AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT

Exhibit 10.9(1)

AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT

BETWEEN

EDUCATION REALTY TRUST, INC.

AND

THOMAS TRUBIANA

October 29, 2008

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “ Agreement ”) by and between EDUCATION REALTY TRUST, INC. , a Maryland corporation (the “ Company ”), and THOMAS TRUBIANA (“ Executive ” and, together with the Company, the “ Parties ”) is effective as of October 29, 2008 (the “ Effective Date ”).

WHEREAS , Executive has been and currently is engaged by the Company to serve as its Senior Vice-President and Chief Investment Officer ;

WHEREAS , Executive’s position is a position of trust and responsibility with access to Trade Secrets (defined below), Confidential Information (defined below) and information concerning Employees (defined below) and Customers (defined below) of the Company;

WHEREAS , Trade Secrets, Confidential Information and the relationships between the Company and each of its Employees and Customers are valuable assets of the Company and may not be used for any purpose other than the Company’s Business (defined below);

WHEREAS , Executive acknowledges that if Executive were to perform services for a competitor during the Restricted Period (defined below), it would be inevitable that Executive would disclose the Company’s Trade Secrets and Confidential Information;

WHEREAS , the Executive is currently employed by the Company pursuant to the terms of an employment agreement between the Company and the Executive dated as of January 1, 2008 (the “ Prior Agreement ”);

WHEREAS , the Company desires to continue such employment relationship and enter into this Agreement, which will supersede the Prior Agreement and set forth the terms and conditions under which the Executive will continue to serve the Company;

WHEREAS , the Executive wishes to continue his employment with the Company on the terms and conditions set forth herein; and

WHEREAS , the Company has agreed to employ Executive in exchange for Executive’s compliance with the terms of this Agreement.

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

1.  Definitions . For purposes of this Agreement, all initially capitalized words and phrases used in this Agreement have the following meanings:

“ Affiliate ” shall mean, with respect to any individual or entity, any other individual or entity who, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such individual or entity.

“ Agreement ” shall have the meaning set forth in the introductory paragraph above.

“ Application ” shall have the meaning set forth in Section 9 .

“ Base Salary ” shall have the meaning set forth in Section 4(a) .

“ Board ” shall mean the Board of Directors of the Company.

“ Bonus ” shall have the meaning set forth in Section 4(b) .

“ Business ” shall mean the business of developing, owning and managing student housing communities, providing third-party management services for student housing communities and providing third-party development consulting services for student housing communities.

“ Cause ” shall mean that Executive has (a) continually failed to substantially perform, or been grossly negligent in the discharge of, his duties to the Company (in any case, other than by reason of a Disability, physical or mental illness or analogous condition); (b) been convicted of or pled nolo contendere to a felony or a misdemeanor with respect to which fraud or dishonesty is a material element; or (c) materially breached any material Company policy or agreement with the Company.

“ Change of Control ” shall mean the first of the following events to occur after the Effective Date:

(a) any Person or group of Persons together with its Affiliates, but excluding (i) the Company or any of its Subsidiaries, (ii) any employee benefit plans of the Company or (iii) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes, directly or indirectly, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities (not including in the securities beneficially owned by such Person any securities acquired directly from the Company);

(b) the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the Effective Date, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended;

(c) the consummation of a merger or consolidation of the Company or any direct or indirect Subsidiary of the Company with any other corporation or entity regardless of which entity is the survivor, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of the Company, such surviving entity or any parent thereof outstanding immediately after such merger or consolidation;

(d) the stockholders of the Company approve a plan of complete liquidation or winding-up of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or

(e) the occurrence of any transaction or series of transactions deemed by the Board to constitute a change in control of the Company.

Notwithstanding the foregoing, (i) a “Change of Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of the common stock of the Company immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions, and (ii) a “Change of Control” shall not occur for purposes of this Agreement as a result of any primary or secondary offering of Company common stock to the general public through a registration statement filed with the Securities and Exchange Commission.

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

“ Committee ” shall have the meaning set forth in Section 4(a) .

“ Company ” shall have the meaning set forth in the introductory paragraph above.

