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Exhibit 10.1

CONSTRUCTION LOAN AGREEMENT

This Construction Loan Agreement (“Agreement”) is made and entered into as of February 6, 2009, by First Credit Bank, a California banking corporation (“Lender”), and Fox Properties LLC, a Delaware limited liability company (“Borrower”), with reference to the following facts:

A. Borrower is in the process of completing construction of Phase I of a 360,000 square foot data center and office building (the “Project”) located on a 30.44 acre parcel of real property commonly known as 44521 Hastings Drive, Ashburn, Virginia (the “Property”) more particularly described on Exhibit A which is attached hereto and incorporated herein by this reference.

B. Lender has agreed to provide Borrower with construction financing in the amount of Twenty Five Million Dollars ($25,000,000.00) (the “Loan”). Borrower shall use proceeds of the Loan to finance in part the construction and development of the Project and other costs and expenses approved by Lender.

C. The Project shall be renovated and constructed by Holder Construction Group, LLC (the “Contractor”) approved by Lender and in accordance with plans and specifications submitted to and approved by Lender and identified on Schedule 1 hereof (the “Plans and Specifications”), which Borrower represents constitutes the complete set of plans and specifications for the Project.

D. The Loan shall be evidenced by a Note of even date herewith (the “Note”) in the amount of the Loan, executed by Borrower and payable to Lender. Repayment of the Loan and performance of all other monetary and nonmonetary obligations of Borrower to Lender in connection with the Loan shall be secured by a Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing of even date herewith (the “Deed of Trust”) covering the Property; by the pledge of a cash collateral account in the amount of $4,000,000.00 funded concurrently with the execution and delivery of the Note and maintained at Lender (the “Pledge Agreement”); by an Assignment of Architect’s Contract and Plans and Specifications of even date herewith (the “Assignment of Architect’s Contract and Plans and Specifications”); by an Assignment of Building Contracts of even date herewith (the “Assignment of Building Contracts”); and by a financing statement of even date herewith (the “Financing Statement”) covering personal property of Borrower. In addition, Borrower’s monthly installments of interest and principal (to the extent installments of principal become due under the terms of the Loan Documents) that are scheduled to be paid prior to maturity shall be guaranteed by DuPont Fabros Technology, L.P. (“Guarantor”) pursuant to a guaranty of even date herewith (the “Guaranty”). This Agreement, the Note, the Deed of Trust, the Pledge Agreement, the Assignment of Architect’s Contract and Plans and Specifications, the Assignment of Building Contracts, the Financing Statement, the Guaranty and all other instruments evidencing and/or securing the Loan are referred to collectively herein as the “Loan Documents”).

E. The parties now desire to set forth their agreement regarding disbursement of the proceeds of the Loan as hereinafter set forth.

NOW, THEREFORE, the parties hereto agree as follows:

1 Disbursement of Loan Proceeds . Provided that Borrower has fulfilled all conditions set forth in that certain Construction Loan Commitment (the “Loan Commitment”) executed by Lender and Borrower and dated December 31, 2008 and all of the loan closing conditions set forth in this Agreement, Lender shall disburse proceeds of the Loan into an account (the “Construction Loan Account”) to be controlled by Lender subject to the provisions of this Agreement. Lender’s loan closing conditions shall include, but shall not be limited to, the following:

1.1 Loan Documents . Lender must receive all Loan Documents duly executed, in form approved by Lender (including, without limitation, duly executed consents to the Assignment of Architect’s Contract and Plans and Specifications and the Assignment of Building Contracts), and the Deed of Trust must be duly recorded.

 

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1.2 Other Instruments and Documents . Lender must receive all other instruments and documents reasonably required by Lender in connection with the Loan, duly executed and in form approved by Lender, including but not limited to the following:

(i) a subordination, nondisturbance and attornment agreement and estoppel certificate executed by each entity, if any, having a leasehold interest in the Property;

(ii) true and correct copies of the AIA Standard Form of Agreement dated June     , 2008 between Borrower and the Contractor (the “Construction Contract”), the Professional Services Agreement dated November 12, 2007 (the “Architect Contract”) between Borrower and Donnally Vujcic Associates LLC (the “Architect”), the Professional Services Agreement dated December 20, 2007 (the “Engineering Contract”) between Borrower and CCG Facilities Integration Incorporated (the “Engineer”) and the mechanical and electrical subcontracts;

