This Construction Loan Agreement involves
Title: CONSTRUCTION LOAN AGREEMENT
Governing Law: California Date: 2/12/2009
Industry: Real Estate Operations Law Firm: Cooley Godward;Manatt Phelps Sector: Services
CONSTRUCTION LOAN AGREEMENT
This Construction Loan Agreement (“Agreement”) is made and entered into as of February 6, 2009, by First Credit Bank, a California banking corporation (“Lender”), and Fox Properties LLC, a Delaware limited liability company (“Borrower”), with reference to the following facts:
A. Borrower is in the process of completing construction of Phase I of a 360,000 square foot data center and office building (the “Project”) located on a 30.44 acre parcel of real property commonly known as 44521 Hastings Drive, Ashburn, Virginia (the “Property”) more particularly described on Exhibit A which is attached hereto and incorporated herein by this reference.
B. Lender has agreed to provide Borrower with construction financing in the amount of Twenty Five Million Dollars ($25,000,000.00) (the “Loan”). Borrower shall use proceeds of the Loan to finance in part the construction and development of the Project and other costs and expenses approved by Lender.
C. The Project shall be renovated and constructed by Holder Construction Group, LLC (the “Contractor”) approved by Lender and in accordance with plans and specifications submitted to and approved by Lender and identified on Schedule 1 hereof (the “Plans and Specifications”), which Borrower represents constitutes the complete set of plans and specifications for the Project.
D. The Loan shall be evidenced by a Note of even date herewith (the “Note”) in the amount of the Loan, executed by Borrower and payable to Lender. Repayment of the Loan and performance of all other monetary and nonmonetary obligations of Borrower to Lender in connection with the Loan shall be secured by a Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing of even date herewith (the “Deed of Trust”) covering the Property; by the pledge of a cash collateral account in the amount of $4,000,000.00 funded concurrently with the execution and delivery of the Note and maintained at Lender (the “Pledge Agreement”); by an Assignment of Architect’s Contract and Plans and Specifications of even date herewith (the “Assignment of Architect’s Contract and Plans and Specifications”); by an Assignment of Building Contracts of even date herewith (the “Assignment of Building Contracts”); and by a financing statement of even date herewith (the “Financing Statement”) covering personal property of Borrower. In addition, Borrower’s monthly installments of interest and principal (to the extent installments of principal become due under the terms of the Loan Documents) that are scheduled to be paid prior to maturity shall be guaranteed by DuPont Fabros Technology, L.P. (“Guarantor”) pursuant to a guaranty of even date herewith (the “Guaranty”). This Agreement, the Note, the Deed of Trust, the Pledge Agreement, the Assignment of Architect’s Contract and Plans and Specifications, the Assignment of Building Contracts, the Financing Statement, the Guaranty and all other instruments evidencing and/or securing the Loan are referred to collectively herein as the “Loan Documents”).
E. The parties now desire to set forth their agreement regarding disbursement of the proceeds of the Loan as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1 Disbursement of Loan Proceeds . Provided that Borrower has fulfilled all conditions set forth in that certain Construction Loan Commitment (the “Loan Commitment”) executed by Lender and Borrower and dated December 31, 2008 and all of the loan closing conditions set forth in this Agreement, Lender shall disburse proceeds of the Loan into an account (the “Construction Loan Account”) to be controlled by Lender subject to the provisions of this Agreement. Lender’s loan closing conditions shall include, but shall not be limited to, the following:
1.1 Loan Documents . Lender must receive all Loan Documents duly executed, in form approved by Lender (including, without limitation, duly executed consents to the Assignment of Architect’s Contract and Plans and Specifications and the Assignment of Building Contracts), and the Deed of Trust must be duly recorded.
