Form of Qualified Borrower Note

	Exhibit B — Form of Money Market Quote Request

	Exhibit C — Notice of Borrowing

	Exhibit D — Form of Money Market Quote

	Exhibit E — Transfer Supplement

	Exhibit F — Qualified Unencumbered Properties

	Exhibit G — Designation Agreement

	Exhibit H — Down REIT Guaranty

	Exhibit I — Qualified Borrower Guaranty








iv











 








REVOLVING CREDIT AGREEMENT




          THIS REVOLVING CREDIT AGREEMENT, dated as of July 13, 2011, is among ERP OPERATING LIMITED
PARTNERSHIP (the “Borrower”), the BANKS party hereto, BANK OF AMERICA, N.A., as
Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, SUNTRUST BANK, U.S. BANK
NATIONAL ASSOCIATION, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, and
CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC., as
Co-Documentation Agents.




W
I T N E S S E T H:



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




ARTICLE I



DEFINITIONS



     Section 1.1 Definitions. The following terms, as used herein, have the following meanings:



          “Absolute Rate Auction” means a solicitation of Money Market Quotes setting forth
Money Market Absolute Rates pursuant to Section 2.3.




          “Acquisition Property” means a property acquired by the Borrower or its Consolidated
Subsidiaries or Investment Affiliates (whether by purchase, merger or other corporate transaction
and including acquisitions from taxable REIT subsidiaries owned by Borrower).




          “Acquisition Property Value” means the greater of (a) the EBITDA generated by an
Acquisition Property divided by the FMV Cap Rate (or Borrower’s Share thereof with respect to any
Acquisition Property owned by a Consolidated Subsidiary or an Investment Affiliate), or (b) the
undepreciated book value (cost basis plus improvements) of an Acquisition Property (or Borrower’s
Share thereof with respect to any Acquisition Property owned by a Consolidated Subsidiary or an
Investment Affiliate). An Acquisition Property will be valued as a Stabilized Property following
the sixth full fiscal quarter after the fiscal quarter in which such Acquisition Property was first
acquired.




          “Additional Cost Rate” has the meaning set forth in Schedule 1.1 attached hereto.




          “Administrative Agent” shall mean Bank of America, N.A., in its capacity as
Administrative Agent hereunder, and its permitted successors in such capacity in accordance with
the terms of this Agreement.








 









 








          “Administrative Questionnaire” means, with respect to each Bank, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent (with a copy to the Borrower) duly completed by such Bank.




          “affiliate”, as applied to any Person, means any other Person that directly or
indirectly controls, is controlled by, or is under common control with, that Person. For purposes
of this definition, “control” (including, with correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”), as applied to any Person, means the possession,
directly or indirectly, of the power to vote ten percent (10.0%) or more of the equity securities
having voting power for the election of directors of such Person or otherwise to direct or cause
the direction of the management and policies of that Person, whether through the ownership of
voting equity securities or by contract or otherwise.




          “Agreement” shall mean this Revolving Credit Agreement as the same may from time to
time hereafter be modified, supplemented or amended.




          “Alternate Currency” means the lawful currency of any of (i) the United Kingdom
(British Pounds Sterling) or (ii) the European Economic Union (Euros). For all purposes of this
Agreement, including without limitation the calculation of the Dollar Equivalent Amount at any time
and from time to time, each Alternate Currency will be marked-to-market on the last Business Day of
each month and immediately prior to each Borrowing.




          “Alternate Currency Commitment” means with respect to each Bank, the amount set forth
under the name of such Bank on the signature pages hereof as its commitment for Loans in Alternate
Currencies and Alternate Currency Letters of Credit (and, for each Bank which is an Assignee, the
amount set forth in the Transfer Supplement entered into pursuant to Section 9.6(c) as the
Assignee’s Alternate Currency Commitment) and Dollars, as such amount may be reduced from time to
time pursuant to Section 2.11(e) or in connection with an assignment to an Assignee, and as such
amount may be increased in connection with an assignment from an Assignor or pursuant to Section
2.1(b). The initial aggregate Dollar Equivalent Amount of the Banks’ Alternate Currency
Commitments is $250,000,000.




          “Alternate Currency Letter of Credit” means a Letter of Credit denominated in
Alternate Currency.




          “Alternate Currency Sublimit” means, a Dollar Equivalent Amount of Loans denominated
in an Alternate Currency and Alternate Currency Letter(s) of Credit (and, to the extent expressly
provided herein, Loans and Letters of Credit denominated in Dollars), equal to the aggregate Dollar
Equivalent Amount of the Banks’ Alternate Currency Commitments, as such amount may be increased in
accordance with Section 2.1(b) from time to time.




          “Applicable Interest Rate” means (i) with respect to any Fixed Rate Indebtedness, the
fixed interest rate applicable to such Fixed Rate Indebtedness at the time in question, and (ii)
with respect to any Floating Rate Indebtedness, either (x) the rate at which the interest rate
applicable to such Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if Borrower has entered into an interest
rate cap agreement or other interest rate hedging device with respect thereto or (y) if Borrower
has not





2









 







entered into an interest rate cap agreement or other interest rate hedging device with
respect to such Floating Rate Indebtedness, the greater of (A) the rate at which the interest rate
applicable to such Floating Rate Indebtedness could be fixed for the remaining term of such
Floating Rate Indebtedness, at the time of calculation, by Borrower’s entering into any unsecured
interest rate hedging device either not requiring an upfront payment or if requiring an upfront
payment, such upfront payment shall be amortized over the term of such device and included in the
calculation of the interest rate (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate hedging device at the time of calculation, a fixed rate equivalent
reasonably determined by Administrative Agent) or (B) the floating rate applicable to such Floating
Rate Indebtedness at the time in question.




          “Applicable Lending Office” means, with respect to any Bank, (i) in the case of its
Base Rate Loans or Swingline Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office, and (iii) in the case of its Money Market Loans,
its Money Market Lending Office.




          “Applicable Margin” means, with respect to each Loan, the respective percentages per
annum determined, at any time, based on the range into which Borrower’s Credit Rating then falls,
in accordance with the table set forth below. Any change in Borrower’s Credit Rating causing it to
move to a different range on the table shall effect an immediate change in the Applicable Margin.
In the event that the Borrower receives Credit Ratings that are not equivalent, the Applicable
Margin shall be based upon the higher of the Credit Ratings from S&P or Moody’s. In the event that
only one (1) Rating Agency has set the Borrower’s Credit Rating, then the Applicable Margin shall
be based on such single Credit Rating. Should Borrower lose its Investment Grade Rating from both
S&P’s and Moody’s, the Applicable Margin will revert to the Non-Investment Grade rate. Upon the
reinstatement of an Investment Grade Rating from either S&P or Moody’s, the Applicable Margin will
again be determined based on the table set forth below.




	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 	 	Applicable Margin for	 
	Range of Borrower’s	 	Base Rate Loans	 	 	Euro Dollar Loans	 
	Credit Rating	 	(% per annum)	 	 	(% per annum)	 
	Non-Investment
Grade
	 	 	0.950	 	 	 	1.950	 
	BBB-/Baa3
	 	 	0.650	 	 	 	1.650	 
	BBB/Baa2
	 	 	0.350	 	 	 	1.350	 
	BBB+/Baa1
	 	 	0.150	 	 	 	1.150	 
	A-/A3
	 	 	0.075	 	 	 	1.075	 
	A/A2 or better
	 	 	0.050	 	 	 	1.050	 






          “Approved Bank” shall mean banks which have (i)(a) a minimum net worth of $500,000,000
and/or (b) total assets of $10,000,000,000, and (ii) a minimum long term debt rating of (a) BBB+ or
higher by S&P, and (b) Baa1 or higher by Moody’s.




3









 








          “Assignee” has the meaning set forth in Section 9.6(c).




          “Bank” means each bank listed on the signature pages hereof, each Assignee which
becomes a Bank pursuant to Section 9.6(c), and their respective successors and each Designated
Lender; provided, however, that the term “Bank” shall exclude each Designated Lender when
used in reference to a Committed Loan, the Commitments or terms relating to the Committed Loans and
the Commitments and shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Money Market Loan shall, subject to Section 9.6(d),
have the rights (including the rights given to a Bank contained in Section 9.3 and otherwise in
Article IX) and obligations of a Bank associated with holding such Money Market Loan.




          “Bankruptcy Code” shall mean Title 11 of the United States Code, entitled
“Bankruptcy”, as amended from time to time, and any successor statute or statutes.




          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, provided that a Bankruptcy Event
shall not result solely by virtue of any ownership interest, or the acquisition of any ownership
interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further,
that such ownership interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Person (or such Governmental Authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.




          “Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by the Bank serving as the Administrative Agent as its “prime
rate”, and (c) the Euro-Dollar Rate for such day if a Euro-Dollar Loan with an Interest Period of
one month were being made on such day plus one percent (1.0%). The “prime rate” is a rate set by
Bank of America, N.A. based upon various factors including Bank of America, N.A.’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by the Bank serving as the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such change.




          “Base Rate Loan” means a Committed Loan made or to be made by a Bank as a Base Rate
Loan in accordance with the applicable Notice of Borrowing or Notice of Interest Rate Election or
pursuant to Article VIII.




          “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.





4









 








          “Borrower” means ERP Operating Limited Partnership, an Illinois limited partnership.




          “Borrower’s Share” means Borrower’s or EQR’s share of the liabilities or assets, as
the case may be, of an Investment Affiliate or Consolidated Subsidiary as reasonably determined by
Borrower based upon Borrower’s or EQR’s economic interest in such Investment Affiliate or
Consolidated Subsidiary, as the case may be, as of the date of such determination.




          “Borrowing” has the meaning set forth in Section 1.3.




          “Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks are authorized or required by law to close (i) in Dallas, Texas and/or New York
City, and (ii) in the case of Euro-Dollar Loans, in London, England and/or Dallas, Texas, and (iii)
in the case of Letters of Credit transactions for a particular Fronting Bank, in the place where
its office for issuance or administration of the pertinent Letter of Credit is located and/or
Dallas, Texas and/or New York City, and (iv) if such reference relates to the date on which any
amount is to be paid or made available in an Alternate Currency, the principal financial center in
the country of such Alternate Currency, as well as the city in the country from which any Bank
shall be funding such Alternate Currency Loan.




          “Capital Leases” as applied to any Person, means any lease of any property (whether
real, personal or mixed) by that Person as lessee which, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person




          “Capital Reserve” shall mean $200 per year.




          “Cash and Cash Equivalents” shall mean unrestricted (notwithstanding the foregoing,
however, cash held in escrow in connection with the completion of Code Section 1031 “like-kind”
exchanges shall be deemed to be “unrestricted” for purposes hereof) (i) cash, (ii) direct
obligations of the United States Government, including without limitation, treasury bills, notes
and bonds, (iii) interest bearing or discounted obligations of Federal agencies and government
sponsored entities or pools of such instruments offered by Approved Banks and dealers, including
without limitation, Federal Home Loan Mortgage Corporation participation sale certificates,
Government National Mortgage Association modified pass through certificates, Federal National
Mortgage Association bonds and notes, and Federal Farm Credit System securities, (iv) time
deposits, foreign deposits, domestic and foreign certificates of deposit, bankers acceptances
(foreign and domestic), commercial paper in Dollars or an Alternate
Currency rated at least A-1 by S&P and P-1 by Moody’s and/or guaranteed by a Person with an Aa
rating by Moody’s, an AA rating by S&P or better rated credit, floating rate notes, other money
market instruments and letters of credit each issued by Approved Banks (provided that the same
shall cease to be a
“Cash or Cash Equivalent” if at any time any such bank shall cease to be an
Approved Bank), (v) obligations of domestic corporations, including, without limitation, commercial
paper, bonds, debentures and loan participations, each of which is rated at least AA by S&P and/or
Aa2 by Moody’s and/or guaranteed by a Person with an Aa rating by Moody’s, an AA rating by S&P or
better rated credit, (vi) obligations issued by states and local governments or their agencies,
rated at least MIG-1 by Moody’s and/or SP-1 by S&P and/or guaranteed by an irrevocable letter of
credit of an Approved Bank (provided that the same shall cease to be a




5









 







“Cash or Cash Equivalent” if
at any time any such bank shall cease to be an Approved Bank), (vii) repurchase agreements with
major banks and primary government security dealers fully secured by the U.S. Government or agency
collateral equal to or exceeding the principal amount on a daily basis and held in safekeeping, and
(viii) real estate loan pool participations, guaranteed by a Person with an AA rating given by S&P
or Aa2 rating given by Moody’s or better rated credit.




          “Closing Date” means the date on or after the Effective Date on which the conditions
set forth in Section 3.1 shall have been satisfied to the satisfaction of the Administrative Agent.




          “Code” shall mean the Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and applicable U.S. Department
of Treasury regulations issued pursuant thereto in temporary or final form.




          “Collateralized LC Exposure” has the meaning set forth in Section 9.16(c).




          “Committed Borrowing” has the meaning set forth in Section 1.3.




          “Committed Loan” means a loan made or to be made by a Bank pursuant to Section 2.1,
as well as Loans required to be made by a Bank pursuant to Section 2.16 to reimburse a Fronting
Bank for a Letter of Credit that has been drawn upon; provided that, if any such loan or
loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term “Committed Loan” shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from such subdivision, as
the case may be.




          “Commitment” means, with respect to each Bank, the sum of its Dollar Commitment and
its Alternate Currency Commitment.




          “Condo Property” means a Property owned by the Borrower or its Consolidated
Subsidiaries or Investment Affiliates, where such property is being positioned or held for sale as
condominium units.




          “Condo Property Value” means the undepreciated book value (cost basis plus
improvements) of the Condo Property.




          “Consolidated EBITDA” means, for any twelve (12) month period, net earnings (loss),
inclusive of the net incremental gains (losses) on sales of condominium units, and exclusive of net
derivative gains (losses) and gains (losses) on the dispositions of depreciable Properties, Raw
Land and other non-depreciated Properties, as well as from debt restructurings or write-ups or
forgiveness of indebtedness, and costs and expenses incurred during such period with respect to
acquisitions or mergers consummated during such period, as reflected in reports filed by Borrower
pursuant to the Securities Exchange Act of 1934, as amended, before deduction (including amounts
reported in discontinued operations), for (i) depreciation and amortization expense and other
non-cash items as determined in good faith by Borrower for such period, (ii) Interest Expense for
such period, (iii) Taxes for such period, (iv) the gains (and plus the losses) from extraordinary
items, and (v) the gains (and plus the losses) from non-recurring




6









 







items, as determined in good
faith by Borrower, for such period, all of the foregoing without duplication. In each case, amounts
shall be reasonably determined by Borrower in accordance with GAAP, except to the extent that GAAP
by its terms shall not apply with respect to the determination of non-cash and non-recurring items
and except that such net earnings (loss) shall only include Borrower’s Share of such net earnings
(loss) attributable to Consolidated Subsidiaries and shall include, without duplication, Borrower’s
Share of the net earnings (loss), inclusive of the net incremental gains (losses) on sales of
condominium units, and exclusive of net derivative gains (losses) and gains (losses) on the
dispositions of depreciable Properties, Raw Land and other non-depreciated Properties, as well as
from debt restructurings or write-ups or forgiveness of indebtedness, and costs and expenses
incurred during such period with respect to acquisitions or mergers consummated during such period,
of any Investment Affiliate before deduction (including amounts reported in discontinued
operations) for (i) depreciation and amortization expense and other non-cash items of such
Investment Affiliate as determined in good faith by Borrower for such period, (ii) Interest Expense
of such Investment Affiliate for such period, (iii) Taxes of such Investment Affiliate for such
period, (iv) the gains (and plus the losses) from extraordinary items of such Investment Affiliate,
and (v) the gains (and plus the losses) from non-recurring items of such Investment Affiliate as
determined in good faith by Borrower for such period.




          “Consolidated Subsidiary” means at any date any Person which is consolidated with
Borrower or EQR in accordance with GAAP.




          “Construction Property” means a property owned by the Borrower or its Consolidated
Subsidiaries or Investment Affiliates on which construction of improvements has commenced or been
completed (as such completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such property by the general public).




          “Construction Property Value” means the greater of (a) the EBITDA generated by a
Construction Property divided by the FMV Cap Rate (or Borrower’s Share thereof with respect to any
Construction Property owned by a Consolidated Subsidiary or an Investment Affiliate), or (b) the
undepreciated book value (cost basis plus improvements) of a Construction Property (or
Borrower’s Share thereof with respect to any Construction Property owned by a Consolidated
Subsidiary or an Investment Affiliate). A Construction Property will be valued as a Stabilized
Property following the sixth full fiscal quarter after the fiscal quarter in which such
Construction Property was first completed.




          “Contingent Obligation” as to any Person means, without duplication, (i) any
contingent obligation of such Person required to be shown on such Person’s balance sheet in
accordance with GAAP, and (ii) any obligation required to be disclosed in the footnotes to such
Person’s financial statements, guaranteeing partially or in whole any Non-Recourse Indebtedness,
lease, dividend or other obligation, exclusive of contractual indemnities (including, without
limitation, any indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other than guarantees of
completion) which have not yet been called on or quantified, of such Person or of any other Person.
The amount of any Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income guaranty, the Net
Present Value of the sum of all payments required to be made thereunder (which in the





7









 







case of an
operating income guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the Applicable Interest Rate, through (I) in the case of an interest or
interest and principal guaranty, the stated date of maturity of the obligation (and commencing on
the date interest could first be payable thereunder), or (II) in the case of an operating income
guaranty, the date through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a), an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of Borrower required to be delivered pursuant to Section 4.4
hereof. Notwithstanding anything contained herein to the contrary, guarantees of completion shall
not be deemed to be Contingent Obligations unless and until a claim for payment or performance has
been made thereunder, at which time any such guaranty of completion shall be deemed to be a
Contingent Obligation in an amount equal to any such claim. Subject to the preceding sentence, (i)
in the case of a joint and several guaranty given by such Person and another Person (but only to
the extent such guaranty is recourse, directly or indirectly to Borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that such other Person
has delivered Cash or Cash Equivalents to secure all or any part of such Person’s guaranteed
obligations and (ii) in the case of a guaranty (whether or not joint and several) of an obligation
otherwise constituting Indebtedness of such Person, the amount of such guaranty shall be deemed to
be only that amount in excess of the amount of the obligation constituting Indebtedness of such
Person. Notwithstanding anything contained herein to the contrary, (xx) “Contingent Obligations”
shall be deemed not to include guarantees of Unused Commitments or of construction loans to the
extent the same have not been drawn, and (yy) the aggregate amount of all Contingent Obligations of
any Consolidated Subsidiary or Investment Affiliate (except to the extent that any such Contingent
Obligation is recourse to the Borrower or EQR) which would otherwise exceed the total capital
contributions of the Borrower and EQR to such entity, together with the amount of any unfunded
obligations of the Borrower or EQR to
make such additional equity contributions to such entity that could be legally enforced by a
creditor of such entity shall be deemed to be equal to the amount of such capital contributions and
equity or loan commitments. All matters constituting “Contingent Obligations” shall be calculated
without duplication.




          “Credit Party” means the Administrative Agent, the Fronting Bank, the Swingline Lender
or any other Bank.




          “Credit Rating” means the rating assigned by the Rating Agencies to Borrower’s senior
unsecured long term indebtedness.




          “Customary Non-Recourse Carve-Outs” means fraud, misrepresentation, misapplication of
cash, waste, environmental claims and liabilities and other circumstances customarily excluded by
institutional lenders from exculpation provisions and/or included in separate indemnification
agreements.




          “Debt Restructuring” means a restatement of, or material change in, the amortization
or other financial terms of any Indebtedness of EQR, the Borrower or any Consolidated Subsidiary or
Investment Affiliate.





8









 








          “Debt Service” means, for any period, Interest Expense for such period plus
scheduled principal amortization (excluding any individual scheduled principal payment which
exceeds 25% of the original principal amount of an issuance of Indebtedness) for such period on all
Indebtedness of Borrower or EQR (excluding Indebtedness of any Consolidated Subsidiary or
Investment Affiliate), on a consolidated basis, plus Borrower’s Share of scheduled
principal amortization for such period on all Indebtedness of all Consolidated Subsidiaries and
Investment Affiliates for which there is no recourse to EQR or Borrower (or any Property thereof),
plus, without duplication, EQR’s and Borrower’s actual or potential liability for principal
amortization (excluding any individual scheduled principal payment which exceeds 25% of the
original principal amount of an issuance of Indebtedness) for such period on all Indebtedness of
all Consolidated Subsidiaries and Investment Affiliates that is recourse to EQR or Borrower (or any
Property thereof).




          “Default” means any condition or event which with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of Default.




          “Default Rate” has the meaning set forth in Section 2.7(d).




          “Defaulting Lender” means any Bank that (a) has failed, within three (3) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) fund any
portion of its participations in Letters of Credit or Swingline Loans, (b) has failed, within five
(5) Business Days of the date on which demand for payment is made to pay over to any Credit Party
any other amount required to be paid by it hereunder, unless, in the case of clauses (a)(i) and
(ii) above, such Bank notifies the Administrative Agent in writing that such failure is the result
of such Bank’s good faith determination that a condition precedent to funding
(specifically identified and including the particular default, if any) has not been satisfied,
(c) has notified the Borrower or any Credit Party in writing that it does not intend to comply with
any of its funding obligations under this Agreement (unless such writing indicates that such
position is based on such Bank’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a loan under this Agreement
cannot be satisfied), (d) has failed, within three (3) Business Days after request by a Credit
Party, acting in good faith and based on a reasonable belief that such Person will fail to comply
with its funding obligations, to provide a confirmation in writing from such Bank that it will
comply with its obligations to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided that such Bank shall cease to
be a Defaulting Lender pursuant to this clause (d) upon such Credit Party’s receipt of such
confirmation, or (e) has or has a direct or indirect parent company that has become the subject of
a Bankruptcy Event.




          “Designated Lender” means a special purpose corporation that (i) shall have become a
party to this Agreement pursuant to Section 9.6(d), and (ii) is not otherwise a Bank.




          “Designated Lender Notes” means promissory notes of the Borrower, substantially in the
form of Exhibit A-1 hereto, evidencing the obligation of the Borrower to repay Money Market Loans
made by Designated Lenders, and “Designated Lender Note” means any one of such promissory notes
issued under Section 9.6(d) hereof.




          “Designating Lender” shall have the meaning set forth in Section 9.6(d) hereof.





9









 








          “Designation Agreement” means a designation agreement in substantially the form of
Exhibit G attached hereto, entered into by a Bank and a Designated Lender and accepted by the
Administrative Agent.




          “Development Activity” means (a) the development or redevelopment and construction of
one or more apartment buildings by the Borrower or any of its Subsidiaries, (b) the financing by
the Borrower, EQR or any Subsidiaries or Investment Affiliates of either or both of any such
development or construction or (c) the incurrence by the Borrower, EQR or any Subsidiaries or
Investment Affiliates of either or both of any Contingent Obligations in connection with such
development or construction (other than purchase contracts for Real Property Assets which are not
payable until completion of development or construction), valued at the cost of such projects under
development and construction in the case of assets owned by the Borrower or EQR, or the Borrower’s
Share of the cost of such projects under development and construction in the case of assets owned
by Consolidated Subsidiaries or Investment Affiliates.




          “Documentation Agents” means SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION, and WELLS
FARGO BANK, NATIONAL ASSOCIATION, in their capacities as Documentation Agents hereunder, and their
permitted successors in such capacity in accordance with the terms of this Agreement.




          “Dollar Commitment” means with respect to each Bank, the amount set forth under the
name of such Bank on the signature pages hereof as its commitment for Loans and Letters of Credit
in Dollars (and, for each Bank which is an Assignee, the amount set forth in the Transfer
Supplement entered into pursuant to Section 9.6(c) as the Assignee’s Dollar Commitment), as such
amount may be reduced from time to time pursuant to Section 2.11(e) or in connection with an
assignment to an Assignee, and as such amount may be increased in connection with an assignment
from an Assignor. The initial aggregate amount of the Banks’ Dollar Commitments is $1,000,000,000.




          “Dollar Equivalent Amount” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount denominated in any
Alternate Currency, the equivalent amount thereof in Dollars as determined by the Administrative
Agent or the Fronting Bank, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent revaluation date pursuant to Section 2.20) for the
purchase of Dollars with such Alternate Currency.




          “Dollar Sublimit” means, an amount of Loans and Letters of Credit denominated in
Dollars equal to One Billion Dollars ($1,000,000,000), as the same may be decreased in accordance
with the provisions of this Agreement.




          “Dollars” and “$” mean the lawful money of the United States.




          “Domestic Lending Office” means, as to each Bank, its office located at its address in
the United States set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other office as such Bank




10









 







may
hereafter designate as its Domestic Lending Office by notice to the Borrower and the Administrative
Agent.




          “Down REIT” means a limited liability company, corporation or limited partnership in
which the only interest in such limited liability company, corporation or partnership not owned
(directly or indirectly) by Borrower shall be preference interests or preference units,
respectively, and which limited liability company, corporation or limited partnership, as the case
may be (collectively, a “Down REIT Guarantor”), has executed and delivered to the
Administrative Agent, on behalf of the Banks, (i) a Guaranty of Payment in the form attached hereto
as Exhibit H (a “Down REIT Guaranty”), (ii) all documents reasonably requested by
the Administrative Agent relating to the existence of such Down REIT Guarantor, and the authority
for and validity of such Down REIT Guaranty, including, without limitation, the organizational
documents of such Down REIT Guarantor, modified or supplemented prior to the date of such Down REIT
Guaranty, each certified to be true, correct and complete by such Down REIT Guarantor, not more
than ten (10) days prior to the date of such Down REIT Guaranty, together with a good standing
certificate from the Secretary of State (or the equivalent thereof) of the State of formation of
such Down REIT Guarantor, to be dated not more than ten (10) days prior to the date of such Down
REIT Guaranty, as well as authorizing resolutions in respect of such Down REIT Guaranty, and (iii)
an opinion of counsel with respect to such Down REIT Guarantor and Down REIT Guaranty, in form and
substance reasonably acceptable to the
Administrative Agent, with respect to due organization, existence, good standing and
authority, and validity and enforceability of such Down REIT Guaranty. In addition, for purposes
of this definition, a Down REIT Guaranty shall not be deemed to constitute Unsecured Debt of the
applicable Down REIT Guarantor.




          “Down REIT Guarantor” shall have the meaning set forth in the definition of Down REIT.




          “Down REIT Guaranty” shall have the meaning set forth in the definition of Down REIT.




          “Down REIT Guaranty Proceeds” shall have the meaning set forth in Section
9.18(a) hereof.




          “EBITDA” means, for any twelve (12) month period, net earnings (loss), exclusive of
net derivative gains (losses) and gains (losses) on the dispositions of Properties, as well as from
debt restructurings or write-ups or forgiveness of indebtedness, and costs and expenses incurred
during such period with respect to acquisitions or mergers consummated during such period, before
deduction (including amounts reported in discontinued operations) for (i) depreciation and
amortization expense and other non-cash items as determined in good faith by Borrower for such
period, (ii) Interest Expense for such period, (iii) Taxes for such period, (iv) the gains (and
plus the losses) from extraordinary items, and (v) the gains (and plus the losses) from
non-recurring items, as determined in good faith by Borrower, all of the foregoing without
duplication. In each case, amounts shall be reasonably determined by Borrower in accordance with
GAAP, except to the extent that GAAP by its terms shall not apply with respect to the determination
of non-cash and non-recurring items. EBITDA shall not be deemed to include corporate level general
and administrative expenses and other corporate expenses, such as land




11









 







holding costs, employee and
trustee stock and stock option expenses and pursuit costs write-offs, all as determined in good
faith by Borrower.




          “Effective Date” means the date this Agreement becomes effective in accordance with
Section 9.9.




          “Eligible Liabilities” has the meaning set forth in Schedule 1.1 attached hereto.




          “Environmental Affiliate” means any partnership, joint venture, trust or corporation
in which an equity interest is owned by the Borrower and/or EQR, either directly or indirectly,
and, as a result of the ownership of such equity interest, the Borrower and/or EQR may have
recourse liability for Environmental Claims against such partnership, joint venture or corporation
(or the property thereof).




          “Environmental Approvals” means any permit, license, approval, ruling, variance,
exemption or other authorization required under applicable Environmental Laws.




          “Environmental Claim” means, with respect to any Person, any notice, claim, demand or
similar communication (written or oral) by any other Person alleging potential
liability of such Person for investigatory costs, cleanup costs, governmental response costs,
natural resources damage, property damages, personal injuries, fines or penalties arising out of,
based on or resulting from (i) the presence, or release into the environment, of any Materials of
Environmental Concern at any location, whether or not owned by such Person or (ii) circumstances
forming the basis of any violation, or alleged violation, of any Environmental Law, in each case
(with respect to both (i) and (ii) above) as to which there is a reasonable possibility of an
adverse determination with respect thereto and which, if adversely determined, would have a
Material Adverse Effect.




          “Environmental Laws” means any and all federal, state, and local statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or emissions, discharges or releases
of Materials of Environmental Concern into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern or the clean up or other remediation thereof.




          “EQR” means Equity Residential, a Maryland real estate investment trust, the sole
general partner of the Borrower.




          “EQR Guaranty” means the Guaranty of Payment, dated as of the date hereof, executed by
EQR in favor of Administrative Agent and the Banks.




          “EQR 2010 Form 10-K” means EQR’s annual report on Form 10-K for 2010, as filed with
the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.





12









 








          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.




          “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 Code.




          “Euro-Dollar Borrowing” has the meaning set forth in Section 1.3.




          “Euro-Dollar Business Day” means any Business Day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London.




          “Euro-Dollar Lending Office” means, as to each Bank, its office, branch or affiliate
located at its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or
affiliate of such Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice to
the Borrower and the Administrative Agent.




          “Euro-Dollar Loan” means a Committed Loan made or to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Borrowing or Notice of Interest Rate
Election.




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




          “Euro-Dollar Reserve Percentage” means, with respect to any applicable Interest
Period, for any day that percentage (expressed as a decimal) which is in effect on such day as
prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including basic, supplemental, emergency, special and
marginal reserves) generally applicable to financial institutions regulated by the Federal Reserve
Board comparable in size and type to the Person serving as the Administrative Agent under
Regulation D of the Federal Reserve Board, in respect of “Eurocurrency liabilities”, or under any
similar or successor regulation with respect to Eurocurrency liabilities or





13









 







Eurocurrency funding
(or in respect of any other category of liabilities which include deposits by reference to which
the interest rate on Euro-Dollar Loans is determined), whether or not the Person serving as the
Administrative Agent has any Euro-Currency liabilities or such requirement otherwise in fact
applies to the Person serving as the Administrative Agent. The Euro-Dollar Rate shall be adjusted
automatically as of the effective date of each change in the Euro-Dollar Reserve Percentage.




          “Event of Default” has the meaning set forth in Section 6.1.




          “Existing Revolving Credit Agreement” has the meaning set forth in Section 3.1(e).




          “Extension Date” has the meaning set forth in Section 2.9(b).




          “Extension Fee” has the meaning set forth in Section 2.8(d).




          “Extension Notice” has the meaning set forth in Section 2.9(b).




          “Facility Fee” has the meaning set forth in Section 2.8(a).




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




          “Federal Reserve Board” means the Board of Governors of the Federal Reserve System as
constituted from time to time.




          “Fees Rule” has the meaning set forth in Schedule 1.1 attached hereto.




          “Financing Partnership” means any Subsidiary which is wholly-owned, directly or
indirectly, by Borrower or by Borrower and EQR.




          “Fiscal Quarter” means a fiscal quarter of a Fiscal Year.




          “Fiscal Year” means the fiscal year of Borrower and EQR which shall be the twelve (12)
month period ending on the last day of December in each year.




          “Fixed Charges” for any twelve (12) month period means (without duplication) the sum
of (i) Debt Service for such period, (ii) the product of the average number of apartment units
owned (directly or beneficially) by Borrower, EQR, or any wholly-owned Subsidiary of either or both
during such period and the Capital Reserve for such period, (iii) Borrower’s Share




14









 







of the aggregate
sum of the product of the average number of apartment units owned (directly or beneficially) by
each Consolidated Subsidiary (other than wholly-owned Subsidiaries of Borrower and/or EQR) and
Investment Affiliate during such period and the Capital Reserve for such period, (iv) dividends on
preferred units payable by Borrower during such period, and (v) distributions made by the Borrower
during such period to EQR for the purpose of paying dividends on preferred shares in EQR.




          “Fixed Rate Borrowing” has the meaning set forth in Section 1.3.




          “Fixed Rate Indebtedness” means all Indebtedness which accrues interest at a fixed
rate.




          “Floating Rate Indebtedness” means all Indebtedness which is not Fixed Rate
Indebtedness and which is not a Contingent Obligation or an Unused Commitment.




          “FMV Cap Rate” means 6.50%.




          “Fronting Bank” shall mean, with respect to any Letter of Credit, as applicable, Bank
of America, N.A., JPMorgan Chase Bank, N.A., or such other Bank which has notified the
Administrative Agent that it is willing to be a Fronting Bank and which is designated by Borrower
in its Notice of Borrowing as the Bank which shall issue a Letter of Credit with respect to such
Notice of Borrowing.




          “GAAP” means generally accepted accounting principles recognized as such in
codification by the Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination; provided, however, that with
respect to the financial covenants, including the related definitions, only Borrower’s Share of any
income, expense, assets and liabilities of any Consolidated Subsidiary or Investment Affiliate
shall be taken into account.




          “Governmental Acts” has the meaning set forth in Section 2.16(g).




          “Governmental Authority” means any nation or government, any federal, state, local or
other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.




          “Gross Asset Value” means, (i) the Stabilized Property Value, plus (ii) the
Non-Stabilized Property Value, plus (iii) the value of any Cash or Cash Equivalents (including Cash
or Cash Equivalents held in restricted Section 1031 accounts under the control of the Borrower or
EQR) owned by Borrower, EQR or any wholly-owned Subsidiary of either, plus (iv) the undepreciated
book value, determined in accordance with GAAP, of readily marketable Securities and Investment
Mortgages owned by the Borrower, EQR or their wholly-owned Consolidated Subsidiaries, plus (v)
Borrower’s Share of the value of any Cash or Cash Equivalents (including Cash or Cash Equivalents
held in restricted Section 1031 accounts under the control of a non-wholly owned Consolidated
Subsidiary or by an Investment Affiliate) owned by any such Consolidated Subsidiary or Investment
Affiliate, plus (vi) Borrower’s Share of the undepreciated book value, determined in accordance
with GAAP, of readily marketable






15









 







Securities and Investment Mortgages owned by any non-wholly owned
Consolidated Subsidiary or Investment Affiliate.




          “Group of Loans” means, at any time, a group of Loans consisting of (i) all Committed
Loans which are Base Rate Loans at such time, or (ii) all Euro-Dollar Loans having the same
Interest Period at such time; provided that, if a Committed Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.




          “Increase Option” has the meaning set forth in Section 2.1(b).




          “Indebtedness”, as applied to any Person (and without duplication), means (a) all
indebtedness, obligations or other liabilities of such Person for borrowed money, (b) all
indebtedness, obligations or other liabilities of such Person evidenced by Securities or other
similar instruments, (c) all reimbursement obligations, contingent or otherwise, of such Person
with respect to letters of credit actually issued for such Person’s account or upon such Person’s
application, (d) all obligations of such Person to pay the deferred and unpaid purchase price of
Property except (i) any such deferred and unpaid purchase price that constitutes an accrued expense
or trade payable, and (ii) any deferred and unpaid purchase price under a contract which, in
accordance with GAAP would not be included as a liability on the liability side of the balance
sheet of such Person, (e) all obligations in respect of Capital Leases (including ground leases) of
such Person, (f) all indebtedness, obligations or other liabilities of such Person or others
secured by a Lien on any asset of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by, or are a personal liability of such Person, in the case of items of
Indebtedness incurred under clauses (a), (b), (c) and (d) to the extent that any such items (other
than letters of credit), in accordance with GAAP, would be included as liabilities on the liability
side of the balance sheet of such Person, exclusive, however, of all accounts payable, accrued
interest and expenses, prepaid rents, security deposits, tax liabilities and dividends and
distributions declared but not yet paid. Indebtedness also includes, to the extent not otherwise
included, any obligation of Borrower or EQR, as well as Borrower’s Share of any obligation of any
Consolidated Subsidiary or Investment Affiliate, to be liable for, or to pay as obligor, guarantor
or otherwise (other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than Borrower, EQR, a Consolidated Subsidiary or an
Investment Affiliate). Indebtedness shall not include any Intracompany Indebtedness. “Intracompany
Indebtedness” means indebtedness whose obligor is Borrower, EQR, any Consolidated Subsidiary or any
Investment Affiliate and whose obligee is Borrower, EQR or any wholly-owned Consolidated
Subsidiary.




          “Indemnitee” has the meaning set forth in Section 9.3(b).




          “Interest Expense” means, for any period and without duplication, total interest
expense, whether paid, accrued or capitalized (excluding the interest component of Capital Leases,
as well as interest expense covered by an interest reserve established under a loan facility, as
well as any interest expense under any construction loan or construction activity that under GAAP
is required to be capitalized) of Borrower or EQR (excluding nonrecurring prepayment premiums or
penalties and any such interest expense accrued or capitalized on Indebtedness of




16









 







any Consolidated
Subsidiary or Investment Affiliate), including without limitation all commissions, discounts and
other fees and charges owed with respect to drawn letters of credit, amortized costs of Interest
Rate Contracts incurred on or after the Closing Date and the Facility Fees payable to the Banks in
accordance with Section 2.8, plus Borrower’s Share of accrued or paid interest with respect
to any Indebtedness of Consolidated Subsidiaries or Investment Affiliates for which there is no
recourse to EQR or Borrower, plus, without duplication, EQR’s and Borrower’s actual or
potential liability for accrued, paid or capitalized interest (excluding nonrecurring prepayment
premiums or penalties and the interest component of Capital Leases, as well as excluding interest
expense covered by an interest reserve established under a loan facility, as well as any interest
expense under any construction loan or construction activity that under GAAP is required to be
capitalized) with respect to Indebtedness of Consolidated Subsidiaries or Investment Affiliates
that is recourse to EQR or Borrower, calculated for all Fixed Rate
Indebtedness at the actual interest rate in effect with respect to all Indebtedness
outstanding as of the last day of such period and, in the case of all Floating Rate Indebtedness,
the actual rate of interest in effect with respect to such Floating Rate Indebtedness outstanding
for the period during which no Interest Rate Contract is in effect, and, during the period that an
Interest Rate Contract is in effect with respect to such Floating Rate Indebtedness, the strike
rate payable under such Interest Rate Contract if lower than the actual rate of interest.
Interest expense shall be determined including any non-cash portion of interest expense
attributable to convertible Indebtedness under ASC 470-20.




          “Interest Period” means:





     (1) with respect to each Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing specified in the Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending 1, 2, 3 or 6 months thereafter (or
such shorter period, but in no event less than 7 days, as Borrower may request, subject to
the approval of the Administrative Agent), as the Borrower may elect in the applicable
Notice of Borrowing or Notice of Interest Rate Election; provided that:




     (a) any such Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding Euro-Dollar
Business Day;




     (b) any such Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall, subject to clause
(c) below, end on the last Euro-Dollar Business Day of a calendar month; and




     (c) any such Interest Period which would otherwise end after the Maturity Date
shall end on the Maturity Date.




     (2) Intentionally Omitted.



17









 






     (3) with respect to each Money Market LIBOR Loan, the period commencing on the date of
borrowing specified in the applicable Money Market Quote Request and ending such number of
months thereafter (or for a period of less than one month but in no event less than seven
(7) days) as the Borrower may elect in accordance with Section 2.3; provided that:




     (a) any such Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;




     (b) any such Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall, subject to clause
(c) below, end on the last Euro-Dollar Business Day of a calendar month; and




     (c) any such Interest Period which would otherwise end after the Maturity Date
shall end on the Maturity Date.




     (4) with respect to each Money Market Absolute Rate Loan, the period commencing on the
date of borrowing specified in the applicable Money Market Quote Request and ending such
number of days thereafter (but not less than seven (7) days, or more than 180 days) as the
Borrower may elect in accordance with Section 2.3; provided that:




     (a) any such Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day; and




     (b) any such Interest Period which would otherwise end after the Maturity Date
shall end on the Maturity Date.



          “Interest Rate Contracts” means, collectively, interest rate swap, collar, cap or
similar agreements providing interest rate protection.




          “Investment Affiliate” means any Person in whom EQR or Borrower holds an equity
interest, directly or indirectly, other than Consolidated Subsidiaries, Military Housing Affiliates
and Securities and other passive interests.




          “Investment Grade Rating” means a rating for a Person’s senior long-term unsecured
debt, or if no such rating has been issued, a “shadow” rating, of BBB- or better from S&P or Fitch,
or a rating or “shadow” rating of Baa3 or better from Moody’s. Any such “shadow” rating shall be
evidenced by a letter from the applicable Rating Agency or by such other evidence as may be
reasonably acceptable to the Administrative Agent (as to any such other evidence, the
Administrative Agent shall present the same to, and discuss the same with, the Banks).




18









 








          “Investment Mortgages” means mortgages securing indebtedness directly or indirectly
owed to Borrower, EQR or Subsidiaries of either or both, including certificates of interest in real
estate mortgage investment conduits.




          “Invitation for Money Market Quotes” has the meaning set forth in Section 2.3(c).




          “Joint Lead Arrangers” means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner
& Smith Incorporated, and Wells Fargo Securities, LLC.




          “Joint Venture Parent” means Borrower , EQR or one or more Financing Partnerships of
Borrower which directly owns any interest in a Joint Venture Subsidiary.




          “Joint Venture Subsidiary” means any entity (other than a Financing Partnership) in
which (i) a Joint Venture Parent owns at least 20% of the economic interests and (ii) the sale or
financing of any Property owned by such Joint Venture Subsidiary is substantially controlled by a
Joint Venture Parent, subject to customary provisions set forth in the organizational documents of
such Joint Venture Subsidiary with respect to refinancings or rights of first refusal granted to
other members of such Joint Venture Subsidiary. For purposes of the preceding sentence, the sale
or financing of a Property owned by a Joint Venture Subsidiary shall be deemed to be substantially
controlled by a Joint Venture Parent if such Joint Venture Parent has the ability to exercise a
buy-sell right in the event of a disagreement regarding the sale or financing of such Property. In
addition, the relationship of a Joint Venture Parent as a tenant in common in any asset with other
tenants in common in the same asset shall be treated as if such relationship were a general
partnership for purposes of this definition. For purposes of the definition of Unencumbered Asset
Value, a Joint Venture Subsidiary shall be deemed to include any entity (other than a Financing
Partnership) in which a Qualified Joint Venture Partner owns the balance of the interests.




          “LC Exposure” has the meaning set forth in Section 9.16(c).




          “Letter(s) of Credit” has the meaning provided in Section 2.2(b).




          “Letter of Credit Collateral” has the meaning provided in Section 6.4.




          “Letter of Credit Collateral Account” has the meaning provided in Section 6.4.




          “Letter of Credit Documents” has the meaning provided in Section 2.17.




