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Exhibit 10.2
GUARANTY OF PAYMENT
GUARANTY OF PAYMENT (this " Guaranty "), made as of
February 28, 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, SUNTRUST BANK, as Documentation Agent, WACHOVIA BANK,
NATIONAL ASSOCIATION, as Documentation Agent, WELLS FARGO BANK,
N.A., as Documentation Agent, LASALLE BANK NATIONAL ASSOCIATION, as
Documentation Agent, THE ROYAL BANK OF SCOTLAND plc, as
Documentation Agent, and U.S. 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 the
Dollar Equivalent Amount of which is not to exceed $1,500,000,000
(which amount may be increased to an amount not to exceed
$2,000,000,000);
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
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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 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.
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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:
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(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
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(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 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
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Guarantor’s obligations hereunder shall, to
the extent of the payment rescinded or returned, be deemed to
have
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