Exhibit 10.2


 


GUARANTY OF
PAYMENT


 


GUARANTY OF PAYMENT (this “Guaranty”), made as of April 1,
2005, between EQUITY RESIDENTIAL, a Maryland real estate investment trust,
having an address at Two North Riverside Plaza, Suite 400, Chicago,
Illinois 60606 (“Guarantor”), and BANK OF AMERICA, N.A., having an
office at 231 South LaSalle Street, Chicago, Illinois 60697, as administrative
agent (“Administrative Agent”) for the banks (the “Banks”) party
to the Revolving Credit Agreement (as the same may be amended, modified,
supplemented or restated, the “Credit Agreement”), dated as of the date
hereof, among ERP Operating Limited Partnership (“Borrower”), the Banks,
Administrative Agent, JPMorgan Chase Bank, N.A., as syndication agent,
Commerzbank AG, New York Branch, as documentation agent, Wachovia Bank,
National Association, as documentation agent, Wells Fargo Bank, N.A., as
documentation agent, SunTrust Bank, as documentation agent, and US Bank
National Association, as documentation agent.


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, the Banks have agreed to make loans (hereinafter collectively
referred to as the “Loans”) and otherwise extend credit to Borrower in
an aggregate principal amount not to exceed $1,000,000,000 (which amount may be
increased to an amount not to exceed $1,500,000,000);


 


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


 


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


 


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


 


WHEREAS, Guarantor is the sole general partner of Borrower; and


 





















 


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


 


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


 


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


 


2.                                       It
is agreed that the Guaranteed Obligations are primary and this Guaranty shall
be enforceable against Guarantor and its successors and assigns without the
necessity for any suit or proceeding of any kind or nature whatsoever brought
by the Administrative Agent or any Bank against Borrower or its respective
successors or assigns or any other party or against any security for the
payment and performance of the Guaranteed Obligations and without the necessity
of any notice of non-payment or non-observance or of any notice of acceptance
of this Guaranty or of any notice or demand to which Guarantor might otherwise
be entitled (including, without limitation, diligence, presentment, notice of
maturity, extension of time, change in nature or form of the Guaranteed
Obligations, acceptance of further security, release of further security,
imposition or agreement arrived at as to the amount of or the terms of the
Guaranteed Obligations, notice of adverse change in Borrower’s financial 


 


2





















 


condition and any other fact which might materially increase the risk
to Guarantor), all of which Guarantor hereby expressly waives; and Guarantor
hereby expressly agrees that the validity of this Guaranty and the obligations
of Guarantor hereunder shall in no way be terminated, affected, diminished,
modified or impaired by reason of the assertion of or the failure to assert by
the Administrative Agent or any Bank against Borrower or its respective successors
or assigns, any of the rights or remedies reserved to the Administrative Agent
and the Banks pursuant to the provisions of the Loan Documents.  Guarantor agrees that any notice or directive
given at any time to the Administrative Agent which is inconsistent with the
waiver in the immediately preceding sentence shall be void and may be ignored
by the Administrative Agent and the Banks, and, in addition, may not be pleaded
or introduced as evidence in any litigation relating to this Guaranty for the reason
that such pleading or introduction would be at variance with the written terms
of this Guaranty, unless the Administrative Agent and the Banks have
specifically agreed otherwise in a writing, signed by a duly authorized
officer.  Guarantor specifically
acknowledges and agrees that the foregoing waivers are of the essence of this
transaction and that, but for this Guaranty and such waivers, the
Administrative Agent and the Banks would decline to execute the Loan Documents.


3.                                       Guarantor
waives, and covenants and agrees that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of,
any and all appraisal, valuation, stay, extension, marshalling-of-assets or
redemption laws, or right of homestead or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance by Guarantor of its obligations under, or the enforcement by the
Administrative Agent of, this Guaranty. Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, offset, set-off or other
objection of any kind to any action, suit or proceeding at law, in equity or
otherwise, or to any demand or claim that may be instituted or made by the
Administrative Agent other than the defense of the actual timely payment and
performance by Borrower of the Guaranteed Obligations; provided, however, that
the foregoing shall not be deemed a waiver of Guarantor’s right to assert any
compulsory counterclaim, if such counterclaim 


 


3





















 


is compelled under local law or rule of procedure, nor shall the
foregoing be deemed a waiver of Guarantor’s right to assert any claim which
would constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Administrative Agent or any Bank in any separate action or
proceeding.  Guarantor represents,
warrants and agrees that, as of the date hereof, its obligations under this
Guaranty are not subject to any counterclaims, offsets or defenses against the
Administrative Agent or any Bank of any kind.


