Exhibit 10.5
FIRST AMENDMENT TO CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”) made as of the
10th day of February, 2009, by and among GRIZZLY VENTURES
LLC , a Delaware limited liability company (“
Borrower ”), DUPONT FABROS TECHNOLOGY, L.P. , a
Maryland limited partnership (“ Guarantor ”),
TARANTULA VENTURES LLC, a Delaware limited liability company
(“ Additional Guarantor ”), KEYBANK NATIONAL
ASSOCIATION , a national banking association (“
KeyBank ”), THE OTHER LENDERS WHICH ARE SIGNATORIES
HERETO (KeyBank and the other lenders which are signatories
hereto, collectively, the “ Lenders ”), and
KEYBANK NATIONAL ASSOCIATION , a national banking
association, as Administrative Agent for the Lenders (the “
Agent ”).
W I T N E S S E T
H:
WHEREAS, Borrower, Guarantor, Agent, and the Lenders
entered into that certain Credit Agreement dated as of
October 24, 2008 (as amended herein and as the same may be
further varied, extended, supplemented, consolidated, replaced,
increased, renewed, modified or amended from time to time, the
“ Credit Agreement ”);
WHEREAS, pursuant to the Credit Agreement, Lenders made a
loan to Borrower in the original principal amount of
$100,000,000.00, increasable up to $250,000,000.00 in accordance
with the terms of the Credit Agreement (the “ Loan
”), which Loan is evidenced by, among other things, the Notes
made by Borrower to the order of Lenders and delivered from time to
time under the Credit Agreement (together with all amendments,
modifications, consolidations, increases, supplements and
extensions thereof, collectively, the “ Note
”);
WHEREAS, Borrower desires to increase the “Total
Commitment” under the Credit Agreement;
WHEREAS , in order to induce additional lenders to join
in funding the increase of the Total Commitment, the Agent, the
Lenders, the Borrower, Guarantor and Additional Guarantor desire to
enter into this Amendment to reflect the increase of the Total
Commitment under the Credit Agreement and the delivery by
Additional Guarantor of, among other documents, a Guaranty and a
mortgage on the additional collateral to further secure the
Loan.
NOW, THEREFORE
, for and in consideration of the
sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant and agree as
follows:
1. Definitions . All the
terms used herein which are not otherwise defined herein shall have
the meanings set forth in the Credit Agreement, as amended
herein.
2. Modification of the Credit
Agreement . Borrower, Guarantor, the Lenders and Agent do
hereby modify and amend the Credit Agreement as follows:
(a) By inserting the following
definitions in Section 1.1 of the Credit Agreement:
“ Additional Guarantor
. Tarantula Ventures LLC, a Delaware limited liability
company.
Additional Mortgaged
Property . That certain
Data Center Facility, CH1 owned by Additional Guarantor located at
2200 S. Busse Road, Elk Grove Village, Illinois.
Additional Property
Building . The data
center located on the Additional Mortgaged Property known as CH1 to
consist when fully completed of approximately 485,000 gross square
feet and 211,140 raised square feet with a critical load of 36.4
megawatts (the first phase will consist of approximately 121,223
raised square feet with a critical load of 18.2 megawatts), and all
of the buildings, structures and improvements now or hereafter
located thereon.
Additional Property
Leases . The collective
reference to all leases, subleases, licenses and occupancy
agreements (whether written or oral) affecting the Additional
Mortgaged Property or any part thereof now existing or hereafter
executed and all amendments, modifications or supplements
thereto.
CH1 Assignment of Leases and
Rents . The Assignment of
Leases and Rents from Additional Guarantor to KeyBank, as agent
under a construction loan facility, dated as of December 20,
2007, recorded in the Official Records of Cook County, Illinois as
Document No. 0800360020, as amended pursuant to that certain
First Amendment to Construction Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing and Assignment of
Leases and Rents dated February 10, 2009 between Additional
Guarantor and Agent, and as the same may be further modified and
amended from time to time.
CH1 Guaranty
. The Guaranty given by Additional
Guarantor to and for the benefit of Agent and the Lenders, as the
same may be modified, amended or ratified.
CH1 Indemnity
Agreement . The Indemnity
Agreement Regarding Hazardous Materials made by Additional
Guarantor and Guarantor in favor of the Agent and the Lenders, as
the same may be modified, amended or ratified.
CH1 Indemnity and Guaranty
Agreement . The Indemnity
and Guaranty Agreement made by Guarantor in favor of the Agent and
the Lenders covering the Additional Mortgaged Property, as the same
may be modified, amended or ratified.
