ENVIRONMENTAL INDEMNITY AGREEMENT
Dated as of June 3, 2024
by
IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company, as Indemnitor,
in favor of
PINNACLE TRUST COMPANY, N.A., a national trust company, as Collateral Agent for the benefit of the Secured Parties
Property: 4500–4550 Dominion Ridge Boulevard Ashburn, Loudoun County, Virginia 20147 Tax Parcel Nos. 087-27-1234 & 087-27-1235 (Approximately 142 Acres)
$950,000,000 Senior Secured Term Loan B Facility CUSIP: 46283LAA5
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") is made and entered into as of June 3, 2024, by IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company (the "Indemnitor" or "IHDC"), having its principal offices at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147, in favor of PINNACLE TRUST COMPANY, N.A., a national trust company (the "Collateral Agent"), having its offices at 101 Constitution Avenue NW, Washington, D.C. 20001, for the benefit of the Secured Parties (as defined in the Credit Agreement referenced below).
RECITALS
A. Ironhaven Data Centers LLC (the "Borrower" or "IHDC"), a Delaware limited liability company with headquarters at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147 (EIN: 84-3291057), Ironhaven Frankfurt GmbH, a German limited liability company organized under the laws of the Federal Republic of Germany (as Co-Borrower), Ironhaven Holdings Inc., a Delaware corporation (EIN: 84-3291044) (as Parent Guarantor), Crescent Harbor Bank, N.A., a national banking association with offices at 1200 Harbor Point Drive, Charlotte, North Carolina 28202 (as Administrative Agent), Pinnacle Trust Company, N.A., a national trust company with offices at 101 Constitution Avenue NW, Washington, D.C. 20001 (as Collateral Agent), and the several financial institutions from time to time party thereto as Lenders, have entered into that certain Senior Secured Term Loan B Credit Agreement dated as of May 15, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), providing for a nine hundred fifty million dollar ($950,000,000) senior secured term loan facility (CUSIP: 46283LAA5). Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.
B. As security for the Obligations under the Credit Agreement, the Borrower has granted a Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing dated as of the date hereof (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Deed of Trust") encumbering the Property (as defined below) in favor of the Collateral Agent for the benefit of the Secured Parties, which Deed of Trust has been or will be recorded in the land records of Loudoun County, Virginia.
C. The Property consists of two parcels of real property located in Loudoun County, Virginia, situated at 4500–4550 Dominion Ridge Boulevard, Ashburn, Virginia 20147, identified as Tax Parcel Nos. 087-27-1234 and 087-27-1235 on the tax maps of Loudoun County, comprising approximately one hundred forty-two (142) acres, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference. The Borrower intends to develop, construct, and operate upon the Property a hyperscale data-center campus known as "Ironhaven Ashburn I," with planned critical IT load capacity of one hundred twenty megawatts (120 MW). Phase I of the project is designed to deliver sixty megawatts (60 MW) of critical IT load at an estimated construction cost of four hundred seventy-five million dollars ($475,000,000).
D. As a condition precedent to the funding of the Term Loan under the Credit Agreement on the Closing Date (June 3, 2024), the Collateral Agent has required the Borrower to execute and deliver this Environmental Indemnity Agreement in order to allocate environmental risks and liabilities associated with the Property and to protect the interests of the Collateral Agent and the other Secured Parties.
E. The Borrower has caused to be prepared, and has delivered to the Collateral Agent and the Administrative Agent, (i) a Phase I Environmental Site Assessment and (ii) a Phase II Environmental Site Assessment, each prepared by Greenline Environmental Solutions, Inc. (Dr. Ramon Quelibo, Principal Engineer), covering the Property, as more particularly described in Exhibit B attached hereto (collectively, the "Environmental Reports"). Such Environmental Reports have been reviewed by the Administrative Agent and the Collateral Agent and their respective environmental consultants, and no conditions have been identified therein that would preclude the closing of the Term Loan, subject to the terms and conditions of this Agreement.
F. The Borrower has caused to be placed the builder's risk, property, commercial general liability, and business-interruption insurance policies required under the Credit Agreement through its insurance broker, Calloway & Strand Insurance Brokers, Inc. (Patricia Calloway, Managing Director), and the Collateral Agent has been named as loss payee and additional insured on such policies, as evidenced by the Insurance Compliance Certificate delivered to the Administrative Agent on or prior to the Closing Date.
G. Keystone Title Guaranty Company (Raymond Hobbs, Vice President, National Commercial Services) has issued an ALTA Lender's Title Insurance Policy in the coverage amount of four hundred seventy-five million dollars ($475,000,000) insuring the Collateral Agent's first-priority lien on the Property created by the Deed of Trust, subject only to the Permitted Encumbrances as defined in the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements contained herein, the making of the Term Loan under the Credit Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Indemnitor hereby agrees as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the following meanings:
"Administrative Agent" means Crescent Harbor Bank, N.A., a national banking association, with offices at 1200 Harbor Point Drive, Charlotte, North Carolina 28202, in its capacity as administrative agent under the Credit Agreement, and its successors and assigns in such capacity.
"Agreement" means this Environmental Indemnity Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Borrower" or "Indemnitor" means Ironhaven Data Centers LLC, a Delaware limited liability company, and its successors and permitted assigns.
"Business Day" has the meaning ascribed to such term in the Credit Agreement.
"Closing Date" means June 3, 2024, or such other date on which the initial funding of the Term Loan occurs under the Credit Agreement.
"Collateral Agent" means Pinnacle Trust Company, N.A., a national trust company, with offices at 101 Constitution Avenue NW, Washington, D.C. 20001 (Attention: William Hargrove, Senior Vice President, Corporate Trust), in its capacity as collateral agent under the Credit Agreement and the other Loan Documents, and its successors and assigns in such capacity.
