CREDIT AGREEMENT

Exhibit 10.1

CREDIT AGREEMENT

DATED AS OF OCTOBER 24, 2008

by and among

GRIZZLY VENTURES LLC,

AS BORROWER,

DUPONT FABROS TECHNOLOGY, L.P.,

AS GUARANTOR,

KEYBANK NATIONAL ASSOCIATION,

THE OTHER LENDERS WHICH ARE PARTIES TO THIS AGREEMENT

AND

OTHER LENDERS THAT MAY BECOME

PARTIES TO THIS AGREEMENT,

KEYBANK NATIONAL ASSOCIATION,

AS AGENT,

AND

KEYBANC CAPITAL MARKETS,

AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER

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EXHIBITS AND SCHEDULES

 

 

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CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this “Agreement”) is made as of the 24 ^th day of October, 2008, by and among GRIZZLY VENTURES LLC , a Delaware limited liability company (“Borrower”), DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership (“Guarantor”), KEYBANK NATIONAL ASSOCIATION (“KeyBank”), the other lending institutions which are parties to this Agreement as “Lenders”, and the other lending institutions that may become parties hereto pursuant to §18 (together with KeyBank, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION , as Agent for the Lenders (the “Agent”), and KEYBANC CAPITAL MARKETS , as Sole Lead Arranger and Sole Book Manager.

R E C I T A L S

WHEREAS , Borrower has requested that the Lenders provide a term loan facility to Borrower; and

WHEREAS , the Agent and the Lenders are willing to provide such term loan facility to Borrower on and subject to the terms and conditions set forth herein.

NOW, THEREFORE , in consideration of the recitals herein and mutual covenants and agreements contained herein, the parties hereto hereby covenant and agree as follows:

§1. DEFINITIONS AND RULES OF INTERPRETATION.

§1.1 Definitions . The following terms shall have the meanings set forth in this §l or elsewhere in the provisions of this Agreement referred to below:

Additional Commitment Request Notice. See §2.11(a).

Adjusted Consolidated EBITDA . On any date of determination, the sum of (a) the Consolidated EBITDA for the prior fiscal quarter most recently ended, multiplied by four (4), less (b) the Capital Reserve.

Affiliate. An Affiliate, as applied to any Person, shall mean any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means (a) the possession, directly or indirectly, of the power to vote ten percent (10%) (or, in the case of REIT, thirty-five percent (35%)) or more of the stock, shares, voting trust certificates, beneficial interest, partnership interests, member interests or other interests having voting power for the election of directors of such Person or otherwise to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise, or (b) the ownership of (i) a general partnership interest, (ii) a managing member’s or manager’s interest in a limited liability company or (iii) a limited partnership interest or preferred stock (or other ownership interest) representing ten percent (10%) (or, in the case of REIT, thirty-five percent (35%)) or more of the outstanding limited partnership interests, preferred stock or other ownership interests of such Person.

 

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Agent . KeyBank National Association, acting as administrative agent for the Lenders, and its successors and assigns.

Agent’s Head Office . The Agent’s head office located at 127 Public Square, Cleveland, Ohio 44114-1306, or at such other location as the Agent may designate from time to time by notice to Borrower and the Lenders.

Agent’s Special Counsel . McKenna Long & Aldridge LLP or such other counsel as selected by Agent.

Agreement . This Credit Agreement, including the Schedules and Exhibits hereto.

Agreement Regarding Fees . See §4.2.

Annual Budget . The operating and capital expenditure budget (showing adequate reserves or cash flow to cover capital expenditure needs of the Mortgaged Property) for the Mortgaged Property specifying all costs and expenses of every kind and nature whatever to be incurred by Borrower in connection with the Mortgaged Property for the calendar year specified therein.

Applicable Margin . The Applicable Margin for LIBOR Rate Loans and Base Rate Loans shall be as follows:

 

Notwithstanding the foregoing, in the event that Borrower exercises the Extension Option set forth in §2.12, the Applicable Margin for LIBOR Rate Loans and Base Rate Loans from and after the Initial Maturity Date shall be as follows:

 

Appraisal . An MAI appraisal of the value of the Mortgaged Property or other Real Estate, as applicable, in each case determined on a “going concern” value basis, performed by an independent appraiser with experience appraising data center properties selected by the Agent who is not an employee of Guarantor or any of its Subsidiaries, the Agent or a Lender, the form and substance of such appraisal and the identity of the appraiser to be in compliance with the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, the rules and regulations adopted pursuant thereto and all other regulatory laws and policies (both regulatory and internal) applicable to the Lenders and otherwise acceptable to the Agent.

Appraised Value . The “going concern” value of the Mortgaged Property or Real Estate, as applicable, determined by the most recent Appraisal of such Mortgaged Property or

 

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Real Estate, as applicable, obtained pursuant to §2.12, §5.2 or §10.13; with respect to the Mortgaged Property or obtained in connection with determining “Gross Asset Value” with respect to the Real Estate; subject, however, to such changes or adjustments to the value determined thereby as may be required by the appraisal department of the Agent in its good faith business judgment based on criteria and factors generally used and considered by the Agent in determining the value of similar properties.

Arranger . KeyBanc Capital Markets or any successor.

Assignment and Acceptance Agreement . See §18.1.

Assignment of Leases and Rents . The assignment of leases and rents from Borrower to the Agent, as it may be modified or amended, pursuant to which there shall be assigned to the Agent for the benefit of the Lenders a security interest in the interest of Borrower as lessor with respect to all Leases of all or any part of the Mortgaged Property.

Authorized Officer . Any of the following Persons: Lammot J. du Pont, Hossein Fateh , Mark L. Wetzel and such other Persons as Borrower shall designate in a written notice to Agent.

Balance Sheet Date . June 30, 2008.

Bankruptcy Code . Title 11, U.S.C.A., as amended from time to time or any successor statute thereto.

Base Rate . The greater of (a) the fluctuating annual rate of interest announced from time to time by the Agent at the Agent’s Head Office as its “prime rate” or (b) one half of one percent (0.5%) above the Federal Funds Effective Rate. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer. Any change in the rate of interest payable hereunder resulting from a change in the Base Rate shall become effective as of the opening of business on the day on which such change in the Base Rate becomes effective, without notice or demand of any kind.

Base Rate Loans . Loans bearing interest by reference to the Base Rate.

Breakage Costs . The cost to any Lender of re-employing funds bearing interest at LIBOR incurred (or reasonably expected to be incurred) in connection with (i) any payment of any portion of the Loans bearing interest at LIBOR prior to the termination of any applicable Interest Period, (ii) the conversion of a LIBOR Rate Loan to any other applicable interest rate on a date other than the last day of the relevant Interest Period, or (iii) the failure of Borrower to draw down, on the first day of the applicable Interest Period, any amount as to which Borrower has elected a LIBOR Rate Loan.

Building . The data center known as ACC4 containing approximately three hundred forty-eight thousand, four hundred sixty-four (348,464) gross square feet and having 36.4 mega volt amps of critical load power available to it, and all of the buildings, structures and improvements now or hereafter located thereon.

 

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Business Day . Any day on which banking institutions located in the same city and State as the Agent’s Head Office are located are open for the transaction of banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR Business Day.

Capital Reserve . For any period and with respect to any improved Real Estate, an amount equal to $0.25 multiplied by the total square footage of the buildings in such Real Estate. If the term Capital Reserve is used without reference to any specific Real Estate, then the amount shall be determined on an aggregate basis with respect to all Real Estate of Guarantor and its Subsidiaries and a proportionate share of all Real Estate of all Unconsolidated Affiliates. The Capital Reserve shall be calculated based on the total square footage of the buildings owned (or ground leased) at the end of each fiscal quarter.

Capitalized Lease . A lease under which the discounted future rental payment obligations of the lessee or the obligor are required to be capitalized on the balance sheet of such Person in accordance with GAAP.

Cash Equivalents . As of any date, (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than one year from such date, (ii) time deposits and certificates of deposits having maturities of not more than one year from such date and issued by any domestic commercial bank having, (A) senior long term unsecured debt rated at least A or the equivalent thereof by S&P or A2 or the equivalent thereof by Moody’s and (B) capital and surplus in excess of $100,000,000.00; (iii) commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within one hundred twenty (120) days from such date, and (iv) shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least Aaa or the equivalent thereof by Moody’s.