          “Letter of Credit Usage” means at any time the sum of (i) the aggregate maximum Dollar
Equivalent Amount available to be drawn under the Letters of Credit then outstanding, assuming
compliance with all requirements for drawing referred to therein, and (ii) the aggregate Dollar
Equivalent Amount of the Borrower’s unpaid obligations under this Agreement in respect of the
Letters of Credit.




          “LIBOR Auction” means a solicitation of Money Market Quotes setting forth Money Market
Margins based on the Euro-Dollar Rate pursuant to Section 2.3.








19









 








          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, or any other type of preferential arrangement, in each case
that has the effect of creating a security interest in respect of such asset. For the purposes of
this Agreement, the Borrower, EQR or any Subsidiary of either or both shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.




          “Loan” means a Base Rate Loan, a Euro-Dollar Loan, a Money Market Loan or a Swingline
Loan and “Loans” means Base Rate Loans, Euro-Dollar Loans, Money Market Loans or Swingline
Loans or any combination of the foregoing.




          “Loan Documents” means this Agreement, the Notes, the EQR Guaranty, each Qualified
Borrower Guaranty, the Letter(s) of Credit, the Letter of Credit Documents and any Down REIT
Guaranty.




          “Mandatory Cost” has the meaning set forth in Schedule 1.1 attached hereto.




          “Margin Stock” shall have the meaning provided such term in Regulation U.




          “Material Adverse Effect” means an effect resulting from any circumstance or event or
series of circumstances or events, of whatever nature (but excluding general economic conditions),
which does or could reasonably be expected to, materially and adversely, (i) impair the ability of
the Borrower and/or EQR and their Consolidated Subsidiaries, taken as a whole, to perform their
respective obligations under the Loan Documents or (ii) impair the ability of Administrative Agent
or the Banks to enforce the Loan Documents.




          “Material Plan” means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $5,000,000.




          “Materials of Environmental Concern” means and includes pollutants, contaminants,
hazardous wastes, toxic and hazardous substances, asbestos, lead, petroleum and petroleum
by-products.




          “Maturity Date” shall mean the date when all of the Obligations hereunder shall be due
and payable which shall be July 13, 2014, unless accelerated pursuant to the terms hereof or
extended pursuant to Section 2.9(b) hereof.




          “Military Housing” shall mean projects, the primary purpose of which is the
acquisition, development, construction, maintenance and operation of military family housing and
military unaccompanied housing on or near military installations of the United States of America in
collaboration with the United States of America.




          “Military Housing Affiliates” shall mean any Consolidated Subsidiary or Investment
Affiliate of the Borrower or EQR which only has an investment in Military Housing.




          “Money Market Absolute Rate” has the meaning set forth in Section 2.3.





20









 








          “Money Market Absolute Rate Loan” means a loan made or to be made by a Bank pursuant
to an Absolute Rate Auction.




          “Money Market Borrowing” has the meaning set forth in Section 1.3.




          “Money Market Lending Office” means, as to each Bank, its Domestic Lending Office or
such other office, branch or affiliate of such Bank as it may hereafter designate as its Money
Market Lending Office by notice to the Borrower and the Administrative Agent; provided that
any Bank may from time to time by notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in which case all references herein to the
Money Market Lending Office of such Bank shall be deemed to refer to either or both of such
offices, as the context may require.




          “Money Market LIBOR Loan” means a loan made or to be made by a Bank pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant to Article VIII).




          “Money Market Loan” means a Money Market LIBOR Loan or a Money Market Absolute Rate
Loan.




          “Money Market Margin” has the meaning set forth in Section 2.3(d)(2).




          “Money Market Quote” means an offer by a Bank to make a Money Market Loan in
accordance with Section 2.3.




          “Money Market Quote Request” shall have the meaning set forth in Section 2.3(b).




          “Moody’s” means Moody’s Investors Service, Inc. or any successor thereto.




          “Multiemployer Plan” means at any time an employee pension benefit 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 five plan years made
contributions, including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.




          “Multifamily Residential Property Mortgages” means Investment Mortgages issued by any
Person engaged primarily in the business of developing, owning, and managing multifamily
residential property.




          “Multifamily Residential Property Partnership Interests” means partnership or joint
venture interests, or common or preferred stock, or membership, trust or other equity interests
issued by any Person engaged primarily in the business of developing, owning, and managing
multifamily residential property, but excluding Securities.




          “Negative Pledge” means, with respect to any Property, any covenant, condition, or
other restriction entered into by the owner of such Property or directly binding on such Property
which prohibits or limits the creation or assumption of any Lien upon such Property to





21









 







secure any
or all of the Obligations; provided, however, that such term shall not include (a) any
covenant, condition or restriction contained in any ground lease from a Governmental
Authority, or (b) any financial covenant (such as a limitation on secured indebtedness) given for
the benefit of any Person that may be violated by the granting of any Lien on any Property to
secure any or all of the Obligations.




          “Net Income” means, for any period, the net earnings (or loss) after Taxes of the
Borrower, on a consolidated basis, for such period calculated in conformity with GAAP.




          “Net Present Value” shall mean, as to a specified or ascertainable dollar amount, the
present value, as of the date of calculation of any such amount, using a discount rate equal to the
Base Rate in effect as of the date of such calculation.




          “Non-Multifamily Residential Property” means Property which is not (i) used for lease,
operation or use as a multifamily residential property, (ii) Unimproved Assets or Raw Land, (iii)
Securities, (iv) Multifamily Residential Property Mortgages, or (v) Multifamily Residential
Property Partnership Interests.




          “Non-Recourse Indebtedness” means Indebtedness with respect to which recourse for
payment is limited to (i) specific assets related to a particular Property or group of Properties
encumbered by a Lien securing such Indebtedness or (ii) any Subsidiary or Investment Affiliate
(provided that if a Subsidiary or Investment Affiliate is a partnership, there is no recourse to
Borrower or EQR as a general partner of such partnership); provided, however, that personal
recourse of Borrower or EQR for any such Indebtedness for Customary Non-Recourse Carve-Outs in
non-recourse financing of real estate shall not, by itself, prevent such Indebtedness from being
characterized as Non-Recourse Indebtedness.




          “Non-Stabilized Property” means any Property owned or leased by Borrower, EQR, a
Consolidated Subsidiary or an Investment Affiliate that is not a Stabilized Property.




          “Non-Stabilized Property Value” means, the sum of (i) the aggregate Acquisition
Property Value, (ii) the aggregate Construction Property Value, (iii) the aggregate Redevelopment
Property Value, (iv) the aggregate Condo Property Value, (v) the aggregate value of any Acquisition
Property that was classified as a “Non-Stabilized Property” as of March 31, 2011, valued for a
period of six fiscal quarters at the greater of (1) the Property EBITDA divided by FMV Cap Rate
(or Borrower’s Share thereof with respect to any such Non-Stabilized Property owned by a
Consolidated Subsidiary or an Investment Affiliate), and (2) undepreciated book value (cost basis
plus improvements) (or Borrower’s Share thereof with respect to any such Non-Stabilized Property
owned by a Consolidated Subsidiary or an Investment Affiliate) and thereafter shall be valued as a
Stabilized Property, and (vi) with respect to Raw Land or any other Non-Stabilized Property (other
than the Non-Stabilized Properties described under clauses (i) through (v)), the aggregate
undepreciated book value (cost basis plus improvements), determined in accordance with GAAP of such
Non-Stabilized Property (or Borrower’s Share thereof with respect to any Non-Stabilized Property
owned by a Consolidated Subsidiary or an Investment Affiliate). All such Acquisition Properties
described under clause (v) shall be valued as a Stabilized Property following the sixth full fiscal
quarter after the date of this Agreement.





22











 





          “Notes” means promissory notes of the Borrower or any Qualified Borrower,
substantially in the form of Exhibits A-1, A-2 and A-3 hereto, evidencing
the obligation of the Borrower or any Qualified Borrower to repay the Loans, and “Note”
means any one of such promissory notes issued hereunder.




          “Notice of Borrowing” means a notice substantially in the form of Exhibit C
attached hereto and made a part hereof.




          “Notice of Interest Rate Election” has the meaning set forth in Section 2.6.




          “Obligations” means all obligations, liabilities, indemnity obligations and
Indebtedness of every nature of the Borrower, from time to time owing to Administrative Agent or
any Bank under or in connection with this Agreement or any other Loan Document.




          “Parent” means, with respect to any Bank, any Person controlling such Bank.




          “Participant” has the meaning set forth in Section 9.6(b).




          “Participating Member State” has the meaning set forth in Schedule 1.1 attached
hereto.




          “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.




          “Period Fraction” means, with respect to any period of time, a fraction, the numerator
of which is the actual number of days in such period, and the denominator of which is three hundred
and sixty (360).




          “Permitted Holdings” means Development Activity, Raw Land, Securities, Non-Multifamily
Residential Property, Investment Mortgages, and Investment Affiliates.




          “Permitted Liens” means:





     (a) Liens for Taxes, assessments or other governmental charges not yet due and
payable or which are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted in accordance with the terms hereof;




     (b) statutory liens of carriers, warehousemen, mechanics, materialmen and other
similar liens imposed by law, which are incurred in the ordinary course of business
for sums not more than sixty (60) days delinquent or which are being contested in
good faith in accordance with the terms hereof;




     (c) deposits made in the ordinary course of business in connection with
worker’s compensation, unemployment insurance and other social security legislation
or to secure liabilities to insurance carriers;



23









 






     (d) utility deposits and other deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, purchase contracts,
construction contracts, governmental contracts, statutory obligations, surety bonds,
performance bonds and other obligations of a like nature incurred in the ordinary
course of business;




     (e) Liens for purchase money obligations for equipment (or Liens to secure
Indebtedness incurred within 90 days after the purchase of any equipment to pay all
or a portion of the purchase price thereof or to secure Indebtedness incurred solely
for the purpose of financing the acquisition of any such equipment, or extensions,
renewals, or replacements of any of the foregoing for the same or lesser amount);
provided that (i) the Indebtedness secured by any such Lien does not exceed
the purchase price of such equipment, (ii) any such Lien encumbers only the asset so
purchased and the proceeds upon sale, disposition, loss or destruction thereof, and
(iii) such Lien, after giving effect to the Indebtedness secured thereby, does not
give rise to an Event of Default;




     (f) easements, rights-of-way, zoning restrictions, other similar charges or
encumbrances and all other items listed on Schedule B to the owner’s title insurance
policies, except in connection with any Indebtedness, for any of the Real Property
Assets, so long as the foregoing do not interfere in any material respect with the
use or ordinary conduct of the business of the owner and do not diminish in any
material respect the value of the Property to which it is attached or for which it
is listed;




     (g) Liens and judgments (i) which have been or will be bonded (and the Lien
thereby removed other than on any cash or securities serving as security for such
bond) or released of record within thirty (30) days after the date such Lien or
judgment is entered or filed against EQR, Borrower, or any Subsidiary, or (ii) which
are being contested in good faith by appropriate proceedings for review and in
respect of which there shall have been secured a subsisting stay of execution
pending such appeal or proceedings;




     (h) Liens on Property of the Borrower, EQR or the Subsidiaries of either or
both (other than Qualifying Unencumbered Property) securing Indebtedness which may
be incurred or remain outstanding without resulting in an Event of Default
hereunder; and




     (i) Liens in favor of the Borrower, EQR or a Consolidated Subsidiary against
any asset of Borrower, any Consolidated Subsidiary or any Investment Affiliate.



               “Person” means an individual, a corporation, a partnership, an association, a trust, a
limited liability company or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.








24









 








          “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 Code and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding
five 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.




          “principal financial center” means, when used in reference to an Alternate Currency,
(a) in the case of British Pounds Sterling, London, England, and (b) in the case of Euros,
Frankfurt am Main, Germany.




          “Pro Rata Share” means, with respect to any Bank, as applicable, (a) a fraction
(expressed as a percentage), the numerator of which shall be the amount of such Bank’s Dollar
Commitment and the denominator of which shall be the aggregate amount of all of the Banks’ Dollar
Commitments, (b) a fraction (expressed as a percentage), the numerator of which shall be the amount
of such Bank’s Alternate Currency Commitment and the denominator of which shall be the aggregate
amount of all of the applicable Banks’ Alternate Currency Commitments, or (c) a fraction (expressed
as a percentage), the numerator of which shall be such Bank’s Commitment and the denominator of
which shall be the aggregate amount of all of the Banks’ Commitments, in each case as adjusted from
time to time in accordance with the provisions of this Agreement.




          “Property” means, with respect to any Person, any real or personal property, building,
facility, structure, equipment or unit, or other asset owned or leased by such Person.




          “Public Debt” shall have the meaning set forth in Section 9.18(a) hereof.




          “Qualified Borrower” means a foreign or domestic limited partnership, limited
liability company or other business entity duly organized under the laws of its jurisdiction of
formation of which the Borrower (or a Person that is owned and controlled by the Borrower) is the
sole general partner or managing member, the Indebtedness of which, in all cases, can be guaranteed
by the Borrower pursuant to the provisions of the Borrower’s organizational documents pursuant to
the Qualified Borrower Guaranty, and with respect to which a Qualified Borrower Guaranty has been
executed and delivered.




          “Qualified Borrower Guaranty” means a full and unconditional guaranty of payment in
the form of Exhibit I attached hereto, enforceable against Borrower for the payment of a
Qualified Borrower’s debt or obligation to the Banks.




          “Qualified Institution” shall have the meaning set forth in Section 9.6(c)
hereof.




          “Qualified Joint Venture Partner” means (a) pension funds, insurance companies, banks,
investment banks or similar institutional entities, each with significant experience in making
investments in commercial real estate, and (b) commercial real estate companies of similar quality
and experience.




          “Qualifying Unencumbered Property” means any Property (including Raw Land and Property
with Development Activity) from time to time which is owned directly or indirectly







25









 







in fee (or
ground leasehold) by Borrower, EQR, a Financing Partnership or a Joint Venture Subsidiary, which
(i) is Raw Land, Construction Property, Redevelopment Property, Condo Property or an operating
multifamily residential property, (ii) is not subject (nor are any equity interests in such
Property that are owned directly or indirectly by Borrower or EQR subject) to a Lien which secures
Indebtedness of any Person other than Permitted Liens, (iii) is not subject (nor are any equity
interests in such Property that are owned directly or indirectly by Borrower or EQR subject) to any
Negative Pledge, and (iv) in the case of any Property that is owned by a Subsidiary of the Borrower
or EQR, is owned by a Subsidiary that does not have any outstanding Unsecured Debt (other than
those items of Indebtedness set forth in clauses (d) or (e) of the definition of Indebtedness, or
any Contingent Obligation except for guarantees for borrowed money). In addition, in the case of
any Property that is owned by a Subsidiary of Borrower and/or EQR, if such Subsidiary shall
commence any proceeding under any bankruptcy, insolvency or similar law, or any such involuntary
case shall be commenced against it and shall remain undismissed and unstayed for a period of 90
days, then, simultaneously with the occurrence of such conditions, such Property shall no longer
constitute a Qualifying Unencumbered Property. Notwithstanding the foregoing, for the purposes of
this definition, a Property shall be deemed to be wholly-owned by Borrower if such Property shall
be owned by a Down REIT or a wholly-owned Subsidiary of such Down REIT.




          “Rating Agencies” means, collectively, S&P, Moody’s and Fitch Ratings Inc.




          “Raw Land” means Real Property Assets upon which no material improvements have been
commenced.




          “Real Property Assets” means, as of any time, the real property assets (including
interests in participating mortgages in which the Borrower’s interest therein is characterized as
equity according to GAAP) owned directly or indirectly by the Borrower, EQR and the Consolidated
Subsidiaries of either or both at such time.




          “Recourse Debt” shall mean Indebtedness that is not Non-Recourse Indebtedness.




          “Redevelopment Property” means a property (other than a Condo Property) owned by the
Borrower or its Consolidated Subsidiaries or Investment Affiliates where the existing building or
other improvements or a portion thereof are undergoing renovation and redevelopment that will
either (a) disrupt the occupancy of at least thirty percent (30%) of the square footage of such
property or (b) temporarily reduce the EBITDA attributable to such property by more than thirty
percent (30%) as compared to the immediately preceding comparable prior period.




          “Redevelopment Property Value” means the greater of (a) the EBITDA generated by a
Redevelopment Property for the quarter immediately prior to the commencement of the redevelopment
divided by the FMV Cap Rate (or Borrower’s Share thereof with respect to any Redevelopment Property
owned by a Consolidated Subsidiary or an Investment Affiliate), and (b)
the undepreciated book value (cost basis plus improvements) of such Redevelopment Property (or
Borrower’s Share thereof with respect to any Redevelopment Property owned by a Consolidated
Subsidiary or an Investment Affiliate). A Redevelopment Property shall be valued






26









 







as a Stabilized
Property following the sixth full fiscal quarter after the fiscal quarter in which substantial
completion of the redevelopment occurred.




          “Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time
to time.




          “Required Banks” means at any time Banks having at least 51% of the aggregate amount
of the Commitments or, if the Commitments shall have been terminated, holding Notes evidencing at
least 51% of the aggregate unpaid principal amount of the Loans (provided, that in the case of
Swingline Loans, the amount of each Bank’s funded participation interest in such Swingline Loans
shall be considered for purposes hereof as if it were a direct loan and not a participation
interest, and the aggregate amount of Swingline Loans owing to the Swingline Lender shall be
considered for purposes hereof as reduced by the amount of such funded participation interests).




          “S&P” means Standard & Poor’s Ratings Services, a division of Standard & Poor’s
Financial Services LLC business, or any successor thereto.




          “Secured Debt” means Indebtedness of EQR and Borrower (excluding Indebtedness of
Consolidated Subsidiaries or Investment Affiliates), and Borrower’s Share of any Indebtedness of
any Consolidated Subsidiary or Investment Affiliate, (i) the payment of which is secured by a Lien
on any Property owned or leased by EQR, Borrower, or any Consolidated Subsidiary or Investment
Affiliate of either or both, or (ii) which is unsecured Indebtedness of any Consolidated Subsidiary
or Investment Affiliate of Borrower or EQR, which Consolidated Subsidiary or Investment Affiliate
is not a guarantor of the Obligations and which Indebtedness is not recourse to the Borrower or EQR
(other than for Customary Non-Recourse Carve-Outs), or (iii) which is Unsecured Tax Exempt
Indebtedness.




          “Securities” means any stock, partnership interests, shares, shares of beneficial
interest, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as “securities,” or any certificates of interest, shares, or participations in
temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, all of which shall be passive investments.




          “Sharing Event” means (i) the occurrence of an Event of Default with respect to the
Borrower or EQR under clauses (f) or (g) of Section 6.1, or (ii) the acceleration of the Loans
pursuant to Article VI.




          “Solvent” means, with respect to any Person, that the fair saleable value of such
Person’s assets exceeds the Indebtedness of such Person.




          “Special Deposits” has the meaning set forth in Schedule 1.1 attached hereto.




          “Spot Rate” means the rate determined by the Administrative Agent or the Fronting
Bank, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate
for the purchase by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two (2)





27









 







Business Days prior
to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the Fronting Bank may obtain such spot rate from another financial
institution designated by the Administrative Agent or the Fronting Bank if the Person acting in
such capacity does not have as of the date of determination a spot buying rate for any such
currency; and provided further that the Fronting Bank may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Alternate Currency Letter of
Credit.




          “Stabilized Property” means all Properties except (i) any Acquisition Property,
Construction Property or Redevelopment Property until such Property has become a Stabilized
Property in accordance with the definitions of Acquisition Property Value, Construction Property
Value and Redevelopment Property Value, (ii) any Property described in clause (v) of the definition
of Non-Stabilized Property Value until such Property has become a Stabilized Property in accordance
with such definition, and (iii) any Condo Property.




          “Stabilized Property Value” means the EBITDA generated by a Stabilized Property
divided by the FMV Cap Rate (or Borrower’s Share thereof with respect to any Stabilized Property
owned by a Consolidated Subsidiary or an Investment Affiliate). Any Stabilized Property which
generates negative EBITDA will have a Stabilized Property Value of zero.




          “Subsidiary” means any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or indirectly owned by the
Borrower and/or EQR.




          “Swingline Borrowing” has the meaning set forth in Section 1.3.




          “Swingline Commitment” has the meaning set forth in Section 2.18(a).




          “Swingline Lender” means Bank of America, N.A., in its capacity as Swingline Lender
hereunder, and its permitted successors in such capacity in accordance with the terms of this
Agreement.




          “Swingline Loan” means a loan made or to be made by the Swingline Lender pursuant to
Section 2.18.




          “Syndication Agent” shall mean JPMorgan Chase Bank, N.A., in its capacity as
Syndication Agent hereunder, and its permitted successors in such capacity in accordance with the
terms of this Agreement.




          “Taxes” means all federal, state, local and foreign income and gross receipts taxes.




          “Term” has the meaning set forth in Section 2.9.




          “Termination Event” shall mean (i) a “reportable event”, as such term is described in
Section 4043 of ERISA (other than a “reportable event” not subject to the provision for 30-day
notice to the PBGC), or an event described in Section 4062(e) of ERISA, (ii) the withdrawal by





28









 







any
member of the ERISA Group from a Multiemployer Plan during a plan year in which it is a
“substantial employer” (as defined in Section 4001(a)(2) of ERISA), or the incurrence of liability
by any member of the ERISA Group under Section 4064 of ERISA upon the termination of a
Multiemployer Plan, (iii) the filing of a notice of intent to terminate any Plan under Section 4041
of ERISA, other than in a standard termination within the meaning of Section 4041 of ERISA, or the
treatment of a Plan amendment as a distress termination under Section 4041 of ERISA, (iv) the
institution by the PBGC of proceedings to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or cause a trustee to be appointed to administer, any
Plan or (v) any other event or condition that might reasonably constitute grounds for the
termination of, or the appointment of a trustee to administer, any Plan or the imposition of any
liability or encumbrance or Lien on the Real Property Assets or any member of the ERISA Group under
ERISA.




          “Unencumbered Asset Value” means the sum of (i) Stabilized Property Value of all
Qualifying Unencumbered Properties which are Stabilized Properties, (ii) Non-Stabilized Property
Value of all Qualifying Unencumbered Properties which are Non-Stabilized Properties, (iii) the
value of any Cash or Cash Equivalent (including Cash or Cash Equivalents held in restricted Section
1031 accounts under the control of the Borrower) owned by Borrower, EQR or any wholly-owned
Subsidiary of either, and (iv) the undepreciated book value, determined in accordance with GAAP, of
readily marketable Securities and Investment Mortgages owned by the Borrower, EQR or their
wholly-owned Subsidiaries not subject to any Lien, plus (v) Borrower’s Share of the value of any
Cash or Cash Equivalents (including Cash or Cash Equivalents held in restricted Section 1031
accounts under the control of a non-wholly owned Consolidated Subsidiary or by an Investment
Affiliate) owned by any such Consolidated Subsidiary or Investment Affiliate, plus (vi) Borrower’s
Share of the undepreciated book value, determined in accordance with GAAP, of readily marketable
Securities and Investment Mortgages owned by any non-wholly owned Consolidated Subsidiary or
Investment Affiliate, provided, however, that the aggregate value of those items set forth in
clauses (iv) and (vi) shall not exceed thirty percent (30%) of Unencumbered Asset Value.




          “Unimproved Assets” means Real Property Assets, other than Raw Land, upon which no
material improvements have been completed which completion is evidenced by a certificate of
occupancy or its equivalent and is less than 90% leased in the aggregate (based upon number of
units).




          “United States” means the United States of America, including the fifty states and the
District of Columbia.




          “Unrestricted Cash or Cash Equivalents” means Cash and Cash Equivalents owned by
Borrower, and Borrower’s Share of any Cash and Cash Equivalent owned by any Consolidated Subsidiary
or Investment Affiliate, that are not subject to any pledge, lien or control agreement, less (i)
$35,000,000, (ii) amounts normally and customarily set aside by Borrower for operating, capital and
interest reserves, and (iii) amounts placed with third parties as deposits or security for
contractual obligations (notwithstanding the foregoing, however, cash up to $250,000,000 held in
escrow in connection with the completion of Code Section 1031 “like-kind” exchanges shall be deemed
to be Unrestricted Cash and Cash Equivalents for purposes hereof).





29









 








          “Unsecured Debt” means Indebtedness of EQR, on a consolidated basis, which is not
Secured Debt.




          “Unused Commitments” shall mean an amount equal to all unadvanced funds (other than
unadvanced funds in connection with any construction loan) which any third party is obligated to
advance to Borrower or another Person or otherwise pursuant to any loan document, written
instrument or otherwise.




     Section 1.2 Accounting Terms and Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP applied on a basis consistent (except for changes concurred in by the
Borrower’s independent public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the Administrative Agent;
provided that for purposes of references to the financial results and information of “EQR, on a
consolidated basis,” EQR shall be deemed to own one hundred percent (100%) of the partnership
interests in Borrower; and provided further that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article V to eliminate the effect of any change
in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article V for such purpose), then the Borrower’s compliance
with such covenant shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is
amended in a manner reasonably satisfactory to the Borrower and the Required Banks.



     Section 1.3 Types of Borrowings. The term “Borrowing” denotes the aggregation of
Loans of one or more Banks to be made to the Borrower pursuant to Article II on the same date, all
of which Loans are of the same type (subject to Article VIII) and, except in the case of Base Rate
Loans and Swingline Loans, have the same initial Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of Loans comprising such Borrowing
(e.g., a “Fixed Rate Borrowing” is a Euro-Dollar Borrowing or a Money Market Borrowing
(excluding any such Borrowing consisting of Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Article VIII), and a “Euro-Dollar Borrowing” is a Borrowing comprised of
Euro-Dollar Loans and an “Alternate Currency Borrowing” is a Borrowing comprised of
Euro-Dollar Loans denominated in an Alternate Currency) or by
reference to the provisions of Article II under which participation therein is determined (i.e., a
“Committed Borrowing” is a Borrowing under Section 2.1 in which all Banks participate in
proportion to their Commitments, while a “Money Market Borrowing” is a Borrowing under
Section 2.3 in which a Bank’s share is determined on the basis of its bid in accordance therewith,
and a “Swingline Borrowing” is a Borrowing under Section 2.18 in which only the Swingline
Lender participates (subject to the provisions of said Section 2.18)).



ARTICLE II




THE CREDITS



     Section 2.1 Commitments to Lend.



30









 





          (a) Each Bank severally agrees, on the terms and conditions set forth in this Agreement, (a)
to make Committed Loans to the Borrower or to any Qualified Borrower and participate in Letters of
Credit issued by the Fronting Bank on behalf of the Borrower or the Qualified Borrowers pursuant to
this Article from time to time during the term hereof in amounts such that the aggregate principal
amount of Committed Loans made by such Bank plus such Bank’s Pro Rata Share of Swingline Loans by
such Bank at any one time outstanding together with such Bank’s Pro Rata Share of the Letter of
Credit Usage shall not exceed the Dollar Equivalent Amount of its Commitment, and (b) in
furtherance and clarification of the foregoing, as to Banks with an Alternate Currency Commitment
only, to participate in Alternate Currency Letters of Credit issued by the Fronting Bank on behalf
of Borrower or the Qualified Borrowers pursuant to this Article and to make Euro-Dollar Loans to
Borrower and to the Qualified Borrowers denominated in any Alternate Currency (provided (i) such
Alternate Currency is readily available to such Banks and is freely transferable and convertible to
Dollars, and (ii) the Reuters Monitor Money Rates Service (or any successor thereto) reports a
London Interbank Offered Rate for such Alternate Currency relating to the applicable Interest
Period, in an aggregate principal Dollar Equivalent Amount not to exceed such Bank’s Alternate
Currency Commitment. Each Borrowing outstanding under this Section 2.1 shall be in an aggregate
principal amount the Dollar Equivalent Amount of which is $3,000,000, or an integral multiple of
$100,000 in excess thereof (except that any such Borrowing may be in the aggregate amount available
in accordance with Section 3.2(c), or in any amount required to reimburse the Fronting Bank for any
drawing under any Letter of Credit or to repay the Swingline Lender the amount of any Swingline
Loan) and, other than with respect to Money Market Loans and Swingline Loans, shall be made from
the several Banks ratably in proportion to their respective Commitments. In no event shall (i) the
aggregate Dollar Equivalent Amount of Loans outstanding at any time, plus outstanding Dollar
Equivalent Amount of the Letter of Credit Usage, exceed $1,250,000,000 (the “Facility
Amount”), or (ii) the aggregate Dollar Equivalent Amount of Loans denominated in an Alternate
Currency plus the outstanding aggregate Dollar Equivalent Amount of the Letter of Credit Usage for
Alternate Currency Letters of Credit exceed the Alternate Currency Sublimit, with, in the case of
both clauses (i) and (ii), Loans denominated in Alternate Currencies and Letter of Credit Usage for
Alternate Currency Letters of Credit being marked to market monthly on the last Business Day of
each month and immediately prior to each Borrowing. Notwithstanding any other provision of this
Agreement to the contrary, each Borrowing
denominated in Dollars shall be deemed to use the Dollar Commitments to the extent the Dollar
Sublimit would not be exceeded thereby, and to use the Alternate Currency Commitments if such
Alternate Currency Commitments are available in the event that the Dollar Commitments would be so
exceeded. Subject to the limitations set forth herein, any amounts repaid may be reborrowed.




          (b) Optional Increase in Commitments. At any time prior to the Maturity Date, provided
no Event of Default shall have occurred and then be continuing, the Borrower may, if it so elects,
increase the aggregate amount of the Dollar Commitments and/or Alternate Currency Commitments
(subject to proviso (ii) in the next sentence), on either a term or a revolving basis, either by
designating an Approved Bank not theretofore a Bank to become a Bank (such designation to be
effective only with the prior written consent of the Administrative Agent, which consent will not
be unreasonably withheld) and/or by agreeing with an existing Bank or Banks that such Bank’s
Commitment (or such Banks’ Commitments) shall be increased. Upon execution and delivery by the
Borrower and any such Bank or other financial institution of an




31









 







instrument in form reasonably
satisfactory to the Administrative Agent, such existing Bank shall have a Commitment as therein set
forth or such Approved Bank shall become a Bank with a Commitment as therein set forth and all the
rights and obligations of a Bank with such a Commitment hereunder; provided that:





          (i) the Borrower shall provide prompt notice of such increase to the Administrative
Agent, who shall promptly notify the Banks; and




          (ii) the amount of such increase does not cause the aggregate Commitments to exceed
$1,750,000,000, nor the Alternate Currency Commitments to exceed $500,000,000.


Upon any increase in the aggregate amount of the Commitments pursuant to this Section 2.1(b),
within five Business Days (in the case of any Base Rate Loans then outstanding) or at the end of
the then current Interest Period with respect thereto (in the case of any Euro-Dollar Loans then
outstanding), as applicable, each Bank’s Pro Rata Share shall be recalculated to reflect such
increase in the Commitments and the outstanding principal balance of the Committed Loans shall be
reallocated among the Banks such that the outstanding principal amount of Committed Loans owed to
each Bank shall be equal to such Bank’s Pro Rata Share (as recalculated). All payments, repayments
and other disbursements of funds by the Administrative Agent to Banks shall thereupon and, at all
times thereafter, be made in accordance with each Bank’s recalculated Pro Rata Share.




     Section 2.2 Notice of Borrowing.



          (a) The Borrower shall give Administrative Agent notice not later than 10:00 a.m. (Dallas
time) (x) one Business Day before each Base Rate Borrowing, (y) three Euro-Dollar Business Days
before each Euro-Dollar Borrowing, or (z) four (4) Business Days before each Euro-Dollar Borrowing
denominated in an Alternate Currency, specifying:





          (i) the date of such Borrowing, which shall be a Business Day in the case of a Base
Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,




          (ii) the aggregate amount of such Borrowing,




          (iii) whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, and if Euro-Dollar Loans are requested other than in Dollars, the type
and amount of the Alternate Currency being requested,




          (iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest Period, and




          (v) if such Borrowing is to be made by a Qualified Borrower, the identity of such
Qualified Borrower.



32









 





          (b) Borrower shall give the Administrative Agent, and the designated Fronting Bank, written
notice in the event that it desires to have standby letters of credit (each, a “Letter of
Credit”) issued, or to have Letters of Credit issued on behalf of a Consolidated Subsidiary,
Qualified Borrower or Investment Affiliate, hereunder no later than 10:00 a.m., Dallas time, at
least four (4) Business Days prior to the date of such issuance. Each such notice shall specify
(i) if Alternate Currency is requested, the type of the Alternate Currency being requested, (ii)
the designated Fronting Bank, (iii) the aggregate amount of the requested Letters of Credit, (iv)
the individual amount of each requested Letter of Credit and the number of Letters of Credit to be
issued, (v) the date of such issuance (which shall be a Business Day), (vi) the name and address of
the beneficiary, (vii) the expiration date of the Letter of Credit (which in no event shall be
later than twelve (12) months after the Maturity Date), (viii) the purpose and circumstances for
which such Letter of Credit is being issued and (ix) the terms upon which each such Letter of
Credit may be drawn upon. If Borrower shall desire to have any Letter of Credit issued on behalf
of an Investment Affiliate, then, upon the reasonable request of any Bank or the Administrative
Agent, Borrower shall deliver to the Administrative Agent any information with respect to such
Investment Affiliate reasonably required to comply with the provisions of Section 9.19. Each such
notice may be revoked telephonically by the Borrower to the applicable Fronting Bank and the
Administrative Agent any time prior to the date of issuance of the Letter of Credit by the
applicable Fronting Bank, provided such revocation is confirmed in writing by the Borrower to the
Fronting Bank and the Administrative Agent within one (1) Business Day by facsimile.
Notwithstanding anything contained herein to the contrary, the Borrower shall complete and deliver
to the Fronting Bank any required documentation in connection with any requested Letter of Credit
no later than two (2) Business Days prior to the issuance thereof. No later than 10:00 a.m., Dallas
time, on the date that is four (4) Business Days prior to the date of issuance, the Borrower shall
specify a precise description of the documents and the verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit, which if presented by such beneficiary prior
to the expiration date of the Letter of Credit would require the Fronting Bank to make a payment
under the Letter of Credit; provided, that Fronting Bank may, in its
reasonable judgment, require changes in any such documents and certificates only in conformity
with changes in customary and commercially reasonable practice or law and, provided
further, that no Letter of Credit shall require payment against a conforming draft to be
made thereunder prior to the third Business Day following the date that such draft is presented if
such presentation is made later than 10:00 A.M. Dallas time (except that if the beneficiary of any
Letter of Credit requests at the time of the issuance of its Letter of Credit that payment be made
on the same Business Day against a conforming draft, such beneficiary shall be entitled to such a
same day draw, provided such draft is presented to the applicable Fronting Bank no later than 10:00
A.M. Dallas time and provided further the Borrower shall have requested to the Fronting Bank and
the Administrative Agent that such beneficiary shall be entitled to a same day draw). In
determining whether to pay on any Letter of Credit, the Fronting Bank shall be responsible only to
determine that the documents and certificates required to be delivered under the Letter of Credit
have
been delivered and that they comply on their face with the requirements of that Letter of
Credit. The Administrative Agent shall provide each of the Banks, quarterly, a summary of all
outstanding Letters of Credit.




     Section 2.3 Money Market Borrowings.



33









 





          (a) The Money Market Option. From time to time during the Term, and provided that at
such time the Borrower maintains an Investment Grade Rating from either S&P or Moody’s, the
Borrower may, as set forth in this Section 2.3, request the Banks during the Term to make offers to
make Money Market Loans in Dollars only to the Borrower, not to exceed, at such time, the lesser of
(i) fifty percent (50%) of the aggregate Commitments, and (ii) the aggregate Commitments less all
Loans and Letter of Credit Usage then outstanding. Subject to the provisions of this Agreement,
the Borrower may repay any outstanding Money Market Loan on any day which is a Euro-Dollar Business
Day and any amounts so repaid may be reborrowed, up to the amount available under this Section 2.3
at the time of such Borrowing, until the Business Day next preceding the Maturity Date. The Banks
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 2.3. It is hereby
acknowledged and agreed by the Borrower, the Administrative Agent and all the Banks party hereto
that on the Closing Date, the Money Market Loans previously made by JPMorgan Chase Bank and U.S.
Bank National Association under the Existing Revolving Credit Agreement, and more particularly set
forth on Schedule 2.3 hereto, shall be transferred to this Agreement and shall be deemed to
be Money Market Loans hereunder.




          (b) Money Market Quote Request. When the Borrower wishes to request offers to make
Money Market Loans under this Section, it shall transmit to the Administrative Agent by facsimile
transmission a request substantially in the form of Exhibit B hereto (a “Money Market
Quote Request”) so as to be received not later than 10:30 A.M. (Dallas time) on (x) the fifth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Business Day next preceding the date of Borrowing proposed therein, in the case
of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be effective) specifying:





     1. the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of a LIBOR Auction or a Business Day in the case of an Absolute Rate Auction,




     2. the aggregate amount of such Borrowing, which shall be $3,000,000 or a larger
multiple of $100,000,




     3. the duration of the Interest Period applicable thereto (which shall not be less than
7 days or more than 180 days), subject to the provisions of the definition of Interest
Period, and




     4. whether the Money Market Quotes requested are to set forth a Money Market Margin or
a Money Market Absolute Rate.


The Borrower may request offers to make Money Market Loans for more than one Interest Period in a
single Money Market Quote Request. No Money Market Quote Request shall be given within five
Euro-Dollar Business Days (or such other number of days as the Borrower and the Administrative
Agent may agree) of any other Money Market Quote Request. Together with





34









 







the delivery of each Money
Market Quote Request, Borrower shall pay to the Administrative Agent, a fee equal to $2,500.




          (c) Invitation for Money Market Quotes. Promptly upon receipt of a Money Market Quote
Request, the Administrative Agent shall send to the Banks by facsimile or electronic transmission a
copy thereof, which shall constitute an invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to which such Money Market Quote Request
relates in accordance with this Section (an “Invitation for Money Market Quotes”).




          (d) Submission and Contents of Money Market Quotes.





     1. Each Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be submitted to the
Administrative Agent by facsimile transmission at its offices specified in or pursuant to
Section 9.1 not later than (x) 2:00 P.M. (Dallas time) on the fourth Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M.
(Dallas time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the Administrative Agent
shall have mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided that Money Market Quotes submitted
by the Bank
serving as the Administrative Agent (or any affiliate of the Bank serving as the
Administrative Agent) in the capacity of a Bank may be submitted, and may only be submitted,
if the Bank serving as the Administrative Agent or such affiliate notifies the Borrower of
the terms of the offer or offers contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute Rate Auction. Subject to Articles
III and VI, any Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower. Such Money
Market Loans may be funded by such Bank’s Designated Lender (if any) as provided in Section
9.6(d), however, such Bank shall not be required to specify in its Money Market Quote
whether such Money Market Loans will be funded by such Designated Lender.




     2. Each Money Market Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:




          (i) the proposed date of Borrowing,




          (ii) the principal amount of the Money Market Loan for which each such offer is being
made, which principal amount (w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $3,000,000 or a larger multiple of $100,000, (y) may not exceed
the principal amount of Money Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal



35









 






amount of Money Market Loans for
which offers being made by such quoting Bank may be accepted,




          (iii) in the case of a LIBOR Auction, the margin above or below the applicable
Euro-Dollar Rate (the “Money Market Margin”) offered for each such Money Market
Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,




          (iv) in the case of an Absolute Rate Auction, the rate of interest per annum (specified
to the nearest 1/10,000th of 1%) (the “Money Market Absolute Rate”) offered for each
such Money Market Loan, and




          (v) the identity of the quoting Bank.


A Money Market Quote may set forth up to five separate offers by the quoting Bank with respect to
each Interest Period specified in the related Invitation for Money Market Quotes.




          3. Any Money Market Quote shall be disregarded if it:





          (i) is not substantially in conformity with Exhibit D hereto or does not specify all of
the information required by subsection (d)(2) above;




          (ii) contains qualifying, conditional or similar language (except for an aggregate
limitation as provided in subsection (d)(2)(b) above);




          (iii) proposes terms other than or in addition to those set forth in the applicable
Invitation for Money Market Quotes(except for an aggregate limitation as provided in
subsection (d)(2) above); or




          (iv) arrives after the time set forth in subsection (d)(1).



          (e) Notice to Borrower. The Administrative Agent shall promptly (and in any event
within one (1) Business Day after receipt thereof except with respect to Money Market Absolute Rate
Borrowings which shall be on the same day as receipt thereof) notify the Borrower in writing of the
terms (x) of any Money Market Quote submitted by a Bank that is in accordance with subsection (d)
and (y) of any Money Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the Administrative Agent
unless such subsequent Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote or modifies the terms of such previous Money Market Quote to provide
terms more favorable to Borrower. The Administrative Agent’s notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.




36









 








          (f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (Dallas time) on (x)
the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Administrative Agent of its acceptance or non-acceptance
of the offers so notified to it pursuant to subsection (e). In the case of acceptance, such notice
(a “Notice of Money Market Borrowing”) shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any Money Market Quote
in whole or in part; provided that:





     1. the aggregate principal amount of each Money Market Borrowing may not exceed the
applicable amount set forth in the related Money Market Quote Request;




     2. the principal amount of each Money Market Borrowing must be $3,000,000 or a larger
multiple of $100,000;




     3. acceptance of offers may only be made on the basis of ascending Money Market Margins
or Money Market Absolute Rates, as the case may be; and




     4. the Borrower may not accept any offer that is described in subsection (d)(3) or that
otherwise fails to comply with the requirements of this Agreement.



          (g) Allocation by Administrative Agent. If offers are made by two or more Banks with
the same Money Market Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are permitted to be
accepted for the related Interest Period, the principal amount of Money Market Loans in respect of
which such offers are accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in multiples of $100,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. The Administrative Agent shall
promptly (and in any event within one (1) Business Day after such offers are accepted except with
respect to Money Market Absolute Rate Borrowings which shall be on the same day as such offers are
accepted) notify the Borrower and each such Bank in writing of any such allocation of Money Market
Loans. Determinations by the Administrative Agent of the allocation of Money Market Loans shall be
conclusive in the absence of manifest error.




          (h) Notification by Administrative Agent. Upon receipt of the Borrower’s Notice of
Money Market Borrowing in accordance with Section 2.3(f), the Administrative Agent shall, on the
date such Notice of Money Market Borrowing is received by the Administrative Agent, promptly notify
each Bank (and such Notice of Money Market Borrowing shall not thereafter be revocable by the
Borrower) (i) of the principal amount of the Money Market Borrowing accepted by the Borrower, and
(ii) of such Bank’s share (if any) of such Money Market Borrowing. A Bank who is notified that it
has been selected to make a Money Market Loan may designate its Designated Lender (if any) to fund
such Money Market Loan on its behalf, as described in Section 9.6(d). Any Designated Lender which
funds a Money Market Loan shall on and after the time of such funding become the obligee under such
Money Market





37









 







Loan and be entitled to receive payment thereof when due. No Bank shall be relieved
of its obligation to fund a Money Market Loan, and no Designated Lender shall assume such
obligation, prior to the time the applicable Money Market Loan is funded.




