Exhibit 10.51
CONSENT AGREEMENT
(MEZZANINE LOAN)
THIS CONSENT AGREEMENT (the “
Agreement ”) is executed and entered into as of
October 27, 2004 by and among FIVE MILE CAPITAL POOLING
INTERNATIONAL II, LLC, having an address at 4 Stamford Plaza,
Stamford, Connecticut 06902 (“ Lender ”),
and GLOBAL MARSH MEMBER, LLC, a Delaware limited liability company
(“ Global Marsh Member ”), GLOBAL MARSH
LIMITED PARTNER, LLC, a Delaware limited liability company (“
Mortgage Borrower LP ”, and together with
Global Marsh Member, collectively, “ Borrower
”), GLOBAL INNOVATION PARTNERS, LLC, a Delaware limited
liability company (“ Original Guarantor
”), DIGITAL REALTY TRUST, L.P., a Maryland limited
partnership (“ Replacement Guarantor ”),
each having an address c/o GI Partners, 2730 Sand Hill Road, Suite
280, Menlo Park, California 94025 Attn: Mr. Richard Magnuson and
Mr. Michael Foust (),. The term “ Effective
Date ” as used in this Agreement shall mean the date
upon which this Agreement has been signed and delivered by both
Lender and Borrower.
RECITALS
A. On August 18, 2003, German
American Capital Corporation, a Maryland corporation (“
Original Lender ”), made a loan (“
Loan ”) in the original principal amount of
$22,000,000.00 to Borrower pursuant to the terms of that certain
Mezzanine Loan and Security Agreement dated as of August 18, 2003
by and among between Original Lender and Borrower, as amended by
that certain Omnibus First Amendment to Mezzanine Loan Documents
dated as of November 10, 2003 by and among Borrower and Original
Lender (as it has been, and may hereinafter be, amended, the
“ Loan Agreement ”; all capitalized terms
used herein and not defined shall have the meanings ascribed to
such terms in the Loan Agreement).
B. Original Lender has previously
assigned to Lender the Loan Agreement the other loan documents
described on Exhibit A attached hereto and any other loan
document described in the Loan Agreement evidencing and/or securing
the Loan (collectively, the “ Loan Documents
”). The Loan is secured by, among other things, that certain
Pledge and Security Agreement dated as of August 18, 2003 from
Borrower to Lender (as the same may be amended, modified or
supplemented from time to time, the “ Pledge
”) and the other Loan Documents.
C. Global Marsh Property Owner,
L.P., a Texas limited partnership (“ Mortgage
Borrower ”) is the owner of certain real property
commonly known as: (a) Ardenwood Corporate Park located in the City
of Fremont, County of Alameda, State of California (the “
Ardenwood Corporate Park Property ”), (b) 2334
Lundy Place located in the City of San Jose, County of Santa Clara,
State of California (the “ 2334 Lundy Place
Property ”) and (c) 2440 Marsh Lane located in the
City of Carrollton, County of Dallas, State of Texas (the “
2440 Marsh Lane Property ” and together with
Ardenwood Corporate Park Property and the 2334 Lundy Place
Property, collectively, the “ Properties
”), which Properties are more particularly described in the
Loan Agreement.
D. In connection with the proposed
initial public offering (the “ IPO ”) of
the shares in Digital Realty Trust, Inc., a Maryland real estate
investment trust (the “ REIT ”), and
the
sole general partner of Replacement Guarantor,
Original Guarantor desires to transfer (“
Transfer ”) all of its membership interests in
Global Marsh Member which is (i) the sole member of Mortgage
Borrower LP, which is the 99.5% limited partner of Mortgage
Borrower, and (ii) the sole member of Global Marsh General Partner,
LLC, a Delaware limited liability company, which is the 0.5%
general partner of Borrower (“ Mortgage Borrower
GP ”), to Replacement Guarantor.
E. The Loan Documents prohibit the
Transfer without first obtaining Lender’s written consent;
and
F. Lender has agreed to consent to
the Transfer subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of
the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
Article I.
BORROWER ACKNOWLEDGMENTS,
WARRANTIES,
REPRESENTATIONS AND
COVENANTS
As a material inducement to Lender
to enter into this Agreement and to consent to the Transfer,
Borrower (prior to the consummation of the Transfer) acknowledges,
represents, warrants, covenants and agrees to and with Lender as
follows:
1.1 Authority of Borrower Prior
to Transfer . Prior to the Transfer:
(a) Mortgage Borrower is a duly
organized, validly existing limited partnership in good standing
under the laws of the State of Texas and is duly authorized to
transact business in the State of California. Mortgage Borrower GP
is the sole general partner of Mortgage Borrower, and Mortgage
Borrower LP is the sole limited partner of Mortgage
Borrower.
