Exhibit 10.1
   
 


 


CREDIT AGREEMENT


dated as of October 5,
2007


 


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,


 


BANC OF AMERICA
SECURITIES LLC,


as Joint Lead Arranger
and Joint Book Runner,


 


J.P. MORGAN SECURITIES
INC.,


as Joint Lead Arranger
and Joint Book Runner,


 


and


 


CITICORP NORTH AMERICA
INC.,


as Documentation Agent,


 


DEUTSCHE BANK SECURITIES
INC.,


as Documentation Agent,


 


REGIONS BANK,


as Documentation Agent,


 


THE ROYAL BANK OF
SCOTLAND PLC,


as Documentation Agent,
and


 


U.S. BANK NATIONAL
ASSOCIATION,


as Documentation Agent


 


 


 


 



   
 















 


CREDIT AGREEMENT


THIS CREDIT
AGREEMENT, dated as of October 5, 2007, 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,
and CITICORP NORTH AMERICA INC., DEUTSCHE BANK AG, NEW YORK BRANCH, REGIONS
BANK, THE ROYAL BANK OF SCOTLAND PLC, and U.S. BANK NATIONAL ASSOCIATION, as
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:


“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.













 


“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.


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


“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 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, its Domestic Lending Office, and (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar 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 



 2
 









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.


	
  Range of
  Borrower’s 

  Credit Rating 

  (S&P/Moody’s Ratings)

  	
   

  	
  Applicable 

  Margin for

  Base Rate Loans (% per annum)

  	
   

  	
  Applicable 

  Margin for Euro

  Dollar Loans (% per annum)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Non-Investment
  Grade

  	
   

  	
     0.250

  	
   

  	
  1.250

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB-/Baa3

  	
   

  	
  0.0

  	
   

  	
  0.950

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB/Baa2

  	
   

  	
  0.0

  	
   

  	
  0.625

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB+/Baa1

  	
   

  	
  0.0

  	
   

  	
  0.500

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A-/A3

  	
   

  	
  0.0

  	
   

  	
  0.425

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A/A2 or better

  	
   

  	
  0.0

  	
   

  	
  0.400

  



 


“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.


“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.


“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.


“Base Rate”
means, for any day, a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1⁄2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by the Bank serving as the
Administrative Agent as its “prime rate.” 
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 



 3
 









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 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.


“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.


“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 



 4
 









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 “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.


“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 (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 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 



 5
 









Section 2.1(b) or
with an assignment from an assignor.  The
initial aggregate amount of the Banks’ Commitments is $500,000,000.


“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,
Raw Land and other non-depreciated Properties, and exclusive of net derivative
gains (losses) and gains (losses) on the dispositions of depreciable
Properties, 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 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, Raw Land and other non-depreciated Properties, and exclusive of net
derivative gains (losses) and gains (losses) on the dispositions of depreciable
Properties, 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.



 6
 









 


“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 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.  Notwithstanding
anything contained herein to the contrary, guarantees of completion shall not
be deemed to be Contingent Obligations unless and until a claim for 



 7
 









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 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.


“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 



 8
 









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 2.6(d).


“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 CITICORP NORTH AMERICA INC., DEUTSCHE BANK SECURITIES INC.,
REGIONS BANK, THE ROYAL BANK OF SCOTLAND PLC, and U.S. BANK NATIONAL
ASSOCIATION, in their capacity as Documentation Agent hereunder, and their
permitted successors in such capacity in accordance with the terms 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 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 



 9
 









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 G (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,
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 



 10
 









administrative
expenses and other corporate expenses, such as land 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.


“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.


 



 11















 


“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 2006 Form
10-K” means EQR’s annual report on Form 10-K for 2006, as filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended.


“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 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 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 



 12
 









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 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 Credit
Agreement” has the meaning set forth in the definition of “Non-Stabilized
Property Value” in this Section 1.1.


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


“Extension Fee”
shall mean a fee in an amount equal to five basis points (0.05%) due and
payable on the aggregate amount of the continuing Commitments on the first
Extension Date, and an amount equal to seven and one-half basis points (0.075%)
due and payable on the aggregate amount of the continuing Commitments on the
second Extension Date, pursuant to the terms of Section 2.9(b).


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


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


“Facility
Amount” has the meaning set forth in Section 2.1(a).



 13
 









 


“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.


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


“FIN46(R)”
has the meaning set forth in the definition of “GAAP”.


“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 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.



 14
 









 


“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 6.75%.


“Former
Revolving Credit Agreement” means the Revolving Credit Agreement, dated as
of April 1, 2005, 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.


“GAAP”
means generally accepted accounting principles recognized as such in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and 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, (i) GAAP shall be deemed modified to eliminate the effect of FASB
Interpretations No. 46(R), Consolidation of Variable Interest Entities, an
Interpretation of Accounting Research Bulletin (ARB) No. 51 (“FIN 46(R)”)
and to eliminate the effect of FASB Staff Position APB 14-a, Accounting for
Convertible Debt Instruments That May Be Settled in Cash upon Conversion
(Including Partial Cash Settlement) (“FAS APB 14-a”), issued by the
Financial Accounting Standards Board, on the operation of such covenants, and
(ii) only Borrower’s Share of any income, expense, assets and liabilities of
any Consolidated Subsidiary or Investment Affiliate shall be taken into
account.