          (i) Funding of Committed Loans Not Affected. Notwithstanding anything to the contrary
contained herein, each Bank shall be required to fund its Pro Rata Share of Committed Loans in
accordance with Section 2.1 hereof despite the fact that any Bank’s Commitment may have been or
may be exceeded as a result of such Bank’s making of Money Market Loans.




     Section 2.4 Notice to Banks; Funding of Loans.



          (a) Upon receipt of a Notice of Borrowing from Borrower in accordance with Section 2.2 hereof,
the Administrative Agent shall, on the date such Notice of Borrowing is received by the
Administrative Agent, promptly notify each Bank of the contents thereof and of
such Bank’s share of such Borrowing, of the interest rate determined pursuant thereto and the
Interest Period(s) (if different from those requested by the Borrower) and such Notice of Borrowing
shall not thereafter be revocable by the Borrower, unless Borrower shall pay any applicable
expenses pursuant to Section 2.13.




          (b) Not later than 1:00 p.m. (Dallas time or, in the case of any Alternate Currency Borrowing,
local time to the principal financial center of the Alternate Currency in question) on the date of
each Borrowing as indicated in the Notice of Borrowing, each Bank shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing in Federal funds or the
applicable Alternate Currency immediately available in Dallas (or, in the case of any Alternate
Currency Borrowing, the principal financial center of the Alternate Currency in question), to the
Administrative Agent at its address referred to in Section 9.1. If the Borrower has requested the
issuance of a Letter of Credit, no later than 12:00 Noon (Dallas time) on the date of such issuance
as indicated in the notice delivered pursuant to Section 2.2(b), the Fronting Bank shall issue such
Letter of Credit in the amount so requested and deliver the same to the Borrower or to the
applicable Qualified Borrower or, at the instruction of the Borrower or the applicable Qualified
Borrower, to the beneficiary thereof, with a copy thereof to the Administrative Agent. Immediately
upon the issuance of each Letter of Credit by the Fronting Bank, such Fronting Bank shall be deemed
to have sold and transferred to each other Bank with a Dollar Commitment or Alternate Currency
Commitment, as applicable, and each such other Bank shall be deemed, and hereby agrees, to have
irrevocably and unconditionally purchased and received from the Fronting Bank, without recourse or
warranty, an undivided interest and a participation in such Letter of Credit, any drawing
thereunder, and the obligations of the Borrower hereunder with respect thereto, and any security
therefor or guaranty pertaining thereto, in an amount equal to such Bank’s ratable share thereof
(based upon the ratio its Dollar Commitment or Alternate Currency Commitment, as applicable, bears
to the aggregate of all Dollar Commitments or Alternate Currency Commitments, as applicable). Upon
any change in any of the Commitments in accordance herewith, there shall be an automatic adjustment
to such participations to reflect such changed shares. The Fronting Bank shall have the primary
obligation to fund any and all draws made with respect to such Letter of Credit notwithstanding any
failure of a participating Bank to fund its ratable share of any such draw. The





38









 







Administrative
Agent will instruct the Fronting Bank to make such Letter of Credit available to the Borrower or to
the applicable Qualified Borrower and the Fronting Bank shall make such Letter of Credit available
to the Borrower or to the applicable Qualified Borrower or, at the instruction of the Borrower or
the applicable Qualified Borrower, to the beneficiary thereof, at the Borrower’s aforesaid address
or at such address in the United States as Borrower or the applicable Qualified Borrower shall
request on the date of the issuance thereof or, in the case of an Alternate Currency Letter of
Credit, at such address in Europe or the United Kingdom or the United States as the Borrower or the
applicable Qualified Borrower shall request on the date of the issuance thereof.




          (c) Not later than 3:00 p.m. (Dallas time) on the date of each Swingline Borrowing as
indicated in the applicable Notice of Borrowing, the Swingline Lender shall make available such
Swingline Borrowing in Federal funds immediately available in Dallas, Texas, to the Administrative
Agent at its address referred to herein.




          (d) Unless the Administrative Agent shall have received notice from a Bank prior to the date
of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s
share of such Borrowing, the Administrative Agent may assume that such Bank has made such share
available to the Administrative Agent on the date of such Borrowing in accordance with subsection
(b) of this Section 2.4 and the Administrative Agent may, in reliance upon such assumption, but
shall not be obligated to, make available to the Borrower on such date a corresponding amount on
behalf of such Bank. If and to the extent that such Bank shall not have so made such share
available to the Administrative Agent, such Bank and the Borrower severally agree to repay (or to
cause the applicable Qualified Borrower to repay) to the Administrative Agent forthwith on demand,
and in the case of the Borrower one (1) Business Day after demand, such corresponding amount
together with interest thereon, for each day from the date such amount is made available to the
Borrower or such Qualified Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable
thereto pursuant to Section 2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank’s Loan included in such Borrowing as of the date of such Borrowing for
purposes of this Agreement. Nothing contained in this Section 2.4(d) shall be deemed to reduce the
Commitment of any Bank or in any way affect the rights of Borrower with respect to any defaulting
Bank or Administrative Agent. The failure of any Bank to make available to the Administrative Agent
such Bank’s share of any Borrowing in accordance with Section 2.4(b) hereof shall not relieve any
other Bank of its obligations to fund its Commitment, in accordance with the provisions hereof.




          (e) Subject to the provisions hereof, the Administrative Agent shall make available each
Borrowing to Borrower in Federal funds or to the Borrower or the applicable Qualified Borrower in
the applicable Alternate Currency immediately available in accordance with, and on the date set
forth in, the applicable Notice of Borrowing.



     Section 2.5 Notes.


39









 










          (a) If requested by any Bank, the Loans of such Bank shall be evidenced by a single Note made
by the Borrower and each Qualified Borrower payable to the order of such Bank for the account of
its Applicable Lending Office.




          (b) Each Bank may, by notice to the Borrower and the Administrative Agent, request that its
Loans of a particular type (including Swingline Loans and Money Market Loans) be evidenced by a
separate Note in an amount equal to the aggregate unpaid principal amount of such Loans. Any
additional costs incurred by the Administrative Agent, the Borrower or the Banks in connection with
preparing such a Note shall be at the sole cost and expense of the Bank requesting such Note. In
the event any Loans evidenced by such a Note are paid in full prior to the Maturity Date, any such
Bank shall return such Note to Borrower. Each such Note shall be in substantially the form of
Exhibit A-2 hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Upon the execution and delivery of any such Note, any existing
Note payable to such Bank shall be replaced or modified accordingly. Each
reference in this Agreement to the “Note” of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.




          (c) Upon receipt of each Bank’s Note pursuant to Section 3.1(a), the Administrative Agent
shall forward such Note to such Bank. Each Bank shall record on its Note or in the accounts and
records of each Bank, the date, amount, type and maturity of each Loan made by it and the date and
amount of each payment of principal made by the Borrower or the applicable Qualified Borrower with
respect thereto, and may, if such Bank so elects in connection with any transfer or enforcement of
its Note, endorse on the appropriate schedule appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the failure of
any Bank to make any such recordation or endorsement shall not affect the obligations of the
Borrower or applicable Qualified Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower and each Qualified Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and when required.




          (d) The Committed Loans shall mature, and the principal amount thereof shall be due and
payable, on the Maturity Date. The Swingline Loans shall mature, and the principal amount thereof
shall be due and payable, in accordance with Section 2.18(b)(iii).




          (e) Each Money Market Loan included in any Money Market Borrowing shall mature, and the
principal amount thereof shall be due and payable, together with accrued interest thereon, on the
earlier to occur of (i) last day of the Interest Period applicable to such Borrowing or (ii) the
Maturity Date.




          (f) There shall be no more than fifteen (15) (twenty (20) in the event Borrower exercises its
option to increase the Commitments under Section 2.1(b)) Euro-Dollar Groups of Loans and Money
Market Loans outstanding at any one time, of which, no more than five (5) Euro-Dollar Groups of
Loans may be Alternate Currency Loans with Interest Periods of less than one (1) month.




     Section 2.6 Method of Electing Interest Rates.



40












 







          (a) The Loans included in each Committed Borrowing shall bear interest initially at the
type of rate specified by the Borrower or the applicable Qualified Borrower in the applicable
Notice of Borrowing. Thereafter, the Borrower or the applicable Qualified Borrower (or the
Borrower on behalf of the applicable Qualified Borrower) may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article VIII), as follows:




          (i) if such Loans are Base Rate Loans, the Borrower or the applicable Qualified
Borrower may elect to convert all or any portion of such Loans to Euro-Dollar Loans as of
any Euro-Dollar Business Day;




          (ii) if such Loans are Euro-Dollar Loans, (a) denominated in Dollars, the Borrower or
the applicable Qualified Borrower (or the Borrower on behalf of the applicable Qualified
Borrower) may elect to convert all or any portion of such Loans to Base Rate Loans and/or
elect to continue all or any portion of such Loans as Euro-Dollar Loans for an additional
Interest Period or additional Interest Periods, or (b) denominated in an Alternate Currency,
the Borrower or the applicable Qualified Borrower (or the Borrower on behalf of the
applicable Qualified Borrower) may elect to continue all or any portion of such Loans as
Euro-Dollar Loans for an additional Interest Period or additional Interest Periods, in each
case effective on the last day of the then current Interest Period applicable to such Loans,
or on such other date designated by Borrower or the applicable Qualified Borrower (or the
Borrower on behalf of the applicable Qualified Borrower) in the Notice of Interest Rate
Election provided Borrower or the applicable Qualified Borrower (or the Borrower on behalf
of the applicable Qualified Borrower) shall pay any losses pursuant to Section 2.13.



Each such election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Administrative Agent at least three (3) Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective. A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably among the
Loans comprising such Group of Loans, (ii) the portion to which such Notice of Interest Rate
Election applies, and the remaining portion to which it does not apply, are each an amount, the
Dollar Equivalent Amount of which is $500,000 or any larger multiple of $100,000, (iii) there shall
be no more than fifteen (15) (twenty (20) in the event Borrower exercises its option to increase
the Commitments under Section 2.1(b)) Euro-Dollar Groups of Loans and Money Market Loans
outstanding at any one time, of which, no more than five (5) Euro-Dollar Groups of Loans may be
Alternate Currency Loans with Interest Periods of less than 30 days, (iv) no Committed Loan may be
continued as, or converted into, a Euro-Dollar Loan when any Event of Default has occurred and is
continuing, and (v) no Interest Period shall extend beyond the Maturity Date.




          (b) Each Notice of Interest Rate Election shall specify:




          (i) the Group of Loans (or portion thereof) to which such notice applies;



41









 






          (ii) the date on which the conversion or continuation selected in such notice is to be
effective, which shall comply with the applicable clause of subsection (a) above;




          (iii) if the Loans comprising such Group of Loans are to be converted, the new type of
Loans and, if such new Loans are Euro-Dollar Loans, the duration of the initial Interest
Period applicable thereto; and




          (iv) if such Loans are to be continued as Euro-Dollar Loans for an additional Interest
Period, the duration of such additional Interest Period.



Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period.



          (c) Upon receipt of a Notice of Interest Rate Election from the Borrower or the applicable
Qualified Borrower pursuant to subsection (a) above, the Administrative Agent shall notify each
Bank the same day as it receives such Notice of Interest Rate Election of the contents thereof, the
interest rates determined pursuant thereto and the Interest Periods (if different from those
requested by the Borrower or the applicable Qualified Borrower) and such notice shall not
thereafter be revocable by the Borrower or the applicable Qualified Borrower. If the Borrower or
Qualified Borrower fails to deliver a timely Notice of Interest Rate Election to the Administrative
Agent for any Group of Loans which are Euro-Dollar Loans, such Loans shall be converted into Base
Rate Loans or, in the case of Euro-Dollar Loans denominated in an Alternate Currency, continued as
a Euro-Dollar Loan with an Interest Period of one (1) month, on the last day of the then current
Interest Period applicable thereto.


          (d) If the Borrower shall fail to pay any principal of or interest on any Money Market Loan
when due, such Money Market Loan shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the Base Rate until (in the case of a failure to pay interest) such
failure shall become an Event of Default and thereafter (or immediately in the case of a failure to
pay principal) at a rate per annum equal to the sum of 2% plus the Base Rate for such day.



     Section 2.7 Interest Rates.


          (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until the date it is repaid or converted into a
Euro-Dollar Loan pursuant to Section 2.6 or at the Maturity Date, at a rate per annum equal to the
Base Rate plus the Applicable Margin for Base Rate Loans for such day. Such interest shall be
payable on the first Business Day of each month.


          (b) Subject to Section 8.1, each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Applicable Margin for Euro-Dollar Loans for such day plus the
Euro-Dollar Rate applicable to such Interest Period. Such interest shall be payable
on the first Business Day of each month, as well as on the date of any prepayment of any such
Euro-Dollar Loan.



42









 







          (c) Subject to Section 8.1, each Money Market LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Rate for such Interest Period (determined in accordance
with Section 2.7(b) as if the related Money Market LIBOR Borrowing were a Euro-Dollar Borrowing)
plus (or minus) the Money Market Margin quoted by the Bank making such Loan in accordance with
Section 2.3. Each Money Market Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with Section 2.3. Such
interest shall be payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than one month, at intervals of one month after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Base Rate until (in the case of a failure
to pay interest) such failure shall become an Event of Default and thereafter (or immediately in
the case of the failure to pay principal) at a rate per annum equal to the sum of 2% plus the Base
Rate for such day.


          (d) In the event that, and for so long as, any Event of Default shall have occurred and be
continuing, the outstanding principal amount of the Loans, and, to the extent permitted by
applicable law, overdue interest in respect of all Loans, shall bear interest at the annual rate
equal to the sum of the Base Rate and two percent (2%) (the “Default Rate”).


          (e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower and the Banks of each
rate of interest so determined, and its determination thereof shall be conclusive in the absence of
demonstrable error.



     Section 2.8 Fees.


          (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the account
of the Banks ratably in proportion to their respective Commitments a facility fee (the
“Facility Fee”) on the aggregate Commitments (exclusive, however, of any portion of the
Commitments that shall have been made as a result of the optional increase pursuant to Section
2.1(b) on a term (rather than revolving) basis) at the respective percentages per annum based upon
the range into which the Borrower’s Credit Rating then falls, in accordance with the following
table. The facility fee shall be payable in arrears on each January 1, April 1, July 1 and October
1 during the Term, and on the Maturity Date.



	 	 	 	 	 

	Less than BBB-/Baa3
	 	 	0.450	%
	BBB-/Baa3
	 	 	0.350	%
	BBB/Baa2
	 	 	0.250	%
	BBB+/Baa1
	 	 	0.200	%
	A-/A3
	 	 	0.175	%
	>A/A2
	 	 	0.150	%






Any change in the Borrower’s Credit Rating causing it to move into a different range on the table
shall effect an immediate change in the applicable percentage per annum. In the event that the
Borrower receives Credit Ratings that are not equivalent, the applicable percentage per annum



43









 







shall be based upon the higher of the Credit Ratings from S&P or Moody’s. In the event that only one (1)
Rating Agency has set the Borrower’s Credit Rating, then the applicable percentage per annum shall
be based on such single Credit Rating.



          (b) Letter of Credit Fee. The Borrower shall pay, or shall cause the applicable
Qualified Borrower to pay, to the Administrative Agent, for the account of the Banks in proportion
to their interests in respect of issued and undrawn Letters of Credit, a fee (a “Letter of
Credit Fee”) in an amount, provided that no Event of Default shall have occurred and be
continuing, equal to a rate per annum equal to the then percentage per annum of the Applicable
Margin with respect to Euro-Dollar Loans less 0.05%, on the daily average of such issued and
undrawn Letters of Credit, which fee shall be payable, in arrears, on each January 1, April 1, July
1 and October 1 during the Term, and on the Maturity Date, and, if and to the extent that the term
of any Letter of Credit shall extend beyond the Maturity Date, on each January 1, April 1, July 1
and October 1 until all Letters of Credit shall have expired and/or been returned and on the date
such final Letter of Credit expires or is returned. From the occurrence, and during the
continuance, of an Event of Default, such fee shall be increased to be equal to two percent (2%)
per annum on the daily average of such issued and undrawn Letters of Credit.


          (c) Fronting Bank Fee. The Borrower or the applicable Qualified Borrower shall pay
any Fronting Bank, for its own account, a fee (a “Fronting Bank Fee”) at a rate per annum
equal to the greater of (x) 0.125% of the issued and undrawn amount of the Letters of Credit issued
by such Fronting Bank and (y) $500 per Letter of Credit, which fee shall be in addition to and not
in lieu of, the Letter of Credit Fee. The Fronting Bank Fee shall be payable in arrears on each
January 1, April 1, July 1 and October 1 during the Term, and on the Maturity Date, and, if and to
the extent that the term of any Letter of Credit shall extend beyond the Maturity Date, on each
January 1, April 1, July 1 and October 1 until all Letters of Credit shall have expired and/or been
returned and on the date such final Letter of Credit expires or is returned. In addition, Borrower
shall pay directly to the Fronting Bank for its own account, the customary processing fees, charges
and expenses of the Fronting Bank in connection with the issuance, administration or extension of
letters of credit as from time to time in effect.


          (d) Extension Fee. If Borrower elects to extend the term of the Loan in accordance
with Section 2.9(b), the Borrower shall pay to the Administrative Agent, for the account of the
Banks in proportion to their respective Commitments, a fee (an “Extension Fee”) in an
amount equal to 0.15% of the aggregate Commitments. The Extension Fee shall be paid by Borrower on
or before the Extension Date.


          (e) Fees Non-Refundable. All fees set forth in this Section 2.8 shall be deemed to
have been earned on the date payment is due in accordance with the provisions hereof and shall be
non-refundable. The obligation of the Borrower to pay such fees in accordance with
the provisions hereof shall be binding upon the Borrower and shall inure to the benefit of the
Administrative Agent and the Banks regardless of whether any Loans are actually made.



     Section 2.9 Maturity Date.


          (a) The term (the “Term”) of the Commitments (and each Bank’s obligations to make
Loans) shall terminate and expire on the Maturity Date. Upon the date of the



44









 








termination of the
Term, any Loans then outstanding (together with accrued interest thereon and all other Obligations
other than with respect to Letters of Credit) shall be due and payable on such date.



          (b) Notwithstanding the foregoing, the Borrower may extend the Maturity Date for a period of
one (1) year upon the following terms and conditions: (i) delivery by Borrower of a written notice
to the Administrative Agent (the “Extension Notice”) on or before a date that is not more
than 180 days nor less than 30 days prior to the Maturity Date, which Extension Notice the
Administrative Agent shall promptly deliver to the Banks; (ii) no Event of Default shall have
occurred and be continuing both on the date the Borrower delivers the Extension Notice and on the
original Maturity Date (the “Extension Date”), and (iii) Borrower shall pay the Extension
Fee to Administrative Agent on or before the Extension Date. Borrower’s delivery of the Extension
Notice shall be irrevocable.



     Section 2.10 Intentionally Omitted.



     Section 2.11 Optional Prepayments and Optional Decreases and Termination.


          (a) The Borrower may, upon at least one (1) Business Day’s notice to the Administrative Agent
(which shall promptly notify each of the Banks), which notice shall specify, if the Commitments
shall have been increased pursuant to Section 2.1(b) and some Loans shall be on a term basis, how
much of such prepayment shall be applied to the applicable term Loans and how much to revolving
Loans, prepay any Group of Loans which are Base Rate Loans(or any Money Market Borrowing bearing
interest at the Base Rate pursuant to Section 8.1), in whole at any time, or from time to time in
part in amounts aggregating One Million Dollars ($1,000,000) or any larger multiple of One Hundred
Thousand Dollars ($100,000), by paying the principal amount to be prepaid. The Borrower may, from
time to time on any Business Day so long as prior notice is given to the Administrative Agent and
Swingline Lender no later than 1:00 p.m. (Dallas time) on the day on which Borrower intends to make
such prepayment, prepay any Swingline Loans in whole or in part in amounts aggregating $100,000 or
a higher integral multiple of $100,000 (or, if less, the aggregate outstanding principal amount of
all Swingline Loans then outstanding) by paying the principal amount to be prepaid no later than
2:00 p.m. (Dallas time) on such day. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Group of Loans or Borrowing(or the
Swingline Lender in the case of Swingline Loans) included in such Group of Loans or Borrowing.


          (b) The Borrower may, upon at least one (1) Euro-Dollar Business Day’s notice to the
Administrative Agent (which shall promptly notify each of the Banks), which notice shall specify,
if the Commitments shall have been increased pursuant to Section 2.1(b) and some Loans shall be on
a term basis, how much of such prepayment shall be applied to the applicable term Loans and how
much to revolving Loans, prepay any Euro-Dollar Loan as of the last day of the Interest Period
applicable thereto. Except as provided in Article VIII and except with respect to any Euro-Dollar
Loan which has been converted to a Base Rate Loan pursuant to Section 8.2, 8.3 or 8.4 hereof, the
Borrower may not prepay all or any portion of the principal amount of any Euro-Dollar Loan prior to
the end of the Interest Period applicable thereto unless the Borrower shall also pay any applicable
expenses pursuant to Section 2.13. Any such prepayment shall be



45









 








upon at least three (3)
Euro-Dollar Business Days’ notice to the Administrative Agent. Each such optional prepayment shall
be in the amounts set forth in Section 2.11(a) above and shall be applied to prepay ratably the
Loans of the Banks included in any Group of Loans which are Euro-Dollar Loans (which Group of Loans
shall be specified in the notice referred to above), except that any Euro-Dollar Loan which has
been converted to a Base Rate Loan pursuant to Section 8.2, 8.3 or 8.4 hereof may be prepaid
without ratable payment of the other Loans in such Group of Loans which have not been so converted.



          (c) The Borrower may, upon at least one (1) Business Day’s notice to the Administrative Agent
(by 11:00 a.m. Dallas time or local time to the principal financial center of the Alternate
Currency in question, as applicable, on such Business Day), reimburse the Administrative Agent for
the benefit of the Fronting Bank for the amount of any drawing under a Letter of Credit in whole or
in part in any amount.


          (d) The Borrower may at any time return, or cause to be returned, any undrawn Letter of Credit
to the Fronting Bank in whole, but not in part, and the Fronting Bank within a reasonable period of
time shall give the Administrative Agent and each of the Banks notice of such return.


          (e) The Borrower may at any time and from time to time cancel all or any part of the Dollar
Commitments or the Alternate Currency Commitments. If there are Loans then outstanding or, if there
are no Loans outstanding at such time as to which the Commitments with respect thereto are being
cancelled, upon at least one (1) Business Day’s notice to the Administrative Agent (which shall
promptly notify each of the Banks), whereupon, in either event, all or such portion of the
Commitments, as applicable, shall terminate as to the Banks, pro rata on the date set forth in such
notice of cancellation, and, if there are any Loans then outstanding, Borrower shall prepay, as
applicable, all or such portion of Loans outstanding on such date in accordance with the
requirements of Section 2.11(a) and (b). In no event shall the Borrower be permitted to cancel
Commitments for which a Letter of Credit has been issued and is outstanding unless the Borrower
returns (or causes to be returned) such Letter of Credit to the Fronting Bank. Borrower shall be
permitted to designate in its notice of cancellation which Loans, if any, are to be prepaid. A
reduction of the Commitments pursuant to this Section 2.11(e) shall not effect a reduction in the
Swingline Commitment (unless so elected by the Borrower) until the aggregate Commitments have been
reduced to an amount equal to or less than the Swingline Commitment.


          (f) Any amounts so prepaid pursuant to Section 2.11 (a), (b), (c) or (d) may be reborrowed
except to the extent applied to repay any term Loans made in accordance with Section 2.1(b). In the
event Borrower elects to cancel all or any portion of the Commitments and the Swingline Commitment
pursuant to Section 2.11(e) hereof, such amounts may not be reinstated.


          (g) The Borrower may not prepay any portion of a Money Market Loan except with the prior
consent of the Bank or Designated Lender holding such Money Market Loan.



     Section 2.12 General Provisions as to Payments.



46









 




          (a) The Borrower or Qualified Borrower shall make each payment of interest on the Loans and of
fees hereunder, not later than 12:00 Noon (Dallas time or local time to the principal financial
center of the Alternate Currency in question, as applicable) on the date when due, in Federal or
other funds immediately available in Dallas, or, in the case of any Alternate Currency Loans, in
the applicable Alternate Currency immediately available in the principal financial center of the
Alternate Currency in question, to the Administrative Agent at its address referred to in Section
9.1. The Administrative Agent will promptly (and if received prior to 12:00 noon, on the same
Business Day, if received after 12:00 noon on the immediately following Business Day) distribute to
each Bank its ratable share (or applicable share with respect to Money Market Loans) of each such
payment received by the Administrative Agent for the account of the Banks. If and to the extent
that the Administrative Agent shall receive any such payment for the account of the Banks on or
before 12:00 Noon (Dallas time or local time to the principal financial center of the Alternate
Currency in question, as applicable) on any Business Day, and Administrative Agent shall not have
distributed to any Bank its applicable share of such payment on such Business Day, Administrative
Agent shall distribute such amount to such Bank together with interest thereon, for each day from
the date such amount should have been distributed to such Bank until the date Administrative Agent
distributes such amount to such Bank, at the Federal Funds Rate. Whenever any payment of principal
of, or interest on the Base Rate Loans or Swingline Loans or of fees shall be due on a day which is
not a Business Day, the date for payment thereof shall be extended to the next succeeding Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest on, the Money Market Loans shall
be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall be payable for such
extended time.


          (b) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Banks hereunder that the Borrower or Qualified Borrower, as
the case may be, will not make such payment in full, the
Administrative Agent may assume that the Borrower or Qualified Borrower, as the case may be,
has made such payment in full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that the Borrower or Qualified
Borrower, as the case may be, shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.


          (c) If any Bank shall fail to make any payment required to be made by it pursuant to Section
2.4, 2.12, 2.16, 2.18 or 9.3, then the Administrative Agent, notwithstanding any contrary provision
hereof, shall (i) apply any amounts thereafter received by the Administrative Agent for the account
of such Bank for the benefit of the Administrative Agent,


47









 






the Swingline Lender or the Fronting Bank
to satisfy such Bank’s obligations to it under any such Section until all such unsatisfied
obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash
collateral for, and application to, any future funding obligations of such Bank under any such
Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the
Administrative Agent in its reasonable discretion.



     Section 2.13 Funding Losses. If the Borrower or a Qualified Borrower, as the case may be, makes any
payment of principal with respect to any Euro-Dollar Loan or Money Market LIBOR Loan or Money
Market Absolute Rate Loan (pursuant to Article II, VI or VIII or otherwise) on any day other than
the last day of the Interest Period applicable thereto, or if the Borrower or a Qualified Borrower,
as the case may be, fails to borrow, continue or convert to any Euro-Dollar Loans or Money Market
LIBOR Loans or Money Market Absolute Rate Loans after notice has been given to any Bank in
accordance with Section 2.2(a) or 2.6, or if Borrower or a Qualified Borrower, as the case may be,
shall deliver a Notice of Interest Rate Election specifying that a Euro-Dollar Loan or Money Market
LIBOR Loan or Money Market Absolute Rate Loan shall be converted on a date other than the first
(1st) day of the then current Interest Period applicable thereto, the Borrower shall reimburse each
Bank within 15 days after certification of such Bank of such loss or expense (which shall be
delivered by each such Bank to Administrative Agent for delivery to Borrower) for any resulting
loss or expense incurred by it (or by an existing Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or failure to borrow,
continue or convert, provided that such Bank shall have delivered to Administrative Agent and
Administrative Agent shall have delivered to the Borrower a certification as to the amount of such
loss or expense, which certification shall set forth in reasonable detail the basis for and
calculation of such loss or expense and shall be conclusive in the absence of demonstrable error.
In addition, the Borrower shall pay to the Administrative Agent, for the account of the applicable
Bank, any Mandatory Cost.



     Section 2.14 Computation of Interest and Fees. All interest based on the Euro-Dollar Rate (other than
with respect to Loans denominated in Pounds Sterling) and all fees shall be
computed on the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). All interest based on the Base Rate and all
interest on Loans denominated in Pounds Sterling shall be computed on the basis of a year of 365
days (or, in the case of interest based on the Base Rate only, 366 days in a leap year) and paid
for the actual number of days elapsed (including the first day but excluding the last day).



     Section 2.15 Use of Proceeds. The Borrower shall use, or shall cause any Qualified Borrower to use, the
proceeds of the Loans for general corporate purposes, including, without limitation, the
acquisition of real property to be used in the Borrower’s existing business and for general working
capital needs of the Borrower; provided, however, that no Swingline Loan shall be used more than
once for the purpose of refinancing another Swingline Loan, in whole or part.



     Section 2.16 Letters of Credit.


          (a) Subject to the terms contained in this Agreement and the other Loan Documents, upon the
receipt of a notice in accordance with Section 2.2(b) requesting the



48









 








issuance of a Letter of
Credit, the Fronting Bank shall issue a Letter of Credit or Letters of Credit in such form as is
reasonably acceptable to the Borrower or the Qualified Borrower and the Fronting Bank (subject to
the provisions of Section 2.2(b)) in an amount or amounts equal to the amount or amounts requested
by the Borrower; provided that, in the case of (i) Alternate Currency Letter(s) of Credit, the
Fronting Bank shall issue the same in the Alternate Currency requested and (ii) Dollar Letter(s) of
Credit, the Fronting Bank shall issue the same in Dollars. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent Amount of the
stated amount of such Letter of Credit in effect at such time.



          (b) It is hereby acknowledged and agreed by the Borrower, the Administrative Agent and all the
Banks party hereto that on the Closing Date, the letters of credit previously issued by Bank of
America, N.A., and U.S. Bank National Association as “Fronting Bank” under the Existing Revolving
Credit Agreement, as well as by Bank of America, N.A. under a separate letter of credit facility,
and more particularly set forth on Schedule 2.16 hereto, shall be transferred to this
Agreement and shall be deemed to be Letters of Credit hereunder.


          (c) The Letter of Credit Usage shall be no more than Five Hundred Million Dollars
($500,000,000) at any one time (and in the case of Alternate Currency Letters of Credit, no more
than the Dollar Equivalent Amount of the Alternate Currency Sublimit).


          (d) Intentionally Omitted.


          (e) In the event of any request for a drawing under any Letter of Credit by the beneficiary
thereunder, the Fronting Bank shall notify the Borrower and the Administrative Agent (and the
Administrative Agent shall notify each Bank thereof) on or before the date on which the Fronting
Bank intends to honor such drawing, and, except as provided in this subsection (e), the Borrower
shall reimburse the Fronting Bank, in immediately available funds, on the same day on which such
drawing is honored in the Dollar Equivalent Amount of such
drawing. Notwithstanding anything contained herein to the contrary, however, unless the
Borrower shall have notified the Administrative Agent, and the Fronting Bank prior to 11:00 a.m.
(Dallas time) on the Business Day immediately prior to the date of such drawing that the Borrower
intends to reimburse the Fronting Bank for the amount of such drawing with funds other than the
proceeds of the Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing
pursuant to Section 2.2 to the Administrative Agent, requesting a Borrowing of Base Rate Loans on
the date on which such drawing is honored and in an amount equal to the amount of such drawing.
Each Bank (other than the Fronting Bank) shall, in accordance with Section 2.4(b), make available
its Pro Rata Share of such Borrowing to the Administrative Agent, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the Fronting Bank for the amount of such
draw. In the event that any such Bank fails to make available to the Fronting Bank the amount of
such Bank’s participation on the date of a drawing, the Fronting Bank shall be entitled to recover
such amount on demand from such Bank together with interest at the Federal Funds Rate commencing on
the date such drawing is honored, and the provisions of Section 9.16 shall otherwise apply to such
failure.


          (f) If, after the date hereof, any change in any law or regulation or in the interpretation
thereof by any court or administrative or Governmental Authority charged with the



49









 








administration
thereof shall either (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits in or for the
account of, or participations in any letter of credit, upon any Bank (including the Fronting Bank)
or (ii) impose on any Bank any other condition regarding this Agreement or such Bank (including the
Fronting Bank) as it pertains to the Letters of Credit or any participation therein and the result
of any event referred to in the preceding clause (i) or (ii) shall be to increase, by an amount
deemed by the Fronting Bank or such Bank to be material, the cost to the Fronting Bank or any Bank
of issuing or maintaining any Letter of Credit or participating therein (excluding any costs
already reflected in any Mandatory Cost), then the Borrower shall pay to the Fronting Bank or such
Bank, within 15 days after written demand by such Bank (with a copy to the Administrative Agent),
which demand shall be accompanied by a certificate showing, in reasonable detail, the calculation
of such amount or amounts, such additional amounts as shall be required to compensate the Fronting
Bank or such Bank for such increased costs or reduction in amounts received or receivable
hereunder. Each Bank will promptly notify the Borrower and the Administrative Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section 2.16 and will designate a different Applicable Lending Office
if such designation will avoid the need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall fail to notify Borrower of any such event within 90 days following the end of the month
during which such event occurred, then Borrower’s liability for any amounts described in this
Section incurred by such Bank as a result of such event shall be limited to those attributable to
the period occurring subsequent to the ninetieth (90th) day prior to the date upon which such Bank
actually notified Borrower of the occurrence of such event. A certificate of any Bank claiming
compensation under this Section 2.16 and setting forth a reasonably detailed calculation of the
additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of demonstrable error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.



          (g) The Borrower hereby agrees to protect, indemnify, pay and save harmless the Fronting Bank
and the Banks from and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys’ fees and disbursements) which the Fronting
Bank or any Bank may incur or be subject to as a result of (i) the issuance of the Letters of
Credit, other than to the extent of the bad faith, gross negligence or wilful misconduct of the
Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority, including
by reason of court order (collectively, “Governmental Acts”), other than to the extent of
the bad faith, gross negligence or wilful misconduct of the Fronting Bank. As between the Borrower
and the Fronting Bank and each Bank, the Borrower assumes all risks of the acts and omissions of
any beneficiary with respect to its use, or misuses of, the Letters of Credit issued by the
Fronting Bank. In furtherance and not in limitation of the foregoing, the Fronting Bank and the
Banks shall not be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or insufficiency 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



50









 








invalid or ineffective for any reason; (iii) for failure of the beneficiary of any Letter of
Credit to comply fully with conditions required in order to draw upon such Letter of Credit, other
than as a result of the bad faith, gross negligence or wilful misconduct of the Fronting Bank; (iv)
for errors, omissions, interruptions or delays in transmission or delivery of any message, by mail,
cable, telegraph, facsimile transmission, or otherwise; (v) for errors in interpretation of any
technical terms; (vi) for any loss or delay in the transmission or otherwise of any documents
required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (vii)
for the misapplication by the beneficiary of any Letter of Credit of the proceeds of such Letter of
Credit; or (viii) for any consequence arising from causes beyond the control of the Fronting Bank
or any Bank, including any Government Acts, in each case other than to the extent of the bad faith,
gross negligence or willful misconduct of the Fronting Bank. None of the above shall affect,
impair or prevent the vesting of the Fronting Bank’s or any Bank’s rights and powers hereunder. In
furtherance and extension and not in limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Fronting Bank under or in connection with the Letters of Credit
issued by it or the related certificates, if taken or omitted in good faith, shall not put the
Fronting Bank or any Bank under any resulting liability to the Borrower; provided that,
notwithstanding anything in the foregoing to the contrary, the Fronting Bank will be liable to the
Borrower for any damages suffered by the Borrower or its Subsidiaries as a result of the Fronting
Bank’s grossly negligent or wilful failure to pay under any Letter of Credit after the presentation
to it of a sight draft and certificates strictly in compliance with the terms and conditions of the
Letter of Credit, except as a result of any court order.



          (h) If the Fronting Bank or the Administrative Agent is required at any time, pursuant to any
bankruptcy, insolvency, liquidation or reorganization law or otherwise, to return to the Borrower
any reimbursement by the Borrower of any drawing under any Letter of Credit, each Bank shall pay to
the Fronting Bank or the Administrative Agent, as the case may be, its Pro Rata Share of such
payment, but without interest thereon unless the Fronting Bank or the Administrative Agent is
required to pay interest on such amounts to the person recovering such payment, in which case with
interest thereon, computed at the same rate, and on the same basis, as the interest that the
Fronting Bank or the Administrative Agent is required to pay.



     Section 2.17 Letter of Credit Usage Absolute. The obligations of the Borrower under this Agreement in
respect of any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement (as the same may be amended from time to time) under
all circumstances, including, without limitation, to the extent permitted by law, the following
circumstances:


          (a) any lack of validity or enforceability of any Letter of Credit or any other agreement or
instrument relating thereto (collectively, the “Letter of Credit Documents”) or any Loan
Document;


          (b) any change in the time, manner or place of payment of, or in any other term of, all or any
of the obligations of the Borrower in respect of the Letters of Credit or any other amendment or
waiver of or any consent by the Borrower to departure from all or any of the Letter of Credit
Documents or any Loan Document;



51









 







          (c) any exchange, release or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any guaranty, for all or any of the obligations of the
Borrower in respect of the Letters of Credit;


          (d) the existence of any claim, set-off, defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the Administrative Agent, the Fronting
Bank or any Bank (other than a defense based on the bad faith, gross negligence or wilful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any other Person,
whether in connection with the Loan Documents, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction;


          (e) any draft or any other document presented under or in connection with any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; provided, that payment by the Fronting Bank
under such Letter of Credit against presentation of such draft or document shall not have been the
result of the bad faith, gross negligence or wilful misconduct of the Fronting Bank;


          (f) payment by the Fronting Bank against presentation of a draft or certificate that does not
strictly comply with the terms of the Letter of Credit; provided, that such payment shall
not have been the result of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank; and


          (g) any other circumstance or happening whatsoever other than the payment in full of all
obligations hereunder in respect of any Letter of Credit or any agreement or instrument relating to
any Letter of Credit, whether or not similar to any of the foregoing, that might otherwise
constitute a defense available to, or a discharge of, the Borrower; provided, that such
other circumstance or happening shall not have been the result of bad faith, gross negligence or
wilful misconduct of the Fronting Bank.



     Section 2.18 Swingline Loan Subfacility.


          (a) Swingline Commitment. Subject to the terms and conditions of this Section 2.18,
the Swingline Lender, in its individual capacity, agrees to make certain revolving credit loans in
Dollars only to the Borrower (each a “Swingline Loan” and, collectively, the “Swingline
Loans”) from time to time during the term hereof; provided, however, that the
aggregate amount of Swingline Loans outstanding at any time shall not exceed the lesser of (i) ten
percent (10%) of the aggregate Commitments, and (ii) the aggregate Commitments less the Dollar
Equivalent Amount of all Loans (other than Swingline Loans) then outstanding and the Dollar
Equivalent Amount of the Letter of Credit Usage (the “Swingline Commitment”). Subject to
the limitations set forth herein, any amounts repaid in respect of Swingline Loans may be
reborrowed.


          (b) Swingline Borrowings.


          
52









 









          (i) Notice of Borrowing. With respect to any Swingline Borrowing, the Borrower
shall give the Swingline Lender and the Administrative Agent notice in writing in the form
attached hereto as Exhibit C, which is received by the Swingline Lender and
Administrative Agent not later than 1:00 p.m. (Dallas time) on the proposed date of such
Swingline Borrowing (and confirmed by telephone by such time), specifying (A) that a
Swingline Borrowing is being requested, (B) the amount of such Swingline Borrowing, (C) the
proposed date of such Swingline Borrowing, which shall be a Business Day, and (D) stating
that no Default or Event of Default has occurred and is continuing both before and after
giving effect to such Swingline Borrowing. Such notice shall be irrevocable.




          (ii) Minimum Amounts. Each Swingline Borrowing shall be in a minimum principal
amount of $1,000,000, or an integral multiple of $100,000 in excess thereof.




          (iii) Repayment of Swingline Loans. Each Swingline Loan shall be due and
payable on the earliest of (A) seven (7) Business Days from the date of the applicable
Swingline Borrowing, (B) the date of the next Committed Borrowing or (C)
the Maturity Date. In addition, in no event shall Swingline Loans be outstanding for
more than ten (10) Business Days in any calendar month. If, and to the extent, any Swingline
Loans shall be outstanding on the date of any Committed Borrowing denominated in Dollars,
such Swingline Loans shall first be repaid from the proceeds of such Committed Borrowing
prior to the disbursement of the same to the Borrower. If, and to the extent, a Committed
Borrowing is not requested prior to the Maturity Date or the end of the 7-Business Day
period after a Swingline Borrowing, the Borrower shall be deemed to have requested a
Committed Borrowing comprised entirely of Base Rate Loans in the amount of the applicable
Swingline Loan then outstanding, the proceeds of which shall be used to repay such Swingline
Loan to the Swingline Lender. In addition, the Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the Administrative Agent, demand
repayment of its Swingline Loans by way of a Committed Borrowing, in which case the Borrower
shall be deemed to have requested a Committed Borrowing comprised entirely of Base Rate
Loans in the amount of such Swingline Loans then outstanding, the proceeds of which shall be
used to repay such Swingline Loans to the Swingline Lender. Any Committed Borrowing which
is deemed requested by the Borrower in accordance with this Section 2.18(b)(iii) is
hereinafter referred to as a “Mandatory Borrowing”. Each Bank hereby irrevocably
severally agrees to make Committed Loans promptly upon receipt of notice from the Swingline
Lender of any such deemed request for a Mandatory Borrowing in the amount and in the manner
specified in the preceding sentences and on the date such notice is received by such Bank
(or the next Business Day if such notice is received after 12:00 P.M. (Dallas time))
notwithstanding (I) the amount of the Mandatory Borrowing may not comply with the minimum
amount of Committed Borrowings otherwise required hereunder, (II) whether any conditions
specified in Section 3.2 are then satisfied, (III) whether a Default or an Event of Default
then exists, (IV) failure of any such deemed request for a Committed Borrowing to be made by
the time otherwise required in Section 2.2, (V) the date of such Mandatory Borrowing
(provided that such date must be a Business Day), or (VI) any termination of the Commitments
immediately prior to such



53









 






Mandatory Borrowing or contemporaneously therewith;
provided, however, that no Bank shall be obligated to make Committed Loans
in respect of a Mandatory Borrowing if a Default or an Event of Default then exists and the
applicable Swingline Loan was made by the Swingline Lender without receipt of a written
Notice of Borrowing in the form specified in subclause (i) above or after Administrative
Agent has delivered a notice of Default or Event of Default which has not been rescinded.




          (iv) Purchase of Participations. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each Bank hereby severally agrees that it shall forthwith,
upon demand, purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payment received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such participations in the outstanding Swingline
Loans as shall be necessary to cause
each such Bank to share in such Swingline Loans ratably based upon its Pro Rata Share
(determined before giving effect to any termination of the Commitments pursuant hereto),
provided that (A) all interest payable on the Swingline Loans with respect to any
participation shall be for the account of the Swingline Lender until but excluding the day
upon which the Mandatory Borrowing would otherwise have occurred, and (B) in the event of a
delay caused by any purchasing Bank between the day upon which the Mandatory Borrowing would
otherwise have occurred and the time any purchase of a participation pursuant to this
sentence is actually made, such purchasing Bank shall be required to pay to the Swingline
Lender interest on the principal amount of such participation for each day from and
including the day upon which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the rate equal to the Federal Funds
Rate, for the two (2) Business Days after the date the Mandatory Borrowing would otherwise
have occurred, and thereafter at a rate equal to the Base Rate. Notwithstanding the
foregoing, no Bank shall be obligated to purchase a participation in any Swingline Loan if a
Default or an Event of Default then exists and such Swingline Loan was made by the Swingline
Lender without receipt of a written Notice of Borrowing in the form specified in subclause
(i) above or after Administrative Agent has delivered a notice of Default or Event of
Default which has not been rescinded.