(iii) true and correct copies of all operating agreements, utility agreements, access rights, easements and other agreements deemed necessary, in the sole discretion of Lender, for the uninterrupted and orderly operation of the Project;

(iv) an opinion or opinions of counsel to Borrower and/or Guarantor respecting such matters as Lender may reasonably request, including without limitation counsel’s opinion that Borrower and/or Guarantor has the necessary power to enter into the Loan transaction; that all documents executed by Borrower and/or Guarantor pertaining to the Loan are valid and binding obligations of Borrower and/or Guarantor, enforceable according to their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect and affecting the rights of creditors generally; and that there is no known litigation pending or threatened affecting the Project.

1.3 Title Insurance . Fidelity National Title Insurance Company (the “Title Company”) has issued to Lender its ALTA lender’s policy of title insurance with a liability limit of not less than the amount of the Note, insuring the lien of Lender’s Deed of Trust to be a first lien on the Property, subject only to such exceptions as previously approved by Lender in writing, together with any endorsements reasonably required by Lender.

 

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1.4 Security Interest . Lender’s security interest in all personal property described in the Deed of Trust and this Agreement must be duly perfected and in a first lien position.

1.5 Plans and Specifications . The Plans and Specifications for the Project have not been modified, amended or revised.

1.6 Construction Contracts . The Construction Contract, Architect Contract and Engineering Contract shall be in full force and effect.

1.7 Approvals; Permits . Lender must receive certified copies of all approvals, consents, permits and licenses required for construction of the Project duly issued by any public entity having jurisdiction over Borrower, the Project or the Property.

1.8 Credit Reports; Financial Statements . Lender must receive copies of the current credit reports, most recently filed federal income tax returns of Guarantor, financial statements of Borrower and financial statements of Guarantor, if any, prepared in the ordinary course of Guarantor’s business. All financial reports must be current, complete and signed and prepared in accordance with generally accepted accounting practices consistently applied.

1.9 Insurance . Lender must receive original certificates of insurance evidencing the policies of insurance required hereunder including Builder’s Risk Insurance, which shall be set forth on Schedule 2 attached hereto, which policies shall be in full force and effect. All such insurance policies shall contain endorsements naming Lender as a mortgagee or loss payee, the form and substance of which shall be satisfactory to Lender.

2. Disbursements from Construction Loan Account . Subject to satisfaction of the requirements enumerated in Sections 3 and 4, below, Lender shall make disbursements from the Construction Loan Account in accordance with the following:

2.1 Initial Disbursement . When all conditions set forth in Section 1 have been satisfied, Lender shall make an initial disbursement to Borrower in the amount of $5,000,000.00 (the “Initial Disbursement”).

2.2 Second Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least $2,079,931.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Initial Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Second Disbursement”).

2.3 Third Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,762,647.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Second Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Third Disbursement”).

 

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2.4 Fourth Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $3,493,246.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Third Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $5,000,000.00 (the “Fourth Disbursement”).

2.5 Fifth Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,038,892.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Fourth Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $2,500,000.00 (the “Fifth Disbursement”).

2.6 Final Disbursement . When Borrower has provided to Lender Evidence of Payment (as that term is defined below) that Borrower has paid from its own funds an amount equal to at least an additional $2,840,418.00 for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement and that the entire amount of the Fifth Disbursement has been expended for labor, services and/or materials incorporated into the Project subsequent to the Initial Disbursement, Lender shall make a disbursement to Borrower in the amount of $2,500,000.00 (the “Final Disbursement”).

2.7 Evidence of Payment . As used herein, the term “Evidence of Payment” shall mean written evidence reasonably satisfactory to Lender that Borrower has made payment to independent third parties to reimburse such persons for incorporation into the Project subsequent to the Initial Disbursement of labor and/or materials, which evidence shall include copies of paid invoices, lien waivers and releases from the persons providing such labor and/or materials and such other items as Lender may reasonably request from time to time. Borrower acknowledges that the sums identified in paragraphs 2.2 through 2.6 as payments by Borrower are intended to be cumulative. By way of example only, for Borrower to qualify for the Final Disbursement, Borrower will need to have provided to Lender Evidence of Payment equal to $13,215,134.00

3. Conditions to Construction Disbursements . Disbursement of proceeds from the Construction Loan Account shall be contingent upon satisfaction of the following conditions:

3.1 In the event the Project is materially damaged by fire or other


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