Exhibit 10.4
GUARANTY OF
PAYMENT
The undersigned,
DuPont Fabros Technology, L.P., a Maryland limited partnership
(“Guarantor”), hereby executes and delivers this
Guaranty of Payment (this “Guaranty”) this 6
th
day of February,
2009 to First Credit Bank, a California banking corporation
(“Lender”) for the purpose of inducing Lender to make a
loan to Fox Properties LLC, a Delaware limited liability company
(“Borrower”), evidenced by a Promissory Note of even
date herewith in the original principal amount of $25,000,000.00
(the “Note”) and secured by a Construction Deed of
Trust of even date herewith (the “Deed of Trust”)
constituting a lien and charge against certain real property
located in Ashburn, Virginia and more particularly described in the
Deed of Trust. For other good, valuable and adequate consideration,
the receipt and adequacy of which are hereby acknowledged,
Guarantor hereby covenants with, and represents and warrants to
Lender as follows:
1. Guarantor hereby irrevocably and
unconditionally guarantees and promises to pay to Lender or its
order all of the monthly installments of interest and principal
that are scheduled to be paid pursuant to the Note prior to its
maturity. Payment shall be made in any coin or currency which at
the time of payment is legal tender in the United States of America
for public and private debts.
2. The Note, the Deed of Trust and
all other instruments evidencing and/or securing the Note (the
“Loan Instruments”) have been duly authorized and
executed and are legal, valid and binding instruments, enforceable
in accordance with their respective terms. Guarantor has actual
knowledge that the representations and warranties made by Borrower
in the Loan Instruments are true and correct in all material
respects and acknowledges that Lender is entering into the
transactions contemplated by the Loan Instruments in reliance upon
the veracity of this representation and warranty of Guarantor.
Guarantor agrees and acknowledges that the execution of this
Guaranty is a material inducement to Lender to make the Loan and
further that Guarantor has a material interest in ensuring that the
Loan is made by Lender to Borrower.
3. In such manner, upon such terms
and at such times as Lender deems best and without notice to
Guarantor, Lender may alter, modify, compromise, accelerate, extend
or change the time or manner for the payment of the indebtedness
hereby guaranteed, increase or reduce the rate of interest on the
Note, release Borrower, by acceptance of a deed in lieu of
foreclosure or otherwise, as to all or any portion of the
indebtedness hereby guaranteed, release, substitute or add any one
or more guarantors or endorsers, accept additional or substituted
security therefor, or release, alter, exchange, surrender, reconvey
(partially or otherwise) or subordinate any security therefor. No
exercise or non-exercise by Lender of any right hereby given
Lender, no dealing by Lender with Guarantor or any guarantor,
indorser or any other person, and no change, impairment, release or
suspension of any right or remedy of Lender against any person
including Borrower and any other guarantor shall in any way affect
any of the obligations of Guarantor hereunder or any security
furnished by Guarantor or give Guarantor any recourse against
Lender. If Lender should hereafter exculpate Borrower, from
personal liability in whole or in part, and/or agree to look solely
to the property encumbered by the Deed of Trust for the
satisfaction of Borrower’s obligations under the Loan
Instruments, said exculpation and agreement shall not affect the
obligations of Guarantor hereunder, it being understood
that
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Guarantor’s obligations hereunder are
independent of the obligations of Borrower and are to be construed
as if no such exculpation or agreement is given. It is further
understood and agreed that if any such exculpation or agreement is
given, Lender does so in reliance upon the agreements of Guarantor
expressed herein.
4. In addition to all liens and
rights of setoff given to Lender by law against any property of
Borrower or of Guarantor, Lender shall have a general lien on and
security interest in and a right of setoff against all property of
Guarantor now or hereafter in the physical possession of or on
deposit with Lender, whether held in a general or special account,
on deposit or for safekeeping or otherwise. Following an Event of
Default (as defined in the Deed of Trust), each such lien, security
interest and right of setoff may be enforced or exercised without
demand upon or notice to Guarantor, shall continue in full force
unless specifically waived or released by Lender in writing and
shall not be deemed waived by any conduct of Lender, by any failure
of Lender to exercise any such right of setoff or to enforce any
such lien or security interest or by any neglect or delay in so
doing.
5. Guarantor hereby expressly waives
and relinquishes all rights, remedies, and defenses accorded by
applicable law to guarantors and agrees not to assert or take
advantage of any such rights, remedies, or defenses, including but
not limited to (a) any right to require Lender, as a condition
of enforcement of this Guaranty, to proceed against Borrower or any
other person or to proceed against or exhaust any security held by
Lender at any time or to pursue any other right or remedy in
Lender’s power before proceeding against Guarantor;
(b) the defense of the statute of limitations in any action
hereunder or in any action for the collection of any indebtedness
or the performance of any obligation hereby guaranteed;
(c) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or
persons or the failure of Lender to file or enforce a claim against
the estate (in administration, bankruptcy, or any other proceeding)
of any other person or persons; (d) any defense based upon the
failure to give notice of the acceptance of this Guaranty by any
person; (e) any defense based upon the failure to make, give,
or serve demand, notice of default or nonpayment, presentment,
protest and all other notices of any kind to which Guarantor might
otherwise be entitled in connection with this Guaranty or the Loan
Instruments including but not limited to notice of indebtedness
under the Note or the existence, creation or incurring of any new
or additional indebtedness or obligation or of any action or
nonaction on the part of Borrower, Lender, any endorser or creditor
of Borrower or Guarantor or any other person; (f) all rights
and defenses arising out of an election of remedies by Lender, even
though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed
Guarantor’s rights of subrogation and reimbursement against
the principal, (g) any defense based upon any lack of
diligence by Lender in the collection of the indebtedness evidenced
by the Note; (h) any defense based upon any statute or rule of
law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal; (i) any duty on the part of Lender to disclose
to Guarantor any facts Lender may now or hereafter know about
Borrower, regardless of whether Lender has reason to believe that
any such facts materially increase the risk beyond that which
Guarantor intends to assume or has reason to believe that such
facts are unknown to Guarantor or has a reasonable opportunity to
communicate such facts to Guarantor, it being understood and agreed
that Guarantor is fully responsible for being and keeping informed
of the financial condition of Borrower and of all circumstances
bearing on the risk of nonpayment of any indebtedness hereby
guaranteed; (j) any
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defense arising because of an election made by
Lender under Section 1111(b)(2) of the Federal Bankruptcy
Code; (k) any defense based on any borrowing or grant of a
security interest under Section 364 of the Federal Bankruptcy
Code, and (l) any rights to limit the amount of a deficiency
judgment following a foreclosure, including without limitation any
right to a fair value determination, it being agreed by Guarantor
that this Guaranty is an absolute guaranty of payment and not of
collection, that the failure of Lender to exercise any rights or
remedies it has or may have against Borrower shall in no way impair
the obligation of such guaranty and that the liability of Guarantor
hereunder is and shall be direct and unconditional. Without
limiting the generality of the foregoing or any other provision
hereof, Guarantor hereby expressly waives any and all benefit which
might otherwise be available to Guarantor under California Civil
Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and
3433 and California Code of Civil Procedure Sections 580a, 580b,
580d and 726, or any of such sections. Further, without limiting
the effect of any of the foregoing, Gua
