EXHIBIT 10.2
GUARANTY OF PAYMENT
GUARANTY OF PAYMENT (this "Guaranty"), made as of June 1, 2004, 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, as Administrative Agent and J.P. MORGAN EUROPE LIMITED, as
Administrative Agent (collectively, the "Administrative Agent") for the banks
(the "Banks") that are from time to time parties to that certain Second Amended
and Restated Revolving 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, Bank of America, N.A., as
Syndication Agent, J.P. Morgan Securities Inc. and Banc of America Securities
LLC, as Joint Lead Arrangers and Joint Bookrunners, Commerzbank
Aktiengesellschaft New York and Grand Cayman Branches, PNC Bank, National
Association, and Wachovia Bank, N.A., as Documentation Agents, Keybank National
Association, The Bank of Nova Scotia, acting through its San Francisco Agency,
and Wells Fargo Bank, N.A., as Managing Agents, and ING Real Estate Finance
(USA) LLC, SouthTrust Bank and Union Bank of California, N.A., as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Banks have agreed to make loans to Borrower in the
aggregate principal amount not to exceed Five Hundred Million Dollars
($500,000,000) or, in the event that Borrower exercises its rights pursuant to
Section 9.19 of the Credit Agreement, Seven Hundred Million Dollars
($700,000,000) (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, (ii) certain promissory
notes of Borrower made to each of the Designated Lenders, and (iii) 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 Qualified
Borrowers, and in
order to induce the Administrative Agent, the Syndication Agent, the
Documentation Agents, the Joint Lead Arrangers and Joint Bookmanagers, the
Managing Agents, the Co-Agents 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
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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
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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 Guarantor's
obligations hereunder shall
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continue to be effective or reinstated, as the case may be, as to such payment,
as though such previous payment had never been made.
7. Until this Guaranty is terminated pursuant to the terms
hereof, Guarantor (i) shall have no right of subrogation against Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder, (ii) waives
any right to enforce any remedy which Guarantor now or hereafter shall have
against Borrower or any entity comprising same by reason of any one or more
payment or acts of performance in compliance with the obligations of Guarantor
hereunder and (iii) from and after an Event of Default (as defined in the Credit
Agreement), subordinates any liability or indebtedness of Borrower or any entity
comprising same now or hereafter held by Guarantor or any affiliate of Guarantor
to the obligations of Borrower under the Loan Documents. The foregoing, however,
shall not be deemed in any way to limit any rights that Guarantor may have
pursuant to the Agreement of Limited Partnership of Borrower or which it may
have at law or in equity with respect to any other partners of Borrower.
8. Guarantor represents and warrants to the Administrative Agent
and the Banks with the knowledge that the Administrative Agent and the Banks are
relying upon the same, as follows:
(a) as of the date hereof, Guarantor is the sole general partner
of Borrower;
(b) based upon such relationships, Guarantor has determined that
it is in its best interests to enter into this Guaranty;
(c) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance of
Guarantor's business purposes;
(d) the benefits to be derived by Guarantor from Borrower's access
to funds made possible by the Loan Documents are at least equal to the
obligations undertaken pursuant to this Guaranty;
(e) Guarantor is solvent and has full power and legal right to
enter into this Guaranty and to perform its obligations under the term
hereof and (i) Guarantor is organized and validly existing under the laws
of the State of Maryland, (ii) Guarantor has complied with all provisions
of applicable law in connection with all aspects of this Guaranty, and
(iii) the person executing this Guaranty has all the requisite power and
authority to execute and deliver this Guaranty;
(f) to the best of Guarantor's knowledge, there is no action,
suit, proceeding, or investigation pending or threatened against or
affecting Guarantor at law, in equity, in admiralty or before any
arbitrator or any governmental department, commission, board, bureau,
agency or instrumentality (domestic or foreign) which is likely to
materially and
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adversely impair the ability of Guarantor to perform its obligations under
this Guaranty;
(g) the execution and delivery of and the performance by Guarantor
of its obligations under this Guaranty have been duly authorized by all
necessary action on the part of Guarantor and do not (i) violate any
provision of any law, rule, regulation (including, without limitation,
Regulation U or X of the Board of Governors of the Federal Reserve System
of the United States), order, writ, judgment, decree, determination or
award presently in effect having applicability to Guarantor or the
organizational documents of Guarantor the consequences of which violation
is likely to materially and adversely impair the ability of Guarantor to
perform its obligations under this Guaranty or (ii) violate or conflict
with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any indenture, agreement or other instrument
to which Guarantor is a party, or by which Guarantor or any of its
property is bound, the consequences of which violation, conflict, breach
or default is likely to materially and adversely impair the ability of
Guarantor to perform its obligations under this Guaranty;
(h) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law;
(i) no authorization, consent, approval, license or formal
exemption from, nor any filing, declaration or registration with, any
Federal, state, local or foreign court, governmental agency or regulatory
authority is required in connection with the making and performance by
Guarantor of this Guaranty, except those which have already been obtained;
and
(j) Guarantor is not an "investment company" as that term is
defined in, nor is it otherwise subject to regulation under, the
Investment Company Act of 1940, as amended.