"Credit Agreement" means the Senior Secured Term Loan B Credit Agreement dated as of May 15, 2024, among the Borrower, Ironhaven Frankfurt GmbH (as Co-Borrower), Ironhaven Holdings Inc. (as Parent Guarantor), the Administrative Agent, the Collateral Agent, and the Lenders, as the same may be amended, restated, amended and restated, supplemented, refinanced, replaced, or otherwise modified from time to time.
"Deed of Trust" means the Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing dated as of the date hereof, granted by the Borrower in favor of the Collateral Agent for the benefit of the Secured Parties, encumbering the Property and recorded or to be recorded in the land records of Loudoun County, Virginia, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Environmental Claim" means any and all claims, actions, suits, demands, proceedings (whether administrative, judicial, or otherwise), orders, decrees, consent orders, consent decrees, directives, penalties, fines, liens, judgments, costs, liabilities, obligations, investigations, or notices (written or oral) by any person or entity (including any governmental authority) arising under, based upon, or relating to any Environmental Law, or arising from or relating to the presence, release, threatened release, generation, storage, treatment, transport, disposal, or migration of any Hazardous Materials on, at, in, under, above, from, to, or affecting the Property or any adjacent or nearby real property. An Environmental Claim shall include, without limitation, (a) any claim by any governmental authority for enforcement, investigation, cleanup, removal, remediation, response, or other remedial or corrective action under any Environmental Law, (b) any claim by any third party seeking damages, contribution, indemnification, cost recovery, compensation, or injunctive relief resulting from Hazardous Materials or violations of Environmental Laws, and (c) any claim arising from or relating to any environmental permit, license, or approval relating to the Property.
"Environmental Law" means any and all federal, state, and local laws, statutes, ordinances, rules, regulations, codes, judgments, orders, decrees, directives, permits, licenses, and other requirements (including common law) relating to (a) pollution or the protection of the environment, including ambient air, surface water, groundwater, land surface, or subsurface strata, (b) the management, generation, manufacture, production, installation, use, treatment, storage, transportation, handling, recycling, release, threatened release, disposal, or distribution of, or exposure to, Hazardous Materials, or (c) the protection of human health and safety as it relates to environmental conditions or Hazardous Materials. Without limiting the generality of the foregoing, Environmental Law includes: (i) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"); (ii) the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.) ("RCRA"); (iii) the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.) (the "Clean Water Act"); (iv) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (v) the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.) ("TSCA"); (vi) the Emergency Planning and Community Right-to-Know Act (42 U.S.C. §§ 11001 et seq.) ("EPCRA"); (vii) the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.); (viii) the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.); (ix) the Virginia Waste Management Act (Va. Code Ann. §§ 10.1-1400 et seq.); (x) the Virginia Water Control Law (Va. Code Ann. §§ 62.1-44.2 et seq.); (xi) the Virginia Air Pollution Control Law (Va. Code Ann. §§ 10.1-1300 et seq.); (xii) the Virginia State Water Control Law; and (xiii) all regulations promulgated under any of the foregoing, each as amended from time to time, together with any analogous or successor federal, state, or local statutes, regulations, or ordinances.
"Environmental Liability" means any and all liabilities, obligations, losses, costs, damages, expenses (including reasonable and documented attorneys' fees, paralegals' fees, expert witness fees, consultants' fees, laboratory and testing fees, and court costs), fines, penalties, assessments, claims, causes of action, judgments, settlements, and other amounts arising from, relating to, or in connection with (a) any Environmental Claim, (b) the presence, release, threatened release, generation, use, storage, treatment, transport, disposal, or migration of Hazardous Materials on, at, in, under, above, from, to, or affecting the Property, (c) any actual or alleged violation of any Environmental Law relating to the Property or operations thereon, or (d) any Remedial Action required with respect to the Property.
"Environmental Reports" means the environmental reports listed on Exhibit B attached hereto, as such Exhibit B may be supplemented from time to time.
"Event of Default" has the meaning ascribed to such term in the Credit Agreement.
"Guarantee Agreement" means the Guarantee Agreement dated as of May 15, 2024, among Ironhaven Holdings Inc. (as Parent Guarantor), certain subsidiary guarantors, and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Hazardous Materials" means (a) any substance, material, waste, pollutant, or contaminant that is regulated, listed, defined, designated, or classified as hazardous, toxic, radioactive, dangerous, or as a pollutant or contaminant under any Environmental Law, including any substance or material defined as a "hazardous substance" under CERCLA, a "hazardous waste" under RCRA, a "toxic substance" under TSCA, a "hazardous material" under the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), or a "hazardous waste" or "solid waste" under the Virginia Waste Management Act; (b) petroleum and petroleum products, including crude oil and any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel; (c) asbestos and asbestos-containing materials in any form; (d) polychlorinated biphenyls ("PCBs") and equipment containing PCBs; (e) lead and lead-based paint; (f) mold, mildew, or other fungi of a type that may pose a health risk to humans or cause structural damage; (g) per- and polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS"); (h) radon and radon gas; (i) radioactive materials; (j) urea formaldehyde; and (k) any other substance, material, or waste the presence, release, or threatened release of which on, at, in, under, above, from, to, or affecting the Property could give rise to an Environmental Claim or require investigation, monitoring, cleanup, or remediation under any Environmental Law.
"Indemnitees" means, collectively, (a) the Collateral Agent (Pinnacle Trust Company, N.A.), (b) the Administrative Agent (Crescent Harbor Bank, N.A.), (c) each Lender under the Credit Agreement, including without limitation the following Lenders and their respective commitment amounts as of the Closing Date:
and (d) the respective successors, assigns, participants, officers, directors, employees, agents, attorneys, and representatives of each of the foregoing.
"Intercreditor Agreement" means the First Lien / Super-Senior Intercreditor Agreement dated as of May 15, 2024, among IHDC, Crescent Harbor Bank, N.A. (in its capacity as Term Loan Agent and Revolver Agent), and Pinnacle Trust Company, N.A. (as Collateral Agent), as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Lenders" means the several financial institutions from time to time party to the Credit Agreement as lenders, with aggregate commitments as of the Closing Date of nine hundred fifty million dollars ($950,000,000).
