Exhibit 10.2
GUARANTY OF
PAYMENT
GUARANTY OF PAYMENT (this “
Guaranty ”), made as of May 7, 2007, 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, and DEUTSCHE BANK AG, NEW YORK BRANCH, 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 the Dollar Equivalent Amount of which is
not to exceed $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 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
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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 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.
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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 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
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(g)
Borrower’s or any guarantor’s voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee,
receiver, liquidator, sequestrator or conservator for all or any
part of Borrower’s or any guarantor’s assets,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment, or the
commencement of other similar proceedings affecting Borrower or any
guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of Borrower or any
guarantor from the payment and performance of their respective
obligations under any of the Loan Documents by operation of law, or
(ii) the impairment, limitation or modification of the liability of
Borrower or any guarantor in bankruptcy, or of any remedy for the
enforcement of the Guaranteed Obligations under any of the Loan
Documents, or Guarantor’s liability under this Guaranty,
resulting from the operation of any present or future provisions of
the Bankruptcy Code or other present or future federal, state or
applicable statute or law or from the decision in any court;
or
(h)
any improper disposition by Borrower of the proceeds of the Loans,
it being acknowledged by Guarantor that the Administrative Agent or
any Bank shall be entitled to honor any request made by Borrower
for a disbursement of such proceeds and that neither the
Administrative Agent nor any Bank shall have any obligation to see
to the proper disposition by Borrower of such proceeds.
6. Guarantor agrees that if at
any time all or any part of any payment at any time received by the
Administrative Agent or any Bank from Borrower or Guarantor or any
other Person obligated in respect of the Guaranteed Obligations
under or with respect to this Guaranty is or must be rescinded or
returned by the Administrative Agent or any Bank for any reason
whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of Borrower or Guarantor or such other
Person), then Guarantor’s obligations hereunder shall, to the
extent of the payment rescinded or returned, be deemed to have
continued in existence notwithstanding such previous receipt by
such party, and Guarantor’s obligations hereunder shall
continue to be effective or be reinstated, as the case may be, as
to such payment, as though such previous payment had never been
made.
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7. &n
