GUARANTY
OF PAYMENT (this “ Guaranty ”), made as of
September 4, 2008, by AMB PROPERTY CORPORATION, a Maryland
corporation, having an address at Pier 1, Bay 1, San Francisco,
California 94111 (“ Guarantor ”), for the
benefit of THE BANK OF NOVA SCOTIA, as Administrative Agent (the
“ Administrative Agent ”) for the banks (the
“ Banks ”) that are from time to time parties to
that certain Credit Agreement (the “ Credit Agreement
”), dated as of the date hereof, among AMB Property, L.P.
(the “ Borrower ”), the banks listed on the
signature pages thereof, the Administrative Agent, ING Real Estate
Finance (USA) LLC, as Syndication Agent, The Bank of Nova
Scotia and ING Real Estate Finance (USA) LLC, as Joint Lead
Arrangers and Joint Bookrunners, and TD Bank N.A. and US Bank,
National Association, as Documentation Agents.
WHEREAS,
the Banks have agreed to make loans to Borrower in the aggregate
principal amount not to exceed Two Hundred Thirty Million Dollars
($230,000,000) or, in the event that Borrower exercises its rights
pursuant to Section 9.19 of the Credit Agreement, Three
Hundred Million Dollars ($300,000,000) (hereinafter collectively
referred to as the “ Loans ”);
WHEREAS,
the Loans are and will be evidenced by certain promissory notes of
Borrower made to each of the Banks, in accordance with the terms of
the Credit Agreement (collectively, the “ Notes
”);
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;
WHEREAS,
as a condition to the execution and delivery of the Loan Documents,
the Banks have required that Guarantor execute and deliver this
Guaranty of Payment; and
NOW
THEREFORE, in consideration of the premises and the benefits to be
derived from the making of the Loans by the Banks to Borrower, and
in order to induce the Administrative Agent, the Syndication Agent,
the Documentation Agents, the Joint Lead Arrangers and Joint
Bookmanagers and the Banks to enter into the Credit Agreement and
the other Loan Documents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, 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, including in the event that the
Borrower exercises its rights under the Credit Agreement to
increase the Facility Amount, 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 and/or the
Banks in enforcing their rights under this Guaranty (all of the
foregoing obligations being the “ Guaranteed
Obligations ”).
2. It
is agreed that the Guaranteed Obligations of Guarantor hereunder
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 of the Banks 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 of the Banks against Borrower or its respective successors
or assigns, any of the rights or remedies reserved to the
Administrative Agent or any of 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 or any of
the Banks 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 has 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 not
make the requested Loan to the Borrower.
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, marshaling-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 or any of the Banks of, this Guaranty.
Guarantor further covenants and agrees not to set up or claim any
defense, counterclaim, offset, setoff or other objection of any
kind to any action, suit or proceeding in law, equity or otherwise,
or to any demand or claim that may be instituted or made by the
Administrative Agent or any of the Banks other than the defense of
the actual timely payment and performance by Borrower of the
Guaranteed Obligations hereunder; 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
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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, 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, all
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 to
Borrower, any guarantor, or their respective successors or assigns,
heirs, executors, administrators or personal representatives;
or
(c) any action
which the Administrative Agent may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of,
or failure to enforce any of the rights, remedies, powers or
privileges available to the Administrative Agent under this
Guaranty or available to the Administrative Agent at law, equity or
otherwise, or any action on the part of the Administrative Agent
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
(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 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 Guarantor’s assets, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment, or the
commencement of other
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similar
proceedings affecting Borrower or 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 any
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 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 from Borrower or
Guarantor 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),
then Guarantor’s obligation
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