1.2 Other Instruments and Documents . Lender must receive all other instruments and documents reasonably required by Lender in connection with the Loan, duly executed and in form approved by Lender, including but not limited to the following:
(i) a subordination, nondisturbance and attornment agreement and estoppel certificate executed by each entity, if any, having a leasehold interest in the Property;
(ii) true and correct copies of the AIA Standard Form of Agreement dated June , 2008 between Borrower and the Contractor (the “Construction Contract”), the Professional Services Agreement dated November 12, 2007 (the “Architect Contract”) between Borrower and Donnally Vujcic Associates LLC (the “Architect”), the Professional Services Agreement dated December 20, 2007 (the “Engineering Contract”) between Borrower and CCG Facilities Integration Incorporated (the “Engineer”) and the mechanical and electrical subcontracts;
(iii) true and correct copies of all operating agreements, utility agreements, access rights, easements and other agreements deemed necessary, in the sole discretion of Lender, for the uninterrupted and orderly operation of the Project;
(iv) an opinion or opinions of counsel to Borrower and/or Guarantor respecting such matters as Lender may reasonably request, including without limitation counsel’s opinion that Borrower and/or Guarantor has the necessary power to enter into the Loan transaction; that all documents executed by Borrower and/or Guarantor pertaining to the Loan are valid and binding obligations of Borrower and/or Guarantor, enforceable according to their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect and affecting the rights of creditors generally; and that there is no known litigation pending or threatened affecting the Project.
1.3 Title Insurance . Fidelity National Title Insurance Company (the “Title Company”) has issued to Lender its ALTA lender’s policy of title insurance with a liability limit of not less than the amount of the Note, insuring the lien of Lender’s Deed of Trust to be a first lien on the Property, subject only to such exceptions as previously approved by Lender in writing, together with any endorsements reasonably required by Lender.
1.4 Security Interest . Lender’s security interest in all personal property described in the Deed of Trust and this Agreement must be duly perfected and in a first lien position.
1.5 Plans and Specifications . The Plans and Specifications for the Project have not been modified, amended or revised.
1.6 Construction Contracts . The Construction Contract, Architect Contract and Engineering Contract shall be in full force and effect.
1.7 Approvals; Permits . Lender must receive certified copies of all approvals, consents, permits and licenses required for construction of the Project duly issued by any public entity having jurisdiction over Borrower, the Project or the Property.
1.8 Credit Reports; Financial Statements . Lender must receive copies of the current credit reports, most recently filed federal income tax returns of Guarantor, financial statements of Borrower and financial statements of Guarantor, if any, prepared in the ordinary course of Guarantor’s business. All financial reports must be current, complete and signed and prepared in accordance with generally accepted accounting practices consistently applied.
1.9 Insurance . Lender must receive original certificates of insurance evidencing the policies of insurance required hereunder including Builder’s Risk Insurance, which shall be set forth on Schedule 2 attached hereto, which policies shall be in full force and effect. All such insurance policies shall contain endorsements naming Lender as a mortgagee or loss payee, the form and substance of which shall be satisfactory to Lender.
2. Disbursements from Construction Loan Account . Subject to satisfaction of the requirements enumerated in Sections 3 and 4, below, Lender shall make disbursements from the Construction Loan Account in accordance with the following:
2.1 Initial Disbursement . When all conditions set forth in Section 1 have been satisfied, Lender shall make an initial disbursement to Borrower in the amount of $5,000,000.00 (the “Initial Disbursement”).
2.2 Second Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least $2,079,931.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Initial Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Second Disbursement”).
2.3 Third Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,762,647.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Second Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Third Disbursement”).
2.4 Fourth Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $3,493,246.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Third Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Fourth Disbursement”).
2.5 Fifth Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,038,892.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Fourth Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $2,500,000.00 (the “Fifth Disbursement”).
2.6 Final Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,840,418.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Fifth Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $2,500,000.00 (the “Final Disbursement”).
