EXHIBIT 10.2
GUARANTY OF PAYMENT
GUARANTY OF PAYMENT (this "Guaranty"), made as of June 29th, 2004,
jointly and severally by AMB PROPERTY, L.P. ("AMB LP"), a Delaware limited
partnership, having an address at Pier 1, Bay 1, San Francisco, California
94111, and AMB PROPERTY CORPORATION ("AMB Corporation"), a Maryland corporation,
having an address at Pier 1, Bay 1, San Francisco, California 94111
(collectively, the "Guarantors"), for the benefit of SUMITOMO MITSUI BANKING
CORPORATION, as Administrative Agent and Sole Lead Arranger and Bookmanager (the
"Administrative Agent"), for the banks (the "Banks") that are from time to time
parties to that certain Revolving Credit Agreement (the "Credit Agreement"),
dated as of the date hereof, among AMB Japan Finance Y.K. (the "Initial
Borrower"), the Guarantors, the Banks and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Banks have agreed to make loans to Initial Borrower and
to one or more Qualified Borrowers for so long as such entities remain Qualified
Borrowers under the Credit Agreement (Initial Borrower and such Qualified
Borrowers are hereinafter referred to collectively as the "Borrowers") in the
aggregate principal amount not to exceed Twenty-Four Billion Yen
(JPY24,000,000,000) (hereinafter collectively referred to as the "Loans");
WHEREAS, the Loans are and will be evidenced by (i) certain
promissory notes of Initial Borrower, and each Qualified Borrower that is not a
TMK, made to Administrative Agent or to each of the Banks in accordance with
Section 2.6 of the Credit Agreement and (ii) certain qualified borrower
undertakings of each Qualified Borrower that is a TMK made to Administrative
Agent or to each of the Banks in accordance with Section 2.6 of the Credit
Agreement (collectively, the "Notes");
WHEREAS, the Credit Agreement, the Security Documents, 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, each of AMB LP and AMB Corporation is the direct or
indirect owner of equity interests of the Initial Borrower and each Qualified
Borrower;
WHEREAS, as a condition to the execution and delivery of the Loan
Documents, the Banks have required that the Guarantors execute and deliver this
Guaranty; and
NOW THEREFORE, in consideration of the premises and the benefits to
be derived from the making of the Loans by the Banks to the Borrowers, and in
order to induce the Administrative Agent and the Syndication Agent 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, the
Guarantors hereby agree as follows:
1. Each 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 the Borrowers now or hereafter existing under the Notes and the
Credit Agreement, 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 each Guarantor
hereunder are primary, and this Guaranty shall be enforceable, jointly and
severally, against each Guarantor and its respective 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 one
or more of the Borrowers or their 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 the Guarantors 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 each Guarantor), all of which each
Guarantor hereby expressly waives; and each Guarantor hereby expressly agrees
that the validity of this Guaranty and the obligations of each 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 one or more of the Borrowers or
their 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. Each 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. Each
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 Borrowers.
3. Each 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,
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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 each Guarantor of its obligations under, or the enforcement by the
Administrative Agent or any of the Banks of, this Guaranty. Each 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 the Borrowers of the Guaranteed
Obligations hereunder; provided, however, that the foregoing shall not be deemed
a waiver of each 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 each Guarantor's right to assert any claim
which would constitute a defense, setoff, counterclaim or crossclaim of any
nature whatsoever against the Administrative Agent or any Bank in any separate
action or proceeding. Each 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 any Borrower and the
Administrative Agent and the Banks the obligations of any Borrower under the
Loan Documents.
5. This Guaranty shall be a continuing, unconditional and absolute
guaranty and the liability of each 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 Guarantors:
(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 any 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
extension in any form whatsoever; or
(d) any sale, exchange, release, or other disposition of any
property pledged,
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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 any 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 any 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 any 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) any Borrower's or any 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 any
Borrower's or any Guarantor's assets, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment, or the commencement of other similar proceedings affecting
any Borrower or any Guarantor or any of the assets of any of them,
including, without limitation, (i) the release or discharge of any
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 any 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 any Borrower of the proceeds of the
Loans, it being acknowledged by each Guarantor that the Administrative
Agent or any Bank shall be entitled to honor any request made by any
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 any Borrower of such proceeds.
6. Each Guarantor agrees that if at any time all or any part of any
payment at any time received by the Administrative Agent from any Borrower or
any 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
any Borrower or any Guarantor), then such 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
such Guarantor's obligations hereunder shall continue to be effective or
reinstated, as the case may be, as to such payment, as
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though such previous payment had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof,
each Guarantor (i) shall have no right of subrogation against any Borrower or
any entity comprising same by reason of any payments or acts of performance by
such Guarantor in compliance with the obligations of such Guarantor hereunder,
(ii) waives any right to enforce any remedy which such Guarantor now or
hereafter shall have against any Borrower or any entity comprising same by
reason of any one or more payment or acts of performance in compliance with the
obligations of such Guarantor hereunder and (iii) from and after an Event of
Default (as defined in the Credit Agreement), subordinates any liability or
indebtedness of any Borrower or any entity comprising same now or hereafter held
by such Guarantor or any affiliate of such Guarantor to the obligations of any
Borrower under the Loan Documents. The foregoing, however, shall not be deemed
in any way to limit any rights that any Guarantor may have at law or in equity
with respect to any other partners, members or other interest holders of any
Borrower.