          (c) Interest Rate. Each Swingline Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Swingline Loan is made until the date it
is repaid, at a rate per annum equal to the Federal Funds Rate for such day, plus the Applicable
Margin for Euro-Dollar Loans.



     Section 2.19 Letters of Credit Maturing after the Maturity Date.


          (a) Notwithstanding anything contained herein to the contrary, if any Letters of Credit, by
their terms, shall mature after the Maturity Date (as the same may be extended), then, on and after
the Maturity Date, the provisions of this Agreement shall remain in full force and effect with
respect to such Letters of Credit, and the Borrower shall comply with the



54









 








provisions of Section
2.19(b). No Letter of Credit shall mature on a date that is more than twelve (12) months after the
Maturity Date then in effect.



          (b) If, at any time and from time to time, any Letter of Credit shall have been issued
hereunder and the same shall expire on a date after the Maturity Date, then, on the date that is
five (5) Business Days prior to the Maturity Date, the Borrower shall pay to the Administrative
Agent, on behalf of the Banks, in same day funds at the Administrative Agent’s office designated in
such demand, for deposit in the Letter of Credit Collateral Account, Letter of Credit Collateral in
an amount equal to the amount of the Letter of Credit Usage, in United States Dollars, under the
Letters of Credit. The Administrative Agent shall recalculate the Dollar Equivalent Amount with
respect to all Alternate Currency Letters of Credit monthly, as of the last Business Day of each
month. Interest shall accrue on the Letter of Credit Collateral Account in accordance with the
provisions of Section 6.4.



     Section
2.20 Special Provisions Regarding Alternate Currency Loans.


          (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any
action) (x) all then outstanding Euro-Dollar Loans denominated in an Alternate Currency shall be
automatically converted into Base Rate Loans denominated in Dollars (in an amount equal to the
Dollar Equivalent Amount of the aggregate principal amount of the applicable Euro-Dollar Loans on
the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter
continue to be deemed to be Base Rate Loans and (ii) unless such Sharing Event resulted solely from
a termination of the Commitments, shall be immediately due and payable on the date such Sharing
Event has occurred) and (y) unless such Sharing Event resulted solely from a termination of the
Commitments, all accrued and unpaid interest and other amounts owing with respect to such Loans
shall be immediately due and payable in Dollars, using the Dollar Equivalent Amount of such accrued
and unpaid interest and other amounts.


          (b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic
conversion pursuant to Section 2.20(a), each Bank shall (and hereby unconditionally and irrevocably
agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all
Committed Loans outstanding to, and any unpaid Letter of Credit Usage owing by, the Borrower and
the Qualified Borrowers in such amounts so that each Bank shall have a share of such outstanding
Loans and unpaid Letter of Credit Usage then owing by the Borrower and the Qualified Borrowers
equal to its Pro Rata Share of the Commitments (although if because of fluctuations in currency
exchange rates any Bank would be required to purchase such participations after giving effect to
which such Bank’s allocated share of all Committed Loans and Letter of Credit Usage (including
participations therein purchased pursuant to this Section 2.20) would exceed the Dollar Equivalent
Amount of such Bank’s Dollar Commitment and Alternate Currency Commitment, then such participations
shall be in an amount after giving effect to which such Bank’s allocated share of all Committed
Loans and Letter of Credit Usage (including participations therein purchased pursuant to this
Section 2.20) would equal the Dollar Equivalent Amount of such Bank’s Dollar Commitment and
Alternate Currency Commitment). Upon any such occurrence, the Administrative Agent shall notify
each Bank and shall specify the amount of dollars required from such Bank in order to effect the
purchases and sales by the various Banks of participating interests in the amounts required above
(together with accrued



55









 








interest with respect to the period from the last interest payment date
through the date of the Sharing Event plus any additional amounts payable by the Borrower pursuant
to this Section 2.20 in respect of such accrued but unpaid interest); provided, in the event that a
Sharing Event shall have occurred, each Bank shall be deemed to have purchased, automatically and
without request, such participating interests. Promptly upon receipt of such request, each Bank
shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net
amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver
the amounts so received to the various Banks in such amounts as are needed to effect the purchases
and sales of participations as provided above. Promptly following receipt thereof, each Bank which
has sold participations in any of its Loans (through the Administrative Agent) will deliver to each
Bank (through the Administrative Agent) which has so purchased a participating interest a
participation certificate dated the date of receipt of such funds and in such amount. It is
understood that the amount of funds delivered by each Bank shall be calculated on a net basis,
giving effect to both the sales and purchases of participations by the various Banks as required
above.



          (c) Upon the occurrence of a Sharing Event (i) no further Loans shall be made, (ii) all
amounts from time to time accruing with respect to, and all amounts from time to time payable on
account of, any outstanding Euro-Dollar Loans initially denominated in an Alternate Currency
(including, without limitation, any interest and other amounts which were accrued but unpaid on the
date of such purchase) shall be payable in Dollars as if such Euro-Dollar Loans had originally been
made in Dollars and shall be distributed by the relevant Banks (or their Affiliates) to the
Administrative Agent for the account of the Banks which made such Loans or are participating
therein and (iii) the Commitments of the Banks shall be automatically terminated. Notwithstanding
anything to the contrary contained above, the failure of any Bank to purchase its participating
interest in any Committed Loans upon the occurrence of a Sharing Event shall not relieve any other
Bank of its obligation hereunder to purchase its participating interests in a timely manner, but no
Bank shall be responsible for the failure of any other Bank to purchase the participating interest
to be purchased by such other Bank on any date.


          (d) If any amount required to be paid by any Bank pursuant to Section 2.20(b) is not paid to
the Administrative Agent within one (1) Business Day following the date upon which such Bank
receives notice from the Administrative Agent of the amount of its participations required to be
purchased pursuant to said Section 2.20(b), such Bank shall also pay to the Administrative Agent on
demand an amount equal to the product of (i) the amount so required to be paid by such Bank for the
purchase of its participations times (ii) the daily average Federal Funds Rate during the period
from and including the date of request for payment to the date on which such payment is immediately
available to the Administrative Agent times (iii) a fraction the numerator of which is the number
of days that elapsed during such period and the denominator of which is 360. If any such amount
required to be paid by any Bank pursuant to Section 2.20(b) is not in fact made available to the
Administrative Agent within three (3) Business Days following the date upon which such Bank
receives notice from the Administrative Agent as to the amount of participations required to be
purchased by it, the Administrative Agent shall be entitled to recover from such Bank on demand,
such amount with interest thereon calculated from such request date at the rate per annum
applicable to Base Rate Loans hereunder. A certificate of the Administrative Agent submitted to any
Bank with respect to any amounts payable by any Bank pursuant to this Section 2.20 shall be
conclusive in the absence of manifest



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error and the amount reflected therein shall be paid to the
Administrative Agent for the account of the relevant Banks; provided that, if the Administrative
Agent (in its sole discretion) has elected to fund on behalf of such Bank the amounts owing to such
Banks, then the amounts shall be paid to the Administrative Agent for its own account.



          (e) Whenever, at any time after the relevant Banks have received from any Banks purchases of
participations in any Committed Loans pursuant to this Section 2.20, the Banks receive any payment
on account thereof, such Banks will distribute to the Administrative Agent, for the account of the
various Banks participating therein, such Banks’ participating interests in such amounts
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such participations were outstanding) in like funds as received;
provided, however, that in the event that such payment received by any Banks are required to be
returned, the Banks who received previous distributions in respect of their participating interests
therein will return to the respective Banks any portion thereof previously so distributed to them
in like funds as such payment is required to be returned by the respective Banks.


          (f) Each Bank’s obligation to purchase participating interests pursuant to this Section 2.20
shall be absolute and unconditional and shall not be affected by any circumstance including,
without limitation, (a) any setoff, counterclaim, recoupment, defense or other right which such
Bank may have against any other Bank, the Borrower or any other Person for any reason whatsoever,
(b) the occurrence or continuance of an Event of Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (d) any breach of this Agreement by
the Borrower, any of its Subsidiaries or any Bank or any other Person, or (e) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.


          (g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any
purchase of participations as required above, each Bank which has purchased such participations
shall be entitled to receive from the Borrower any increased costs and indemnities directly from
the Borrower to the same extent as if it were the direct Bank as opposed to a participant therein.
The Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving
effect to the requirements of this Section 2.20, increased Taxes may be owing by the Borrower
pursuant to Section 8.4, which Taxes shall be paid (to the extent provided in Section 8.4) by the
Borrower, without any claim that the increased Taxes are not payable because same resulted from the
participations effected as otherwise required by this Section 2.20.



     Section 2.21 Qualified Borrowers.



          (a) The Borrower may, at any time or from time to time, upon not less than ten (10) Business
Days’ notice in the case of a domestic Qualified Borrower or fifteen (15) Business Day’s notice in
the case of a foreign Qualified Borrower, designate one or more Qualified Borrowers to be added to
this Agreement by notifying the Administrative Agent thereof, and the Administrative Agent shall
promptly notify each Bank. Borrower shall, or shall cause such Qualified Borrower to, deliver all
documents required to be delivered pursuant to Section 3.1 with respect to a Qualified Borrower,
each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
Following the giving of any notice pursuant



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to this Section 2.21, if the designation of such
Qualified Borrower obligates the Administrative Agent or any Bank to comply with “know your
customer” or similar identification procedures in circumstances where the necessary information is
not already available to it, the Borrower shall, promptly upon the request of the Administrative
Agent or any Bank, supply such documentation and other evidence as is reasonably requested by the
Administrative Agent or any Bank in order for the Administrative Agent or such Bank to carry out
and be satisfied it has complied with the results of all necessary “know your customer” or other
similar checks under all applicable laws and regulations.



          (b) If the Borrower shall designate as a Qualified Borrower hereunder any entity not organized
under the laws of the United States or any State thereof, any Bank may, with notice to the
Administrative Agent and the Borrower, fulfill its Commitment by causing an affiliate of such Bank
to act as the Bank in respect of such Qualified Borrower (and such Bank shall, to the extent of
Loans made to, and participations in Letters of Credit issued for the account of, such Qualified
Borrower be deemed for all purposes hereof to have pro tanto assigned such Loans and participations
to such affiliate in compliance with the provisions of Section 9.6 (but only for so long as such
Loans or Letters of Credit shall be outstanding) except that unless such an affiliate is a
Qualified Institution, nothing herein shall be deemed to have relieved such Bank from its
obligations under its Commitments).


     Section 2.22 Mandatory Prepayments. The Administrative Agent shall calculate the Dollar Equivalent
Amount of all Loans denominated in an Alternate Currency and Letter of Credit Usage of Alternate
Currency Letters of Credit at the time of each Borrowing thereof and on the last Business Day of
each month that either Loans denominated in an Alternate Currency or Alternate Currency Letters of
Credit are outstanding. If at any such time (y) the Dollar Equivalent Amount of the sum of (i) all
outstanding Loans denominated in an Alternate Currency, (ii) all outstanding Loans denominated in
Dollars made against the Alternate Currency Commitments, (iii) the outstanding Dollar Equivalent
Amount of the Letter of Credit Usage for Alternate Currency Letters of Credit, and (iv) the Letter
of Credit Usage for Letters of Credit denominated in Dollars issued against the Alternate Currency
Commitments, so determined by the Administrative Agent, in the aggregate, exceeds 105% of the
Alternate Currency Sublimit, Borrower shall repay (and cause the applicable Qualified Borrowers to
repay) all or a portion of such Loans or post cash collateral with respect to the Alternate
Currency Letters of Credit, otherwise in accordance with the applicable terms of this Agreement, in
such amount so that, following the making of such payment, the Dollar Equivalent Amount outstanding
of such Loans and non-cash collateralized Letter of Credit Usage does not exceed the Alternate
Currency Sublimit, or (z) the Dollar Equivalent Amount of the sum of (i) all outstanding Loans and
(ii) the outstanding Dollar Equivalent Amount of the Letter of Credit Usage so determined by the
Administrative Agent, in the aggregate, exceeds the Commitments, Borrower shall, in each case,
repay (or cause the applicable Qualified Borrower to repay) all or a portion of the Loans,
otherwise in accordance with the applicable terms of this Agreement, in such amount so that,
following the making of such payment, the Dollar Equivalent Amount outstanding of Loans and Letter
of Credit Usage does not exceed the Commitments.



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ARTICLE III




CONDITIONS



     Section 3.1 Closing. The closing hereunder shall occur on the date when each of the following
conditions is satisfied (or waived by the Administrative Agent and the Banks), each document to be
dated the Closing Date unless otherwise indicated:


          (a) the Borrower and any Qualified Borrower shall have executed and delivered to the
Administrative Agent a Note for the account of each Bank dated on or before the Closing Date
complying with the provisions of Section 2.5;


          (b) the Borrower, EQR, the Administrative Agent and each of the Banks shall have executed and
delivered to the Borrower and the Administrative Agent a duly executed original of this Agreement
and the Qualified Borrower Guaranty, if applicable;


          (c) EQR shall have executed and delivered to the Administrative Agent a duly executed original
of the EQR Guaranty, and, if applicable, each Down REIT Guarantor shall have executed and delivered
to the Administrative Agent a duly executed original of a Down REIT Guaranty;


          (d) the Administrative Agent shall have received an opinion of DLA Piper LLP (US), counsel for
the Borrower and any Qualified Borrower, acceptable to the Administrative Agent, the Banks and
their counsel;


          (e) the Borrower shall have repaid in full, and terminated, the Revolving Credit Agreement,
dated as of February 28, 2007, as amended by Amendment to Revolving Credit Agreement, dated as of
March 30, 2007, among the Borrower, EQR, Bank of America N.A., as administrative agent, JPMorgan
Chase Bank, N.A., as syndication agent, and the financial institutions party thereto (the
“Existing Revolving Credit Agreement”).


          (f) the Administrative Agent shall have received all documents the Administrative Agent may
reasonably request relating to the existence of the Borrower and EQR and each Qualified Borrower as
of the Closing Date, if any, the authority for and the validity of this Agreement and the other
Loan Documents, and any other matters relevant hereto, all in form and substance satisfactory to
the Administrative Agent. Such documentation shall include, without limitation, the agreement of
limited partnership of the Borrower, as well as the certificate of limited partnership of the
Borrower, both as amended, modified or supplemented to the Closing Date, certified to be true,
correct and complete by a senior officer of the Borrower as of a date not more than ten (10) days
prior to the Closing Date, together with a certificate of existence as to the Borrower from the
Secretary of State (or the equivalent thereof) of Illinois, to be dated not more than thirty (30)
days prior to the Closing Date, as well as the declaration of trust of EQR, as amended, modified or
supplemented to the Closing Date, certified to be true, correct and complete by a senior officer of
EQR as of a date not more than ten (10) days prior to the Closing Date, together with a good
standing certificate as to EQR from the Secretary of State (or the equivalent thereof) of Maryland,
to be dated not more than thirty (30) days prior to the Closing Date, and correlative documentation
for each Qualified Borrower as of the Closing Date;



59









 







          (g) the Administrative Agent shall have received all certificates, agreements and other
documents and papers referred to in this Section 3.1 and the Notice of Borrowing referred to in
Section 3.2, if applicable, unless otherwise specified, in sufficient counterparts, satisfactory in
form and substance to the Administrative Agent in its sole discretion;


          (h) the Borrower, EQR, each Down REIT Guarantor, if applicable, and each Qualified Borrower,
if applicable, shall have taken all actions required to authorize the execution and delivery of
this Agreement and the other Loan Documents to be executed by Borrower, EQR, each Down REIT
Guarantor and each Qualified Borrower as of the Closing Date, as the case may be, and the
performance thereof by the Borrower, EQR, each Down REIT Guarantor and each Qualified Borrower as
of the Closing Date;


          (i) the Administrative Agent shall be satisfied that neither the Borrower, EQR nor any
Consolidated Subsidiary is subject to any present or contingent environmental liability which could
have a Material Adverse Effect;


          (j) the Administrative Agent shall have received, for its and any other Bank’s account, all
fees due and payable pursuant to Section 2.8 hereof on or before the Closing Date, and the fees and
expenses accrued through the Closing Date of Skadden, Arps, Slate, Meagher & Flom LLP shall have
been paid directly to such firm, if required by such firm and if such firm has delivered an invoice
in reasonable detail of such fees and expenses in sufficient time for the Borrower to approve and
process the same;


          (k) the Administrative Agent shall have received copies of all consents, licenses and
approvals, if any, required in connection with the execution, delivery and performance by the
Borrower, each Qualified Borrower as of the Closing Date, EQR and the applicable Consolidated
Subsidiaries, and the validity and enforceability, of the Loan Documents, or in connection with any
of the transactions contemplated thereby, and such consents, licenses and approvals shall be in
full force and effect;


          (l) the Administrative Agent shall have received (or Borrower shall have made publicly
available) the audited financial statements of the Borrower and its Consolidated Subsidiaries and
of EQR for the fiscal year ended December 31, 2010; and


          (m) no Event of Default shall have occurred.



     Section 3.2 Borrowings. The obligation of any Bank to make a Loan or to participate in any Letter of
Credit issued by the Fronting Bank and the obligation of the Fronting Bank to issue a Letter of
Credit or the obligation of the Swingline Lender to make a Swingline Loan on the occasion of any
Borrowing or Letter of Credit issuance is subject to the satisfaction of the following conditions:


          (a) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2 or
a Notice of Money Market Borrowing as required by Section 2.3 or a request to cause a Fronting Bank
to issue a Letter of Credit pursuant to Section 2.16;


          (b) in the event that such Loan is to be made to, or such Letter of Credit is to be issued for
the account of, a Qualified Borrower, receipt by the Administrative Agent of a Note



60









 








by such
Qualified Borrower for the account of each Bank, if not previously delivered, satisfying
the requirements of Section 2.5, together with all other items that would have been required
to be delivered pursuant to Section 3.1 with respect to such Qualified Borrower;



          (c) immediately after such Borrowing or issuance, the aggregate outstanding principal amount
of the Loans plus the Letter of Credit Usage will not exceed the aggregate amount of the
Commitments;


          (d) immediately before and after such Borrowing or issuance of any Letter of Credit, no Event
of Default shall have occurred and be continuing both before and after giving effect to the making
of such Loans or the issuance of such Letter of Credit;


          (e) the representations and warranties contained in this Agreement and the other Loan
Documents (other than representations and warranties which expressly speak as of a different date
and other than the representation and warranty set forth in Section 4.4(c)(i)) shall be true and
correct in all material respects on and as of the date of such Borrowing both before and after
giving effect to the making of such Loans or the issuance of such Letter of Credit;


          (f) no law or regulation shall have been adopted, no order, judgment or decree of any
Governmental Authority shall have been issued, and no litigation shall be pending, which does or
seeks to enjoin, prohibit or restrain, the making or repayment of the Loans, the issuance of any
Letter of Credit or the consummation of the transactions contemplated by this Agreement and the
other Loan Documents; and


          (g) as of the Closing Date only, no event, act or condition shall have occurred after the date
of the most recent financial statements of Borrower which, in the reasonable judgment of the
Administrative Agent, or the Required Banks, as the case may be, has had or is likely to have a
Material Adverse Effect.



Each Borrowing hereunder or acceptance of a Letter of Credit issued hereunder shall be deemed to be
a representation and warranty by the Borrower on the date of such Borrowing as to the facts
specified in clauses (b), (c), (d), (e), (f) and (g) (with respect to the initial Borrowing
hereunder only, and only to the extent that Borrower is or should have been aware of any Material
Adverse Effect) of this Section, except as otherwise disclosed in writing by Borrower to the Banks.
Notwithstanding anything to the contrary, no Borrowing or issuance of a Letter of Credit shall be
permitted if such Borrowing or issuance would cause Borrower to fail to be in compliance with any
of the covenants contained in this Agreement or in any of the other Loan Documents.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES



          In order to induce the Administrative Agent and each of the Banks which is or may become a
party to this Agreement to make the Loans and issue or participate in Letters of Credit, the
Borrower makes the following representations and warranties as of the Closing Date. Such
representations and warranties shall survive the effectiveness of this Agreement, the
execution and delivery of the other Loan Documents and the making of the Loans and the
issuance of the Letters of Credit.




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     Section 4.1 Existence and Power. The Borrower is a limited partnership, duly formed and validly
existing as a limited partnership under the laws of the State of Illinois and has all powers and
all material governmental licenses, authorizations, consents and approvals required to own its
property and assets and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every jurisdiction in which the
failure to be so qualified and/or in good standing is likely to have a Material Adverse Effect.
EQR is a real estate investment trust, duly formed, validly existing and in good standing as a real
estate investment trust under the laws of the State of Maryland and has all powers and all material
governmental licenses, authorizations, consents and approvals required to own its property and
assets and carry on its business as now conducted or as it presently proposes to conduct and has
been duly qualified and is in good standing in every jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a Material Adverse Effect. Each Qualified
Borrower is a duly formed and validly existing juridical entity under the laws of its jurisdiction
of formation and has all powers and all material governmental licenses, authorizations, consents
and approvals required to own its property and assets and carry on its business as now conducted or
as it presently proposes to conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is likely to have a
Material Adverse Effect.



     Section 4.2 Power and Authority. The Borrower and each Qualified Borrower has the power and authority
to execute, deliver and carry out the terms and provisions of, and to consummate the transactions
contemplated by, each of the Loan Documents to which it is a party and has taken all necessary
action, if any, to authorize the execution and delivery on behalf of the Borrower or such Qualified
Borrower and the performance by the Borrower or such Qualified Borrower of, and the consummation of
the transactions contemplated by, such Loan Documents. The Borrower and each applicable Qualified
Borrower has duly executed and delivered each Loan Document to which it is a party in accordance
with the terms of this Agreement, and each such Loan Document constitutes the legal, valid and
binding obligation of the Borrower and each Qualified Borrower, enforceable in accordance with its
terms, except as enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors’ rights generally, or general principles of equity, whether such enforceability
is considered in a proceeding in equity or at law. EQR has the power and authority to execute,
deliver and carry out the terms and provisions, and the consummation of the transactions
contemplated by, each of the Loan Documents on behalf of the Borrower to which the Borrower is a
party and has taken all necessary action to authorize the execution and delivery on behalf of the
Borrower and the performance by the Borrower of such Loan Documents.



     Section 4.3 No Violation.



          (a) Neither the execution, delivery or performance by or on behalf of the Borrower of the Loan
Documents to which it is a party, nor compliance by the Borrower with the terms and provisions
thereof nor the consummation of the transactions contemplated by the Loan Documents, (i) will
materially contravene any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will materially conflict
with or result in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien upon any of the property or assets of the Borrower or



62









 




any of its Consolidated Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, or other agreement or other instrument to which the Borrower (or of any partnership of
which the Borrower is a partner) or any of its Consolidated Subsidiaries is a party or by which it
or any of its property or assets is bound or to which it is subject, or (iii) will cause a material
default by the Borrower under any organizational document of any Person in which such Borrower has
an interest, or cause a material default under the Borrower’s agreement or certificate of limited
partnership, the consequences of which conflict, breach or default would have a Material Adverse
Effect, or result in or require the creation or imposition of any Lien whatsoever upon any Property
(except as contemplated herein).




          (b) Neither the execution, delivery or performance by or on behalf of any Qualified Borrower
of the Loan Documents to which it is a party, nor compliance by such Qualified Borrower with the
terms and provisions thereof nor the consummation of the transactions contemplated by the Loan
Documents, (i) will materially contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental instrumentality, (ii)
will materially conflict with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of such Qualified
Borrower or any of its Consolidated Subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust, or other agreement or other instrument to which such Qualified Borrower (or of any
partnership of which such Qualified Borrower is a partner) or any of its Consolidated Subsidiaries
is a party or by which it or any of its property or assets is bound or to which it is subject, or
(iii) will cause a material default by such Qualified Borrower under any organizational document of
any Person in which such Qualified Borrower has an interest, or cause a material default under such
Qualified Borrower’s organizational documents, the consequences of which conflict, breach or
default would have a Material Adverse Effect, or result in or require the creation or imposition of
any Lien whatsoever upon any Property (except as contemplated herein).



     Section 4.4 Financial Information.



          (a) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, dated as
of December 31, 2010, and the related consolidated statements of Borrower’s financial position for
the fiscal year then ended, reported on by Ernst & Young LLP, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.



          (b) The consolidated balance sheet of EQR, dated as of December 31, 2010, and the related
consolidated statements of EQR’s financial position for the fiscal year then ended, reported on by
Ernst & Young LLP and set forth in the EQR 2010 Form 10-K, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with GAAP, the consolidated financial position of
EQR and its Consolidated Subsidiaries as of such date and their consolidated results of operations
and cash flows for such fiscal year.



          (c) Since March 30, 2011, (i) except as may have been disclosed in writing to the Banks,
nothing has occurred prior to the Closing Date having a Material Adverse Effect, and



63









 







(ii) except as previously disclosed to the Banks, neither the Borrower nor EQR has incurred any material
indebtedness or guaranty on or before the Closing Date.



     Section 4.5 Litigation. Except as previously disclosed by the Borrower in writing to the Banks prior
to the date hereof, there is no action, suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, nor, to the knowledge of the Borrower, any
investigation of, (i) the Borrower, any Qualified Borrower, EQR or any of their Consolidated
Subsidiaries, (ii) the Loan Documents or any of the transactions contemplated by the Loan Documents
or (iii) any of their assets, before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which could,
individually or in the aggregate, have a Material Adverse Effect or which in any manner draws into
question the validity or enforceability of this Agreement or the other Loan Documents.



     Section 4.6 Compliance with ERISA. The transactions contemplated by the Loan Documents will not
constitute a nonexempt prohibited transaction (as such term is defined in Section 4975 of the Code
or Section 406 of ERISA) that could subject the Administrative Agent or the Banks to any tax or
penalty for prohibited transactions imposed under Section 4975 of the Code or Section 502(i) of
ERISA.



     Section 4.7 Environmental Matters. The Borrower and EQR each conducts reviews of the effect of
Environmental Laws on the business, operations and properties of the Borrower, EQR, Consolidated
Subsidiaries of either or both, and Qualified Borrowers when necessary in the course of which it
identifies and evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of properties presently owned,
any capital or operating expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis of this review,
the Borrower and EQR each has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have a Material Adverse
Effect.



     Section 4.8 Taxes. United States Federal income tax returns of the Borrower, EQR and their
Consolidated Subsidiaries have been prepared and filed through the fiscal year ended December 31,
2009. The Borrower, each Qualified Borrower, EQR and their Consolidated Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower, any Qualified Borrower, EQR or any Consolidated Subsidiary,
except such taxes, if any, as are reserved against in accordance with GAAP, such taxes as are being
contested in good faith by appropriate proceedings or such taxes, the failure to make payment of
which when due and payable will not have, in the aggregate, a Material Adverse Effect. The charges,
accruals and reserves on the books of the
Borrower, any Qualified Borrower, EQR and their Consolidated Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrower, adequate.



64









 





     Section 4.9 Full Disclosure. All information heretofore furnished by the Borrower or any Qualified
Borrower to the Administrative Agent or any Bank for purposes of or in connection with or pursuant
to this Agreement or any transaction contemplated hereby or thereby is true and accurate in all
material respects on the date as of which such information is stated or certified. The Borrower
has disclosed to the Administrative Agent, in writing any and all facts existing on the Closing
Date which have or may have (to the extent the Borrower can now reasonably foresee) a Material
Adverse Effect.



     Section 4.10 Solvency. On the Closing Date and after giving effect to the transactions contemplated by
the Loan Documents occurring on the Closing Date, the Borrower and each Qualified Borrower will be
Solvent.



     Section 4.11 Use of Proceeds; Margin Regulations. All proceeds of the Loans will be used by the
Borrower or the applicable Qualified Borrower only in accordance with the provisions hereof. No
part of the proceeds of any Loan, and no Letter of Credit, will be used by the Borrower to purchase
or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock in any manner that might violate the provisions of Regulations T, U or X of the
Federal Reserve Board. Neither the making of any Loan nor the use of the proceeds thereof nor the
issuance of any Letter of Credit will violate or be inconsistent with the provisions of Regulations
T, U or X of the Federal Reserve Board.



     Section 4.12 Governmental Approvals. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of any Loan Document or the consummation of any of the
transactions contemplated thereby other than those that have already been duly made or obtained and
remain in full force and effect or those which, if not made or obtained, would not have a Material
Adverse Effect.



     Section 4.13 Investment Company Act. Neither the Borrower, any Qualified Borrower, EQR nor any
Consolidated Subsidiary is (x) an “investment company” or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended, or (y) subject to
any other federal or state law or regulation which purports to restrict or regulate its ability to
borrow money or otherwise obtain extensions of credit.



     Section 4.14 Principal Offices. As of the Closing Date, the principal office, chief executive office
and principal place of business of the Borrower is Two North Riverside Plaza, Suite 400, Chicago,
Illinois 60606.



     Section 4.15 REIT Status. For the fiscal year ended December 31, 2010, EQR qualified and EQR intends to
continue to qualify as a real estate investment trust under the Code.



     Section 4.16 No Default. No Event of Default or, to the best of the Borrower’s knowledge, Default
exists and neither the Borrower nor any Qualified Borrower is in default in any material respect
beyond any applicable grace period under or with respect to any other material agreement,
instrument or undertaking to which it is a party or by which it or any of its



65









 







property is bound in
any respect, the existence of which default is likely to result in a Material Adverse Effect.



     Section 4.17 Compliance With Law. To the Borrower’s knowledge, the Borrower, each Qualified Borrower,
and each of the Real Property Assets are in compliance with all laws, rules, regulations, orders,
judgments, writs and decrees, including, without limitation, all building and zoning ordinances and
codes, the failure to comply with which is likely to have a Material Adverse Effect.



     Section 4.18 Organizational Documents. The documents delivered pursuant to Section 3.1(f) constitute,
as of the Closing Date, all of the organizational documents (together with all amendments and
modifications thereof) of the Borrower, each Qualified Borrower as of the Closing Date and EQR.
The Borrower represents that it has delivered to the Administrative Agent true, correct and
complete copies, as of the Closing Date, of each of the documents set forth in this Section 4.18,
except for exhibits to the Borrower’s partnership agreement identifying the current list of
partners which, with the permission of the Banks, have been omitted therefrom.



     Section 4.19 Qualifying Unencumbered Properties. As of December 31, 2010, each Property listed on
Exhibit F as a Qualifying Unencumbered Property (i) is Raw Land, a Property with Development
Activity, a Condo Property or an operating multifamily residential property owned or ground leased
(directly or beneficially) by Borrower, EQR, or a Consolidated Subsidiary or Investment Affiliate
of either or both, (ii) is not subject (nor are any equity interests in such Property that are
owned directly or indirectly by Borrower or EQR subject) to a Lien which secures Indebtedness of
any Person, other than Permitted Liens, (iii) is not subject (nor are any equity interests in such
Property that are owned directly or indirectly by Borrower or EQR subject) to any Negative Pledges,
and (iv) is not owned by a Subsidiary of the Borrower or EQR (other than the Borrower) that has any
outstanding Unsecured Debt (other than those items of Indebtedness set forth in clauses (d) or (e)
of the definition of Indebtedness, or any Contingent Obligation other than guarantees for borrowed
money). All of the information set forth on Exhibit F is true and correct in all material
respects.



ARTICLE V




AFFIRMATIVE AND NEGATIVE COVENANTS



          The Borrower covenants and agrees that, so long as any Bank has any Commitment hereunder or
any Obligations remain unpaid:


     Section 5.1 Information. The Borrower will deliver to each of the Banks:




          (a) as soon as available and in any event within five (5) Business Days after the same is
filed with the Securities and Exchange Commission (but in no event later than 125 days after the
end of each fiscal year of the Borrower) a consolidated balance sheet of the Borrower, EQR and
their Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated
statements of Borrower’s and EQR’s operations and consolidated statements of Borrower’s and EQR’s
cash flow for such fiscal year, setting forth in each case in comparative form the figures as of
the end of and for the previous fiscal year, all as reported on the
form 


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provided to the Securities
and Exchange Commission on Borrower’s and EQR’s Form 10K and reported on by Ernst & Young LLP or
other independent public accountants of nationally recognized standing;



          (b) as soon as available and in any event within five (5) Business Days after the same is
filed with the Securities and Exchange Commission (but in no event later than 80 days after the end
of each of the first three quarters of each fiscal year of the Borrower and EQR), (i) a
consolidated balance sheet of the Borrower, EQR and their Consolidated Subsidiaries as of the end
of such quarter and the related consolidated statements of Borrower’s and EQR’s operations and
consolidated statements of Borrower’s and EQR’s cash flow for such quarter and for the portion of
the Borrower’s or EQR’s fiscal year ended at the end of such quarter, all as reported on the form
provided to the Securities and Exchange Commission on Borrower’s and EQR’s Form 10Q, and (ii) and
such other information reasonably requested by the Administrative Agent or any Bank;



          (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of the chief financial officer, the chief accounting
officer or treasurer of the Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the requirements of Section 5.8
on the date of such financial statements; (ii) certifying (x) that such financial statements fairly
present in all material respects the financial condition and the results of operations of the
Borrower on the dates and for the periods indicated, on the basis of GAAP, with respect to the
Borrower subject, in the case of interim financial statements, to normally recurring year-end
adjustments, and (y) that such officer has reviewed the terms of the Loan Documents and has made,
or caused to be made under his or her supervision, a review in reasonable detail of the business
and condition of the Borrower during the period beginning on the date through which the last such
review was made pursuant to this Section 5.1(c) (or, in the case of the first certification
pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more than ten (10)
Business Days prior to the date of such delivery and that (1) on the basis of such financial
statements and such review of the Loan Documents, no Event of Default existed under Section 6.1(b)
with respect to Sections 5.8 or 5.9 at or as of the date of said financial statements, and (2) on
the basis of such review of the Loan Documents and the business and condition of the Borrower, to
the best knowledge of such officer, as of the last day of the period covered by such certificate no
Default or Event of Default under any other provision of Section 6.1 occurred and is continuing or,
if any such Default or Event of Default has occurred and is continuing, specifying the nature and
extent thereof and the action the Borrower proposes to take in respect thereof. Such certificate
shall set forth the calculations required to establish the matters described in clauses (1) and (2)
above;



          (d) (i) within five (5) Business Days after any officer of the Borrower obtains knowledge of
any Default or Event of Default, if such Default or Event of Default is then continuing, a
certificate of the chief financial officer, the chief accounting officer, treasurer, controller, or
other executive officer of the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto; and (ii) promptly and in any event
within five (5) Business Days after the Borrower obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the Borrower or the Real
Property Assets as to which there is a reasonable possibility of an adverse



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determination and
which, if adversely determined, is likely to individually or in the aggregate, result in a Material
Adverse Effect, and (y) any other event, act or condition which is likely to result in a Material
Adverse Effect;



          (e) promptly upon the mailing thereof to the shareholders of EQR generally, and to the extent
the same are not publicly available, copies of all financial statements, reports and proxy
statements so mailed;



          (f) promptly upon the filing thereof and to the extent that the same are not publicly
available, copies of all registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) (other than the exhibits thereto, which exhibits will be provided upon request
therefor by any Bank) which EQR shall have filed with the Securities and Exchange Commission;



          (g) promptly and in any event within thirty (30) days, if and when any member of the ERISA
Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails
to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security, and in the case of
clauses (i) through (vii) above, which event could result in a Material Adverse Effect, a
certificate of the chief financial officer or the chief accounting officer of the Borrower setting
forth details as to such occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;



          (h) promptly and in any event within ten (10) days after the Borrower obtains actual knowledge
of any of the following events, a certificate of the Borrower, executed by an officer of the
Borrower, specifying the nature of such condition, and the Borrower’s or, if the Borrower has
actual knowledge thereof, the Environmental Affiliate’s proposed initial response thereto: (i) the
receipt by the Borrower, or, if the Borrower has actual knowledge thereof, any of the Environmental
Affiliates of any communication (written or oral), whether from a Governmental Authority, citizens
group, employee or otherwise, that alleges that the Borrower, or, if the Borrower has actual
knowledge thereof, any of the Environmental Affiliates, is not in compliance with applicable
Environmental Laws, and such noncompliance is likely to have a



68









 







Material Adverse Effect, (ii) the
Borrower shall obtain actual knowledge that there exists any Environmental Claim pending against
the Borrower or any Environmental Affiliate and such Environmental Claim is likely to have a
Material Adverse Effect or (iii) the Borrower obtains actual knowledge of any release, emission,
discharge or disposal of any Material of Environmental Concern that is likely to form the basis of
any Environmental Claim against the Borrower or any Environmental Affiliate which in any such event
is likely to have a Material Adverse Effect;



          (i) promptly and in any event within five (5) Business Days after receipt of any material
notices or correspondence from any company or agent for any company providing insurance coverage to
the Borrower relating to any loss which is likely to result in a Material Adverse Effect, copies of
such notices and correspondence; and



          (j) from time to time such additional information regarding the financial position or business
of the Borrower, EQR and their Subsidiaries as the Administrative Agent, at the request of any
Bank, may reasonably request in writing.



     Section 5.2 Payment of Obligations. Each of the Borrower, each Qualified Borrower, EQR and their
Consolidated Subsidiaries will pay and discharge, at or before maturity, all its respective
material obligations and liabilities including, without limitation, any obligation pursuant to any
agreement by which it or any of its properties is bound, in each case where the failure to so pay
or discharge such obligations or liabilities is likely to result in a Material Adverse Effect, and
will maintain in accordance with GAAP, appropriate reserves for the accrual of any of the same.



     Section 5.3 Maintenance of Property; Insurance; Leases.



          (a) The Borrower and/or EQR will keep, and will cause each Consolidated Subsidiary and
Qualified Borrower to keep, all property useful and necessary in its business, including without
limitation the Real Property Assets (for so long as it constitutes Real Property Assets), in good
repair, working order and condition, ordinary wear and tear excepted, in each case where the
failure to so maintain and repair will have a Material Adverse Effect.



          (b) The Borrower, each Qualified Borrower and/or EQR shall maintain, or cause to be
maintained, 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 type and size in the industry, and furnish the Administrative Agent satisfactory
evidence thereof promptly upon Administrative Agent’s reasonable request.



     Section 5.4 Conduct of Business and Maintenance of Existence. The Borrower, each Qualified Borrower
and EQR will continue to engage in business of the same general type as now conducted by the
Borrower and EQR, and each will preserve, renew and keep in full force and effect, its partnership
and trust existence and its respective rights, privileges and franchises necessary for the normal
conduct of business unless the failure to maintain such rights and franchises does not have a
Material Adverse Effect.



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     Section 5.5 Compliance with Laws. The Borrower and EQR will and will cause their Subsidiaries to
comply in all material respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation, Environmental Laws, and
all zoning and building codes with respect to the Real Property Assets and ERISA and the rules and
regulations thereunder and all federal securities laws) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or where the failure to do so will
not have a Material Adverse Effect or expose Administrative Agent or the Banks to any material
liability therefor.



     Section 5.6 Inspection of Property, Books and Records. Each of the Borrower and EQR will keep proper
books of record and account in which full, true and correct entries shall be made of all material
dealings and transactions in relation to its business and activities in conformity with GAAP,
modified as required by this Agreement and applicable law; and will permit representatives of any
Bank at such Bank’s expense to visit and inspect any of its properties, including without
limitation the Real Property Assets, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers and independent public
accountants, all at such reasonable times during normal business hours, upon reasonable prior
notice and as often as may reasonably be desired. Administrative Agent shall coordinate any such
visit or inspection to arrange for review by any Bank requesting any such visit or inspection.



     Section 5.7 Intentionally Omitted.



     Section 5.8 Financial Covenants.



          (a) Indebtedness to Gross Asset Value. Borrower shall not permit the ratio of
Indebtedness of Borrower and EQR (excluding Indebtedness of Consolidated Subsidiaries or Investment
Affiliates), and Borrower’s Share of Indebtedness of all Consolidated Subsidiaries and Investment
Affiliates to Gross Asset Value of Borrower and EQR to exceed 0.60:1 at any time; provided,
however, that with respect to any Fiscal Quarter in which Borrower acquired any Real Property
Assets (whether by purchase, merger or other corporate transaction), at Borrower’s election, the
ratio of Indebtedness of Borrower and EQR (excluding Indebtedness of Consolidated Subsidiaries or
Investment Affiliates), and Borrower’s Share of Indebtedness of all
Consolidated Subsidiaries and Investment Affiliates to Gross Asset Value of Borrower and EQR
for such Fiscal Quarter and for the next three succeeding Fiscal Quarters may exceed 0.60:1,
provided that such ratio in no event shall exceed 0.65:1, and provided, further, that thereafter
such ratio shall not exceed 0.60:1. For purposes of this covenant, (i) Indebtedness shall be
adjusted by deducting therefrom an amount equal to the lesser of (x) Indebtedness that by its terms
is scheduled to mature on or before the date that is 24 months from the date of calculation, and
(y) Unrestricted Cash or Cash Equivalents, and (ii) Gross Asset Value shall be adjusted by
deducting therefrom the amount by which Indebtedness is adjusted under clause (i).



          (b) Secured Debt to Gross Asset Value. Borrower shall not permit the ratio of Secured
Debt of Borrower and EQR (excluding Indebtedness of Consolidated Subsidiaries or Investment
Affiliates), and Borrower’s Share of Secured Debt of all Consolidated Subsidiaries and Investment
Affiliates to Gross Asset Value of Borrower and EQR to exceed 0.40:1 at any time.



70









 





          (c) Consolidated EBITDA to Fixed Charges Ratio. Borrower shall not permit the ratio
of Consolidated EBITDA for the then most recently completed twelve (12) month period to Fixed
Charges for the then most recently completed twelve (12) month period to be less than 1.50:1.



          (d) Unencumbered Pool. Borrower shall not permit the ratio of the Unencumbered Asset
Value to outstanding Unsecured Debt to be less than 1.50:1 at any time.



          (e) Permitted Holdings. Borrower’s and EQR’s primary business will be the ownership,
operation and development of multifamily residential property (including conversions to
condominiums) and any other business activities of Borrower, EQR and Subsidiaries of either or both
will remain incidental thereto. Notwithstanding the foregoing, Borrower, EQR and Subsidiaries of
either or both may acquire or maintain Permitted Holdings if and so long as the aggregate value of
Permitted Holdings, whether held directly or indirectly (but without duplication) by Borrower, EQR
and/or their Subsidiaries, does not exceed, at any time, thirty-five percent (35%) of Gross Asset
Value of Borrower and EQR as a whole.



          (f) Calculation. Each of the foregoing ratios and financial requirements shall be
calculated as of the last day of each Fiscal Quarter.



     Section 5.9 Restriction on Fundamental Changes.



