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.
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
1
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
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