"Loan Documents" has the meaning ascribed to such term in the Credit Agreement and includes, without limitation, this Agreement, the Credit Agreement, the Deed of Trust, the US Pledge and Security Agreement, the Guarantee Agreement, the Intercreditor Agreement, and all other agreements, instruments, certificates, and documents executed and delivered in connection therewith.
"Obligations" has the meaning ascribed to such term in the Credit Agreement.
"Parent Guarantor" means Ironhaven Holdings Inc., a Delaware corporation (EIN: 84-3291044), with its principal offices at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147.
"Permitted Hazardous Materials" means Hazardous Materials that are used, generated, stored, or maintained on or about the Property in the ordinary course of constructing and operating the data-center campus, including without limitation diesel fuel for backup generators, battery electrolyte for uninterruptible power supply systems (whether lithium-ion, lead-acid, or other battery chemistries), cleaning solvents and degreasers, refrigerants for HVAC and cooling systems, fire-suppression chemicals (including clean-agent systems), transformer oil (non-PCB mineral oil or natural ester fluids), and paints, coatings, and adhesives used during construction activities, in each case (a) in compliance with all applicable Environmental Laws, (b) in quantities customary for hyperscale data-center operations of comparable scale, and (c) properly stored, labeled, contained, and handled in accordance with all applicable laws, regulations, and manufacturer specifications, as more particularly described in Exhibit C attached hereto.
"Property" means the real property located at 4500–4550 Dominion Ridge Boulevard, Ashburn, Loudoun County, Virginia 20147, identified as Tax Parcel Nos. 087-27-1234 and 087-27-1235 on the tax maps of Loudoun County, Virginia, comprising approximately one hundred forty-two (142) acres, together with all buildings, improvements, structures, fixtures, easements, rights-of-way, and appurtenances thereto, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
"Remedial Action" means any investigation, study, assessment, testing, monitoring, containment, cleanup, removal, remediation, mitigation, treatment, neutralization, restoration, or other corrective or responsive action that is required or appropriate under any Environmental Law or by any governmental authority in connection with Hazardous Materials on, at, in, under, above, from, to, or affecting the Property, including without limitation the preparation of any feasibility studies, corrective-action plans, remedial investigation/feasibility studies, risk assessments, and closure or post-closure plans.
"Required Lenders" has the meaning ascribed to such term in the Credit Agreement.
"Secured Parties" has the meaning ascribed to such term in the Credit Agreement.
"Sponsor" means Thornfield Capital Partners, LP, a Delaware limited partnership, with its principal offices at 800 Park Avenue, 22nd Floor, New York, New York 10021, acting through its fund Thornfield Infrastructure Fund III, LP.
"US Pledge and Security Agreement" means the Pledge and Security Agreement dated as of May 15, 2024, among the Borrower, the other grantors party thereto, and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
Section 1.2 — Rules of Construction
(a) Unless otherwise defined in this Agreement, all capitalized terms used herein shall have the meanings ascribed to them in the Credit Agreement, and the rules of construction set forth in Article I of the Credit Agreement shall apply to this Agreement as if fully set forth herein.
(b) All references in this Agreement to "Articles," "Sections," and "Exhibits" are, unless otherwise specified, references to Articles, Sections, and Exhibits of or to this Agreement.
(c) The words "hereof," "herein," "hereto," and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
(d) References to any statute, regulation, or ordinance shall be deemed to include all amendments thereto and all successor statutes, regulations, or ordinances, unless the context otherwise requires.
(e) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles that would result in the application of the laws of any other jurisdiction; provided, however, that to the extent the laws of the Commonwealth of Virginia mandatorily apply to matters relating to the creation, perfection, priority, or enforcement of real property interests in the Property or the environmental conditions of or affecting the Property, the laws of the Commonwealth of Virginia shall apply to such matters.
(f) References to "include," "includes," and "including" shall be deemed to be followed by the words "without limitation."
(g) The singular shall include the plural and the plural shall include the singular, and references to any gender shall include all genders, unless the context otherwise requires.
(h) In the event of any conflict between the terms of this Agreement and the terms of the Credit Agreement with respect to the environmental obligations of the Indemnitor, the provision that is more protective of the Indemnitees shall control.
ARTICLE II — REPRESENTATIONS AND WARRANTIES
The Indemnitor hereby makes the following representations and warranties to the Collateral Agent and each of the other Indemnitees as of the date hereof and as of the Closing Date (June 3, 2024):
Section 2.1 — Compliance with Environmental Laws
(a) The Property and all current operations thereon (including all construction activities related to the Ironhaven Ashburn I data-center campus) are in compliance in all material respects with all applicable Environmental Laws, including without limitation CERCLA, RCRA, the Clean Water Act, the Clean Air Act, TSCA, EPCRA, the Virginia Waste Management Act, and the Virginia Water Control Law.
(b) No Environmental Claim is pending or, to the Indemnitor's knowledge after due inquiry, threatened against the Indemnitor, the Property, or any prior owner or operator of the Property. Neither the Indemnitor nor, to the Indemnitor's knowledge, any prior owner, operator, or occupant of the Property has received any written notice, citation, summons, complaint, order, directive, or other communication from any governmental authority or any third party alleging or asserting any violation of, or liability under, any Environmental Law with respect to the Property.
(c) Neither the Property nor any portion thereof is listed on, or has been proposed for listing on, the National Priorities List under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Information System ("CERCLIS"), or any comparable state or local list of sites requiring investigation or cleanup, including any list maintained by the Virginia Department of Environmental Quality.
Section 2.2 — Hazardous Materials
(a) Except for Permitted Hazardous Materials present on the Property in compliance with Environmental Laws, and except as specifically disclosed in the Phase I and Phase II Environmental Site Assessments prepared by Greenline Environmental Solutions, Inc. (Dr. Ramon Quelibo, Principal Engineer), no Hazardous Materials are present on, at, in, under, above, or about the Property in quantities, concentrations, or conditions that would (i) give rise to liability under any Environmental Law, (ii) require investigation, monitoring, cleanup, remediation, or other Remedial Action under any Environmental Law, or (iii) constitute a violation of any Environmental Law.