          (a) Neither the Borrower nor EQR shall enter into any merger or consolidation, unless (i)
either (x) the Borrower or EQR is the surviving entity, or (y) the individuals constituting EQR’s
Board of Trustees immediately prior to such merger or consolidation represent a majority of the
surviving entity’s Board of Directors or Board of Trustees after such merger or consolidation, and
(ii) the entity which is merged with Borrower or EQR is predominantly in the commercial real estate
business.



          (b) The Borrower shall not amend its agreement of limited partnership or other organizational
documents in any manner that would have a Material Adverse Effect without the Administrative
Agent’s consent, which shall not be unreasonably withheld. EQR shall not amend its declaration of
trust, by-laws, or other organizational documents in any manner that would have a Material Adverse
Effect without the Administrative Agent’s consent, which shall not be unreasonably withheld. No
Qualified Borrower shall amend its organizational documents in any manner that would have a
Material Adverse Effect without the Required Banks’ consent.



          (c) The Borrower shall deliver to Administrative Agent copies of all amendments to its
agreement of limited partnership or to EQR’s declaration of trust, by-laws, or other organizational
documents simultaneously with the first delivery of financial statements referred to in Sections
5.1(a) or (b) above following the effective date of any such amendment.



     Section 5.10 Changes in Business. Except for Permitted Holdings, neither the Borrower, any Qualified
Borrower nor EQR shall enter into any business which is substantially different from that conducted
by the Borrower or EQR on the Closing Date after giving effect to the transactions contemplated by
the Loan Documents. The Borrower shall carry on its business operations through the Borrower and
its Subsidiaries and Investment Affiliates.



71









 





     Section 5.11 Margin Stock. None of the proceeds of any Loan, and no Letter of Credit, will be used,
directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock in any manner that might violate the provisions of Regulations T, U or X
of the Federal Reserve Board.



     Section 5.12 Intentionally Omitted.



     Section 5.13 EQR Status.



          (a) Status. EQR shall at all times (i) remain a publicly traded company listed on the
New York Stock Exchange or another national stock exchange located in the United States and (ii)
maintain its status as a self-directed and self-administered real estate investment trust under the
Code.



          (b) Indebtedness. EQR shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:




               (1) the Obligations; and




               (2) Indebtedness which, after giving effect thereto, may be incurred or may remain
outstanding without giving rise to an Event of Default or Default.



          (c) Disposal of Partnership Interests. EQR will not directly or indirectly convey,
sell, transfer, assign, pledge or otherwise encumber or dispose of any of its partnership interests
in Borrower, except for the reduction of EQR’s interest in the Borrower arising from
Borrower’s issuance of partnership interests in the Borrower or the retirement of preference
units by Borrower.



ARTICLE VI




DEFAULTS



     Section 6.1 Events of Default. If one or more of the following events (“Events of Default”) shall have
occurred and be continuing:



          (a) the Borrower or any Qualified Borrower shall fail to pay when due any principal of any
Loan, or the Borrower or any Qualified Borrower shall fail to pay when due interest on any Loan or
any fees or any other amount payable hereunder and the same shall continue for a period of five (5)
days after the same becomes due;



          (b) the Borrower shall fail to observe or perform any covenant contained in Section 5.8,
Section 5.9, Section 5.11 or Section 5.13;



          (c) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a), (b), (e), (f), (g), (h), (j), (n) or (o) of this
Section 6.1) for 30 days after written notice thereof has been given to the Borrower by the
Administrative Agent, or if such default is of such a nature that it cannot with reasonable



72









 







effort
be completely remedied within said period of thirty (30) days such additional period of time as may
be reasonably necessary to cure same, provided Borrower commences such cure within said thirty (30)
day period and diligently prosecutes same, until completion, but in no event shall such extended
period exceed ninety (90) days;



          (d) any representation, warranty, certification or statement made or deemed made by the
Borrower in this Agreement or in any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect in any material respect when made (or
deemed made) and the defect causing such representation or warranty to be incorrect when made (or
deemed made) is not removed within thirty (30) days after written notice thereof from
Administrative Agent to Borrower;



          (e) the Borrower, any Qualified Borrower, EQR, any Subsidiary or any Investment Affiliate
shall default in the payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any Recourse Debt (other than
the Obligations) for which the aggregate outstanding principal amount exceeds $50,000,000 and such
default shall continue beyond the giving of any required notice and the expiration of any
applicable grace period and such default has not been waived, in writing, by the holder of any such
Debt; or the Borrower, any Qualified Borrower, EQR, any Subsidiary or any Investment Affiliate
shall default in the performance or observance of any obligation or condition with respect to any
such Recourse Debt or any other event shall occur or condition exist beyond the giving of any
required notice and the expiration of any applicable grace period, if the effect of such default,
event or condition is to accelerate the maturity of any
such indebtedness or to permit (without any further requirement of notice or lapse of time)
the holder or holders thereof, or any trustee or agent for such holders, to accelerate the maturity
of any such indebtedness;



          (f) the Borrower or EQR shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or admit in writing its inability to pay its debts as such debts become
due, or shall take any action to authorize any of the foregoing;



          (g) an involuntary case or other proceeding shall be commenced against the Borrower or EQR
seeking liquidation, reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 90 days; or an order for relief shall be entered against the Borrower or
EQR under the federal bankruptcy laws as now or hereafter in effect;



          (h) one or more final, non-appealable judgments or decrees (or one or more judgments which
is/are not stayed pending appeal) in an aggregate amount of Fifty Million



73









 







Dollars ($50,000,000) or
more shall be entered by a court or courts of competent jurisdiction against the Borrower, any
Qualified Borrower, EQR or, to the extent of any recourse to Borrower, EQR or any Qualified
Borrower, any of their respective Consolidated Subsidiaries (other than any judgment as to which,
and only to the extent, a reputable insurance company has acknowledged coverage of such claim in
writing) and (i) any such judgments or decrees shall not be stayed, discharged, paid, bonded or
vacated within thirty (30) days or (ii) enforcement proceedings shall be commenced by any creditor
on any such judgments or decrees;



          (i) there shall be a change in the majority of the Board of Directors or Board of Trustees of
EQR during any twelve (12) month period, excluding any change in directors or trustees resulting
from (w) the retirement/resignation of any director or trustee as a result of compliance with any
written policy of EQR requiring retirement/resignation from the Board upon reaching the retirement
age specified in such policy or in connection with EQR’s Majority Voting Policy, (x) the death or
disability of any director or trustee, or (y) satisfaction of any requirement for the majority of
the members of the board of directors or trustees of EQR to qualify under applicable law as
independent directors or trustees or (z) the replacement of any director or trustee who is an
officer or employee of EQR or an affiliate of EQR with any other officer or employee of EQR or an
affiliate of EQR;



          (j) any Person or “group” (as such term is defined in applicable federal securities laws and
regulations) shall acquire more than thirty percent (30%) of the common
shares of EQR, provided, however, that Persons acquiring common shares of EQR from EQR in
connection with an acquisition or other transaction with EQR, without any agreement among such
Persons to act together to hold, dispose of, or vote such shares following the acquisition of such
shares, shall not be considered a “group” for purposes of this clause (j);



          (k) intentionally omitted;



          (l) any Termination Event with respect to a Plan shall occur as a result of which Termination
Event or Events any member of the ERISA Group has incurred or may incur any liability to the PBGC
or any other Person and the sum (determined as of the date of occurrence of such Termination Event)
of the insufficiency of such Plan and the insufficiency of any and all other Plans with respect to
which such a Termination Event shall have occurred and be continuing (or, in the case of a
Multiemployer Plan with respect to which a Termination Event described in clause (ii) of the
definition of Termination Event shall have occurred and be continuing, the liability of the
Borrower) is equal to or greater than $20,000,000 and which the Administrative Agent reasonably
determines will have a Material Adverse Effect;



          (m) any member of the ERISA Group shall commit a failure described in Section 302(f)(1) of
ERISA or Section 412(n)(1) of the Code and the amount of the lien determined under Section
302(f)(3) of ERISA or Section 412(n)(3) of the Code that could reasonably be expected to be imposed
on any member of the ERISA Group or their assets in respect of such failure shall be equal to or
greater than $20,000,000 and which the Administrative Agent reasonably determines will have a
Material Adverse Effect;



          (n) at any time, for any reason the Borrower or any Qualified Borrower or EQR seeks to
repudiate its obligations under any Loan Document; or



74









 





          (o) a default beyond any applicable notice or grace period under any of the other Loan
Documents.



     Section 6.2 Rights and Remedies.



          (a) Upon the occurrence of any Event of Default described in Sections 6.1(f) or (g), the
Commitments and the Swingline Commitment shall immediately terminate and the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable, with all additional
interest from time to time accrued thereon during the continuance of such Event of Default at the
Default Rate and without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all of which are hereby expressly
waived by the Borrower for itself and on behalf of any Qualified Borrower; and upon the occurrence
and during the continuance of any other Event of Default, subject to the provisions of Section
6.2(b), the Administrative Agent may (and upon the demand of the Required Banks shall), by written
notice to the Borrower, in addition to the exercise of all of the rights and remedies permitted the
Administrative Agent and the Banks at law or equity or under
any of the other Loan Documents, declare the Commitments terminated and the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and all accrued fees and
other Obligations hereunder to be, and the same shall thereupon be, immediately due and payable
with all additional interest from time to time accrued thereon and (except as otherwise as provided
in the Loan Documents) without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all of which are hereby expressly
waived by the Borrower for itself and on behalf of any Qualified Borrower.



          (b) Notwithstanding anything to the contrary contained in this Agreement or in any other Loan
Document, the Administrative Agent and the Banks each agree that any exercise or enforcement of the
rights and remedies granted to the Administrative Agent or the Banks under this Agreement or at law
or in equity with respect to this Agreement or any other Loan Documents shall be commenced and
maintained by the Administrative Agent on behalf of the Administrative Agent and/or the Banks. The
Administrative Agent shall act at the direction of the Required Banks in connection with the
exercise of any and all remedies at law, in equity or under any of the Loan Documents (including,
without limitation, those set forth in Section 6.4 hereof) or, if the Required Banks are unable to
reach agreement within thirty (30) days of commencement of discussions, then, from and after an
Event of Default and the end of such thirty (30) day period, the Administrative Agent may pursue
such rights and remedies as it may determine if it shall reasonably determine that the same shall
be in the best interests of the Banks, taken as a whole.



     Section 6.3 Notice of Default. The Administrative Agent shall give notice to the Borrower under
Section 6.1(c) promptly upon being requested to do so by the Required Banks and shall thereupon
notify all the Banks thereof. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default (other than nonpayment of principal of
or interest on the Loans) unless Administrative Agent has received notice in writing from a Bank or
Borrower or any court or governmental agency referring to this



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Agreement or the other Loan
Documents, describing such event or condition. Should Administrative Agent receive notice of the
occurrence of a Default or Event of Default expressly stating that such notice is a notice of a
Default or Event of Default, or should Administrative Agent send Borrower a notice of Default or
Event of Default, Administrative Agent shall promptly give notice thereof to each Bank.



     Section 6.4 Actions in Respect of Letters of Credit.



          (a) If, at any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then, upon the occurrence
and during the continuation thereof, the Administrative Agent may, and upon the demand of the
Required Banks shall, whether in addition to the taking by the Administrative Agent of any of the
actions described in this Article or otherwise, make a demand upon the Borrower to, and forthwith
upon such demand (but in any event within ten (10) days after such demand) the Borrower shall
(provided that upon the occurrence of any Event of Default it described in Section 6.1(f) or 6.1(g)
the Borrower shall automatically be required to), pay to the
Administrative Agent, on behalf of the Banks, in same day funds at the Administrative Agent’s
office designated in such demand, for deposit in a special cash collateral account (the “Letter
of Credit Collateral Account”) to be maintained in the name of the Administrative Agent (on
behalf of the Banks) and under its sole dominion and control at such place as shall be designated
by the Administrative Agent, an amount equal to the amount of the Letter of Credit Usage under the
Letters of Credit. Interest shall accrue on the Letter of Credit Collateral Account at a rate
equal to the rate on overnight funds.



          (b) The Borrower hereby grants to the Administrative Agent, as administrative agent, for its
benefit and the ratable benefit of the Banks a lien on and a security interest in, the following
collateral (the “Letter of Credit Collateral”):




          (i) the Letter of Credit Collateral Account, all cash deposited therein and all
certificates and instruments, if any, from time to time representing or evidencing the
Letter of Credit Collateral Account;




          (ii) all notes, certificates of deposit and other instruments from time to time
hereafter delivered to or otherwise possessed by the Administrative Agent for or on behalf
of the Borrower in substitution for or in respect of any or all of the then existing Letter
of Credit Collateral;




          (iii) all interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of
the then existing Letter of Credit Collateral; provided that if no Event of Default shall
have occurred and be continuing, any interest, dividends or other earnings received with
respect to the Letter of Credit Collateral shall be distributed to Borrower on a monthly
basis; and




          (iv) to the extent not covered by the above clauses, all proceeds of any or all of the
foregoing Letter of Credit Collateral.



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The lien and security interest granted hereby secures the payment of all Obligations of the
Borrower now or hereafter existing hereunder and under any other Loan Document.




          (c) The Borrower hereby authorizes the Administrative Agent for the ratable benefit of the
Banks to apply, from time to time after funds are deposited in the Letter of Credit Collateral
Account, funds then held in the Letter of Credit Collateral Account to the payment of any amounts,
in such order as the Administrative Agent may elect, as shall have become due and payable by the
Borrower to the Banks in respect of the Letters of Credit.



          (d) Neither the Borrower nor any Person claiming or acting on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in the Letter of Credit Collateral
Account, except as provided in Sections 6.4(b) and (h) hereof.



          (e) The Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the
Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest
or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral,
except for the security interest created by this Section 6.4.



          (f) If any Event of Default shall have occurred and be continuing:




          (i) The Administrative Agent may, in its sole discretion, without notice to the
Borrower except as required by law and at any time and from time to time, charge, set off or
otherwise apply all or any part of the Letter of Credit Collateral, first, (x)
amounts previously drawn on any Letter of Credit that have not been reimbursed by the
Borrower and (y) any Letter of Credit Usage described in clause (ii) of the definition
thereof that are then due and payable and second, any other unpaid Obligations then
due and payable against the Letter of Credit Collateral Account or any part thereof, in such
order as the Administrative Agent shall elect. The rights of the Administrative Agent under
this Section 6.4 are in addition to any rights and remedies which any Bank may have.




          (ii) The Administrative Agent may also exercise, in its sole discretion, in respect of
the Letter of Credit Collateral Account, in addition to the other rights and remedies
provided herein or otherwise available to it, all the rights and remedies of a secured party
upon default under the Uniform Commercial Code in effect in the State of Illinois at that
time.



          (g) The Administrative Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Letter of Credit Collateral if the Letter of Credit Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords its own property, it
being understood that, assuming such treatment, the Administrative Agent and the Banks shall not
have any responsibility or liability with respect thereto.



          (h) At such time as all Events of Default have been cured or waived in writing, all amounts
remaining in the Letter of Credit Collateral Account shall be promptly returned to the Borrower,
and in the case of Letters of Credit maturing after the Maturity Date, upon the return of any such
Letters of Credit, any amount attributable to such Letter of Credit shall be promptly returned to
the Borrower. Absent such cure or written waiver or return, any surplus of



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the funds held in the
Letter of Credit Collateral Account and remaining after payment in full of all of the Obligations
of the Borrower hereunder and under any other Loan Document after the Maturity Date shall be paid
to the Borrower or to whomsoever may be lawfully entitled to receive such surplus.



     Section 6.5 Distribution of Proceeds after Default. Notwithstanding anything contained herein to the
contrary, from and after an Event of Default, to the extent proceeds are received by Administrative
Agent, such proceeds will be distributed promptly to the Banks pro rata in accordance with the
unpaid principal amount of the Loans.



ARTICLE VII




THE AGENTS



     Section 7.1 Appointment and Authorization. Each Bank irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with all such powers and discretion as are reasonably incidental
thereto. Except as set forth in Sections 7.8 and 7.9, the provisions of this Article VII are solely
for the benefit of Administrative Agent and the Banks, and Borrower shall not have any right to
rely on or enforce any of the provisions of this Article VII. In performing its functions and
duties under this Agreement, Administrative Agent shall act solely as an agent of the Banks and
does not assume and shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Borrower.



     Section 7.2 Agency and Affiliates. Bank of America, N.A. (and any other Bank hereafter acting as
Administrative Agent) shall have the same rights and powers under this Agreement as any other Bank
and may exercise or refrain from exercising the same as though it were not the Administrative
Agent, and Bank of America, N.A. (and any other Bank hereafter acting as Administrative Agent) and
its affiliates may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower, EQR or any Subsidiary or affiliate of the Borrower as if it were not
the Administrative Agent hereunder, and the term “Bank” and “Banks” shall include Bank of America,
N.A. (and any other Bank hereafter acting as Administrative Agent) in its individual capacity.



     Section 7.3 Action by Administrative Agent. The obligations of the Administrative Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action with respect to any Default or Event
of Default, except as expressly provided in Article VI. The duties of Administrative Agent shall
be administrative in nature. Subject to the provisions of Sections 7.1, 7.5 and 7.6,
Administrative Agent shall administer the Loans in the same manner as it administers its own loans.



     Section 7.4 Consultation with Experts. As between Administrative Agent and the Banks, the
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be liable



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for any action taken or omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.



     Section 7.5 Liability of Administrative Agent, Syndication Agent, Documentation Agents. As between
Administrative Agent and the Banks, none of the Administrative Agent, the Syndication Agent, or the
Documentation Agents, nor any of their affiliates nor any of their respective directors, officers,
agents or employees, shall be liable for any action taken or not taken by any of them in connection
herewith (i) with the consent or at the request of the Required Banks or (ii) in the absence of its
own gross negligence or wilful misconduct. As between
Administrative Agent and the Banks, none of the Administrative Agent, the Syndication Agent, or the
Documentation Agents, nor any of their respective directors, officers, agents or employees, shall
be responsible for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any borrowing hereunder; (ii)
the performance or observance of any of the covenants or agreements of the Borrower, except with
respect to payment of principal and interest; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the Administrative Agent; or (iv)
the validity, effectiveness or genuineness of this Agreement, the other Loan Documents or any other
instrument or writing furnished in connection herewith. As between Administrative Agent and the
Banks, the Administrative Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank wire, or similar
writing) believed by it to be genuine or to be signed by the proper party or parties. Anything to
the contrary notwithstanding, none of the Co-Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any other Loan Document,
except in its capacity, as applicable, as the Administrative Agent, a Fronting Bank, the Swingline
Lender or a Bank hereunder.



     Section 7.6 Indemnification. Each Bank shall on a several basis, ratably in accordance with its
Commitment, indemnify the Administrative Agent, the Syndication Agent, and the Documentation
Agents, and their respective affiliates and directors, officers, agents and employees (to the
extent not reimbursed by the Borrower, but without affecting Borrower’s reimbursement obligations),
against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitee’s gross negligence or wilful misconduct)
that such indemnitee may suffer or incur in connection with its duties as Administrative Agent
and/or Syndication Agent and/or Documentation Agents under this Agreement, the other Loan Documents
or any action taken or omitted by such indemnitee hereunder as Administrative Agent or as
Syndication Agent. In the event that the Syndication Agent, the Documentation Agents or the
Administrative Agent shall, subsequent to its receipt of indemnification payment(s) from Banks in
accordance with this Section, recoup any amount from the Borrower, or any other party liable
therefor in connection with such indemnification, Syndication Agent, such Documentation Agents or
the Administrative Agent shall reimburse the Banks which previously made the payment(s) pro rata,
based upon the actual amounts which were theretofore paid by each Bank. The Syndication Agent, the
Documentation Agents, or the Administrative Agent, as the case may be, shall reimburse such Banks
so entitled to reimbursement within two (2) Business Days after its receipt of such funds from the
Borrower or such other party liable therefor.



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     Section 7.7 Credit Decision. Each Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Syndication Agent, or the Documentation Agents, or any other
Bank, and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent, Syndication Agent, the
Documentation Agents or any other Bank, 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 any
action under this Agreement.



     Section 7.8 Successor Administrative Agent or Syndication Agent. The Administrative Agent, the
Syndication Agent, or the Documentation Agents may resign at any time by giving notice thereof to
the Banks, the Borrower and each other and the Administrative Agent or the Syndication Agent, as
applicable, shall resign in the event the Commitment of the Bank serving as the Administrative
Agent or the Syndication Agent is reduced to less than $10,000,000. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Administrative Agent or Syndication
Agent, as applicable, which successor Administrative Agent or successor Syndication Agent (as
applicable) shall, provided no Event of Default has occurred and is then continuing, be subject to
Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that
Borrower shall, in all events, be deemed to have approved Bank of America, N.A. as a successor
Syndication Agent and JPMorgan Chase Bank, N.A. as a successor Administrative Agent). If no
successor Administrative Agent or Syndication Agent (as applicable) shall have been so appointed by
the Required Banks and (if required) approved by the Borrower, or, if so appointed, shall not have
accepted such appointment within 30 days after the retiring Administrative Agent or Syndication
Agent (as applicable) gives notice of resignation, then the retiring Administrative Agent or
retiring Syndication Agent (as applicable) may, on behalf of the Banks, appoint a successor
Administrative Agent or Syndication Agent (as applicable), which shall be the Syndication Agent or
the Administrative Agent, as the case may be, who shall act until the Required Banks shall appoint
a successor Administrative Agent or Syndication Agent. In any event, the retiring Administrative
Agent shall continue to act as Administrative Agent until such time as a successor Administrative
Agent shall have been so appointed by the Required Banks, approved by Borrower (if required), and
assumed its duties hereunder. Upon the acceptance of its appointment as the Administrative Agent or
Syndication Agent hereunder by a successor Administrative Agent or successor Syndication Agent, as
applicable, such successor Administrative Agent or successor Syndication Agent, as applicable,
shall thereupon succeed to and become vested with all the rights and duties of the retiring
Administrative Agent or retiring Syndication Agent, as applicable, and the retiring Administrative
Agent or the retiring Syndication Agent, as applicable, shall be discharged from its duties and
obligations hereunder. The rights and duties of the Administrative Agent to be vested in any
successor Administrative Agent shall include, without limitation, the rights and duties as
Swingline Lender. After any retiring Administrative Agent’s or retiring Syndication Agent’s
resignation hereunder, the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent or the Syndication Agent,
as applicable. For gross negligence or willful misconduct or if the Administrative Agent shall
become a Defaulting Lender, as determined by the Required Banks (excluding for such determination
the Bank serving as Administrative Agent or Syndication Agent in its capacity as a Bank, as
applicable), the Administrative Agent or Syndication Agent may be removed at any time by the
Required



80









 







Banks or, in the case of the Administrative Agent becoming a Defaulting Lender only, by
either the Required Banks or the Borrower, giving at least thirty (30) Business Days prior written
notice to the Administrative Agent, Syndication Agent, Borrower and, in the case of a removal of
the Administrative Agent by Borrower as a result of it becoming a Defaulting Lender, the Banks.
Such resignation or removal shall take effect upon the acceptance of appointment by a successor
Administrative Agent or Syndication Agent, as applicable, in accordance with the provisions of this
Section 7.8.



     Section 7.9 Consents and Approvals. All communications from Administrative Agent to the Banks
requesting the Banks’ determination, consent, approval or disapproval (i) shall be given in the
form of a written notice to each Bank, (ii) shall be accompanied by a description of the matter or
item as to which such determination, approval, consent or disapproval is requested, or shall advise
each Bank where such matter or item may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a Bank and to the extent not
previously provided to such Bank, written materials and a summary of all oral information provided
to Administrative Agent by Borrower in respect of the matter or issue to be resolved, (iv) shall
include Administrative Agent’s recommended course of action or determination in respect thereof and
(v) shall include, in boldface type, a statement that if any Bank does not respond to such request
within ten (10) Business Days and provide a written explanation of the reasons behind any
objection, such Lender shall be deemed to have approved of or consented to, as applicable, the
recommendation or determination of the Administrative Agent described in such request. Each Bank
shall reply promptly, but in any event within ten (10) Business Days after receipt of the request
therefor from Administrative Agent (the “Bank Reply Period”). Unless a Bank shall give
written notice to Administrative Agent that it objects to the recommendation or determination of
Administrative Agent within the Bank Reply Period, such Bank shall be deemed to have approved of or
consented to such recommendation or determination. With respect to decisions requiring the
approval of the Required Banks or all the Banks, Administrative Agent shall submit its
recommendation or determination for approval of or consent to such recommendation or determination
to all Banks and upon receiving the required approval or consent shall follow the course of action
or determination of the Required Banks (and each non-responding Bank shall be deemed to have
concurred with such recommended course of action) or all the Banks, as the case may be.



ARTICLE VIII




CHANGE IN CIRCUMSTANCES



     Section 8.1 Basis for Determining Interest Rate Inadequate or Unfair. If on or prior to the first day
of any Interest Period for any Euro-Dollar Borrowing or Money Market LIBOR Loan:



          (a) the Administrative Agent determines in good faith that deposits in dollars (in the
applicable amounts) are not being offered in the relevant market for such Interest Period, or



          (b) Banks having 50% or more of the aggregate amount of the applicable Commitments advise the
Administrative Agent that the Euro-Dollar Rate, as determined by the



81









 







Administrative Agent will not
adequately and fairly reflect the cost to each such Bank of funding its Euro-Dollar Loans for such
Interest Period, the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Euro-Dollar Loans shall be suspended. In such event, (a) unless
the Borrower notifies the Administrative Agent at least two Business Days before the date of (i)
any Euro-Dollar Borrowing denominated in Dollars for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, such Borrowing shall instead be made as a
Base Rate Borrowing, or (ii) any Money Market LIBOR Borrowing for which a Notice of Money Market
Borrowing has previously been given, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day, and (b) any Notice of Borrowing
for a Euro-Dollar Borrowing denominated in an Alternate Currency shall be ineffective. For
purposes of this Section 8.1(b), in determining whether the Euro-Dollar Rate, as determined by
Administrative Agent, will not adequately and fairly reflect the cost to any Bank of funding its
Euro-Dollar Loans for such Interest Period, such determination will be based solely on the ability
of such Bank to obtain matching funds in the London interbank market at a reasonably equivalent
rate.


     Section 8.2 Illegality. If, on or after the date of this Agreement, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in
the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by any
Bank (or its Euro-Dollar Lending Office) with any request or directive (whether or not having the
force of law) made after the Closing Date of any such authority, central bank or comparable agency
shall make it unlawful for any Bank (or its Euro-Dollar Lending Office) (x) to make, maintain or
fund its Euro-Dollar Loans, or (y) to participate in any Letter of Credit issued by the Fronting
Bank, or, with respect to the Fronting Bank, to issue any Letter of Credit, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the Borrower, whereupon until such
Bank notifies the Borrower and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank in case of the event described in clause
(x) above to make Euro-Dollar Loans, or in the case of the event described in clause (y) above, to
participate in any Letter of Credit issued by the Fronting Bank or, with respect to the Fronting
Bank, to issue any Letter of Credit, shall be suspended. With respect to Euro-Dollar Loans, before
giving any notice to the Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower or the applicable
Qualified Borrower, as the case may be, shall be deemed to have delivered a Notice of Interest Rate
Election and such Euro-Dollar Loan shall be converted as of such date to a Base Rate Loan (without
payment of any amounts that Borrower or the applicable Qualified Borrower, as the case may be,
would otherwise be obligated to pay pursuant to Section 2.13 with respect to Loans converted
pursuant to this Section 8.2) in an equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.








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          If, at any time, it shall be unlawful for any Bank to make, maintain or fund its Euro-Dollar
Loans, the Borrower shall have the right, upon five (5) Business Day’s notice to the Administrative
Agent, to either (x) cause a bank, reasonably acceptable to the Administrative Agent, to offer to
purchase the Commitments of such Bank for an amount equal to such Bank’s outstanding Loans and all
amounts due such Bank hereunder (including, without limitation, interest, Facility Fees, Letter of
Credit Fees and all amounts payable pursuant to Section 2.13), and to become a Bank hereunder, or
obtain the agreement of one or more existing Banks to offer to purchase the Commitments of such
Bank for such amount, which offer such Bank is hereby required to accept, or (y) to repay in full
all Loans then outstanding of such Bank, together with interest thereon, Facility Fees, Letter of
Credit Fees and all other amounts due such Bank hereunder (including, without limitation, amounts
payable pursuant to Section 2.13), upon which event, such Bank’s Commitment shall be deemed to be
cancelled pursuant to Section 2.11(e). Any Bank subject to this paragraph shall retain the
benefits of Sections 2.16(f), 2.16(g), 8.3, 8.4 and 9.3 for the period prior to such purchase or
cancellation.



     Section 8.3 Increased Cost and Reduced Return.



          (a) If, on or after (x) the date hereof in the case of Committed Loans made pursuant to
Section 2.1, or (y) the date of the related Money Market Quote, in the case of any Money Market
Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) made after the Closing Date of any
such authority, central bank or comparable agency, shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement imposed by the Federal Reserve Board
(but excluding with respect to any Euro-Dollar Loan any such requirement to the extent reflected in
an applicable Euro-Dollar Reserve Percentage)), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit extended by, any Bank
(or its Applicable Lending Office) or shall impose on any Bank (or its Applicable Lending Office)
or on the London interbank market any other condition materially more burdensome in nature, extent
or consequence than those in existence as of the Closing Date affecting such Bank’s Euro-Dollar
Loans, its Note, or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Euro-Dollar Loan, or to reduce the amount of any sum received or receivable by such
Bank (or its Applicable Lending Office) under this Agreement or under its Note with respect to such
Euro-Dollar Loans, by an amount deemed by such Bank to be material (excluding any amounts already
reflected in any Mandatory Costs), then, within 15 days after demand by such Bank (with a copy to
the Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts
(based upon a reasonable allocation thereof by such Bank to the Euro-Dollar Loans made by such Bank
hereunder) as will compensate such Bank for such increased cost or reduction to the extent such
Bank generally imposes such additional amounts on other borrowers of such Bank in similar
circumstances.



          (b) If any Bank shall have reasonably determined that, after the date hereof, the adoption of
any applicable law, rule or regulation regarding capital adequacy, or any change in any law, rule
or regulation regarding capital adequacy or liquidity requirements, or any change



83









 







in the
interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Bank any
request or directive regarding capital adequacy (whether or not having the force of law) made after
the Closing Date of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank (or its Parent) as a consequence of
such Bank’s obligations hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount reasonably deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction to the extent such Bank generally
imposes such additional amounts on other borrowers of such Bank in similar circumstances.



          (c) Each Bank will promptly notify the Borrower and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such compensation and will not,
in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall fail to notify Borrower of any such event within 90 days following the end of the month
during which such event occurred, then Borrower’s liability for any amounts described in this
Section incurred by such Bank as a result of such event shall be limited to those attributable to
the period occurring subsequent to the ninetieth (90th) day prior to the date upon which such Bank
actually notified Borrower of the occurrence of such event. A certificate of any Bank claiming
compensation under this Section and setting forth a reasonably detailed calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of
demonstrable error. In determining such amount, such Bank may use any reasonable averaging and
attribution methods.



          (d) If at any time, any Bank shall be owed amounts pursuant to this Section 8.3, the Borrower
shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x)
cause a bank, reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank’s outstanding Loans and all amounts due
such Bank hereunder (including, without limitation, interest, Facility Fees, Letter of Credit Fees
and all amounts payable pursuant to Section 2.13 and this Section 8.3), and to become a Bank
hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Bank for such amount, which offer such Bank is hereby required to accept, or
(y) to repay in full all Loans then outstanding of such Bank, together with interest thereon,
Facility Fees, Letter of Credit Fees and all other amounts due such Bank hereunder (including,
without limitation, amounts payable pursuant to Section 2.13 and this Section 8.3), upon which
event, such Bank’s Commitment shall be deemed to be cancelled
pursuant to Section 2.11(e). Any Bank subject to this Section 8.3(d) shall retain the
benefits of Sections 2.16(f), 2.16(g), 8.3, 8.4 and 9.3 for the period prior to such purchase or
cancellation.


     Section 8.4 Taxes.


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          (a) Any and all payments by the Borrower or any Qualified Borrower to or for the account of
any Bank or the Administrative Agent hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Bank or
the Administrative Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or similar taxes imposed
on it, by the jurisdiction of such Bank’s Applicable Lending Office or any political subdivision
thereof or by any other jurisdiction (or any political subdivision thereof) as a result of a
present or former connection between such Bank or Administrative Agent and such other jurisdiction
or by the United States (all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as “Non-Excluded Taxes”). If
the Borrower or any Qualified Borrower shall be required by law to deduct any Non-Excluded Taxes
from or in respect of any sum payable hereunder or under any Note or in respect of any Letter of
Credit, (i) the sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 8.4) such
Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower or Qualified Borrower shall make
such deductions, (iii) the Borrower or Qualified Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law and (iv) the
Borrower or Qualified Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 9.1, the original or a certified copy of a receipt evidencing payment thereof.



          (b) In addition, the Borrower and each Qualified Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or similar levies
which arise from any payment made hereunder or under any Note or in respect of any Letter of Credit
or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note or
Letter of Credit (hereinafter referred to as “Other Taxes”).



          (c) The Borrower and each Qualified Borrower agrees to indemnify each Bank, the Fronting Bank
and the Administrative Agent for the full amount of Non-Excluded Taxes or Other Taxes (including,
without limitation, any Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction
on amounts payable under this Section 8.4) paid by such Bank, the Fronting Bank or the
Administrative Agent (as the case may be) and, so long as such Bank or Administrative Agent has
promptly paid any such Non-Excluded Taxes or Other Taxes, any liability for penalties and interest
arising therefrom or with respect thereto. This indemnification shall be made within 15 days from
the date such Bank, the Fronting Bank or the Administrative Agent (as the case may be) makes demand
therefor.



          (d) Each Bank organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Bank listed
on the signature pages hereof and on or prior to the date on which it becomes a Bank in the case of
each other Bank, shall provide the Borrower with an Internal Revenue Service Form W-8BEN or W-8ECI,
as appropriate, or any successor form prescribed by the Internal Revenue Service, and shall provide
Borrower with two further copies of any such form or



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certification on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to Borrower, certifying (i)
in the case of a Form 1001, that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States, and (ii) in the case of
being under Sections 1442(c)(1) and 1442(a) of the Code, that it is entitled to an exemption from
United States backup withholding tax. If the form provided by a Bank at the time such Bank first
becomes a party to this Agreement indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from “Non-Excluded Taxes” as
defined in Section 8.4(a).



          (e) For any period with respect to which a Bank has failed to provide the Borrower with the
appropriate form pursuant to Section 8.4(d) (unless such failure is due to a change in treaty, law
or regulation occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section 8.4(c) with respect to
Non-Excluded Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Non-Excluded Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes so long as Borrower shall incur no cost or liability as a result thereof.



          (f) Upon reasonable demand by Borrower or any Qualified Borrower to the Administrative Agent
or any Bank, the Administrative Agent or Bank, as the case may be, shall deliver to the Borrower or
such Qualified Borrower, or to such government or taxing authority as the Borrower or such
Qualified Borrower may reasonably direct, any form or document that may be required or reasonably
requested in writing in order to allow the Borrower or such Qualified Borrower to make a payment to
or for the account of such Bank or the Administrative Agent hereunder or under any other Loan
Document without any deduction or withholding for or on account of any Non-Excluded Taxes or with
such deduction or withholding at a reduced rate (so long as the completion, execution or submission
of such form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to the Borrower or such Qualified Borrower making such demand and to
be executed and to be delivered with any reasonably required certification.



          (g) If the Borrower or any Qualified Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.4, then such Bank will
change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the judgment of such Bank, is not
otherwise disadvantageous to such Bank.



          (h) If, at any time, any Bank shall be owed amounts pursuant to this Section 8.4, the Borrower
shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x)
cause a bank, reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank’s outstanding Loans



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and all amounts due
such Bank hereunder (including, without limitation, interest, Facility Fees, Letter of Credit Fees
and all amounts payable pursuant to Section 2.13 and this Section 8.4), and to become a Bank
hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Bank for such amount, which offer such Bank is hereby required to accept, or
(y) to repay in full all Loans then outstanding of such Bank, together with interest thereon,
Facility Fees, Letter of Credit Fees and all other amounts due such Bank hereunder (including,
without limitation, amounts payable pursuant to Section 2.13 and this Section 8.4), upon which
event, such Bank’s Commitment shall be deemed to be cancelled pursuant to Section 2.11(c). Any
Bank subject to this Section 8.4(d) shall retain the benefits of Sections 2.16(f), 2.16(g), 8.3,
8.4 and 9.3 for the period prior to such purchase or cancellation.


     Section 8.5 Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.2 or (ii) any Bank has
demanded compensation under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the
Borrower shall, by at least five Euro-Dollar Business Days’ prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:




          (a) Borrower shall be deemed to have delivered a Notice of Interest Rate Election with respect
to such affected Euro-Dollar Loans and thereafter all Loans which would otherwise be made by such
Bank as Euro-Dollar Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the other Banks), and no
Borrowing from such Bank shall take effect with respect to Loans denominated in an Alternate
Currency, and



          (b) after each of its Euro-Dollar Loans has been repaid, all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead, and



          (c) Borrower will not be required to make any payment which would otherwise be required by
Section 2.13 with respect to such Euro-Dollar Loans converted to Base Rate Loans pursuant to clause
(a) above.



     Section 8.6 Dodd-Frank Wall Street Reform and Consumer Protection Act and Basel III.
Whenever there is a reference in this Article VIII to the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or directive (whether
or not having the force of law) made after the Closing Date, notwithstanding anything contained
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith, and (y) 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 be deemed in
each case to have gone into effect and adopted after the Closing Date.




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ARTICLE IX




MISCELLANEOUS



     Section 9.1
Notices. All notices, requests and other communications to any party hereunder shall be in
writing (including bank wire, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be given to such party: (x) in the case of the Borrower, any Qualified Borrower
or the Administrative Agent, at its address, or facsimile number set forth on the signature pages
hereof with a duplicate copy thereof, in the case of the Borrower, to the Borrower, at Equity
Residential, Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, Attn: General Counsel,
and to DLA Piper LLP (US), 203 North LaSalle Street, Suite 1900, Chicago, Illinois 60601, Attn:
James M. Phipps, Esq., (y) in the case of any Bank, at its address, or facsimile number set forth
in its Administrative Questionnaire or (z) in the case of any party, such other address, or
facsimile number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower and, if such party is the Borrower or the Administrative
Agent, the Banks. Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when such facsimile is transmitted to the facsimile number specified in
this Section and the appropriate answerback or facsimile confirmation is received, (ii) if given by
certified registered mail, return receipt requested, with first class postage prepaid, addressed as
aforesaid, upon receipt or refusal to accept delivery, (iii) if given by a nationally recognized
overnight carrier, 24 hours after such communication is deposited with such carrier with postage
prepaid for next day delivery, or (iv) if given by any other means, when delivered at the address
specified in this Section; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received. The Administrative Agent shall promptly notify
the Banks of any change in the address of the Borrower or the Administrative Agent.



     Section 9.2
No Waivers. No failure or delay by the Administrative Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.



     Section 9.3
Expenses; Indemnification.



          (a) The Borrower shall pay within thirty (30) days after written notice from the
Administrative Agent, (i) all reasonable out-of-pocket costs and expenses of the Administrative
Agent and the Syndication Agent (including reasonable fees and disbursements of special counsel
Skadden, Arps, Slate, Meagher & Flom LLP), in connection with the preparation of this Agreement,
the Loan Documents and the documents and instruments referred to therein, and any waiver or consent
hereunder or any amendment hereof or any Default or Event of Default or alleged Default or Event of
Default, (ii) all reasonable fees and disbursements of special counsel Skadden, Arps, Slate,
Meagher & Flom LLP in connection with the syndication of the Loans and (iii) if an Event of Default
occurs, all reasonable out-of-pocket expenses incurred by the Administrative Agent and each Bank
(the Administrative Agent shall promptly submit any expenses of any of the Banks to Borrower for
reimbursement), including fees and disbursements of counsel for the Administrative Agent and each of the Banks, in



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connection with the enforcement of the Loan Documents and the instruments referred to therein and
such Event of Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom; provided, however, that the attorneys’ fees and disbursements
for which Borrower is obligated under this subsection (a)(iii) shall be limited to the reasonable
non-duplicative fees and disbursements of (A) counsel for Administrative Agent, and (B) counsel for
all of the Banks as a group; and provided, further, that all other costs and
expenses for which Borrower is obligated under this subsection (a)(iii) shall be limited to the
reasonable non-duplicative costs and expenses of Administrative Agent. For purposes of this
Section 9.3(a)(iii), (1) counsel for Administrative Agent shall mean a single outside law firm
representing Administrative Agent, and (2) counsel for all of the Banks as a group shall mean a
single outside law firm representing such Banks as a group (which law firm may or may not be the
same law firm representing either or both of Administrative Agent and/or Syndication Agent).




          (b) The Borrower agrees to indemnify the Syndication Agent, the Administrative Agent and each
Bank, their respective affiliates and the respective directors, officers, agents and employees of
the foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from and against any
and all liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial proceeding that may at
any time (including, without limitation, at any time following the payment of the Obligations) be
asserted against any Indemnitee, as a result of, or arising out of, or in any way related to or by
reason of, (i) any of the transactions contemplated by the Loan Documents or the execution,
delivery or performance of any Loan Document, (ii) any violation by the Borrower, EQR or the
Environmental Affiliates of any applicable Environmental Law, (iii) any Environmental Claim arising
out of the management, use, control, ownership or operation of property or assets by the Borrower,
EQR or any of the Environmental Affiliates, including, without limitation, all on-site and off-site
activities of Borrower or any Environmental Affiliate involving Materials of Environmental Concern,
(iv) the breach of any environmental representation or warranty set forth herein, but excluding
those liabilities, losses, damages, costs and expenses (a) for which such Indemnitee has been
compensated pursuant to the terms of this Agreement, (b) incurred solely by reason of the gross
negligence, wilful misconduct, bad faith or fraud of any Indemnitee as finally determined by a
court of competent jurisdiction, (c) violations of Environmental Laws relating to a Property which
are caused by the act or omission of such Indemnitee after such Indemnitee takes possession of such
Property or (d) any liability of such Indemnitee to any third party based upon contractual
obligations of such Indemnitee owing to such third party which are not expressly set forth in the
Loan Documents. In addition, the indemnification set forth in this Section 9.3(b) in favor of any
director, officer, agent or employee of Administrative Agent, Syndication Agent or any Bank shall
be solely in his or her respective capacity as such director, officer, agent or employee. The
Borrower’s obligations under this Section shall survive the termination of this Agreement and the
payment of the Obligations.