(b) Mortgage Borrower GP is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is duly
authorized to transact business in the States of Texas and
California. Global Marsh Member is the sole member of Mortgage
Borrower GP.
(c) Mortgage Borrower LP is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is duly
authorized to transact business in the States of Texas and
California. Global Marsh Member is the sole member of Mortgage
Borrower LP. Global Marsh Member, acting alone without the joinder
of any other party, has the power and authority to execute this
Agreement on behalf of and to duly bind Mortgage Borrower LP under
this Agreement. The execution and delivery of, and performance
under, this Agreement by Mortgage Borrower LP has been duly and
properly authorized pursuant to all requisite limited liability
company action and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
Mortgage Borrower LP or the certificate of
incorporation, the operating
agreement or any other organizational document of Mortgage Borrower
LP or (ii) result in a breach of or constitute or cause a default
under any indenture, agreement, lease or instrument to which
Mortgage Borrower LP is a party or by which any of the Collateral
may be bound or affected.
(d) Global Marsh Member is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is duly
authorized to transact business in the States of Texas and
California. Original Guarantor is the sole member of Global Marsh
Member. Original Guarantor, acting alone without the joinder of any
other party, has the power and authority to execute this Agreement
on behalf of and to duly bind Global Marsh Member under this
Agreement. The execution and delivery of, and performance under,
this Agreement by Global Marsh Member has been duly and properly
authorized pursuant to all requisite limited liability company
action and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
Global Marsh Member or the certificate of incorporation, the
operating agreement or any other organizational document of Global
Marsh Member or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to
which Global Marsh Member is a party or by which any of the
Collateral may be bound or affected.
(e) Original Guarantor is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is duly
authorized to transact business in the States of Texas and
California. Global Innovation Manager, LLC, a Delaware limited
liability company (“ Manager ”) is the
Manager of Original Guarantor. Manager, acting alone without the
joinder of any other party, has the power and authority to execute
this Agreement on behalf of and to duly bind Original Guarantor
under this Agreement. The execution and delivery of, and
performance under, this Agreement by Original Guarantor has been
duly and properly authorized pursuant to all requisite limited
liability company action and will not (i) violate any provision of
any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having
applicability to Original Guarantor or the certificate of
formation, the limited liability company agreement or any other
organizational document of Original Guarantor or (ii) result in a
breach of or constitute or cause a default under any indenture,
agreement, lease or instrument to which Original Guarantor is a
party or by which any of the Collateral may be bound or
affected.
(f) Manager is a duly organized,
validly existing limited liability company in good standing under
the laws of the State of Delaware and is qualified to do business
in the States of Texas and California. Richard Magnuson and Michael
Foust are authorized signatories (each, an “ Original
Guarantor Authorized Person ”) for Manager. Either
Original Guarantor Authorized Person, acting alone without the
joinder of the other or of any other party, has the power and
authority to execute this Agreement on behalf of and to duly bind
Manager under this Agreement. The execution and delivery of, and
performance under, this Agreement by Manager has been duly and
properly authorized pursuant to all requisite limited liability
company action and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
Manager or the certificate of formation, the limited liability
company agreement or any other organizational document of Manager
or (ii) result in a breach of or constitute or cause a
default
under any indenture, agreement,
lease or instrument to which Manager is a party or by which any of
the Collateral may be bound or affected.
(g) The organizational documents of
Borrower, Mortgage Borrower GP, Mortgage Borrower, Original
Guarantor and Manager (collectively, “ Original
Mezzanine Borrower Parties ”) have not been modified
(other than to reflect the Transfers) since loan
origination.