CERCLA . See §6.20.

Change of Control . A Change of Control shall exist upon the occurrence of any of the following:

(a) Any Person (including a Person’s Affiliates and associates) or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder), other than Lammot du Pont and Hossein Fateh and their respective controlled Affiliates, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock or voting interests shall have different voting powers) of the voting stock or voting interests of REIT or Guarantor equal to at least twenty percent (20%);

(b) As of any date a majority of the Board of Directors or Trustees or similar body (the “Board”) of REIT or Guarantor consists of individuals who were not either (i) directors or trustees of REIT or Guarantor as of the corresponding date of the previous year, or (ii) selected or nominated to become directors or trustees by the Board of REIT or Guarantor of which a majority consisted of individuals described in clause (b)(i) above, or (iii) selected or nominated to become directors or trustees by the Board of REIT or Guarantor, which majority

 

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consisted of individuals described in clause (b)(i) above and individuals described in clause (b)(ii), above (excluding, in the case of both clause (ii) and (iii) above, any individual whose initial nomination for, or assumption of office as, a member of the Board occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors or trustees by any Person or group other than a solicitation for the election of one or more directors or trustees by or on behalf of the Board); or

(c) Borrower or Guarantor consolidates with, is acquired by, or merges into or with any Person (other than a merger permitted by §8.4); or

(d) REIT shall fail to own at least thirty-three percent (33%) of the economic, voting and beneficial interests in Guarantor, or shall fail to own such interests free of any lien, encumbrance or other adverse claim; or

(e) REIT shall fail to be the sole general partner of Guarantor, shall fail to own such general partnership interest in Guarantor free of any lien, encumbrance or other adverse claim, or shall fail to control the management and policies of Guarantor; or

(f) Guarantor fails to own directly or indirectly, free of any lien, encumbrance or other adverse claim, at least one hundred percent (100%) of the economic, voting and beneficial interest of Borrower other than any pledge of interests in Borrower permitted by Agent in connection with the Permitted Mezzanine Debt and any foreclosure on such pledge permitted under the Intercreditor Agreement; or

(g) Managing Member shall cease to be the sole member of Borrower and shall fail to own at least one hundred percent (100%) of the membership interest in Borrower free of any lien, encumbrance or other adverse claim other than in connection with a foreclosure contemplated by the Intercreditor Agreement; or

(h) Any of Lammot du Pont and Hossein Fateh shall cease to be senior management executives of REIT and a competent and experienced successor senior management executive, as applicable, shall not be reasonably approved by the Required Lenders within three (3) months of such event.

Closing Date . The first date on which all of the conditions set forth in §10 have been satisfied.

Code . The Internal Revenue Code of 1986, as amended.

Collateral . All of the property, rights and interests of Borrower which are subject to the security interests, security title, liens and mortgages created by the Security Documents, including, without limitation, the Mortgaged Property.

Commitment . With respect to each Lender, the amount equal to such Lender’s Commitment Percentage of the aggregate principal amount of the Loans from time to time outstanding to Borrower.

 

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Commitment Increase . An increase in the Total Commitment to not more than $250,000,000.00 pursuant to §2.11(a).

Commitment Increase Date . See §2.11(a).

Commitment Percentage . With respect to each Lender, the percentage set forth on Schedule 1.1 hereto as such Lender’s percentage of the aggregate Commitments of all of the Lenders, as the same may be changed from time to time in accordance with the terms of this Agreement.

Compliance Certificate . See §7.4(c).

Condemnation Proceeds . All compensation, awards, damages, judgments and proceeds awarded to Borrower by reason of any Taking, net of all reasonable and customary amounts actually expended to collect the same.

Consolidated . With reference to any term defined herein, that term as applied to the accounts of a Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

Consolidated EBITDA . With respect to any period, an amount equal to the EBITDA of Guarantor and its Subsidiaries for such period determined on a Consolidated basis.

Consolidated Fixed Charges . For any period, the sum of (a) Consolidated Interest Expense for such period, plus (b) all regularly scheduled principal payments made with respect to Indebtedness of Guarantor and its Subsidiaries during such period, other than any balloon, bullet or similar principal payment which repays such Indebtedness in full, plus (c) all Preferred Distributions paid during such period. Such Person’s Equity Percentage in the Fixed Charges of its Unconsolidated Affiliates shall be included in the determination of Fixed Charges.

Consolidated Interest Expense . For any period, without duplication, (a) total Interest Expense of Guarantor and its Subsidiaries determined on a consolidated basis in accordance with GAAP for such period, plus (b) such Person’s Equity Percentage of Interest Expense of its Unconsolidated Affiliates for such period.

Consolidated Tangible Net Worth . The amount by which Gross Asset Value exceeds Consolidated Total Indebtedness.

Consolidated Total Indebtedness . All Indebtedness of Guarantor and its Subsidiaries determined on a consolidated basis and shall include (without duplication), such Person’s Equity Percentage of the Indebtedness of its Unconsolidated Affiliates.

Conversion/Continuation Request . A notice given by Borrower to the Agent of its election to convert or continue a Loan in accordance with §4.1.

Data Center Property . Highly specialized, secure single or multi-tenant facilities used for housing a large number of computer servers and the key infrastructure, including

 

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generators and heating, ventilation and air conditioning, or HVAC systems, necessary to power and cool the servers.

Debt Service Coverage Ratio . The ratio of (a) Net Operating Income determined for the preceding fiscal quarter multiplied by four (4) divided by (b) the greater of (i) the Implied Debt Service and (ii) an amount equal to the actual annual principal of and interest on the Loans that was due during the twelve (12) month period ending on the date of such determination.

Default . See §12.1.

Default Rate . See §4.12.

Delinquent Lender . See §14.5(c).

Derivatives Contract . Any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement. Not in limitation of the foregoing, the term “Derivatives Contract” includes any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.

Derivatives Termination Value . In respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Derivatives Contracts (which may include the Agent or any Lender).

Development Property . Real Estate currently under development that has not become a Stabilized Property or on which the improvements related to the development have not been completed, provided that such a Development Property on which all improvements related to the development of such Real Estate have been substantially completed (excluding tenants improvements) for at least twenty-four (24) months shall cease to constitute a Development Property notwithstanding the fact that such Property has not become a Stabilized Property, and

 

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shall be considered a Stabilized Property for the purposes of the calculation of Gross Asset Value.

Distribution . Any (a) dividend or other distribution, direct or indirect, on account of any Equity Interest of Borrower or Guarantor or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in Equity Interests of identical class to the holders of that class; (b) redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest of Borrower or Guarantor or any of its Subsidiaries now or hereafter outstanding; and (c) payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of Borrower or Guarantor or any of its Subsidiaries now or hereafter outstanding.

Dollars or $ . Dollars in lawful currency of the United States of America.

Domestic Lending Office . Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, located within the United States that will be making or maintaining Base Rate Loans.

Drawdown Date . The Closing Date, the date on which any Loan is converted to another Type of Loan in accordance with §4.1 or the Commitment Increase Date.

EBITDA . With respect to a Person for any period (without duplication): The net income (or loss) before (i) interest, income taxes, depreciation, and amortization expense, as reported by such Person and its Subsidiaries on a consolidated basis in accordance with GAAP and (ii) any other non-cash expense to the extent not actually paid as a cash expense. EBITDA also shall exclude extraordinary gains and losses (including but not limited to gains (and loss) on the sale of assets) and distributions to minority owners. EBITDA attributable to equity interests shall be excluded but EBITDA shall include a Person’s Equity Percentage of net income (or loss) from Unconsolidated Affiliates plus its Equity Percentage of interest, depreciation and amortization expense from Unconsolidated Affiliates.

Employee Benefit Plan . Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.

Environmental Engineer . AEI Consultants or another firm of independent professional engineers or other scientists generally recognized as expert in the detection, analysis and remediation of Hazardous Substances and related environmental matters and acceptable to the Agent in its reasonable discretion.

Environmental Laws . As defined in the Indemnity Agreement.

Equity Interests . With respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant,

 

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right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.

