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Dupont Fabros Technology, - Construction Loan Agreement
Exhibit 10.1
CONSTRUCTION LOAN AGREEMENT
for a loan in the amount of $148,864,335
MADE BY AND BETWEEN
TARANTULA VENTURES LLC,
a Delaware limited liability company,
As Borrower
AND
KEYBANK NATIONAL ASSOCIATION, a national banking association,
127 Public Square,
Cleveland, Ohio 44114
as a Lender and as Administrative Agent
AND KEYBANC CAPITAL MARKETS
as sole lead arranger and book manager
Dated as of December 20, 2007
TABLE OF CONTENTS
Page
ARTICLE 1 INCORPORATION OF RECITALS AND EXHIBITS 1
1.1 Incorporation of Recitals 1
1.2 Incorporation of Exhibits 1
ARTICLE 2 DEFINITIONS 2
2.1 Defined Terms 2
2.2 Other Definitional Provisions 16
ARTICLE 3 BORROWER' S REPRESENTATIONS AND WARRANTIES 16
3.1 Representations and Warranties 16
3.2 Survival of Representations and Warranties 22
ARTICLE 4 LOAN AND LOAN DOCUMENTS 22
4.1 Agreement to Borrow and Lend; Lender' s Obligation to Disburse 22
4.2 Loan Documents 23
4.3 Term of the Loan 24
4.4 Prepayments 24
4.5 Required Principal Payments 25
4.6 Late Charge 25
4.7 Funds for Payment 25
ARTICLE 5 INTEREST 26
5.1 Interest Rate 26
5.2 [Intentionally Omitted.] 28
ARTICLE 6 COSTS OF MAINTAINING LOAN 28
6.1 Increased Costs and Capital Adequacy 28
6.2 Borrower Withholding 29
ARTICLE 7 LOAN EXPENSE AND ADVANCES 30
7.1 Loan and Administration Expenses 30
7.2 Fees 30
7.3 [Intentionally Omitted.] 30
7.4 Agent' s Attorneys' Fees and Disbursements 30
7.5 Time of Payment of Fees and Expenses 31
7.6 Expenses and Advances Secured by Loan Documents 31
7.7 Right of Lender to Make Advances to Cure Borrower' s Defaults 31
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 8 NON-CONSTRUCTION REQUIREMENTS PRECEDENT TO THE OPENING OF THE LOAN 31
8.1 Non-Construction Conditions Precedent 31
ARTICLE 9 CONSTRUCTION REQUIREMENTS PRECEDENT TO THE OPENING OF THE LOAN 34
9.1 Required Construction Documents 34
ARTICLE 10 BUDGET AND CONTINGENCY FUND 35
10.1 Budget 35
10.2 Budget Line Items 36
10.3 Contingency Fund 36
10.4 Optional Method for Payment of Interest 36
ARTICLE 11 SUFFICIENCY OF LOAN 37
11.1 Loan In Balance 37
ARTICLE 12 CONSTRUCTION PAYOUT REQUIREMENTS 37
12.1 Applicability of Sections 37
12.2 Monthly Payouts 37
12.3 Documents to be Furnished for Each Disbursement 38
12.4 Retainages. 39
12.5 Disbursements for Materials Stored On-Site 39
12.6 Disbursements for Offsite Materials 40
12.7 Intentionally Omitted 40
ARTICLE 13 FINAL DISBURSEMENT FOR CONSTRUCTION 40
13.1 Final Disbursement for Construction 40
ARTICLE 14 RESERVED 41
ARTICLE 15 OTHER COVENANTS 41
15.1 Borrower further covenants and agrees as follows: 41
15.2 Authorized Representative 51
ARTICLE 16 CASUALTIES AND CONDEMNATION 52
16.1 Agent' s Election to Apply Proceeds on Indebtedness 52
16.2 Borrower' s Obligation to Rebuild and Use of Proceeds Therefor 53
ARTICLE 17 ASSIGNMENTS BY LENDER AND BORROWER 53
17.1 Prohibition of Assignments and Transfers by Borrower 53
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TABLE OF CONTENTS
(continued)
Page
17.2 Prohibition of Transfers in Violation of ERISA 53
17.3 Successors and Assigns 54
ARTICLE 18 TIME OF THE ESSENCE 54
18.1 Time is of the Essence 54
ARTICLE 19 EVENTS OF DEFAULT 54
ARTICLE 20 LENDER' S REMEDIES IN EVENT OF DEFAULT 57
