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Exhibit
10.2
GUARANTY
Project Commonly Known
as
“Data Center Facility,
CH1, Elk Grove Village, Illinois”
THIS GUARANTY (“
Guaranty ”) made as of December 20, 2007, by
DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership
(“ Guarantor ”), to and for the benefit of
KEYBANK NATIONAL ASSOCIATION (“ KeyBank ”), a
national banking association, as Agent (“ Agent
”), and KeyBank and the other lenders now or hereafter a
party to the Loan Agreement (as hereinafter defined) (the “
Lenders ”) (Agent and the Lenders, and their
successors and assigns, are hereinafter referred to collectively as
the “ Credit Parties ”).
R E C I T A L
S
A. On or about the date
hereof, Tarantula Ventures LLC, a Delaware limited liability
company (“ Borrower ”), Agent and the Lenders
entered into that certain Construction Loan Agreement (the “
Loan Agreement ”) whereby the Lenders agreed to make a
secured construction loan (the “ Loan ”)
available to Borrower in the maximum aggregate amount at any time
outstanding not to exceed the sum of One Hundred Forty-Eight
Million Eight Hundred Sixty-Four Thousand Three Hundred Thirty-Five
and no/100 Dollars ($148,864,335.00), to finance the development
and construction of a data center facility to consist when fully
completed of approximately 485,000 gross square feet, and 211,140
raised square feet with a critical load of 36.4 megawatts (the
first phase will consist of approximately 121,223 raised square
feet with a critical load of 18.2 megawatts) (the “
Project ”). Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in the Loan
Agreement.
B. In connection with the
Loan, Borrower has executed and delivered the Notes in favor of
Lenders, payment of which is secured by (i) the Mortgage, and
(ii) the other Loan Documents.
C. Guarantor will derive
material financial benefit from the Loan evidenced and secured by
the Notes, the Mortgage and the other Loan Documents.
D. The Credit Parties have
relied on the statements and agreements contained herein in
agreeing to make the Loan. The execution and delivery of this
Guaranty by Guarantor is a condition precedent to the making of the
Loan by Lenders.
AGREEMENTS
NOW, THEREFORE, intending to
be legally bound, Guarantor, in consideration of the matters
described in the foregoing Recitals, which Recitals are
incorporated herein and made a part hereof, and for other good and
valuable consideration the receipt and sufficiency of which are
acknowledged, hereby covenants and agrees for the benefit of the
Credit Parties and their respective successors, indorsees,
transferees, participants and assigns as follows:
1. Guarantor, absolutely,
unconditionally, and irrevocably guarantees:
(a) subject to the terms of
Section 22 below, (a) the full and prompt payment of the
principal of and interest on the Notes when due, whether at stated
maturity, upon
acceleration or otherwise, and at all
times thereafter, and the full and prompt payment of all sums which
may now be or may hereafter become due and owing under the Notes,
the Loan Agreement and the other Loan Documents;
(b) the full, complete and
punctual observance, performance and satisfaction of all of the
obligations, duties, covenants and agreements of Borrower under the
Loan Agreement and the other Loan Documents with respect to the
Construction and completion of the Project free of any claim for
mechanics’, materialmen’s or any other liens, and in
accordance with (i) all Laws, (ii) the Plans and
Specifications and (iii) the time periods and other
requirements set forth in the Loan Documents, including, without
limitation, the following:
(A) To perform, complete and
pay for (or cause to be performed, completed and paid for) the
Construction and to pay all costs of said Construction (including
any and all cost overruns) and all other costs associated with the
Project (including, without limitation, the costs of any
architects’ and engineers’ fees), if Borrower shall
fail to perform, complete or pay for such work, including any sums
expended in excess of the amount of indebtedness incurred by
Borrower under the Loan Agreement or with respect to the Loan,
whether or not the Construction is actually completed;
(B) If the Credit Parties
exercise their right under Section 20.1(a) of the Loan
Agreement to take possession of the Project and complete the
Construction, to reimburse the Credit Parties for all costs and
expenses incurred by the Credit Parties in excess of the applicable
Budget Line Items therefor (if any) in so taking possession of the