CH1 Mortgage
. The Construction Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture
Filing dated as of December 20, 2007 from Additional Guarantor
to KeyBank, as agent under a construction loan facility, recorded
in the Official Records of Cook County, Illinois as Document
No. 0800360019, as amended pursuant to that certain First
Amendment to Construction Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing and Assignment of Leases and
Rents dated February , 2009 between
Additional Guarantor and Agent, and as the same may be further
modified and amended from time to time.
Contribution Agreement
. The Contribution Agreement by and
between Borrower, Guarantor and Additional Guarantor delivered in
connection with this Agreement, as the same may be modified,
amended or ratified from time to time.”
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(b) By deleting the following
definitions appearing in Section 1.1 of the Credit Agreement
in their entirety and inserting in lieu thereof the
following:
“ Assignment of Leases and
Rents . Collectively, the Assignment of Leases and Rents from
Borrower to the Agent dated as of October 24, 2008, recorded
in the Official Records of Loudoun County, Virginia as Document
No. 20081027-0063823 between Borrower and Agent, as amended by
that certain First Amendment to Deed of Trust and Security
Agreement and Assignment of Leases and Rents between Borrower and
Agent dated February 10, 2009, and as the same may be further
modified or amended from time to time, and the CH1 Assignment of
Leases and Rents, pursuant to which there shall be assigned to the
Agent for the benefit of the Lenders a security interest in the
interest of Borrower or Additional Guarantor, as applicable, as
lessor with respect to all Additional Property Leases or Leases, as
applicable of all or any part of the Mortgaged Property or the
Additional Mortgaged Property, as applicable.
Collateral
. All of the property, rights and
interests of Borrower and Additional Guarantor which are subject to
the security interests, security title, liens and mortgages created
by the Security Documents, including, without limitation, the
Mortgaged Property or the Additional Mortgaged Property, as
applicable.
Condemnation Proceeds
. All compensation, awards, damages,
judgments and proceeds awarded to Borrower or Additional Guarantor
by reason of any Taking, net of all reasonable and customary
amounts actually expended to collect the same.
Guaranty . Collectively, the Guaranty dated as of
October 24, 2008 given by Guarantor to and for the benefit of
Agent and the Lenders and the Guaranty dated as of February
, 2009 given by Additional Guarantor to and
for the benefit of Agent and the Lenders, and the CH1 Guaranty, as
the same may be modified, amended or ratified, such Guaranty to be
in form and substance satisfactory to Agent.
Indemnity Agreement
. Collectively, the Indemnity
Agreement Regarding Hazardous Materials made by Borrower and
Guarantor in favor of the Agent and the Lenders and the Indemnity
Agreement Regarding Hazardous Materials made by Additional
Guarantor and Guarantor in favor of the Agent and the Lenders and
the CH1 Indemnity Agreement, as the same may be modified, amended
or ratified, pursuant to which Borrower or Additional Guarantor, as
applicable, 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 covering the
Mortgaged Property, as the same may be modified, amended or
ratified, and the CH1 Indemnity and Guaranty, such Indemnity and
Guaranty Agreement to be in form and substance satisfactory to
Agent.
Loan Documents
. This Agreement, the Notes, the
Guaranty, the Indemnity and Guaranty Agreement, the Contribution
Agreement, the Security Documents, and all other documents,
instruments or agreements now or hereafter executed or delivered by
or on behalf of Borrower, Guarantor, or Additional Guarantor in
connection with the Loans.
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Management Agreements
. Any agreement, whether written or
oral, providing for the management of the Mortgaged Property or the
Additional Mortgaged Property, as applicable.
Mortgage . Collectively, the Deed of Trust and Security
Agreement dated October 24, 2008 from Borrower to a trustee
named therein acting on behalf of the Agent for the benefit of the
Lenders recorded in the Official Records of Loudoun County,
Virginia as Document No. 20081027-0063822, as amended by that
certain First Amendment to Deed of Trust and Security Agreement and
Assignment of Leases and Rents between Borrower and Agent, and as
the same may be further modified or amended from time to time, and
the CH1 Mortgage, pursuant to which Borrower or Additional
Guarantor, as applicable, has conveyed or granted a mortgage lien
upon or a conveyance in fee simple (or of a leasehold, if
applicable) of the Mortgaged Property or the Additional Mortgaged
Property, as applicable, as security for the
Obligations.