9. Guarantor and Administrative Agent each acknowledge and agree
that this Guaranty is a guarantee of payment and performance and not of
collection and enforcement in respect of any obligations which may accrue to the
Administrative Agent and/or the Banks from Borrower under the provisions of any
Loan Document.
10. Subject to the terms and conditions of the Credit Agreement,
and in conjunction therewith, the Administrative Agent or any Bank may assign
any or all of its rights under this Guaranty. In the event of any such
assignment, the Administrative Agent shall give Guarantor prompt notice of same.
If the Administrative Agent elects to sell all the Loans or participations in
the Loans and the Loan Documents, including this Guaranty, the Administrative
Agent or any Bank may forward to each purchaser and prospective purchaser all
documents and
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information relating to this Guaranty or to Guarantor, whether furnished by
Borrower or Guarantor or otherwise, subject to the terms and conditions of the
Credit Agreement.
11. Guarantor agrees, upon the written request of the
Administrative Agent, to execute and deliver to the Administrative Agent, from
time to time, any modification or amendment hereto or any additional instruments
or documents reasonably considered necessary by the Administrative Agent or its
counsel to cause this Guaranty to be, become or remain valid and effective in
accordance with its terms, provided, that, any such modification, amendment,
additional instrument or document shall not increase Guarantor's obligations or
diminish its rights hereunder and shall be reasonably satisfactory as to form to
Guarantor and to Guarantor's counsel.
12. The representations and warranties of Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof.
13. This Guaranty contains the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements
relating to such subject matter and may not be modified, amended, supplemented
or discharged except by a written agreement signed by Guarantor and the
Administrative Agent.
14. If all or any portion of any provision contained in this
Guaranty shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, such provision or portion thereof shall be deemed
stricken and severed from this Guaranty and the remaining provisions and
portions thereof shall continue in full force and effect.
15. This Guaranty may be executed in counterparts which together
shall constitute the same instrument.
16. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, facsimile
transmission followed by telephonic confirmation or similar writing) and shall
be addressed to such party at the address set forth below
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or to such other address as may be identified by any party in a written notice
to the others:
If to Guarantor AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
Attn: Chief Financial Officer
Telecopy Number: (415) 394-4001
With Copies of
Notices to Guarantor to: AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
Attn: General Counsel
Telecopy Number: (415) 394-4001
and to: Piper Rudnick LLP
203 North LaSalle Street, Suite 1800
Chicago, Illinois 60601
Attention: James M. Phipps, Esq.
Telecopy Number: (312) 251-5735
If to the
Administrative Agent: JPMorgan Chase Bank
707 Travis Street, 6th Floor North
Houston, Texas 77002
Attn: Susan M. Tate
Telecopy: (713) 216-2391
and to: JPMorgan Chase Bank
1111 Fannin Street, 10th Floor
Houston, Texas 77002
Attn: Loan and Agency Services
Telecopy: (713) 750-2228
and to: J.P. Morgan Europe Limited
125 London Wall, Floor 9
London EC2Y 5AJ, UK
Attention: Stephen Gillies
Telecopy Number: 0044 207 777 2360
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With Copies of
Notices to
Administrative Agent: Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attn: Martha Feltenstein, Esq.
Telecopy Number: (917) 777-2272
Each such notice, request or other communication shall be effective
(i) if given by telex or facsimile transmission, when such telex or facsimile is
transmitted to the telex number or facsimile number specified in this Section
and the appropriate answerback or facsimile confirmation is received, (ii) if
given by certified registered mail, return receipt requested, with first class
postage prepaid, addressed as aforesaid, upon receipt or refusal to accept
delivery, (iii) if given by a nationally recognized overnight carrier, 24 hours
after such communication is deposited with such carrier with postage prepaid for
next day delivery, or (iv) if given by any other means, when delivered at the
address specified in this Section.
17. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise by Borrower or Guarantor, with respect to the
Guaranteed Obligations shall, if the statute of limitations in favor of
Guarantor against the Administrative Agent shall have commenced to run, toll the
running of such statute of limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
18. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the Administrative
Agent and the Banks and their successors and permitted assigns.