20.1 Remedies Conferred Upon Lender 57
ARTICLE 21 GENERAL PROVISIONS 58
21.1 Captions 58
21.2 Modification; Waiver 58
21.3 Governing Law 58
21.4 Acquiescence Not to Constitute Waiver of Lender' s Requirements 58
21.5 Disclaimer by Lender 58
21.6 Partial Invalidity; Severability 59
21.7 Definitions Include Amendments 59
21.8 Execution in Counterparts 60
21.9 Entire Agreement 60
21.10 Waiver of Damages 60
21.11 Claims Against Lender 60
21.12 Jurisdiction 60
21.13 Set-Offs 61
ARTICLE 22 NOTICES 61
ARTICLE 23 WAIVER OF JURY TRIAL 62
ARTICLE 24 ASSIGNMENTS AND PARTICIPATIONS 63
24.1 Assignments and Participations 63
24.2 Several Liability 66
ARTICLE 25 AGENT 66
25.1 Appointment 66
25.2 Reliance on Agent 67
25.3 Powers 67
25.4 Disbursements 67
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TABLE OF CONTENTS
(continued)
Page
25.5 Distribution and Apportionment of Payments 68
25.6 Consents and Approvals 70
25.7 Agency Provisions Relating to Collateral 72
25.8 Lender Actions Against Borrower or the Collateral 73
25.9 Assignment and Participation 73
25.10 Ratable Sharing 74
25.11 General Immunity 74
25.12 No Responsibility for Loan, Recitals, etc 74
25.13 Action on Instructions of Lenders 75
25.14 Employment of Agents and Counsel 75
25.15 Reliance on Documents; Counsel 76
25.16 Agent' Reimbursement and Indemnification 76
25.17 Rights as a Lender 76
25.18 Lenders' Credit Decisions 77
25.19 Notice of Events of Default 77
25.20 Successor Agent 77
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LIST OF EXHIBITS TO LOAN AGREEMENT Exhibit A Legal Description of Land Exhibit B Permitted Exceptions Exhibit C Form of Note Exhibit D Intentionally Omitted Exhibit E LIBOR Notice Election Exhibit F Insurance Requirements Exhibit G Architect' s Certificate Exhibit H Initial Budget Exhibit I Borrower' s Certificate Exhibit J Soft and Hard Cost Requisition Form Exhibit K Engineer' s Certificate Exhibit L Assignment and Assumption Agreement Exhibit M Patriot Act and OFAC Transferee and Assignee Identifying Information Form
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CONSTRUCTION LOAN AGREEMENT
Project Commonly Known as
" Data Center Facility, CH1, Elk Grove Village, Illinois"
THIS CONSTRUCTION LOAN AGREEMENT (" Agreement" ) is made as of December 20, 2007, by and among TARANTULA VENTURES LLC, a Delaware limited liability company (" Borrower" ), and KEYBANK NATIONAL ASSOCIATION, a national banking association (" KeyBank" ), its successors and assigns, individually and as a lender and administrative agent (referred to in such capacity as " Agent" in this Agreement), and each of the undersigned lending institutions (KeyBank, as a lender, and each such lending institution, and their respective successors and assigns, referred to individually or collectively, as the context shall infer, as the " Lender" ).
WITNESSETH : RECITALS
A. Borrower is the owner in fee simple of the land located in the Elk Grove Village, County of Cook, State of Illinois, and is legally described in Exhibit A attached hereto (the " Land" ). Borrower proposes to construct on the Land the first phase of a data center facility 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. As of the date hereof, a substantial amount of the construction of this first phase has been completed.