 


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


 


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


 


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


 


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


 


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


 


4





















 


any Bank granting indulgence or extension in any form whatsoever; or


 


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


 


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


 


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


 


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


 


5





















 


other present or future federal, state or applicable statute or law or
from the decision in any court; or


 


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


 


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


 


7.                                       Until
this Guaranty is terminated pursuant to the terms hereof, Guarantor (I) shall
have no right of subrogation against Borrower or any entity comprising same by
reason of any payments or acts of performance by Guarantor in compliance with
the obligations of Guarantor hereunder; (ii) waives any right to enforce
any remedy which Guarantor now or hereafter shall have against Borrower or any
entity comprising same by reason of any one or more payment or acts of
performance in compliance with the obligations of Guarantor hereunder and (iii) from
and after an Event of Default, subordinates any liability or indebtedness of
Borrower or any entity comprising same now or hereafter held by Guarantor or
any affiliate of Guarantor to the obligations of Borrower under the Loan
Documents. The foregoing, however, shall not be deemed in any way to limit any
rights that Guarantor may have pursuant to the Agreement of Limited Partnership
of 


 


6





















 


Borrower or which it may have at law or in equity with respect to any
other partners of Borrower.


 


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


 


(a)                                  as of the date
hereof, Guarantor is the sole general partner of Borrower;


 


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


 


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


 


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


 


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


 


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


 


7





















 


ability of Guarantor to perform its obligations under this Guaranty;


 


(g)                                 the execution and
delivery of and the performance by Guarantor of its obligations under this
Guaranty have been duly authorized by all necessary action on the part of
Guarantor and do not (I) violate any provision of any law, rule, regulation
(including, without limitation, Regulation U or X of the Federal Reserve Board
of the United States), order, writ, judgment, decree, determination or award presently
in effect having applicability to Guarantor or the organizational documents of
Guarantor, the consequences of which violation would materially and adversely
affect the property, assets or condition (financial or otherwise) of Guarantor
or which is likely to materially and adversely impair the ability of Guarantor
to perform its obligations under this Guaranty or (ii) violate or conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument to which
Guarantor is a party, or by which Guarantor or any of its property is bound,
the consequences of which violation, conflict, breach or default would
materially and adversely affect the property, assets or condition (financial or
otherwise) of Guarantor or which is likely to materially and adversely impair
the ability of Guarantor to perform its obligations under this Guaranty;


 


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


 


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


 


8





















 


Guaranty, except those which have already been obtained;


 


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


 


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


 


(l)                                     All of the
representations and warranties in the Credit Agreement concerning Guarantor are
true and correct.


 


Guarantor covenants that it will comply or cause compliance with all
covenants in the Credit Agreement which are applicable to it.


 


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


 


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


 


9





















 


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


 


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


 


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


 


14.                                 If
all or any portion of any provision contained in this Guaranty shall be
determined to be invalid, illegal or unenforceable in any respect for any
reason, such provision or portion thereof shall be deemed stricken and severed
from this Guaranty and the remaining provisions and portions thereof shall continue
in full force and effect.


 


15.                                 This
Guaranty may be executed in counterparts which together shall constitute the
same instrument.


 


16.                                 All
notices, requests and other communications to any party hereunder shall be in
writing (including bank wire, facsimile transmission followed by telephonic
confirmation or similar writing) and shall be addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others:


 


10





















 


	
  If to Guarantor:

  	
   

  	
  Equity Residential

  
	
   

  	
   

  	
  Two North Riverside Plaza

  
	
   

  	
   

  	
  Suite 400

  
	
   

  	
   

  	
  Chicago, Illinois 60606

  
	
   

  	
   

  	
  Attn:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  With Copies of

  	
   

  	
   

  
	
  Notices to

  	
   

  	
   

  
	
  Guarantor to:

  	
   

  	
  Equity Residential

  
	
   

  	
   

  	
  Two North Riverside Plaza

  
	
   

  	
   

  	
  Suite 400

  
	
   

  	
   

  	
  Chicago, Illinois 60606

  
	
   

  	
   

  	
  Attn:  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DLA Piper Rudnick Gray Cary US LLP

  
	
   

  	
   

  	
  203 North LaSalle Street

  
	
   

  	
   

  	
  Suite 1900

  
	
   

  	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
   

  	
  Attn:  James M. Phipps, Esq.

  
	
   

  	
   

  	
   

  
	
  If to the

  	
   

  	
   

  
	
  Administrative

  	
   

  	
   

  
	
  Agent:

  	
   

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
  Structured Debt Group

  
	
   

  	
   

  	
  Mail Code

  
	
   

  	
   

  	
  231 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, IL 60697

  
	
   

  	
   

  	
  Attn:  

  
	
   

  	
   

  	
   

  
	
  With Copies of

  	
   

  	
   

  
	
  Notices to the

  	
   

  	
   

  
	
  Administrative

  	
   

  	
   

  
	
  Agent to:

  	
   

  	
  Skadden, Arps, Slate,

  
	
   

  	
   

  	
  Meagher & Flom LLP

  
	
   

  	
   

  	
  Four Times Square

  
	
   

  	
   

  	
  New York, New York 10036

  
	
   

  	
   

  	
  Attn:  Martha Feltenstein, Esq.