1.2 Loan Documents . The Loan
Documents to which Borrower and/or Original Guarantor is a party
constitute the valid and legally binding obligations of Borrower
and Original Guarantor, enforceable against Borrower, Original
Guarantor, the Collateral and the Properties in accordance with
their terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the rights of creditors generally or
general principles of equity. The Pledge is a valid first lien on
the Pledged Collateral for the full unpaid principal amount of the
Loan and all other amounts stated in the Loan Documents. Borrower
and Original Guarantor have no defenses, setoffs, claims,
counterclaims or rights of defense, rights of setoff or
counterclaim, whether legal, equitable or otherwise, to the
obligations evidenced by or set forth in the Loan Agreement, the
Note (as defined in Exhibit A ), the Pledge or any of the
other Loan Documents or causes of action of any kind or nature
whatsoever against Lender or any of Lender’s officers,
directors, servicers or predecessors in interest (collectively,
“ Lender Parties ”) with respect to (i)
the Loan, (ii) any of the Loan Documents to which Borrower is a
party, (iii) the Debt (as such term is defined in the Loan
Agreement), (iv) any other documents or instruments now or
previously evidencing, securing or in any way relating to the Loan,
(v) the administration or funding of the Loan, (vi) the Collateral
or (vii) the development, operation or financing of the
Properties.
1.3 Affirmation of Obligations of
Borrower . Borrower hereby affirms the existence and the
validity of its and Original Guarantor’s respective
obligations, as applicable, and the other provisions in the Loan
Agreement, the Note, the Pledge and the other Loan Documents in
accordance with their respective terms and conditions. Borrower
further confirms that the Transfer shall not affect its or Original
Guarantor’s obligations to, and Borrower agrees to continue,
and at and after the Transfer, to abide by and be bound by all of
the terms of the Loan Documents to which it is a party, or upon the
Transfer has become a party, including but not limited to, the
representations, warranties, covenants, assurances and
indemnifications in the respective agreements to which it is a
party.
1.4 No Default . To the best
of Borrower’s knowledge, there currently exist no Defaults
nor Events of Default under the Loan Documents.
1.5 Liens . There are no: (a)
subordinate liens of any kind covering or relating to the
Properties or the Collateral and Borrower has not received written
notice, and has no actual knowledge of, any mechanics’ liens
or liens for unpaid taxes or assessments encumbering the Pledged
Collateral or any of the Properties other than those not yet due
and payable, nor has notice of a lien or notice of intent to file a
lien been received by Borrower, or (b) pending or, to the best of
knowledge of Borrower, threatened (in writing) condemnation
proceedings or annexation proceedings affecting the Pledged
Collateral or any of the Properties, nor any agreements to convey
the Pledged Collateral or any portion of any of the Properties, or
any rights thereto to any person or entity, including, without
limitation, any government or governmental agency.
1.6 Financial Statements .
The financial information regarding Borrower and the Properties,
including, but not limited to the rent roll for each of the
Properties (collectively, the “ Rent Rolls
”) supplied by, or on behalf of, Borrower in connection with
Borrower’s request for Lender consent to the Transfer
(collectively, the “ Financial Information
”) were, in all material respects, true and correct on the
dates they were supplied to Lender, and since such date no material
adverse change in the financial condition of Borrower or the
Properties has occurred, and there is no pending or, to the best
knowledge of Borrower, threatened litigation or proceedings of any
kind which might materially impair the business or financial
condition of Borrower, the Collateral or the Properties. Borrower
acknowledges that the Financial Information has been provided to
Lender to induce Lender to consent to the Transfer and enter into
this Agreement and is being relied upon by Lender for such
purposes.
1.7 Legal Proceedings . There
is no action, proceeding or investigation pending or, to the best
knowledge of Borrower, threatened in writing which questions,
directly or indirectly, the validity or enforceability of this
Agreement or any of the Loan Documents applicable to Borrower, or
any action taken or to be taken pursuant hereto or thereto, or
which might result in any material adverse change in the condition
(financial or otherwise) or business of Borrower.
1.8 Acknowledgement of
Indebtedness . To Borrower’s knowledge, Borrower confirms
that, and by its execution hereof, Lender confirms that to
Lender’s actual knowledge, as of September 30, 2004, the
outstanding principal balance of the Note was $22,000,000. Borrower
acknowledges and agrees that the Loan, as evidenced and secured by
the Loan Documents and described above, is a valid and existing
indebtedness payable by Borrower to Lender. Lender further confirms
that to its actual knowledge, it has not issued any written notices
of default to Borrower which have not been cured.
1.9 Rent Rolls . The Rent
Rolls contain true, complete and accurate summaries, in all
material respects, of all tenant leases affecting each of the
Properties (“ Leases ”) as of the date of
each Rent Roll.