B. Borrower has applied to Lender for a loan in the amount of up to One Hundred Forty-Eight Million Eight Hundred Sixty-Four Thousand Three Hundred Thirty-Five and No/100 Dollars ($148,864,335.00) (the " Loan" ) to reimburse Borrower for construction and development of the Project, and Lender is willing to make the Loan on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
INCORPORATION OF RECITALS AND EXHIBITS 1.1 Incorporation of Recitals .
The foregoing preambles and all other recitals set forth herein are made a part hereof by this reference.
1.2 Incorporation of Exhibits .
Exhibits A through M, to this Agreement, attached hereto are incorporated in this Agreement and expressly made a part hereof by this reference.
ARTICLE 2
DEFINITIONS
2.1 Defined Terms .
The following terms as used herein shall have the following meanings:
Adjusted LIBOR Rate : For any LIBOR Rate Interest Period, an interest rate per annum equal to the sum of (A) the rate obtained by dividing (x) the LIBOR Rate for such LIBOR Rate Interest Period by (y) a percentage equal to one hundred percent (100%) minus the Reserve Percentage for such LIBOR Rate Interest Period and (B) the LIBOR Rate Margin.
Adjusted Base Rate : A rate per annum equal to the greater of (a) the Prime Rate and (b) one-half of one percent (0.5%) in excess of the Federal Funds Effective Rate. Any change in the Adjusted Base Rate shall be effective immediately from and after a change in the Adjusted Base Rate (or the Federal Funds Effective Rate, as applicable).
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 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 more of the outstanding limited partnership interests, preferred stock or other ownership interests of such Person. 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 the Borrower and the Lenders.
Agent' s Special Counsel : McKenna Long & Aldridge LLP or such other counsel as selected by Agent.
Agreement : This Construction Loan Agreement.
Applicable Rate : As such term is defined in Section 5.1(a) . Appraisal : An MAI appraisal of the value of the Project, 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 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.
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Appraised Value : The " going concern" value of the Project determined by the most recent Appraisal of the Project, obtained pursuant to this Agreement; 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.
Approved Lease : Any Lease that meets the following criteria shall not require Agent' s or Lenders' prior written approval: (i) the rental rate thereunder is at least ninety percent (90%) of the rental rate in the Pro Forma Projection; (ii) the lease term is for a minimum of five (5) consecutive years; (iii) the Lease does not contain any early termination rights in favor of Tenant other than those contained in customary casualty and condemnation provisions; (iv) the proposed Tenant has been operating and profitable for a minimum of five (5) consecutive years, or such Tenant' s long-term senior debt rating is rated at least BBB- by S&P or the equivalent thereof by Moody' s; and (v) the Lease is entered into on the Borrower' s standard form lease, which has been approved by Agent, without any material modifications.
Architect : Donnally Vujcic Associates, L.L.C.
Architect' s Certificate : A certificate in the form of Exhibit G attached hereto executed by the Architect in favor of Lender.
Assignment and Assumption : An Assignment and Assumption Agreement in the form of Exhibit L attached hereto and made a part hereof.
Assignment of Rents : An assignment of leases and rents made by Borrower in favor of Agent assigning all leases, subleases and other agreements relating to the use and occupancy of all or any portion of the Project, and all present and future leases, rents, issues and profits therefrom.
Authorized Representative : Hossein Fateh or Lammot J. du Pont, or such other Person as Borrower may designate in writing to Agent from time to time.
Bankruptcy Code : Title 11 of the United States Code entitled " Bankruptcy" as now or hereafter in effect, or any successor statute thereto or any other present or future bankruptcy or insolvency statute.
Bond : A Performance Bond and Labor and Material Payment Bond in a form approved by Agent, with the Major Subcontractors, as the case may be, as principal, with a surety company acceptable to Agent and licensed to do business in the State, as surety, with a dual obligee rider in favor of Agent.