(b) No underground storage tanks ("USTs"), whether in active use, temporarily out of service, or abandoned, are located on, at, in, or under the Property. No USTs have been removed from the Property in a manner that resulted in residual contamination that has not been fully remediated in accordance with applicable Environmental Laws.
(c) No asbestos-containing materials ("ACMs"), polychlorinated biphenyls ("PCBs"), or lead-based paint are present in any improvements, buildings, structures, or facilities located on the Property. The Indemnitor acknowledges that the Property is currently in an undeveloped or early-construction-phase condition, and the Indemnitor represents that no construction materials containing ACMs, PCBs, or lead-based paint will be used in the construction of the Ironhaven Ashburn I data-center campus.
(d) To the Indemnitor's knowledge, no Hazardous Materials have migrated onto the Property from any adjacent or nearby properties, and no conditions exist on adjacent or nearby properties that are reasonably likely to result in such migration.
Section 2.3 — Environmental Reports
(a) The Indemnitor has delivered to the Collateral Agent and the Administrative Agent true, correct, and complete copies of all environmental reports, assessments, audits, investigations, studies, and other documents or information in the Indemnitor's possession or control relating to the environmental condition of the Property, including without limitation the Phase I and Phase II Environmental Site Assessments prepared by Greenline Environmental Solutions, Inc. (Dr. Ramon Quelibo, Principal Engineer), as listed on Exhibit B attached hereto.
(b) To the Indemnitor's knowledge, the information contained in the Environmental Reports is accurate and complete in all material respects as of the respective dates thereof, and no material environmental condition has been identified in such reports or otherwise that has not been disclosed to and approved or accepted by the Administrative Agent in writing.
(c) The Indemnitor has not withheld from the Collateral Agent or the Administrative Agent any material environmental information, report, study, or assessment relating to the Property that is in the Indemnitor's possession or control.
Section 2.4 — Permits and Licenses
(a) All material environmental permits, licenses, approvals, registrations, and authorizations required under applicable Environmental Laws for the current construction activities and the anticipated operation of the Ironhaven Ashburn I data-center campus on the Property have been duly obtained and are in full force and effect, or applications for such permits, licenses, approvals, registrations, and authorizations have been submitted and are pending in the ordinary course, and the Indemnitor is not aware of any facts, circumstances, or conditions that would provide a reasonable basis for the denial of any such pending applications.
(b) The Indemnitor is not in default or violation of any term, condition, or requirement of any environmental permit, license, or approval relating to the Property, and no proceedings are pending or, to the Indemnitor's knowledge, threatened seeking the revocation, modification, suspension, or non-renewal of any such permit, license, or approval.
Section 2.5 — Prior Uses
To the Indemnitor's knowledge, based upon the Environmental Reports and the Indemnitor's own due diligence investigations, no prior owner, operator, or occupant of the Property used the Property or any portion thereof for industrial manufacturing, landfill operations, waste disposal, dry cleaning, gasoline or fuel storage or distribution, mining, or other activities that are commonly associated with the generation, use, storage, release, or disposal of Hazardous Materials or that are otherwise likely to have caused contamination of the soil, groundwater, surface water, or other environmental media on, at, in, under, or about the Property.
Section 2.6 — No Liens
No environmental lien, superlien, or governmental claim arising under any Environmental Law has been filed, recorded, or threatened against the Property or any interest therein. The Indemnitor has not received any notice of the filing or threatened filing of any such lien or claim, and no event has occurred or condition exists that could reasonably be expected to give rise to the filing of any such lien or claim.
ARTICLE III — ENVIRONMENTAL COVENANTS
The Indemnitor hereby covenants and agrees with the Collateral Agent and each of the other Indemnitees as follows:
Section 3.1 — Compliance
(a) The Indemnitor shall at all times comply, and shall cause all tenants, subtenants, licensees, contractors, subcontractors, and other occupants of the Property to comply, in all material respects with all Environmental Laws applicable to the Property, the construction activities thereon, and the operation of the Ironhaven Ashburn I data-center campus. Without limiting the foregoing, the Indemnitor shall comply in all material respects with all applicable federal, state, and local environmental laws, regulations, and ordinances, including CERCLA, RCRA, the Clean Water Act, the Clean Air Act, TSCA, EPCRA, the Virginia Waste Management Act, and the Virginia Water Control Law.
(b) The Indemnitor shall obtain and maintain in full force and effect all environmental permits, licenses, approvals, registrations, and authorizations necessary for the construction (including Phase I of the Ironhaven Ashburn I campus, with an estimated construction cost of four hundred seventy-five million dollars ($475,000,000)) and the operation of the data-center campus on the Property. The Indemnitor shall timely apply for renewals of all such permits, licenses, and approvals and shall promptly notify the Collateral Agent of any threatened or actual revocation, suspension, modification, or non-renewal thereof.
(c) The Indemnitor shall comply with all reporting and notification requirements imposed by any Environmental Law with respect to the Property, including without limitation any requirements to report releases of Hazardous Materials to the Virginia Department of Environmental Quality, the United States Environmental Protection Agency, or any other applicable governmental authority.
Section 3.2 — Prohibition on Hazardous Materials
(a) The Indemnitor shall not cause or permit any Hazardous Materials to be generated, manufactured, produced, used, stored, treated, processed, released, discharged, emitted, disposed of, or transported on, at, in, under, above, from, to, or about the Property, except for Permitted Hazardous Materials that are used, stored, and maintained in strict compliance with all applicable Environmental Laws and in accordance with the terms of this Agreement.