     Section 9.4
Sharing of Set-Offs. In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other notice of any kind to
the Borrower or any Qualified Borrower or to any other Person, any such notice being



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hereby expressly waived, but subject to the prior consent of the Administrative Agent, to set off and to
appropriate and apply any and all deposits (general or special, time or demand, provisional or
final) and any other indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for the credit or the
account of the Borrower or any Qualified Borrower against and on account of the Obligations of the
Borrower or such Qualified Borrower then due and payable to such Bank under this Agreement or under
any of the other Loan Documents, including, without limitation, all interests in Obligations
purchased by such Bank. Each Bank agrees that if it shall by exercising any right of set-off or
counterclaim or otherwise (except pursuant to Sections 8.2, 8.3, 8.4 or 9.6), receive payment of a
proportion of the aggregate amount of principal and interest due with respect to any Note held by
it or Letter of Credit participated in by it, or, in the case of the Fronting Bank, Letter of
Credit issued by it, which is greater than the proportion received by any other Bank or Letter of
Credit issued or participated in by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks or Letter of Credit issued or participated in
by such other Banks shall be shared by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of set-off or counterclaim it may have to
any deposits not received in connection with the Loans and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its indebtedness under the Notes
or in respect of the Letters of Credit. The Borrower, for itself and on behalf of any Qualified
Borrower, agrees, to the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note or a Letter of Credit, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation were a direct creditor
of the Borrower or such Qualified Borrower in the amount of such participation. Notwithstanding
anything to the contrary contained herein, any Bank may, by separate agreement with the Borrower or
any Qualified Borrower, waive its right to set off contained herein or granted by law and any such
written waiver shall be effective against such Bank under this Section 9.4.




     Section 9.5
Amendments and Waivers. Any provision of this Agreement or the Notes, the Letter of Credit
Documents or other Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Banks (and, if the rights or
duties of the Administrative Agent or the Swingline Lender in its capacity as Administrative Agent
or Swingline Lender, as applicable, are affected thereby, by the Administrative Agent or Swingline
Lender, as applicable); provided that no such amendment or waiver with respect to this
Agreement, the Notes, the Letter of Credit Documents or any other Loan Documents shall, unless
signed by all the Banks, (i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder or for any reduction or termination of any Commitment or extend the term
of any Letter of Credit beyond twelve (12) months after the Maturity Date, (iv) change the
percentage of the Commitments (except pursuant to the Increase Option) or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this



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Agreement, (v) release the EQR Guaranty or, except as provided below, any Down REIT Guaranty or any Qualified Borrower
Guaranty, (vi) modify the definition of “Required Banks”, or (vii) modify the provisions of this
Section 9.5. At such time as the Borrower shall sell its interest in any Down REIT Guarantor to an
unaffiliated third party in an arms-length transaction, the Down REIT Guaranty of such Down REIT
Guarantor shall be deemed to have terminated and released, and the Banks hereby authorize the
Administrative Agent to enter into an agreement, confirming the termination and release of such
Down REIT Guaranty, at the Borrower’s sole cost and expense.




     Section 9.6
Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the Borrower may not assign
or otherwise transfer any of its rights under this Agreement or the other Loan Documents without
the prior written consent of all Banks and the Administrative Agent and any Bank may not assign or
otherwise transfer any of its interest under this Agreement except as permitted in subsection (b)
and (c) of this Section 9.6.



          (b) Any Bank may at any time grant (i) prior to the occurrence of an Event of Default, to an
existing Bank or one or more banks, finance companies, insurance companies or other financial
institutions in minimum amounts of not less than $5,000,000 (or any lesser amount in the case of
participations to an existing Bank or in the case of participations with respect to Money Market
Loans only) (it being understood that no Bank may hold Commitments of which less than $10,000,000
in the aggregate is for its own account, unless its Commitments shall have been reduced to zero)
and (ii) after the occurrence and during the continuance of an Event of Default, to any Person in
any amount (in each case, a “Participant”), participating interests in its Commitment or
any or all of its Loans, with (and subject to) the consent of, provided that no Event of Default
shall have occurred and be continuing, the Borrower (other than with respect to Money Market
Loans), which consent shall not be unreasonably withheld or delayed. The Administrative Agent
shall be notified by any such Bank of any such participation prior to the same becoming effective.
Any participation made during the continuation of an Event of Default shall not be affected by the
subsequent cure of such Event of Default. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank’s rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i), (ii), (iii), (iv) or
(v) of Section 9.5 without the consent of the Participant. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the



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extent of, and subject to the restrictions with respect to, a
participating interest granted in accordance with this subsection (b).




          (c) Any Bank may at any time assign to (i) prior to the occurrence of an Event of Default, (A)
an existing Bank, (B) one or more banks, finance companies, insurance or other financial
institutions which (1) has (or, in the case of a bank which is a subsidiary, such bank’s parent
has) a rating of its senior debt obligations of not less than Baa-1 by Moody’s or a comparable
rating by a rating agency acceptable to Administrative Agent and (2) has total assets in excess of
Ten Billion Dollars ($10,000,000,000) (a “Qualified Institution”), or (C) with the prior
consent and approval of the Administrative Agent, each Fronting Bank and Borrower, a wholly-owned
affiliate of such transferor Bank if such transferor Bank then meets the requirements of clause
(i)(B) or, if such transferor Bank’s parent then meets the requirements of clause (i)(B), a
wholly-owned affiliate of such parent, in each case in minimum amounts of not less than Ten Million
Dollars ($10,000,000) and integral multiples of One Million Dollars ($1,000,000) thereafter (or any
lesser amount in the case of assignments to an existing Bank) (it being understood that no Bank may
hold Commitments of less than $10,000,000 in the aggregate, unless its Commitments shall have been
reduced to zero) and (ii) after the occurrence and during the continuance of an Event of Default,
to any Person in any amount (in each case, an “Assignee”), all or a proportionate part of
all, of its rights and obligations under this Agreement, the Notes and the other Loan Documents,
and, in either case, such Assignee shall assume such rights and obligations, pursuant to a Transfer
Supplement in substantially the form of Exhibit “E” hereto (a “Transfer
Supplement”) executed by such Assignee and such transferor Bank, with (and subject to) the
consent of the Administrative Agent and each Fronting Bank and, provided that no Event of Default
shall have occurred and be continuing, the Borrower, which consent shall not be unreasonably
withheld or delayed; provided that if an Assignee is an affiliate of such transferor Bank
which meets the requirements of clause (i)(B) above or was a Bank immediately prior to such
assignment, no such consent shall be required; and provided further that such assignment
may, but need not, include rights of the transferor Bank in respect of outstanding Money Market
Loans. Upon execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with a Commitment as set forth in such instrument of assumption, and no
further consent or action by any party shall be required and the transferor Bank shall be released
from its obligations hereunder to a corresponding extent. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $2,500 provided that such fee shall be paid by the Assignee if such
assignment is required by Section 8.2, 8.3 or 8.4. If the Assignee is not incorporated under the
laws of the United States of America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.4. Any assignment made during the
continuation of an Event of Default shall not be affected by any subsequent cure of such Event of
Default.



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          (d) Any Bank (each, a “Designating Lender”) may at any time designate one Designated
Lender to fund Money Market Loans on behalf of such Designating Lender subject to the terms of this
Section 9.6(d) and the provisions in Sections 9.6(b) and (c) shall not apply to such designation.
No Bank may designate more than one (1) Designated Lender at any one time. 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 will give prompt notice thereof to
the Borrower, whereupon, (i) the Borrower shall execute and deliver to the Designating Lender a
Designated Lender 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 (subject to the provisions of Section 2.3(b)) to make Money Market
Loans on behalf of its Designating Lender pursuant to Section 2.3 after the Borrower has accepted a
Money Market 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
Banks for each and every obligation of the Designating Lender and its related Designated Lender
with respect to this Agreement, including, without limitation, any indemnification obligations
under Section 7.6 and any sums otherwise payable to the Borrower by the Designated Lender. Each
Designating Lender shall serve as the administrative 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 administrative agent for the Designated Lender and shall not be signed by the Designated
Lender on its own behalf and shall be binding upon 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
Banks 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 or
otherwise in accordance with the provisions of Sections 9.6 (b) and (c).



          (e) Any Bank may at any time assign all or any portion of its rights under this Agreement and
its Note and the Letter(s) of Credit participated in by such Bank or, in the case of the Fronting
Bank, issued by it, to a Federal Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.



          (f) No Assignee, Participant or other transferee of any Bank’s rights shall be entitled to
receive any greater payment under Section 8.3 or 8.4 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made with the Borrower’s
prior written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4



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requiring such Bank to designate a different Applicable Lending Office under certain circumstances or at a time when
the circumstances giving rise to such greater payment did not exist.




          (g) Notwithstanding anything contained herein to the contrary, no Bank may grant
participations, or assign interests, in the Loans or Letters of Credit to the Borrower, EQR or any
of their Subsidiaries or affiliates.



     Section 9.7
Collateral. Each of the Banks represents to the Administrative Agent and each of the other
Banks that it in good faith is not relying upon any “margin stock” (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in this Agreement.



     Section 9.8
Governing Law; Submission to Jurisdiction.



          (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).



          (b) Any legal action or proceeding with respect to this Agreement or any other Loan Document
and any action for enforcement of any judgment in respect thereof may be brought in the courts of
the State of Illinois or of the United States of America for the Northern District of Illinois,
and, by execution and delivery of this Agreement, the Borrower hereby accepts for itself and in
respect of its property and each Qualified Borrower, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents, for itself and each Qualified Borrower, to the service of process
out of any of the aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to the Borrower or
Qualified Borrower at its address set forth below. The Borrower, for itself and each Qualified
Borrower, hereby irrevocably waives any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of the Administrative Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed against the Borrower
or any Qualified Borrower in any other jurisdiction.



          (c) If for the purpose of obtaining judgment in any court it is necessary to convert a sum due
hereunder in one currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so under applicable law, that the rate of exchange used shall be the
spot rate at which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the person obtaining such judgment on the
Business Day preceding that on which final judgment is given.



94









 





          (d) The parties agree, to the fullest extent that they may effectively do so under applicable
law, that the obligations of the Borrower or any Qualified Borrower to make payments in any
currency of the principal of and interest on the Loans of the Borrower and any Qualified Borrower
and any other amounts due from the Borrower or any Qualified Borrower hereunder to the
Administrative Agent as provided herein (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with Section 9.8(c)),
in any currency other than the relevant currency, except to the extent that such tender or recovery
shall result in the actual receipt by the Administrative Agent at its relevant office on behalf of
the Banks of the full amount of the relevant currency expressed to be payable in respect of the
principal of and interest on the Loans and all other amounts due hereunder (it being assumed for
purposes of this clause (i) that the Administrative Agent will convert any amount tendered or
recovered into the relevant currency on the date of such tender or recovery), (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of recovering in the
relevant currency the amount, if any, by which such actual receipt shall fall short of the full
amount of the relevant currency so expressed to be payable and (iii) shall not be affected by an
unrelated judgment being obtained for any other sum due under this Agreement.



     Section 9.9
Counterparts; Integration; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This Agreement shall
become effective upon receipt by the Administrative Agent and the Borrower of counterparts hereof
signed by each of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory
to it of telegraphic or other written confirmation from such party of execution of a counterpart
hereof by such party).



     Section 9.10
WAIVER OF JURY TRIAL. EACH OF THE BORROWER, EACH QUALIFIED BORROWER, THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 9.11
Survival. All indemnities set forth herein (including, without limitation, Sections
2.16(g), 8.4 and 9.3) shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Obligations.



     Section 9.12
Domicile of Loans. Each Bank may transfer and carry its Loans at, to or for the account of
any domestic or foreign branch office, subsidiary or affiliate of such Bank.



     Section 9.13
Limitation of Liability. No claim may be made by the Borrower or any other Person acting
by or through Borrower against the Administrative Agent or any Bank or the affiliates, directors,
officers, employees, attorneys or agent of any of them for any special, consequential, indirect or
punitive damages in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this



95









 




Agreement or by the other Loan Documents, or any act, omission or event occurring in connection therewith; and the Borrower, for
itself and each Qualified Borrower, hereby waives, releases and agrees not to sue upon any claim
for any such damages, whether or not accrued and whether or not known or suspected to exist in its
favor.




     Section 9.14
Recourse Obligation. This Agreement and the Obligations hereunder are fully recourse to the
Borrower, each Qualified Borrower, and to EQR pursuant to the EQR Guaranty and to any Down REIT
Guarantor pursuant to any Down REIT Guaranty. Notwithstanding the foregoing, no recourse under or
upon any obligation, covenant, or agreement contained in this Agreement shall be had against any
officer, director, shareholder or employee of the Borrower or any officer, director, shareholder or
employee of EQR except in the event of fraud or misappropriation of funds on the part of such
officer, director, shareholder or employee.



     Section 9.15
Confidentiality. The Administrative Agent and each Bank shall use reasonable efforts to
assure that information about Borrower, EQR and its Subsidiaries and Investment Affiliates, and the
Properties thereof and their operations, affairs and financial condition, not generally disclosed
to the public, which is furnished to Administrative Agent or any Bank pursuant to the provisions
hereof or any other Loan Document is used only for the purposes of this Agreement and shall not be
divulged to any Person other than the Administrative Agent, the Banks, and their affiliates and
respective officers, directors, employees and agents who are actively and directly participating in
the evaluation, administration or enforcement of the Loan, this Agreement, the Loan Documents and
the extension of credit hereunder, except: (a) to their attorneys and accountants, (b) in
connection with the enforcement of the rights and exercise of any remedies of the Administrative
Agent and the Banks hereunder and under the other Loan Documents, (c) in connection with
assignments and participations and the solicitation of prospective assignees and participants
referred to in Section 9.6 hereof, who have agreed in writing to be bound by a confidentiality
agreement substantially equivalent to the terms of this Section 9.15, and (d) as may otherwise be
required or requested by any regulatory authority or self-regulatory body having jurisdiction over, or claiming
jurisdiction or authority to oversee or regulate, the Administrative Agent or any Bank or by any
applicable law, rule, regulation or judicial process.



          Section 9.16
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any
Bank becomes a Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender :




               (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section
2.8(a);



               (b) the Commitment of such Defaulting Lender shall not be included in determining whether the
Required Banks have taken or may take any action hereunder (including any consent to any amendment,
waiver or other modification pursuant to Section 9.5); except (i) such Defaulting Lender’s
Commitment may not be increased or extended without its consent and (ii) the principal amount of,
or interest or fees payable on, Loans or Letters of Credit may not be reduced or excused or the
scheduled date of payment may not be postponed as to such Defaulting Lender (except as otherwise
provided herein) without such Defaulting Lender’s consent;



96









 





               (c) if any Swingline Loans or Letters of Credit are outstanding at the time such Bank becomes
a Defaulting Lender then:




(i) provided that no Default or Event of Default shall have occurred and be
outstanding as of the date on which the applicable Bank becomes a Defaulting Lender,
all or any part of the obligations of such Defaulting Lender under any such
Swingline Loan or Letter of Credit shall be reallocated among the non-Defaulting
Lenders in accordance with their respective Pro Rata Share but only to the extent
the sum of all non-Defaulting Lenders’ outstanding Commitments (it being understood
that under no circumstance shall any Bank at any time be liable for any amounts in
excess of its Commitment) plus such Defaulting Lender’s obligations under such
Swingline Loans and Letters of Credit does not exceed the total of all
non-Defaulting Lenders’ Commitments;




(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within fifteen (15) Business Days
following notice by the Administrative Agent (x) first, prepay such Defaulting
Lender’s Pro Rata Share of the Swingline Loans and (y) second, cash collateralize
for the benefit of the Fronting Bank only the Borrower’s obligations corresponding
to such Defaulting Lender’s Pro Rata Share of all outstanding Letters of Credit
(such Defaulting Lender’s “LC Exposure”) (after giving effect to any partial
reallocation pursuant to clause (i) above) (such Defaulting Lender’s
“Collateralized LC Exposure”) by paying to the Administrative Agent on
behalf of the Fronting Bank, for deposit in the Letter of Credit Collateral Account,
Letter of Credit Collateral in an amount equal to the Dollar Equivalent Amount of
such Defaulting Lender’s Collateralized LC Exposure. The Administrative Agent shall
recalculate the Dollar Equivalent Amount applicable to such Defaulting Lender’s Pro
Rata Share of all Alternate Currency Letters of Credit monthly, as of the first
Business Day of each month to the extent included in the calculation of such
Defaulting Lender’s Non-Reallocated Share. Interest shall accrue on such Letter of
Credit Collateral in accordance with the provisions of Section 6.4. Such Letter of
Credit Collateral shall be held and applied for the benefit of the Fronting Bank
only and otherwise in accordance with the provisions of Section 6.4 for so long as
such Letters of Credit are outstanding;




(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to Section 2.8(b) with respect to such
Defaulting Lender’s Pro Rata Share of the Letters of Credit during the period such
Defaulting Lender’s Pro Rata Share of the Letters of Credit is cash collateralized;




(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Banks pursuant to Section 2.8(a) and
Section 2.8(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Pro
Rata Shares; and



97









 






(v) if all or any portion of such Defaulting Lender’s Pro Rata Share of all
outstanding Letters of Credit is neither reallocated nor cash collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or
remedies of the Fronting Bank or any other Bank hereunder, all Facility Fees that
otherwise would have been payable to such Defaulting Lender (solely with respect to
the portion of such Defaulting Lender’s Commitment that was utilized by such Letters
of Credit) and Letter of Credit Fees payable under Section 2.8(b) with respect to
such Defaulting Lender’s obligations under the Letters of Credit shall be payable to
the Fronting Bank until and to the extent that such obligations under the Letters of
Credit are reallocated and/or cash collateralized; and




(vi) so long as such Bank is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Fronting Bank shall not be required to
issue, amend or increase any Letter of Credit, unless it is satisfied that the
related LC Exposure of the Defaulting Lender will be 100% covered by the Commitments
of the non-Defaulting Lenders and/or cash collateralized in accordance with Section
9.16(c)(ii), and participating interests in any newly made Swingline Loan or any
newly issued or increased Letter of Credit shall be allocated among non-Defaulting
Lenders in a manner consistent with Section 9.16(c)(i) (and such Defaulting Lender
shall not participate therein).



               (d) In the event that the Administrative Agent, the Borrower, the Swingline Lender and the
Fronting Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused
such Bank to be a Defaulting Lender, then the obligations under
the Swingline Loan and the Letters of Credit of the Banks shall be readjusted to reflect the
inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the
Loans of the other Banks (other than Money Market Loans and Swingline Loans) as the Administrative
Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with
its Pro Rata Share and all Letter of Credit Collateral deposited or then held with respect to such
Bank’s LC Exposure shall be delivered to the Borrower; provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to
Bank will constitute a waiver or release of any claim of any party hereunder arising from that
Bank’s having been a Defaulting Lender.



               (e) If at any time any Bank becomes a Defaulting Lender, then until such time as such
Defaulting Lender has adequately remedied all matters required under and in accordance with Section
9.16(d), the Borrower shall have the right, upon five (5) Business Days’ notice to the
Administrative Agent to either (x) cause a bank, reasonably acceptable to the Administrative Agent,
to offer to purchase the Commitments of such Defaulting Lender for an amount equal to such
Defaulting Lender’s outstanding Loans (other than any Money Market Loans held by it), and to become
a Bank hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Defaulting Lender for such amount, which offer such Defaulting Lender is hereby
required to accept, or (y) to repay in full all Loans then outstanding of such Defaulting Lender
(excluding, at the option of the Borrower, any Money Market Loans held by it), together with
interest and all other amounts due thereon, upon which event, such Defaulting Lender’s Commitment
shall be deemed to be cancelled pursuant to Section 2.11(e).



98









 





          (f) Nothing contained in this Section or elsewhere in this Agreement shall be deemed to reduce
the Commitment of any Bank or in any way affect the rights of Borrower with respect to any
Defaulting Lender or, if the Administrative Agent is a Defaulting Lender, the Administrative Agent.
The status of any Bank as a Defaulting Lender shall not relieve any other Bank of its obligations
to fund its Commitment or otherwise perform its obligations in accordance with the provisions of
this Agreement.



     Section 9.17
No Bankruptcy Proceedings. Each of the Borrower, the Banks and the Administrative Agent
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 (i) one year and one day after the payment in full of the latest maturing commercial paper
note issued by such Designated Lender and (ii) the Maturity Date.



     Section 9.18
Down REIT Guaranties.



          (a) Notwithstanding any other provision hereof or of any other Loan Document to the contrary,
the Administrative Agent, the Banks and Designated Lenders agree with Borrower that any funds,
claims, or distributions actually received by the Administrative Agent for the account of any Bank
or Designated Lender as a result of the enforcement of, or
pursuant to, any Down REIT Guaranty, net of the Administrative Agent’s and the Banks’ expenses
of collection thereof (such net amount, “Down REIT Guaranty Proceeds”), shall be made
available for distribution equally and ratably (in proportion to the aggregate amount of principal,
interest and other amounts then owed in respect of the Obligations or of an issuance of Public
Debt, as the case may be) among the Administrative Agent, the Banks and the Designated Lenders and
the trustee or trustees of any Unsecured Debt, not subordinated to the Obligations (or to the
holders thereof), issued by Borrower, before or after the Effective Date, in offerings registered
under the Securities Act of 1933, as amended, or in transactions exempt from registration pursuant
to rule 144A or Regulation 8 thereunder or listed on non-U.S. securities exchanges (“Public
Debt”), and the Administrative Agent is hereby authorized by Borrower, by each Bank (on its own
behalf and on behalf of its Designated Lender, if any) and by each Down REIT Guarantor by its
execution and delivery of a Down REIT Guaranty, to make such Down REIT Guaranty Proceeds so
available. No Bank or Designated Lender shall have any interest in any amount paid over by the
Administrative Agent to the trustee or trustees in respect of any Public Debt (or to the holders
thereof) pursuant to the foregoing authorization. This Section 9.18 shall apply solely to
Down REIT Guaranty Proceeds, and not to any payments, funds, claims or distributions received by
the Administrative Agent, any Bank or Designated Lender directly or indirectly from Borrower or any
other Person other than from a Down REIT Guarantor pursuant to a Down REIT Guaranty. Borrower is
aware of the terms of the Down REIT Guaranties, and specifically understands and agrees with the
Administrative Agent, the Banks and the Designated Lenders that, to the extent Down REIT Guaranty
Proceeds are distributed to holders of Public Debt or their respective trustees, such Down REIT
Guarantor has agreed that the Obligations will not be deemed reduced by any such distributions and
such Down REIT Guarantor shall continue to make payments pursuant to its Down REIT Guaranty until
such time as the Obligations have been paid in full (and the Commitments have been terminated and
any Letter of Credit returned),



99









 




after taking into account any such distributions of Down REIT
Guaranty Proceeds in respect of Indebtedness other than the Obligations.




          (b) Nothing contained herein shall be deemed (1) to limit, modify, or alter the rights of the
Administrative Agent, the Banks and the Designated Lenders under any Down REIT Guaranty, (2) to
subordinate the Obligations to any Public Debt, or (3) to give any holder of Public Debt (or any
trustee for such holder) any rights of subrogation.



          (c) This Section 9.18 and all Down REIT Guaranties, are for the sole benefit of the
Administrative Agent, the Banks and the Designated Lenders and their respective successors and
assigns. Nothing contained herein or in any Down REIT Guaranty shall be deemed for the benefit of
any holder of Public Debt, or any trustee for such holder; nor shall anything contained herein or
therein be construed to impose on the Administrative Agent, any Bank or any Designated Lender any
fiduciary duties, obligations or responsibilities to the holders of any Public Debt or their
trustees (including, but not limited to, any duty to pursue any Down REIT Guarantor for payment
under its Down REIT Guaranty).



     Section 9.19
USA PATRIOT Act Notice. Each Bank that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Bank) hereby notifies the Borrower
and each Qualified Borrower that pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the Borrower and each
Qualified Borrower, which information includes the name and address of the Borrower and each
Qualified Borrower and other information that will allow such Bank or the Administrative Agent, as
applicable, to identify the Borrower and each Qualified Borrower in accordance with the Act.



     Section 9.20
Public/Private Information. The Borrower hereby acknowledges that (a) the Administrative
Agent and/or the Syndication Agent will make available to the Banks and the Fronting Bank materials
and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system
(the “Platform”) and (b) certain of the Banks may be “public-side” lenders (i.e., Banks that do not
wish to receive material non-public information with respect to the Borrower or its securities)
(each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x)
by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the
Administrative Agent, the Syndication Agent, the Fronting Banks and the Banks to treat such
Borrower Materials as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 9.15); (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform marked “PUBLIC” or through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the Syndication Agent
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Investor.”



100









 





     Section 9.21
Intentionally Omitted.



     Section 9.22
No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent and the
Joint Lead Arrangers are arm’s-length commercial transactions between the Borrower, on the one
hand, and the Administrative Agent and the Joint Lead Arrangers, on the other hand, (B) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents, (ii) (A) the Administrative Agent and each Joint Lead Arranger each is and has been
acting solely as a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Borrower or
any of its Affiliates, and (B) neither the Administrative Agent nor any Joint Lead Arranger has any
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents and the commitment letter; and (iii) the
Administrative Agent and the Joint Lead Arrangers and their respective Affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor either Joint Lead Arranger has any obligation
to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent
permitted by law, the Borrower hereby waives and releases any claims that it may have against the
Administrative Agent and the Joint Lead Arrangers with respect to any breach or alleged breach of
agency or fiduciary duty arising on or before the date of this Agreement in connection with any
aspect of any transaction contemplated hereby.



101









 




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




	 	 	 	 	 
	 	ERP OPERATING LIMITED PARTNERSHIP

By:  Equity Residential

 	 
	 	By:  	/s/ Mark Parrell
 	 
	 	 	Name:  	Mark Parrell 	 
	 	 	Title:  	Executive Vice President and 

Chief Financial Officer 	 
	 


Facsimile number: (312) 454-0039

Address: Two North Riverside Plaza

                Suite 400

                Chicago, Illinois 60606

                Attn: Chief Financial Officer




For purposes of agreeing to be bound

by the provisions of Section 5.13 only:




	 	 	 	 	 
	EQUITY RESIDENTIAL

 	 
	By:  	/s/ Mark Parrell
 	 
	 	Name:  	Mark Parrell 	 
	 	Title:  	Executive Vice President and 

Chief Financial Officer 	 



S-1









 






	 	 	 	 	 


Commitments




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Syndication Agent and a Bank

 	 
	 	By  	/s/ Marc Costantino
 	 
	 	 	Name:  	Marc Costantino 	 
	 	 	Title:  	Executive Director 	 
	 


Address for Notices:



JPMorgan Chase Bank, N.A.

383 Park Avenue, 24th Floor

New York, New York 10179

Attn:          Marc Costantino

Telephone: (212) 622-8167

Telecopy: (646) 534-0574



and



JPMorgan Chase Bank, N.A.,

500 Stanton Christiana Road, Ops 2/3

Newark, DE 19713-2107

Attn:          Jenna Poore

                   Loan and Agency Services

Telephone: (302) 634-1574

Telecopy: (201) 244-3885




Dollar Commitment: $67,000,000.00

Alternate Currency Commitment: $23,000,000.00




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent, as Swingline 

Lender and as a Bank

 	 
	 	By 	/s/ Michael W. Edwards
 	 
	 	 	Name: Michael W. Edwards 	 
	 	 	Title: Senior Vice President 	 
	 


Address for Notices:



Bank of America, N.A.

135 South LaSalle Street

Chicago, Illinois 60603

Attention: Michael Kauffman

Telecopy: 312-992-9767




Dollar Commitment: $67,000,000.00

Alternate Currency Commitment: $23,000,000.00




 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as Documentation Agent 

and as a Bank

 	 
	 	By:  	/s/ Winita Lau
 	 
	 	 	Name:  	Winita Lau 	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $67,000,000.00

Alternate Currency Commitment: $23,000,000.00




 









 





	 	 	 	 	 
	 	CITIBANK, N.A., as Co-Documentation 

Agent and as a Bank

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



Dollar Commitment: $60,000,000.00

Alternate Currency Commitment: $20,000,000.00





 











 





	 	 	 	 	 
	 	DEUTSCHE BANK AG, NEW YORK 

BRANCH, as Co-Documentation Agent and

as a Bank

 	 
	 	By:  	/s/ George R. Reynolds
 	 
	 	 	Name:  	George R. Reynolds 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                  /s/ David Naranjo
 	 
	 	 	Name:  	David Naranjo 	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $60,000,000.00

Alternate Currency Commitment: $20,000,000.00




 









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A.,

as a Bank

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Authorized Signature 	 
	 
	 	MORGAN STANLEY SENIOR FUNDING, INC.,

as Co-Documentation Agent

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Authorized Signature 	 
	 



Dollar Commitment: $60,000,000.00

Alternate Currency Commitment: $20,000,000.00




 









 





	 	 	 	 	 
	 	SUNTRUST BANK, as Documentation

Agent and as a Bank

 	 
	 	By:  	/s/ Nancy B. Richards
 	 
	 	 	Name:  	Nancy B. Richards 	 
	 	 	Title:  	Senior Vice President 	 
	 



Dollar Commitment: $60,000,000.00

Alternate Currency Commitment: $20,000,000.00




 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, 

as Documentation Agent and as a Bank

 	 
	 	By:  	/s/ Curt Steiner
 	 
	 	 	Name:  	Curt Steiner 	 
	 	 	Title:  	Senior Vice President 	 
	 



Dollar Commitment: $60,000,000.00

Alternate Currency Commitment: $20,000,000.00




 









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC, as Managing 

Agent and as a Bank

 	 
	 	By:  	/s/ Diane Rolfe
 	 
	 	 	Name:  	Diane Rolfe 	 
	 	 	Title:  	Director 	 
	 



Dollar Commitment: $37,000,000.00

Alternate Currency Commitment: $13,000,000.00





 












 





	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Managing Agent and as a Bank

 	 
	 	By:  	/s/ Kenneth R. McDonnell
 	 
	 	 	Name: Kenneth R. McDonnell	 	 
	 	 	Title:  	Managing Director 	 
	 



Dollar Commitment: $37,000,000.00

Alternate Currency Commitment: $13,000,000.00




 









 






	 	 	 	 	 
	 	COMPASS BANK, as Managing Agent and 

as a Bank

 	 
	 	By:  	/s/ Don Byerly
 	 
	 	 	Name: Don Byerly	 	 
	 	 	Title:  	Senior Vice President 	 
	 



Dollar Commitment: $34,000,000.00

Alternate Currency Commitment: $11,000,000.00




 









 





	 	 	 	 	 
	 	HSBC BANK USA, NA, as Managing 

Agent and as a Bank

 	 
	 	By:  	/s/ Barbara Isaacman
 	 
	 	 	Name: Barbara Isaacman
	 	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $45,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, 

as Managing Agent and as a Bank

 	 
	 	By:  	/s/ John Murphy
 	 
	 	 	Name:
	John Murphy                                         	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $37,000,000.00

Alternate Currency Commitment: $13,000,000.00




 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as

Managing Agent and as a Bank

 	 
	 	By:  	/s/ Gordon MacArthur
 	 
	 	 	Name: 
	Gordon MacArthur 	 
	 	 	Title: 	Authorized Signatory 	 
	 



Dollar Commitment: $34,000,000.00

Alternate Currency Commitment: $11,000,000.00





 











 





	 	 	 	 	 
	 	SCOTIA BANC INC, as Managing Agent 

and as a Lender

 	 
	 	By:  	/s/ J. F. Todd
 	 
	 	 	Name:  	J. F. Todd 	 
	 	 	Title:  	Managing Director 	 
	 



Dollar Commitment: $34,000,000.00

Alternate Currency Commitment: $11,000,000.00




 









 





	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI 

UFJ, LTD., as a Bank

 	 
	 	By:  	/s/
Charles Stewart
 	 
	 	 	Name:  	Charles Stewart 	 
	 	 	Title:  	Director 	 
	 



Dollar Commitment: $35,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	CAPITAL ONE, N.A., as a Bank

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



Dollar Commitment: $25,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,

as a Bank

 	 
	 	By:  	/s/ Noel Purcell
 	 
	 	 	Name:  	Noel Purcell 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Dollar Commitment: $26,000,000.00

Alternate Currency Commitment: $9,000,000.00




 









 





	 	 	 	 	 
	 	UNION BANK, N.A., as a Bank

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



Dollar Commitment: $35,000,000.00

Alternate Currency Commitment: $0





 












 





	 	 	 	 	 
	 	REGIONS BANK, as a Bank

 	 
	 	By:  	/s/ Lori Chambers
 	 
	 	 	Name:  	Lori Chambers 	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $25,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	COMERICA BANK, as a Bank

 	 
	 	By:  	/s/ Adam Sheets
 	 
	 	 	Name:  	Adam Sheets 	 
	 	 	Title:  	Vice President 	 
	 



Dollar Commitment: $35,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

as a Bank

 	 
	 	By:  	/s/ Blake J. Lunt
 	 
	 	 	Name:  	Blake J. Lunt 	 
	 	 	Title:  	Second Vice President 	 
	 



Dollar Commitment: $25,000,000.00

Alternate Currency Commitment: $0




 









 





	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORP., 

NEW YORK, as a Bank

 	 
	 	By:  	



/s/ William Karl
 	 
	 	 	Name:  	William Karl 	 
	 	 	Title:  	General Manager 	 
	 



Dollar Commitment: $35,000,000.00

Alternate Currency Commitment: $0





 












 




Total Commitments



$1,250,000,000





 









 








Schedule 1.1




MANDATORY COST FORMULAE


1. The Mandatory Cost (to the extent applicable) is an addition to the interest rate to compensate
Banks for the cost of compliance with:




     (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in
either case, any other authority which replaces all or any of its functions); or



     (b) the requirements of the European Central Bank.


2. On the first day of each Interest Period (or as soon as possible thereafter) the Administrative
Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each
Bank, in accordance with the paragraphs set out below. The “Mandatory Cost” will be
calculated by the Administrative Agent as a weighted average of the Banks’ Additional Cost Rates
(weighted in proportion to the percentage participation of each Bank in the relevant Loan) and will
be expressed as a percentage rate per annum. The Administrative Agent will, at the request of the
Borrower or any Bank, deliver to the Borrower or such Bank as the case may be, a statement setting
forth in reasonable detail the calculation of any Mandatory Cost.



3. The Additional Cost Rate for any Bank lending from a Euro-Dollar Lending Office in a
Participating Member State will be the percentage notified by that Bank to the Administrative
Agent. This percentage will be certified by such Bank in its notice to the Administrative Agent to
be its reasonable determination of the cost (expressed as a percentage of such Bank’s participation
in all Loans made from such Euro-Dollar Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Loans made from that Euro-Dollar Lending
Office.



4. The Additional Cost Rate for any Bank lending from a Euro-Dollar Lending Office in the United
Kingdom will be calculated by the Administrative Agent as follows:




     (a) in relation to any Loan in Pounds Sterling:



	 	 	 	 	 

	 

	 	AB+C(B-D)+E x 0.01
	 	per cent per annum
	 

	 	 	 	 
	 

	 	100 — (A+C)	 	 






     (b) in relation to any Loan in Euros:



	 	 	 	 	 

	 

	 	E x 0.01
	 	per cent per annum
	 

	 	 	 	 
	 

	 	300	 	 






          Where:




          “A” is the percentage of Eligible Liabilities (assuming these to be in excess of any stated
minimum) which that Bank is from time to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio requirements.








Schedule 1.1 - 1









 








          “B” is the percentage rate of interest (excluding the Applicable Margin, the Mandatory Cost
and, in the case of interest charged at the Default Rate, without counting any increase in interest
rate effected by the charging of the Default Rate) payable for the relevant Interest Period of such
Loan.




          “C” is the percentage (if any) of Eligible Liabilities which that Bank is required from time
to time to maintain as interest bearing Special Deposits with the Bank of England.




          “D” is the percentage rate per annum payable by the Bank of England to the Administrative
Agent on interest bearing Special Deposits.




          “E” is designed to compensate Banks for amounts payable under the Fees Rules and is calculated
by the Administrative Agent as being the average of the most recent rates of charge supplied by the
Banks to the Administrative Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.



5. For the purposes of this Schedule:




     (a) “Eligible Liabilities” and “Special Deposits” have the meanings given to
them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate)
by the Bank of England;



     (b) “Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;



     (c) “Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity
group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount rate);



     (d) “Participating Member State” means each state so described in any legislative
measures of the European Council for the introduction of, changeover to or operation of a single or
unified European currency.



     (e) “Tariff Base” has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.


6. In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to
four decimal places.



7. If requested by the Administrative Agent or the Borrower, each Bank with a Euro-Dollar Lending
Office in the United Kingdom or a Participating Member State shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Administrative Agent and the
Borrower, the rate of charge payable by such Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial






Schedule 1.1 - 2









 







Services Authority (calculated for this purpose by such Bank as being the average of the Fee
Tariffs applicable to such Bank for that financial year) and expressed in pounds per £1,000,000 of
the Tariff Base of such Bank.



8. Each Bank shall supply any information required by the Administrative Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation, each Bank shall
supply the following information in writing on or prior to the date on which it becomes a Bank:




     (a) the jurisdiction of the Euro-Dollar Lending Office out of which it is making available its
participation in the relevant Loan; and



     (b) any other information that the Administrative Agent may reasonably require for such
purpose.


Each Bank shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.



9. The percentages of each Bank for the purpose of A and C above and the rates of charge of each
Bank for the purpose of E above shall be determined by the Administrative Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless
a Bank notifies the Administrative Agent to the contrary, each Bank’s obligations in relation to
cash ratio deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Euro-Dollar Lending Office in the same jurisdiction as its
Euro-Dollar Lending Office.



10. The Administrative Agent shall have no liability to any Person if such determination results in
an Additional Cost Rate which over- or under-compensates any Bank and shall be entitled to assume
that the information provided by any Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct in all respects.



11. The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Banks on the basis of the Additional Cost Rate for each Bank based on the
information provided by each Bank pursuant to paragraphs 3, 7 and 8 above.



12. Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Bank shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.



13. The Administrative Agent may from time to time, after consultation with the Borrower and the
Banks, reasonably and in good faith, determine and notify to all parties any amendments which are
required to be made to this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which replaces all or any of its
functions), it being understood that any such proposed amendment shall be subject to the Borrower’s
reasonable agreement as to the necessity thereof.








Schedule 1.1 - 3









 







14. If the Borrower or any Qualified Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Schedule, then such Bank will change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.



15. The Borrower and/or any Qualified Borrower shall be required to pay any Mandatory Cost only to
the extent that the Administrative Agent and/or the applicable Bank generally imposes such
Mandatory Cost on other borrowers of such Bank in similar circumstances.



16. For any Interest Period with respect to which the Administrative Agent has failed to calculate
Mandatory Costs within thirty (30) days after the commencement thereof,, the Borrower shall have no
liability to pay such Mandatory Costs for such Interest Period.












Schedule 1.1 - 4









 








Schedule 2.16




Letters of Credit Transferred to New Revolver



	 	 	 	 	 	 	 
	Fronting Bank	 	Beneficiary	 	LC #	 	Amount
	See attached.
	 	 	 	 	 	 






Schedule 2.16 - 1









 





LOC Daily Outstandings

As of June 30, 2011




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Liab USD
	Istm ID	 	Exp Dt	 	App Nm	 	Ben Nm	 	Curr	 	Amt
	 

	 	 	 	BAML	 	 	 	 	 	 	 	 
	00000003101988

	 	3/11/2012
	 	OAK MILL II APARTMEN
	 	DEUTSCHE BANK NATION
	 	USD
	 	$	9,710,466.00	 
	00000003101989

	 	4/14/2012
	 	TANGLEWOOD APARTMENT
	 	DEUTSCHE BANK NATION
	 	USD
	 	$	25,398,937.00	 
	00000007402074

	 	6/17/2012
	 	ERP OPERATING LIMITE
	 	CALIFORNIA STATEWIDE
	 	USD
	 	$	1,000,000.00	 
	00000007412160

	 	5/1/2012
	 	EQR- THE OAKS, LLC
	 	NEW YORK LIFE INSURA
	 	USD
	 	$	615,000.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	$	36,724,403.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	US Bank	 	 	 	 	 	 	 	 
	07169

	 	9/22/2011
	 	ERP OPERATING LP
	 	WELLS FARGO BANK
	 	USD
	 	$	2,095,226.00	 
	02005

	 	5/10/2012
	 	ERP OPERATING LP
	 	THE TRAVELRS INDEMINTY CO
	 	USD
	 	$	11,925,000.00	 
	02267

	 	3/26/2012
	 	LPC CHINO HILLS LP
	 	MJ BRAY, JS BRAY, JA
BRAY, EA BRAY LP
	 	USD
	 	$	1,427,534.00	 
	02517

	 	3/14/2012
	 	DUXFORD INSURANCE COMPANY LLC
	 	VERMONT DEPT OF BANKING.
SECURITIES AND HEALTH
CARE
	 	USD
	 	$	250,000.00	 
	02620

	 	7/17/11
	 	ERP Operating LP f/b/o EC-AIexandria. LLC
	 	1ST AMERICAN TITLE CO
NEW HOMEBUILDER SERVICES
	 	USD
	 	$	192,500.00	 
	02621

	 	7/17/11
	 	ERP Operating LP f/b/o EC-Alexandria. LLC
	 	1ST AMERICAN TITLE CO
NEW HOMEBUILDER SERVICES
	 	USD
	 	$	64,196.00	 
	02835

	 	3/20/2012
	 	ERP OPERATING LP
	 	DISTRICT OF COLUMBIA
	 	USD
	 	$	50,000.00	 
	03417

	 	11/15/11
	 	ERP OPERATING LP
	 	FANNIE MAE
	 	USD
	 	$	28,625,000.00	 
	03444

	 	6/1/12
	 	ERP OPERATING LP
	 	MIDLAND LOAN SERVICES ON
BEHALF OF US BANK
	 	USD
	 	$	509,864.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	$	45,139,320.00	 
	 

	 	 	 	 	 	 	 	 	 	 	 
	 
	 

	 	 	 	 	 	GRAND TOTAL=
	 	 	 	$	81,863,723.00	
	 

	 	 	 	 	 	 	 	 	 	 	 



















 






Schedule 2.3




Money Market Loans Transferred to New Revolver



None



Schedule 2.3 - 1









 





EXHIBIT A-1




NOTE




Chicago, Illinois

________ __, 20__




     For value received, ERP Operating Limited Partnership, an Illinois limited partnership (the
“Borrower”), promises to pay to the order of ____________ (the “Payee”), for the
account of its Applicable Lending Office, the unpaid principal amount of each Money Market Loan
made by the Payee to the Borrower pursuant to the Agreement referred to below on the last day of
the applicable Interest Period and on the Maturity Date. The Borrower promises to pay interest on
the unpaid principal amount of each such Money Market Loan on the dates and at the rate or rates
provided for in the Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at the office of Bank of
America, N.A., 901 Main Street, Dallas, TX 75202.



     All Money Market Loans made by the Payee, the respective types and maturities thereof and all
repayments of the principal thereof shall be recorded by the Payee and, if the Payee so elects in
connection with any transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Money Market Loan then outstanding may be endorsed by the
Payee on the schedule attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Payee to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under the Agreement.



     This note is one of the Designated Lender Notes referred to in, and is delivered pursuant to
and subject to all of the terms of, the Revolving Credit Agreement, dated as of July 13, 2011 among
the Borrower, the banks listed on party thereto, BANK OF AMERICA, N.A., as Administrative Agent,
JPMORGAN CHASE BANK, N.A., as Syndication Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION,
and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, and CITIBANK, N.A., DEUTSCHE
BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents, (as the
same may be amended from time to time, the “Agreement”). Terms defined in the Agreement
are used herein with the same meanings. Reference is made to the Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.



