Calderwood & Harkness LLP Matter No. 1043-00002
COLLATERAL ASSIGNMENT OF CONTRACTS, PERMITS, AND APPROVALS
Stonebridge Data Center Campus — Loudoun County, Virginia
DRAFT — For Discussion Purposes Only
[●], 2025
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COLLATERAL ASSIGNMENT OF CONTRACTS, PERMITS, AND APPROVALS
THIS COLLATERAL ASSIGNMENT OF CONTRACTS, PERMITS, AND APPROVALS (this "Assignment") is made and entered into as of [●], 2025, by and between:
STONEBRIDGE CAMPUS HOLDINGS LLC, a Virginia limited liability company (the "Assignor" or "Borrower"), with its principal office at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147 (c/o Ironhaven Data Centers LLC),
in favor of
SUMMIT NATIONAL BANK, N.A., a national banking association, in its capacity as Administrative Agent for itself and on behalf of the Lenders (as defined below) (the "Assignee" or "Administrative Agent"), with its office at 1275 Avenue of Commerce, 12th Floor, McLean, Virginia 22102.
The Administrative Agent acts in such capacity on behalf of itself and the following lenders (collectively, the "Lenders"): (i) Summit National Bank, N.A., with a commitment of One Hundred Eighty Million Dollars ($180,000,000); (ii) Cascade Commercial Lending Corp., with a commitment of One Hundred Thirty Million Dollars ($130,000,000); and (iii) Harborview Trust Company, with a commitment of Eighty Million Dollars ($80,000,000).
RECITALS
A. The Loan. The Administrative Agent and the Lenders have agreed to make available to the Borrower a senior secured construction loan facility in the aggregate principal amount of Three Hundred Ninety Million Dollars ($390,000,000) (the "Loan"), pursuant to that certain Construction Loan Agreement dated as of [●], 2025 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Loan Agreement"), among the Borrower, the Administrative Agent, and the Lenders. The Loan is evidenced by a Promissory Note in the principal amount of $390,000,000 executed by the Borrower in favor of the Administrative Agent. The Loan bears interest at a rate per annum equal to Term SOFR plus 285 basis points, subject to a SOFR floor of 0.50%, provides for a thirty-six (36) month draw period, and has a forty-eight (48) month maturity, with one (1) twelve (12) month extension option, all as more particularly set forth in the Loan Agreement. The Loan is identified under Summit Loan Commitment Reference: CL-2025-VA-04418.
B. The Project. The Borrower is the owner of approximately eighty-one and four-tenths (81.4) acres of real property located at the intersection of Belmont Ridge Road and Stonebridge Boulevard, in unincorporated Loudoun County, Virginia 20148, consisting of: (i) approximately sixty-two (62.0) acres identified on the Loudoun County land records as Tax Map Reference Number /95-4A-1/// (the "Stonebridge Parcel"); and (ii) approximately nineteen and four-tenths (19.4) acres identified on the Loudoun County land records as Tax Map Reference Number /95-4A-2/// (the "Meridian Parcel," and together with the Stonebridge Parcel, the "Property"). The Borrower intends to develop on the Property a data center campus known as the "Stonebridge Data Center Campus" (the "Project"), consisting of four (4) data center buildings (designated as Buildings A, B, C, and D), each approximately one hundred twenty thousand (120,000) square feet in gross floor area (for a total of approximately four hundred eighty thousand (480,000) square feet of gross floor area ("GFA")), a central utility plant, structured parking, and related site improvements, with an aggregate capacity of ninety-six (96) megawatts ("MW") of critical IT load. The total Project budget is approximately Six Hundred Million Dollars ($600,000,000).
C. Security Requirements. Pursuant to the Loan Agreement, the Borrower is required to execute and deliver this Assignment as a condition precedent to the initial advance under the Loan. This Assignment is given as additional collateral security for the Obligations (as defined in the Loan Agreement) and supplements the other security instruments delivered in connection with the Loan, including, without limitation, that certain Deed of Trust, Assignment of Leases and Rents, and Security Agreement (the "Deed of Trust") and that certain Pledge Agreement (the "Pledge Agreement"), each dated as of even date herewith. The Loan Agreement requires that the Borrower assign as collateral its interests in certain contracts, permits, licenses, and governmental approvals relating to the Project, as set forth more fully herein.
D. The Assigned Contracts. In connection with the development and construction of the Project, the Borrower has entered into or will enter into certain agreements, and has obtained or will obtain certain permits and governmental approvals, all of which are more particularly described herein and on the Exhibits attached hereto and incorporated herein by reference.
NOW, THEREFORE, in consideration of the foregoing premises, the making of the Loan by the Lenders, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and the Administrative Agent hereby agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Assignment, the following terms shall have the meanings set forth below:
"Administrative Agent" means Summit National Bank, N.A., a national banking association, in its capacity as administrative agent for the Lenders under the Loan Agreement, and its successors and assigns in such capacity.
"Architect Agreement" means any agreement between the Borrower and any architect, engineer, or design professional relating to the design of the Project, including, without limitation, any agreement with Lumen Ridge Engineering, PLLC (Carlos Esteban, PE, Project Principal) for civil and site design engineering services, and any mechanical, electrical, and plumbing ("MEP") or architectural design contracts entered into by the Borrower in connection with the Project, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Assigned Contracts" means, collectively, the EPC Agreement, the LLSA, the Line Extension Agreement, the Substation Easement Agreement, the Architect Agreements, the Owner's Representative Agreement, and any other contracts described on Exhibit A attached hereto, or hereafter entered into by the Borrower in connection with the Project and designated as an Assigned Contract pursuant to the terms hereof or the Loan Agreement.
