<PAGE> 1
EXHIBIT 10.2
GUARANTY OF PAYMENT
GUARANTY OF PAYMENT (this "Guaranty"), made as of May 24, 2000,
between AMB PROPERTY CORPORATION, a Maryland corporation, having an address at
505 Montgomery Street, San Francisco, California 94111 ("Guarantor"), and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as administrative agent ("Administrative
Agent") for the banks (the "Banks") listed on the signature pages of the
Revolving Credit Agreement (as the same may be amended, modified, supplemented
or restated, the "Credit Agreement"), dated as of the date hereof, among AMB
Property, L.P. ("Borrower"), the Banks, the Administrative Agent, BANK OF
AMERICA, N.A., as Syndication Agent, THE CHASE MANHATTAN BANK, as Documentation
Agent, J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Joint
Lead Arrangers and Joint Bookmanagers, BANK ONE, NA, COMMERZBANK
AKTIENGESELLSCHAFT NEW YORK AND GRAND CAYMAN BRANCHES, PNC BANK, NATIONAL
ASSOCIATION, and WACHOVIA BANK, N.A., as Managing Agents, and BANKERS TRUST
COMPANY and DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, 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) (hereinafter collectively referred to as the "Loans");
WHEREAS, the Loans are evidenced by certain promissory notes (the
"Notes") of Borrower made to each of the Banks in accordance with the terms of
the Credit Agreement;
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, 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 in
order to induce the Administrative Agent, the Syndication Agent, the
Documentation Agent, 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
1
<PAGE> 2
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, 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 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
2
<PAGE> 3
all appraisal, valuation, stay, extension, marshalling-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, although 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 extension in any form whatsoever; or
(d) any sale, exchange, release, or other disposition of any
property pledged,
3
<PAGE> 4
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 continue to be effective or reinstated, as the case
may be, as to such payment, as though such previous payment had never been made.
4
<PAGE> 5
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 adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
5
<PAGE> 6
(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
6
<PAGE> 7
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 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
505 Montgomery Street
San Francisco, California 94111
Attn: Chief Financial Officer
Telecopy Number: (415) 394-4001
With Copies of
Notices to Guarantor to: AMB Property Corporation
505 Montgomery Street
San Francisco, California 94111
7
<PAGE> 8
Attn: General Counsel
Telecopy Number: (415) 394-4001
If to the
Administrative Agent: Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attn: David Stone
Telecopy Number: (212) 648-5018
and to: J.P. Morgan Securities Inc.
500 Stanton-Christiana Road
Newark, Delaware 19719-2107
Attn: Nancy Douglas
Telecopy Number: (302) 634-4189
With Copies of
Notices to
Administrative Agent: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
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.
8
<PAGE> 9
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 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
9
<PAGE> 10
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 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
10
<PAGE> 11
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]
11
<PAGE> 12
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:
------------------------------
Name: Carlie Headapohl
Title: Vice President
ACCEPTED:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By:
------------------------------
Name: R. David Stone
Title: Vice President
12
<PAGE> 13
ACKNOWLEDGMENT FOR GUARANTOR
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN FRANCISCO )
On May __, 2000, before me personally came Carlie Headapohl, to
me known to be the person who executed the foregoing instrument, and who, being
duly sworn by me, did depose and say that she is Vice President of AMB Property
Corporation, and that she executed the foregoing instrument in the
organization's name, and that she had authority to sign the same, and she
acknowledged to me that she executed the same as the act and deed of said
organization for the uses and purposes therein mentioned.
[Seal]
-----------------------------------
Notary Public
13
