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QUALIFIED BORROWER GUARANTY
UNCONDITIONAL GUARANTY OF PAYMENT (this “ Guaranty ”), is made as of November 29, 2010, by AMB PROPERTY, L.P., a Delaware limited partnership (the “ Guarantor ”) for the benefit of HSBC BANK USA, NATIONAL ASSOCIATION, 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 November 29, 2010, among the Borrower, the banks listed on the signature pages thereof, HSBC BANK USA, NATIONAL ASSOCIATION, as Administrative Agent, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Syndication Agent, and HSBC SECURITIES, INC. and CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Joint Lead Arrangers and Joint Bookrunners, and MORGAN STANLEY SENIOR FUNDING, INC. as Documentation Agent.
Capitalized terms not otherwise defined in this Guaranty shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Credit Agreement, a Qualified Borrower may request that the Banks make one or more loans (each, a “ Loan ”) to the Qualified Borrower, to be guaranteed by Guarantor by this Guaranty and to be evidenced by Qualified Borrower Notes (collectively, the “ Note ”), payable by the Qualified Borrower to the order of the Banks.
WHEREAS, this Guaranty is the “Qualified Borrower Guaranty” referred to in the Credit Agreement;
WHEREAS, in order to induce the Administrative Agent and the Banks to make one or more Loans to one or more Qualified Borrowers, and to satisfy one of the conditions contained in the Credit Agreement with respect thereto, the Guarantor has agreed to enter into this Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and indirect benefits to be derived from the making of the Loans by the Banks to Qualified Borrowers, and for other good and valuable consideration, the receipt and sufficiency of which is 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 each and every Qualified Borrower now or hereafter existing under the Note (whether executed and delivered simultaneously herewith or subsequently), or under any of the other Loan Documents (such obligations, whenever arising, being the “ Guaranteed Obligations ”), and any and all reasonable costs and
expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by the Administrative Agent in enforcing its rights under this Guaranty.
2. It is agreed that the 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 against the relevant Qualified 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 such Qualified 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 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 Administrative Agent against such Qualified Borrower or its respective successors or assigns, any of the rights or remedies reserved to the Administrative Agent pursuant to the provisions of the Loan Documents. Guarantor hereby 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, 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 Banks would not make Loans and the Fronting Bank would not issue Letters of Credit on behalf of any Qualified Borrower.
3. Guarantor hereby 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 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 in law, equity or otherwise, or to any demand or claim that may be instituted or made