"Borrower" means Stonebridge Campus Holdings LLC, a Virginia limited liability company, and its successors and permitted assigns.
"EPC Agreement" means that certain Engineering, Procurement, and Construction Agreement dated as of [●], 2025 (target: October 20, 2025), between the Borrower, as owner, and Titan-McAllister Construction Group, LLC, a Maryland limited liability company ("TMCG"), as contractor, for the design and construction of the Project at a guaranteed maximum price of Four Hundred Twelve Million Dollars ($412,000,000), as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and of the Loan Agreement.
"Event of Default" has the meaning ascribed to such term in Section 6.1 of this Assignment.
"Governmental Approvals" means all permits, licenses, approvals, entitlements, authorizations, and consents issued by any governmental authority in connection with the development, construction, or operation of the Project, as more particularly described on Exhibit B attached hereto, including, without limitation, the ZMOD Approval and all building permits, site plan approvals, grading permits, stormwater management permits, environmental permits, air quality permits, access permits, and certificates of occupancy, whether now obtained or hereafter to be obtained.
"Guarantor" means Ironhaven Data Centers LLC, a Delaware limited liability company (EIN: 84-3291057), in its capacity as guarantor under the Completion Guaranty and the Carry Guaranty delivered in connection with the Loan.
"Lenders" means, collectively, Summit National Bank, N.A., Cascade Commercial Lending Corp., and Harborview Trust Company, and their respective successors and assigns.
"Line Extension Agreement" means that certain Line Extension Funding Agreement dated as of [●], 2025, between the Borrower and Vantage Power Cooperative, a Virginia electric cooperative ("VPC"), relating to the Borrower's contribution of Eighteen Million Five Hundred Thousand Dollars ($18,500,000) toward the construction of utility infrastructure serving the Project, including a dedicated power line extension and a 230kV/34.5kV substation on the Meridian Parcel, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"LLSA" means that certain Large Load Service Agreement dated as of [●], 2025 (VPC Service Application No. LSA-2025-0091), between the Borrower and Vantage Power Cooperative, for one hundred twenty (120) megavolt-amperes ("MVA") of contracted demand, with a ten (10) year term commencing on the date of substation energization, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Loan Agreement" means that certain Construction Loan Agreement dated as of [●], 2025, among the Borrower, the Administrative Agent, and the Lenders, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Loan Documents" has the meaning ascribed to such term in the Loan Agreement, and includes, without limitation, the Loan Agreement, the Promissory Note, the Deed of Trust, the Pledge Agreement, this Assignment, the Environmental Indemnity Agreement, the Completion Guaranty, and the Carry Guaranty, and any other documents, instruments, or agreements executed and delivered in connection with the Loan.
"Obligations" has the meaning ascribed to such term in the Loan Agreement, and includes all indebtedness, obligations, and liabilities of the Borrower to the Administrative Agent and the Lenders under the Loan Documents, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to become due.
"Owner's Representative Agreement" means that certain agreement between the Borrower and Kestrel Infrastructure Advisors, LLC ("Kestrel"), 1750 Tysons Boulevard, Suite 600, Tysons, Virginia 22102 (Diane Prescott, Engagement Lead), for owner's representative and project management services in connection with the Project, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Payment Bond" means the payment bond in the amount of Four Hundred Twelve Million Dollars ($412,000,000) (representing one hundred percent (100%) of the GMP), issued by Great Basin Surety & Insurance Corp. in favor of the Borrower under and in connection with the EPC Agreement.
"Performance Bond" means the performance bond in the amount of Four Hundred Twelve Million Dollars ($412,000,000) (representing one hundred percent (100%) of the GMP), issued by Great Basin Surety & Insurance Corp. in favor of the Borrower under and in connection with the EPC Agreement.
"Permits" means, collectively, the Governmental Approvals and any other permits, licenses, or authorizations required for or relating to the development, construction, or operation of the Project.
"Project" means the Stonebridge Data Center Campus, as described in Recital B of this Assignment.
"Property" means the Stonebridge Parcel and the Meridian Parcel, as more particularly described in Recital B of this Assignment.
"Substation Easement Agreement" means that certain easement agreement between the Borrower, as owner of the Meridian Parcel, and Vantage Power Cooperative, granting Vantage Power Cooperative an easement on a portion of the Meridian Parcel (Loudoun County Tax Map Reference Number /95-4A-2///) for the construction, operation, and maintenance of a dedicated 230kV/34.5kV substation, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"ZMOD Approval" means the zoning modification approval granted (or to be granted) by the Loudoun County Board of Supervisors under Docket No. ZMOD-2025-0038, authorizing data center use on the Property, together with all conditions, proffers, and development conditions imposed in connection therewith.
Section 1.2 — Rules of Construction
Capitalized terms used but not defined in this Assignment shall have the respective meanings given to such terms in the Loan Agreement. Unless the context otherwise requires: (a) references to "Sections," "Articles," and "Exhibits" are to the Sections, Articles, and Exhibits of this Assignment; (b) the words "herein," "hereof," "hereto," "hereunder," and words of similar import refer to this Assignment as a whole, and not to any particular provision hereof; (c) references to any agreement, document, or instrument mean such agreement, document, or instrument as amended, restated, supplemented, or otherwise modified from time to time to the extent permitted hereunder and under the Loan Agreement; (d) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation"; (e) words importing the singular include the plural, and vice versa; and (f) references to a "person" include any individual, corporation, partnership, limited liability company, trust, governmental authority, or other entity. This Assignment shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, as provided in Section 8.1 hereof.