1.10 Leases . The Leases are
the only leases affecting the Properties and are currently in full
force and effect, and unless otherwise indicated on the Rent Rolls,
are unmodified. Borrower has not been notified in writing and has
no actual knowledge of any landlord default in any material respect
under any of the Leases. The rents under the Leases shown on the
Rent Roll are true and correct. Borrower has not received any
prepaid rents for more than one month in advance or given any
concessions for free or reduced rent under the Leases, except as
provided in the Leases. All tenants at the Properties are currently
in possession of their leased premises, and, to the best of
Borrower’s knowledge, operating businesses
therefrom.
1.11 Bankruptcy . None of
Original Mezzanine Borrower Parties has any intent to (a) file any
voluntary petition under any Chapter of the Bankruptcy Code, Title
11, U.S.C.A. (“Bankruptcy Code”), or in any manner to
seek any proceeding for relief, protection,
reorganization, liquidation, dissolution or
similar relief for debtors (“ Debtor Proceeding
”) under any local, state, federal or other insolvency law or
laws providing relief for debtors or (b) directly or indirectly to
intentionally cause any involuntary petition under any Chapter of
the Bankruptcy Code to be filed against any of Original Mezzanine
Borrower Parties, or (c) directly or indirectly to intentionally
cause any of the Collateral or Properties or any portion or any
interest of Borrower in the Collateral or any of the Properties to
become the property of any bankrupt estate or the subject of any
Debtor Proceeding.
1.12 Single Purpose Entity
Status . None of the representations set forth in Section
4.1.19 of the Loan Agreement are untrue or incorrect in any
material respect.
1.13 No Modification . After
the Transfer, all of the terms, covenants and conditions of the
Loan Documents shall continue in full force and effect unmodified,
except that Section 5.2.2 of the Loan Agreement shall not be
applicable to Guarantor (as such term is defined in the Loan
Agreement) upon Replacement Guarantor’s assumption of
Original Guarantor’s rights and obligations under the Loan
Documents and its execution and delivery of that certain Guarantee
of Recourse Obligations (Mezzanine) and that certain Environmental
Indemnity (Mezzanine). The Transfer will not cause any breach or
default of any of the terms, conditions, covenants, agreements or
any of the other provisions of the Loan Documents. Except as set
forth in this Agreement, the execution and delivery of this
Agreement or the consummation of the Transfer shall not, in any
way, release, diminish, waive, lessen or compromise
Borrower’s or Original Guarantor’s obligations to
Lender under the Loan Documents.
1.14 Reaffirmations and
Release . Borrower and Original Guarantor reaffirm, affirm and
confirm, to the best of their knowledge, the truth and accuracy of
all representations and warranties set forth in the Loan Documents
as if made on the date hereof. Borrower acknowledges and agrees
that nothing contained in this Agreement, nor the Transfer, shall
release Borrower from any of its obligations, agreements duties and
liabilities under the Loan Documents (the “ Guaranteed
Obligations ”); provided, however, by its execution
and delivery hereof, Lender hereby agrees that, upon the
consummation of the IPO, Original Guarantor shall be deemed to have
been released from its obligations under the Guaranty (as defined
in Exhibit A attached hereto) and the Environmental Indemnity (as
defined in Exhibit A attached hereto) pursuant to the terms of the
Joinder of Original Guarantor attached hereto.
1.15 Assets of Borrower . The
only assets of Borrower are (i) the Collateral and (ii) its limited
liability company membership interest in and to Mortgage Borrower
LP and Mortgage Borrower GP.
1.16 Same Indebtedness; Priority
of Liens Not Affected . This Agreement and the execution of
other documents contemplated hereby do not constitute the creation
of a new debt or the extinguishment of the debt evidenced by the
Loan Documents, nor will they in any way affect or impair the liens
and security interests created by the Loan Documents. Borrower
agrees that the lien and security interests created by the Pledge
continue to be in full force and effect, unaffected and unimpaired
by this Agreement and that said liens and security interests shall
so continue in their perfection and priority until the Debt is
fully discharged.
1.17 Consents . Original
Mezzanine Borrower Parties have obtained and provided Lender with
true and correct copies of all consents to the Transfer required to
be obtained by any Original Mezzanine Borrower Party under any
applicable agreement, instrument document, law, rule, or
regulation, including, the consent of Mortgage Lender under the
Loan Documents (Mortgage).