Breakage Costs : The cost to Lender of re-employing funds bearing or to bear interest at an Adjusted LIBOR Rate, incurred (or expected to be incurred) in connection with (i) any payment of any portion of the Loan bearing interest at an Adjusted LIBOR Rate prior to the termination of any applicable LIBOR Rate Interest Period, (ii) the conversion of an Adjusted
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LIBOR Rate to any other applicable interest rate on a date other than the last day of the relevant LIBOR Rate Interest Period, or (iii) the failure of Borrower to draw down, on the first day of the applicable LIBOR Rate Interest Period, any amount as to which Borrower has elected a LIBOR Rate Option.
Budget : The budget for the Project specifying all costs and expenses of every kind and nature whatever to be incurred by Borrower in connection with the Project prior to the Maturity Date. Budget Line Item : As such term is defined in Section 10.2 . Business Day : A day of the year on which banks are not required or authorized to close in Cleveland, Ohio. 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 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) the Borrower or Guarantor consolidates with, is acquired by, or merges into or with any Person (other than a merger permitted by a715.1(jj)); 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
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(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 (except that REIT may own up to one percent (1%) of Safari Ventures LLC); or
(g) Any of Lammot du Pont and Hossein Fateh shall cease to be senior management executives of the 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. Change Order : Any request for changes in the Plans and Specifications (other than minor field changes involving no extra cost). Collateral . All of (a) the property, rights and interests of the Borrower that are or are intended to be subject to the security interests, assignments, and mortgage liens created by the Security Documents, including, without limitation, the Project, and (b) the Guaranty.
Commitment : The maximum amount each Lender has agreed to lend to Borrower as part of the Loan (which amounts are set forth below the signature line of each Lender), subject to modification by each Assignment and Assumption.
Completion Conditions : Delivery to Agent of the following items in form satisfactory to the Agent: (A) Required Permits . Evidence that the Borrower has obtained all Required Permits from, given all notices to, and taken all such other actions with respect to, such Governmental Authority as may be required under applicable laws and requirements for the permanent use and occupancy of the Improvements for their intended uses, together with copies of all such Required Permits; (B) Approval by Lender' s Consultant . Notification from the Lender' s Consultant to the effect that the Improvements have been completed in a good and workmanlike manner in accordance with the Plans and Specifications;
(C) Certificate of the Borrower' s Architect . Certificate of the Borrower' s architect that the Improvements have been completed in accordance with the Plans and Specifications and that the Improvements comply with all applicable laws and requirements and Governmental Approvals and are in all respects ready for use and occupancy;
(D) Payment of Costs . Evidence satisfactory to Agent that all sums due in connection with the construction of the Improvements have been paid or discharged in full (whether by bonding or otherwise) and that no party claims or has a right to claim any statutory or common law lien arising out of the construction of the Improvements for the supplying of labor, material, equipment and/or services in connection therewith;
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(E) Final Lien Waivers . Final lien waivers in such form as may be permitted by applicable law to remove or dissolve any unfiled lien claims, or such other form satisfactory to the Agent from the General Contractors, and such laborers, suppliers, subcontractors and materialmen as may be requested by the Agent, duly executed and notarized (or with respect to any lien claims for which final lien waivers are not provided, evidence satisfactory to Agent that such lien claims have been discharged in full (whether by bonding or otherwise)); (F) Title Endorsement . An endorsement to the Title Policy fully removing any exception for mechanics and materialman' s liens, whether filed or unfiled.
(G) Power . The Improvements shall have at least 18.2 megawatts of critical load power available for use by Tenants.
Completion Date : June 30, 2008, subject to extension pursuant to Section 15.1(b) . 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.
Construction or construction : The construction and equipping of the Improvements in accordance with the Plans and Specifications, and the installation of all personal property, fixtures and equipment required for the operation of the Project.
Construction Schedule : A schedule satisfactory to Lender and Lender' s Consultant, establishing a timetable for completion of the Construction, showing, on a monthly basis, the anticipated progress of the Construction and also showing that the Improvements can be completed on or before the Completion Date, as the same may be modified or amended with the written approval of Agent. Contingency Fund : A Budget Line Item which shall represent an amount necessary to provide reasonable assurances to Lender that additional funds are available to be used if additional costs and expenses are incurred or additional interest accrues on the Loan, or unanticipated events or problems occur.