ARTICLE 2 — ASSIGNMENT
Section 2.1 — Grant of Collateral Assignment
As collateral security for the prompt and complete payment and performance of all Obligations, the Borrower hereby irrevocably assigns, transfers, and sets over to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, all of the Borrower's right, title, and interest in, to, and under the following (collectively, the "Assigned Interests"):
(a) EPC Agreement. The EPC Agreement with Titan-McAllister Construction Group, LLC (guaranteed maximum price of $412,000,000), including all amendments, modifications, supplements, change orders, and extensions thereof, and all rights to enforce the terms thereof, including, without limitation, rights to liquidated damages (at a rate of One Hundred Twenty-Five Thousand Dollars ($125,000) per calendar day per building, capped at Ten Million Three Hundred Thousand Dollars ($10,300,000) per building, representing ten percent (10%) of the per-building GMP allocation of $103,000,000), retainage, warranties, indemnities, insurance proceeds, and all other rights, benefits, and privileges of the Borrower arising under or in connection with the EPC Agreement.
(b) Performance Bond and Payment Bond. The Performance Bond and the Payment Bond, each issued by Great Basin Surety & Insurance Corp. in the amount of Four Hundred Twelve Million Dollars ($412,000,000), including all rights, claims, and causes of action of the Borrower against Great Basin Surety & Insurance Corp. arising under or in connection with such bonds.
(c) Large Load Service Agreement. The LLSA with Vantage Power Cooperative (one hundred twenty (120) MVA of contracted demand, ten (10) year term from substation energization, VPC Service Application No. LSA-2025-0091), including, without limitation, all demand charge arrangements (at a rate of $8.42/kW/month for years one (1) through five (5), escalating at two and one-half percent (2.5%) annually thereafter), energy charge arrangements (PJM day-ahead LMP pass-through), and all related service agreements, amendments, supplements, and modifications.
(d) Line Extension Agreement. The Line Extension Agreement with Vantage Power Cooperative, including all rights of the Borrower to the Eighteen Million Five Hundred Thousand Dollars ($18,500,000) contribution toward the construction of utility infrastructure serving the Project, and all credits, refunds, or rebates arising thereunder.
(e) Substation Easement Agreement. The Substation Easement Agreement with Vantage Power Cooperative, granting an easement on a portion of the Meridian Parcel for the construction, operation, and maintenance of a dedicated 230kV/34.5kV substation.
(f) Architect Agreements. All Architect Agreements, including, without limitation, the civil and site engineering agreement with Lumen Ridge Engineering, PLLC (Carlos Esteban, PE, Project Principal), and any MEP, structural, architectural, or other design agreements entered into or to be entered into by the Borrower in connection with the Project, together with all plans, specifications, drawings, models, and instruments of service prepared by or on behalf of any architect or engineer in connection with the Project, and all rights to use such plans, specifications, drawings, models, and instruments of service.
(g) Owner's Representative Agreement. The Owner's Representative Agreement with Kestrel Infrastructure Advisors, LLC (Diane Prescott, Engagement Lead), including all rights of the Borrower to receive project management, owner's representative, and consulting services thereunder.
(h) Other Contracts. Any and all other contracts, agreements, subcontracts, and purchase orders entered into by or on behalf of the Borrower in connection with the design, development, construction, equipping, testing, commissioning, or operation of the Project, whether now existing or hereafter entered into, including, without limitation, those contracts listed on Exhibit A hereto, and any amendments, modifications, supplements, extensions, or renewals thereof.
(i) Governmental Approvals. All Governmental Approvals, including, without limitation: (i) the ZMOD Approval (Docket No. ZMOD-2025-0038); (ii) all site plan approvals issued by the Loudoun County Department of Planning and Zoning; (iii) all building permits for Buildings A, B, C, and D, the central utility plant, and the structured parking facility; (iv) all grading and land-disturbing activity permits; (v) all stormwater management permits; (vi) all environmental permits issued by the Virginia Department of Environmental Quality or any other environmental regulatory authority; (vii) all air quality permits (including permits related to diesel generators in 2N configuration per building); (viii) all certificates of occupancy (when issued); (ix) all Virginia Department of Transportation access permits for Belmont Ridge Road and Stonebridge Boulevard; and (x) all other federal, state, and local permits, licenses, entitlements, and approvals relating to the Project, whether now obtained or hereafter to be obtained, in each case to the extent assignable under applicable law.
(j) Proffer Commitments. All proffer commitments and related obligations under the proffer statement delivered (or to be delivered) to the Loudoun County Board of Supervisors in connection with the ZMOD Approval, including all rights and obligations relating to the estimated proffer amount of Two Million Four Hundred Thousand Dollars ($2,400,000), based on Five Dollars ($5.00) per square foot of GFA multiplied by four hundred eighty thousand (480,000) square feet of GFA, and all related development conditions and stipulations.
(k) Proceeds. All proceeds of the foregoing, including, without limitation, all insurance proceeds, condemnation awards, damage payments, claims, causes of action, rights of recovery, rights to refunds, credits, or rebates, and any and all other sums, payments, or benefits arising from or relating to any of the foregoing.
