CARRY GUARANTY
(also referred to as Payment Guaranty)
Dated as of October 15, 2025
From:
IRONHAVEN DATA CENTERS LLC a Delaware limited liability company (as Guarantor)
To / In Favor Of:
SUMMIT NATIONAL BANK, N.A. a nationally chartered commercial bank (as Administrative Agent for and on behalf of the Lenders)
Reference: Construction Loan Agreement
Construction Loan Agreement dated as of October 15, 2025, among Stonebridge Campus Holdings LLC, a Virginia limited liability company, as Borrower, the Lenders party thereto — Summit National Bank, N.A. ($180,000,000 commitment), Cascade Commercial Lending Corp. ($130,000,000 commitment), and Harborview Trust Company ($80,000,000 commitment) — and Summit National Bank, N.A., as Administrative Agent
Aggregate Facility Amount: $390,000,000
Summit Loan Commitment Reference: CL-2025-VA-04418
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RECITALS
WHEREAS (A), Stonebridge Campus Holdings LLC, a Virginia limited liability company (the "Borrower"), is a single-purpose entity wholly owned by Ironhaven Data Centers LLC, a Delaware limited liability company (the "Guarantor"), and was formed for the exclusive purpose of developing, constructing, owning, and operating the Stonebridge Data Center Campus located in unincorporated Loudoun County, Virginia (the "Project");
WHEREAS (B), the Lenders (as defined below) have agreed to extend credit to Borrower in the aggregate principal amount of Three Hundred Ninety Million and No/100 Dollars ($390,000,000) pursuant to that certain Construction Loan Agreement dated as of October 15, 2025, among Borrower, the Lenders, and Summit National Bank, N.A., as Administrative Agent (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Construction Loan Agreement"), for the purpose of financing the development of a ground-up data center campus consisting of four data center buildings designated as Buildings A through D, a central utility plant, structured parking, and related site improvements, all as more particularly described in Exhibit B attached hereto, with a total project budget of Six Hundred Million and No/100 Dollars ($600,000,000);
WHEREAS (C), as a condition precedent to the Lenders' obligations to make the initial advance and each subsequent advance under the Construction Loan Agreement, the Administrative Agent has required that Guarantor execute and deliver this Carry Guaranty (this "Carry Guaranty") in favor of the Administrative Agent, for the ratable benefit of the Lenders;
WHEREAS (D), Guarantor is the sole member of Borrower and, as such, will derive substantial direct and indirect economic benefit from the extensions of credit to Borrower under the Construction Loan Agreement, and Guarantor acknowledges that such extensions of credit are being made in reliance upon, among other things, the execution and delivery of this Carry Guaranty;
WHEREAS (E), concurrently with the execution and delivery of this Carry Guaranty, Guarantor has executed and delivered that certain Completion Guaranty of even date herewith in favor of the Administrative Agent, for the ratable benefit of the Lenders (the "Completion Guaranty"), which Completion Guaranty is a separate and distinct instrument from this Carry Guaranty, and the obligations of Guarantor under the Completion Guaranty and this Carry Guaranty are independent and cumulative;
WHEREAS (F), Guarantor is a portfolio company of Ridgeline Capital Partners Fund IV, LP, a Delaware limited partnership, held through RCP Digital Holdings LLC, a Delaware limited liability company, and Guarantor currently operates three existing data center facilities in Northern Virginia with an aggregate critical IT load capacity of approximately 42 megawatts ("MW"); and
WHEREAS (G), the equity contribution for the Project is Two Hundred Ten Million and No/100 Dollars ($210,000,000), representing approximately thirty-five percent (35%) of the total project budget, which equity is to be funded by Ridgeline Capital Partners Fund IV, LP through Guarantor, and the construction loan constitutes approximately sixty-five percent (65%) of the total project budget.
NOW, THEREFORE, in consideration of the premises set forth herein, the extensions of credit by the Lenders to Borrower under the Construction Loan Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Carry Guaranty, the following terms shall have the meanings set forth below:
"Administrative Agent" means Summit National Bank, N.A., a nationally chartered commercial bank, in its capacity as administrative agent for and on behalf of the Lenders under the Construction Loan Agreement, together with its successors and assigns in such capacity.