Equity Offering . The issuance and sale after the Closing Date by Guarantor or any of its Subsidiaries or REIT of any equity securities of such Person.

Equity Percentage . The aggregate ownership percentage of a Person or its Subsidiaries in each Unconsolidated Affiliate.

ERISA . The Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.

ERISA Affiliate . Any Person which is treated as a single employer with Guarantor or its Subsidiaries under §414 of the Code.

ERISA Reportable Event . A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

Event of Default . See §12.1.

Extended Maturity Date . See §2.12.

Extension Option . See §2.12.

Extension Request . See §2.12.

Extension Term . The period of time commencing on the day after the Initial Maturity Date and ending on the Extended Maturity Date.

Federal Funds Effective Rate . For any day, the rate per annum (rounded upward to the nearest one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate.”

GAAP . Principles that are (a) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time and (b) consistently applied with past financial statements of the Person adopting the same principles.

Gross Asset Value. On a consolidated basis for Guarantor and its Subsidiaries, Gross Asset Value shall mean the sum of (without duplication with respect to any Real Estate):

 

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(i) the Appraised Value of any Real Estate owned by Guarantor or any of its Subsidiaries which is a Stabilized Property; plus

(ii) the book value determined in accordance with GAAP of all Development Properties owned by Guarantor or any of its Subsidiaries; plus

(iii) the aggregate amount of all Unrestricted Cash and Cash Equivalents of Guarantor and its Subsidiaries as of the date of determination; plus

(iv) the book value determined in accordance with GAAP of Land Assets of Guarantor and its Subsidiaries.

Development Properties that have just become Stabilized Properties and newly acquired properties may be included at book value determined in accordance with GAAP for up to ninety (90) days pending determination of the Appraised Value. Gross Asset Value will be adjusted, as appropriate, for acquisitions, dispositions and other changes to the portfolio during the calendar quarter most recently ended prior to a date of determination. All income, expense and value associated with assets included in Gross Asset Value disposed of during the calendar quarter period most recently ended prior to a date of determination will be eliminated from calculations. Additionally, without limiting or affecting any other provision hereof, Gross Asset Value shall not include any income or value associated with Real Estate which is not operated or intended to be operated principally as a Data Center Property. Gross Asset Value will be adjusted to include an amount equal to Guarantor’s or any of its Subsidiaries’ pro rata share (based upon a Person’s Equity Percentage in any Unconsolidated Affiliate) of the Gross Asset Value attributable to any of the items listed above in this definition owned by such Unconsolidated Affiliate.

Guaranteed Pension Plan . Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by Guarantor or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.

Guarantor . As defined in the preamble.

Guaranty . The Guaranty dated the date hereof given by Guarantor to and for the benefit of Agent and the Lenders as the same may be modified, amended or ratified, such Guaranty to be in form and substance satisfactory to the Agent.

Hazardous Substances . As defined in the Indemnity Agreement.

Hedge Obligations . All obligations of Borrower to any Lender Hedge Provider to make any termination payments under any agreement with respect to an interest rate swap, collar, cap or floor or a forward rate agreement or other agreement regarding the hedging of interest rate risk exposure of the Obligations only, and any confirming letter executed pursuant to such hedging agreement, all as amended, restated or otherwise modified.

Implied Debt Service . On any date of determination, an amount equal to the annual principal and interest payment sufficient to amortize in full during a twenty-five (25) year period, a loan in an amount equal to the sum of the aggregate principal balance of the Loans as of

 

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such date, calculated using an interest rate equal to the greater of (a) the then current annual yield on ten (10) year obligations issued by the United States Treasury most recently prior to the date of determination as announced on Bloomberg.com or another reliable source selected by the Agent plus three percent (3.0%) and (b) eight percent (8.0%). Notwithstanding the foregoing, for purposes of calculating compliance with the Debt Service Coverage Ratio set forth in §7.22(i), Implied Debt Service shall mean the sum of (A) the amount calculated pursuant to the first sentence of this definition and (B) an amount equal to the annual principal and interest payment sufficient to amortize in full during a twenty-five (25) year period, a loan in an amount equal to the sum of the aggregate principal balance of the Permitted Mezzanine Loan as of such date, calculated using an interest rate equal to the greater of (a) the then current annual yield on ten (10) year obligations issued by the United States Treasury most recently prior to the date of determination as announced on Bloomberg.com or another reliable source selected by the Agent plus nine percent (9.0%) and (b) twelve percent (12.0%).

Increase Notice . See §2.11(a).

Indebtedness . With respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed (other than trade debt incurred in the ordinary course of business which is not more than one hundred eighty (180) days past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) obligation of such Person as a lessee or obligor under a Capitalized Lease; (d) all reimbursement obligations of such Person under any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests), (g) net obligations under any Derivatives Contract not entered into as a hedge against existing Indebtedness, in an amount equal to the Derivatives Termination Value thereof; (h) all Indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, and other similar exceptions to recourse liability until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), including liability of a general partner in respect of liabilities of a partnership in which it is a general partner which would constitute “Indebtedness” hereunder, any obligation to supply funds to or in any manner to invest directly or indirectly in a Person, to maintain working capital or equity capital of a Person or otherwise to maintain net worth, solvency or other financial condition of a Person, to purchase indebtedness, or to assure the owner of indebtedness against loss, including, without limitation, through an agreement to purchase property, securities, goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise; (i) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on

 

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property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other payment obligation; and (j) such Person’s pro rata share of the Indebtedness (based upon its Equity Percentage in such Unconsolidated Affiliates) of any Unconsolidated Affiliate of such Person. “Indebtedness” shall be adjusted to remove any impact of intangibles pursuant to FAS 141, as issued by the Financial Accounting Standards Board in June of 2001.

Indemnity Agreement . The Indemnity Agreement Regarding Hazardous Materials made by Borrower and Guarantor in favor of the Agent and the Lenders, as the same may be modified, amended or ratified, pursuant to which Borrower and Guarantor agree to indemnify the Agent and the Lenders with respect to Hazardous Substances and Environmental Laws.

Indemnity and Guaranty Agreement . The Indemnity and Guaranty Agreement dated of even date herewith made by Guarantor in favor of the Agent and the Lenders, as the same may be modified, amended or ratified, such Indemnity and Guaranty Agreement to be in form and substance satisfactory to the Agent.

Independent Director/Manager . An individual who shall not have been at the time of such individual’s initial appointment, and may not have been at any time during the preceding five years, and shall not be at any time while serving as an Independent Director/Manager of an SPE Entity or Borrower if a single member limited liability company or, if applicable, either (a) a shareholder of, or an officer, director, partner or employee of, Guarantor, Borrower or any SPE Entity or any of their respective shareholders, partners, members, subsidiaries or Affiliates, (b) a customer of, or supplier to, Guarantor, Borrower or any SPE Entity or any of their respective shareholders, partners, members, subsidiaries or Affiliates, (c) a person or other entity controlling, controlled by or under common control with any such shareholder, officer, director, partner, member, employee, supplier or customer, or (d) a member of the immediate family of any such shareholder, officer, director, partner, member, employee, supplier or customer.

Initial Maturity Date . October 24, 2011, or such earlier date on which the Loan shall become due and payable pursuant to the terms hereof.

Insurance Proceeds . All insurance proceeds, damages and claims and the right thereto under any insurance policies relating to any portion of any Collateral, net of all reasonable and customary amounts actually expended to collect the same.

Intercreditor Agreement . See §7.22.

Interest Expense . For any period with respect to Guarantor and its Subsidiaries, without duplication, (a) interest (whether accrued or paid) actually payable (without duplication), excluding non-cash interest expense but including capitalized interest (less capitalized interest not paid to third parties) not funded under a construction loan, together with the interest portion of payments on Capitalized Leases, plus (b) Guarantor’s and its respective Subsidiaries’ Equity Percentage of Interest Expense of their Unconsolidated Affiliates for such period.

 

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Interest Payment Date . As to each Base Rate Loan, the first (1 ^st ) day of each calendar month during the term of such Base Rate Loan. As to each LIBOR Rate Loan, the last day of each Interest Period relating thereto; provided , however , that in the event that an Interest Period shall be for longer than three (3) months, interest shall also be payable with respect to such LIBOR Rate Loan on the ninetieth (90th) day following the commencement of the applicable Interest Period.