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



 15
 









 


“Group of Loans”
means, at any time, a group of Loans consisting of (i) all 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 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.


“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 



 16
 









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 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” paid pursuant to the Existing Credit
Agreement, 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
Period” means 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, 



 17
 









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.


“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,
excluding the effects of consolidation required by FIN46(R), 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).


“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.


“Joint Lead
Arrangers” means Banc of America Securities LLC and J.P. Morgan Securities
Inc.


“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 



 18
 









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.


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


“Loan Documents”
means this Agreement, the Notes, the EQR Guaranty and any Down REIT Guaranty.


“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.



 19
 









 


“Maturity Date”
shall mean the date when all of the Obligations hereunder shall be due and
payable which shall be October 5, 2010, unless accelerated pursuant to the
terms hereof or extended pursuant to Section 2.9(b).


“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.


“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 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.



 20
 









 


“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 September 30, 2006 pursuant
to the Former Revolving Credit Agreement, 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 



 21
 









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
the Revolving Credit Agreement, dated as of February 28, 2007,  among the Borrower, the Administrative Agent
and the banks party thereto, as amended by Amendment to Revolving Credit
Agreement, dated as of March 30, 2007 (as the same may be amended, restated,
supplemented or replaced from time to time, the “Existing Credit Agreement”).


“Notes”
means promissory notes of the Borrower, substantially in the form of Exhibit
A hereto, evidencing the obligation of the 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).


“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:


 



 22















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;


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;



 23
 









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.


“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.


“Pro Rata Share”
means, with respect to any Bank, 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.



 24
 









“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 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.



 25
 









“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 Consolidated 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 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.


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



 26
 









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.


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


“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.


“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.



 27
 









“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 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).



 28
 









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


“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 and, with respect
to financial covenants including the related definitions, except for
eliminating the effects of FIN 46(R) and FAS APB 14-a) 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,
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, and a “Euro-Dollar
Borrowing” is a Borrowing comprised of Euro-Dollar Loans).



 29















ARTICLE II


THE CREDITS


SECTION 2.1         Commitments
to Lend.


(a)           Loans.  Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the Borrower pursuant
to this Article from time to time during the term hereof in amounts such that
the aggregate principal amount of such Loans shall not exceed its Commitment.
The Commitments shall be fully funded, in a single Borrowing, no later than
five (5) Business Days after the Closing Date, except that in connection with
any increase in the Facility Amount pursuant to Section 2.1(b), such increased
amount shall be fully funded at the closing of such increase. In no event shall
the aggregate Loans outstanding at any time exceed $500,000,000, as the same
may be increased pursuant to Section 2.1(b) hereof (the “Facility Amount”).
Any amounts repaid may not 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 Commitments (subject to proviso
(ii) in the next sentence), 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
instrument in form reasonably satisfactory to the Administrative Agent,
together with delivery of new Notes by the Borrower, 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 $750,000,000.


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)




 30
 









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 Loans shall be reallocated among the Banks such that
the outstanding principal amount of 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.           The Borrower shall give
Administrative Agent notice not later than 10:00 a.m. (Dallas time) (x) one
Business Day before the Closing Date or the closing of any increase in the
Facility Amount pursuant to Section 2.1(b), in the case of a Base Rate
Borrowing, or  (y) three Euro-Dollar
Business Days before the Closing Date or the closing of any increase in the
Facility Amount pursuant to Section 2.1(b), in the case of a Euro-Dollar
Borrowing, 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


(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.


SECTION 2.3         Intentionally
Omitted.


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, 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.



 31
 









(b)           Not later than 1:00
p.m. (Dallas time) 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
immediately available in Dallas, to the Administrative Agent at its address
referred to in Section 9.1.


(c)           Intentionally
Omitted.


(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 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 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.


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


SECTION 2.5         Notes.


(a)           The Loans of each
Bank shall be evidenced by a single Note made by the 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 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 



 32
 









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 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 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 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
hereunder or under the Notes.  Each Bank
is hereby irrevocably authorized by the 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 Loans shall
mature, and the principal amount thereof shall be due and payable, on the Maturity
Date.


(e)           Intentionally
Omitted.


(f)            There shall be no
more than ten (10) Euro-Dollar Groups of Loans outstanding at any one time.


SECTION 2.6         Method
of Electing Interest Rates.


(a)           The Loans included
in each Borrowing shall bear interest initially at the type of rate specified
by the Borrower in the applicable Notice of Borrowing.  Thereafter, the 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 may elect to convert all or any portion of such
Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;



 33
 









(ii)           if such Loans are
Euro-Dollar Loans, the 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, effective on the last day of the then current Interest Period
applicable to such Loans, or on such other date designated by Borrower in the
Notice of Interest Rate Election provided 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 in an amount equal to $500,000 or any
larger multiple of $100,000, (iii) there shall be no more than ten (10)
Euro-Dollar Groups of Loans outstanding at any one time, (iv) no 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;


(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 pursuant to subsection (a)
above, the Administrative Agent shall notify each 



 34
 









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) and such notice shall not
thereafter be revocable by the Borrower. 
If the 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 on the
last day of the then current Interest Period applicable thereto.