"Borrower" means Stonebridge Campus Holdings LLC, a Virginia limited liability company, and its permitted successors and assigns under the Construction Loan Agreement.
"Carry Costs" means, collectively, without duplication, the following costs, fees, expenses, and obligations relating to the Loan and the Project:
(a) all interest accruing on outstanding advances under the Construction Loan Agreement at a rate per annum equal to Term SOFR (as defined in the Construction Loan Agreement) plus two hundred eighty-five basis points (2.85%), subject to a SOFR floor of fifty basis points (0.50%);
(b) the unused commitment fee of fifty basis points (0.50%) per annum calculated on the average daily undrawn portion of the aggregate commitments under the $390,000,000 facility;
(c) the arrangement fee in the amount of Three Million Nine Hundred Thousand and No/100 Dollars ($3,900,000) (being one percent (1.00%) of the $390,000,000 aggregate facility amount);
(d) default interest, if any, accruing at the rate specified in Section 2.06 of the Construction Loan Agreement upon the occurrence and during the continuance of an Event of Default;
(e) all late charges assessed pursuant to the terms of the Construction Loan Agreement or the Note;
(f) all real estate taxes, levies, charges, and assessments assessed against or levied upon the Project or any portion thereof, including, without limitation, taxes and assessments on both the Stonebridge Parcel (Loudoun County Tax Map Reference No. /95-4A-1///) and the Meridian Parcel (Loudoun County Tax Map Reference No. /95-4A-2///), whether such taxes are currently due or hereafter assessed;
(g) all insurance premiums required to be maintained by Borrower under the Loan Documents, including, without limitation, builder's risk coverage in the amount of not less than Four Hundred Twelve Million and No/100 Dollars ($412,000,000) carried through Great Basin Surety & Insurance Corp. (Policy No. BRC-2025-0441), owner-controlled insurance program ("OCIP") premiums, commercial general liability, umbrella/excess liability, and all other policies specified in or required by the Construction Loan Agreement;
(h) all fees, costs, expenses, and disbursements of the Administrative Agent and the Lenders incurred in connection with the administration, enforcement, protection, or preservation of the Loan Documents, the Loan, or any collateral securing the Loan, including, without limitation, reasonable attorneys' fees and expenses of Redmond & Calloway LLP, counsel to the Administrative Agent and the Lenders; and
(i) such other carrying costs, periodic fees, and expenses as are defined as "Carry Costs," "Carrying Costs," or "Carry Charges" in the Construction Loan Agreement.
"Change of Control" means, as defined in the Construction Loan Agreement, any direct or indirect sale, transfer, assignment, pledge, encumbrance, or other disposition (whether voluntary or involuntary, by operation of law or otherwise) of equity interests in Borrower or Guarantor that results in Ridgeline Capital Partners Fund IV, LP (directly or indirectly through one or more intermediary entities) ceasing to hold at least fifty-one percent (51%) of the equity interests in Borrower or Guarantor.
"Completion Guaranty" means that certain Completion Guaranty of even date herewith, executed by Guarantor in favor of the Administrative Agent for the ratable benefit of the Lenders, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Construction Loan Agreement" means the Construction Loan Agreement dated as of October 15, 2025, among Borrower, the Lenders, and the Administrative Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Draw Period" means the thirty-six (36)-month period commencing on the date of the first advance under the Construction Loan Agreement.
"Guaranteed Obligations" has the meaning set forth in Section 2.1 of this Carry Guaranty.
"Guarantor" means Ironhaven Data Centers LLC, a Delaware limited liability company (EIN: 84-3291057), with its principal office at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147, and its permitted successors and assigns hereunder.
"Lenders" means, collectively:
(a) Summit National Bank, N.A., with a commitment of One Hundred Eighty Million and No/100 Dollars ($180,000,000), representing approximately 46.15% of the aggregate facility;
(b) Cascade Commercial Lending Corp., with a commitment of One Hundred Thirty Million and No/100 Dollars ($130,000,000), representing approximately 33.33% of the aggregate facility; and
(c) Harborview Trust Company, with a commitment of Eighty Million and No/100 Dollars ($80,000,000), representing approximately 20.51% of the aggregate facility;
together with their respective successors and assigns.