1.18 Release and Covenant Not To
Sue . Borrower on behalf of itself and the other Original
Mezzanine Borrower Parties, on behalf of itself and each of its
successors and assigns and each of the successors and assigns of
the other Original Mezzanine Borrower Parties, remises, releases,
acquits, satisfies and forever discharges Lender Parties from any
and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies,
agreements, liabilities, obligations, expenses, damages, judgments,
executions, actions, inactions, claims, demands and causes of
action of any nature whatsoever, at law or in equity, known or
unknown, either now accrued or subsequently maturing, which
Borrower or any of the other Original Mezzanine Borrower Parties
now have or hereafter can, shall or may have by reason of any
matter, cause or thing, from the beginning of the world to and
including the date of this Agreement, arising out of or relating to
(a) the Loan, including, but not limited to, its administration or
funding, (b) the Loan Documents, (c) the Debt, (d) any other
agreement or transaction between any of the Original Mezzanine
Borrower Parties and any of the Lender Parties, (e) the Collateral
and (f) the Properties or their development, financing and
operation, but excluding any claims or causes of action resulting
from or in connection with this Agreement. Borrower on behalf of
itself and the other Original Mezzanine Borrower Parties, on behalf
of itself and each of its successors and assigns and each of the
successors and assigns of the other Original Mezzanine Borrower
Parties, covenants and agrees never to institute or cause to be
instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any
of the Lender Parties by reason of or in connection with any of the
foregoing matters, claims or causes of action, but excluding any
claims or causes of action resulting from or in connection with
this Agreement.
1.19 Transfer
Documents . Other than those documents listed on
Exhibit C attached hereto (the “ Transfer
Documents ”), no other documents, instruments,
certificates or opinions were executed and/or delivered by Borrower
or by any of the other Original Mezzanine Borrower Parties in
connection with the Transfer and related to the
Collateral.
1.20 Further Assurances .
Borrower shall execute and deliver to Lender such agreements,
instruments, documents, financing statements and other writings as
may be reasonably requested from time to time by Lender to
consummate the transactions contemplated by this
Agreement.
1.21 UCC Policy . The Eagle 9
UCC Insurance Policy No. E9002885 issued by First American Title
Insurance Company remains in full force and effect and the Transfer
and the execution and delivery of this Consent do not affect or
impair the insurance coverage provided to Lender
thereunder.
Article II.
BORROWER ACKNOWLEDGMENTS,
WARRANTIES,
REPRESENTATIONS AND
COVENANTS
As a material inducement to Lender
to enter into this Agreement and to consent to the Transfer,
Borrower (after the consummation of the Transfer) acknowledges,
represents, warrants, covenants and agrees to and with Lender as
follows:
2.1 Authority of Borrower
Simultaneously With and After the Transfer . Simultaneously
with and after the Transfer:
(a) Mortgage Borrower is a duly
organized, validly existing limited partnership in good standing
under the laws of the State of Texas and is duly authorized to
transact business in the State of California. Mortgage Borrower GP
is the sole general partner and Mortgage Borrower LP is the sole
limited partner of Mortgage Borrower.
(b) Mortgage Borrower GP is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is qualified
to do business in the States of Texas and California. Global Marsh
Member is the sole member of Mortgage Borrower GP.
(c) Mortgage Borrower LP is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is qualified
to do business in the States of Texas and California. Global Marsh
Member is the sole member of Mortgage Borrower LP. Global Marsh
Member, acting alone without the joinder of any other party, has
the power and authority to execute this Agreement on behalf of and
to duly bind Mortgage Borrower LP under this Agreement. The
execution and delivery of, and performance under, this Agreement by
Mortgage Borrower LP has been duly and properly authorized pursuant
to all requisite limited liability company action and will not (i)
violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in
effect having applicability to Mortgage Borrower LP or the
certificate of incorporation, the operating agreement or any other
organizational document of Mortgage Borrower LP or (ii) result in a
breach of or constitute or cause a default under any indenture,
agreement, lease or instrument to which Mortgage Borrower LP is a
party or by which any of the Collateral may be bound or
affected.
(d) Global Marsh Member is a duly
organized, validly existing limited liability company in good
standing under the laws of the State of Delaware and is qualified
to do business in the States of Texas and California. Replacement
Guarantor is the sole member of Global Marsh Member. Replacement
Guarantor, acting alone without the joinder of any other party, has
the power and authority to execute this Agreement on behalf of and
to duly bind Global Marsh Member under this Agreement. The
execution and delivery of, and performance under, this
Agreemen