Section 2.2 — Nature of Assignment; Security Interest
This Assignment is made as collateral security only and shall not be construed as imposing on the Administrative Agent or any Lender any obligation, liability, or duty under any Assigned Contract, Governmental Approval, or Permit, or making the Administrative Agent or any Lender responsible or liable for any of the representations, warranties, covenants, or obligations of the Borrower under any such Assigned Contract, Governmental Approval, or Permit. The Administrative Agent and the Lenders shall not be obligated to perform any of the obligations of the Borrower under any Assigned Contract, Governmental Approval, or Permit by reason of this Assignment, unless and until the Administrative Agent expressly elects to assume such obligations in writing following an Event of Default.
Until the occurrence of an Event of Default hereunder or under the Loan Agreement, the Borrower shall retain the right to exercise all rights and remedies of the Borrower under the Assigned Contracts and to use and enjoy the benefits of the Governmental Approvals and Permits, subject to the terms and conditions of this Assignment and the Loan Agreement. The Borrower shall exercise such rights in a prudent manner consistent with its obligations under the Loan Documents.
This Assignment is intended to, and does, create a first-priority security interest in and lien upon the Assigned Contracts and the Governmental Approvals (to the extent a security interest or lien may be granted therein under applicable law) in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, as security for the Obligations. No interest of the Administrative Agent hereunder shall be subordinate to any other lien, encumbrance, or security interest, and the Borrower shall take no action that would impair the first-priority status of the security interest created hereby.
Section 2.3 — UCC Security Interest
To the extent that any Assigned Contract, Governmental Approval, or any right, interest, or benefit arising thereunder constitutes personal property or a general intangible within the meaning of the Uniform Commercial Code as in effect in the Commonwealth of Virginia (the "UCC"), this Assignment shall also constitute a security agreement under Article 9 of the UCC, and the Borrower hereby grants to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, a continuing security interest in all such personal property, general intangibles, and proceeds thereof. The Borrower hereby authorizes the Administrative Agent to prepare, execute, and file UCC financing statements, amendments to financing statements, and continuation statements, in each case naming the Borrower as debtor and the Administrative Agent as secured party, in such filing offices and jurisdictions as the Administrative Agent may deem necessary or desirable to perfect the security interest granted hereby. The Borrower shall cooperate fully with the Administrative Agent in connection with the filing of such financing statements and shall execute and deliver such additional documents and instruments as the Administrative Agent may reasonably request from time to time to evidence, perfect, maintain, or protect the security interest created by this Assignment.
ARTICLE 3 — REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative Agent and the Lenders as follows, as of the date hereof and as of the date of each advance under the Loan:
Section 3.1 — Organization and Authority
The Borrower is a limited liability company duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, and has all requisite power and authority to own and operate the Property, to develop the Project, and to execute, deliver, and perform its obligations under this Assignment and each of the other Loan Documents to which it is a party. The Borrower is a single-purpose entity, wholly owned by Ironhaven Data Centers LLC, a Delaware limited liability company. The execution, delivery, and performance of this Assignment have been duly authorized by all necessary action on the part of the Borrower, including all required consents, approvals, and authorizations of its sole member, and this Assignment constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
Section 3.2 — Enforceability of Assigned Contracts
Each Assigned Contract is in full force and effect and constitutes a valid and binding obligation of the Borrower and, to the Borrower's knowledge, of each other party thereto, enforceable in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity. The Borrower is not in default under any Assigned Contract, and no event has occurred and no condition exists that, with the giving of notice or the lapse of time, or both, would constitute a default by the Borrower or, to the Borrower's knowledge, any other party under any Assigned Contract. To the Borrower's knowledge, each counterparty to an Assigned Contract is duly organized, validly existing, and in good standing in its jurisdiction of organization and has full power and authority to perform its obligations under the applicable Assigned Contract.
Section 3.3 — No Prior Assignment
The Borrower has not previously assigned, transferred, pledged, hypothecated, or otherwise encumbered any of its right, title, or interest in or to any Assigned Contract or Governmental Approval, except as disclosed to the Administrative Agent in writing prior to the date hereof. No Assigned Contract or Governmental Approval is subject to any lien, security interest, or encumbrance other than the security interest created by this Assignment and the other Loan Documents.
Section 3.4 — Consents
All consents, approvals, and authorizations required for the execution and delivery of this Assignment and the collateral assignment of the Assigned Contracts hereunder have been obtained or will be obtained prior to the initial advance under the Loan, including, without limitation, any consent required under the EPC Agreement. The Borrower specifically acknowledges that the EPC Agreement contains provisions requiring that TMCG consent (such consent not to be unreasonably withheld, conditioned, or delayed) to any change of control of the project owner entity, and the Borrower represents and warrants that such consent has been obtained or will be obtained prior to the initial advance. No Assigned Contract contains any provision that would prohibit or restrict the collateral assignment of such Assigned Contract to the Administrative Agent as contemplated hereby, except to the extent that such provision requires the consent of the counterparty thereto, which consent has been obtained or will be obtained prior to the initial advance.
Section 3.5 — Governmental Approvals
The Borrower has obtained or will obtain prior to the commencement of the applicable phase of construction all Governmental Approvals necessary for the development, construction, and operation of the Project as contemplated by the Loan Agreement. Without limiting the generality of the foregoing, the Borrower represents that: (a) the ZMOD Approval under Docket No. ZMOD-2025-0038 has been filed with the Loudoun County Board of Supervisors and is expected to be obtained at the Board of Supervisors hearing scheduled for October 2025; (b) the Property is currently zoned PD-IP (Planned Development — Industrial Park); and (c) the ZMOD application seeks authorization for data center use on the Property consistent with the scope of the Project. The Borrower shall provide the Administrative Agent with evidence of the ZMOD Approval promptly upon receipt thereof, and in any event prior to the initial advance under the Loan.