Exhibit A-1-1









 





	 	 	 	 	 
	 	ERP OPERATING LIMITED PARTNERSHIP


By: Equity Residential

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exhibit A-1-2











 





Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Type of	 	Principal	 	 	 	Notation Made
	Date	 	Loan	 	Loan	 	Repaid	 	Maturity Date	 	By
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 
	 





Exhibit A-1-3









 






EXHIBIT A-2




NOTE




Chicago, Illinois

________ __, 20__




          For value received, ERP Operating Limited Partnership, an Illinois partnership (the
“Borrower”), promises to pay to the order of ____(the “Bank”), for the
account of its Applicable Lending Office, the unpaid principal amount of each Loan made by the Bank
to the Borrower pursuant to the Agreement referred to below on the Maturity Date (as such term is
defined in the Agreement). The Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in the Agreement. All such
payments of principal and interest shall be made in lawful money of, as required by the Agreement,
the United States, the United Kingdom or the European Economic Union, as the case may be, in
Federal or other immediately available funds at the office of Bank of America, N.A., 901 Main
Street, Dallas, TX 75202.




          All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Agreement.




          This note is one of the Notes referred to in, and is delivered pursuant to and subject to all
of the terms of, the Revolving Credit Agreement dated as of July 13, 2011 among the Borrower, the
banks party thereto, BANK OF AMERICA, N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., as
Syndication Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Documentation Agents, and CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC.,
and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents (as the same may be amended
from time to time, the “Agreement”). Terms defined in the Agreement are used herein with
the same meanings. Reference is made to the Agreement for provisions for the prepayment hereof and
the acceleration of the maturity hereof.







Exhibit A-2-1









 








	 	 	 	 	 
	 	ERP OPERATING LIMITED PARTNERSHIP


By: Equity Residential

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exhibit A-2-2











 





Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 	 	 	 
	Date	 	Amount of Loan	 	 	Type of Loan	 	 	Repaid	 	 	Maturity Date	 	 	Notation Made By	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





Exhibit A-2-3









 






EXHIBIT A-3




QUALIFIED BORROWER NOTE




			
	$__________________
	 	Chicago, Illinois

_______ ___, 20__






          For value received, _________________ (the “Qualified Borrower”), promises to pay to
the order of (the “Bank”) the unpaid principal amount of each Loan made by the
Bank to the Qualified Borrower pursuant to the Agreement referred to below on the maturity date
provided for in the Agreement. The Qualified Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates provided for in the
Agreement. All such payments of principal and interest shall be made in lawful money of, as
required by the Agreement, the United States, the United Kingdom or the European Economic Union, as
the case may be, in Federal or other immediately available funds at the office of Bank of America,
N.A., 901 Main Street, Dallas, TX 75202.




          All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Qualified Borrower hereunder or under the Agreement.




          This note is one of the Notes by a Qualified Borrower referred to in, and is delivered
pursuant to and subject to all of the terms of, the Revolving Credit Agreement dated as of July 13,
2011 among the Borrower, the banks party thereto, BANK OF AMERICA, N.A., as Administrative Agent,
JPMORGAN CHASE BANK, N.A., as Syndication Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION,
and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, and CITIBANK, N.A., DEUTSCHE
BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents (as the
same may be amended from time to time, the “Agreement”). Terms defined in the Agreement
are used herein with the same meanings. Reference is made to the Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.






Exhibit A-3-1









 








	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Exhibit A-3-2









 






	 	 	 	 	 



Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 	 	 	 
	Date	 	Amount of Loan	 	 	Type of Loan	 	 	Repaid	 	 	Maturity Date	 	 	Notation Made By	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





Exhibit A-3-3









 






EXHIBIT B




Form of Money Market Quote Request




	 	 	 

	 
	 	[Date]






	 	 	 

	To:

	 	Bank of America, N.A. (the “Administrative Agent”)
	 
	 	 
	From:

	 	ERP Operating Limited Partnership
	 
	 	 
	Re:

	 	Revolving Credit Agreement (as the same may be amended from time to
time, the “Agreement”) dated as of July 13, 2011, among ERP
Operating Limited Partnership, the Banks parties thereto, the
Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication
Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION, and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, and
CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN STANLEY
SENIOR FUNDING, INC., as Co-Documentation Agents






          We hereby give notice pursuant to Section 2.3 of the Agreement that we request Money Market
Quotes for the following proposed Money Market Borrowing(s):




Date of Borrowing: __________________




	 	 	 

	Principal Amount1
	 	Interest Period2
	 
	 	 
	$
	 	 






          Such Money Market Quotes should offer a Money Market [Margin] [Absolute Rate]. [The applicable
base rate is the Euro-Dollar Rate.]




          Terms used herein have the meanings assigned to them in the Agreement.






 




			
	1	 	Amount must be $3,000,000 or a larger
multiple of $100,000.
	 
	2	 	Not less than 7 days (LIBOR Auction) or not
less than 7 days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.




Exhibit B-1









 










          Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.] (Chicago time) on
[date].




	 	 	 	 	 
	 	ERP OPERATING LIMITED PARTNERSHIP

 	 
	 	By:  	Equity Residential
 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exhibit B-2









 






EXHIBIT C




FORM OF NOTICE OF BORROWING



______________________, _____



Bank of America, N.A., as Administrative Agent for the Banks party to the Revolving Credit
Agreement referred to below




                                        









                                        




Attention:




Ladies and Gentlemen:




          Reference is hereby made to that certain Revolving Credit Agreement dated as of July 13, 2011
(as the same may be amended, supplemented, restated or otherwise modified from time to time, the
“Credit Agreement”, the terms defined therein being used herein as therein defined), among ERP
OPERATING LIMITED PARTNERSHIP (the “Borrower”), the BANKS party thereto, BANK OF AMERICA,
N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, and SUNTRUST BANK,
U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation
Agents, and CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Documentation Agents.




          The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.1(b) of the
Credit Agreement that the Borrower hereby requests a Borrowing or issuance of a Letter of Credit
under the Credit Agreement and, in that connection, sets forth below the information relating to
such Borrowing or issuance (the “Proposed Borrowing”) as required pursuant to the terms of the
Credit Agreement:




	 	 	 	 	 	 	 

	 

	 	 	1.	 	 	Amount of Loans: _____________
	 
	 	 	 	 	 	 
	 

	 	 	2.	 	 	If a Letter of Credit: Amount ____; Beneficiary: ____________,
Term: _________
	 
	 	 	 	 	 	 
	 

	 	 	3.	 	 	Date of Proposed Borrowing: ___________
	 
	 	 	 	 	 	 
	 

	 	 	4.	 	 	Type of Loan(check one only):

___Base Rate Loan

	 
	 	 	 	 	 	 
	 

	 	 	__	 	 	Euro-Dollar Loan with Euro-Dollar Interest Period of:
	 

	 	 	 	 	 	____ [1, 2, 3 or 6 months (or shorter but not less than 7 days)]
ending _____
	 
	 	 	 	 	 	 
	 

	 	 	__	 	 	Swingline Loan






Exhibit C-1









 






          Proceeds of such Loans are to be credited to Bank of America Account # (or wired to such
other bank and account as instructed) (or used to pay down [Base Rate Loan, Swingline Loan or Money
Market Loan] in the amount of _______).




          The Borrower hereby certifies that the conditions precedent contained in Section [3.1]
[3.2] are satisfied on the date hereof and will be satisfied on the date of the Proposed
Borrowing.




	 	 	 	 	 
	 	ERP OPERATING LIMITED PARTNERSHIP

 	 
	 	By:  	Equity Residential
 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exhibit C-2











 





EXHIBIT D




Form of Money Market Quote



	 	 	 

	To:

	 	Bank of America, N.A., as Agent
	 
	 	 
	Re:

	 	Money Market Quote to ERP Operating Limited Partnership (the “Borrower”)






          In response to your invitation on behalf of the Borrower dated ___, 200_,
we hereby make the following Money Market Quote on the following terms:





	1.	 	Quoting Bank: ______________________






	2.	 	Person to contact at Quoting Bank:






	 	 	_____________________________






	3.	 	Date of Borrowing:________*






	4.	 	We hereby offer to make Money Market Loan(s) in the following principal amounts, for the
following Interest Periods and at the following rates:





	 	 	 	 	 	 	 
	Principal	 	Interest	 	Money Market	 	 
	Amount**	 	Period***	 	[Margin****]	 	[Absolute Rate*****]
	$
	 	 	 	 	 	 
	$
	 	 	 	 	 	 







	 	 	[Provided, that the aggregate principal amount of Money Market Loans for which the above offers
may be accepted shall not exceed $__.]**





          We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Revolving Credit Agreement dated as of July 13, 2011, among
ERP Operating Limited Partnership, the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as
Syndication Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Documentation Agents, and CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC.,
and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents, and yourselves, as
Administrative Agent, as the same may be amended from time to time (the “Agreement”), irrevocably
obligates us to make the Money Market Loan(s) for which any offer(s) are accepted, in whole or in
part.




          Terms used herein have the meanings assigned to them in the Agreement.








Exhibit D-1









 








Very truly yours,




[NAME OF BANK]



	 	 	 	 	 
	 	 	 
	Dated:                                         	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 





 




			
	*	 	As specified in the related Invitation.
	 
	**	 	Principal amount bid for each Interest Period may not exceed principal amount requested.
Specify aggregate limitation if the sum of the individual offers exceeds the amount the Bank is
willing to lend. Bids must be made for $3,000,000 or a larger multiple of $100,000.
	 
	***	 	Not less than 7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period.
	 
	****	 	Margin over or under the Euro-Dollar Rate determined for the applicable Interest Period.
Specify percentage (to the nearest 1/10,000 of 1%) and specify whether “PLUS” or “MINUS”.
	 
	*****	 	Specify rate of interest per annum (to the nearest 1/10,000th of 1%).




Exhibit D-2









 










EXHIBIT E




TRANSFER SUPPLEMENT



          TRANSFER SUPPLEMENT (this “Transfer Supplement”) dated as of __, 20__ between ____(the “Assignor”) and ____ having an
address at ___ (the “Purchasing Bank”).




W I T N E S S E T H:




          WHEREAS, the Assignor has made loans to ERP Operating Limited Partnership, an Illinois limited
partnership (the “Borrower”), pursuant to the Revolving Credit Agreement, dated as of July
13, 2011 (as the same may have been amended, supplemented or otherwise modified through the date
hereof, the “Agreement”), among the Borrower, the banks party thereto, BANK OF AMERICA,
N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, and SUNTRUST BANK,
U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation
Agents, and CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Documentation Agents. All capitalized terms used and not otherwise defined herein shall have
the respective meanings set forth in the Agreement; and




          WHEREAS, the Purchasing Bank desires to purchase and assume from the Assignor, and the
Assignor desires to sell and assign to the Purchasing Bank, certain rights, title, interest and
obligations under the Agreement.




          NOW, THEREFORE, IT IS AGREED:





     1. In consideration of the amount set forth in the receipt (the “Receipt”) given by Assignor
to Purchasing Bank of even date herewith, and transferred by wire to Assignor, the Assignor hereby
assigns and sells, without recourse, representation or warranty except as specifically set forth
herein, to the Purchasing Bank, and the Purchasing Bank hereby purchases and assumes from the
Assignor, a % interest (the “Purchased Interest”) of the Assignor’s rights and obligations under
the Agreement as of the Effective Date (as defined below) including, without limitation, such
percentage interest of the Assignor in any [Dollar][Alternate Currency] Loans owing to the
Assignor, any Loan held by the Assignor, the [Dollar][Alternate Currency] Commitment of the
Assignor and any other interest of the Assignor under any of the Loan Documents, including any
participation in any [Dollar][Alternate Currency] Letter of Credit3.



     2. The Assignor (i) represents and warrants that as of the date hereof the Dollar Equivalent
Amount of the aggregate outstanding principal amount of its share of the Loans owing to it (without
giving effect to assignments thereof which have not yet become effective) is





 




			
	3	 	To be conformed for purchase of Dollar
Commitment or Alternate Currency Commitment




Exhibit E-1









 









$__; (ii) represents and warrants that it is the legal and beneficial owner of the interests
being assigned by it hereunder and that such interests are free and clear of any adverse claim;
(iii) represents and warrants that it has not received any notice of Default or Event of Default
from the Borrower; (iv) represents and warrants that it has full power and authority to execute and
deliver, and perform under, this Transfer Supplement, and all necessary corporate and/or
partnership action has been taken to authorize, and all approvals and consents have been obtained
for, the execution, delivery and performance thereof; (v) represents and warrants that this
Transfer Supplement constitutes its legal, valid and binding obligation enforceable in accordance
with its terms; (vi) makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations (or the truthfulness or accuracy thereof) made in
or in connection with the Agreement or the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Agreement, or the other Loan
Documents or any other instrument or document furnished pursuant thereto; and (vii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, EQR or any Down REIT Guarantor or the performance or observance by the Borrower, EQR
or any Down REIT Guarantor of any of its obligations under the Agreement or the other Loan
Documents or any other instrument or document furnished pursuant thereto. Except as a result of a
material misrepresentation of those representations specifically set forth in this Paragraph 2,
this assignment shall be without recourse to Assignor.




     3. The Purchasing Bank (i) confirms that it has received a copy of the Agreement, and the
other Loan Documents, together with such financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Transfer Supplement and to become a party to the Agreement, and has not relied on any
statements made by Assignor or Skadden, Arps, Slate, Meagher & Flom LLP; (ii) agrees that it will,
independently and without reliance upon any of the Administrative Agent, the Assignor or any other
Bank and based on such documents and information as it shall deem appropriate at the time, continue
to make its own appraisal of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Borrower and will make its own credit
analysis, appraisals and decisions in taking or not taking action under the Agreement, and the
other Loan Documents; (iii) appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the Agreement, and the other Loan Documents
as are delegated to the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; (iv) agrees that it will be bound by and perform in accordance with their terms
all of the obligations which by the terms of the Agreement are required to be performed by it as a
Bank; (v) specifies as its address for notices and lending office, the office set forth beneath its
name on the signature page hereof; (vi) confirms that it has full power and authority to execute
and deliver, and perform under, this Transfer Supplement, and that all necessary corporate and/or
partnership action has been taken to authorize, and all approvals and consents have been obtained
for, the execution, delivery and performance thereof; (vii) certifies that this Transfer Supplement
constitutes its legal, valid and binding obligation enforceable in accordance with its terms; and
(viii) confirms that the interest being assigned hereunder is being acquired by it for its own
account, for investment purposes only and not with a view to the public distribution thereof and
without any present intention of its resale in either case that would be in violation of applicable
securities laws.



Exhibit E-2









 





     4. This Transfer Supplement shall be effective on the date (the “Effective Date”) on
which all of the following have occurred (i) it shall have been executed and delivered by the
parties hereto, (ii) copies hereof shall have been delivered to the Administrative Agent and the
Borrower, (iii) Purchasing Bank shall have received an original Note and (iv) the Purchasing Bank
shall have paid to the Assignor the agreed purchase price as set forth in the Receipt.



     5. On and after the Effective Date, (i) the Purchasing Bank shall be a party to the Agreement
and, to the extent provided in this Transfer Supplement, have the rights and obligations of a Bank
thereunder and be entitled to the benefits and rights of the Banks thereunder and (ii) the Assignor
shall, to the extent provided in this Transfer Supplement as to the Purchased Interest, relinquish
its rights (except any rights of the Assignor under Sections 2.16(f), 2.16(g), 8.3, 8.4 and 9.3 for
the period prior to the Effective Date) and be released from its obligations under the Agreement.



     6. From and after the Effective Date, the Assignor shall cause the Administrative Agent to
make all payments under the Agreement, and the Notes in respect of the Purchased Interest assigned
hereby (including, without limitation, all payments of principal, fees and interest with respect
thereto and any amounts accrued but not paid prior to such date) to the Purchasing Bank.



     7. This Transfer Supplement may be executed in any number of counterparts which, when taken
together, shall be deemed to constitute one and the same instrument.



     8. Assignor hereby represents and warrants to Purchasing Bank that it has made all payments
demanded to date by Bank of America, N.A. (“BofA”) as Administrative Agent in connection
with the Assignor’s Pro Rata Share of the obligation to reimburse the Agent for its expenses and
made all Loans required. In the event BofA, as Administrative Agent, shall demand reimbursement for
fees and expenses from Purchasing Bank for any period prior to the Effective Date, Assignor hereby
agrees to promptly pay BofA, as Administrative Agent, such sums directly, subject, however, to
Paragraph 12 hereof.



     9. Assignor will, at the cost of Assignor, and without expense to Purchasing Bank, do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, assignments,
notices of assignments, transfers and assurances as Purchasing Bank shall, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring and confirming unto
Purchasing Bank the property and rights hereby given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed, assigned and/or intended now or hereafter so to be, on which Assignor may be
or may hereafter become bound to convey or assign to Purchasing Bank, or for carrying out the
intention or facilitating the performance of the terms of this Agreement or for filing, registering
or recording this Agreement.



     10. The parties agree that no broker or finder was instrumental in bringing about this
transaction. Each party shall indemnify and defend the other and hold the other free and harmless
from and against any damages, costs or expenses (including, but not limited to, reasonable
attorneys’ fees and disbursements) suffered by such party arising from claims by any broker or
finder that such broker or finder has dealt with said party in connection with this transaction.



Exhibit E-3









 





     11. Subject to the provisions of Paragraph 12 hereof, if, with respect to the Purchased
Interest only, Assignor shall on or after the Effective Date receive (a) any cash, note,
securities, property, obligations or other consideration in respect of or relating to the Loans or
the Loan Documents or issued in substitution or replacement of the Loans or the Loan Documents, (b)
any cash or non-cash consideration in any form whatsoever distributed, paid or issued in any
bankruptcy proceeding in connection with the Loans or the Loan Documents or (c) any other
distribution (whether by means of repayment, redemption, realization of security or otherwise),
Assignor shall accept the same as Purchasing Bank’s agent and hold the same on behalf of and for
the benefit of Purchasing Bank, and shall deliver the same forthwith to Purchasing Bank in the same
form received, with the endorsement (without recourse) of Assignor when necessary or appropriate.
If the Assignor shall fail to deliver any funds received by it on the same Business Day of receipt,
or such funds are received by Assignor after 4:00 p.m., Eastern Standard Time, then the following
Business Day after receipt, said funds shall accrue interest at the federal funds interest rate and
in addition to promptly remitting said amount, Assignor shall remit such interest from the date
received to the date such amount is remitted to the Purchasing Bank.



     12. Assignor and Purchasing Bank each hereby agree to indemnify and hold harmless the other,
each of its directors and each of its officers in connection with any claim or cause of action
based on any matter or claim based on the acts of either while acting as a Bank under the
Agreement. Promptly after receipt by the indemnified party under this Paragraph of notice of the
commencement of any action, such indemnified party shall notify the indemnifying party in writing
of the commencement thereof. If any such action is brought against any indemnified party and that
party notifies the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party, and after receipt
of notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under this
Paragraph for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof. In no event shall the indemnified party settle or consent to
a settlement of such cause of action or claim without the consent of the indemnifying party.



Exhibit E-4









 






     13. THIS TRANSFER SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.


Wire
Transfer Instructions:                                         




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Receipt and Consent acknowledged this

day of _, 20_ -:



BANK OF AMERICA, N.A.,

   as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[IF REQUIRED ADD THE FOLLOWING:]



ERP OPERATING LIMITED PARTNERSHIP

 	 
	 	By:  	Equity Residential
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Exhibit E-5









 





EXHIBIT F




Qualified Unencumbered Properties



	 	 	 
	Apartment Name	 	Location
	500 West 23rd Street (fka 10 Chelsea)

	 	New York, NY
	1210 Mass

	 	Washington, D.C. (G)
	1401 Joyce on Pentagon Row

	 	Arlington, VA
	1660 Peachtree

	 	Atlanta, GA
	2201 Pershing Drive

	 	Arlington, VA
	2400 M St

	 	Washington, D.C. (G)
	420 East 80th Street

	 	New York, NY
	425 Mass

	 	Washington, D.C. (G)
	600 Washington

	 	New York, NY (G)
	70 Greene

	 	Jersey City, NJ (G)
	71 Broadway

	 	New York, NY (G)
	777 Sixth

	 	New York, NY (G)
	Abington Glen

	 	Abington, MA
	Acacia Creek

	 	Scottsdale, AZ
	Arden Villas

	 	Orlando, FL
	Arlington at Perimeter Center

	 	Atlanta, GA
	Ashton, The

	 	Corona Hills, CA
	Audubon Village

	 	Tampa, FL
	Auvers Village

	 	Orlando, FL
	Avenue Royale

	 	Jacksonville, FL
	Avon Place, LLC

	 	Avon, CT
	Ball Park Lofts

	 	Denver, CO (G)
	Barrington Place

	 	Oviedo, FL
	Bay Hill

	 	Long Beach, CA
	Bella Terra I

	 	Mukilteo, WA (G)
	Bella Vista

	 	Phoenix, AZ
	Bella Vista I, II, III Combined

	 	Woodland Hills, CA
	Belle Arts Condominium Homes, LLC

	 	Bellevue, WA
	Beneva Place

	 	Sarasota, FL
	Berkeley Land

	 	Berkeley, CA
	Bermuda Cove

	 	Jacksonville, FL
	Bishop Park

	 	Winter Park, FL
	Bradford Apartments

	 	Newington, CT
	Briar Knoll Apts

	 	Vernon, CT
	Bridford Lakes II

	 	Greensboro, NC
	Bridgewater at Wells Crossing

	 	Orange Park, FL
	Brookside (MD)

	 	Frederick, MD
	Brookside II (MD)

	 	Frederick, MD
	Camellero

	 	Scottsdale, AZ
	Carlyle Mill

	 	Alexandria, VA
	Center Pointe

	 	Beaverton, OR
	Centre Club

	 	Ontario, CA






 









 






	 	 	 
	Apartment Name	 	Location
	Centre Club II

	 	Ontario, CA
	Chandler Court

	 	Chandler, AZ
	Chandlers Bay

	 	Kent, WA
	Chatelaine Park

	 	Duluth, GA
	Chesapeake Glen Apts (fka Greentree I, II & III)

	 	Glen Burnie, MD
	Chestnut Hills

	 	Puyallup, WA
	Chickasaw Crossing

	 	Orlando, FL
	Chinatown Gateway

	 	Los Angeles, CA
	Citrus Falls

	 	Tampa, FL
	City View (GA)

	 	Atlanta, GA (G)
	Clarys Crossing

	 	Columbia, MD
	Cleo, The

	 	Los Angeles, CA
	Club at Tanasbourne

	 	Hillsboro, OR
	Club at the Green

	 	Beaverton, OR
	Coconut Palm Club

	 	Coconut Creek, GA
	Cortona at Dana Park

	 	Mesa, AZ
	Country Gables

	 	Beaverton, OR
	Cove at Boynton Beach I

	 	Boynton Beach, FL
	Cove at Boynton Beach II

	 	Boynton Beach, FL
	Cove at Fishers Landing

	 	Vancouver, WA
	Creekside Village

	 	Mountlake Terrace, WA
	Crosswinds

	 	St. Petersburg, FL
	Crown Court

	 	Scottsdale, AZ
	Crowntree Lakes

	 	Orlando, FL
	Cypress Lake at Waterford

	 	Orlando, FL
	Dartmouth Woods

	 	Lakewood, CO
	Dean Estates

	 	Taunton, MA
	Deerwood (Corona)

	 	Corona, CA
	Defoor Village

	 	Atlanta, GA
	Del Mar Ridge

	 	San Diego, CA
	Desert Homes

	 	Phoenix, AZ
	Eagle Canyon

	 	Chino Hills, CA
	Ellipse at Government Center

	 	Fairfax, VA
	Emerson Place

	 	Boston, MA (G)
	Enclave at Lake Underhill

	 	Orlando, FL
	Enclave at Waterways

	 	Deerfield Beach, FL
	Enclave at Winston Park

	 	Coconut Creek, FL
	Enclave, The

	 	Tempe, AZ
	Estates at Phipps

	 	Atlanta, GA
	Estates at Wellington Green

	 	Wellington, FL
	Fairland Gardens

	 	Silver Spring, MD
	Four Winds

	 	Fall River, MA
	Fox Hill Apartments

	 	Enfield, CT
	Fox Run (WA)

	 	Federal Way, WA
	Fox Run II (WA)

	 	Federal Way, WA
	Gables Grand Plaza

	 	Coral Gables, FL (G)






 









 






	 	 	 
	Apartment Name	 	Location
	Gallery, The

	 	Hermosa Beach, CA
	Gatehouse at Pine Lake

	 	Pembroke Pines, FL
	Gatehouse on the Green

	 	Plantation, FL
	Gates of Redmond

	 	Redmond, WA
	Gatewood

	 	Pleasanton, CA
	Governors Green

	 	Bowie, MD
	Greenfield Village

	 	Rocky Hill, CT
	Greenhouse — Roswell

	 	Roswell, GA
	Hamilton Villas

	 	Beverly Hills, CA
	Hammocks Place

	 	Miami, FL
	Hampshire Place

	 	Los Angeles, CA
	Hamptons

	 	Puyallup, WA
	Heritage Ridge

	 	Lynwood, WA
	Heritage, The

	 	Phoenix, AZ
	Heron Pointe

	 	Boynton Beach, FL
	High Meadow

	 	Ellington, CT
	Highland Glen

	 	Westwood, MA
	Highland Glen II

	 	Westwood, MA
	Highlands at South Plainfield

	 	South Plainfield, NJ
	Highlands, The

	 	Scottsdale, AZ
	Hudson Crossing

	 	New York, NY (G)
	Hudson Pointe

	 	Jersey City, NJ
	Hunt Club II

	 	Charlotte, NC
	Huntington Park

	 	Everett, WA
	Indian Bend

	 	Scottsdale, AZ
	Iron Horse Park

	 	Pleasant Hill, CA
	Isle at Arrowhead Ranch

	 	Glendale, AZ
	Kempton Downs

	 	Gresham, OR
	Kenwood Mews

	 	Burbank, CA
	Key Isle at Windermere

	 	Ocoee, FL
	Key Isle at Windermere II

	 	Ocoee, FL
	Kings Colony (FL)

	 	Miami, FL
	La Mirage

	 	San Diego, CA
	La Mirage IV

	 	San Diego, CA
	Laguna Clara

	 	Santa Clara, CA
	Lake Buena Vista Combined

	 	Orlando, FL
	Landings at Pembroke Lakes

	 	Pembroke Pines, FL
	Landings at Port Imperial

	 	W. New York, NJ
	Las Colinas at Black Canyon

	 	Phoenix, AZ
	Legacy at Highlands Ranch

	 	Highlands Ranch, CO
	Legacy Park Central

	 	Concord, CA
	Lexington Farm

	 	Alpharetta, GA
	Lexington Park

	 	Orlando, FL
	Little Cottonwoods

	 	Tempe, AZ
	Longacre House

	 	New York, NY (G)
	Longfellow Place

	 	Boston, MA (G)






 









 






	 	 	 
	Apartment Name	 	Location
	Longwood

	 	Decatur, GA
	Madison, The

	 	Alexandria, VA
	Marbrisa

	 	Tampa, FL
	Mariners Wharf

	 	Orange Park, FL
	Market Street Landing

	 	Seattle, WA
	Marquessa

	 	Corona Hills, CA
	Martha Lake

	 	Lynnwood, WA
	Martine, The

	 	Bellevue, WA
	Merritt at Satellite Place

	 	Duluth, GA
	Mill Pond

	 	Millersville, MD
	Mira Flores

	 	Palm Beach Gardens, FL
	Mission Bay

	 	Orlando, FL
	Mission Verde, LLC

	 	San Jose, CA
	Morningside

	 	Scottsdale, AZ
	Mosaic at Largo Station

	 	Hyattsville, MD
	Mozaic at Union Station

	 	Los Angeles, CA
	New River Cove

	 	Davie, FL
	Northampton I

	 	Largo, MD
	Northampton 2

	 	Largo, MD
	Northglen

	 	Valencia, CA
	Northlake (MD)

	 	Germantown, MD
	Northridge

	 	Pleasant Hill, CA
	Oak Park North

	 	Agoura Hills, CA
	Oak Park South

	 	Agoura Hills, CA
	Oaks at Falls Church

	 	Falls Church, VA
	Ocean Crest

	 	Solana Beach, CA
	Ocean Walk

	 	Key West, FL
	Olympus Towers

	 	Seattle, WA (G)
	Orchard Ridge

	 	Lynnwood, WA
	Overlook Manor

	 	Frederick, MD
	Overlook Manor II

	 	Frederick, MD
	Paces Station

	 	Atlanta, GA
	Palm Trace Landings

	 	Davie, FL
	Panther Ridge

	 	Federal Way, WA
	Parc 77

	 	New York, NY (G)
	Parc Cameron

	 	New York, NY (G)
	Parc Coliseum

	 	New York, NY (G)
	Park at Turtle Run, The

	 	Coral Springs, FL
	Park West (CA)

	 	Los Angeles, CA
	Parkside

	 	Union City, CA
	Parkview Terrace

	 	Redlands, CA
	Phillips Park

	 	Wellesley, MA
	Pine Harbour

	 	Orlando, FL
	Playa Pacifica

	 	Hermosa Beach, CA
	Pointe at South Mountain

	 	Phoenix, AZ
	Polos East

	 	Orlando, FL






 









 






	 	 	 
	Apartment Name	 	Location
	Port Royale

	 	Ft. Lauderdale, FL (G)
	Port Royale II

	 	Ft. Lauderdale, FL (G)
	Port Royale III

	 	Ft. Lauderdale, FL (G)
	Port Royale IV

	 	Ft. Lauderdale, FL
	Portofino

	 	Chino Hills, CA
	Portofino (Val)

	 	Valencia, CA
	Portside Towers

	 	Jersey City, NJ (G)
	Preserve at Deer Creek

	 	Deerfield Beach, FL
	Prime, The

	 	Arlington, VA
	Promenade at Aventura

	 	Aventura, FL
	Promenade at Town Center I

	 	Valencia, CA
	Promenade at Wyndham Lakes

	 	Coral Springs, FL
	Promenade Terrace

	 	Corona, CA
	Promontory Pointe I & II

	 	Phoenix, AZ
	Prospect Towers

	 	Hackensack, NJ
	Prospect Towers II

	 	Hackensack, NJ
	Ravens Crest

	 	Plainsboro, NJ
	Redmond Ridge

	 	Redmond, WA
	Red 160 (fka Redmond Way)

	 	Redmond, WA (G)
	Regency Palms

	 	Huntington Beach, CA
	Regency Park

	 	Centreville, VA
	Registry

	 	Northglenn, CO
	Remington Place

	 	Phoenix, AZ
	Renaissance Villas

	 	Berkeley, CA (G)
	Reserve at Ashley Lake

	 	Boynton Beach, FL
	Reserve at Town Center

	 	Loudon, VA
	Reserve at Town Center II (WA)

	 	Mill Creek, WA
	Reserve at Town Center III

	 	Mill Creek, WA
	Retreat, The

	 	Phoenix, AZ
	Rianna I

	 	Seattle, WA (G)
	Ridgewood Village I&II

	 	San Diego, CA
	River Pointe at Den Rock Park

	 	Lawrence, MA
	River Tower

	 	New York, NY (G)
	Rivers Bend (CT)

	 	Windsor, CT
	Riverview Condominiums

	 	Norwalk, CT
	Royal Oaks (FL)

	 	Jacksonville, FL
	Sabal Palm at Carrollwood Place

	 	Tampa, FL
	Sabal Palm at Lake Buena Vista

	 	Orlando, FL
	Sabal Palm at Metrowest

	 	Orlando, FL
	Sabal Palm at Metrowest II

	 	Orlando, FL
	Sabal Pointe

	 	Coral Springs, FL
	Saddle Ridge

	 	Ashburn, VA
	Sage

	 	Everett, WA
	Savannah at Park Place

	 	Atlanta, GA
	Savoy III

	 	Aurora, CO
	Sawgrass Cove

	 	Bradenton, FL






 









 






	 	 	 
	Apartment Name	 	Location
	Scarborough Square

	 	Rockville, MD
	Sedona Ridge

	 	Phoenix, AZ
	Seeley Lake

	 	Lakewood, WA
	Seventh & James

	 	Seattle, WA
	Shadow Creek

	 	Winter Springs, FL
	Sheridan Lake Club

	 	Dania Beach, FL
	Sheridan Ocean Club combined

	 	Dania Beach, FL
	Siena Terrace

	 	Lake Forest, CA
	Silver Springs (FL)

	 	Jacksonville, FL
	Skycrest

	 	Valencia, CA
	Skylark

	 	Union City, CA
	Skyline Terrace

	 	Burlingame, CA
	Skyline Towers

	 	Falls Church, VA (G)
	Skyview

	 	Rancho Santa Margarita, CA
	Sonoran

	 	Phoenix, AZ
	Southwood

	 	Palo Alto, CA
	Springbrook Estates

	 	Riverside, CA
	St. Andrews at Winston Park

	 	Coconut Creek, FL
	Stoney Creek

	 	Lakewood, WA
	Summerwood

	 	Hayward, CA
	Summit & Birch Hill

	 	Farmington, CT
	Summit at Lake Union

	 	Seattle, WA
	Surprise Lake Village

	 	Milton, WA
	Sycamore Creek

	 	Scottsdale, AZ
	Tanasbourne Terrace

	 	Hillsboro, OR
	Third Square

	 	Cambridge, MA (G)
	Tortuga Bay

	 	Orlando, FL
	Toscana

	 	Irvine, CA
	Townes at Herndon

	 	Herndon, VA
	Trump Place, 140 Riverside

	 	New York, NY (G)
	Trump Place, 160 Riverside

	 	New York, NY (G)
	Trump Place, 180 Riverside

	 	New York, NY (G)
	Uwajimaya Village

	 	Seattle, WA
	Valencia Plantation

	 	Orlando, FL
	Vantage Pointe

	 	San Diego, CA (G)
	Versailles (K-Town)

	 	Los Angeles, CA
	Victor on Venice

	 	Los Angeles, CA (G)
	Villa Encanto

	 	Phoenix, AZ
	Villa Solana

	 	Laguna Hills, CA
	Village at Bear Creek

	 	Lakewood, CO
	Vista Del Largo

	 	Mission Viejo, CA
	Vista Grove

	 	Mesa, AZ
	Vista Montana — Residential & Townhomes

	 	San Jose, CA
	Vista on Courthouse

	 	Arlington, VA
	Waterford at Deerwood

	 	Jacksonville, FL
	Waterford at Orange Park

	 	Orange Park, FL






 









 






	 	 	 
	Apartment Name	 	Location
	Waterford Place (CO)

	 	Thornton, CO
	Waterside

	 	Reston, VA
	Webster Green

	 	Needham, MA
	Welleby Lake Club

	 	Sunrise, FL
	West End Apartments (fka Emerson Place/CRP II)

	 	Boston, MA (G)
	Westerly at Worldgate

	 	Herndon, VA
	Westfield Village

	 	Centerville, VA
	Westridge

	 	Tacoma, WA
	Westgate Pasadena Condos

	 	Pasadena, CA
	Westgate Pasadena and Green

	 	Pasadena, CA
	Westside Villas I

	 	Los Angeles, CA
	Westside Villas II

	 	Los Angeles, CA
	Westside Villas III

	 	Los Angeles, CA
	Westside Villas IV

	 	Los Angeles, CA
	Westside Villas V

	 	Los Angeles, CA
	Westside Villas VI

	 	Los Angeles, CA
	Westside Villas VII

	 	Los Angeles, CA
	Wimberly at Deerwood

	 	Jacksonville, FL
	Winchester Park

	 	Riverside, RI
	Winchester Wood

	 	Riverside, RI
	Windsor at Fair Lakes

	 	Fairfax, VA
	Winston, The (FL)

	 	Pembroke Pines, FL
	Wood Creek (CA)

	 	Pleasant Hill, CA
	Woodbridge (CT)

	 	Newington, CT
	Woodleaf

	 	Campbell, CA
	Woodside

	 	Lorton, VA







 












 







	 	 	 	 	 



EXHIBIT G




FORM OF DESIGNATION AGREEMENT



Dated _____________, 200____




     Reference is made to that certain Revolving Credit Agreement, dated as of July 13, 2011 (as
amended, supplemented or otherwise modified from time to time, the “Agreement”), among ERP
OPERATING LIMITED PARTNERSHIP, the banks parties thereto, and BANK OF AMERICA, N.A. (the
“Administrative Agent”), as Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication
Agent, and SUNTRUST BANK, U.S. BANK NATIONAL ASSOCIATION, and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agents, and CITIBANK, N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN
STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents. Terms defined in the Agreement are used
herein with the same meaning. [NAME OF DESIGNOR] (the “Designor”), [NAME OF DESIGNEE] (the “Designee”), and the Administrative
Agent agree as follows:




     1. The Designor hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Money Market Loans pursuant to Section 2.3 of the Agreement.
Any assignment by Designor to Designee of its rights to make a Money Market Loan pursuant to such
Section 2.3 shall be effective at the time of the funding of such Money Market Loan and not before
such time.



     2. Except as set forth in Section 7 below, the Designor makes no representation or warranty
and assumes no responsibility pursuant to this Designation 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, EQR or any Down REIT Guarantor or the performance or observance by the
Borrower, EQR or any Down REIT Guarantor of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto.



     3. The Designee (a) confirms that it has received a copy of each Loan Document, together with
copies of the financial statements referred to in Articles IV and V of the Agreement and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Designation Agreement; (b) agrees that it will independently and without
reliance upon the Administrative Agent, the Designor or any other Bank 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 any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under any Loan Document as are delegated to the
Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental thereto; and
(e) agrees to be bound by each and every provision of each Loan Document and further agrees that it



Exhibit G-1









 




will perform in accordance with their terms all of the obligations which by the terms of any Loan
Document are required to be performed by it as a Designated Lender.




     4. The Designee hereby appoints Designor as Designee’s agent and attorney in fact, and grants
to Designor an irrevocable power of attorney, to receive payments made for the benefit of Designee
under the Agreement, to deliver and receive all communications and notices under the Agreement and
other Loan Documents and to exercise on Designee’s behalf all rights to vote and to grant and make
approvals, waivers, consents or amendments to or under the Agreement or other Loan Documents. Any
document executed by the Designor on the Designee’s behalf in connection with the Agreement or
other Loan Documents shall be binding on the Designee. The Borrower, the Administrative Agent and
each of the Banks may rely on and are beneficiaries of the preceding provisions.



     5. Following the execution of this Designation Agreement by the Designor and its Designee, it
will be delivered to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date for this Designation Agreement (the “Effective Date”) shall be
the date of acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page thereto.



     6. The Administrative Agent hereby agrees that it will not institute against the Designee or
join any other Person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar
law, until the later to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by the Designee and (ii) the Maturity Date.



     7. The Designor unconditionally agrees to pay or reimburse the Designee and save the Designee
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 Designee, in its capacity as such,
in any way relating to or arising out of this Designation Agreement or any other Loan Documents or
any action taken or omitted by the Designee hereunder or thereunder, provided that the
Designor 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
Designee’s gross negligence or willful misconduct.



     8. Upon such acceptance and recording by the Administrative Agent, as of the Effective Date,
the Designee shall be a party to the Agreement with a right (subject to the provisions of Section
2.3(b)) to make Money Market Loans as a Bank pursuant to Section 2.3 of the Agreement and the
rights and obligations of a Bank related thereto; provided, however, that the Designee
shall not be required to make payments with respect to such obligations except to the extent of
excess cash flow of such Designee which is not otherwise required to repay obligations of the
Designee which are then due and payable. Notwithstanding the foregoing, the Designor, as
administrative agent for the Designee, shall be and remain obligated to the Borrower, the
Administrative Agent and the Banks for each and every of the obligations of the Designee and
its Designor with respect to the Agreement, including, without limitation, any indemnification
obligations under Section 7.6 of the Agreement and any sums otherwise payable to the Borrower by
the Designee.





Exhibit G-2









 





     9. This Designation Agreement shall be governed by, and construed in accordance with, the laws
of the State of Illinois.



     10. This Designation Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Designation Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this Designation Agreement.




Exhibit G-3











 





     IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally bound, have caused
this Designation Agreement to be executed by their officers thereunto duly authorized as of the
date first above written.



			
	Effective Date:
	 	________________________, 200_






	 	 	 	 	 
	 	

[NAME OF DESIGNOR], as Designor

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 	 	 	 
	 
	 	[NAME OF DESIGNEE] as Designee

 	 
	 	By:  	 	 
	 	 	Title:  	 	 
	 	 	 	 
	 	 	 	Applicable Lending Office (and address
for notices): 	 
	 
	 	                                        [ADDRESS]

 	 



Accepted this _____ day

of __ , 20__




BANK OF AMERICA, N.A.,

as Administrative Agent




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Title:  	 	 
	 	 	 
	 



Exhibit G-4





 









 





EXHIBIT H




FORM OF DOWN REIT GUARANTY



GUARANTY OF PAYMENT



          GUARANTY
OF PAYMENT (this “Guaranty”), made as of
                   
                   ,
2007, between                        
                   
                   ,
a                
                    
              
                   

, having an address
at Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606 (“Guarantor”), and BANK OF
AMERICA, N.A., having an office at 231 South LaSalle Street, Chicago, Illinois 60697, as
administrative agent (“Administrative Agent”) for the banks (the “Banks”) party to the Revolving
Credit Agreement (as the same may be amended, modified, supplemented or restated, the “Credit
Agreement”), dated as of July 13, 2011, among ERP Operating Limited Partnership (“Borrower”), the
Banks, Administrative Agent, JPMorgan Chase Bank, N.A., as syndication agent, SunTrust Bank, U.S.
Bank National Association, Wells Fargo Bank, National Association, as documentation agents, and
Citicorp North America, Inc., Deutsche Bank Securities Inc., and Morgan Stanley Senior Funding,
Inc., as co-documentation agents.




W I T N E S S E T H:




          WHEREAS, the Banks have agreed to make loans (hereinafter collectively referred to as the
“Loans”) and otherwise extend credit to Borrower in an aggregate principal amount the Dollar
Equivalent Amount of which is not to exceed $1,250,000,000 (which amount may be increased to an
amount not to exceed $1,750,000,000);




          WHEREAS, the Loans will be evidenced by certain promissory notes (the “Notes”) of Borrower
made to each of the Banks in accordance with the terms of the Credit Agreement;




          WHEREAS, the Credit Agreement and the Notes and any other documents executed in connection
therewith are hereinafter collectively referred to as the “Loan Documents”;




          WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement;




          WHEREAS, Guarantor is a limited partnership which, except for certain preference units, is
wholly-owned (directly and indirectly) by Borrower; and




          WHEREAS, in order further to induce the Administrative Agent and the Banks to enter into the
Loan Documents, Guarantor has agreed to enter into this Guaranty;




 









 








          NOW, THEREFORE, in consideration of the premises and the benefits to be derived from the
making of the Loans and other extensions of credit under the Credit Agreement by the Banks to
Borrower, and in order to induce the Administrative Agent and the Banks to enter into the Loan
Documents, Guarantor hereby agrees as follows:




          1. Guarantor, on behalf of itself and its successors and assigns, hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all Obligations of Borrower now or hereafter existing under the Notes and
the Credit Agreement, for principal and/or interest as well as any and all other amounts due
thereunder, including, without limitation, all indemnity obligations of Borrower thereunder, and
any and all reasonable costs and expenses (including, without limitation, reasonable attorneys’
fees and disbursements) incurred by the Administrative Agent or the Banks in enforcing its or their
rights under this Guaranty (all of the foregoing obligations being the “Guaranteed Obligations”).




