Exhibit 10.3


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment and Assumption Agreement”) is entered into as of December 19, 2003 by and between ERP
Operating Limited Partnership, an Illinois Limited partnership (the “Partnership”) and Equity Residential, a Maryland real estate investment
trust and the sole general partner of the Partnership (the “General Partner”).  Capitalized terms used
in this Assignment and Assumption Agreement and not otherwise defined herein
shall have the meanings given such terms in that certain Fifth Amended and
Restated Agreement of Limited Partnership of the Partnership, dated as of
August 1, 1998, as amended (the “Partnership
Agreement”).


 


WITNESSETH:


 


WHEREAS, pursuant to Section 3.2.C. of the Partnership Agreement,
Limited Partners have the right (the “Exchange
Right”) to request
the General Partner exchange
Partnership Units held by such Limited Partners (individually, an “Exchange Partner”) with respect to which an Exchange Partner submits written
notice (the “Tendered
Units”) for an equal
number of Common Shares subject to the limitations and other requirements set
forth in Section 3.2.C. and other applicable provisions of the Partnership
Agreement;


 


WHEREAS, pursuant to Section 3.2.C. of the Partnership Agreement,
the General Partner may, in its sole and absolute discretion, elect to cause
the Partnership to acquire the Tendered Units in exchange for a cash payment in
an amount (the “Cash Amount”) determined in accordance with Section 3.2.C.
(the “Right to Elect Consideration”); and


 


WHEREAS, the General Partner desires to assign to the Partnership, and
the Partnership desires to assume from the General Partner, the Right to Elect
Consideration in connection with any Tendered Units;


 


NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:


 


1.                                       Assignment;
Assumption.


 


(a)                                  The General Partner
hereby grants, assigns, conveys and transfers to the Partnership, and the
Partnership hereby accepts from the General Partner, all of the General
Partner’s right, title and interest in and to the Right to Elect Consideration;
provided, however, that if the Partnership, in connection with its exercise of
such Right to Elect Consideration, does not elect to pay the Cash Amount,
then:  (i) the General Partner shall
satisfy the Exchange Partner’s exercise of the Exchange Right by issuing and
delivering Common Shares to such Partner and (ii) such transaction shall be


 

















 


treated, for federal income tax purposes, as a transfer by the Exchange
Partner of the Tendered Units to the General Partner in exchange for the Common
Shares; and provided  further that in no event shall the
Partnership acquire or be deemed to acquire a proprietary interest in any
Common Shares issued as consideration for the Tendered Units.  In addition, if the Partnership elects to
pay the Cash Amount, then (i) the General Partner shall pay such Cash Amount to
the Exchanging Partner and (ii) such transaction shall be treated, for federal
income tax purposes, as a transfer by the Exchange Partner of the Tendered
Units to the General Partner in exchange for the Cash Amount.  The General Partner agrees to take such
further action and to execute such additional documents as may be reasonably
necessary to effect the assignment of the Right to Elect Consideration to the
Partnership.


 


(b)                                 Subject to the second
sentence of Section 1(a) hereof, from and after the date hereof, the
Partnership assumes all right, title and interest in and to and all obligations
and liabilities relating to or arising in connection with the Right to Elect
Consideration.  The General Partner
agrees to take such further action and to execute such additional documents as
may be reasonably necessary to effect the assignment of the Right to Elect
Consideration to the Partnership.


 


(c)                                  The
Partnership and the General Partner agree that the Right to Elect Consideration
shall be a management duty of the General Partner governed by Section 9.1
of the Partnership Agreement.


 


2.                                       Successors
and Assigns.  This Assignment and
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.


 


3.                                       Governing
Law.  This Assignment and Assumption
Agreement, the rights and obligations of the parties hereto, and any claims or
disputes relating thereto, shall be governed by and construed in accordance
with the laws of State of Illinois (excluding the choice of law rules thereof).


 


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IN WITNESS WHEREOF, the
Partnership and the General Partner have executed and delivered this Assignment
and Assumption Agreement as of the date first above written.


 


	
   

  	
   

  	
  ERP OPERATING LIMITED

  PARTNERSHIP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Equity Residential, its general

  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
     /s/ Bruce C.
  Strohm

  
	
   

  	
   

  	
   

  	
  Name:   Bruce C. Strohm
Title:     EVP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EQUITY RESIDENTIAL

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
      /s/
  Bruce C. Strohm

  
	
   

  	
   

  	
   

  	
  Name: Bruce C. Strohm
Title:   EVP

  
							



 


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