Interest Period . With respect to each LIBOR Rate Loan (a) initially, the period commencing on the Drawdown Date of such LIBOR Rate Loan and ending one, two, three or six months thereafter and (b) thereafter, each period commencing on the day following the last day of the next preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by Borrower in a Conversion/Continuation Request; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(i) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which case such Interest Period shall end on the next preceding LIBOR Business Day, as determined conclusively by the Agent in accordance with the then current bank practice in London;

(ii) if Borrower shall fail to give notice as provided in §4.1, Borrower shall be deemed to have requested a continuation of the affected LIBOR Rate Loan as a LIBOR Rate Loan on the last day of the then current Interest Period with respect thereto as provided in and subject to the terms of §4.1(c);

(iii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the applicable calendar month; and

(iv) no Interest Period relating to any LIBOR Rate Loan shall extend beyond the Maturity Date.

Investments . With respect to any Person, all shares of capital stock, evidences of Indebtedness and other securities issued by any other Person and owned by such Person, all loans, advances, or extensions of credit to, or contributions to the capital of, any other Person, all purchases of the securities or business or integral part of the business of any other Person and commitments and options to make such purchases, all interests in real property, and all other investments; provided , however , that the term “Investment” shall not include (i) equipment, inventory and other tangible personal property acquired in the ordinary course of business, or (ii) current trade and customer accounts receivable for services rendered in the ordinary course of business and payable in accordance with customary trade terms. In determining the aggregate amount of Investments outstanding at any particular time: (a) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (b) there shall be deducted in respect of each Investment any

 

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amount received as a return of capital; (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (a) may be deducted when paid; and (d) there shall not be deducted in respect of any Investment any decrease in the value thereof.

JPS . See §6.22.

JPS Lease . See §6.22.

KeyBank . As defined in the preamble hereto.

Land Assets . Land with respect to which the commencement of grading, construction of improvements (other than improvements that are not material and are temporary in nature) or infrastructure has not yet commenced and for which no such work is reasonably scheduled to commence within the following twelve (12) months.

Leased Rate . With respect to Real Estate at any time, the ratio, expressed as a percentage, of (a) the Net Rentable Area of such Real Estate actually leased by tenants that are not affiliated with Borrower or Guarantor and paying rent at rates generally prevailing at the time the applicable lease was entered into, pursuant to binding leases as to which no default has occurred and has continued unremedied for 30 or more days to (b) the aggregate Net Rentable Area of such Real Estate.

Leases . The collective reference to all leases, subleases, licenses and occupancy agreements (whether written or oral) affecting the Mortgaged Property or any part thereof now existing or hereafter executed and all amendments, modifications or supplements thereto approved in writing by Agent (but only if such approval is required pursuant to and given in accordance with §7.13).

Lender Hedge Provider . With respect to any Hedge Obligations, any counterparty thereto that, at the time the applicable hedge agreement was entered into, was a Lender or an Affiliate of a Lender.

Lenders . KeyBank, the other lending institutions which are party hereto and any other Person which becomes an assignee of any rights of a Lender pursuant to §18 (but not including any participant as described in §18), the initial Lenders being identified on Schedule 1.1 hereto.

LIBOR . For any LIBOR Rate Loan for any Interest Period, the average rate as shown in Reuters Screen LIBOR01 Page (or any successor service, or if such Person no longer reports such rate as determined by Agent, by another commercially available source providing such quotations approved by Agent) at which deposits in U.S. dollars are offered by first class banks in the London Interbank Market at approximately 11:00 a.m. (London time) on the day that is two (2) LIBOR Business Days prior to the first day of such Interest Period with a maturity approximately equal to such Interest Period and in an amount approximately equal to the amount to which such Interest Period relates, adjusted for reserves and taxes if required by future regulations. If such service or such other Person approved by Agent described above no longer

 

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reports such rate or Agent determines in good faith that the rate so reported no longer accurately reflects the rate available to Agent in the London Interbank Market, Loans shall accrue interest at the Base Rate plus the Applicable Margin for such Loan. For any period during which a Reserve Percentage shall apply, LIBOR with respect to LIBOR Rate Loans shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage.

LIBOR Business Day . Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London, England.

LIBOR Lending Office . Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.

LIBOR Rate Loans . Loans bearing interest by reference to LIBOR.

Lien . See §8.2.

Loan Documents . This Agreement, the Notes, the Guaranty, the Indemnity and Guaranty Agreement, the Security Documents and all other documents, instruments or agreements now or hereafter executed or delivered by or on behalf of Borrower or Guarantor in connection with the Loans.

Loan or Loans . An individual Loan or the aggregate Loans, as the case may be, made by the Lenders hereunder in the maximum principal amount contemplated by §2.2.

Lock-Out Period . The period from the date of this Agreement through and including October 24, 2009.

Management Agreements . Any agreement, whether written or oral, providing for the management of the Mortgaged Property.

Managing Member . Grizzly Equity LLC, a Delaware limited liability company.

Material Adverse Effect . A material adverse effect on (a) the business, properties, assets, condition (financial or otherwise) or results of operations of (i) Borrower or (ii) Guarantor and its Subsidiaries considered as a whole; (b) the ability of Borrower or Guarantor to perform any of its material obligations under the Loan Documents; or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of Agent or the Lenders thereunder.

Maturity Date . The Initial Maturity Date, provided, if Borrower timely satisfies the conditions to extend the term of the Loan pursuant to §2.12, then the Maturity Date shall be extended to the Extended Maturity Date, or such earlier date on which the Loan shall become due and payable pursuant to the terms hereof.

Moody’s . Moody’s Investor Service, Inc.

Mortgaged Property . That certain Data Center Property owned by Borrower and located at 44480 Hastings Drive, Ashburn, Virginia.

 

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Mortgage . The Deed of Trust from Borrower to a trustee named therein acting on behalf of the Agent for the benefit of the Lenders, as the same may be modified or amended, pursuant to which Borrower has conveyed or granted a mortgage lien upon or a conveyance in fee simple (or of a leasehold, if applicable) of the Mortgaged Property as security for the Obligations.

Multiemployer Plan . Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by Guarantor or any ERISA Affiliate.

Net Income (or Loss) . With respect to any Person (or any asset of any Person) for any period, the net income (or loss) of such Person (or attributable to such asset), determined in accordance with GAAP.

Net Offering Proceeds . The gross cash proceeds received by Guarantor or any of its Subsidiaries or REIT as a result of an Equity Offering less the customary and reasonable costs, expenses and discounts paid by Guarantor or such Subsidiary or REIT in connection therewith.

Net Operating Income . For a given period, an amount equal to the sum of (a) the rents, common area reimbursements and other income for the Mortgaged Property for such period received in the ordinary course of business from tenants in occupancy (excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) minus (b) all expenses paid or accrued and related to the ownership, operation or maintenance of the Mortgaged Property for such period, including, but not limited to, taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses (including an appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in connection with the Mortgaged Property, but specifically excluding general overhead expenses of Guarantor and its Subsidiaries and any property management fees), minus (c) the greater of (i) actual third party property management expenses of the Mortgaged Property or (ii) an amount equal to three percent (3.0%) of the gross revenues from the Mortgaged Property, minus (d) all rents, common area reimbursements and other income for the Mortgaged Property received from tenants in default of obligations under their lease or with respect to leases as to which the tenant or any guarantor thereunder is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding. Net Operating Income shall be adjusted to remove the impact of any impact of straight lining of rents pursuant to FAS 141, as issued by the Finance Accounting Standards Board in June of 2001.

Net Rentable Area . With respect to any Real Estate, the megawatts of critical load power available for use by tenants determined in accordance with the Rent Roll for such Real Estate, the manner of such determination to be reasonably consistent for all Real Estate of the same type unless otherwise approved by the Agent.

Note . A promissory note made by Borrower in favor of a Lender in the principal face amount equal to such Lender’s Commitment, in substantially the form of Exhibit A hereto.

 

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Notice . See §19.

Obligations . All indebtedness, obligations and liabilities of Borrower to any of the Lenders or the Agent, individually or collectively, under this Agreement or any of the other Loan Documents or in respect of any of the Loans or the Notes, or other instruments at any time evidencing any of the foregoing, whether existing on the date of this Agreement or arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise.

