Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them elsewhere in this Agreement or in the Exhibits attached hereto. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with

Section 1.2 — Rules of Interpretation The following rules of interpretation shall apply to this Agreement: (a) Wherever used herein, the singular shall include the plural and the plural shall include the singular, unless the context otherwise requires. The use of any gender shall include all genders. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." (b

Section 2.1 — General Scope Contractor shall perform all engineering, procurement, and construction services necessary to design and build the Project in accordance with the Contract Documents. The Work shall be performed in a diligent, professional, and workmanlike manner, consistent with the standards of care and skill ordinarily exercised by qualified contractors performing work of a similar nature for mission-cri

Section 2.2 — Exclusions from Scope The following items are expressly excluded from the Scope of Work and are not included within the GMP: (a) IT equipment, cabling (including structured cabling, fiber optic cabling, and copper cabling within tenant spaces), network infrastructure, and tenant fit-out of the data halls and support spaces within the Buildings; (b) Owner-furnished equipment, except as expressly identifi

Section 2.3 — Contract Documents The Contract Documents consist of the following, which are collectively incorporated herein by this reference: (a) This Agreement (including all Articles and Sections); (b) Exhibit A — Scope of Work and Technical Specifications; (c) Exhibit B — GMP Schedule and Budget; (d) Exhibit C — Construction Schedule and Milestone Dates; (e) Exhibit D — Insurance Requirements; (f) Exhibit E — Fo

Section 2.4 — Design Responsibilities Contractor's design responsibilities under this Agreement include the development and completion of all construction documents, shop drawings, and engineering necessary to construct the Project in accordance with the Contract Documents and Applicable Laws. Contractor shall coordinate its design activities with Owner's Architect and shall obtain Owner's approval of all design deli

Section 2.5 — Coordination with Utility Provider Contractor shall coordinate its construction activities with Vantage Power Cooperative ("VPC") relating to VPC's construction of the dedicated 230kV/34.5kV electrical substation on the Meridian Parcel. Such coordination shall include, without limitation: (a) Providing VPC and its contractors with reasonable access to the Meridian Parcel and designated staging areas for

Section 2.6 — Owner's Representative Owner hereby designates Kestrel Infrastructure Advisors, LLC ("KIA"), a Virginia limited liability company, with its principal office at 1750 Tysons Boulevard, Suite 600, Tysons, Virginia 22102, as the Owner's Representative for the day-to-day administration of this Agreement. Diane Prescott shall serve as the Engagement Lead for KIA and shall be the primary point of contact for C

Section 3.1 — Notice to Proceed Owner shall issue the Notice to Proceed ("NTP") to Contractor in the form attached as Exhibit E (Form of Notice to Proceed). The target date for issuance of the NTP is November 1, 2025. Contractor shall not commence the Work, and shall not be entitled to compensation under this Agreement, prior to the issuance of the NTP. The NTP shall not be issued until the satisfaction or waiver (at

Section 3.2 — Construction Duration The total construction duration for the Project shall be twenty-four (24) months from the date of issuance of the NTP to the date of Substantial Completion of the final Building (Buildings B, C, and D), as set forth in the Construction Schedule (Exhibit C). Contractor shall prosecute the Work diligently and continuously, in accordance with the Construction Schedule, using sufficien

Section 3.3 — Milestone Dates The following Milestone Dates shall apply, subject to adjustment only by Change Order or as expressly provided in Article 12 (Force Majeure): The substation energization coordination milestone of June 1, 2027 is included for scheduling and coordination purposes. Failure by VPC to achieve substation energization by June 1, 2027 shall not, in and of itself, constitute a basis for the impos

Section 3.4 — Adjustments to Contract Time Adjustments to the Construction Schedule and the Milestone Dates shall be permitted only by Change Order executed in accordance with Article 8 or as expressly provided in Article 12 (Force Majeure). No adjustment to the Construction Schedule shall be made for delays caused by Contractor's own acts or omissions, including without limitation delays caused by Contractor's failu

ARTICLE 4 — CONTRACTOR'S REPRESENTATIONS AND WARRANTIES

Section 4.1 — Organization and Authority Contractor represents and warrants that it is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Maryland, and is qualified to transact business in the Commonwealth of Virginia. Contractor has the full legal power, authority, and capacity to execute, deliver, and perform this Agreement and to consummate the transac

Section 4.2 — Licenses and Permits Contractor represents and warrants that it holds all licenses, registrations, and certifications required under Applicable Laws to perform the Work in the Commonwealth of Virginia and Loudoun County, including without limitation a valid Virginia Class A Contractor's license issued by the Virginia Board for Contractors (License No. [__]). Contractor shall maintain all such licenses,

Section 4.3 — Experience and Qualifications Contractor represents and warrants that it has the experience, qualifications, expertise, and resources necessary to perform the Work in accordance with the Contract Documents and Applicable Laws. Contractor has successfully completed the construction of mission-critical data center facilities of comparable size, complexity, and scope, and possesses a thorough understanding

Section 4.4 — Review of Project Site and Documents Contractor represents and warrants that it has conducted a thorough review and investigation of the Project Site conditions, including physical characteristics, topography, subsurface conditions, access, and surrounding properties. Contractor acknowledges that it has reviewed and familiarized itself with the following documents and reports: (a) The geotechnical inves

Section 4.5 — No Conflicts Contractor represents and warrants that the execution, delivery, and performance of this Agreement do not and will not: (a) violate any provision of Contractor's organizational documents; (b) conflict with, result in a breach of, or constitute a default under any existing agreement, contract, or obligation to which Contractor is a party or by which it is bound; or (c) violate any Applicable