8. Each 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) each of AMB LP and AMB Corporation is a direct or indirect owner
of equity interests of the Initial Borrower and each Qualified Borrower;
(b) based upon such relationships, each 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 each Guarantor's business, and is in
furtherance of each Guarantor's business purposes;
(d) the benefits to be derived by each Guarantor from the Borrowers'
access to funds made possible by the Loan Documents are at least equal to
the obligations undertaken pursuant to this Guaranty;
(e) each 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) AMB LP is organized and validly existing under the laws of
the State of Delaware and AMB Properties is organized and validly existing
under the laws of the State of Maryland, (ii) each Guarantor has complied
with all provisions of applicable law in connection with all aspects of
this Guaranty, and (iii) each person executing this Guaranty has all the
requisite power and authority to execute and deliver this Guaranty;
(f) to the best of each Guarantor's knowledge, there is no action,
suit, proceeding, or investigation pending or threatened against or
affecting such Guarantor at
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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 adversely impair the ability
of such Guarantor to perform its obligations under this Guaranty;
(g) the execution and delivery of, and the performance by each
Guarantor of its obligations under this Guaranty, have been duly
authorized by all necessary action on the part of each 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
such Guarantor or the organizational documents of such Guarantor the
consequences of which violation is likely to materially and adversely
impair the ability of such 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 such Guarantor is a
party, or by which such 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 such Guarantor to perform
its obligations under this Guaranty;
(h) this Guaranty has been duly executed by each Guarantor and
constitutes the legal, valid and binding obligation of each Guarantor,
enforceable against such Guarantor 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 each
Guarantor of this Guaranty, except those which have already been obtained;
and
(j) Neither Guarantor is 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. Each 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 any Borrower under the provisions of
any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and
in
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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 each 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
information relating to this Guaranty or to each Guarantor, whether furnished by
any Borrower or any Guarantor or otherwise, subject to the terms and conditions
of the Credit Agreement.
11. Each 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
each Guarantor and to such Guarantor's counsel.
12. The representations and warranties of each 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 supersedes all prior agreements
relating to such subject matter and may not be modified, amended, supplemented
or discharged except by a written agreement signed by each 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.
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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 or to such other
address as may be identified by any party in a written notice to the others:
If to Guarantor to
(one joint notice to AMB Property, L.P.
both Guarantors Pier 1, Bay 1
shall be sufficient): San Francisco, California 94111
Attn: Chief Financial Officer
Telecopy Number: (415) 394-4001
and
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, L.P.
Pier 1, Bay 1
San Francisco, California 94111
Attn: General Counsel
Telecopy Number: (415) 394-4001
and
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
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If to the
Administrative Agent to: Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attn: BCDAD-SDAD Loan Services
Telecopy Number: _________________
With Copies of
Notices to
Administrative Agent to: 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 any Borrower or any Guarantor, with
respect to the Guaranteed Obligations shall, if the statute of limitations in
favor of any 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 each 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 any 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
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OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, WITHOUT REGARD TO CHOICE OF LAW RULES.
(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, each 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. Each Guarantor
irrevocably consents to 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 such Guarantor at its address
for notices set forth herein. Each 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 any Guarantor in any other
jurisdiction.
(c) EACH 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 EACH 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. EACH 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) Each Guarantor does hereby further covenant and agree to
and with the Administrative Agent that each Guarantor may be joined in any
action against any Borrower in connection with the Loan Documents and that
recovery may be had against either or both Guarantors in such action or in any
independent action against either or both Guarantors (with respect to the
Guaranteed Obligations), without the Administrative Agent first pursuing or
exhausting any remedy or claim against any Borrower or their successors or
assigns. Each Guarantor also agrees that, in an action brought with respect to
the Guaranteed Obligations in any jurisdiction, they each shall be conclusively
bound by the judgment in any such action by the
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Administrative Agent (wherever brought) against any Borrower or their successors
or assigns, as if Guarantors were parties to such action, even though one or
both of Guarantors were not joined as a party or parties in such action.
(e) Each 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 each Guarantor such documents as
such Guarantor or such Guarantor's counsel reasonably may request in order to
evidence such 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. Neither Guarantor shall 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. Neither Guarantor
shall assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose
of any of its rights or interests (direct or indirect) in any 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 any 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 such 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 each
Guarantor all relevant non-confidential, factual information reasonably
necessary to such legal opinion and reasonably requested by such 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 Guarantors shall jointly and severally
indemnify and hold each of the Administrative Agent and the Banks free and
harmless
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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 such Guarantor's action or inaction or by reason of a breach of the
foregoing provisions by such 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, L.P.
By: AMB Property Corporation, its sole
general partner
By: /s/ Michael A. Coke
--------------------------------
Name: Michael A. Coke
Title: Executive Vice President and
Chief Financial Officer
GUARANTOR:
AMB PROPERTY CORPORATION
By: /s/ Michael A. Coke
--------------------------------
Name: Michael A. Coke
Title: Executive Vice President and
Chief Financial Officer
ACCEPTED:
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent
By: /s/ Shigeru Ishida
------------------
Name: Shigeru Ishida
Title: General Manager, Global
Client Business Department