OFAC . Office of Foreign Asset Control of the Department of the Treasury of the United States of America.

Off-Balance Sheet Obligations . Liabilities and obligations of Guarantor or any of its Subsidiaries or any other Person in respect of “off-balance sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which REIT would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of REIT’s report on Form 10-Q or Form 10-K (or their equivalents) which REIT is required to file with the SEC or would be required to file if it were subject to the jurisdiction of the SEC (or any Governmental Authority substituted therefore). As used in this definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).

Outstanding . With respect to the Loans, the aggregate unpaid principal thereof as of any date of determination.

Patriot Act . The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.

PBGC . The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.

Permitted Liens . Liens, security interests and other encumbrances permitted by §8.2.

Permitted Mezzanine Debt . See §7.22.

Person . Any individual, corporation, limited liability company, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.

Plan Assets . Assets of any employee benefit plan subject to Part 4, Subtitle B, Title I of ERISA.

Preferred Distributions. For any period and without duplication, all Distributions paid, declared but not yet paid or otherwise due and payable during such period on Preferred

 

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Securities issued by Guarantor or any of its Subsidiaries or REIT. Preferred Distributions shall not include dividends or distributions (a) paid or payable solely in Equity Interests of identical class payable to holders of such class of Equity Interests; or (b) paid or payable to Guarantor or any of its Subsidiaries.

Preferred Securities . With respect to any Person, Equity Interests in such Person, which are entitled to preference or priority over any other Equity Interest in such Person in respect of the payment of dividends or distribution of assets upon liquidation, or both.

Real Estate . All real property at any time owned or leased (as lessee or sublessee) by Guarantor or any of its Subsidiaries, including, without limitation, the Mortgaged Property.

Record . The grid attached to any Note, or the continuation of such grid, or any other similar record, including computer records, maintained by the Agent with respect to any Loan referred to in such Note.

Register . See §18.2.

REIT . DuPont Fabros Technology, Inc., a Maryland corporation.

REIT Status . With respect to a Person, its status as a real estate investment trust as defined in §856(a) of the Code.

Release . See §6.20(c)(iii).

Rent Roll . A report prepared by Borrower showing for the Mortgaged Property, its occupancy, lease expiration dates, lease rent and other information in substantially the form presented to Agent prior to the date hereof or in such other form as may be reasonably acceptable to the Agent.

Required Lenders . As of any date, the Lender or Lenders whose aggregate Commitment Percentage is equal to or greater than sixty-six and  ⁷ / 10 percent (66.7%) of the Total Commitment; provided that in determining said percentage at any given time, all then existing Delinquent Lenders will be disregarded and excluded and the Commitment Percentages of the Lenders shall be redetermined for voting purposes only to exclude the Commitment Percentages of such Delinquent Lenders.

Reserve Percentage . For any Interest Period, that percentage which is specified three (3) Business Days before the first day of such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) or any other governmental or quasi-governmental authority with jurisdiction over Agent or any Lender for determining the maximum reserve requirement (including, but not limited to, any marginal reserve requirement) for Agent or any Lender with respect to liabilities constituting or including (among other liabilities) Eurocurrency liabilities in an amount equal to that portion of the Loan affected by such Interest Period and with a maturity equal to such Interest Period.

Revolving Credit Agreement . The Credit Agreement dated August 7, 2007, by and among Safari Ventures LLC, as parent borrower, Rhino Equity LLC, Quill Equity LLC,

 

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Lemur Properties LLC, Porpoise Ventures LLC, each a subsidiary borrower, KeyBank, individually and as Agent, and the other banks from time to time a party thereto, as affected by the Consent and Assumption Agreement and as amended, supplemented or otherwise modified from time to time.

Revolving Loan Documents. The Revolving Credit Agreement and all other documents, instruments or agreements now or hereafter executed or delivered by or on behalf of the borrowers thereunder or in connection therewith.

SEC . The federal Securities and Exchange Commission.

Security Documents . Collectively, the Mortgage, the Assignment of Leases and Rents, the Indemnity Agreement, UCC-1 financing statements and any further collateral assignments to the Agent for the benefit of the Lenders.

Single Purpose Entity . As defined in §7.21.

S&P . Standard & Poor’s Ratings Group.

SPE Entity . Any Person that is an owner of an equity interest in Borrower which Agent reasonably requires be a Single Purpose Entity. With respect to Borrower, there are currently no SPE Entities and Agent shall not require the Managing Member to be a SPE Entity.

Stabilized Property . A completed project that has achieved a Leased Rate of at least eighty-five percent (85%) for a period of not less than thirty (30) consecutive days, provided that a Development Property on which all improvements related to the development of such Real Estate have been substantially completed (excluding tenants improvements) for at least twenty-four (24) months shall constitute a Stabilized Property. Once a project becomes a Stabilized Property under this Agreement, it shall remain a Stabilized Property.

State . A state of the United States of America and the District of Columbia.

Subordination, Attornment and Non-Disturbance Agreement . An agreement among the Agent, Borrower and a tenant under a Lease pursuant to which such tenant agrees to subordinate its rights under the Lease to the lien or security title of the Mortgage and agrees to recognize the Agent or its successor in interest as landlord under the Lease in the event of a foreclosure under the Mortgage, and the Agent agrees to not disturb the possession of such tenant, such agreement to be in form and substance reasonably satisfactory to Agent.

Subsidiary . For any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.

 

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Taking . The taking or appropriation (including by deed in lieu of condemnation) of the Mortgaged Property, or any part thereof or interest therein, whether permanently or temporarily, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation proceeding, or in any other manner or any damage or injury or diminution in value through condemnation, inverse condemnation or other exercise of the power of eminent domain.

Titled Agents . The Arranger, and any co-syndication agents or documentation agent.

Total Commitment . The sum of the Commitments of the Lenders, as in effect from time to time. As of the date of this Agreement, the Total Commitment is One Hundred Million and No/100 Dollars ($100,000,000.00). The Total Commitment may increase in accordance with §2.11.

Type . As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.

Unconsolidated Affiliate . In respect of any Person, any other Person in whom such Person holds an Investment, (a) which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person, or (b) which is not a Subsidiary of such first Person.

Unrestricted Cash and Cash Equivalents . As of any date of determination, the sum of (a) the aggregate amount of Unrestricted cash and (b) the aggregate amount of Unrestricted Cash Equivalents (valued at fair market value). As used in this definition, “Unrestricted” means the specified asset is not subject to any escrow, reserves or Liens or claims of any kind in favor of any Person.

Yahoo! Lease . That certain Deed of Lease by and between Borrower and Yahoo! Inc. (“Yahoo!”) dated as of June 14, 2006, as amended or modified by that certain First Amendment to Deed of Lease dated as of November 29, 2006 between Borrower and Yahoo!, that certain Second Amendment to Deed of Lease dated as of November 14, 2007 between Borrower and Yahoo!, that certain Third Amendment to Deed of Lease dated as of October 13, 2008 between Borrower and Yahoo!, that certain Notice Letter dated as of May 23, 2007 from Borrower to Yahoo!, that certain Letter Agreement dated as of October 5, 2007 from Borrower to Yahoo!, that certain Notice Letter dated as of November 19, 2007 from Fox Properties LLC to Yahoo!, that certain Notice Letter dated as of April 30, 2008 from Yahoo! to Borrower, that certain Notice Letter dated as of July 23, 2008 from Yahoo! to Borrower and that certain Declaration Affirming Lease Commencement Date and Phase I & II Occupancy Date dated as of February 25, 2008, and as further amended or modified in accordance with the terms of this Agreement.

YellowPages Lease . That certain Deed of Lease by and between Borrower and YellowPages.com LLC dated as of April 2008, as amended or modified by that certain Notice of Landlord’s Work Substantially Completed and the Lease Commencement Date dated as of July

 

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25, 2008 from Borrower to YellowPages.com LLC and the YellowPages Letter Agreement, and as further amended or modified in accordance with the terms of this Agreement.

YellowPages Letter Agreement . That certain Letter Agreement dated as of July 31, 2008 between YellowPages.com LLC, Borrower and Fox Properties LLC, as owner of ACC5 Phase I.