Project and completing the Construction pursuant to the Plans and
Specifications;
(C) If any mechanics’
or materialmen’s liens should be filed, or should attach,
with respect to the Project by reason of the Construction, to
promptly cause the removal of such liens, or post security against
the consequences of their possible foreclosure and procure an
endorsement(s) to the title policy insuring the Credit Parties
against the consequences of the foreclosure or enforcement of such
lien(s);
(D) If any chattel mortgages,
conditional vendor’s liens or any liens, encumbrances or
security interests whatsoever should be filed, or should attach,
with respect to the personal property, fixtures, attachments and
equipment delivered upon the Project and owned by Borrower,
attached to the Project or used in connection with the construction
of the Improvements, to promptly cause the removal of such lien(s)
or post security against the consequences of their possible
foreclosure and procure an endorsement(s) to the title policy
insuring the Credit Parties against the consequences of the
foreclosure or enforcement of such lien(s); and
(E) To pay the premiums for
all policies of insurance required to be furnished by Borrower
pursuant to the Loan Agreement during the Construction if such
premiums are not paid by Borrower;
(c) Borrower’s
obligation to keep the Loan In Balance (as more particularly
defined and described in Article 11 of the Loan Agreement)
and the full and prompt payment of all Deficiency
Deposits;
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(d) the full, complete and
punctual observance, performance and satisfaction of all of the
other obligations, duties, covenants and agreements of Borrower
under the Loan Agreement and the Loan Documents; and
(e) the full and prompt
payment of any Enforcement Costs (as hereinafter defined in
Section 7 hereof).
All amounts due, debts,
liabilities, payment obligations and other obligations described in
subsections (a) through (d) of this Section 1
are referred to herein as the “Obligations.”
2. In the event of any
default by Borrower in the payment or performance of the
Obligations and the expiration of any applicable cure or grace
period, Guarantor agrees, on demand by Agent or the Credit Parties
(which demand may be made concurrently with notice to Borrower that
Borrower is in default of its obligations), to pay and perform all
the Obligations regardless of any defense, right of setoff or
claims which Borrower or Guarantor may have against any of the
Credit Parties. The Credit Parties shall have the right, at their
option, either before, during or after commencing foreclosure or
sale proceedings, as the case may be, and before, during or after
pursuing any other right or remedy against Borrower or Guarantor,
to perform any and all of the Obligations by or through any agent,
contractor or subcontractor of its selection, all as the Credit
Parties in their sole discretion deem proper, and Guarantor shall
indemnify and hold the Credit Parties free and harmless of, and
against any and all loss, damage, cost, expense, injury, or
liability the Credit Parties may suffer or incur in connection with
the exercise of their rights under this Guaranty or the performance
of the Obligations. Furthermore, the Credit Parties shall not have
any obligation to protect or insure any collateral for the Loan,
nor shall the Credit Parties have any obligation to perfect their
security interest in any collateral for the Loan.
During the course of any
construction undertaken by the Credit Parties or any other party on
behalf of the Credit Parties in accordance with the terms of this
Guaranty, Guarantor shall pay on demand any amounts due to
contractors, Subcontractors, and material suppliers and for permits
and licenses necessary or desirable in connection therewith.
Guarantor’s obligations in connection with such work shall
not be affected by any errors or omissions of the General
Contractor, Architect, Engineer, Lender’s Consultant or any
Subcontractor or agent or employee of any of the foregoing in the
design, supervision, and performance of the work; it being
understood that such risk is assumed by Guarantor. Neither the
completion of the Construction nor failure of said party to
complete the Construction shall relieve Guarantor of any
liabilities hereunder; rather, such liability shall be continuing
and may be enforced by the Credit Parties to the end that the
Construction shall be timely completed, lien-free, without loss,
cost, expense, injury or liability of any kind to the Credit
Parties.