"Loan" means the construction loan in the aggregate principal amount of Three Hundred Ninety Million and No/100 Dollars ($390,000,000) made or to be made by the Lenders to Borrower pursuant to the Construction Loan Agreement.
"Loan Documents" means, collectively, the Construction Loan Agreement, the Note, the Deed of Trust (encumbering the Stonebridge Parcel and the Meridian Parcel located in Loudoun County, Virginia), the Environmental Indemnity Agreement dated as of even date herewith, the Completion Guaranty, this Carry Guaranty, the Pledge Agreement (pursuant to which Guarantor has pledged 100% of the membership interests in Borrower to the Administrative Agent for the ratable benefit of the Lenders), the Assignment of Contracts, Permits, and Approvals, and all other documents, instruments, certificates, and agreements executed and delivered by Borrower, Guarantor, or any other party in connection with the transactions contemplated by the Construction Loan Agreement, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Maturity Date" means the date that is forty-eight (48) months from the closing date of the Construction Loan Agreement, subject to one (1) twelve (12)-month extension option exercisable by Borrower upon the satisfaction of the conditions set forth in Section 2.04 of the Construction Loan Agreement.
"Note" means the Promissory Note in the principal amount of Three Hundred Ninety Million and No/100 Dollars ($390,000,000) executed by Borrower in favor of the Administrative Agent, for the ratable benefit of the Lenders, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Project" means the Stonebridge Data Center Campus, comprising approximately 81.4 acres (consisting of the 62.0-acre Stonebridge Parcel and the 19.4-acre Meridian Parcel), designed to support ninety-six megawatts (96 MW) of critical IT load across four data center buildings (Buildings A through D), together with a central utility plant, structured parking, and all related site improvements, all as more particularly described in Exhibit B attached hereto, located at the intersection of Belmont Ridge Road and Stonebridge Boulevard, unincorporated Loudoun County, Virginia.
"SOFR" means Term SOFR as defined in the Construction Loan Agreement, subject to a floor of fifty basis points (0.50%) per annum.
Section 1.2 — Rules of Construction
(a) Capitalized terms used but not otherwise defined in this Carry Guaranty shall have the meanings ascribed to such terms in the Construction Loan Agreement.
(b) References to "Sections" and "Articles" herein refer to sections and articles of this Carry Guaranty unless the context otherwise requires or a specific cross-reference to another agreement is made.
(c) The words "hereof," "herein," "hereby," "hereunder," and words of similar import, when used in this Carry Guaranty, shall refer to this Carry Guaranty as a whole and not to any particular provision of this Carry Guaranty.
(d) References to any agreement or instrument shall mean such agreement or instrument as amended, restated, supplemented, or otherwise modified from time to time, unless the context otherwise requires.
(e) References to any person include such person's successors and permitted assigns.
(f) The use of the word "including" shall mean "including, without limitation."
(g) This Carry Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, as more fully set forth in Section 9.1 hereof.
ARTICLE 2 — GUARANTY OF CARRY COSTS
Section 2.1 — Guaranty
Guarantor hereby absolutely, unconditionally, and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders, the full and punctual payment and performance of the following obligations when due, whether at stated maturity, upon acceleration, by demand, or otherwise, and whether now existing or hereafter arising (collectively, the "Guaranteed Obligations"):
(a) all interest accruing on the outstanding principal balance of the Loan at the rate per annum equal to Term SOFR plus 285 basis points (2.85%), subject to a SOFR floor of 0.50%, as and when such interest becomes due and payable under the Construction Loan Agreement and the Note;
(b) the unused commitment fee of fifty basis points (0.50%) per annum calculated on the average daily undrawn portion of the aggregate commitments under the $390,000,000 facility, as and when such fee becomes due and payable under the Construction Loan Agreement;
(c) the arrangement fee of Three Million Nine Hundred Thousand and No/100 Dollars ($3,900,000), to the extent remaining unpaid;
(d) default interest at the rate specified in the Construction Loan Agreement, accruing upon the occurrence and during the continuance of an Event of Default;
(e) all late charges assessed pursuant to the Construction Loan Agreement or the Note;
(f) all real estate taxes, levies, charges, and assessments on the Stonebridge Parcel (Loudoun County Tax Map Reference No. /95-4A-1///) and the Meridian Parcel (Loudoun County Tax Map Reference No. /95-4A-2///), as and when the same become due and payable;
(g) all insurance premiums for all coverages required to be maintained by Borrower under the Loan Documents, including, without limitation, builder's risk coverage, the owner-controlled insurance program, commercial general liability, umbrella and excess liability, environmental liability, and all other policies specified in or required by the Construction Loan Agreement;
(h) all fees, costs, expenses, and disbursements of the Administrative Agent and the Lenders incurred in connection with the administration, enforcement, protection, or preservation of any Loan Document or the Loan, including, without limitation, reasonable attorneys' fees and disbursements of Redmond & Calloway LLP, counsel to the Administrative Agent and the Lenders; and
(i) any and all other amounts constituting "Carry Costs," "Carrying Costs," or "Carry Charges" as defined in the Construction Loan Agreement.