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.


(c)           Intentionally
Omitted.


(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.  All fees set forth in this Agreement 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 



 35
 









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


(b)           Borrower shall have
two options (each, an “Extension Option”) to extend the Maturity Date,
for an additional twelve (12) month period, upon the following terms and
conditions:  (i) delivery by Borrower of
written notice thereof to the Administrative Agent (the “Extension Notice”)
on or before the date which is thirty (30) days prior to the current Maturity
Date but in no event more than one hundred eighty (180) days prior to the
current 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 Borrower delivers the Extension Notice to
the Administrative Agent and on the first day of the extension period (the “Extension
Date”); (iii) each of the representations and warranties contained in this
Agreement and the other Loan Documents (other than representations and
warranties which expressly speak 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 Extension Date; and (iv)
Borrower shall pay to the Administrative Agent, for the account of the Banks,
ratably in proportion to their respective Commitments, on the Extension Date,
the Extension Fee.  Borrower’s delivery
of the Extension Notice shall be irrevocable.


SECTION 2.10       Intentionally
Omitted.


SECTION 2.11       Optional
Prepayments.


(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), prepay any Group of Loans which are
Base Rate Loans, 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.  Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks 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), 



 36
 









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 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, 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)           Any amounts so
prepaid pursuant to Section 2.11 (a) or (b) may not be reborrowed.


SECTION 2.12       General
Provisions as to Payments.


(a)           The Borrower shall
make each payment of interest on the Loans and of fees hereunder, not later
than 12:00 Noon (Dallas time) on the date when due, in Federal or other funds
immediately available in Dallas, 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 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) 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 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.   If the date for any payment of 



 37
 









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 will
not make such payment in full, the Administrative Agent may assume that the
Borrower 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 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.


SECTION 2.13       Funding
Losses.  If the Borrower makes any
payment of principal with respect to any Euro-Dollar 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 fails to borrow, continue or
convert to any Euro-Dollar Loans after notice has been given to any Bank in
accordance with Section 2.4(a) or 2.6, or if Borrower shall deliver a Notice of
Interest Rate Election specifying that a Euro-Dollar Loan shall be converted on
a date other than the first (lst) 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.


SECTION 2.14       Computation
of Interest and Fees. All interest based on the Euro-Dollar Rate 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 shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day).



 38
 









SECTION 2.15       Use
of Proceeds.  The Borrower shall 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.


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 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;


(c)           EQR shall have
executed and delivered to the Administrative Agent a duly executed original of
the EQR Guaranty and 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 US LLP, counsel for the
Borrower, acceptable to the Administrative Agent, the Banks and their counsel;


(e)           intentionally
omitted;


(f)            the Administrative
Agent shall have received all documents the Administrative Agent may reasonably
request relating to the existence of the Borrower and EQR 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, 



 39
 









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;


(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
and each Down REIT Guarantor 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 and each Down REIT Guarantor, as the case may be, and
the performance thereof by the Borrower, EQR and each Down REIT Guarantor;


(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, 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, 2006; and



 40















 


(m)          no Event of Default
shall have occurred.


SECTION 3.2         Borrowings.  The obligation of any Bank to make a Loan on
the occasion of any Borrowing 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;


(b)           intentionally
omitted;


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


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


(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;


(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 or the consummation of the transactions contemplated by
this Agreement and the other Loan Documents; and


(g)           with respect to the
initial Borrowing hereunder 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 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.



 41
 









Notwithstanding
anything to the contrary, no Borrowing 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, 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.


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.


SECTION 4.2         Power
and Authority.  The 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 and the
performance by the Borrower of, and the consummation of the transactions
contemplated by, such Loan Documents. 
The 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, 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



 42
 









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 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).


SECTION 4.4         Financial
Information.


(a)           The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, dated as of
December 31, 2006, 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, 2006, 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 2006 Form
10-K, a copy of which has been delivered to each of the Banks, fairly present,
in



 43
 









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 June 30, 2007,
(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 (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, 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, and Consolidated Subsidiaries
of either or both, 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.



 44
 









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, 2006.  The 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, 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, EQR and their Consolidated Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrower, adequate.


SECTION 4.9         Full
Disclosure.  All information heretofore
furnished by the 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 will be Solvent.


SECTION 4.11       Use
of Proceeds; Margin Regulations.  All
proceeds of the Loans will be used by the Borrower only in accordance with the
provisions hereof.  No part of the
proceeds of any Loan 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 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



 45
 









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; Public Utility Holding Company Act.  Neither the 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, (y) a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of either a
“holding company” or a “subsidiary company” within the meaning of
the Public Utility Holding Company Act of 2005, as amended, or (z) 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, 2006, 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 the Borrower is not 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 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 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 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



 46
 









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, 2006, 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).  As of
December 31, 2006, 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 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;



 47
 









(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 and 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



 48
 









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
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,



 49
 









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
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,
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.