Rent Roll . A report prepared by Borrower or Additional
Guarantor, as applicable, showing for the Mortgaged Property or the
Additional Mortgaged Property, as applicable, 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.
Subordination, Attornment and
Non-Disturbance Agreement . An agreement among the Agent, Borrower or
Additional Guarantor and a tenant under a Lease or Additional
Property Lease, as applicable, pursuant to which such tenant agrees
to subordinate its rights under the Lease or Additional Property
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 or Additional Property 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.”
(c) By deleting subsections (c),
(f) and (g) from the definition of “Change of
Control” in Section 1.1 of the Credit Agreement and
inserting in lieu thereof the following:
“(c) Borrower, Guarantor or
Additional Guarantor consolidates with, is acquired by, or merges
into or with any Person (other than a merger permitted by
§8.4); 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 or Additional
Guarantor (except that REIT may own up to one percent (1%) of
Safari Ventures LLC, a Delaware limited liability company, the sole
member of the sole member of Additional Guarantor) 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 or Tarantula Interests LLC,
a Delaware limited liability company, shall cease to be the sole
member of Additional Guarantor, and Managing Member or Tarantula
Interests LLC shall fail to own at least one hundred percent
(100%) of the membership interest in Borrower or Additional
Guarantor, as applicable, free of any lien, encumbrance or other
adverse claim other than in connection with a foreclosure
contemplated by the Intercreditor Agreement; or”
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(d) In the following sections of the
Credit Agreement, the term “Mortgaged Property” shall
include the “Additional Mortgaged Property” mutatis
mutandis in any place it appears in such section: the
definition of “Taking” in Section 1.1, Sections
3.2, 6.6, 6.16, 6.20, 6.23, 7.4(e)(i) and (iii), 7.5(b) and (c),
7.6(b), 7.7, 7.8, 7.12, 7.15, 7.19, 8.2(iv), 8.3(h), 8.6, 8.7,
8.11, 8.16, 14.10, 14.12, 15 and 16.
(e) In the following sections of the
Credit Agreement, the term “Borrower” shall also
include “Additional Guarantor” mutatis mutandis
in any place it appears in such section: Section 3.2, the
introductory paragraph of Section 6.20, Sections 6.20(a), (c),
(d), (e) and (f), 6.23, 6.25, 7.5(b) and (c), 7.6(b), 7.7,
7.8, 7.12, 7.15, 8.1, 8.2, 8.3, 8.6, 8.7, 8.11, 8.16, 14.11 and
14.12
(f) In the following sections of the
Credit Agreement, the term “Building” shall include the
“Additional Property Building” mutatis mutandis
in any place it appears in such section: Sections 6.23 and
7.7.
(g) In the following sections of the
Credit Agreement, the term “Lease” or
“Leases” shall include the “Additional Property
Leases” mutatis mutandis in any place it appears in
such section: Sections 7.4(e), 7.7(g), 7.9, 8.11 and
14.12.
(h) In the following sections of the
Credit Agreement, the term “Guarantor” shall include
the “Additional Guarantor” mutatis mutandis in
any place it appears in such section: subsection (b) of the
definition of “Material Adverse Effect” in
Section 1.1, Sections 1.2(k), 2.12(d), 4.14, 5.1, 6.1(c),
6.1(d), 6.2, 6.6, 6.8, 6.9, 6.10, 6.12, 6.14, 6.17, 6.18, 6.19,
6.20, 6.26, 6.27, 6.28, 6.29, 6.31, 7.2, 7.4(l), the last paragraph
of Section 7.4, 7.5(a), 7.5(d), 7.6(a), 7.7, 7.10, 7.11, 8.13,
12.1(f), 12.1(l), 12.4, 12.5, 14.5, 14.13, 14.16, 15, 16, 17, 18.1,
18.7, 18.8, 19, 20, 21, 25, 27, 29, 33, and the form of Assignment
and Acceptance Agreement attached as Exhibit C.
(i) By adding to the end of
Section 3.5 the following:
“Notwithstanding the
foregoing, if Borrower exercises the Extension Option, then
commencing January 1, 2012 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 $2,000,000.00, together with any amounts due
pursuant to §4.8. Any payment of a release price pursuant to
§5.3 shall not reduce any payments due pursuant to this
§3.5.”
(j) By deleting in its entirety
Section 5.3 of the Credit Agreement and inserting in lieu
thereof the following:
“§ 5.3 Release of
Collateral .