Section 3.6 — Accuracy of Exhibits
The contracts listed on Exhibit A and the Governmental Approvals listed on Exhibit B are true, correct, and complete in all material respects as of the date of this Assignment, and together represent all material contracts, agreements, and Governmental Approvals relating to the Project as of the date hereof. No material Assigned Contract or Governmental Approval has been omitted from Exhibit A or Exhibit B.
Section 3.7 — Insurance
All insurance required under the Assigned Contracts and the Loan Agreement is in full force and effect, with coverage amounts and terms meeting or exceeding the requirements set forth in the Loan Agreement and the applicable Assigned Contracts. Without limiting the foregoing, the Borrower represents and warrants that: (a) a builder's risk policy in the amount of Four Hundred Twelve Million Dollars ($412,000,000) has been obtained from Great Basin Surety & Insurance Corp., with a deductible of Two Hundred Fifty Thousand Dollars ($250,000) per occurrence, naming the Administrative Agent as an additional insured and loss payee; and (b) TMCG maintains commercial general liability ("CGL") coverage in the amount of One Hundred Fifty Million Dollars ($150,000,000) per occurrence through Pinnacle Indemnity Insurance Co., naming the Borrower and the Administrative Agent as additional insureds. All insurance policies required under the Assigned Contracts and the Loan Agreement comply with the insurance requirements set forth in the Loan Agreement.
ARTICLE 4 — COVENANTS
The Borrower hereby covenants and agrees with the Administrative Agent and the Lenders as follows:
Section 4.1 — Performance of Assigned Contracts
The Borrower shall duly and punctually perform and observe all of its obligations, covenants, and agreements under each Assigned Contract in accordance with the terms thereof and in a diligent and commercially reasonable manner. The Borrower shall not suffer or permit any default or event of default to occur under any Assigned Contract and shall take all actions necessary to maintain the EPC Agreement, the LLSA, the Line Extension Agreement, the Substation Easement Agreement, the Architect Agreements, the Owner's Representative Agreement, and all other Assigned Contracts in full force and effect throughout the term of the Loan. The Borrower shall use commercially reasonable efforts to cause each counterparty to the Assigned Contracts to duly and punctually perform its obligations thereunder, and shall enforce the Borrower's rights and remedies under the Assigned Contracts in a timely and prudent manner.
Section 4.2 — No Modification, Termination, or Waiver Without Consent
The Borrower shall not, without the prior written consent of the Administrative Agent (acting with requisite Lender approval under the Loan Agreement):
(a) amend, modify, supplement, restate, or waive any material term or provision of any Assigned Contract (for purposes of this Section, the materiality threshold shall be as defined in and consistent with the Loan Agreement, and shall include, without limitation, any change to the scope, price, schedule, warranty provisions, insurance requirements, liquidated damages provisions, termination provisions, or performance standards of any Assigned Contract);
(b) terminate, cancel, rescind, or surrender any Assigned Contract, or accept or consent to any termination, cancellation, rescission, or surrender thereof;
(c) consent to any assignment, transfer, delegation, or subcontracting by any counterparty of its rights or obligations under any Assigned Contract;
(d) waive, release, compromise, or settle any rights, claims, causes of action, or remedies of the Borrower under any Assigned Contract, including, without limitation, rights to liquidated damages under the EPC Agreement; or
(e) enter into any new contract, agreement, or arrangement with a counterparty to any Assigned Contract that would materially affect the rights or obligations of the Borrower under such Assigned Contract.
Without limiting the generality of the foregoing, the Borrower acknowledges and agrees that any change order under the EPC Agreement in an amount exceeding [●] Dollars ($[●]) individually, or [●] Dollars ($[●]) in the aggregate (such thresholds to be negotiated and agreed upon by the parties), shall require the prior written consent of the Administrative Agent. The Administrative Agent shall use reasonable efforts to respond to any request for consent under this Section within ten (10) business days of receipt of such request, together with all supporting documentation reasonably required by the Administrative Agent for its review.
Section 4.3 — No Additional Assignment
The Borrower shall not assign, transfer, pledge, hypothecate, encumber, or otherwise dispose of any Assigned Contract or Governmental Approval, or any right, title, or interest therein, to any person other than the Administrative Agent, without the prior written consent of the Administrative Agent. Any purported assignment, transfer, pledge, hypothecation, encumbrance, or disposition in violation of this Section shall be void and of no force or effect.
Section 4.4 — Delivery of Copies
The Borrower shall promptly deliver to the Administrative Agent true, correct, and complete copies of all Assigned Contracts (including all amendments, modifications, change orders, supplements, addenda, and side letters), all Governmental Approvals, and all correspondence and notices received or given in connection therewith. In addition, the Borrower shall deliver to the Administrative Agent copies of any new contracts entered into by the Borrower in connection with the Project, and any newly obtained Governmental Approvals, promptly upon execution or receipt thereof, and in any event within five (5) business days following execution or receipt. The Borrower shall supplement Exhibit A and Exhibit B hereto from time to time to reflect any new Assigned Contracts or Governmental Approvals, and shall deliver updated exhibits to the Administrative Agent.