 50
 









 


(a)           The Borrower and/or
EQR will keep, and will cause each Consolidated Subsidiary 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 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 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.


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



 51
 









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.


(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.


(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,



 52
 









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.


(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 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.


SECTION 5.11       Margin
Stock.  None of the proceeds of any
Loan will be used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of



 53
 









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 shall
fail to pay when due any principal of any Loan, or the 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;


 



 54















 


(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 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, 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,
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



 55
 









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 Dollars
($50,000,000) or more shall be entered by a court or courts of competent
jurisdiction against the Borrower, EQR or, to the extent of any recourse to
Borrower, EQR, or 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 of any director or trustee as a
result of compliance with any written policy of EQR requiring retirement from
the Board upon reaching the age specified in such 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
(including affiliates of such 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;


(k)           intentionally
omitted;



 56
 









(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 EQR seeks to
repudiate its obligations under any Loan Document; or


(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
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 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; 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



 57
 









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.


(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 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 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           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 to the
Banks pro rata in accordance with the unpaid principal amount of the Loans.



 58
 









 


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. 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 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. 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 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



 59
 









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.


SECTION 7.6         Indemnification.  Each Bank shall, 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.


SECTION 7.7         Credit
Decision.  Each Bank acknowledges
that it has, independently and without reliance upon the Administrative Agent,
the Syndication



 60
 









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.  The
Banks or other entities identified in this Agreement as the Syndication Agent
and the Documentation Agents shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Loan
Document other than those applicable to all Banks. Without limiting the
foregoing, neither the Syndication Agent nor the Documentation Agents shall
have or be deemed to have a fiduciary relationship with any Bank.


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



 61
 









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.  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, 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 giving at least thirty (30) Business Days prior written notice to
the Administrative Agent, Syndication Agent and Borrower.  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.



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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:


(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 Commitments advise the Administrative Agent
that the Euro-Dollar Rate, as determined by the 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, unless the Borrower notifies the Administrative Agent at least two
Business Days before the date of any Euro-Dollar Borrowing 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.  For purposes of 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) to make, maintain or fund its
Euro-Dollar Loans, 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



 63
 









above to make
Euro-Dollar Loans, 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 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 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.


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
Commitment of such Bank for an amount equal to such Bank’s outstanding Loans
and all amounts due such Bank hereunder (including, without limitation,
interest 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 Commitment 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 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 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 the
date hereof, 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,



 64
 









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, 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 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 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



 65
 









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 Commitment of such Bank for an amount equal to such
Bank’s outstanding Loans and all amounts due such Bank hereunder (including,
without limitation, interest 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 Commitment 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 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 8.3, 8.4
and 9.3 for the period prior to such purchase or cancellation.


SECTION 8.4         Taxes.


(a)           Any and all payments
by the 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



 66
 









and liabilities
being hereinafter referred to as “Non-Excluded Taxes”).  If the 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, (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 shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law and (iv) the 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 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 from the execution or delivery
of, or otherwise with respect to, this Agreement or any Note (hereinafter
referred to as “Other Taxes”).


(c)           The Borrower agrees
to indemnify each 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 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 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 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)



 67
 









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 to the Administrative Agent or any Bank, the Administrative
Agent or Bank, as the case may be, shall deliver to the Borrower, or to such
government or taxing authority as the Borrower may reasonably direct, any form
or document that may be required or reasonably requested in writing in order to
allow the 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 making such demand and to be executed and to be
delivered with any reasonably required certification.


(g)           If the 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 Commitment of such Bank for an amount



 68
 









equal to such Bank’s
outstanding Loans and all amounts due such Bank hereunder (including, without
limitation, interest 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 Commitment 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
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 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


(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.


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



 69
 









followed by
telephonic confirmation or similar writing) and shall be given to such
party:  (x) in the case of the 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, facsimile number
(312) 454-0039, and to DLA Piper US LLP, 203 North LaSalle Street, Suite
1900, Chicago, Illinois 60601, Attn: James M. Phipps, Esq., facsimile number
(312) 251-5735, (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



 70
 









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 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, including, without limitation, any Section
1031 exchange as contemplated by Section 9.21, (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



 71
 









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 to any other Person, any such notice being 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 against and on account of the Obligations of the 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, which is greater than the proportion received
by any 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
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  The Borrower agrees, to the fullest extent it
may effectively do so under applicable law, that any holder of a participation
in a Note, 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 in the amount of such participation. Notwithstanding
anything to the contrary contained herein, any Bank may, by separate agreement
with the 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.