§1.2 Rules of Interpretation .

(a) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Agreement.

(b) The singular includes the plural and the plural includes the singular.

(c) A reference to any law includes any amendment or modification of such law.

(d) A reference to any Person includes its permitted successors and permitted assigns.

(e) Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to which they refer.

(f) The words “include”, “includes” and “including” are not limiting.

(g) The words “approval” and “approved”, as the context requires, means an approval in writing given to the party seeking approval after full and fair disclosure to the party giving approval of all material facts necessary in order to determine whether approval should be granted.

(h) All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the Commonwealth of Virginia, have the meanings assigned to them therein.

(i) Reference to a particular “§”, refers to that section of this Agreement unless otherwise indicated.

(j) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement.

(k) In the event of any change in generally accepted accounting principles after the date hereof or any other change in accounting procedures pursuant to §7.3 which would affect the computation of any financial covenant, ratio or other requirement set forth in any Loan Document, then upon the request of Borrower or Agent, Borrower, Guarantor, the Agent and the Lenders shall negotiate promptly, diligently and in good faith in order to amend the provisions of

 

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the Loan Documents such that such financial covenant, ratio or other requirement shall continue to provide substantially the same financial tests or restrictions of Borrower and Guarantor as in effect prior to such accounting change, as determined by the Required Lenders in their good faith judgment. Until such time as such amendment shall have been executed and delivered by Borrower and Guarantor, the Agent and the Required Lenders, such financial covenants, ratio and other requirements, and all financial statements and other documents required to be delivered under the Loan Documents, shall be calculated and reported as if such change in accounting principles or procedures had not occurred.

§2. THE CREDIT FACILITY.

§2.1 [Intentionally Omitted.]

§2.2 Commitment to Lend . Subject to the terms and conditions set forth in this Agreement, each of the Lenders severally agrees to lend to Borrower on the Closing Date such Lender’s Commitment. The principal amount of the Loan shall not exceed the lesser of (a) One Hundred Million and No/100 Dollars ($100,000,000.00), (b) forty percent (40%) of the Appraised Value of the Mortgaged Property as set out in the Appraisal, or (c) such amount as will result in a “Debt Service Coverage Ratio” of at least 1.75 to 1.00 (based, for purposes of this calculation, on the “stabilized” Net Operating Income of the Mortgaged Property projected in the Appraisal approved by the Lenders). Notwithstanding the foregoing, the limitation as to the principal amount of the Loan set forth in the preceding sentence shall be subject at all times to §2.11.

§2.3 [Intentionally Omitted.]

§2.4 [Intentionally Omitted.]

§2.5 [Intentionally Omitted.]

§2.6 Interest on Loans .

(a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the date on which such Base Rate Loan is repaid or is converted to a LIBOR Rate Loan at a rate per annum equal to the greater of (i) the sum of the Applicable Margin for Base Rate Loans plus the Base Rate and (ii) the sum LIBOR determined for a thirty (30) day Interest Period plus the Applicable Margin for LIBOR Rate Loans.

(b) Each LIBOR Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of each Interest Period with respect thereto at the rate per annum equal to the sum of LIBOR determined for such Interest Period plus the Applicable Margin for LIBOR Rate Loans.

(c) Borrower promises to pay interest on each Loan in arrears on each Interest Payment Date with respect thereto.

(d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans of the other Type as provided in §4.1.

 

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§2.7 [Intentionally Omitted.]

§2.8 Funds for Loans .

(a) Not later than 1:00 p.m. (Cleveland time) on any proposed Drawdown Date of any Loans, each of the Lenders will make available to the Agent, at the Agent’s Head Office, in immediately available funds, the amount of such Lender’s Commitment Percentage of the amount of the requested Loans which may be disbursed pursuant to §2.2 or §2.11, as applicable. Upon receipt of the documents required by §10 and the satisfaction of the other conditions set forth therein, to the extent applicable, the Agent will make available to Borrower the aggregate amount of such Loans made available to the Agent by the Lenders by crediting such amount to the account of Borrower maintained at the Agent’s Head Office. The failure or refusal of any Lender to make available to the Agent at the aforesaid time and place on any Drawdown Date the amount of its Commitment Percentage of the requested Loans shall not relieve any other Lender from its several obligation hereunder to make available to the Agent the amount of such other Lender’s Commitment Percentage of any requested Loans. In the event of any such failure or refusal, the Lenders not so failing or refusing shall be entitled to a priority secured position as against the Lender or Lenders so failing or refusing to make available to Borrower the amount of its or their Commitment Percentage for such Loans as provided in §12.5.

(b) Unless the Agent shall have been notified by any Lender prior to the applicable Drawdown Date that such Lender will not make available to Agent such Lender’s Commitment Percentage of a proposed Loan, Agent may in its discretion assume that such Lender has made such Loan available to Agent in accordance with the provisions of this Agreement and the Agent may, if it chooses, in reliance upon such assumption make such Loan available to Borrower, and such Lender shall be liable to the Agent for the amount of such advance. If such Lender does not pay such corresponding amount upon the Agent’s demand therefor, the Agent will promptly notify Borrower, and Borrower shall promptly pay such corresponding amount to the Agent. The Agent shall also be entitled to recover from the Lender or Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to Borrower to the date such corresponding amount is recovered by the Agent at a per annum rate equal to (i) from Borrower at the applicable rate for such Loan or (ii) from a Lender at the Federal Funds Effective Rate.

§2.9 Use of Proceeds . Borrower will use the proceeds of the Loans solely to (a) pay closing costs in connection with this Agreement; (b) fund future development projects and property and equipment acquisitions of Guarantor and its Subsidiaries; (c) to make Distributions permitted by this Agreement; and (d) for general working capital purposes.

§2.10 [Intentionally Omitted.]

§2.11 Increase in Total Commitment .

(a) Provided that no Default or Event of Default has occurred and is continuing, subject to the terms and conditions set forth in this §2.11, Borrower shall have the

 

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option (to be exercised no more than five times) at any time and from time to time before the date that is eighteen (18) months following the Closing Date to request an increase in the Total Commitment to not more than $250,000,000.00 (less the sum of (i) any amortization payments required to have been made by the Commitment Increase Date and (ii) the amount, if any, by which any Permitted Mezzanine Debt exceeds $90,000,000.00) by giving written notice to the Agent (an “Increase Notice”; and the amount of such requested increase is the “Commitment Increase”), provided that any such increase shall be an amount equal to at least $10,000,000.00 and increments of $1,000,000.00 in excess thereof. Upon receipt of any Increase Notice, the Agent shall consult with Arranger and shall notify Borrower of the amount of facility fees to be paid to any Lenders who provide an additional Commitment in connection with such increase in the Total Commitment (which shall be in addition to the fees to be paid to Agent or Arranger pursuant to the Agreement Regarding Fees). If Borrower agrees to pay the facility fees so determined, then the Agent shall send a notice to all Lenders (the “Additional Commitment Request Notice”) informing them of Borrower’s request to increase the Total Commitment and of the facility fees to be paid with respect thereto. Each Lender who desires to provide an additional Commitment upon such terms shall provide Agent with a written commitment letter specifying the amount of the additional Commitment by which it is willing to provide prior to such deadline as may be specified in the Additional Commitment Request Notice. If the requested increase is oversubscribed then the Agent and the Arranger shall allocate the Commitment Increase among the Lenders who provide such commitment letters on such basis as the Agent and the Arranger shall determine in their sole discretion. If the additional Commitments so provided are not sufficient to provide the full amount of the Commitment Increase requested by Borrower, then the Agent, Arranger or Borrower may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Agent, Arranger and Borrower) to become a Lender and provide an additional Commitment. The Agent shall provide all Lenders with a notice setting forth the amount, if any, of the additional Commitment to be provided by each Lender and the revised Commitment Percentages which shall be applicable after the effective date of the Commitment Increase specified therein (the “Commitment Increase Date”). In no event shall any Lender be obligated to provide an additional Commitment.