2.7 Evidence of Payment . As used herein, the term “Evidence of Payment” shall mean written evidence reasonably satisfactory to Lender that Borrower has made payment to independent third parties to reimburse such persons for incorporation into the Project subsequent to the Initial Disbursement of labor and/or materials, which evidence shall include copies of paid invoices, lien waivers and releases from the persons providing such labor and/or materials and such other items as Lender may reasonably request from time to time. Borrower acknowledges that the sums identified in paragraphs 2.2 through 2.6 as payments by Borrower are intended to be cumulative. By way of example only, for Borrower to qualify for the Final Disbursement, Borrower will need to have provided to Lender Evidence of Payment equal to $13,215,134.00
3. Conditions to Construction Disbursements . Disbursement of proceeds from the Construction Loan Account shall be contingent upon satisfaction of the following conditions:
3.1 In the event the Project is materially damaged by fire or other casualty and not repaired, Lender shall not make any further disbursements unless Lender actually receives insurance proceeds or a cash deposit from Borrower sufficient in Lender’s reasonable judgment to pay for the repair of the Project in a timely manner.
3.2 Lender shall have no reasonable basis for the belief that withholding a disbursement in whole or in part is required by applicable lien or stop notice laws to the extent of such requirement.
3.3 Borrower shall deliver to Lender any assignments, agreements, permits or licenses required to be furnished to Lender hereunder, or any certificates or subordination agreements which Lender requires from tenants or proposed occupants of preleased space.
3.4 No default shall exist under this Agreement, the Note or any other of the Loan Documents after giving effect to any applicable notice and cure period.
3.5 Borrower shall, at Borrower’s expense, obtain the title endorsement identified in Section 14, below as a condition to any disbursement after the Initial Disbursement.
4. Intentionally Deleted .
5. No Waiver . Any waiver by Lender of any condition of disbursement hereunder must be expressly made in writing. The making of a disbursement prior to the fulfillment of one or more conditions thereof shall not be construed as a waiver of such conditions, and Lender reserves the right to require their fulfillment prior to making any subsequent disbursements.
6. Intentionally deleted .
7. Additional Security . Borrower irrevocably assigns to Lender, and grants to Lender a security interest in, its interest in the Construction Loan Account, all governmental permits obtained for the lawful construction of the Project, and all reserves, deferred payments, deposits, refunds, cost savings and payments of any kind relating to the construction of the Project. Upon any default of Borrower (after expiration of any applicable cure period) and notwithstanding any other provision of this Agreement, Lender may use any of the security described in this Section for any purpose for which Borrower could have used them under this Agreement or with respect to the construction or financing of the Project. Lender will also have all other rights and remedies as to any of the foregoing which are provided under applicable law or in equity.
8. Diligent Prosecution of Construction . Borrower will diligently prosecute construction of the Project in a workmanlike manner in accordance with the Plans and Specifications and all requirements of all governmental authorities having or asserting jurisdiction over the Property or the Project. If there is any difference between any such governmental requirements and the Plans and Specifications furnished Lender pursuant hereto, then the requirements of whichever thereof are the higher shall be met in construction of the Project.
9. Changes . Borrower shall obtain Lender’s prior written approval of any change in the Plans and Specifications for the Project, and also of any change in any work or materials required for the Project. Amounts or items of expense not listed on the cost breakdown shall not be expended or incurred by Borrower without Lender’s prior express written consent. In addition, if construction of the Project is being accomplished under one or more general contracts, Borrower must obtain Lender’s prior
written approval of such contracts and of all changes in the terms or conditions of any such contracts. Borrower must also obtain all approvals of any changes in plans, specifications, work, materials or contracts that are required by law, or under the terms of any recorded instrument affecting the Property or under any lease, the Loan Documents or any other agreement relating to the Property. Lender will have a reasonable time to evaluate any requests for its approval of any changes referred to in this paragraph and will not be required to consider approving any changes unless all other approvals that are required from other parties have been obtained. Lender may approve or disapprove changes in its sole discretion.
10. Permits and Legal Requirements . Borrower will comply with and keep in effect all permits and approvals obtained from any governmental bodies that relate to the lawful construction of the Project. Borrower will comply with all existing and future laws, regulations, orders and requirements of all governmental, judicial or legal authorities having jurisdiction over the Property or Project, and with all recorded restrictions affecting the Property.
11. Lists of Contractors and Subcontractors . Borrower will furnish to Lender monthly in a form acceptable to Lender, correct lists of all mechanical and electrical contractors employed since the date of the last disbursement in connection with construction of the Project and true and correct copies of all such executed contracts and subcontracts. Lender may contact any contractor or subcontractor to verify any facts disclosed in the lists, and all contracts and subcontracts relating to construction of the Project entered into subsequent to the date of this Agreement must require the disclosure of the listed information to Lender.