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SECTION 9.5         Amendments
and Waivers.  Any provision of this
Agreement or the Notes 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 are affected thereby, by the Administrative Agent); provided that
no such amendment or waiver with respect to this Agreement, the Notes 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, (iv) except as may result by operation of Section 2.1(b),
change the percentage of the Commitments 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 Agreement, (v) release the EQR Guaranty or, except as provided
below, any Down REIT Guaranty, (vi) modify the definition of “Required Banks”,
or (vii) modify the provisions of this Section 9.5. At such time as (I) the
Borrower shall sell its interest in any Down REIT Guarantor to an unaffiliated
third party in an arms-length transaction, or (II) any Down REIT
Guarantor is no longer a guarantor under the Existing Credit Agreement, 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) (it being
understood that no Bank may hold a Commitment of which less than $10,000,000 in
the



 73
 









aggregate is for
its own account, unless its Commitment 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, 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 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 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 a Commitment of less than
$10,000,000 in the aggregate, unless its Commitment shall have



 74
 









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 executed
by such Assignee and such transferor Bank, with (and subject to) the consent of
the Administrative Agent 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.  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.


(d)           Any Bank may at any
time assign all or any portion of its rights under this Agreement and its Note,
to a Federal Reserve Bank.  No such
assignment shall release the transferor Bank from its obligations hereunder.


(e)           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 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.



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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, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof.  The Borrower irrevocably consents 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 at its address set forth
below.  The 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 in any other
jurisdiction.


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



 76
 









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,
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 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 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 the 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, 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, limited
partner 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



 77
 









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, the extension of credit hereunder or
other banking services business with the Borrower and its Affiliates,
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       Bank’s
Failure to Fund.


(a)           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 Section 2.4, and
the Administrative Agent may, in reliance upon such assumption, make available
to Borrower on such date a corresponding amount.  If and to the extent that such Bank shall not
have so made such share available to the Administrative Agent, such Bank and
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, in accordance
with the provisions of Section 2.4(c). 
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 for purposes of this Agreement as of the date of such
Borrowing.  Nothing contained in this
Section or Section 2.4(c) 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) shall not relieve any other Bank of
its obligations to fund its Commitment, in accordance with the provisions
hereof.


(b)           If a Bank does not
remit to Administrative Agent such Bank’s Pro Rata Share of a Loan in
accordance herewith, then neither Administrative Agent nor the



 78
 









other Banks shall
be required or obligated to fund such Bank’s Pro Rata Share of such Loan.


(c)           As used herein, the
following terms shall have the meanings set forth below:


(i)                    “Defaulting Bank”
shall mean any Bank which (x) does not remit to the Administrative Agent such
Bank’s Pro Rata Share of a Loan in accordance herewith for a period of five (5)
Business Days after notice of such failure from Administrative Agent, (y) shall
otherwise fail to perform such Bank’s obligations under the Loan Documents for
a period of five (5) Business Days after notice of such failure from
Administrative Agent, or (z) shall fail to pay the Administrative Agent or any
other Bank, as the case may be, upon demand, such Bank’s Pro Rata Share of any
costs, expenses or disbursements incurred or made by the Administrative Agent
and payable by such Bank pursuant to the terms of the Loan Documents for a
period of five (5) Business Days after notice of such failure from
Administrative Agent, and in all cases, such failure is not as a result of a
good faith dispute as to whether such advance is properly required to be made
pursuant to the provisions of this Agreement, or as to whether such other
performance or payment is properly required pursuant to the provisions of this
Agreement.


(ii)                   “Junior Creditor”  means any Defaulting Bank which has not (x) fully
cured each and every default on its part under the Loan Documents and (y)
unconditionally tendered to the Administrative Agent such Defaulting Bank’s Pro
Rata Share of all costs, expenses and disbursements required to be paid or
reimbursed pursuant to the terms of the Loan Documents.


(iii)                  “Payment in Full”
means, as of any date, the receipt by the Banks who are not Junior Creditors of
an amount of cash, in lawful currency of the United States, sufficient to
indefeasibly pay in full all Senior Debt.


(iv)                  “Senior Debt” means (x)
collectively, any and all indebtedness, obligations and liabilities of the
Borrower to the Banks who are not Junior Creditors, or any of them, from time
to time, whether fixed or contingent, direct or indirect, joint or several, due
or not due, liquidated or unliquidated, determined or undetermined, arising by
contract, operation of law or otherwise, whether on open account or evidenced
by one or more instruments, and whether for principal, premium, interest
(including, without limitation, interest accruing after the filing of a
petition initiating any proceeding referred to in Section 6.1(f) or (g)),
reimbursement for fees, indemnities, costs, expenses or otherwise, which arise
under, in connection with or in respect of the Loans or the Loan Documents, and
(y) any and all deferrals, renewals, extensions and refundings of, or



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amendments,
restatements, rearrangements, modifications or supplements to, any such
indebtedness, obligation or liability.


(v)                   “Subordinated Debt”  means (x) any and all indebtedness,
obligations and liabilities of Borrower to one or more Junior Creditors from
time to time, whether fixed or contingent, direct or indirect, joint or
several, due or not due, liquidated or unliquidated, determined or undetermined,
arising by contract, operation of law or otherwise, whether on open account or
evidenced by one or more instruments, and whether for principal, premium,
interest (including, without limitation, interest accruing after the filing of
a petition initiating any proceeding referred to in Section 6.1(f) or (g)),
reimbursement for fees, indemnities, costs, expenses or otherwise, which arise
under, in connection with or in respect of the Loans or the Loan Documents, and
(y) any and all deferrals, renewals, extensions and refundings of, or
amendments, restatements, rearrangements, modifications or supplements to, any
such indebtedness, obligation or liability.