All of the remedies set forth
herein and/or provided for in any of the Loan Documents or at law
or equity shall be available to the Credit Parties, and the choice
by the Credit Parties of one such alternative over another shall
not be subject to question or challenge by Guarantor or any other
Person, nor shall any such choice be asserted as a defense, setoff,
or failure to mitigate damages in any action, proceeding, or
counteraction by the Credit Parties to recover or seeking any other
remedy under this Guaranty, nor shall such choice preclude the
Credit Parties from subsequently electing to exercise a different
remedy. The parties have agreed to the alternative remedies
hereinabove specified in part because they recognize that the
choice of remedies in the
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event of a failure hereunder will
necessarily be and should properly be a matter of good faith
business judgment, which the passage of time and events may or may
not prove to have been the best choice to maximize recovery by the
Credit Parties at the lowest cost to Borrower and/or Guarantor. It
is the intention of the parties that such good faith choice by the
Credit Parties be given conclusive effect regardless of such
subsequent developments.
3. Guarantor hereby agrees
that its obligations hereunder shall not be affected or impaired
by, and hereby waives and agrees not to assert or take advantage of
any defense based on:
(a) (i) any change in the
amount, interest rate or due date or other term of any of the
obligations hereby guaranteed, (ii) any change in the time,
place or manner of payment of all or any portion of the obligations
hereby guaranteed, (iii) any amendment or waiver of, or
consent to the departure from or other indulgence with respect to,
the Loan Agreement, any other Loan Document, or any other document
or instrument evidencing or relating to any obligations hereby
guaranteed, or (iv) any waiver, renewal, extension, addition,
or supplement to, or deletion from, or any other action or inaction
under or in respect of, the Loan Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements
relating to the obligations hereby guaranteed or any other
instrument or agreement referred to therein or evidencing any
obligations hereby guaranteed or any assignment or transfer of any
of the foregoing;
(b) any subordination of the
payment of the obligations hereby guaranteed to the payment of any
other liability of Borrower or any other person;
(c) any act or failure to act
by Borrower or any other Person which may adversely affect
Guarantor’s subrogation rights, if any, against Borrower or
any other Person to recover payments made under this
Guaranty;
(d) any nonperfection or
impairment of any security interest or other lien on any
collateral, if any, securing in any way any of the obligations
hereby guaranteed or any failure on the part of the Credit Parties
to ascertain the extent or nature of any collateral or any
insurance or other rights with respect thereto, or the liability of
any party liable under the Loan Documents or the obligations
evidenced or secured thereby;
(e) any application of sums
paid by Borrower or any other Person with respect to the
Obligations, regardless of what liabilities of Borrower remain
unpaid;
(f) any defense of Borrower,
including without limitation, the invalidity, illegality or
unenforceability of any of the Obligations;
(g) either with or without
notice to Guarantor, any renewal, extension, modification,
amendment or another changes in the Obligations, including but not
limited to any material alteration of the terms of payment or
performance of the Obligations;
(h) any statute of
limitations in any action hereunder or for the collection of the
Notes or for the payment or performance of any obligation hereby
guaranteed;
(i) the incapacity, lack of
authority, death or disability of Borrower or any other Person or
entity, or the failure of the Credit Parties to file or enforce a
claim against the estate (either in administration, bankruptcy or
in any other proceeding) of Borrower or Guarantor or any other
Person;
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(j) the dissolution or
termination of existence of Borrower, Guarantor or any other
Person;
(k) the voluntary or
involuntary liquidation, sale or other disposition of all or
substantially all of the assets of Borrower or Guarantor or any
other Person;
(l) the voluntary or
involuntary receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, assignment, composition,
or readjustment of, or any similar proceeding affecting, Borrower
or Guarantor or any other Person, or any of Borrower’s or
Guarantor’s or any other Person’s properties or
assets;
(m) an assertion or claim
that the automatic stay provided by 11 U.S.C. §362 (arising
upon the voluntary or involuntary bankruptcy proceeding of
Borrower) or any other stay provided under any other debtor relief
law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be