For the avoidance of doubt, this Carry Guaranty does not guaranty the repayment of principal of the Loan. The repayment of the outstanding principal balance of the Loan is not a Guaranteed Obligation hereunder; provided, however, that nothing in this sentence shall limit or impair the obligation of Guarantor to pay Carry Costs (including, without limitation, accrued interest and default interest) that become due upon or as a result of acceleration of the Loan following a default in the payment of any Carry Cost or any other Event of Default under the Construction Loan Agreement.
This Carry Guaranty is a guaranty of payment and not merely a guaranty of collection. The obligations of Guarantor hereunder are independent of the obligations of Borrower under the Construction Loan Agreement, the Note, and the other Loan Documents. A separate action or actions may be brought against Guarantor to enforce the provisions of this Carry Guaranty, regardless of whether any action is brought against Borrower or whether Borrower is joined in any such action.
Section 2.2 — Nature of Guaranty
The guaranty set forth in this Article 2 is absolute, continuing, unconditional, and irrevocable. Guarantor's obligations hereunder shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment, or defense based upon any claim that Guarantor may have against Borrower, any Lender, the Administrative Agent, or any other person or entity, and shall not be affected by, and Guarantor hereby waives any defense arising by reason of, any invalidity, illegality, or unenforceability of all or any part of the Guaranteed Obligations or any other agreement or instrument relating thereto.
The Guaranteed Obligations shall include, without limitation, any obligation for Carry Costs that arises after the commencement of a proceeding under Title 11 of the United States Code (11 U.S.C. § 101 et seq.) or any other applicable federal or state bankruptcy, insolvency, reorganization, or similar law with respect to Borrower, whether or not a claim for such obligation is allowed or allowable in such proceeding.
Section 2.3 — Payment on Demand
Upon written notice from the Administrative Agent to Guarantor that Borrower has failed to pay any Carry Cost when due (whether on any scheduled payment date, upon acceleration, or otherwise), Guarantor shall pay the full amount of such unpaid Carry Cost within five (5) business days of Guarantor's receipt of such demand. Each such demand shall specify in reasonable detail the nature and amount of the Carry Cost that is due and unpaid. Payment shall be made by Guarantor in immediately available funds in lawful money of the United States of America by wire transfer to the account designated by the Administrative Agent in such demand or as otherwise specified in writing by the Administrative Agent from time to time.
Guarantor acknowledges and agrees that the Administrative Agent shall not be required to make more than one demand or to pursue any other remedy prior to or as a condition to enforcing this Carry Guaranty. The failure by the Administrative Agent to make a demand upon Guarantor shall not relieve Guarantor of its obligations hereunder, nor shall it constitute a waiver of the Administrative Agent's right to make demand at any future time.
Section 2.4 — Duration of Guaranty; Termination
This Carry Guaranty shall remain in full force and effect from the date hereof until the earliest to occur of the following:
(a) the indefeasible payment in full, in cash, of all Guaranteed Obligations and the termination of all commitments of the Lenders under the Construction Loan Agreement; or
(b) such later date as may result from the reinstatement provisions of Section 2.6 hereof.