(b) Upon the effective date of each increase in the Total Commitment pursuant to this §2.11 the Agent may unilaterally revise Schedule 1.1 and Borrower shall execute and deliver to the Agent new Notes for each Lender whose Commitment has changed so that the principal amount of such Lender’s Note shall equal its Commitment. The Agent shall deliver such replacement Notes to the respective Lenders in exchange for the Notes replaced thereby which shall be surrendered by such Lenders. Such new Notes shall provide that they are replacements for the surrendered Notes and that they do not constitute a novation, shall be dated as of the Commitment Increase Date and shall otherwise be in substantially the form of the replaced Notes. Within five (5) days of issuance of any new Notes pursuant to this §2.11(c), Borrower shall deliver an opinion of counsel, addressed to the Lenders and the Agent, relating to the due authorization, execution and delivery of such new Notes and the enforceability thereof, in form and substance substantially similar to the opinion delivered in connection with the first disbursement under this Agreement. The surrendered Notes shall be canceled and returned to Borrower.

 

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(d) Notwithstanding anything to the contrary contained herein, the obligation of the Agent and the Lenders to increase the Total Commitment pursuant to this §2.11 shall be conditioned upon satisfaction of the following conditions precedent which must be satisfied prior to the effectiveness of any increase of the Total Commitment:

(i) No Default . On the date any Increase Notice is given and on the date such increase becomes effective, both immediately before and after the Total Commitment is increased, there shall exist no Default or Event of Default; and

(ii) Representations True . The representations and warranties made by the Borrower and Guarantor in the Loan Documents or otherwise made by or on behalf of the Borrowers or Guarantor in connection therewith or after the date thereof shall have been true and correct in all material respects when made and shall also be true and correct in all material respects on the date of such Increase Notice and on the date the Total Commitment is increased, both immediately before and after the Total Commitment is increased; and

(iii) Additional Documents and Expenses . Borrower shall execute and/or deliver (or cause to be delivered) to Agent and the Lenders such additional documents (including, without limitation, amendments to the Security Documents), reinsurance agreements, instruments, certifications and opinions as the Agent may reasonably require in its sole and absolute discretion, including, without limitation, a Compliance Certificate, demonstrating compliance with all covenants, representations and warranties set forth in the Loan Documents after giving effect to the increase, and Borrower shall pay the cost of any mortgagee’s title insurance policy or any endorsement or update thereto or any updated UCC searches, all recording costs and fees, and any and all intangible taxes or other documentary or mortgage taxes, assessments or charges or any similar fees, taxes or expenses which are demanded in connection with such increase;

(iv) Loan-To-Value and Debt Service Coverage Tests . The principal amount of the Loan immediately after giving effect to the Commitment Increase under this §2.11 shall not exceed either (1) forty percent (40%) of the Appraised Value (as determined by the Appraisal of the Mortgaged Property delivered to Lender on the Closing Date) of the Mortgaged Property as set out in the Appraisal or (2) such amount as will result in a “Debt Service Coverage Ratio” of at least 1.75 to 1.00 (based, for purposes of this calculation, on the “stabilized” Net Operating Income of the Mortgaged Property projected in the Appraisal approved by the Lenders).

(v) Other . Borrower shall satisfy such other conditions to such increase as Agent may require in its reasonable discretion.

§2.12 Extension of Maturity Date . Borrower shall have the one-time right and option (the “Extension Option”) to extend the Initial Maturity Date to October 24, 2012 (“Extended Maturity Date”), upon satisfaction of the following conditions precedent, which must be satisfied prior to the effectiveness of any such extension:

(a) Extension Request . Borrower shall deliver written notice of such request (the “Extension Request”) to the Agent not earlier than the date which is sixty (60) days and not

 

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later than the date which is thirty (30) days prior to the Initial Maturity Date. Any such Extension Request shall be irrevocable and binding on Borrower.

(b) Payment of Extension Fee . Borrower shall pay to the Agent for the pro rata accounts of the Lenders in accordance with their respective Commitments an extension fee in an amount equal to fifty (50) basis points on the Outstanding amount of the Loans on the Initial Maturity Date, which fee shall, when paid, be fully earned and non-refundable under any circumstances.

(c) No Default . On the date the applicable Extension Request is given and on the Initial Maturity Date there shall exist no Default or Event of Default.

(d) Representations and Warranties . The representations and warranties made by Borrower and Guarantor in the Loan Documents or otherwise made by or on behalf of Borrower or Guarantor in connection therewith or after the date thereof shall have been true and correct in all material respects when made and shall also be true and correct in all material respects on the date the Extension Request is given and on the Initial Maturity Date.

(e) Updated Appraisals . Agent at its option shall have obtained at Borrower’s expense a new Appraisal of the Mortgaged Property or updates to any existing Appraisal of the Mortgaged Property and determined the current Appraised Value of the Mortgaged Property.

(f) Debt Service Coverage Ratio . The Debt Service Coverage Ratio is not less than 2.00 to 1.00 and Borrower shall have delivered to the Agent a Compliance Certificate so certifying).

(g) Loan To Value . The ratio (expressed as a percentage) of (i) the principal amount of the Loans that are Outstanding as of the Initial Maturity Date to (ii) the Appraised Value (as determined by the Appraisal of the Mortgaged Property required by §2.12(e)) of the Mortgaged Property shall not exceed forty percent (40%).

(h) Extension of Permitted Mezzanine Debt . The maturity date of any Permitted Mezzanine Debt shall be extended (if the terms of such Permitted Mezzanine Date do not then provide for a maturity date beyond the Maturity Date, as extended) to a date not earlier than the Maturity Date (as extended to the Extended Maturity Date).

§3. REPAYMENT OF THE LOANS.

§3.1 Stated Maturity . Borrower promises to pay on the Maturity Date and there shall become absolutely due and payable on the Maturity Date all of the Loans outstanding on such date, together with any and all accrued and unpaid interest thereon.

§3.2 Mandatory Prepayments . In the event there shall have occurred a casualty with respect to the Mortgaged Property and Borrower is required to repay the Loans pursuant to §7.7 or a Taking and Borrower is required to repay the Loans pursuant to the Mortgage or §7.7, Borrower shall prepay the Loans concurrently with the date of receipt by Borrower or the Agent of any Insurance Proceeds or Condemnation Proceeds in respect of such casualty or Taking, as

 

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applicable, or as soon thereafter as is reasonably practicable, in the amount required pursuant to the relevant provisions of §7.7 or the Mortgage.

§3.3 Optional Prepayments .

(a) Borrower may not voluntarily prepay the Notes in whole or in part at any time prior to the expiration of the Lock-Out Period, nor shall the Lenders be obligated to accept any such prepayment tendered by Borrower. After the expiration of the Lock-Out Period, Borrower shall have the right, at its election, to prepay the outstanding amount of the Loans, as a whole or in part, at any time without penalty or premium. In connection with any prepayment of the Loan permitted hereunder (but not including any payments as a result of the application of casualty and condemnation proceeds so long as no Event of Default Exists), Borrower shall pay Agent for the account of the Lenders any sums that may be due under §4.8.

(b) Borrower shall give the Agent, no later than 10:00 a.m. (Cleveland time) at least three (3) days prior written notice of any prepayment pursuant to this §3.3, in each case specifying the proposed date of prepayment of the Loans and the principal amount to be prepaid (provided that any such notice may be revoked or modified upon one (1) day’s prior notice to the Agent).

§3.4 Partial Prepayments . Each partial prepayment of the Loans under §3.3 shall be in a minimum amount of $1,000,000.00 or an integral multiple of $100,000.00 in excess thereof, shall be accompanied by the payment of accrued interest on the principal prepaid to the date of payment and shall be applied first to the principal of Base Rate Loans, and then to the principal of LIBOR Rate Loans.

§3.5 Additional Principal Payments . Commencing April 1, 2009 and on the first (1 ^st ) day of each calendar quarter thereafter, Borrower shall pay to Agent for the account of the Lenders as a prepayment of principal of the Loans an amount equal to $500,000.00, together with any amounts due pursuant to §4.8.

§3.6 Effect of Prepayments . Any portion of the Loans that is prepaid may not be reborrowed.

§4. CERTAIN GENERAL PROVISIONS.

§4.1 Conversion Options .

