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
agree
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