This Carry Guaranty shall survive the Maturity Date (including any extension period exercised pursuant to the terms of the Construction Loan Agreement) and shall continue in effect until all Guaranteed Obligations have been indefeasibly satisfied in full and all commitments of the Lenders under the Construction Loan Agreement have terminated. No termination of this Carry Guaranty shall affect any obligation of Guarantor arising prior to such termination.
Section 2.5 — Acceleration
In the event of acceleration of the Loan under the Construction Loan Agreement (whether by reason of an Event of Default thereunder or otherwise), all Guaranteed Obligations, including, without limitation, all Carry Costs accrued and unpaid through the date of such acceleration and all Carry Costs that would accrue from the date of acceleration through the date of actual repayment in full of all outstanding obligations under the Loan Documents, shall become immediately due and payable by Guarantor, without further notice or demand.
Section 2.6 — Reinstatement
If at any time any payment or any portion thereof made by Borrower or Guarantor on account of any Guaranteed Obligation is rescinded or must be returned by the Administrative Agent or any Lender for any reason whatsoever (including, without limitation, by reason of any judgment, decree, or order of any court or administrative body having jurisdiction, or by reason of settlement or compromise of any claim for the recovery of such payment as a preference, fraudulent transfer, or fraudulent conveyance under any applicable federal or state bankruptcy, insolvency, or similar law), this Carry Guaranty shall, to the extent of such payment, be reinstated and restored to full force and effect as though such payment had not been made, and Guarantor shall be liable for the full amount required to be paid to the Administrative Agent as though such payment had never been received. The provisions of this Section 2.6 shall survive the termination of this Carry Guaranty.
ARTICLE 3 — REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants to the Administrative Agent and the Lenders as of the date hereof and as of the date of each advance under the Construction Loan Agreement, as follows:
Section 3.1 — Organization and Good Standing
Guarantor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Guarantor is duly qualified and authorized to transact business and is in good standing in the Commonwealth of Virginia and in each other jurisdiction where the nature of its business or the ownership of its properties requires such qualification. The Virginia State Corporation Commission entity identification number for Guarantor is S7491283. The federal employer identification number (EIN) for Guarantor is 84-3291057. The principal office of Guarantor is located at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147.
Section 3.2 — Authority and Enforceability
Guarantor has full power, authority, and legal right to execute, deliver, and perform this Carry Guaranty and each of the other Loan Documents to which it is a party. The execution, delivery, and performance of this Carry Guaranty by Guarantor has been duly authorized by all necessary action on the part of Guarantor, including all necessary member and/or manager approvals and authorizations, as evidenced by the member consent resolution adopted by the governing members of Guarantor and delivered to the Administrative Agent on or prior to the date hereof. The persons executing this Carry Guaranty on behalf of Guarantor — Marcus Thorne, in his capacity as Chief Executive Officer, and Priya Dasgupta, in her capacity as Chief Financial Officer — are duly authorized signatories of Guarantor with full power and authority to bind Guarantor to the terms hereof. This Carry Guaranty constitutes the legal, valid, and binding obligation of Guarantor, enforceable against Guarantor 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 (regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 3.3 — No Conflicts
The execution, delivery, and performance by Guarantor of this Carry Guaranty do not and will not (a) conflict with or violate any provision of the certificate of formation or limited liability company agreement of Guarantor, (b) conflict with, result in a breach of, or constitute a default under any law, statute, rule, regulation, order, writ, judgment, injunction, or decree of any governmental authority applicable to Guarantor, or (c) conflict with, result in a breach of, or constitute a default under any material agreement, indenture, mortgage, deed of trust, or other instrument to which Guarantor is a party or by which any of its assets or properties may be bound or affected.
Section 3.4 — Ownership of Borrower
Guarantor is the sole member of Borrower (Stonebridge Campus Holdings LLC) and holds one hundred percent (100%) of the membership interests in Borrower, free and clear of all liens and encumbrances except for the pledge of such membership interests in favor of the Administrative Agent, for the ratable benefit of the Lenders, pursuant to the Pledge Agreement. The ownership structure of Guarantor is as follows:
(a) RCP Digital Holdings LLC, a Delaware limited liability company (an intermediate holding entity), holds ninety-two percent (92%) of the equity interests in Guarantor. RCP Digital Holdings LLC is wholly owned by Ridgeline Capital Partners Fund IV, LP, a Delaware limited partnership, whose general partner is Ridgeline Capital Management LLC, a Delaware limited liability company (managing partner: Julian Hargrove).