Control : As such term is used with respect to any person or entity, including the correlative meanings of the terms " controlled by" and " under common control with" , shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise. Debt Service Coverage : With respect to a particular period, the ratio of (a) the Net Operating Income of the Project to (b) the Total Annual Debt Service.
Default or default : Any event, circumstance or condition, which, if it were to continue uncured, would, with notice or lapse of time or both, constitute an Event of Default hereunder.
Defaulting Lender : As such term is defined in Section 25.5(b) .
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Default Rate : A rate per annum equal to two percentage points (200 basis points) in excess of the Applicable Rate, but not at any time in excess of the highest rate permitted by law.
Deficiency Deposit : As such term is defined in Section 11.1 .
Eligible Assignee : (i) Any Lender; (ii) any commercial bank, savings bank, savings and loan association or similar financial institution which (A) has total assets of Five Billion Dollars ($5,000,000,000) or more, (B) is " well capitalized" within the meaning of such term under the regulations promulgated under the auspices of the Federal Deposit Insurance Corporation Improvement Act of 1991, (C) in the reasonable judgment of the Agent, is engaged in the business of lending money and extending credit, and buying loans or participations in loans under credit facilities substantially similar to those extended under this Agreement, and (D) in the reasonable judgment of the Agent, is operationally and procedurally able to meet the obligations of a Lender hereunder to the same degree as a commercial bank; (iii) any insurance company in the business of writing insurance which (A) has total assets of Five Billion Dollars ($5,000,000,000) or more (B) is " best capitalized" within the meaning of such term under the applicable regulations of the National Association of Insurance Commissioners, and (C) meets the requirements set forth in subclauses (C) and (D) of clause (ii) above; and (iv) any other financial institution having total assets of Five Billion Dollars ($5,000,000,000) (including a mutual fund or other fund under management of any investment manager having under its management total assets of Five Billion Dollars ($5,000,000,000) or more) which meets the requirement set forth in subclauses (C) and (D) of clause (ii) above; provided that each Eligible Assignee must (w) be organized under the Laws of the United States of America, any state thereof or the District of Columbia, or, if a commercial bank, be organized under the Laws of the United States of America, any state thereof or the District of Columbia, the Cayman Islands or any country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of such a country, (x) act under the Loan Documents through a branch, agency or funding office located in the United States of America, (y) be exempt from withholding of tax on interest and deliver the documents related thereto pursuant to the Internal Revenue Code as in effect from time to time and (z) not be the Borrower or an Affiliate of the Borrower.
Engineer : EYP Mission Critical Engineering.
Engineer' s Certificate : A certificate in the form of Exhibit K attached hereto executed by the Architect in favor of Lender.
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 Indemnity : An environmental indemnity from the Borrower and Guarantor, jointly and severally, indemnifying Agent and the Lenders with regard to all matters related to Hazardous Substances and other environmental matters.
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Environmental Proceedings : Any environmental proceedings, whether civil (including actions by private parties), criminal, or administrative proceedings, relating to the Project.
Environmental Report : An environmental report prepared at Borrower' s expense by an Environmental Engineer, dated not more than one year prior to the date of this Agreement and addressed to Agent (or subject to separate letter agreement permitting Agent to rely on such environmental report).
Environmental Laws : As defined in the Environmental Indemnity. Equity Interests : With respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing as of any date of determination.
ERISA : The Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder from time to time.
Event of Default : As such term is defined in Article 19 . Extended Maturity Date : As such term is defined in Section 4.3 . Extension Option : As such term is defined in Section 4.3 . 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 : Shall mean, for any day, the rate per annum (rounded upward to the nearest on one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of New York 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." FIRREA : The Financial Institutions Reform, Recovery And Enforcement Act of 1989, as amended from time to time. Funds from Operations : With respect to any Person for any period, an amount equal to the Net Income (or Loss) of such Person for such period, computed in accordance with GAAP, excluding losses from sales of property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated partnerships and joint ventures will be recalculated to reflect funds from operations on the same basis.
