GUARANTY OF PAYMENT

Exhibit 10.2

GUARANTY OF PAYMENT

GUARANTY OF PAYMENT (this “Guar­an­ty”), made as of October 5, 2007, be­tween EQUITY RESI­DEN­TIAL, a Maryland real estate invest­ment trust, having an ad­dress at Xxx Xxxxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (“Guar­an­tor”), and BANK OF AMERICA, N.A., having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as administrative agent (“Administrative Agent”) for the banks (the “Banks”) party to the 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 CITICORP NORTH AMERICA INC., DEUTSCHE BANK AG, NEW YORK BRANCH, REGIONS BANK, THE ROYAL BANK OF SCOT­LAND PLC, and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents.

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 $500,000,000 (which amount may be increased to an amount not to exceed $750,000,000);

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 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

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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.

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

(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,

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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.

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

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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 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 abili­ty of Guar­antor to perform its obligations under this Guaran­ty;

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(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 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

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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.

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.

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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:

If to Guarantor:		Equity Residential
		Two Xxxxx Xxxxxxxxx Xxxxx
		Xxxxx 000
		Xxxxxxx, Xxxxxxxx 00000
		Attn: Chief Financial Officer
		Facsimile: (000) 000-0000
With Copies of
Notices to
Guarantor to:		Equity Residen­tial
		Two Xxxxx Xxxxxxxxx Xxxxx
		Xxxxx 000
		Xxxxxxx, Xxxxxxxx 00000
		Attn: General Counsel
		Facsimile: (000) 000-0000
		and

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		DLA Piper US LLP 000 Xxxxx XxXxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn:  Xxxxx X. Xxxxxx, Esq. Facsimile: (000) 000-0000
If to the Administrative Agent:		Bank of America, N.A
		Structured Debt Group Mail Code 000 Xxxxx XxXxxxx Xxxxxx Xxxxxxx, XX 00000 Attn: Facsimile: (312)
With Copies of Notices to the Administrative Agent to:		Skadden, Arps, Slate,
		Xxxxxxx & Xxxx LLP Xxxx Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn:  Xxxxxx Xxxxxxxxxxx, Esq. Facsimile: (000) 000-0000

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 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

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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 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

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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 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

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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 waives, releases and agrees not to xxx upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

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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/ Xxxx X. Xxxxxxx
			Name:  Xxxx X. Xxxxxxx
			Title:    Chief Financial Officer

ACCEPTED:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By:	/s/ Xxxx X. Xxxxxxx
	Name:  Xxxx X. Xxxxxxx
	Title:    Vice President

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