  



 


Each such notice, request or other communication shall be effective (I)
if given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified in this Section and the appropriate facsimile
confirmation is received, (ii) if given by certified or registered mail,
return receipt 


 


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requested, with first class postage prepaid, addressed as aforesaid,
upon receipt or refusal to accept delivery, (iii) if given by a nationally
recognized overnight carrier, 24 hours after such communication is deposited
with such carrier with postage prepaid for next day delivery, or (iv) if
given by any other means, when delivered at the address specified in this
Section.


 


17.                                 Any
acknowledgment or new promise, whether by payment of principal or interest or
otherwise by Borrower or Guarantor, with respect to the Guaranteed Obligations
shall, if the statute of limitations in favor of Guarantor against the
Administrative Agent and the Banks shall have commenced to run, toll the
running of such statute of limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.


 


18.                                 This
Guaranty shall be binding upon Guarantor and its successors and assigns and
shall inure to the benefit of the Administrative Agent and the Banks and their
successors and permitted assigns; provided, however, that the Guarantor may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of all of the Banks, and any attempted such assignment or
transfer without such consent shall be null and void.


 


19.                                 The
failure of the Administrative Agent to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Administrative Agent or any
Bank, nor excuse Guarantor from its obligations hereunder.  Any waiver of any such right or remedy to be
enforceable against the Administrative Agent and the Banks must be expressly
set forth in a writing signed by the Administrative Agent (acting with the requisite
consent of the Banks as provided in the Credit Agreement).


 


20.                                 (a) 
 THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.


 


(b)                                 Any
legal action or proceeding with respect to this Guaranty and any action for
enforcement 


 


12





















 


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


 


(c)                                  GUARANTOR
HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF
ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY.  IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT
THE WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE BANKS TO ACCEPT THIS GUARANTY AND THAT THE LOANS AND OTHER EXTENSIONS
OF CREDIT MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER.  GUARANTOR FURTHER WARRANTS AND REPRESENTS
THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.  IN THE
EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED BY THE ADMINISTRATIVE
AGENT IN COURT AS A WRITTEN CONSENT TO A NON-JURY TRIAL.


 


(d)                                 Guarantor
does hereby further covenant and agree to and with the Administrative Agent and
the Banks that Guarantor may be joined in any action against Borrower in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the 


 


13





















 


Administrative Agent and the Banks first pursuing or exhausting any
remedy or claim against Borrower or its successors or assigns.  Guarantor also agrees that, in an action
brought with respect to the Guaranteed Obligations in any jurisdiction, it shall
be conclusively bound by the judgment in any such action by the Administrative
Agent (wherever brought) against Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not joined as
a party in such action.


 


(e)                                  Guarantor
agrees to pay all reasonable expenses (including, without limitation, attorneys’
fees and disbursements) which may be incurred by the Administrative Agent or
the Banks in connection with the enforcement of their rights under this Guaranty,
whether or not suit is initiated.


 


21.                                 Notwithstanding
anything to the contrary contained herein (but subject to Section 6
hereof), this Guaranty shall terminate and be of no further force or effect
upon the full performance and payment of the Guaranteed Obligations
hereunder.  Upon termination of this
Guaranty in accordance with the terms of this Guaranty, the Administrative
Agent promptly shall deliver to Guarantor such documents as Guarantor or
Guarantor’s counsel reasonably may request in order to evidence such
termination.


 


22.                                 All
of the Administrative Agent’s and the Banks’ rights and remedies under each of
the Loan Documents or under this Guaranty are intended to be distinct, separate
and cumulative and no such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any other right or remedy
available to the Administrative Agent or any Bank.


 


23.                                 No
claim may be made by Guarantor or any other Person acting by or through
Guarantor against the Administrative Agent or any Bank or the affiliates,
directors, officers, employees, attorneys or 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 Guaranty or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and Guarantor
hereby


 


14





















 


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.


 


15





















 


IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date and year first above written.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  EQUITY RESIDENTIAL

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark J. Parrell

  	
   

  
	
   

  	
   

  	
  Name:  Mark J. Parrell

  
	
   

  	
   

  	
  Title:  First Vice President

  



 


 


	
  ACCEPTED:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.,

  AS ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael W. Edwards

  	
   

  	
   

  
	
   

  	
  Name: 
  Michael W. Edwards

  	
   

  
	
   

  	
  Title:  Senior Vice President

  	
   

  
				



 





















 


ACKNOWLEDGMENT FOR GUARANTOR


 


 


	
  STATE OF ILLINOIS

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY OF C O O K

  	
  )

  



 


 


On March 29, 2005, before me personally came Mark J. Parrell,
to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say that he is first vice president and
treasurer of Equity Residential, and that he executed the foregoing instrument
in the organization’s name, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said
organization for the uses and purposes therein mentioned.


 


[Seal]


 


 


	
   

  	
  /s/ Katrina Feagins

  	
   

  
	
   

  	
  Notary Public