(b) Without limiting the generality of the foregoing, the Indemnitor shall give special attention to the following data-center-specific materials and ensure that each is managed in compliance with all applicable Environmental Laws and manufacturer specifications:
(i) Diesel fuel for backup generators shall be stored exclusively in above-ground storage tanks ("ASTs") that comply with all applicable federal, state, and local regulations, including Spill Prevention, Control, and Countermeasure ("SPCC") plan requirements under 40 C.F.R. Part 112, where applicable. No underground storage tanks shall be installed for diesel fuel or any other petroleum product without the prior written consent of the Collateral Agent pursuant to Section 3.7 below.
(ii) Battery systems (including lithium-ion, lead-acid, and any other battery chemistries employed in uninterruptible power supply ("UPS") systems) shall be installed, maintained, and managed in compliance with all applicable Environmental Laws, building codes, fire codes, and National Fire Protection Association ("NFPA") standards, including NFPA 855 (Standard for the Installation of Stationary Energy Storage Systems).
(iii) Refrigerants for HVAC and cooling systems shall be managed in compliance with Section 608 of the Clean Air Act (42 U.S.C. § 7671g) and applicable EPA regulations regarding refrigerant management, leak detection, and recordkeeping.
(iv) Fire-suppression chemicals (including clean-agent fire-suppression systems employing substances such as FM-200, Greaves & Co. 1230, or inert gas systems) shall be stored and maintained in compliance with all applicable Environmental Laws, NFPA standards, and manufacturer specifications.
(c) The Indemnitor shall maintain and implement a Hazardous Materials management plan for the Property, consistent with industry best practices for hyperscale data-center operations, and shall make such plan available to the Collateral Agent upon reasonable request.
Section 3.3 — Notice of Environmental Claims
(a) The Indemnitor shall promptly, and in any event within five (5) Business Days of obtaining knowledge thereof, notify the Collateral Agent and the Administrative Agent in writing of:
(i) any Environmental Claim asserted or threatened against the Indemnitor, the Property, or any tenant, subtenant, licensee, contractor, or other occupant of the Property;
(ii) any release or threatened release of Hazardous Materials on, at, in, under, above, from, to, or about the Property that (A) is required to be reported to any governmental authority under any Environmental Law, or (B) could reasonably be expected to give rise to an Environmental Claim or require Remedial Action;
(iii) any notice of violation, notice of noncompliance, citation, summons, complaint, order, directive, or other communication from any governmental authority alleging or asserting any violation of any Environmental Law with respect to the Property;
(iv) any investigation, inquiry, request for information, or enforcement action initiated by any governmental authority regarding Hazardous Materials or Environmental Laws relating to the Property;
(v) any change in the environmental condition of the Property that could reasonably be expected to result in an Environmental Liability in excess of two hundred fifty thousand dollars ($250,000); and
(vi) any proposed change in the use of the Property or any portion thereof that would involve the storage, generation, use, or disposal of Hazardous Materials other than Permitted Hazardous Materials.
(b) Each notice delivered pursuant to this Section 3.3 shall include a reasonably detailed description of the event or condition giving rise to the notice, the Indemnitor's assessment of the potential environmental and financial impact thereof, and the actions taken or proposed to be taken by the Indemnitor in response thereto.
(c) The Indemnitor shall promptly provide to the Collateral Agent copies of all material correspondence, reports, notices, orders, directives, permits, and other documents received from or submitted to any governmental authority in connection with any Environmental Claim, investigation, or enforcement action relating to the Property.
Section 3.4 — Remedial Actions
(a) If any Remedial Action is required or appropriate with respect to the Property under any Environmental Law or by any governmental authority, or if the Indemnitor becomes aware of any condition on, at, in, under, above, from, to, or about the Property that could reasonably be expected to require Remedial Action, the Indemnitor shall promptly commence and diligently pursue to completion all such Remedial Action in accordance with all applicable Environmental Laws and the directives of the applicable governmental authorities, at the Indemnitor's sole cost and expense.
(b) All Remedial Actions undertaken by the Indemnitor shall be performed by qualified environmental consultants and contractors with experience in the investigation and remediation of environmental conditions of the type and scope involved, and in compliance with all applicable Environmental Laws, regulations, and governmental directives.
(c) The Indemnitor shall keep the Collateral Agent and the Administrative Agent reasonably informed of the status, progress, and results of any Remedial Action, including by providing copies of all material reports, work plans, sampling results, correspondence with governmental authorities, and closure or no-further-action letters received in connection therewith.
(d) The Indemnitor shall not enter into any settlement, consent order, consent decree, or other agreement with any governmental authority or third party relating to any Environmental Claim or Remedial Action without the prior written consent of the Collateral Agent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that the Collateral Agent's consent shall not be required for any settlement or agreement that does not (i) impose any material obligation (whether financial or operational) on any Indemnitee, (ii) create any lien or encumbrance on the Property (other than Permitted Encumbrances), or (iii) involve aggregate costs in excess of five hundred thousand dollars ($500,000).
Section 3.5 — Environmental Assessments
(a) The Collateral Agent (or the Administrative Agent on its behalf) shall have the right, upon reasonable prior written notice to the Indemnitor (which notice shall not be required to be less than five (5) Business Days, except in the case of an emergency), to cause a Phase I environmental site assessment, a Phase II environmental site assessment, or any other environmental assessment, audit, investigation, sampling, testing, or monitoring to be conducted with respect to the Property by a qualified environmental consultant selected by the Collateral Agent. Such assessments may include, without limitation, soil testing, groundwater sampling, air quality monitoring, asbestos surveys, and investigations of subsurface conditions.
(b) The cost of any environmental assessment conducted pursuant to this Section 3.5 shall be borne as follows:
(i) If such assessment is conducted following and during the continuance of an Event of Default under the Credit Agreement or this Agreement, the cost thereof shall be borne by the Indemnitor and shall constitute an Obligation secured by the Deed of Trust;
(ii) If such assessment is conducted based upon the Collateral Agent's or Administrative Agent's reasonable belief (based upon specific, articulable facts or circumstances) that Hazardous Materials contamination or an Environmental Law violation exists or may exist on the Property, the cost thereof shall be borne by the Indemnitor regardless of whether an Event of Default has occurred;
(iii) In all other cases, the cost of any environmental assessment shall be borne by the requesting Indemnitee; provided, however, that the Collateral Agent shall have the right to conduct routine environmental assessments of the Property no more frequently than once per calendar year at the Indemnitor's expense.