(d)           Immediately upon a
Bank’s becoming a Junior Creditor, no Junior Creditor shall, prior to Payment
in Full of all Senior Debt:


(i)            accelerate, demand payment of, sue
upon, collect, or receive any payment upon, in any manner, or satisfy or
otherwise discharge, any Subordinated Debt, whether for principal, interest or
otherwise;


(ii)           take or enforce any Liens to secure
Subordinated Debt or attach or levy upon any assets of Borrower to enforce any
Subordinated Debt;


(iii)          enforce or apply any security for any
Subordinated Debt; or


(iv)          incur any debt or liability, or the
like, to, or receive any loan, return of capital, advance, gift or any other
property from, the Borrower.


(e)           In the event of:


(i)                    any insolvency, bankruptcy,
receivership, liquidation, dissolution, reorganization, readjustment,
composition or other similar proceeding relating to Borrower;


(ii)                   any liquidation, dissolution
or other winding-up of the Borrower, voluntary or involuntary, whether or not
involving insolvency, reorganization or bankruptcy proceedings;



 80
 









(iii)                  any assignment by the Borrower
for the benefit of creditors;


(iv)                  any sale or other transfer of
all or substantially all assets of the Borrower; or


(v)                   any other marshaling of the
assets of the Borrower;


each of the Banks shall
first have received Payment in Full of all Senior Debt before any payment or
distribution, whether in cash, securities or other property, shall be made in
respect of or upon any Subordinated Debt. 
Any payment or distribution, whether in cash, securities or other
property that would otherwise be payable or deliverable in respect of
Subordinated Debt to any Junior Creditor but for this Agreement shall be paid
or delivered directly to the Administrative Agent for distribution to the Banks
in accordance with this Agreement until Payment in Full of all Senior
Debt.  If any Junior Creditor receives
any such payment or distribution, it shall promptly pay over or deliver the
same to the Administrative Agent for application in accordance with the
preceding sentence.


(f)            Each Junior
Creditor shall file in any bankruptcy or other proceeding of Borrower in which
the filing of claims is required by law, all claims relating to Subordinated
Debt that such Junior Creditor may have against Borrower and assign to the
Banks who are not Junior Creditors all rights of such Junior Creditor
thereunder.  If such Junior Creditor does
not file any such claim prior to forty-five (45) days before the expiration of
the time to file such claim, Administrative Agent, as attorney-in-fact for such
Junior Creditor, is hereby irrevocably authorized to do so in the name of such
Junior Creditor or, in Administrative Agent’s sole discretion, to assign the
claim to a nominee and to cause proof of claim to be filed in the name of such
nominee.  The foregoing power of attorney
is coupled with an interest and cannot be revoked.  The Administrative Agent shall, to the
exclusion of each Junior Creditor, have the sole right, subject to Section 9.5
hereof, to accept or reject any plan proposed in any such proceeding and to
take any other action that a party filing a claim is entitled to take.  In all such cases, whether in administration,
bankruptcy or otherwise, the Person or Persons authorized to pay such claim
shall pay to Administrative Agent the amount payable on such claim and, to the
full extent necessary for that purpose, each Junior Creditor hereby transfers
and assigns to the Administrative Agent all of the Junior Creditor’s rights to
any such payments or distributions to which Junior Creditor would otherwise be
entitled.


(g)           (i)  If any payment or distribution of any
character or any security, whether in cash, securities or other property, shall
be received by any Junior Creditor in contravention of any of the terms hereof,
such payment or distribution or security shall be received for the benefit of,
and shall promptly be paid over or delivered and transferred to, Administrative
Agent for application to the payment of all Senior Debt, to the extent



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necessary to
achieve Payment in Full.  In the event of
the failure of any Junior Creditor to endorse or assign any such payment,
distribution or security, Administrative Agent is hereby irrevocably authorized
to endorse or assign the same as attorney-in-fact for such Junior Creditor.


(ii)  Each Junior Creditor shall take such action
(including, without limitation, the execution and filing of a financing statement
with respect to this Agreement and the execution, verification, delivery and
filing of proofs of claim, consents, assignments or other instructions that
Administrative Agent may require from time to time in order to prove or realize
upon any rights or claims pertaining to Subordinated Debt or to effectuate the
full benefit of the subordination contained herein) as may, in Administrative
Agent’s sole and absolute discretion, be necessary or desirable to assure the
effectiveness of the subordination effected by this Agreement.


(h)           (i)  Each Bank that becomes a Junior Creditor
understands and acknowledges by its execution hereof that each other Bank is
entering into this Agreement and the other Loan Documents in reliance upon the
absolute subordination in right of payment and in time of payment of
Subordinated Debt to Senior Debt as set forth herein.


(ii)  Only upon the Payment in Full of all Senior
Debt shall any Junior Creditor be subrogated to any remaining rights of the
Banks which are not Defaulting Banks to receive payments or distributions of
assets of the Borrower made on or applicable to any Senior Debt.