Section 4.5 — Notice of Default or Dispute
The Borrower shall promptly (and in any event within five (5) business days) notify the Administrative Agent in writing of:
(a) any default or alleged default by any party under any Assigned Contract, or any event that, with the giving of notice or the lapse of time, or both, would constitute a default under any Assigned Contract;
(b) any material dispute, controversy, or claim between the Borrower and any counterparty under any Assigned Contract;
(c) any notice of termination, cancellation, or rescission received by or given by the Borrower under any Assigned Contract, or any threat of termination communicated by any counterparty;
(d) any revocation, suspension, amendment, modification, or threatened revocation, suspension, amendment, or modification of any Governmental Approval by any governmental authority;
(e) any litigation, arbitration, or administrative proceeding commenced or threatened against the Borrower or any counterparty relating to any Assigned Contract or Governmental Approval; and
(f) any material adverse change in the financial condition of any counterparty to a material Assigned Contract, to the extent known by the Borrower.
Each notice delivered pursuant to this Section shall include a reasonably detailed description of the applicable event or circumstance and any actions taken or proposed to be taken by the Borrower in connection therewith.
Section 4.6 — Maintenance of Governmental Approvals
The Borrower shall maintain in full force and effect all Governmental Approvals necessary for the development, construction, and operation of the Project, and shall timely apply for and obtain all additional Governmental Approvals as required by applicable law or the Loan Agreement. The Borrower shall comply with all conditions, requirements, and restrictions of the ZMOD Approval, including, without limitation, all proffer obligations, development conditions, and stipulations imposed by the Loudoun County Board of Supervisors. The Borrower shall not take or fail to take any action that would cause the revocation, suspension, or material modification of any Governmental Approval without the prior written consent of the Administrative Agent.
Section 4.7 — Further Assurances
The Borrower shall, at its sole cost and expense, execute and deliver such additional instruments, documents, certificates, and agreements, and take such additional actions, as the Administrative Agent may from time to time reasonably request to evidence, perfect, maintain, or protect the Administrative Agent's interest in the Assigned Contracts, Governmental Approvals, and Permits, and to carry out the purposes and intent of this Assignment. Without limiting the generality of the foregoing, the Borrower shall: (a) execute and deliver additional UCC financing statements, amendments to financing statements, and continuation statements; (b) obtain and deliver consents and acknowledgments from counterparties to the Assigned Contracts; (c) deliver additional copies of Assigned Contracts and Governmental Approvals; and (d) take such other actions as the Administrative Agent may reasonably deem necessary or advisable to protect the Administrative Agent's security interest hereunder.
Section 4.8 — Change of Control
The Borrower hereby incorporates by reference the change of control provisions set forth in the Loan Agreement. Without limiting the foregoing, any direct or indirect transfer, conveyance, assignment, pledge, or other disposition (whether voluntary or involuntary) of equity interests in the Borrower or the Guarantor resulting in Ridgeline Capital Partners Fund IV, LP (directly or indirectly) ceasing to hold at least fifty-one percent (51%) of the equity interests in the Borrower or the Guarantor shall constitute a mandatory prepayment event and an Event of Default under the Loan Agreement, and shall be deemed an Event of Default under this Assignment.
The Borrower shall promptly notify the Administrative Agent in writing of any proposed or contemplated change of control of the Borrower or the Guarantor, and shall not consummate, effect, or permit any such transaction without the prior written consent of the Administrative Agent (acting with requisite Lender approval under the Loan Agreement).
The Borrower acknowledges that the EPC Agreement contains change of control provisions granting TMCG a consent right in connection with any change of control of the project owner entity, and that the LLSA may contain corresponding provisions. The Borrower shall coordinate any proposed change of control with the requirements of all Assigned Contracts containing change of control provisions and shall obtain all necessary consents from counterparties thereunder prior to any such transaction.
ARTICLE 5 — RIGHTS OF THE ADMINISTRATIVE AGENT
Section 5.1 — Right to Perform
If the Borrower fails to perform any obligation under any Assigned Contract, or fails to maintain any Governmental Approval in full force and effect, the Administrative Agent may (but shall not be obligated to), after giving the Borrower not less than five (5) business days' prior written notice (or such shorter period as may be necessary to avoid the lapse, cancellation, or termination of any Assigned Contract or Governmental Approval) and the expiration of any applicable cure period provided for in the Loan Agreement, perform such obligation or take such action on the Borrower's behalf, in the Borrower's name or in the Administrative Agent's own name, as the Administrative Agent may determine. All costs and expenses incurred by the Administrative Agent in connection with such performance or action, including, without limitation, reasonable attorneys' fees and expenses, shall be paid by the Borrower on demand, shall bear interest at the default rate specified in the Loan Agreement from the date incurred until paid, shall be added to and become part of the Obligations, and shall be secured by the Loan Documents.
Section 5.2 — Right to Enforce Upon Event of Default
Upon the occurrence and during the continuance of an Event of Default under the Loan Agreement or this Assignment, the Administrative Agent shall have the right, in its sole discretion, to exercise any or all of the following rights and remedies:
(a) to exercise, in the name of the Borrower or in the Administrative Agent's own name, all rights and remedies of the Borrower under any or all of the Assigned Contracts, including, without limitation, the right to demand performance, enforce warranties and indemnities, collect and receive all sums payable to the Borrower (including liquidated damages under the EPC Agreement), and exercise termination rights;
(b) to direct the counterparties under the Assigned Contracts to render performance, deliver goods or materials, provide services, or make payments directly to the Administrative Agent or its designee, and to take direction exclusively from the Administrative Agent or its designee;
(c) to assume the Borrower's obligations under any or all of the Assigned Contracts, at the Administrative Agent's sole election, and to take all actions necessary to effectuate such assumption;
(d) to exercise all rights of the Borrower under the Performance Bond and the Payment Bond issued by Great Basin Surety & Insurance Corp., including, without limitation, the right to make demand under such bonds, to commence proceedings to enforce such bonds, and to collect and apply any proceeds thereof;
(e) to exercise all rights and remedies available to a secured party under the UCC, including, without limitation, the right to take possession of the Assigned Contracts and any proceeds thereof; and
(f) to exercise all other rights and remedies available to the Administrative Agent under the Loan Documents, at law, or in equity.