(c) Commencing with the fiscal quarter ending September 30, 2024, and continuing thereafter as required under the Credit Agreement, the Indemnitor shall deliver to the Collateral Agent and the Administrative Agent, together with each quarterly Compliance Certificate required to be delivered pursuant to the Credit Agreement, an annual environmental compliance certification in form and substance reasonably satisfactory to the Collateral Agent, certifying (i) the Indemnitor's continued compliance in all material respects with all applicable Environmental Laws, (ii) the absence of any pending or, to the Indemnitor's knowledge, threatened Environmental Claims relating to the Property, (iii) the absence of any release or threatened release of Hazardous Materials on or from the Property other than Permitted Hazardous Materials in compliance with Environmental Laws, and (iv) the continued accuracy of the representations and warranties set forth in Article II (or, if any representation or warranty is no longer accurate, a description of the relevant facts and circumstances and the actions taken or proposed to be taken by the Indemnitor in response thereto).
Section 3.6 — No Transfer of Hazardous Materials
The Indemnitor shall not transport, or cause or permit to be transported, or arrange for the transportation of, any Hazardous Materials from the Property to any off-site location unless such location is a properly permitted and licensed facility operating in compliance with all applicable Environmental Laws and authorized to receive such Hazardous Materials. The Indemnitor shall maintain records of all off-site shipments of Hazardous Materials from the Property, including manifests, bills of lading, and certificates of disposal, and shall make such records available to the Collateral Agent upon reasonable request.
Section 3.7 — Underground Storage Tanks
The Indemnitor shall not install, cause to be installed, or permit the installation of any underground storage tank on the Property without the prior written consent of the Collateral Agent, which consent may be withheld in the Collateral Agent's sole and absolute discretion. For the avoidance of doubt, all fuel storage for backup generators and other operational purposes shall be in above-ground storage tanks meeting all applicable regulatory requirements, including SPCC plan requirements where applicable.
ARTICLE IV — INDEMNIFICATION
Section 4.1 — General Indemnity
The Indemnitor shall indemnify, defend (with legal counsel reasonably acceptable to the Collateral Agent and selected in consultation with the Collateral Agent), and hold harmless each Indemnitee from and against any and all Environmental Liabilities arising from, relating to, based upon, or in connection with any one or more of the following:
(a) The presence, release, threatened release, discharge, emission, disposal, generation, storage, treatment, transport, or migration of any Hazardous Materials on, at, in, under, above, from, to, or affecting the Property, whether such Hazardous Materials were present, released, or migrated at any time before, on, or after the date of this Agreement, and regardless of the source of such Hazardous Materials;
(b) Any actual or alleged violation of any Environmental Law relating to the Property or the operations conducted thereon at any time, including during the construction and operation of the Ironhaven Ashburn I data-center campus;
(c) Any Environmental Claim relating to the Property, including any Environmental Claim asserted by any governmental authority, any private party, any tenant or occupant of the Property, any adjacent landowner, or any other person or entity;
(d) Any failure by the Indemnitor to comply with any covenant, agreement, or obligation set forth in Article III of this Agreement, whether or not such failure constitutes an Event of Default;
(e) Any inaccuracy in, or breach of, any representation or warranty set forth in Article II of this Agreement, as of the date hereof, as of the Closing Date, or at any time thereafter (to the extent such representations and warranties are stated to apply on a continuing basis); and
(f) Any Remedial Action required or conducted with respect to the Property, whether such Remedial Action is required by any governmental authority, undertaken voluntarily by any Indemnitee, or necessitated by any Environmental Claim.
Section 4.2 — Scope of Indemnified Costs
Environmental Liabilities subject to indemnification under this Article IV include, without limitation, each of the following categories of losses, costs, damages, liabilities, and expenses:
(a) Investigation, Monitoring, and Remedial Action Costs. All costs and expenses incurred in connection with the investigation, assessment, testing, monitoring, containment, cleanup, removal, remediation, treatment, restoration, and other corrective or responsive actions with respect to Hazardous Materials on, at, in, under, above, from, to, or affecting the Property;
(b) Fines, Penalties, and Governmental Assessments. All fines, penalties, sanctions, and assessments imposed by any governmental authority under any Environmental Law, including civil penalties, administrative penalties, and consent decree stipulated penalties;
(c) Natural Resource Damages. All damages to natural resources (including damages assessed pursuant to Section 107(a)(4)(C) of CERCLA, 42 U.S.C. § 9607(a)(4)(C)) arising from the release or threatened release of Hazardous Materials on or from the Property;
(d) Third-Party Claims. All damages, costs, losses, and expenses arising from personal injury, bodily injury, illness, death, or property damage claims asserted by third parties (including employees of the Indemnitor, tenants, contractors, and members of the public) arising from or relating to Hazardous Materials on, at, in, under, above, from, to, or affecting the Property;
(e) Legal and Professional Fees. All reasonable and documented attorneys' fees, paralegals' fees, expert witness fees, consultant fees (including without limitation fees and expenses of Greenline Environmental Solutions, Inc. or any successor or replacement environmental consultant retained by any Indemnitee), laboratory and testing fees, engineering fees, and court costs incurred by any Indemnitee in connection with any Environmental Claim or in enforcing the indemnification obligations under this Agreement;
(f) Diminution in Value. Any diminution in the fair market value of the Property attributable to the presence of Hazardous Materials, environmental contamination, or the existence of any Environmental Claim or Environmental Liability;
(g) Loss of Use. Loss of use, loss of rental income, loss of business income, and any other economic losses suffered by any Indemnitee arising from the loss of use of the Property or any portion thereof as a result of Hazardous Materials, environmental contamination, or any Remedial Action conducted with respect to the Property;
(h) Compliance Costs. Costs of compliance with Environmental Laws, including costs of obtaining, renewing, or maintaining environmental permits, licenses, and approvals, and costs of implementing monitoring, reporting, and recordkeeping requirements imposed by any Environmental Law or governmental authority;
(i) Assessment Costs. All costs and expenses incurred by the Collateral Agent or any other Indemnitee in exercising its rights under Section 3.5 of this Agreement to cause environmental assessments to be conducted with respect to the Property; and
(j) Ancillary Costs. All other costs, expenses, and liabilities reasonably incurred by any Indemnitee in connection with any Environmental Claim, Environmental Liability, or Remedial Action, including costs of alternative water supplies, temporary relocation expenses, public notification costs, and administrative and overhead costs.