“ Confidential Information ” means (a) information of the Company or any Subsidiary thereof, to the extent not considered a Trade Secret under applicable law, that (i) relates to the Business of the Company or any Subsidiary thereof; (ii) possesses an element of value to the Company or any Subsidiary thereof; (iii) is not generally known to the Company’s competitors; and (iv) would damage the Company, or any Subsidiary thereof, if disclosed, and (b) information of any third party provided to the Company which the Company is obligated to treat as confidential. Confidential Information includes, but is not limited to, future business plans, the composition, description, schematic or design of products, future products or equipment of the Company or any Subsidiary thereof, communication systems, audio systems, system designs and related documentation, advertising or marketing plans, information regarding independent contractors, Employees, clients and Customers of the Company or any Subsidiary thereof, and information concerning the Company’s financial structure and methods and procedures of operation. Confidential Information shall not include any information that is or becomes generally available to the public other than as a result of an unauthorized disclosure, has been independently developed and disclosed by others without violating this Agreement or the legal rights of any party or otherwise enters the public domain through lawful means.

“ Contact ” means any interaction between Executive and a Customer which (a) takes place in an effort to establish, maintain and/or further a business relationship on behalf of the Company, or any Subsidiary thereof, and (b) occurs during the last year of Executive’s employment with the Company (or during Executive’s employment if employed less than one (1) year).

“ Customer ” means any person or entity to whom the Company, or any Subsidiary thereof, has sold or has solicited to sell its products or services.

“ Defense Costs ” has the meaning set forth in Section 13 .

“ Disability ” means a physical or mental condition entitling the Executive to benefits under the applicable long-term disability plan of the Company or any its Subsidiaries, or if no such plan exists, a “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code) or as determined by the Company in accordance with applicable laws.

“ Duties ” means, solely for purposes of Section 8 of this Agreement, identifying and executing the Company’s investment strategy including underwriting property acquisition and development opportunities, structuring, negotiating and closing property transactions, and assisting with the integration of new properties into the Company’s portfolio.

“ Effective Date ” shall have the meaning set forth in the introductory paragraph above.

“ Employee ” means any person who (a) is employed by the Company, or any Subsidiary thereof, at the time Executive’s employment with the Company terminates; (b) was employed by the Company, or any Subsidiary thereof, during the last year of Executive’s employment with the Company (or during Executive’s employment if employed less than one (1) year); or (c) is employed by the Company, or any Subsidiary thereof, during the Restricted Period.

“ Employment Period ” shall have the meaning set forth in Section 3(a) .

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Executive ” shall have the meaning set forth in the introductory paragraph above.

“ Good Reason ” means (a) an adverse diminution in Executive’s title, duties or responsibilities (provided, however, that a requirement to utilize skills in addition to those utilized in Executive’s current position, and/or a change in title and/or direct reports to reflect the organizational structure of the successor entity following a Change of Control, shall not in and of itself be considered an “adverse diminution” as contemplated by this subsection (a)); (b) a reduction of ten percent (10%) or more in Executive’s annual Base Salary; (c) a reduction of ten percent (10%) or more in Executive’s annual target bonus opportunity (including the failure to pay any bonus earned for any year in which a Change of Control occurs pursuant to the terms of any applicable plan or arrangement in effect prior to such Change of Control); or (d) the relocation of Executive’s principal place of employment to a location more than fifty (50) miles from Executive’s principal place of employment, except for required travel on the Company’s business to an extent substantially consistent with Executive’s historical business travel obligations. Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any act or failure to act constituting Good Reason hereunder, provided that Executive provides the Company with a written notice of resignation within ninety (90) days following the occurrence of the event constituting Good Reason and the Company shall have failed to remedy such act or omission within thirty (30) days following its receipt of such notice.

“ Incentive Plan ” means the Company’s 2004 Incentive Plan, as amended from time to time.

“ Licensed Materials ” means any materials that Executive utilizes for the benefit of the Company (or any Subsidiary thereof), or delivers to the Company or the Company’s Customers, which (a) do not constitute Work Product, (b) are created by Executive or of which Executive is otherwise in lawful possession and (c) Executive may lawfully utilize for the benefit of, or distribute to, the Company or the Company’s Customers.