(a) Provided no Default or Event of
Default shall have occurred hereunder and be continuing (or would
exist immediately after giving effect to the transactions
contemplated by this § 5.3(a)), the Agent shall release
the Additional Mortgaged Property from the lien or security title
of the Security Documents encumbering the same upon the request of
the Borrower subject to and upon the following terms and
conditions:
(i) The Borrower shall deliver to
the Agent written notice of its desire to obtain such release no
later than three (3) Business Days prior to the date on which
such release is to be effected;
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(ii) The Borrower shall certify to
Agent that no Default or Event of Default shall exist after giving
effect to such release;
(iii) The Borrower shall pay all
reasonable costs and expenses of Agent in connection with such
release, including, without limitation, reasonable attorney’s
fees; and
(iv) The Borrower or Additional
Guarantor shall pay to the Agent for the account of the Lenders a
release price, which payment shall be applied to reduce the
outstanding principal balance of the Loans as provided in
§ 3.4, in an amount equal to Fifty Million and No/100
Dollars ($50,000,000.00).
Upon satisfaction of the terms and
conditions of this § 5.3(a), the Agent shall promptly
execute and deliver to Borrower and Additional Guarantor a release
of the CH1 Mortgage, the CH1 Assignment of Leases and Rents and any
UCC financing statements filed in connection therewith evidencing
the termination and release of Agent’s security interest and
lien in the Additional Mortgaged Property, and a release of the CH1
Guaranty, the CH1 Indemnity Agreement and the CH1 Indemnity and
Guaranty Agreement all without the need for any consent from, or
notice to, any Lender.
(b) Upon the refinancing or
repayment of the Obligations in full, the Agent shall be entitled
to release the Collateral from the lien and security interest of
the Security Documents and to release the Borrower and Additional
Guarantor, as applicable, provided that Agent has not received a
notice from the “Representative” (as defined in
§14.17) or the holder of the Hedge Obligations that any Hedge
Obligation is then due and payable to the holder
thereof.”
(k) By inserting at the end of the
last sentence of Section 6.10 of the Credit Agreement
“and for Additional Guarantor is 20-8495821” before the
period.
(l) By deleting the introductory
sentence of Section 6 of the Credit Agreement in its entirety
and inserting in lieu thereof the following:
“Borrower, Guarantor and
Additional Guarantor, as applicable, represent and warrant to the
Agent and the Lenders as follows.”
(m) By adding at the end of
Section 6.21 the following:
“REIT is the managing member
of Safari Ventures LLC, a Delaware limited liability company, which
is the sole member of Tarantula Interests LLC, a Delaware limited
liability company, which is the sole member of Additional
Guarantor. REIT owns (directly or indirectly) not less than fifty
percent (50%) of the economic, voting and beneficial interest
in Additional Guarantor, and Guarantor owns (directly or
indirectly) not less than ninety-nine percent (99%) of (and
REIT owns the balance of) the economic, voting and beneficial
interests in Tarantula Interests LLC, free and clear of all
Liens.”
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(n) By adding as new
Section 6.32 to the Credit Agreement the following:
“§6.32. Contribution
Agreement . The Borrower, Guarantor and Additional Guarantor
have executed and delivered the Contribution Agreement, and the
Contribution Agreement constitutes the valid and legally binding
obligations of such parties enforceable against them in accordance
with the terms and provisions thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability
of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
therefore may be brought.”
(o) By deleting in its entirety the
introductory clause of Section 7 of the Credit Agreement and
inserting in lieu thereof the following:
“Borrower, Guarantor and
Additional Guarantor, as applicable, covenant and agree that, so
long as any loan or Note is outstanding:”
(p) By deleting in its entirety the
period at the end of Section 7.4(l) of the Credit Agreement
and inserting in lieu thereof “; and”.
(q) By inserting as new
Section 7.4(m) of the Credit Agreement the
following:
“promptly after they are filed
with the Internal Revenue Service, copies of all annual federal
income tax returns and amendments thereto of the
Guarantor.”