Section 4.3 — Indemnity Irrespective of Fault
(a) The indemnification obligations of the Indemnitor under this Article IV are absolute and unconditional and shall apply regardless of whether:
(i) the Indemnitor caused or contributed to the Environmental Liability in question, or the Environmental Liability was caused in whole or in part by any other person or entity, including any prior owner, operator, or occupant of the Property, any tenant, subtenant, licensee, or contractor, any adjacent landowner, or any governmental authority;
(ii) the Environmental Liability arose from or relates to conditions existing before the date of this Agreement, on the date of this Agreement, or after the date of this Agreement;
(iii) the Environmental Liability arises from conditions existing prior to the Indemnitor's acquisition of ownership or possession of the Property;
(iv) any Indemnitee has or acquires any interest in the Property through foreclosure of the Deed of Trust, acceptance of a deed in lieu of foreclosure, exercise of a power of sale, appointment of a receiver, or otherwise;
(v) the Indemnitor has obtained or maintained any environmental insurance covering the applicable Environmental Liability; or
(vi) the Environmental Liability would not have been incurred but for the actions or omissions of any Indemnitee (other than the willful misconduct or gross negligence of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction).
(b) The indemnification obligations under this Article IV extend to Environmental Liabilities arising under theories of strict liability, joint and several liability, negligence, nuisance (whether public or private), trespass, and any other theory of liability under Environmental Laws, common law, or otherwise.
(c) The Indemnitor acknowledges that the indemnification obligations set forth in this Article IV are a material inducement to the Collateral Agent and the Lenders to enter into the Credit Agreement and fund the Term Loan, and that the Collateral Agent and the Lenders would not have agreed to enter into the Credit Agreement or fund the Term Loan without such indemnification.
Section 4.4 — Lender Liability Protection
(a) Nothing in this Agreement or in any other Loan Document, and no action taken by the Collateral Agent or any other Indemnitee pursuant to this Agreement or any other Loan Document (including the exercise of any right to inspect the Property, to cause environmental assessments, to approve or require Remedial Actions, to exercise remedies under the Deed of Trust, or to otherwise monitor the Indemnitor's environmental compliance), shall be construed to cause, or shall result in, the Collateral Agent or any other Indemnitee being deemed an "owner" or "operator" of the Property, or a person who is "otherwise liable" (within the meaning of any Environmental Law), for purposes of CERCLA, RCRA, or any other Environmental Law.
(b) The Collateral Agent and each other Indemnitee exercise their respective rights under this Agreement and the other Loan Documents solely in their capacity as secured creditors and for the purpose of protecting their security interests in the Property and the other Collateral, and not as owners, operators, or managers of the Property. Nothing in this Agreement shall be construed to require or obligate the Collateral Agent or any other Indemnitee to investigate, monitor, clean up, remediate, or take any other action with respect to Hazardous Materials on or affecting the Property.
(c) The Collateral Agent and each other Indemnitee are intended to be and shall be treated as a "secured creditor" within the meaning of the secured-creditor exemption under CERCLA (42 U.S.C. § 9601(20)(E)) and any analogous state law exemption, and the parties shall take no action that is inconsistent with such treatment.
Section 4.5 — Survival
(a) The indemnification obligations of the Indemnitor under this Article IV, and the Indemnitor's representations, warranties, covenants, and agreements under this Agreement, shall survive and continue in full force and effect regardless of and shall not be affected, diminished, or released by:
(i) the repayment, satisfaction, or discharge of all Obligations under the Credit Agreement, including the Term Loan and all interest, fees, and other amounts owed thereunder;
(ii) the release, reconveyance, or discharge of the Deed of Trust and any or all of the other Loan Documents;
(iii) any foreclosure of the Deed of Trust, exercise of power of sale, acceptance of a deed in lieu of foreclosure, appointment of a receiver, or other transfer of the Property to the Collateral Agent, any other Indemnitee, or any third party;
(iv) the termination or expiration of the Credit Agreement, whether on the scheduled maturity date of June 3, 2031, or on any earlier or later date;
(v) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation, or similar proceeding with respect to the Indemnitor, the Parent Guarantor, or any other Loan Party; and
(vi) any other event or circumstance that might otherwise constitute a defense to, or a discharge or release of, the Indemnitor's obligations under this Agreement.
(b) The survival provisions of this Section 4.5 are a material term of this Agreement and reflect the intention of the parties that the Indemnitor's environmental indemnification obligations shall be perpetual in duration and shall not be subject to any statute of limitations or prescriptive period. For the avoidance of doubt, these indemnification obligations shall survive beyond the June 3, 2031 maturity date of the Term Loan under the Credit Agreement.
ARTICLE V — ADDITIONAL OBLIGATIONS
Section 5.1 — Insurance
(a) The Indemnitor shall obtain and maintain in full force and effect at all times an environmental liability insurance policy (commonly referred to as a "pollution legal liability" policy) covering the Property, with coverage amounts, policy terms, deductibles, retentions, and exclusions satisfactory to the Collateral Agent in its reasonable judgment. Such policy shall (i) name the Collateral Agent and each other Indemnitee as additional insureds, (ii) provide for at least thirty (30) days' prior written notice to the Collateral Agent of any cancellation, non-renewal, or material modification of coverage, and (iii) include coverage for third-party claims for bodily injury, property damage, and cleanup costs arising from pollution conditions on or migrating from the Property.