The Borrower hereby irrevocably appoints the Administrative Agent as the Borrower's attorney-in-fact, with full power of substitution, to act in the Borrower's name and stead following an Event of Default, to take any action and to execute any instrument that the Administrative Agent may deem necessary or advisable to exercise and enforce the rights and remedies described in this Section 5.2, including, without limitation, the execution of notices, demands, consents, waivers, and other instruments. This power of attorney is coupled with an interest and shall be irrevocable until the Obligations are indefeasibly paid in full and all commitments under the Loan Agreement have been terminated.
Section 5.3 — No Obligation to Assume
Nothing in this Assignment shall be construed as obligating the Administrative Agent or any Lender to assume any Assigned Contract, or to perform any obligation of the Borrower thereunder, unless and until the Administrative Agent expressly elects to do so by written notice to the Borrower and the applicable counterparty. The Administrative Agent and the Lenders shall not, by reason of this Assignment or any action taken or not taken hereunder, be deemed to be a mortgagee in possession, a partner, a joint venturer, or an agent of the Borrower, or to have any obligation to any counterparty to an Assigned Contract, any governmental authority, or any other third party.
Section 5.4 — Notices to Counterparties
The Administrative Agent shall have the right, at any time following the occurrence of an Event of Default, to send written notice to any counterparty under any Assigned Contract, notifying such counterparty of this Assignment and directing such counterparty to render future performance, payments, or communications to the Administrative Agent or its designee. The form of such notice shall be substantially in the form attached hereto as Exhibit C. Prior to the occurrence of an Event of Default, the Administrative Agent may, in its discretion, send notice to any counterparty advising such counterparty of the existence of this Assignment and requesting such counterparty's acknowledgment and consent, in such form as the Administrative Agent may deem appropriate. The Borrower shall cooperate with the Administrative Agent in obtaining such acknowledgments and consents from counterparties and shall, at the Administrative Agent's request, join in or separately deliver any such notice.
ARTICLE 6 — EVENTS OF DEFAULT
Section 6.1 — Events of Default
Each of the following shall constitute an "Event of Default" under this Assignment:
(a) the occurrence of an "Event of Default" as defined in and under the Loan Agreement (which Events of Default are hereby incorporated herein by reference in their entirety), including, without limitation, the change of control mandatory prepayment trigger described in Section 4.8 hereof;
(b) any representation or warranty made by the Borrower in this Assignment, or in any certificate, instrument, or document delivered by the Borrower in connection herewith, proves to have been untrue, inaccurate, or misleading in any material respect as of the date made or deemed made;
(c) the Borrower fails to perform or observe any covenant, agreement, or obligation contained in this Assignment and such failure continues for thirty (30) days after written notice thereof from the Administrative Agent to the Borrower; provided, however, that if the Loan Agreement provides for a shorter cure period for any corresponding obligation, such shorter cure period shall apply;
(d) any Assigned Contract is terminated, cancelled, or expires (other than by reason of completion of performance in accordance with its terms) without the prior written consent of the Administrative Agent;
(e) the Borrower assigns, transfers, pledges, hypothecates, or purports to assign, transfer, pledge, or hypothecate any Assigned Contract or Governmental Approval in violation of Section 4.3 hereof; or
(f) any material Governmental Approval is revoked, suspended, terminated, or materially modified without the prior written consent of the Administrative Agent, and such revocation, suspension, termination, or modification is not cured or restored within any applicable statutory or regulatory grace period.
ARTICLE 7 — REMEDIES
Section 7.1 — Remedies Upon Event of Default
Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, in its sole discretion, exercise any or all of the rights and remedies described in Article 5 of this Assignment, and any other remedies available to the Administrative Agent under the Loan Documents, at law, or in equity, all of which rights and remedies shall be cumulative and may be exercised singularly or concurrently, as the Administrative Agent may determine. Without limiting the generality of the foregoing, the Administrative Agent may, at its option, assume the Borrower's position under any or all of the Assigned Contracts, or designate a third party (including, without limitation, a receiver, a replacement contractor, or a successor developer) to assume such position, and to exercise all of the Borrower's rights and perform all of the Borrower's obligations under any such Assigned Contract, all without further notice to or consent of the Borrower or any counterparty (except as may be expressly required by the terms of the applicable Assigned Contract or applicable law).
Section 7.2 — Application of Proceeds
All proceeds received by the Administrative Agent in connection with the exercise of its rights and remedies under this Assignment, including, without limitation, insurance proceeds, liquidated damages, damage payments, warranty payments, refunds, credits, and all other sums collected or received by the Administrative Agent, shall be applied in accordance with the order of priority and the procedures set forth in the Loan Agreement for the application of payments and proceeds.
