Exhibit 10.6
GUARANTY
Property Commonly Known
as
“Data Center Facility, ACC4, Ashburn,
Virginia”
THIS GUARANTY (“
Guaranty ”) made as of February 10, 2009, by
TARANTULA VENTURES LLC, a Delaware limited liability company
(“ 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
WHEREAS, the Guarantor is the direct
owner of certain real property more particularly described in that
certain Construction Mortgage, Assignment of Leases and Rents and
Fixture Filing dated as of December 20, 2007 from Owner to
KeyBank, as agent under a construction loan facility, recorded in
the Official Records of Cook County, Illinois as Document
No. 0800360019, as amended by that certain First Amendment to
Construction Mortgage, Assignment of Leases and Rents and Fixture
Filing and Assignment of Leases and Rents dated of even date
herewith (as modified and amended from time to time, the “CH1
Mortgage”; such real property is hereinafter referred to as
the “Land”; the Land, together with all improvements
now or hereafter located in, on or under the Land, collectively,
the “Property”);
WHEREAS, Grizzly Ventures LLC, a
Delaware limited liability company (“Borrower”), DuPont
Fabros Technology, L.P., a Maryland limited partnership
(“Parent Guarantor”), KeyBank, as Agent, and the
Lenders entered into that certain Credit Agreement dated as of
October 24, 2008, as amended by that certain First Amendment
to Credit Agreement and Other Loan Documents (the “Term Loan
Amendment”) dated as of even date herewith between Borrower,
Parent Guarantor, Guarantor, KeyBank, as Agent and the Lenders (as
the same may be varied, extended, supplemented, consolidated,
replaced, increased, renewed, modified or amended from time to
time, the “Credit Agreement”);
WHEREAS, pursuant to the Credit
Agreement, Lenders made a loan to Borrower in the original
principal amount of $100,000,000.00, increasable up to
$250,000,000.00 in accordance with the terms of the Credit
Agreement (the “Loan”), which Loan is evidenced by,
among other things, the Notes made by Borrower to the order of
Lenders and delivered from time to time under the Credit Agreement
(together with all amendments, modifications, consolidations,
increases, supplements and extensions thereof, and together with
the new notes and replacement notes executed in connection with the
commitment increase pursuant to the Term Loan Amendment (as
hereinafter defined), collectively, the
“Notes”);
WHEREAS, Borrower desires to
increase the “Total Commitment” under the Credit
Agreement;
WHEREAS, Guarantor will derive
material financial benefit from the increase in the Total
Commitment under the Credit Agreement pursuant to the Term Loan
Amendment;
WHEREAS, the Credit Parties have
relied on the statements and agreements contained herein in
agreeing to execute the Term Loan Amendment; and
WHEREAS, in order to induce
additional lenders to join in funding the increase of the Total
Commitment, Lenders require that Guarantor enter into this Guaranty
as a condition precedent to the execution of the Term Loan
Amendment 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) 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;
(c) the full and prompt payment of
any Enforcement Costs (as hereinafter defined in
Section 7 hereof); and
(d) the full and prompt payment of
all of the Hedge Obligations (as defined in the Credit
Agreement).
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 “Guaranteed
Obligations.”
2. In the event of any default by
Borrower in the payment or performance of the Guaranteed
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 Guaranteed Obligations regardless of any defense, right of
setoff or claims which Borrower, Guarantor or Parent 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, Guarantor or Parent Guarantor, to perform any and all of
the Guaranteed 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
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the performance of the Guaranteed 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, Parent Guarantor
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 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;
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(e) any application of sums paid by
Borrower or any other Person with respect to the Guaranteed
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 Guaranteed Obligations;
(g) either with or without notice to
Guarantor, any renewal, extension, modification, amendment or
another changes in the Guaranteed Obligations, including but not
limited to any material alteration of the terms of payment or
performance of the Guaranteed 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;
(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 Parent
Guarantor or any collateral for the Loan;
(n) any right or claim of right to
cause a marshaling of the assets of Borrower, Parent Guarantor 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;
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(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 or any
other Person 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 assumes
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;
(y) the compromise, settlement,
release or termination of any or all of the obligations of Borrower
or Parent Guarantor 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;
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(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 or Parent Guarantor 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 or Parent
Guarantor 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 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 Credit Parties or for the
performance of any obligations or undertakings of Borrower, Parent
Guarantor or Guarantor, nor any course of dealing with Borrower or
any other Person, shall release Guarantor’s obligations
hereunder, affect this Guaranty in any way or afford Guarantor any
recourse against the Credit Parties. The provisions of this
Guaranty shall extend and be applicable to all replacements,
supplements, renewals, amendments, extensions, consolidations,
restatements and modifications of the Notes and the other Loan
Documents, and any and all references herein to the Notes and the
other Loan Documents shall be deemed to include any such
replacements, supplements, renewals, extensions, amendments,
consolidations, restatements or modifications thereof. Without
limiting the generality of the foregoing, Guarantor acknowledges
the terms of Section 18 of the Credit Agreement and agrees
that this Guaranty shall extend and be applicable to each new
or
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replacement note delivered by Borrower pursuant
thereto without notice to or further consent from Guarantor.
Guarantor acknowledges that no representations of any kind
whatsoever have been made by the Credit Parties. No modification or
waiver of any of the provisions of this Guaranty shall be binding
upon the Credit Parties except as expressly set forth in a writing
duly signed and delivered by Agent in accordance with the
provisions of the Credit Agreement.
5. This is an absolute, present and
continuing guaranty of payment and performance and not of
collection. Guarantor agrees that this Guaranty may be enforced by
the Credit Parties without the necessity at any time of resorting
to or exhausting any other security or collateral given in
connection herewith or with the Notes, Credi