(b) The Indemnitor's obligation to maintain environmental liability insurance is in addition to, and not in lieu of, the insurance requirements set forth in the Credit Agreement, the Deed of Trust, and the Insurance Compliance Certificate delivered by Calloway & Strand Insurance Brokers, Inc. (Patricia Calloway, Managing Director) to the Administrative Agent on or prior to the Closing Date. The Indemnitor shall deliver to the Collateral Agent evidence of such insurance coverage (including certificates of insurance naming the Collateral Agent as additional insured) promptly upon the placement or renewal of such coverage and at such other times as the Collateral Agent may reasonably request.
(c) The Indemnitor's obligation to maintain environmental liability insurance shall not limit, reduce, or otherwise affect the Indemnitor's indemnification obligations under Article IV, which obligations shall apply regardless of whether any Environmental Liability is covered by insurance.
Section 5.2 — Indemnitor's Remediation Obligations
(a) In the event of any contamination of the Property or any release of Hazardous Materials on, at, in, under, above, from, to, or about the Property (other than the use of Permitted Hazardous Materials in compliance with all Environmental Laws), the Indemnitor shall, at its sole cost and expense:
(i) promptly retain a qualified environmental consultant (such as Greenline Environmental Solutions, Inc. or another environmental consultant approved by the Collateral Agent, such approval not to be unreasonably withheld) to investigate the nature, extent, and severity of the contamination;
(ii) promptly develop and submit to the applicable governmental authorities, with copies to the Collateral Agent, a remediation work plan designed to achieve full compliance with all applicable Environmental Laws, cleanup standards, and risk-based corrective action levels;
(iii) promptly commence and diligently prosecute to completion all Remedial Actions required to achieve compliance with Environmental Laws and applicable remediation standards, including obtaining a "no further action" letter, closure letter, or equivalent determination from the applicable governmental authority; and
(iv) bear all costs and expenses of such investigation, remediation, and closure activities, including without limitation consultant fees, contractor costs, laboratory and testing fees, governmental fees, and monitoring and reporting costs.
(b) The Indemnitor shall keep the Collateral Agent reasonably informed of the progress of any remediation activities undertaken pursuant to this Section 5.2, including by providing copies of all material work plans, sampling results, progress reports, and correspondence with governmental authorities.
Section 5.3 — Cooperation with Governmental Authorities
(a) The Indemnitor shall cooperate fully and in good faith with all governmental authorities (including the United States Environmental Protection Agency, the Virginia Department of Environmental Quality, and any other applicable federal, state, or local environmental regulatory agency) in connection with any environmental investigation, cleanup, enforcement action, or other proceeding relating to the Property.
(b) The Indemnitor shall promptly provide to the Collateral Agent copies of all material correspondence, notices, orders, directives, reports, and other communications received from or sent to any governmental authority in connection with any environmental matter relating to the Property.
(c) The Indemnitor shall not take any action or fail to take any action that would impair, obstruct, or delay the efforts of any governmental authority to investigate, monitor, or remediate environmental conditions on or affecting the Property.
Section 5.4 — Access
(a) The Indemnitor hereby grants to the Collateral Agent and its authorized agents, consultants, contractors, and representatives (including, without limitation, Greenline Environmental Solutions, Inc. and any other environmental consultants retained by or on behalf of the Collateral Agent) reasonable access to the Property at all reasonable times during normal business hours for the purposes of inspection, observation, sampling, testing, monitoring, and conducting environmental assessments, audits, and investigations.
(b) Except in the case of an emergency or exigent circumstances (in which case no prior notice shall be required), the Collateral Agent shall provide the Indemnitor with reasonable prior written notice (which shall not be required to be less than two (2) Business Days) before entering the Property to conduct any environmental inspection, sampling, or testing.
(c) The Collateral Agent and its authorized agents, consultants, contractors, and representatives shall conduct all inspections, sampling, and testing activities in a manner that minimizes unreasonable interference with the Indemnitor's construction and business operations on the Property, and shall comply with the Indemnitor's reasonable safety and security protocols; provided, however, that compliance with such protocols shall not unreasonably impede the Collateral Agent's right of access granted hereunder.
(d) The Indemnitor shall cause its tenants, subtenants, licensees, contractors, and other occupants of the Property to permit and facilitate such access to the extent the Indemnitor has the right to do so under its agreements with such parties.
ARTICLE VI — RELATIONSHIP TO OTHER DOCUMENTS
Section 6.1 — Relationship to Credit Agreement
(a) This Agreement constitutes a "Loan Document" as such term is defined in the Credit Agreement. The obligations of the Indemnitor under this Agreement constitute "Obligations" as defined in the Credit Agreement and are secured by the Deed of Trust, the US Pledge and Security Agreement, and all other Collateral Documents executed and delivered in connection with the Credit Agreement.
(b) Any default by the Indemnitor under this Agreement, including any breach of any representation or warranty set forth in Article II, any failure to perform any covenant set forth in Article III, or any failure to indemnify or reimburse any Indemnitee as required by Article IV, shall constitute an Event of Default under the Credit Agreement, entitling the Administrative Agent and the Collateral Agent to exercise all rights and remedies available thereunder, including acceleration of the Obligations and enforcement of the security interests and liens securing the Obligations.
(c) The rights and remedies of the Collateral Agent and the other Indemnitees under this Agreement are in addition to, and not in limitation of, any rights and remedies available to them under the Credit Agreement, the Deed of Trust, the other Loan Documents, and applicable law.
Section 6.2 — Relationship to Deed of Trust
(a) This Agreement supplements, and is in addition to, the environmental provisions (if any) contained in the Deed of Trust encumbering Tax Parcel Nos. 087-27-1234 and 087-27-1235. Nothing in this Agreement shall be construed to limit, modify, restrict, or supersede any environmental covenant, representation, warranty, or indemnification obligation set forth in the Deed of Trust.
(b) In the event of any conflict or inconsistency between the