(iii)  Each Junior Creditor agrees that it will
deliver all instruments or other writings evidencing any Subordinated Debt held
by it to Administrative Agent, promptly after request therefor by the
Administrative Agent.


(iv)  No Junior Creditor may at any time sell,
assign or otherwise transfer any Subordinated Debt, or any portion thereof,
including, without limitation, the granting of any Lien thereon, unless and
until satisfaction of the requirements of Section 9.6 above and the proposed
transferee shall have assumed in writing the obligation of the Junior Creditor
to the Banks under this Agreement, in a form acceptable to the Administrative
Agent.


(v)  If any of the Senior Debt should be
invalidated, avoided or set aside, the subordination provided for herein
nevertheless shall continue in full force and effect and, as between the Banks
which are not Defaulting Banks and all Junior Creditors, shall be and be deemed
to remain in full force and effect.



 82
 









 


(vi)  Each Junior Creditor hereby irrevocably
waives, in respect of Subordinated Debt, all rights (x) under Sections 361
through 365, 502(e) and 509 of the Bankruptcy Code (or any similar sections
hereafter in effect under any other Federal or state laws or legal or equitable
principles relating to bankruptcy, insolvency, reorganizations, liquidations or
otherwise for the relief of debtors or protection of creditors), and (y) to
seek or obtain conversion to a different type of proceeding or to seek or
obtain dismissal of a proceeding, in each case in relation to a bankruptcy,
reorganization, insolvency or other proceeding under similar laws with respect
to the Borrower.  Without limiting the
generality of the foregoing, each Junior Creditor hereby specifically waives
(A) the right to seek to give credit (secured or otherwise) to the Borrower in
any way under Section 364 of the Bankruptcy Code unless the same is
subordinated in all respects to Senior Debt in a manner acceptable to
Administrative Agent in its sole and absolute discretion and (B) the right to
receive any collateral security (including any “super priority” or equal or “priming”
or replacement Lien) for any Subordinated Debt unless the Banks which are not
Defaulting Banks have received a senior position acceptable to the Banks in
their sole and absolute discretion to secure all Senior Debt (in the same
collateral to the extent collateral is involved).


(i)                    (i)  In addition to and not in limitation of the
subordination effected by this Section 9.16, the Administrative Agent and each
of the Banks which are not Defaulting Banks may in their respective sole and
absolute discretion also exercise any and all other rights and remedies
available at law or in equity in respect of a Defaulting Bank; and


(ii)  The Administrative Agent shall give each of
the Banks notice of the occurrence of a default under this Section 9.16 by a
Defaulting Bank and if the Administrative Agent and/or one or more of the other
Banks shall, at their option, fund any amounts required to be paid or advanced
by a Defaulting Bank, the other Banks who have elected not to fund any portion
of such amounts shall not be liable for any reimbursements to the
Administrative Agent and/or to such other funding Banks.


(j)            Notwithstanding
anything to the contrary contained or implied herein, a Defaulting Bank shall
not be entitled to vote on any matter as to which a vote by the Banks is
required hereunder, including, without limitation, any actions or consents on
the part of the Administrative Agent as to which the approval or consent of all
the Banks or the Required Banks is required under Article VIII, Section 9.5 or
elsewhere, so long as such Bank is a Defaulting Bank; provided, however,
that in the case of any vote requiring the unanimous consent of the Banks, if
all the Banks other than the Defaulting Bank shall have voted in accordance
with each other, then the Defaulting Bank shall be deemed to have voted in
accordance with such Banks.


 



 83















 


(k)           Each of the
Administrative Agent and any one or more of the Banks which are not Defaulting
Banks may, at their respective option, (i) advance to the Borrower such Bank’s
Pro Rata Share of the Loans not advanced by a Defaulting Bank in accordance
with the Loan Documents, or (ii) pay to the Administrative Agent such Bank’s
Pro Rata Share of any costs, expenses or disbursements incurred or made by the
Administrative Agent pursuant to the terms of this Agreement not theretofore
paid by a Defaulting Bank.  Immediately
upon the making of any such advance by the Administrative Agent or any one of
the Banks, such Bank’s Pro Rata Share and the Pro Rata Share of the Defaulting
Bank shall be recalculated to reflect such advance.  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 such Bank’s
recalculated Pro Rata Share unless and until a Defaulting Bank shall fully cure
all defaults on the part of such Defaulting Bank under the Loan Documents or
otherwise existing in respect of the Loans or this Agreement, at which time the
Pro Rata Share of the Bank(s) which advanced sums on behalf of the Defaulting
Bank and of the Defaulting Bank shall be restored to their original
percentages.


SECTION 9.17       Intentionally
Omitted.


SECTION 9.18       Down
REIT Guaranties.


(a)           Notwithstanding any other provision
hereof or of any other Loan Document to the contrary, the Administrative Agent
and the Banks agree with Borrower that any funds, claims, or distributions
actually received by the Administrative Agent for the account of any Bank 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 and the Banks 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 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 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 



 84
 









by the Administrative
Agent or any Bank 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 and the Banks 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), 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
and the Banks 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 and the
Banks 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 or any Bank 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 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, which
information includes the name and address of the Borrower and other information
that will allow such Bank or the Administrative Agent, as applicable, to
identify the 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 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 



 85
 









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 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.”