(b) Ironhaven Management Incentive Pool LLC, a Delaware limited liability company (a management profits-interest vehicle), holds eight percent (8%) of the equity interests in Guarantor.
As a result of the foregoing structure, Ridgeline Capital Partners Fund IV, LP indirectly holds ninety-two percent (92%) of the equity interests in Guarantor through RCP Digital Holdings LLC.
Section 3.5 — Financial Condition
Guarantor has delivered to the Administrative Agent the financial statements of Guarantor and its subsidiaries for the fiscal year ended December 31, 2024, and for the interim period ended June 30, 2025 (collectively, the "Delivered Financial Statements"). The Delivered Financial Statements are true, correct, and complete in all material respects and fairly present the financial condition and results of operations of Guarantor as of the dates and for the periods indicated therein, and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnote disclosures). Since the date of the most recent Delivered Financial Statements, no material adverse change has occurred in the financial condition, business, properties, operations, or prospects of Guarantor. Guarantor currently operates three existing data center facilities in Northern Virginia with an aggregate critical IT load capacity of approximately forty-two megawatts (42 MW).
Section 3.6 — Litigation
There is no action, suit, proceeding, arbitration, investigation, or claim pending or, to the knowledge of Guarantor, threatened against or affecting Guarantor before any court, governmental authority, or arbitrator that, if adversely determined, would reasonably be expected to materially impair Guarantor's ability to perform its obligations under this Carry Guaranty or any other Loan Document to which Guarantor is a party, or that questions the validity or enforceability of this Carry Guaranty.
Section 3.7 — Solvency
As of the date hereof and after giving effect to the transactions contemplated by this Carry Guaranty and the other Loan Documents, Guarantor is solvent. Without limiting the generality of the foregoing, (a) the fair value of the assets of Guarantor exceeds, and will continue to exceed after giving effect to the obligations hereunder, the total amount of the liabilities (including contingent and unliquidated liabilities) of Guarantor, (b) Guarantor is able to pay its debts as they become due, and (c) Guarantor does not have unreasonably small capital to carry out its business as presently conducted and as proposed to be conducted.
Section 3.8 — No Bankruptcy
No insolvency proceedings (including, without limitation, any proceedings under Title 11 of the United States Code, any receivership, assignment for the benefit of creditors, or any similar proceeding under any applicable federal or state law) are pending or, to the best knowledge of Guarantor, threatened or contemplated by or against Guarantor.
Section 3.9 — Benefit
Guarantor acknowledges that it will derive substantial direct and indirect economic benefit from the Loan to Borrower under the Construction Loan Agreement. Guarantor further acknowledges that, as the sole member of Borrower, the successful development and completion of the Project will directly enhance the value of Guarantor's investment in Borrower and Guarantor's overall business operations.
ARTICLE 4 — COVENANTS OF GUARANTOR
Guarantor hereby covenants and agrees that, from and after the date hereof and until the indefeasible payment in full of all Guaranteed Obligations and the termination of all commitments under the Construction Loan Agreement, Guarantor shall observe and perform the following covenants:
Section 4.1 — Financial Reporting
Guarantor shall deliver to the Administrative Agent:
(a) Annual Financial Statements. Within one hundred twenty (120) days after the end of each fiscal year of Guarantor, audited financial statements of Guarantor and its consolidated subsidiaries for such fiscal year, including a balance sheet, income statement, statement of cash flows, and statement of changes in members' equity, prepared in accordance with generally accepted accounting principles and audited by Fielding & Associates, CPAs (engagement partner: Robert Fielding, CPA), or such other nationally or regionally recognized independent certified public accounting firm as is reasonably acceptable to the Administrative Agent, accompanied by an unqualified opinion of such accounting firm;
(b) Quarterly Financial Statements. Within forty-five (45) days after the end of each fiscal quarter of Guarantor (other than the fourth fiscal quarter), unaudited financial statements of Guarantor and its consolidated subsidiaries for such fiscal quarter and for the portion of the fiscal year then ended, including a balance sheet, income statement, and statement of cash flows, certified by the Chief Financial Officer of Guarantor as fairly presenting, in all material respects, the financial condition and results of operations of Guarantor as of the dates and for the periods indicated therein (subject to normal year-end audit adjustments and the absence of footnote disclosures); and
(c) Additional Information. Such other financial information, reports, certificates, and documents as the Administrative Agent may from time to time reasonably request.