or become applicable, shall operate or be interpreted to stay,
interdict, condition, reduce or inhibit the ability of the Credit
Parties to enforce any of their rights, whether now or hereafter
required, which the Credit Parties may have against Guarantor or
any collateral for the Loan;
(n) any right or claim of
right to cause a marshaling of the assets of Borrower or
Guarantor;
(o) the damage, destruction,
condemnation, foreclosure or surrender of all or any part of any
collateral or the Project or any of the improvements located
thereon;
(p) the failure of the Credit
Parties to give notice of the existence, creation or incurring of
any new or additional indebtedness or obligation of Borrower or of
any action or nonaction on the part of any other person whomsoever
in connection with any obligation hereby guaranteed;
(q) any failure or delay of
the Credit Parties to commence an action against Borrower or any
other Person, to assert or enforce any remedies against Borrower
under the Notes or the other Loan Documents, or to realize upon any
security;
(r) any failure of any duty
on the part of the Credit Parties to disclose to Guarantor any
facts they may now or hereafter know regarding Borrower (including,
without limitation Borrower’s financial condition), any other
person or entity, any collateral, or any other assets or
liabilities of such person or entity, whether such facts materially
increase the risk to Guarantor or not (it being agreed that
Guarantor assume responsibility for being informed with respect to
such information);
(s) failure to accept or give
notice of acceptance of this Guaranty by the Credit
Parties;
(t) failure to make or give
notice of presentment and demand for payment of any of the
indebtedness or performance of any of the obligations hereby
guaranteed;
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(u) failure to make or give
protest and notice of dishonor or of default to Guarantor or to any
other party with respect to the indebtedness or performance of
obligations hereby guaranteed;
(v) any and all other notices
whatsoever to which Guarantor might otherwise be
entitled;
(w) any lack of diligence by
the Credit Parties in collection, protection or realization upon
any collateral securing the payment of the indebtedness or
performance of obligations hereby guaranteed;
(x) the invalidity or
unenforceability of the Notes, or any of the other Loan Documents,
or any assignment or transfer of the foregoing;
(y) the compromise,
settlement, release or termination of any or all of the obligations
of Borrower under the Notes or the other Loan Documents;
(z) any transfer by Borrower
or any other Person of all or any part of the security encumbered
by the Loan Documents;
(aa) any right to require the
Credit Parties to proceed against Borrower or any other Person or
to proceed against or exhaust any security held by the Credit
Parties at any time or to pursue any other remedy in the Credit
Parties’ power or under any other agreement before proceeding
against Guarantor hereunder or under any other Loan
Document;
(bb) the failure of the
Credit Parties to perfect any security or to extend or renew the
perfection of any security;
(cc) any principle or
provision of law, statutory or otherwise, which is or might be in
conflict with the terms and provisions of this Guaranty;
(dd) any inaccuracy of any
representation or other provision contained in any Loan
Document;
(ee) any sale or assignment
of the Loan Documents, or any interest therein;
(ff) any and all rights,
benefits and defenses which might otherwise be available under the
provisions of any other applicable statues, rules or common law
principals or provisions which might operate to limit
Guarantor’s liability under, or the enforcement of, this
Guaranty; or
(gg) to the fullest extent
permitted by law, any other legal, equitable or surety defenses
whatsoever to which Guarantor might otherwise be entitled, it being
the intention that the obligations of Guarantor hereunder are
absolute, unconditional and irrevocable.
Guarantor understands that
the exercise by the Credit Parties of certain rights and remedies
may affect or eliminate Guarantor’s right of subrogation
against Borrower and that Guarantor may therefore incur partially
or totally nonreimbursable liability hereunder. Nevertheless,
Guarantor hereby authorizes and empowers the Credit Parties, their
successors,
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endorsees and assigns, to exercise in
its or their sole discretion, any rights and remedies, or any
combination thereof, which may then be available, including,
without limitation, any remedies against Borrower with respect to
the Notes, it being the purpose and intent of Guarantor that the
obligations hereunder shall be absolute, continuing, independent
and unconditional under any and all circumstances.
4. Guarantor hereby consents
and agrees that the Credit Parties may at any time, and from time
to time, without thereb
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