12. Purchase of Materials; Conditional Sales Contracts; Use of Loan . No materials, equipment, fixtures or articles of personal property of Borrower placed in the Project shall be purchased or installed under any security agreement or other agreement where the seller reserves or purports to reserve title or the right of removal or repossession or the right to consider them personal property after their incorporation in the work of construction, unless authorized by Lender in writing. Borrower shall use proceeds of the Loan only for Project-related expenses in accordance with the cost breakdown approved by Lender and the disbursement procedures set forth in Article I of this Agreement.
13. Inspection; Right to Stop Work .
13.1 Lender and its agents and representatives shall have the right at any reasonable time to enter the Property and inspect the work of construction and all materials, plans, specifications and other matters relating to the construction. Lender will also have the right, upon 48 hours prior notice to Borrower, to examine, copy and audit the books, records, accounting data and other documents of Borrower and its contractors and, to the extent permitted by the terms of the subcontracts, subcontractors relating to the Property or construction of the Project. Borrower agrees to pay the reasonable costs and expenses of Lender actually incurred in such inspections and examinations, including without limitation Lender’s reasonable attorneys’ fees related thereto.
13.2 If Lender in good faith determines that any work or material does not conform to the approved Plans and Specifications or sound building practice, or otherwise departs from any of the requirements of this Agreement, Lender may require the work to be stopped and withhold disbursements
until the matter is corrected. In such event, Borrower will promptly correct the work to Lender’s reasonable satisfaction. If the work is not made satisfactory to Lender within fifteen (15) calendar days from the date of stoppage by Lender (or such longer period of time as may be reasonably necessary), such failure to do so shall constitute a default by Borrower under the terms of this Agreement.
13.3 Lender is under no duty to supervise or inspect construction or examine any books and records. Any inspection or examination by Lender is for the sole purpose of protecting Lender’s security and preserving Lender’s rights under this Agreement. No default of Borrower will be waived by any inspection by Lender. In no event will any inspection by Lender be a representation that there has been or will be compliance with the Plans and Specifications or that the construction is free from defective materials or workmanship. Borrower will make or cause to be made such other independent inspections as it may desire for its own protection.
14. Date-downs . Borrower shall, at the cost and expense of Borrower, concurrently with each disbursement request, cause the title insurer to conduct a current title search and issue an to Lender’s policy of title insurance confirming the then-current status of title to the Property. Borrower shall pay the cost of such endorsements and any other endorsement to Lender’s policy of title insurance reasonably requested by Lender. Upon discovery of any stop notice claim or any claim of lien or encumbrance or charge against the Property, Project or Loan (whether or not as a result of such a search), Borrower shall immediately forward to Lender a copy of each recorded notice of intent to file mechanics’ liens, statement of mechanics’ liens, encumbrance or other charge against the Property, or stop notice, together with a written explanation of the controversy, and immediately pay or bond the lien, encumbrance, charge or claim (or cause Contractor to do the same) and obtain and record a written release thereof.
15. Protection Against Lien Claims . Borrower will promptly pay and discharge all claims and liens for labor done and materials and services furnished in connection with the construction of the Project. Borrower will have the right to contest in good faith any claim or lien, provided that it does so diligently and without prejudice to Lender, and provided further that, within 30 days after Lender’s written request, Borrower shall, at its election (i) post, or cause Contractor to post, a bond which removes such lien from title to the Property or (ii) provide a cash deposit or other security reasonably satisfactory to Lender in an amount equal to one and one-half times the amount of the claim for the purpose of protecting Lender’s interest and security should the contest be unsuccessful. During the period of time following Lender’s request for the provision of a bond, cash deposit or other security and the provision by Borrower of the same, Lender shall have the right to suspend disbursements under this Agreement, and Borrower shall take such actions and pay such amounts as are reasonably necessary to prevent further liens on the Property or suspension or delay in the construction of the Project.