SECTION 9.21       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.



 86
 









 


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


 


	
  

  	
   

  	
  ERP OPERATING LIMITED PARTNERSHIP

  
	
   

  	
   

  	
  By:

  	
   

  	
  Equity Residential

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Mark J. Parrell

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Mark J. Parrell

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:   Senior
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 J. Parrell

  	
   

  	
   

  	
   

  
	
   

  	
  Name:  Mark J. Parrell

  	
   

  	
   

  	
   

  
	
   

  	
  Title:    Senior Vice President
  and Treasurer

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 



 87
 









 


Commitments


 


	
  

  	
   

  	
  BANK OF AMERICA, N.A., as Administrative 

  Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Mark A. Mokelke

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Mark A. Mokelke

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Bank of America, N.A.

  Mail Code

  231 South LaSalle Street

  Chicago, Illinois 60697

  Attention:

  Telecopy:

  



 


Commitment: $45,000,000


 



 88
 









 


	
  

  	
   

  	
  JPMORGAN CHASE BANK, N.A., as Syndication 

  Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Marc Costantino

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Marc Costantino

  Title:    Executive Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


 


 


Commitment: $45,000,000


 


 



 89
 









 


	
  

  	
   

  	
  CITICORP NORTH AMERICA INC., as

  Documentation Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  	
  /s/ Ricardo James

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Ricardo James

  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Commitment: $30,000,000



 90
 









 


	
  

  	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Brenda Casey

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Brenda Casey

  Title:    Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ J.T. Coe

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  J.T. Coe

  Title:    Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $30,000,000


 


 


	
  

  	
   

  	
  DEUTSCHE BANK SECURITIES INC., as 

  Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ James Rolison

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  James Rolison

  Title:    Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ George Reynolds

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  George Reynolds

  Title:    Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 



 91
 









 


	
  

  	
   

  	
  REGIONS BANK, as Documentation Agent 

  and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Lori Chambers

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Lori Chambers

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Commitment: $30,000,000


 



 92
 









 


 


	
  

  	
   

  	
  ROYAL BANK OF SCOTLAND PLC, as 

  Documentation Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Brett Thompson

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Brett Thompson

  Title:    Vice President

  



 


 


Commitment: $30,000,000


 


 


 


 



 93
 









 


	
  

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as 

  Documentation Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Renee Lewis

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Renee Lewis

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $30,000,000



 94
 









 


	
  

  	
   

  	
  NATIONAL CITY BANK, as Managing Agent and 

  as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Michael Mitro

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Michael Mitro

  Title:    Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $30,000,000



 95
 









 


	
  

  	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as

  Managing Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Brian McNany

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Brian McNany

  Title:    Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $25,000,000



 96
 









 


 


	
  

  	
   

  	
  MERRILL LYNCH BANK USA, as 

  Managing Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ David Millett

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  David Millett

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


Commitment: $25,000,000



 97
 









 


 


	
  

  	
   

  	
  MORGAN STANLEY BANK, as Managing Agent 

  and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Daniel Twenge

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Daniel Twenge

  Title:     Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $25,000,000



 98
 









 


 


	
  

  	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, 

  as Managing Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Cynthia A. Bean

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Cynthia A. Bean

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $25,000,000



 99
 









 


	
  

  	
   

  	
  WELLS FARGO BANK, N.A., as 

  Managing Agent and as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Winita Lau

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Winita Lau

  Title:    Assistant Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $25,000,000



 100
 









 


	
  

  	
   

  	
  PNC BANK, NATIONAL ASSOCIATION,

  as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Dennis Owen Gallagher

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Dennis Owen Gallagher

  Title:    Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $25,000,000



 101
 









 


 


	
  

  	
   

  	
  SUNTRUST BANK, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Nancy B. Richards

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Nancy B. Richards

  Title:    Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $20,000,000



 102
 









 


 


	
  

  	
   

  	
  UNION BANK OF CALIFORNIA, N.A., as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Kevin Jordan

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Kevin Jordan

  Title:    Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $20,000,000



 103
 









 


 


	
  

  	
   

  	
  COMERICA BANK, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Leslie A. Vogel

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Leslie A. Vogel

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $15,000,000



 104
 









 


 


	
  

  	
   

  	
  THE BANK OF NEW YORK, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Kenneth R. McDonnell

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Kenneth R. McDonnell

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


Commitment: $10,000,000



 105
 









 


 


	
  

  	
   

  	
  BANK OF TOKYO - MITSUBISHI UFJ, LTD.,

  as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ James T. Taylor

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  James T. Taylor

  Title:    Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $10,000,000



 106
 









 


 


	
  

  	
   

  	
  THE NORTHERN TRUST COMPANY, as a Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Kate Spadoni

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Kate Spadoni

  Title:    Second Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


Commitment: $5,000,000


 


 


 



 107















 


Total Commitments


$500,000,000


 



 Exhibit A-1