Section 7.3 — Cumulative Remedies
All rights and remedies of the Administrative Agent under this Assignment are cumulative and not exclusive of any other rights or remedies provided under the Loan Agreement, any other Loan Document, at law, or in equity. No exercise of any right or remedy shall constitute a waiver of any other right or remedy, and no delay or failure to exercise any right or remedy shall constitute a waiver of such right or remedy. The exercise of any right or remedy hereunder shall not preclude the concurrent or subsequent exercise of any other right or remedy.
ARTICLE 8 — MISCELLANEOUS PROVISIONS
Section 8.1 — Governing Law
This Assignment shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflicts of law principles (other than Section 8.01-346.1 of the Code of Virginia) that would result in the application of the laws of any other jurisdiction. To the extent that the UCC is applicable, the laws of the Commonwealth of Virginia governing the UCC shall apply.
Section 8.2 — Notices
All notices, requests, demands, consents, approvals, and other communications required or permitted to be given under this Assignment shall be in writing and shall be delivered in accordance with the notice provisions of the Loan Agreement, to the following addresses (or to such other addresses as the parties may designate in writing from time to time):
If to the Borrower:
Stonebridge Campus Holdings LLC c/o Ironhaven Data Centers LLC 44680 Prentice Drive, Suite 200 Ashburn, Virginia 20147
Attention: Priya Dasgupta, Chief Financial Officer
Telephone: [●]
Email: [●]
With a copy to:
Calderwood & Harkness LLP 1900 K Street NW, Suite 800 Washington, DC 20006
Attention: Douglas Fairchild, Esq.
Telephone: [●]
Email: [●]
If to the Administrative Agent:
Summit National Bank, N.A. 1275 Avenue of Commerce, 12th Floor McLean, Virginia 22102
Attention: Karen Ellsworth, Managing Director, Real Estate Finance
Telephone: [●]
Email: [●]
With a copy to:
Redmond & Calloway LLP 8300 Greensboro Drive, Suite 1100 McLean, Virginia 22102
Attention: Victor Redmond, Esq.
Telephone: [●]
Email: [●]
Section 8.3 — Binding Effect; Successors and Assigns
This Assignment shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, and the Lenders and their respective successors, transferees, and permitted assigns. The Borrower may not assign or transfer any of its rights or obligations under this Assignment without the prior written consent of the Administrative Agent. The Administrative Agent may assign its rights hereunder in connection with any assignment of its rights under the Loan Agreement in accordance with the terms thereof.
Section 8.4 — Severability
If any provision of this Assignment is held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Assignment shall not be affected or impaired thereby, and such remaining provisions shall remain in full force and effect. To the extent permitted by applicable law, the parties hereby waive any provision of law that renders any provision of this Assignment invalid, illegal, or unenforceable in any respect.
Section 8.5 — Amendments and Waivers
No amendment, modification, supplement, or waiver of any provision of this Assignment shall be effective unless the same shall be in writing and signed by the Borrower and the Administrative Agent (acting with requisite Lender consent as required under the Loan Agreement). No waiver of any provision of this Assignment, and no consent to any departure therefrom, shall be effective unless in writing and signed by the Administrative Agent. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Section 8.6 — Termination and Release
Upon the indefeasible payment in full of all Obligations (including all principal, interest, fees, costs, expenses, and other amounts owing under the Loan Documents) and the termination of all commitments of the Lenders under the Loan Agreement, this Assignment shall automatically terminate, and the Administrative Agent shall, at the Borrower's sole cost and expense, execute and deliver to the Borrower such instruments, releases, and other documents as the Borrower may reasonably request to evidence the termination and release of this Assignment, including, without limitation, UCC termination statements, releases of assignments, and any other documents reasonably required to release the security interest and collateral assignment created hereby.
Section 8.7 — Counterparts; Electronic Execution
This Assignment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Assignment by facsimile transmission, electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall be effective as delivery of a manually executed counterpart. Signatures transmitted by such electronic means shall be treated as original signatures for all purposes.
Section 8.8 — No Third-Party Beneficiaries
This Assignment is solely for the benefit of the Borrower, the Administrative Agent, and the Lenders, and their respective successors and permitted assigns. No counterparty to any Assigned Contract, no governmental authority, and no other person or entity shall be deemed a third-party beneficiary of this Assignment or shall have any right to enforce any provision hereof.
Section 8.9 — Integration
This Assignment, together with the Loan Agreement and the other Loan Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, among the parties with respect to such subject matter. There are no warranties, representations, conditions, or agreements among the parties in connection with such subject matter except as specifically set forth herein and in the other Loan Documents.
Section 8.10 — Conflict with Loan Agreement
In the event of any conflict or inconsistency between the terms and provisions of this Assignment and the terms and provisions of the Loan Agreement, the terms and provisions of the Loan Agreement shall govern and control; provided, however, that the inclusion of additional rights, remedies, representations, warranties, or covenants in this Assignment that are not addressed in the Loan Agreement shall not be deemed a conflict or inconsistency.
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SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF CONTRACTS, PERMITS, AND APPROVALS
IN WITNESS WHEREOF, the parties hereto have caused this Collateral Assignment of Contracts, Permits, and Approvals to be duly executed and delivered as of the date first written above.
ASSIGNOR / BORROWER:
STONEBRIDGE CAMPUS HOLDINGS LLC, a Virginia limited liability company
By: Ironhaven Data Centers LLC,
a Delaware limited liability company, its Sole Member
By: ________
Name: Marcus Thorne
Title: Chief Executive Officer
By: ________
Name: Priya Dasgupta
Title: Chief Financial Officer