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