(a) Borrower may elect from time to time to convert any of its outstanding Loans to a Loan of another Type and such Loans shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan, Borrower shall give the Agent at least one (1) Business Day’s prior written notice of such election, and such conversion shall only be made on the last day of the Interest Period with respect to such LIBOR Rate Loan; (ii) with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, Borrower shall give the Agent at least three (3) LIBOR Business Days’ prior written notice of such election and the Interest Period requested for such Loan, the principal amount of the Loan so converted shall be in a minimum aggregate amount of $500,000.00 or an integral multiple of $250,000.00 in excess

 

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thereof and, after giving effect to the making of such Loan, unless otherwise agreed to by all Lenders there shall be no more than six (6) LIBOR Rate Interest Periods relating to portions of the Loan in effect at any one time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing. All or any part of the outstanding Loans of any Type may be converted as provided herein, provided that no partial conversion shall result in a Base Rate Loan in a principal amount of less than $500,000.00 or an integral multiple of $100,000.00 or a LIBOR Rate Loan in a principal amount of less than $500,000.00 or an integral multiple of $250,000.00. On the date on which such conversion is being made, each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case may be. Each Conversion/Continuation Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by Borrower.

(b) Any LIBOR Rate Loan may be continued as such Type upon the expiration of an Interest Period with respect thereto by compliance by Borrower with the terms of §4.1; provided that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing, but shall be automatically converted to a Base Rate Loan on the last day of the Interest Period relating thereto ending during the continuance of any Default or Event of Default.

(c) In the event that Borrower does not notify the Agent of its election hereunder with respect to any LIBOR Rate Loan, such Loan shall be automatically continued at the end of the applicable Interest Period as a LIBOR Rate Loan for an Interest Period of one month unless such Interest Period shall be greater than the time remaining until the Maturity Date, in which case such Loan shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period.

§4.2 Fees . Borrower agrees to pay to KeyBank and Agent for their own account certain fees for services rendered or to be rendered in connection with the Loans as provided pursuant to a fee letter dated August 4, 2008 between Borrower, KeyBank and Arranger, as amended by a letter dated October 23, 2008 between Borrower, KeyBank and Arranger (the “Agreement Regarding Fees”). Any annual agency fee payable under the Agreement Regarding Fees shall be paid annually in advance and all such fees shall be fully earned when paid and nonrefundable under any circumstances.

§4.3 [ Intentionally Omitted .]

§4.4 Funds for Payments .

(a) All payments of principal, interest, closing fees and any other amounts due hereunder or under any of the other Loan Documents shall be made to the Agent, for the respective accounts of the Lenders and the Agent, as the case may be, at the Agent’s Head Office, not later than 2:00 p.m. (Cleveland time) on the day when due, in each case in lawful money of the United States in immediately available funds. The Agent is hereby authorized to charge the accounts of Borrower with KeyBank, on the dates when the amount thereof shall become due and payable, with the amounts of the principal of and interest on the Loans and all fees, charges, expenses and other amounts owing to the Agent and/or the Lenders under the Loan

 

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Documents. Subject to the foregoing, all payments made to Agent on behalf of the Lenders, and actually received by Agent, shall be deemed received by the Lenders on the date actually received by Agent.

(b) All payments by Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes (other than income or franchise taxes imposed on any Lender), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless Borrower is compelled by law to make such deduction or withholding. If any such obligation is imposed upon Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, Borrower will pay to the Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Agent to receive the same net amount which the Lenders or the Agent would have received on such due date had no such obligation been imposed upon Borrower. Borrower will deliver promptly to the Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by Borrower hereunder or under any other Loan Document.

(c) Each Lender organized under the laws of a jurisdiction outside the United States, if requested in writing by Borrower (but only so long as such Lender remains lawfully able to do so), shall provide Borrower with such duly executed form(s) or statement(s) which may, from time to time, be prescribed by law and, which, pursuant to applicable provisions of (i) an income tax treaty between the United States and the country of residence of such Lender, (ii) the Code, or (iii) any applicable rules or regulations in effect under (i) or (ii) above, indicates the withholding status of such Lender; provided that nothing herein (including without limitation the failure or inability to provide such form or statement) shall relieve Borrower of its obligations under §4.4(b). In the event that Borrower shall have delivered the certificates or vouchers described above for any payments made by Borrower and such Lender receives a refund of any taxes paid by Borrower pursuant to §4.4(b), such Lender will pay to Borrower the amount of such refund promptly upon receipt thereof; provided that if at any time thereafter such Lender is required to return such refund, Borrower shall promptly repay to such Lender the amount of such refund.

§4.5 Computations . All computations of interest on the Loans and of other fees to the extent applicable shall be based on a 360-day year (or a 365 day year in the case of Base Rate Loans) and paid for the actual number of days elapsed. Except as otherwise provided in the definition of the term “Interest Period” with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension. The Outstanding Loans as reflected on the records of the Agent from time to time shall be considered prima facie evidence of such amount absent manifest error.

 

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§4.6 Suspension of LIBOR Rate Loans . In the event that, prior to the commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent shall determine that adequate and reasonable methods do not exist for ascertaining LIBOR for such Interest Period, or the Agent shall reasonably determine that LIBOR will not accurately and fairly reflect the cost of the Lenders making or maintaining LIBOR Rate Loans for such Interest Period, the Agent shall forthwith give notice of such determination (which shall be conclusive and binding on Borrower and the Lenders absent manifest error) to Borrower and the Lenders. In such event (a) any Loan request with respect to a LIBOR Rate Loan shall be automatically withdrawn and shall be deemed a request for a Base Rate Loan and (b) each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period applicable thereto, become a Base Rate Loan, and the obligations of the Lenders to make LIBOR Rate Loans shall be suspended until the Agent determines that the circumstances giving rise to such suspension no longer exist, whereupon the Agent shall so notify Borrower and the Lenders.

§4.7 Illegality . Notwithstanding any other provisions herein, if any present or future law, regulation, treaty or directive or the interpretation or application thereof shall make it unlawful, or any central bank or other governmental authority having jurisdiction over a Lender or its LIBOR Lending Office shall assert that it is unlawful, for any Lender to make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice of such circumstances to the Agent and Borrower and thereupon (a) the commitment of the Lenders to make LIBOR Rate Loans shall forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be converted automatically to Base Rate Loans on the last day of each Interest Period applicable to such LIBOR Rate Loans or within such earlier period as may be required by law. Notwithstanding the foregoing, before giving such notice, the applicable Lender shall designate a different lending office if such designation will void the need for giving such notice and will not, in the judgment of such Lender, be otherwise materially disadvantageous to such Lender or increase any costs payable by Borrower hereunder.

§4.8 Additional Interest . If any LIBOR Rate Loan or any portion thereof is repaid or is converted to a Base Rate Loan for any reason on a date which is prior to the last day of the Interest Period applicable to such LIBOR Rate Loan, or if repayment of the Loans has been accelerated as provided in §12.1, Borrower will pay to the Agent upon demand for the account of the applicable Lenders in accordance with their respective Commitment Percentages, in addition to any amounts of interest otherwise payable hereunder, the Breakage Costs. Borrower understands, agrees and acknowledges the following: (i) no Lender has any obligation to purchase, sell and/or match funds in connection with the use of LIBOR as a basis for calculating the rate of interest on a LIBOR Rate Loan; (ii) LIBOR is used merely as a reference in determining such rate; and (iii) Borrower has accepted LIBOR as a reasonable and fair basis for calculating such rate and any Breakage Costs. Borrower further agrees to pay the Breakage Costs, if any, whether or not a Lender elects to purchase, sell and/or match funds.

§4.9 Additional Costs, Etc . Notwithstanding anything herein to the contrary, if any present or future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time

 

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to time hereafter made upon or otherwise issued to any Lender or the Agent by any central bank or other fiscal, monetary or other authority (whether or not having the force of law), shall:

(a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s Commitment, or the Loans (other than taxes based upon or measured by the gross receipts, income or profits of such Lender or the Agent or its franchise tax), or

(b) materially change the basis of taxation (except for changes in taxes on gross receipts, income or profits or its franchise tax) of payments to any Lender of the principal of or the interest on any Loans or any other amounts payable to any Lender under this Agreement or the other Loan Documents, or

(c) impose or increase or render applicable any special deposit, reserve, assessment, liquidity, c