GUARANTY
OF PAYMENT (this “ Guaranty ”), made as of
October 15, 2009, by AMB PROPERTY CORPORATION, a Maryland
corporation, having an address at Pier 1, Bay 1, San Francisco,
California 94111 (“ Guarantor ”), for the
benefit of JPMORGAN CHASE BANK, N.A., 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, Sumitomo Mitsui Banking
Corporation, as Syndication Agent, J.P. Morgan Securities Inc. and
Sumitomo Mitsui Banking Corporation, as Joint Lead Arrangers and
Joint Bookrunners, and CALYON CREDIT AGRICOLE CIB, NEW YORK BRANCH,
U.S. BANK NATIONAL ASSOCIATION and HSBC BANK USA, NATIONAL
ASSOCIATION, as Documentation Agents.
WHEREAS,
the Banks have agreed to make loans to Borrower in the aggregate
principal amount not to exceed Three Hundred Forty Five Million
Dollars ($345,000,000) or, in the event that Borrower exercises its
rights pursuant to Section 9.19 of the Credit Agreement, Four
Hundred Twenty Five Million Dollars ($425,000,000) (hereinafter
collectively referred to as the “ Loans
”);
WHEREAS,
the Loans are and will be evidenced by (i) certain promissory
notes of Borrower made to each of the Banks, and (ii) certain
promissory notes of one or more Qualified Borrowers made to each of
the Banks, in each case 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,
Borrower has executed the Qualified Borrower Guaranty as
contemplated by the Credit Agreement;
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 and including those Obligations of
Borrower under the Qualified Borrower Guaranty, 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 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 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 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 Guara
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