Exhibit 10.2
EXECUTION VERSION
Loan
Guarantee
This Loan Guarantee (this “
Guarantee ”) is made as of 30th May, 2008, by
AMB Property, L.P.
(“ AMB LP ”), a Delaware limited partnership,
having an address at Pier 1, Bay 1, San Francisco, California 94111
(the “ Guarantor ”), for the benefit of the
Facility Agent and the Lenders that are from time to time parties
to that certain agreement, dated as of 30th May, 2008, among AMB
Fund Management S.à r.l. acting on behalf of AMB Europe Fund
I FCP-FIS as the Logistics Fund and AMB Agent, AMB LP as the Loan
Guarantor, the financial institutions listed therein as Original
Lenders and ING Real Estate Finance N.V. as the Facility Agent (the
“ AMB LP Guaranteed Facility Agreement ”).
Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the AMB LP Guaranteed Facility
Agreement.
W i t n e s s e t
h
Whereas , the Lenders have agreed
to make available to the Borrowers the Facility under the AMB LP
Guaranteed Facility Agreement;
Whereas , the Guarantor is or
will be the direct or indirect owner of equity interests of the
Borrowers;
Whereas , as a condition to the
availability of the Facility, the Facility Agent and the Lenders
have required that the Guarantor execute and deliver this
Guarantee; and
Now Therefore , in consideration
of the premises and the benefits to be derived from the Lenders
making the Facility available to the Borrowers, and in order to
induce the Facility Agent and the Lenders to enter into the AMB LP
Guaranteed Facility Agreement and the other Finance Documents, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
agrees as follows:
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The 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 any Borrower,
in its capacity as such, in respect of all amounts outstanding from
time to time under all Loans advanced to that Borrower now or
hereafter existing under the Finance Documents, and any and all
reasonable costs and expenses (including, without limitation,
reasonable attorneys’ fees and disbursements) incurred by the
Facility Agent and the Lenders in enforcing their rights under this
Guarantee (all of the foregoing obligations being the “
Guaranteed Obligations ”) and the amounts payable by
the Guarantor hereunder shall be payable within two Business Days
of demand. |
| 2. |
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It is agreed that the Guaranteed Obligations of the Guarantor
hereunder are primary, and this Guarantee shall be enforceable
against the Guarantor and its respective successors and assigns
without the necessity for any suit or proceeding of any kind or
nature whatsoever brought by the Facility Agent or any of the
Lenders against any Borrower or its 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 Guarantee or of any notice or |
EXECUTION VERSION
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demand to which the 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 any Borrower’s financial condition and any
other fact which might materially increase the risk to the
Guarantor), all of which the Guarantor hereby expressly waives; and
the Guarantor hereby expressly agrees that the validity of this
Guarantee and the obligations of the 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 Facility
Agent or any of the Lenders against any Borrower or its successors
or assigns, any of the rights or remedies reserved to the Facility
Agent or any of the Lenders pursuant to the provisions of the
Finance Documents. The Guarantor agrees that any notice or
directive given at any time to the Facility Agent or any of the
Lenders which is inconsistent with the waiver in the immediately
preceding sentence shall be void and may be ignored by the Facility
Agent and the Lenders, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guarantee
for the reason that such pleading or introduction would be at
variance with the written terms of this Guarantee, unless the
Facility Agent has specifically agreed otherwise in a writing,
signed by a duly authorized officer. The Guarantor specifically
acknowledges and agrees that the foregoing waivers are of the
essence of this transaction and that, but for this Guarantee and
such waivers, the Facility Agent and the Lenders would not make the
Facility available to the Borrowers. |
| 3. |
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The 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 the Guarantor of its obligations under, or the enforcement by
the Facility Agent or any of the Lenders of, this Guarantee. The
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
Facility Agent or any of the Lenders other than the defense of the
actual timely payment and performance by the applicable Borrower of
the Guaranteed Obligations hereunder; provided, however, that the
foregoing shall not be deemed a waiver of the 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 the Guarantor’s right to
assert any claim which would constitute a defense, setoff,
counterclaim or cross-claim of any nature whatsoever against the
Facility Agent or any Lender in any separate action or proceeding.
The Guarantor represents, warrants and agrees that, as of the date
hereof, its obligations under this Guarantee are not subject to any
counterclaims, offsets or defenses against the Facility Agent or
any Lender of any kind. |
| 4. |
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The Guarantor acknowledges and agrees that: |
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(a) |
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ING Real Estate Finance N.V. acts as agent for each of the
Lenders; |
EXECUTION VERSION
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(b) |
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it will not raise as a defence (or as a part of a defence), at
any time (and waives any and all rights thereto): |
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(i) |
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the agency relationship as described in (a); or |
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(ii) |
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that the loss, for which ING Real Estate N.V. may claim for in
accordance with this Guarantee, is not directly incurred by ING
Real Estate Finance N.V.. |
| 5. |
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The provisions of this Guarantee are for the benefit of the
Facility Agent and the Lenders and their successors and permitted
assigns, and nothing herein contained shall impair as between the
Borrowers and the Facility Agent and the Lenders, as applicable,
the obligations of the Borrowers under the Finance Documents. |
| 6. |
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Until this Guarantee is terminated pursuant to the terms
hereof, this Guarantee shall be a continuing, unconditional and
absolute Guarantee and the liability of the 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 the
Guarantor: |
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(a) |
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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 Finance Documents or the
invalidity or unenforceability of any of the foregoing; or |
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(b) |
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any extension of time that may be granted by the Facility Agent
to any Borrower, the Guarantor, or their respective successors or
assigns, heirs, executors, administrators or personal
representatives; or |
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(c) |
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any action which the Facility Agent may take or fail to take
under or in respect of any of the Finance Documents or by reason of
any waiver of, or failure to enforce any of the rights, remedies,
powers or privileges available to the Facility Agent under this
Guarantee or available to the Facility Agent at law, equity or
otherwise, or any action on the part of the Facility Agent granting
indulgence or extension in any form whatsoever; or |
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(d) |
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any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which
the Facility Agent and/or the Lenders have been granted a lien or
security interest to secure any indebtedness of any Borrower to the
Facility Agent and/or the Lenders; or |
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(e) |
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any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by any
Borrower to the Facility Agent and/or the Lenders; or |
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(f) |
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the application of any sums by whomsoever paid or however
realized to any amounts owing by any Borrower to the Facility Agent
and/or the Lenders under the Finance Documents in such manner as
the Facility Agent shall determine in its sole discretion; or |
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