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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. General Contract : The general contract(s) between Borrower and General Contractor, pertaining to the construction of all onsite and offsite improvements for the Project.
General Contractor(s) : Holder Construction Company. Governmental Approvals : Collectively, all consents, licenses, and permits and all other authorizations or approvals required from any Governmental Authority for the Construction in accordance with the Plans and Specifications.
Governmental Authority : Any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court, administrative tribunal, or public utility.
Gross Asset Value : As defined in the Revolving Credit Agreement. Guarantor : DuPont Fabros Technology, L.P., a Maryland limited partnership. Guaranty : A guaranty of payment, performance and completion, executed by Guarantor and pursuant to which the Guarantor guarantees the payment of the Notes and the other amounts due under the Loan Documents, and the lien-free and timely completion of the Project in accordance with all provisions of this Agreement and Borrower' s obligation to keep the Loan In Balance and to pay for all cost overruns.
Hazardous Substances . As defined in the Environmental Indemnity. Improvements : The improvements referred to in Recital A hereto and more particularly described in the Plans and Specifications, and offsite improvements and together with any existing improvements on the Land not to be demolished.
In Balance or in balance : As such term is defined in Article 11 .
Including or including : Including but not limited to. Indebtedness : As defined in the Revolving Credit Agreement.
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.
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Initial Maturity Date : December 20, 2009, or such earlier date on which the Loan shall become due and payable pursuant to the terms hereof.
Internal Revenue Code : The Internal Revenue Code of 1986, as amended from time to time.
Interest Payment Date : The first (1 st ) day of each calendar month during the term of the Loan.
Land : As such term is defined in Recital A .
Late Charge : As such term is defined in Section 4.6 .
Laws : Collectively, all federal, state and local laws, statutes, codes, ordinances, orders, rules and regulations, including judicial opinions or precedential authority in the applicable jurisdiction.
Leases : The collective reference to all leases, subleases and occupancy agreements affecting the Project or any part thereof now existing or hereafter executed and all amendments, modifications or supplements thereto approved in writing by Agent, or deemed approved pursuant to Section 15.1(k), if such approval is required.
Lender : As defined in the opening paragraph of this Agreement. A reference to a Lender shall include all Lenders unless the context clearly refers to a single Lender.
Lender' s Consultant : An independent consulting architect, inspector, and/or engineer designated by Agent in Agent' s sole discretion.
Lender Default Obligation : As such term is defined in Section 25.5(b) .
Lender Reply Period : As such term is defined in Section 25.6 .
Lien : Any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
LIBOR Business Day : A Business Day on which dealings in U.S. dollars are carried on in the London Interbank Market.
LIBOR Rate : For any LIBOR Rate Interest Period, the average rate (rounded upwards to the nearest 1/16th) as shown in Reuters Screen LIBOR01 Page 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 LIBOR Rate Interest Period with a maturity approximately equal to such LIBOR Rate Interest Period and in an amount approximately equal to the amount to which such LIBOR Rate Interest Period relates, adjusted for reserves and taxes if required by future regulations. If such service no longer reports such rate or Agent determines in good faith that the rate so reported no longer accurately reflects the rate available to Lender in the London Interbank Market, Agent may select a replacement index.
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LIBOR Rate Interest Period : With respect to each amount bearing interest at a LIBOR based rate, a period of one, two, three months or six months, to the extent deposits with such maturities are available to Agent, commencing on a LIBOR Business Day, as selected by Borrower provided, however, that (i) any LIBOR Rate Interest Period which would otherwise end on a day which is not a LIBOR Business Day shall continue to and end on the next succeeding LIBOR Business Day, unless the result would be that such LIBOR Rate Interest Period would be extended to the next succeeding calendar month, in which case such LIBOR Rate Interest Period shall end on the next preceding LIBOR Business Day, (ii) any LIBOR Rate Interest Period which begins on a day for which there is no numerically corresponding date in the calendar month in which such LIBOR Rate Interest Period would otherwise end shall instead end on the last LIBOR Business Day of such...
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