EXHIBIT 10.2
GUARANTY OF PAYMENT
GUARANTY OF PAYMENT (this "Guaranty"), made as of November 24, 2004,
jointly and severally by AMB PROPERTY, L.P. ("AMB LP"), a Delaware limited
partnership, having an address at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and AMB PROPERTY CORPORATION ("AMB Corporation"), a Maryland corporation,
having an address at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(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 Credit Facility Agreement (the "Credit Agreement"),
dated as of the date hereof, among AMB Tokai TMK ("Borrower"), the Guarantors,
the Banks and the Administrative Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, the Banks have agreed to make loans to Borrower under the
Credit Agreement in the aggregate principal amount not to exceed Twenty Billion
Yen (JPY20,000,000,000) (hereinafter collectively referred to as the "Loans");
WHEREAS, each of AMB LP and AMB Corporation is the direct or
indirect owner of equity interests of 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 Borrower, and in order
to induce the Administrative 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 Borrower now or hereafter existing under 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
Borrower or its 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 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
Borrower or its 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 Borrower.
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, 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
Borrower 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 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 each Guarantor hereunder shall in no way be
terminated,
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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 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, 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 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 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 Borrower or any 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 each Guarantor that the Administrative Agent or
any Bank shall be entitled to honor any request made by Borrower for a
disbursement of such
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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. Each 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 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
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 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 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 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
Borrower or any entity comprising same now or hereafter held by such Guarantor
or any affiliate of such 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 any Guarantor may have at law or in equity with respect to any other
partners, members or other interest holders of 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 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 Borrower's
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 Corporation 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
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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 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 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 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,
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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 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.
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
both Guarantors
shall be sufficient):
AMB LP: AMB Property, L.P.
c/o AMB Property Corporation
Pier 1, Bay 1
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: General Counsel
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
and
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c/o AMB Property Corporation
▇▇▇▇ ▇, ▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President
Capital Markets
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
AMB Corporation: AMB Property Corporation
Pier 1, Bay 1
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: General Counsel
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
and
AMB Property Corporation
Pier 1, Bay 1
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President
Capital Markets
Facsimile: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Administrative Agent to:
Sumitomo Mitsui Banking Corporation
Yusen-Odenmacho Build.
▇▇-▇, ▇▇▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Attention: Credit Control and Administration Group
Facsimile: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇-▇▇▇▇-▇▇▇▇
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 16 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, or
(iii) if given by an internationally (if notices are to be sent to a different
country) or nationally recognized overnight carrier, 48 hours after such
communication is deposited with such carrier (72 hours in the case notices are
to be sent to a different country) with postage prepaid delivery, or (iv) if
given by any other means, when delivered at the address specified in this
Section 16.
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17. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise by 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 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
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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 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 Borrower or its 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 Administrative Agent (wherever brought)
against Borrower or its 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 Loans, 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 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 Loans, 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
9
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 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/ ▇▇▇▇▇▇▇ ▇. Coke
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Coke
Title: Executive Vice
President and Chief
Financial Officer
GUARANTOR:
AMB PROPERTY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Coke
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Coke
Title: Executive Vice President and
Chief Financial Officer
ACCEPTED:
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent
By: /s/ Ritsuro Anai
------------------------------
Name: Ritsuro Anai
Title: Senior Vice President
ACKNOWLEDGMENT FOR GUARANTOR
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On November 9, 2004, before me, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, personally appeared
▇▇▇▇▇▇▇ ▇. Coke, personally known to me to be the person whose name is
subscribed to the within agreement and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the agreement the
person, or the entity upon behalf of which the person acted, executed the
agreement.
WITNESS my hand and official seal.
Signature /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
My commission expires: October 1, 2005 [seal]