Section 4.2 — Maintenance of Existence
Guarantor shall maintain its legal existence as a limited liability company in good standing under the laws of the State of Delaware, shall maintain its qualification and good standing in the Commonwealth of Virginia, and shall maintain its qualification and good standing in each other jurisdiction where the failure to be so qualified would reasonably be expected to have a material adverse effect on the ability of Guarantor to perform its obligations under this Carry Guaranty.
Section 4.3 — Compliance with Laws
Guarantor shall comply in all material respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, and decrees of any governmental authority applicable to Guarantor, its business, its properties, or the Project, including, without limitation, all environmental, tax, employment, and data privacy laws.
Section 4.4 — No Transfer of Ownership without Consent; Change of Control
(a) Guarantor shall not, without the prior written consent of the Administrative Agent (acting with the requisite Lender consent under the Construction Loan Agreement), directly or indirectly permit, suffer, or effect a Change of Control of Guarantor or Borrower. A "Change of Control" shall be defined as any direct or indirect sale, transfer, assignment, pledge, encumbrance, or other disposition (whether voluntary or involuntary, by operation of law or otherwise) of equity interests in Borrower or Guarantor that results in Ridgeline Capital Partners Fund IV, LP (directly or indirectly through one or more intermediary entities) ceasing to hold at least fifty-one percent (51%) of the equity interests in Borrower or Guarantor.
(b) Upon the occurrence of a Change of Control without the prior written consent of the Administrative Agent, the Guaranteed Obligations shall, at the option of the Administrative Agent (acting at the direction of the Required Lenders under the Construction Loan Agreement), become immediately due and payable, and the Administrative Agent may exercise any and all remedies available under this Carry Guaranty, the other Loan Documents, and applicable law.
Section 4.5 — Notice of Default
Guarantor shall promptly, and in any event within five (5) business days after obtaining knowledge thereof, notify the Administrative Agent in writing of (a) any event that constitutes, or with the giving of notice or passage of time or both would constitute, an Event of Default under this Carry Guaranty, (b) any event that constitutes, or with the giving of notice or passage of time or both would constitute, an Event of Default under the Construction Loan Agreement or any other Loan Document, and (c) any material adverse change in the financial condition, business, properties, or operations of Guarantor. Each such notice shall describe such event in reasonable detail and shall specify the steps, if any, that Guarantor is taking or proposes to take to address such event.
Section 4.6 — Taxes and Insurance
Guarantor shall ensure that Borrower timely pays when due all real estate taxes, assessments, levies, charges, and insurance premiums required to be paid with respect to the Project under the Loan Documents. If Borrower fails to make any such payment when due, Guarantor shall pay the same directly within ten (10) business days after written notice from the Administrative Agent of such failure (or, if earlier, within the applicable cure period set forth in the Construction Loan Agreement with respect to such payment).
Section 4.7 — Further Assurances
Guarantor shall, at its sole cost and expense, execute and deliver to the Administrative Agent such additional documents, instruments, agreements, and certificates as the Administrative Agent may from time to time reasonably request in order to carry out the purposes of this Carry Guaranty, to evidence or further secure the Guaranteed Obligations, or to protect the rights and remedies of the Administrative Agent and the Lenders hereunder.