Section 4.6 — Financial Condition Contractor represents and warrants that it has adequate financial resources and capacity to perform the Work in accordance with the Contract Documents and the Construction Schedule. Contractor has provided, or shall upon request provide, financial statements and other evidence of financial capacity satisfactory to Owner and the Lender Group. Contractor's financial condition, includin

ARTICLE 5 — GUARANTEED MAXIMUM PRICE

Section 5.1 — Establishment of GMP The Guaranteed Maximum Price for the Work under this Agreement is Four Hundred Twelve Million Dollars ($412,000,000) (the "GMP"). The GMP represents the maximum total compensation payable to Contractor for the complete and satisfactory performance of all Work required under this Agreement, and includes all costs of the Work, including without limitation: (a) All direct costs of labo

Section 5.2 — Per-Building GMP Allocation For purposes of this Agreement, the GMP is allocated equally among the four Buildings at One Hundred Three Million Dollars ($103,000,000) per Building ($412,000,000 ÷ 4 = $103,000,000). The Per-Building GMP Allocation is used for the following purposes: (a) Calculation of the Liquidated Damages cap for each Building under Section 7.3; (b) Milestone payment tracking and report

Section 5.3 — Cost square Foot For reference and benchmarking purposes only, the GMP equates to the following cost metrics: (a) Approximately Eight Hundred Fifty-Eight Dollars and Thirty-Three Cents ($858.33) per square foot of gross floor area ($412,000,000 ÷ 480,000 square feet); and (b) Approximately Four Million Two Hundred Ninety-One Thousand Six Hundred Sixty-Seven Dollars ($4,291,667) per megawatt of critical

Section 5.4 — GMP Adjustments The GMP may be adjusted only by written Change Order executed in accordance with Article 8 and signed by both Owner and Contractor (and, where required under Section 18.4, acknowledged by the Administrative Agent). No adjustment to the GMP shall be effective unless evidenced by a duly executed Change Order. No single Change Order shall increase the GMP by an amount that exceeds the GMP C

Section 5.5 — GMP Savings If the actual cost of the Work (excluding Contractor's Fee) upon Final Completion is less than the GMP (as adjusted by Change Orders), the resulting savings ("GMP Savings") shall be shared between Owner and Contractor as follows: [_]% of the GMP Savings shall be paid to Owner, and [_]% of the GMP Savings shall be paid to Contractor. [Note: The GMP Savings sharing percentages are subject to n

Section 6.1 — Schedule of Values Within fifteen (15) Days of the execution of this Agreement, Contractor shall submit to Owner and the Owner's Representative a detailed Schedule of Values allocating the GMP to the various portions of the Work. The Schedule of Values shall be consistent with the GMP Schedule (Exhibit B) and shall be sufficiently detailed to serve as the basis for Contractor's monthly Applications for

Section 6.2 — Monthly Applications for Payment Contractor shall submit monthly Applications for Payment to Owner and the Owner's Representative by the twenty-fifth (25th) day of each calendar month, in the form attached as Exhibit G (Form of Application for Payment) or such other format as may be agreed upon by the Parties and consistent with the Lender Requirements. Each Application for Payment shall reflect the val

Section 6.3 — Payment Terms Owner shall pay approved amounts to Contractor within thirty (30) Days of Owner's receipt of a complete and conforming Application for Payment. An Application for Payment shall be deemed "complete and conforming" when it contains all information, documentation, lien waivers, and certifications required under Section 6.2 and is free of material errors or discrepancies. If Owner disputes any

Section 6.4 — Retainage Owner shall withhold Retainage from each progress payment as follows: (a) Until the Work is fifty percent (50%) complete (as measured by the cumulative value of approved Applications for Payment relative to the GMP), Owner shall withhold Retainage in the amount of ten percent (10%) of each progress payment. (b) After the Work is fifty percent (50%) complete, Retainage shall be reduced to five

Section 6.5 — Final Payment Final payment to Contractor, including the release of all Retainage, shall be made within forty-five (45) Days of Final Completion, subject to Owner's receipt of all of the following: (a) Final, unconditional lien waivers from Contractor and all Subcontractors at every tier; (b) Complete as-built drawings and record documents in both hard copy and electronic (CAD/BIM) format; (c) All opera

Section 6.6 — Lien Waivers Contractor shall deliver, and shall cause each Subcontractor at every tier to deliver, partial and final lien waivers in the forms attached as Exhibit H (Form of Lien Waiver), consistent with the requirements of Virginia mechanic's lien law (Virginia Code § 43-1 et seq.). Specifically: (a) Conditional Partial Lien Waiver: Contractor and each Subcontractor shall deliver a conditional partial

Section 6.7 — Set-Off Rights Owner may set off against any amounts owed to Contractor under this Agreement: (a) any Liquidated Damages accrued under Section 7.2; (b) any costs incurred by Owner to remedy Defective Work that Contractor has failed to correct within the time specified in Owner's written notice; (c) any amounts owed by Contractor to Owner under the indemnification provisions of Article 13; and (d) any ot

ARTICLE 7 — SUBSTANTIAL COMPLETION AND LIQUIDATED DAMAGES

Section 7.1 — Substantial Completion Defined "Substantial Completion" for each Building means the date on which that Building is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Building for its intended purpose as a data center facility. The determination of Substantial Completion for each Building shall require satisfaction of all of the following conditions: (a)

Section 7.2 — Liquidated Damages for Delay If Contractor fails to achieve Substantial Completion of any Building by the applicable Milestone Date (as such date may be extended pursuant to the terms of this Agreement, including by Change Order under Article 8 or by Force Majeure extension under Article 12), Contractor shall pay to Owner, as liquidated damages and not as a penalty, the amount of One Hundred Twenty-Five