“ Parties ” shall have the meaning set forth in the introductory paragraph above.

“ Person ” shall mean a “person” as defined in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (a) the Company (or any Subsidiary thereof), (b) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (c) an underwriter temporarily holding securities pursuant to an offering of such securities, or (d) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

“ Prior Agreement ” shall have the meaning set forth in the recitals above.

“ Renewal Period ” shall have the meaning set forth in Section 3(b) .

“ Restricted Period ” means the period of time encompassing Executive’s employment with the Company and one (1) year after termination of Executive’s employment with the Company.

“ Separation Conditions ” shall have the meaning set forth in Section 6(c) .

“ Subsidiary ” means a corporation, partnership or other entity of which a majority of the voting interests of such corporation, partnership or other entity are at the time owned directly or indirectly through one or more intermediaries or Subsidiaries, or both, by the Company.

“ Territory ” means the continental United States.

“ Trade Secrets ” means information of the Company (or any Subsidiary thereof), and its licensors, suppliers, clients and Customers, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential Customers or suppliers which is not commonly known by or available to the public and which information (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

“ Without Cause ” which shall mean any termination of employment by the Company which is not defined in Section 5(a) through Section 5(g) of this Agreement.

“ Work Product ” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not patentable), designs and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions, methods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of Executive and artistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity, confidential information or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole or in part by Executive while employed by the Company and that either (i) is created within the scope of Executive’s employment; (ii) is based on, results from or is suggested by any work performed within the scope of Executive’s employment and is directly or indirectly related to the Business of the Company or a line of business that the Company may reasonably be interested in pursuing; (iii) has been or will be paid for by the Company; or (iv) was created or improved in whole or in part by using the Company’s time, resources, data, facilities or equipment.

2. Employment and Duties .

(a) The Company shall employ Executive as Senior Vice-President and Chief Investment Officer. Executive shall perform all duties that are consistent with Executive’s position and that may otherwise be assigned to Executive by the Company from time to time. Executive shall report directly to the Chief Executive Officer or any other executive designated by the Board from time to time.

(b) Executive agrees to (i) devote all necessary working time required of Executive’s position; (ii) devote Executive’s best efforts, skill and energies to promote and advance the Business and/or interests of the Company and its Subsidiaries; and (iii) fully perform Executive’s obligations under this Agreement.

(c) During Executive’s employment, Executive shall not render services to any other entity, regardless of whether Executive receives compensation, without the prior written consent of the Company. Executive may, however, (i) engage in community, charitable and educational activities; (ii) manage Executive’s personal investments; and (iii) with the prior written consent of the Board (or a designated committee thereof), serve on corporate boards or committees, provided that such activities do not conflict or interfere with the performance of Executive’s obligations under this Agreement or conflict with the interests of the Company.

(d) Executive agrees to comply with the policies and procedures of the Company as may be adopted and changed from time to time, including those described in the Company’s employee handbook, Code of Business Conduct and Ethics and other policies set forth by the Company from time to time. If this Agreement conflicts with such policies or procedures, this Agreement will control.

(e) As an officer of the Company, Executive owes a duty of care and loyalty to the Company as well as a duty to perform such duties in a manner that is in the best interests of the Company.

3. Term .

(a) The term of this Agreement shall be for a period of three (3) years, beginning on the effective date of the Prior Agreement and ending on the third anniversary of the effective date of the Prior Agreement (the “ Employment Period ”).

(b) Upon expiration of the Employment Period, this Agreement will automatically renew for one-year (1) periods (each a “ Renewal Period ”), unless either Party notifies the other Party, in writing, at least sixty (60) days prior to the end of the Employment Period or the Renewal Period that this Agreement will not be renewed. Each Renewal Period shall be included in the definition of “Employment Period” for purposes of this Agreement.

(c) If either Party sends a notice of such Party’s intent not renew this Agreement in accordance with Section 3(b) , Executive’s employment will either (i) terminate; or (ii) convert to an at-will relationship, meaning that Executive may terminate Executive’s employment with the Company at any time and for any reason whatsoever simply by notifying the Company and that the Company may terminate Executive’s employment at any time with or without cause or advance notice.

(d) If this