(r) By adding to the end of
Section 7.4(e) of the Credit Agreement as new
Section 7.4(e)(iv) before the semicolon the
following:
“and (iv) an operating
statement for the Additional Mortgaged Property for each such
calendar quarter and year to date (such statements to be in form
reasonably satisfactory to Agent)”
(s) By deleting in its entirety the
introductory clause of Section 8 of the Credit Agreement and
inserting in lieu thereof the following:
“Borrower, Guarantor and
Additional Guarantor, as applicable, covenant and agree that, so
long as any Loan or Note is outstanding:”
(t) By deleting in its entirety
Section 8.4 of the Credit Agreement and inserting in lieu
thereof the following:
“§ 8.4 Merger,
Consolidation . Borrower and Guarantor will not, and will not
permit REIT, Managing Member or Tarantuala Interests LLC, and
Guarantor will not permit any of its Subsidiaries to, become a
party to any dissolution, liquidation, disposition of all or
substantially all of its assets or business, merger,
reorganization, consolidation or other business combination or
agree to effect any asset acquisition, stock acquisition or other
acquisition individually or in a series of transactions which may
have a similar effect as any of the
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foregoing, in each case without the prior
written consent of the Required Lenders except for (i) the
merger or consolidation of one or more of the Subsidiaries of
Guarantor (other than Borrower or Additional Guarantor) with and
into Guarantor (it being understood and agreed that in any such
event Guarantor will be the surviving Person) and (ii) the
merger or consolidation of two or more Subsidiaries of Guarantor
(other than Borrower or Additional Guarantor); provided that
no such merger or consolidation shall be permitted in the event
Borrower, Guarantor or Additional Guarantor is in default of any of
its obligations under this Agreement or any other Loan Document
immediately before or would be after giving effect
thereto.”
(u) By deleting in its entirety
Section 8.14 of the Credit Agreement and inserting in lieu
thereof the following:
“§ 8.14 Equity
Pledges . Notwithstanding anything in this Agreement to the
contrary, Managing Member will not create or incur or suffer to be
created or incurred any Lien on any of its direct or indirect
legal, equitable or beneficial interest in Borrower, including,
without limitation, any Distributions or rights to Distributions on
account thereof, other than to secure the Permitted Mezzanine Debt.
Tarantula Interests LLC will not create or incur or suffer to be
created or incurred any Lien on any of its direct or indirect
legal, equitable or beneficial interest in Additional Guarantor,
including, without limitation, any Distributions or rights to
Distributions on account thereof. Furthermore, in the event of a
transfer of the ownership interests in Borrower in accordance with
the Intercreditor Agreement, the owner(s) or holders(s) of such
interests will not create or incur or suffer to be created any lien
on any such interest or permit any transfer of a direct or indirect
interest in Borrower.”
(v) For the avoidance of doubt,
whenever in this Amendment a term or provision of the Credit
Agreement is said to include another term, the parties hereto
intend that such term or provision as amended include both such
terms as if the same were more fully and completely set forth
therein.
3. Commitment Increase
.
(a) Pursuant to the provisions of
Section 2.11 of the Credit Agreement the Borrower hereby
requests an increase in the Total Commitment from $100,000,000.00
to $250,000,000.00 pursuant to Section 2.11 of the Credit
Agreement (the “ Increase ”).
(b) Certifications . In
connection with the Increase, each of the Borrower, Guarantor and
Additional Guarantor certifies that:
(i) As of the date hereof and as of
the effective date of the Increase, both immediately before and
after giving effect to the Increase, there exists and shall exist
no Default or Event of Default;
(ii) As of the date hereof, the
representations and warranties made by the Borrower, Guarantor and
Additional Guarantor in the Loan Documents or otherwise made by or
on behalf of the Borrower, Guarantor or Additional Guarantor in
connection therewith or after the date thereof were true and
correct in all material respects when made, are true and correct in
all material respects as of the date hereof, and shall be true and
correct in all material respects as of the effective date of the
Increase, both immediately before and after giving effect to the
Increase, as though such representations and warranties were made
on and as of that date; and
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(iii) The principal amount of the
Loan immediately after giving effect to the Increase will not
exceed either (a) forty percent (40%) of the Appraised
Value (as determined by the Appraisal of the Mortgaged Property
delivered to Lender on the original Closing Date) of the Mortgaged
Property as set out in the Appraisal or (b) 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);
and
(iv) Borrower has paid all fees
required by that certain Fee Letter dated February 10, 2009
between KeyBank and Borrower.
(c) New Commitments
.
(i) Borrower hereby acknowledges and
agrees that as of the effective date of the Increase and following
satisfaction of all conditions thereto as provided in
Section 2.11 of the Credit Agreement, Schedule 1.1 of the
Credit Agreement shall be deleted in its entirety and Schedule 1.1
attached hereto shall be inserted in lieu thereof. The amount of
each Lender’s Commitment shall be the amount set forth on
Schedule 1.1 attached hereto and the Total Commitment under the
Credit Agreement will include the Increase.
(ii) In connection with the
Increase, (x)&nbs