          2. It is agreed that the Guaranteed Obligations are primary and this Guaranty shall be
enforceable against Guarantor and its successors and assigns without the necessity for any suit or
proceeding of any kind or nature whatsoever brought by the Administrative Agent or any Bank against
Borrower or its respective successors or assigns or any other party or against any security for the
payment and performance of the Guaranteed Obligations and without the necessity of any notice of
nonpayment or nonobservance or of any notice of acceptance of this Guaranty or of any notice or
demand to which Guarantor might otherwise be entitled (including, without limitation, diligence,
presentment, notice of the incurrence of any Guaranteed Obligation, maturity, extension of time,
change in nature or form of the Guaranteed Obligations, acceptance of further security, release of
further security, imposition or agreement arrived at as to the amount of or the terms of the
Guaranteed Obligations, notice of adverse change in Borrower’s financial condition and any other
fact which might materially increase the risk to Guarantor), all of which Guarantor hereby
expressly waives; and Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected, diminished, modified or
impaired by reason of the assertion of or the failure to assert by the Administrative Agent or any
Bank against Borrower or its respective successors or assigns, any of the rights or remedies
reserved to the Administrative Agent and the Banks pursuant to the provisions of the Loan
Documents. Guarantor agrees that any notice or directive given at any time to the Administrative
Agent which is inconsistent with the waiver in the immediately preceding sentence shall be void and
may be ignored by the Administrative Agent and the Banks, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the reason that such
pleading or introduction would be at variance with the written terms of this Guaranty, unless the
Administrative Agent and the Banks have specifically agreed otherwise in a writing, signed by a
duly authorized officer. Guarantor specifically acknowledges and agrees that the foregoing waivers
are of the essence of this transaction and that, but for this Guaranty and such waivers, the
Administrative Agent and the Banks would decline to execute the Loan Documents.




          3. Guarantor waives, and covenants and agrees that it will not at any time insist upon, plead
or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal,
valuation, stay, extension, marshalling of assets or redemption laws, or right of






2









 







homestead or exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by Guarantor of its obligations under, or the
enforcement by the Administrative Agent of, this Guaranty. Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, offset, setoff or other objection of any kind to
any action, suit or proceeding at law, in equity or otherwise, or to any demand or claim that may
be instituted or made by the Administrative Agent other than the defense of the actual timely
payment and performance by Borrower of the Guaranteed Obligations; provided, however, that the
foregoing shall not be deemed a waiver of Guarantor’s right to assert any compulsory counterclaim,
if such counterclaim is compelled under local law or rule of procedure, nor shall the foregoing be
deemed a waiver of Guarantor’s right to assert any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against Administrative Agent or any Bank in any
separate action or proceeding. Guarantor represents, warrants and agrees that, as of the date
hereof, its obligations under this Guaranty are not subject to any counterclaims, offsets or
defenses against the Administrative Agent or any Bank of any kind.




          4. The provisions of this Guaranty are for the benefit of the Administrative Agent and the
Banks and their successors and permitted assigns, and nothing herein contained shall impair as
between Borrower or Guarantor and the Administrative Agent and the Banks the obligations of
Borrower and Guarantor under the Loan Documents.




          5. This Guaranty shall be a continuing, irrevocable, unconditional and absolute guaranty and
the liability of Guarantor hereunder shall in no way be terminated, affected, modified, impaired or
diminished by reason of the happening, from time to time, of any of the following, although without
notice or the further consent of Guarantor:





     (a) any assignment, amendment, modification or waiver of or change in any of the terms,
covenants, conditions or provisions of any of the Guaranteed Obligations or the Loan
Documents or the invalidity or unenforceability of any of the foregoing; or




     (b) any extension of time that may be granted by the Administrative Agent or any Bank
to Borrower, any guarantor, or their respective successors or assigns, heirs, executors,
administrators or personal representatives; or




     (c) any action which the Administrative Agent or any Bank may take or fail to take
under or in respect of any of the Loan Documents or by reason of any waiver of, or failure
to enforce, any of the rights, remedies, powers or privileges available to the
Administrative Agent and the Banks under this Guaranty or available to the Administrative
Agent and the Banks at law, in equity or otherwise, or any action on the part of the
Administrative Agent or any Bank granting indulgence or extension in any form whatsoever; or




     (d) any sale, exchange, release, or other disposition of any property pledged,
mortgaged or conveyed, or any property in which the Administrative Agent and/or the Banks
have been granted a lien or security interest to secure any indebtedness of



3









 





Borrower to the Administrative Agent and/or the Banks or any impairment of or failure
to perfect any security interest therein; or





     (e) any release of any person or entity who may be liable in any manner for the payment
and collection of any amounts owed by Borrower to the Administrative Agent and/or the Banks;
or




     (f) the application of any sums by whomsoever paid or however realized to any amounts
owing by Borrower to the Administrative Agent and/or the Banks under the Loan Documents in
such manner as the Administrative Agent shall determine in its sole discretion; or




     (g) Borrower’s or any guarantor’s voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of their respective assets and liabilities, appointment of
a trustee, receiver, liquidator, sequestrator or conservator for all or any part of
Borrower’s or any guarantor’s assets, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment, or the commencement of
other similar proceedings affecting Borrower or any guarantor or any of the assets of any of
them, including, without limitation, (i) the release or discharge of Borrower or any
guarantor from the payment and performance of their respective obligations under any of the
Loan Documents by operation of law, or (ii) the impairment, limitation or modification of
the liability of Borrower or any guarantor in bankruptcy, or of any remedy for the
enforcement of the Guaranteed Obligations under any of the Loan Documents, or Guarantor’s
liability under this Guaranty, resulting from the operation of any present or future
provisions of the Bankruptcy Code or other present or future federal, state or applicable
statute or law or from the decision in any court; or




     (h) any improper disposition by Borrower of the proceeds of the Loans, it being
acknowledged by Guarantor that the Administrative Agent or any Bank shall be entitled to
honor any request made by Borrower for a disbursement of such proceeds and that neither the
Administrative Agent nor any Bank shall have any obligation to see to the proper disposition
by Borrower of such proceeds.



          6. Guarantor agrees that if at any time all or any part of any payment at any time received by
the Administrative Agent or any Bank from Borrower or Guarantor or any other Person obligated in
respect of the Guaranteed Obligations under or with respect to this Guaranty is or must be
rescinded or returned by the Administrative Agent or any Bank for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of Borrower or Guarantor or such
other Person), then Guarantor’s obligations hereunder shall, to the extent of the payment rescinded
or returned, be deemed to have continued in existence notwithstanding such previous receipt by such
party, and Guarantor’s obligations hereunder shall continue to be effective or be reinstated, as
the case may be, as to such payment, as though such previous payment had never been made.




          7. Until this Guaranty is terminated pursuant to the terms hereof, Guarantor (i) shall have no
right of subrogation against Borrower or any entity comprising same by reason






4









 







of any payments or acts of performance by Guarantor in compliance with the obligations of
Guarantor hereunder; (ii) waives any right to enforce any remedy which Guarantor now or hereafter
shall have against Borrower or any entity comprising same by reason of any one or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder and (iii) from and
after an Event of Default, subordinates any liability or indebtedness of Borrower or any entity
comprising same now or hereafter held by Guarantor or any affiliate of Guarantor to the obligations
of Borrower under the Loan Documents.




          8. Guarantor represents and warrants to the Administrative Agent and the Banks with the
knowledge that the Administrative Agent and the Banks are relying upon the same, as follows:





     (a) as of the date hereof, Guarantor is a limited partnership which, except for certain
preference units, is wholly-owned (directly and indirectly) by Borrower;




     (b) based upon such relationship, Guarantor has determined that it is in its best
interests to enter into this Guaranty;




     (c) this Guaranty is necessary and convenient to the conduct, promotion and attainment
of Guarantor’s business, and is in furtherance of Guarantor’s business purposes;




     (d) the benefits to be derived by Guarantor from Borrower’s access to funds and other
credit made possible by the Loan Documents are at least equal to the obligations undertaken
pursuant to this Guaranty;




     (e) Guarantor is solvent and has full power and legal right to enter into this Guaranty
and to perform its obligations under the terms hereof and (i) Guarantor is organized and
validly existing under the laws of the State of Ohio, (ii) Guarantor has complied with all
provisions of applicable law in connection with all aspects of this Guaranty, and (iii) the
person executing this Guaranty has all the requisite power and authority to execute and
deliver this Guaranty;




     (f) to the best of Guarantor’s knowledge, there is no action, suit, proceeding, or
investigation pending or threatened against or affecting Guarantor at law, in equity, in
admiralty or before any arbitrator or any governmental department, commission, board,
bureau, agency or instrumentality (domestic or foreign) which is likely to materially and
adversely affect the property, assets or condition (financial or otherwise) of Guarantor or
which is likely to materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;




     (g) the execution and delivery of and the performance by Guarantor of its obligations
under this Guaranty have been duly authorized by all necessary action on the part of
Guarantor and do not (i) violate any provision of any law, rule, regulation (including,
without limitation, Regulation U or X of the Board of Governors of the Federal Reserve
System of the United States), order, writ, judgment, decree,



5









 






determination or award presently in effect having applicability to Guarantor or the
organizational documents of Guarantor, the consequences of which violation would materially
and adversely affect the property, assets or condition (financial or otherwise) of Guarantor
or which is likely to materially and adversely impair the ability of Guarantor to perform
its obligations under this Guaranty or (ii) violate or conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any indenture,
agreement or other instrument to which Guarantor is a party, or by which Guarantor or any of
its property is bound, the consequences of which violation, conflict, breach or default
would materially and adversely affect the property, assets or condition (financial or
otherwise) of Guarantor or which is likely to materially and adversely impair the ability of
Guarantor to perform its obligations under this Guaranty;




     (h) this Guaranty has been duly executed by Guarantor and constitutes the legal, valid
and binding obligation of Guarantor, enforceable against it in accordance with its terms
except as enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors’ rights generally or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law;




     (i) no authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any Federal, state, local or foreign court,
governmental agency or regulatory authority is required in connection with the making and
performance by Guarantor of this Guaranty, except those which have already been obtained;




     (j) Guarantor is not an “investment company” as that term is defined in, nor is it
otherwise subject to regulation under, the Investment Company Act of 1940, as amended; and




     (k) Guarantor is not engaged principally, or as one of its important activities, in the
business of purchasing, carrying, or extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System of the United States).



          9. Guarantor and the Administrative Agent each acknowledge and agree that this Guaranty is a
guarantee of payment and performance and not of collection and enforcement in respect of any
obligations which may accrue to the Administrative Agent and/or the Banks from Borrower under the
provisions of any Loan Document.




          10. Subject to the terms and conditions of the Credit Agreement, and in conjunction therewith,
the Administrative Agent or any Bank may assign any or all of its rights under this Guaranty. In
the event of any such assignment, the Administrative Agent shall give Guarantor prompt notice of
same. If the Administrative Agent or any Bank elects to sell all the Loans or participations in
the Loans and the Loan Documents, including this Guaranty, the Administrative Agent or any Bank may
forward to each purchaser and prospective purchaser all documents and information relating to this
Guaranty or to Guarantor, whether furnished by






6









 







Borrower or Guarantor or otherwise, subject to the terms and conditions of the Credit
Agreement.




          11. Guarantor agrees, upon the written request of the Administrative Agent, to execute and
deliver to the Administrative Agent, from time to time, any modification or amendment hereto or any
additional instruments or documents reasonably considered necessary by the Administrative Agent or
its counsel to cause this Guaranty to be, become or remain valid and effective in accordance with
its terms, provided, that any such modification, amendment, additional instrument or document shall
not increase Guarantor’s obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor’s counsel.




          12. The representations and warranties of Guarantor set forth in this Guaranty shall survive
until this Guaranty shall terminate in accordance with the terms hereof.




          13. This Guaranty contains the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements relating to such subject matter and may not be
modified, amended, supplemented or discharged except by a written agreement signed by Guarantor and
the Administrative Agent (acting with the requisite consent of the Banks as provided in the Credit
Agreement).




          14. If all or any portion of any provision contained in this Guaranty shall be determined to
be invalid, illegal or unenforceable in any respect for any reason, such provision or portion
thereof shall be deemed stricken and severed from this Guaranty and the remaining provisions and
portions thereof shall continue in full force and effect.




          15. This Guaranty may be executed in counterparts which together shall constitute the same
instrument.




          16. All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be addressed to such party at the address set forth below or to such other
address as may be identified by any party in a written notice to the others:




	 	 	 	 	 

	If to Guarantor:

	 	 

	 	 
	 

	 	c/o Equity Residential	 	 
	 

	 	Two North Riverside Plaza	 	 
	 

	 	Suite 400	 	 
	 

	 	Chicago, Illinois 60606	 	 
	 

	 	Attn: Chief Financial Officer	 	 
	 
	 	 	 	 
	With Copies of

	 	 	 	 
	Notices to

	 	 	 	 
	Guarantor to:

	 	Equity Residential	 	 
	 

	 	Two North Riverside Plaza	 	 
	 

	 	Suite 400	 	 






7









 






	 	 	 	 	 

	 

	 	Chicago, Illinois 60606	 	 
	 

	 	Attn: General Counsel	 	 
	 
	 	 	 	 
	 

	 	and	 	 
	 
	 	 	 	 
	 

	 	DLA Piper LLP (US)	 	 
	 

	 	203 North LaSalle Street, Suite 1900	 	 
	 

	 	Chicago, Illinois 60601	 	 
	 

	 	Attn: James M. Phipps, Esq.	 	 
	 
	 	 	 	 
	If to the

	 	 	 	 
	Administrative

	 	 	 	 
	Agent:

	 	Bank of America, N.A.	 	 
	 

	 	Structured Debt Group	 	 
	 

	 	Mail Code             
                   
   	 	 
	 

	 	231 South LaSalle Street	 	 
	 

	 	Chicago, IL 60697	 	 
	 

	 	Attn:	 	 
	 
	 	 	 	 
	With Copies of

	 	 	 	 
	Notices to the

	 	 	 	 
	Administrative

	 	 	 	 
	Agent to:

	 	Skadden, Arps, Slate,	 	 
	 

	 	Meagher & Flom LLP	 	 
	 

	 	Four Times Square	 	 
	 

	 	New York, New York 10036	 	 
	 

	 	Attn: Martha Feltenstein, Esq.	 	 






          Each such notice, request or other communication shall be effective (i) if given by facsimile
transmission, when such facsimile is transmitted to the facsimile number specified in this Section
and the appropriate facsimile confirmation is received, (ii) if given by certified or registered
mail, return receipt requested, with first class postage prepaid, addressed as aforesaid, upon
receipt or refusal to accept delivery, (iii) if given by a nationally recognized overnight carrier,
24 hours after such communication is deposited with such carrier with postage prepaid for next day
delivery, or (iv) if given by any other means, when delivered at the address specified in this
Section.




          17. Any acknowledgment or new promise, whether by payment of principal or interest or
otherwise by Borrower or Guarantor, with respect to the Guaranteed Obligations shall, if the
statute of limitations in favor of Guarantor against the Administrative Agent and the Banks shall
have commenced to run, toll the running of such statute of limitations, and if the period of such
statute of limitations shall have expired, prevent the operation of such statute of limitations.




          18. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall
inure to the benefit of the Administrative Agent and the Banks and their successors and permitted
assigns; provided, however, that Guarantor may not assign or transfer






8









 







any of its rights or obligations hereunder without the prior written consent of all of the
Banks, and any such attempted assignment or transfer without such consent shall be null and void.




          19. The failure of the Administrative Agent to enforce any right or remedy hereunder, or
promptly to enforce any such right or remedy, shall not constitute a waiver thereof, nor give rise
to any estoppel against the Administrative Agent or any Bank, nor excuse Guarantor from its
obligations hereunder. Any waiver of any such right or remedy to be enforceable against the
Administrative Agent and the Banks must be expressly set forth in a writing signed by the
Administrative Agent (acting with the requisite consent of the Banks as provided in the Credit
Agreement).




          20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.




               (b) Any legal action or proceeding with respect to this Guaranty and any action for
enforcement of any judgment in respect thereof may be brought in the courts of the State of
Illinois or of the United States of America for the Northern District of Illinois, and, by
execution and delivery of this Guaranty, the Guarantor hereby accepts for itself and in respect of
its property, generally and unconditionally, the nonexclusive jurisdiction of the aforesaid courts
and appellate courts from any thereof. The Guarantor irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the Guarantor at its address
for notices set forth herein. The Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising
out of or in connection with this Guaranty brought in the courts referred to above and hereby
further irrevocably waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein
shall affect the right of the Administrative Agent to serve process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against the Guarantor in any other
jurisdiction.



               (c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF
ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS HEREBY ACKNOWLEDGED BY GUARANTOR
THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND
THE BANKS TO ACCEPT THIS GUARANTY AND THAT THE LOANS AND OTHER EXTENSIONS OF CREDIT MADE BY
THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS AND REPRESENTS
THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED BY THE ADMINISTRATIVE
AGENT IN COURT AS A WRITTEN CONSENT TO A NONJURY TRIAL.




9











 





               (d) Guarantor does hereby further covenant and agree to and with the Administrative Agent
and the Banks that Guarantor may be joined in any action against Borrower in connection with the
Loan Documents and that recovery may be had against Guarantor in such action or in any independent
action against Guarantor (with respect to the Guaranteed Obligations), without the Administrative
Agent or any Bank first pursuing or exhausting any remedy or claim against Borrower or its
successors or assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by the judgment in any
such action by the Administrative Agent (wherever brought) against Borrower or its successors or
assigns, as if Guarantor were a party to such action, even though Guarantor was not joined as a
party in such action.



               (e) Guarantor agrees to pay all reasonable expenses (including, without limitation, attorneys’
fees and disbursements) which may be incurred by the Administrative Agent or the Banks in
connection with the enforcement of their rights under this Guaranty, whether or not suit is
initiated.



          21. Notwithstanding anything to the contrary contained herein (but subject to Section 6
hereof), this Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder. Upon termination of this Guaranty
in accordance with the terms of this Guaranty, the Administrative Agent promptly shall deliver to
Guarantor such documents as Guarantor or Guarantor’s counsel reasonably may request in order to
evidence such termination.



          22. All of the Administrative Agent’s and the Banks’ rights and remedies under each of the
Loan Documents or under this Guaranty are intended to be distinct, separate and cumulative and no
such right or remedy therein or herein mentioned is intended to be in exclusion of or a waiver of
any other right or remedy available to the Administrative Agent or any Bank.



          23. Notwithstanding anything contained herein to the contrary, in no event shall the
Guaranteed Obligations equal or exceed such an amount that, as of the date hereof, would render, or
would be deemed to render, Guarantor insolvent.



          24. No claim may be made by the Guarantor or any other Person acting by or through Guarantor
against the Administrative Agent or any Bank or the affiliates, directors, officers, employees,
attorneys or agents of any of them for any consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or any act, omission or
event occurring in connection therewith; and Guarantor hereby waives, releases and agrees not to
sue upon any claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.



10









 





          IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty as of the
date and year first above written.



	 	 	 	 	 
	 	GUARANTOR:

 	 
	 	[Signature Block for Down REIT Guarantor] 	 
	 	 	 
	 



ACCEPTED:




BANK OF AMERICA, N.A.,

AS ADMINISTRATIVE AGENT




	 	 	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



ACKNOWLEDGMENT FOR GUARANTOR




	 	 	 	 	 	 	 	 	 	 	 

	STATE OF ILLINOIS

	 	 		 	 		 	) 			
	

	 	 	)	 	ss
	 	 		 
	COUNTY OF COOK

	 	 	)	 	 	 	 	 	 	 






          On
________________ ________, 2007, before me personally came ________________,
to me known to be the person who executed the
foregoing instrument, and who, being duly sworn by me, did depose and
say that he is ________________________ of Equity
Residential, and that he executed the foregoing instrument in the organization’s name, and that he
had authority to sign the same, and he acknowledged to me that he executed the same as the act and
deed of said organization for the uses and purposes therein mentioned.



[Seal]








	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	 	 



11









 






	 	 	 	 	 



EXHIBIT I




QUALIFIED BORROWER GUARANTY OF PAYMENT


          GUARANTY OF PAYMENT (this “Guaranty”), made as of ______________, 20__, between ERP
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership, having an address at Two North
Riverside Plaza, Suite 400, Chicago, Illinois 60606 (“Guarantor”), and BANK OF AMERICA,
N.A., as administrative agent (“Administrative Agent”) for the banks and other financial
institutions (the “Banks”) party to of the Revolving Credit Agreement (as the same may be
amended, modified, supplemented or restated, the “Credit Agreement”), dated as of the date
hereof, among ERP OPERATING LIMITED PARTNERSHIP (“Borrower”), the Banks, the Administrative
Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, SUNTRUST BANK, U.S. BANK NATIONAL
ASSOCIATION, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents, and CITIBANK,
N.A., DEUTSCHE BANK SECURITIES INC., and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation
Agents



 W I T  N  E  S S       E       T        H:



          WHEREAS, pursuant to the terms of the Credit Agreement, a Qualified Borrower may request (i)
that the Banks make one or more loans (each, a “Loan”) to such Qualified Borrower, to be
guaranteed by Guarantor by this Guaranty and to be evidenced by Qualified Borrower Notes
(collectively, the “Note”), payable by the Qualified Borrower to the order of the Banks and
(ii) that the Fronting Banks issue one or more Letters of Credit for the account of the Qualified
Borrower, to be guaranteed by Guarantor by this Guaranty;


          WHEREAS, this Guaranty is the “Qualified Borrower Guaranty” referred to in the Credit
Agreement;


          WHEREAS, in order to induce the Administrative Agent and the Banks to make one or more Loans
and to otherwise extend credit to one or more Qualified Borrowers, and to satisfy one of the
conditions contained in the Credit Agreement with respect thereto, the Guarantor has agreed to
enter into this Guaranty; and


          WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement;


          NOW THEREFORE, in consideration of the premises and the direct and indirect benefits to be
derived from the making of the Loans and issuance of Letters of Credit by the Banks for the account
of Qualified Borrowers, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Guarantor hereby agrees as follows:


          1. Guarantor, on behalf of itself and its successors and assigns, hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all obligations of each and every Qualified Borrower now or hereafter
existing under the Notes and the Credit Agreement, including in the event that the Borrower
exercises its rights under the Credit Agreement to increase the Facility Amount, for













 








principal
and/or interest as well as any and all other amounts due thereunder, including, without
limitation, all indemnity obligations of any Qualified Borrower thereunder, and any and all
reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees and
disbursements) incurred by the Administrative Agent or the Banks in enforcing their rights under
this Guaranty (all of the foregoing obligations being the “Guaranteed Obligations”).



          2. Intentionally Omitted.


          3. Intentionally Omitted.


          4. It is agreed that the Guaranteed Obligations of Guarantor hereunder are primary and this
Guaranty shall be enforceable against Guarantor and its successors and assigns without the
necessity for any suit or proceeding of any kind or nature whatsoever brought by the Administrative
Agent or any of the Banks against the relevant Qualified Borrower or its respective successors or
assigns or any other party or against any security for the payment and performance of the
Guaranteed Obligations and without the necessity of any notice of non-payment or non-observance or
of any notice of acceptance of this Guaranty or of any notice or demand to which Guarantor might
otherwise be entitled (including, without limitation, diligence, presentment, notice of incurrence
of any Guaranteed Obligation, maturity, extension of time, change in nature or form of the
Guaranteed Obligations, acceptance of further security, release of further security, imposition or
agreement arrived at as to the amount of or the terms of the Guaranteed Obligations, notice of
adverse change in such Qualified Borrower’s financial condition and any other fact which might
materially increase the risk to Guarantor), all of which Guarantor hereby expressly waives; and
Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of
Guarantor hereunder shall in no way be terminated, affected, diminished, modified or impaired by
reason of the assertion of or the failure to assert by the Administrative Agent or any of the Banks
against such Qualified Borrower or its respective successors or assigns, any of the rights or
remedies reserved to the Administrative Agent or any of the Banks pursuant to the provisions of the
Loan Documents. Guarantor agrees that any notice or directive given at any time to the
Administrative Agent or any of the Banks which is inconsistent with the waiver in the immediately
preceding sentence shall be void and may be ignored by the Administrative Agent and the Banks, and,
in addition, may not be pleaded or introduced as evidence in any litigation relating to this
Guaranty for the reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent has specifically agreed otherwise in a
writing, signed by a duly authorized officer. Guarantor specifically acknowledges and agrees that
the foregoing waivers are of the essence of this transaction and that, but for this Guaranty and
such waivers, the Administrative Agent and the Banks would not make requested Loans or otherwise
extend credit to a Qualified Borrower.


          5. Guarantor waives, and covenants and agrees that it will not at any time insist upon, plead
or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal,
valuation, stay, extension, marshalling-of-assets or redemption laws, or right of homestead or
exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by Guarantor of its obligations under, or the enforcement by the
Administrative Agent or any of the Banks of, this Guaranty. Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, offset, setoff or



2









 








other objection of any kind to
any action, suit or proceeding at law, in equity or otherwise, or to
any demand or claim that may be instituted or made by the Administrative Agent or any of the
Banks other than the defense of the actual timely payment and performance by the relevant Qualified
Borrower of the Guaranteed Obligations hereunder; provided, however, that the foregoing shall not
be deemed a waiver of Guarantor’s right to assert any compulsory counterclaim, if such counterclaim
is compelled under local law or rule of procedure, nor shall the foregoing be deemed a waiver of
Guarantor’s right to assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Administrative Agent or any Bank in any separate action
or proceeding. Guarantor represents, warrants and agrees that, as of the date hereof, its
obligations under this Guaranty are not subject to any counterclaims, offsets or defenses against
the Administrative Agent or any Bank of any kind.



          6. The provisions of this Guaranty are for the benefit of the Administrative Agent and the
Banks and their successors and permitted assigns, and nothing herein contained shall impair as
between any Qualified Borrower and the Administrative Agent and the Banks the obligations of such
Qualified Borrower under the Loan Documents.


          7. This Guaranty shall be a continuing, unconditional and absolute guaranty and the liability
of Guarantor hereunder shall in no way be terminated, affected, modified, impaired or diminished by
reason of the happening, from time to time, of any of the following, all without notice or the
further consent of Guarantor:





     a. any assignment, amendment, modification or waiver of or change in any of the terms,
covenants, conditions or provisions of any of the Guaranteed Obligations or the Loan
Documents or the invalidity or unenforceability of any of the foregoing; or




     b. any extension of time that may be granted by the Administrative Agent to any
Qualified Borrower, any guarantor, or their respective successors or assigns, heirs,
executors, administrators or personal representatives; or




     c. any action which the Administrative Agent may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of, or failure to enforce,
any of the rights, remedies, powers or privileges available to the Administrative Agent
under this Guaranty or available to the Administrative Agent at law, in equity or otherwise,
or any action on the part of the Administrative Agent granting indulgence or extension in
any form whatsoever; or




     d. any sale, exchange, release, or other disposition of any property pledged, mortgaged
or conveyed, or any property in which the Administrative Agent and/or the Banks have been
granted a lien or security interest to secure any indebtedness of any Qualified Borrower to
the Administrative Agent and/or the Banks; or




     e. any release of any person or entity who may be liable in any manner for the payment
and collection of any amounts owed by any Qualified Borrower to the Administrative Agent
and/or the Banks; or




     f. the application of any sums by whomsoever paid or however realized to any amounts
owing by any Qualified Borrower to the Administrative Agent and/or the



3









 







Banks under the Loan
Documents in such manner as the Administrative Agent shall
determine in its sole discretion; or




     g. Any Qualified Borrower’s or any guarantor’s voluntary or involuntary liquidation,
dissolution, sale of all or substantially all of their respective assets and liabilities,
appointment of a trustee, receiver, liquidator, sequestrator or conservator for all or any
part of any Qualified Borrower’s or any guarantor’s assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment, or the commencement of other similar proceedings affecting any Qualified
Borrower or any guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of any Qualified Borrower or any guarantor from
the payment and performance of their respective obligations under any of the Loan Documents
by operation of law, or (ii) the impairment, limitation or modification of the liability of
any Qualified Borrower or any guarantor in bankruptcy, or of any remedy for the enforcement
of the Guaranteed Obligations under any of the Loan Documents, or Guarantor’s liability
under this Guaranty, resulting from the operation of any present or future provisions of the
Bankruptcy Code or other present or future federal, state or applicable statute or law or
from the decision in any court; or




     h. any improper disposition by any Qualified Borrower of the proceeds of the Loans, it
being acknowledged by Guarantor that the Administrative Agent or any Bank shall be entitled
to honor any request made by any Qualified Borrower for a disbursement of such proceeds and
that neither the Administrative Agent nor any Bank shall have any obligation to see the
proper disposition by any Qualified Borrower of such proceeds.


          8. Guarantor agrees that if at any time all or any part of any payment at any time received by
the Administrative Agent from any Qualified Borrower or Guarantor under or with respect to this
Guaranty is or must be rescinded or returned by the Administrative Agent or any Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of any
Qualified Borrower or Guarantor), then Guarantor’s obligations hereunder shall, to the extent of
the payment rescinded or returned, be deemed to have continued in existence notwithstanding such
previous receipt by such party, and Guarantor’s obligations hereunder shall continue to be
effective or reinstated, as the case may be, as to such payment, as though such previous payment
had never been made.


          9. Until this Guaranty is terminated pursuant to the terms hereof, Guarantor (i) shall have no
right of subrogation against any Qualified Borrower or any entity comprising same by reason of any
payments or acts of performance by Guarantor in compliance with the obligations of Guarantor
hereunder, (ii) waives any right to enforce any remedy which Guarantor now or hereafter shall have
against any Qualified Borrower or any entity comprising same by reason of any one or more payments
or acts of performance in compliance with the obligations of Guarantor hereunder and (iii) from and
after an Event of Default, subordinates any liability or indebtedness of any Qualified Borrower or
any entity comprising same now or hereafter held by Guarantor or any affiliate of Guarantor to the
obligations of any Qualified Borrower under the Loan Documents. The foregoing, however, shall not
be deemed in any way to limit any rights that Guarantor may have pursuant to the organizational
documents of any Qualified Borrower or which it may have at law or in equity with respect to any
other partners of such Qualified Borrower.





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          10. Guarantor represents and warrants to the Administrative Agent and the Banks with the
knowledge that the Administrative Agent and the Banks are relying upon the same, as follows:




     a. Guarantor will be familiar with the financial condition of each Qualified Borrower;




     b. Guarantor has determined that it is in its best interests to enter into this
Guaranty;




     c. this Guaranty is necessary and convenient to the conduct, promotion and attainment
of Guarantor’s business, and is in furtherance of Guarantor’s business purposes;




     d. the benefits to be derived by Guarantor from each Qualified Borrower’s access to
funds made possible by the Loan Documents are at least equal to the obligations undertaken
pursuant to this Guaranty;




     e. Guarantor is solvent and has full power and legal right to enter into this Guaranty
and to perform its obligations under the term hereof and (i) Guarantor is organized and
validly existing under the laws of the State of Maryland, (ii) Guarantor has complied with
all provisions of applicable law in connection with all aspects of this Guaranty, and (iii)
the person executing this Guaranty has all the requisite power and authority to execute and
deliver this Guaranty;




     f. to the best of Guarantor’s knowledge, there is no action, suit, proceeding, or
investigation pending or threatened against or affecting Guarantor at law, in equity, in
admiralty or before any arbitrator or any governmental department, commission, board,
bureau, agency or instrumentality (domestic or foreign) which is likely to materially and
adversely impair the ability of Guarantor to perform its obligations under this Guaranty;




     g. the execution and delivery of and the performance by Guarantor of its obligations
under this Guaranty have been duly authorized by all necessary action on the part of
Guarantor and do not (i) violate any provision of any law, rule, regulation (including,
without limitation, Regulation U or X of the Board of Governors of the Federal Reserve
System of the United States), order, writ, judgment, decree, determination or award
presently in effect having applicability to Guarantor or the organizational documents of
Guarantor the consequences of which violation is likely to materially and adversely impair
the ability of Guarantor to perform its obligations under this Guaranty or (ii) violate or
conflict with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument to which Guarantor is a
party, or by which Guarantor or any of its property is bound, the consequences of which
violation, conflict, breach or default is likely to materially and adversely impair the
ability of Guarantor to perform its obligations under this Guaranty;




     h. this Guaranty has been duly executed by Guarantor and constitutes the



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legal, valid
and binding obligation of Guarantor, enforceable against it in accordance with its terms
except as enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors’ rights generally or general principles of equity,
whether such enforceability is considered in a proceeding in equity or at law;




     i. no authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any Federal, state, local or foreign court,
governmental agency or regulatory authority is required in connection with the making and
performance by Guarantor of this Guaranty, except those which have already been obtained;
and




     j. Guarantor is not an “investment company” as that term is defined in, nor is it
otherwise subject to regulation under, the Investment Company Act of 1940, as amended.


          11. Guarantor and Administrative Agent each acknowledge and agree that this Guaranty is a
guarantee of payment and performance and not of collection and enforcement in respect of any
obligations which may accrue to the Administrative Agent and/or the Banks from any Qualified
Borrower under the provisions of any Loan Document.


          12. Subject to the terms and conditions of the Credit Agreement, and in conjunction therewith,
the Administrative Agent or any Bank may assign any or all of its rights under this Guaranty. In
the event of any such assignment, the Administrative Agent shall give Guarantor prompt notice of
same. If the Administrative Agent or any Bank elects to sell all the Loans or participations in
the Loans and the Loan Documents, including this Guaranty, the Administrative Agent or any Bank may
forward to each purchaser and prospective purchaser all documents and information relating to this
Guaranty or to Guarantor, whether furnished by any Qualified Borrower or Guarantor or otherwise,
subject to the terms and conditions of the Credit Agreement.


          13. Guarantor agrees, upon the written request of the Administrative Agent, to execute and
deliver to the Administrative Agent, from time to time, any modification or amendment hereto or any
additional instruments or documents reasonably considered necessary by the Administrative Agent or
its counsel to cause this Guaranty to be, become or remain valid and effective in accordance with
its terms, provided, that, any such modification, amendment, additional instrument or document
shall not increase Guarantor’s obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor’s counsel.


          14. The representations and warranties of Guarantor set forth in this Guaranty shall survive
until this Guaranty shall terminate in accordance with the terms hereof.


          15. This Guaranty contains the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements relating to such subject matter and may not be
modified, amended, supplemented or discharged except by a written agreement signed by Guarantor and
the Administrative Agent.


          16. If all or any portion of any provision contained in this Guaranty shall be

6









 






 determined to
be invalid, illegal or unenforceable in any respect for any reason, such provision or portion
thereof shall be deemed stricken and severed from this Guaranty and the remaining
provisions and portions thereof shall continue in full force and effect.


          17. This Guaranty may be executed in counterparts which together shall constitute the same
instrument.


          18. All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be addressed to such party at the address set forth below or to such other
address as may be identified by any party in a written notice to the others:





If to Guarantor:




Equity Residential

Two North Riverside Plaza

Suite 2100

Chicago, Illinois 60606

Attn: Chief Financial Officer





With Copies of Notices to Guarantor to:




Equity Residential

Two North Riverside Plaza

Suite 2100

Chicago, Illinois 60606

Attn: Chief Legal Counsel





and




DLA Piper LLP (US)

203 North LaSalle Street

Suite 1900

Chicago, Illinois 60601

Attn: James M. Phipps, Esq.





If to the Administrative Agent:




Bank of America, N.A.

Structured Debt Group

Mail Code

231 South LaSalle Street

Chicago, IL 60697

Attn:


          Each such notice, request or other communication shall be effective (i) if given by telex or
facsimile transmission, when such telex or facsimile is transmitted to the telex number or
facsimile number specified in this Section and the appropriate answerback or facsimile

7









 






confirmation
is received, (ii) if given by certified registered mail, return receipt requested, with first
class postage prepaid, addressed as aforesaid, upon receipt or refusal to accept delivery, (iii)
if given by a nationally recognized overnight carrier, 24 hours after such communication is
deposited with such carrier with postage prepaid for next day delivery, or (iv) if given by any
other means, when delivered at the address specified in this Section.


          19. Any acknowledgment or new promise, whether by payment of principal or interest or
otherwise by any Qualified Borrower or Guarantor, with respect to the Guaranteed Obligations shall,
if the statute of limitations in favor of Guarantor against the Administrative Agent shall have
commenced to run, toll the running of such statute of limitations, and if the period of such
statute of limitations shall have expired, prevent the operation of such statute of limitations.


          20. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall
inure to the benefit of the Administrative Agent and the Banks and their successors and permitted
assigns.


          21. The failure of the Administrative Agent to enforce any right or remedy hereunder, or
promptly to enforce any such right or remedy, shall not constitute a waiver thereof, nor give rise
to any estoppel against the Administrative Agent, nor excuse Guarantor from its obligations
hereunder. Any waiver of any such right or remedy to be enforceable against the Administrative
Agent must be expressly set forth in a writing signed by the Administrative Agent.


          22. a. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




     b. Any legal action or proceeding with respect to this Guaranty and any action for
enforcement of any judgment in respect thereof may be brought in the courts of the State of
New York or of the United States of America for the Southern District of New York, and, by
execution and delivery of this Guaranty, the Guarantor hereby accepts for itself and in
respect of its property, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts and appellate courts from any thereof. The Guarantor irrevocably
consents to the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Guarantor at its address for notices set forth herein. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Guaranty brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Administrative Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed against the
Guarantor in any other jurisdiction.




     c. GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL



8









 







OF ANY AND ALL CLAIMS OR CAUSES
OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS HEREBY ACKNOWLEDGED BY
GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT TO ACCEPT THIS GUARANTY AND THAT THE LOANS AND OTHER EXTENSIONS OF
CREDIT MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS
AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED BY
THE ADMINISTRATIVE AGENT IN COURT AS A WRITTEN CONSENT TO A NON-JURY TRIAL.




     d. Guarantor does hereby further covenant and agree to and with the Administrative
Agent that Guarantor may be joined in any action against any Qualified Borrower in
connection with the Loan Documents and that recovery may be had against Guarantor in such
action or in any independent action against Guarantor (with respect to the Guaranteed
Obligations), without the Administrative Agent first pursuing or exhausting any remedy or
claim against any Qualified Borrower or its successors or assigns. Guarantor also agrees
that, in an action brought with respect to the Guaranteed Obligations in any jurisdiction,
it shall be conclusively bound by the judgment in any such action by the Administrative
Agent (wherever brought) against any Qualified Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not joined as a party in
such action.




     e. Guarantor agrees to pay all reasonable expenses (including, without limitation,
attorneys’ fees and disbursements) which may be incurred by the Administrative Agent or the
Banks in connection with the enforcement of their rights under this Guaranty, whether or not
suit is initiated.


          23. Notwithstanding anything to the contrary contained herein (but subject to Section 8
hereof), this Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder and the termination of the
Commitments under the Credit Agreement. Upon termination of this Guaranty in accordance with the
terms of this Guaranty, the Administrative Agent promptly shall deliver to Guarantor such documents
as Guarantor or Guarantor’s counsel reasonably may request in order to evidence such termination.


          24. All of the Administrative Agent’s rights and remedies under each of the Loan Documents or
under this Guaranty are intended to be distinct, separate and cumulative and no such right or
remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any other right
or remedy available to the Administrative Agent.


          25. The Guarantor shall not use any assets of an “employee benefit plan” within the meaning of
Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue
Code (the “Code”) to repay or secure the Loans, the Notes, the Obligations or this
Guaranty. The Guarantor shall not assign, sell, pledge, encumber, transfer, hypothecate or
otherwise dispose of any of its rights or interests (direct or indirect) in any 

9









 






Qualified Borrower,
or attempt to do any of the foregoing or suffer any of the foregoing, or permit any party with a
direct or indirect interest or right in any Qualified Borrower to do any of
the foregoing, if such action would cause the Notes, the Loans, the Obligations, this
Guaranty, or any of the other Loan Documents or the exercise of any of the Administrative Agent’s
or Bank’s rights in connection therewith, to constitute a prohibited transaction under ERISA or the
Code (unless the Guarantor furnishes to the Administrative Agent a legal opinion satisfactory to
the Administrative Agent that the transaction is exempt from the prohibited transaction provisions
of ERISA and the Code (and for this purpose, the Administrative Agent and the Banks, by accepting
the benefits of this Guaranty, hereby agree to supply Guarantor all relevant non-confidential,
factual information reasonably necessary to such legal opinion and reasonably requested by
Guarantor) or would otherwise result in the Administrative Agent or any of the Banks being deemed
in violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or would otherwise result
in the Administrative Agent or any of the Banks being a fiduciary or party in interest under ERISA
or a “disqualified person” as defined in Section 4975(e)(2) of the Code with respect to an
“employee benefit plan” within the meaning of Section 3(3) of ERISA or a “plan” within the meaning
of Section 4975(e)(1) of the Code. The Guarantor shall indemnify and hold each of the
Administrative Agent and the Banks free and harmless from and against all loss, costs (including
attorneys’ fees and expenses), expenses, taxes and damages (including consequential damages) that
each of the Administrative Agent and the Banks may suffer by reason of the investigation, defense
and settlement of claims and in obtaining any prohibited transaction exemption under ERISA
necessary in Administrative Agent’s reasonable judgment as a result of Guarantor’s action or
inaction or by reason of a breach of the foregoing provisions by Guarantor.



[SIGNATURE PAGE FOLLOWS]



10









 





          IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty as of the
date and year first above written.



	 	 	 	 	 
	 	



GUARANTOR:

ERP OPERATING LIMITED PARTNERSHIP

 	 
	 	By:  	
EQUITY RESIDENTIAL
 	 



	 	 	 	 	 
	 	By:  	


 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	ACCEPTED:



BANK OF AMERICA, N.A.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



S-1









 






	 	 	 	 	 



ACKNOWLEDGMENT FOR GUARANTOR




	 	 	 	 	 

	STATE OF ILLINOIS
	 	)	 	 
	 
	 	)	SS.
	COUNTY OF COOK
	 	)	 	 






     On ___, 20__, before me personally came______________________, to me known to be the person
who executed the foregoing instrument, and who, being duly sworn by me, did depose and say that he
is ____________________ of Equity Residential, the general partner of ERP Operating Limited
Partnership, and that he executed the foregoing instrument in the organization’s name, and that he
had authority to sign the same, and he acknowledged to me that he executed the same as the act and
deed of said organization for the uses and purposes therein mentioned.



[Seal]









	 	 	 	 	 
	 	

 	 
	 	Notary Public 	 
	 	 	 
	 




S-2