19. The failure of the Administrative Agent to enforce any right
or remedy hereunder, or promptly to enforce any such right or remedy, shall not
constitute a waiver thereof, nor give rise to any estoppel against the
Administrative Agent, nor excuse Guarantor from its obligations hereunder. Any
waiver of any such right or remedy to be enforceable against the Administrative
Agent must be expressly set forth in a writing signed by the Administrative
Agent.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this
Guaranty and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Guaranty, the Guarantor hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Guarantor
irrevocably consents to
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the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to the Guarantor at its address for notices set forth
herein. The Guarantor hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Administrative Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY. IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL
IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT TO ACCEPT THIS GUARANTY
AND THAT THE LOANS MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER.
GUARANTOR FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY
AND VOLUNTARILY MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED BY THE ADMINISTRATIVE AGENT IN COURT AS A
WRITTEN CONSENT TO A NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and
with the Administrative Agent that Guarantor may be joined in any action against
Borrower in connection with the Loan Documents and that recovery may be had
against Guarantor in such action or in any independent action against Guarantor
(with respect to the Guaranteed Obligations), without the Administrative Agent
first pursuing or exhausting any remedy or claim against Borrower or its
successors or assigns. Guarantor also agrees that, in an action brought with
respect to the Guaranteed Obligations in any jurisdiction, it shall be
conclusively bound by the judgment in any such action by the Administrative
Agent (wherever brought) against Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not joined as a
party in such action.
(e) Guarantor agrees to pay all reasonable expenses
(including, without limitation, attorneys' fees and disbursements) which may be
incurred by the Administrative Agent or the Banks in connection with the
enforcement of their rights under this Guaranty, whether or not suit is
initiated.
21. Notwithstanding anything to the contrary contained herein,
this Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder. Upon
termination of this Guaranty in accordance with the terms of this Guaranty, the
Administrative Agent promptly shall deliver to Guarantor such documents as
Guarantor or Guarantor's counsel reasonably may request in order to evidence
such
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termination.
22. All of the Administrative Agent's rights and remedies under
each of the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein mentioned
is intended to be in exclusion of or a waiver of any other right or remedy
available to the Administrative Agent.
23. The Guarantor shall not use any assets of an "employee benefit
plan" within the meaning of Section 3(3) of ERISA or a "plan" within the meaning
of Section 4975(e)(1) of the Internal Revenue Code (the "Code") to repay or
secure the Loan, the Note, the Obligations or this Guaranty. The Guarantor shall
not assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose
of any of its rights or interests (direct or indirect) in Borrower, or attempt
to do any of the foregoing or suffer any of the foregoing, or permit any party
with a direct or indirect interest or right in Borrower to do any of the
foregoing, if such action would cause the Note, the Loan, the Obligations, this
Guaranty, or any of the Loan Documents or the exercise of any of the
Administrative Agent's or Bank's rights in connection therewith, to constitute a
prohibited transaction under ERISA or the Code (unless the Guarantor furnishes
to the Administrative Agent a legal opinion satisfactory to the Administrative
Agent that the transaction is exempt from the prohibited transaction provisions
of ERISA and the Code (and for this purpose, the Administrative Agent and the
Banks, by accepting the benefits of this Guaranty, hereby agree to supply
Guarantor all relevant non-confidential, factual information reasonably
necessary to such legal opinion and reasonably requested by Guarantor) or would
otherwise result in the Administrative Agent or any of the Banks being deemed in
violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or would
otherwise result in the Administrative Agent or any of the Banks being a
fiduciary or party in interest under ERISA or a "disqualified person" as defined
in Section 4975(e)(2) of the Code with respect to an "employee benefit plan"
within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of
Section 4975(e)(1) of the Code. The Guarantor shall indemnify and hold each of
the Administrative Agent and the Banks free and harmless from and against all
loss, costs (including attorneys' fees and expenses), expenses, taxes and
damages (including consequential damages) that each of the Administrative Agent
and the Banks may suffer by reason of the investigation, defense and settlement
of claims and in obtaining any prohibited transaction exemption under ERISA
necessary in Administrative Agent's reasonable judgment as a result of
Guarantor's action or inaction or by reason of a breach of the foregoing
provisions by Guarantor.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Guaranty as of the date and year first above written.
GUARANTOR:
AMB PROPERTY CORPORATION
By: /s/ Gayle P. Starr
______________________________
Name: Gayle P. Starr
Title: Senior Vice President
ACCEPTED:
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Susan Tate
_____________________
Name: Susan Tate
Title: Vice President
J.P. MORGAN EUROPE LIMITED,
as Administrative Agent
By: /s/ S. Gillies By: /s/ N. Mall
_____________________ _____________________
Name: S. Gillies Name: N. Mall
Title: Associate Title: Associate