Exhibit 10.2
GUARANTY
Property Commonly Known
as
“Data Center Facility, ACC4, Ashburn,
Virginia”
THIS GUARANTY (“
Guaranty ”) made as of October 24, 2008, 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
Credit 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,
Grizzly Ventures LLC, a Delaware limited liability company (“
Borrower ”), Guarantor, Agent and the Lenders entered
into that certain Credit Agreement (the “ Credit
Agreement ”) whereby the Lenders agreed to make a term
loan (the “ Loan ”) available to Borrower in the
maximum aggregate amount at any time outstanding not to exceed the
sum of One Hundred Million and no/100 Dollars ($100,000,000.00),
secured by a data center facility of approximately 348,464 gross
square feet with a critical load of 36.4 mega volt amps (the
“ Property ”). Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in
the Credit 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, 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 Credit
Agreement and the other Loan Documents;
(b) the full, complete and punctual
observance, performance and satisfaction of all of the other
obligations, duties, covenants and agreements of Borrower under the
Credit Agreement and the other Loan Documents; and
(c) 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 (c) 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 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.
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 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 Credit
Agreement, any
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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 Credit 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;
(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;
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(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 Property 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;
(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;
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(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, 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 thereby releasing Guarantor from any liability
hereunder and without notice to or further consent from Guarantor
or any other Person, either with or without consideration: release
or surrender any lien or other security of any kind or nature
whatsoever held by them or by any person, firm or corporation on
their behalf or for their account, securing any indebtedness or
liability hereby guaranteed; substitute for any collateral so held
by them, other collateral of like kind, or of any kind; modify the
terms of the Notes or the Loan Documents; extend or renew the Notes
for any period; grant releases, compromises and
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indulgences with respect to the Notes or the
Loan Documents and to any persons or entities now or hereafter
liable thereunder or hereunder; release any other guarantor,
surety, endorser or accommodation party of the Notes or any other
Loan Document; or take or fail to take any action of any type
whatsoever. No such action which the Credit Parties shall take or
fail to take in connection with the Notes or the Loan Documents, or
any of them, or any security for the payment of the indebtedness of
Borrower to the Cre