ARTICLE 5 — CONSENTS AND WAIVERS
Section 5.1 — Waivers by Guarantor
Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law:
(a) notice of acceptance of this Carry Guaranty by the Administrative Agent or any Lender;
(b) notice of any advance, extension of credit, draw, or disbursement made by any Lender to Borrower under the Construction Loan Agreement;
(c) notice of any default or event of default by Borrower under the Construction Loan Agreement, the Note, or any other Loan Document;
(d) demand, presentment for payment, protest, and notice of dishonor or nonpayment of any Guaranteed Obligation;
(e) any requirement that the Administrative Agent or any Lender exhaust any right or remedy, or take any action, against Borrower, any collateral securing the Loan, any other guarantor, or any other person or entity before proceeding against Guarantor under this Carry Guaranty;
(f) any defense based on any applicable statute of limitations applicable to the obligations of Borrower under the Construction Loan Agreement, the Note, or any other Loan Document;
(g) any defense arising from the incapacity, lack of authority, death, disability, or dissolution of any person or entity; and
(h) any right to require the Administrative Agent or any Lender to marshal any assets or liabilities, or to proceed against any collateral securing the Loan in any particular order or manner.
Section 5.2 — Consent to Modifications
Guarantor hereby consents to any modification, amendment, supplement, restatement, extension, renewal, rearrangement, increase, decrease, or waiver of the Construction Loan Agreement or any other Loan Document, without notice to or further consent of Guarantor, and this Carry Guaranty shall remain in full force and effect notwithstanding any such action. Without limiting the generality of the foregoing, Guarantor specifically consents to any one or more of the following actions, whether taken singly or in combination, without notice to or further consent of Guarantor:
(a) any increase or decrease in the interest rate applicable to the Loan (including, without limitation, any change in the applicable margin or the SOFR floor);
(b) any change to the Draw Period, including any extension or shortening thereof;
(c) any extension of the Maturity Date (whether pursuant to the extension option set forth in the Construction Loan Agreement or otherwise);
(d) any change in the composition of the syndicate of Lenders, including the addition or replacement of one or more Lenders; and
(e) any modification to the amount of any Lender's commitment under the Construction Loan Agreement, including any increase or decrease thereof.
Section 5.3 — Consent to Release of Collateral
This Carry Guaranty shall not be released, diminished, impaired, reduced, or otherwise adversely affected by any release, exchange, surrender, non-perfection, or impairment of any collateral or security at any time held by the Administrative Agent or any Lender for the Loan or for any other obligation of Borrower, including, without limitation:
(a) the deed of trust encumbering the approximately 81.4-acre campus (comprised of the Stonebridge Parcel and the Meridian Parcel) in Loudoun County, Virginia;
(b) the pledge of one hundred percent (100%) of the membership interests in Borrower held by Guarantor;
(c) the assignment of the EPC Agreement between Borrower and Titan-McAllister Construction Group, LLC;
(d) the assignment of the Large Load Service Agreement ("LLSA") between Borrower and Vantage Power Cooperative;
(e) the assignment of permits, approvals, entitlements, and governmental authorizations relating to the Project; and
(f) any other collateral now or hereafter securing the Loan or any other obligation under the Loan Documents.
Section 5.4 — Consent to Release of Other Guarantors
This Carry Guaranty shall not be released, diminished, impaired, reduced, or otherwise adversely affected by any release, discharge, or exoneration of any other guarantor or obligor with respect to the Loan or any obligation under the Loan Documents, whether by operation of law or otherwise.
Section 5.5 — Waiver of Subrogation
Until the indefeasible payment in full, in cash, of all Guaranteed Obligations and the termination of all commitments of the Lenders under the Construction Loan Agreement, Guarantor hereby irrevocably waives all rights of subrogation, reimbursement, exoneration, contribution, and indemnity that Guarantor may now or hereafter have against Borrower, and all rights to participate in or benefit from any collateral or security held by the Administrative Agent or any Lender for the Loan, in each case arising by reason of any payment made by Guarantor under this Carry Guaranty.
Guarantor shall not exercise any rights against Borrower arising by reason of any payment made by Guarantor under this Carry Guaranty, whether by way of subrogation, reimbursement, exoneration, contribution, indemnity, or otherwise, until all Guaranteed Obligations have been indefeasibly paid in full, in cash, and all commitments of the Lenders under the Construction Loan Agreement have been terminated.
ARTICLE 6 — EVENTS OF DEFAULT
Section 6.1 — Events of Default
Each of the following shall constitute an "Event of Default" under this Carry Guaranty:
(a) Payment Default. Failure by Guarantor to make any payment of a Guaranteed Obligation within five (5) business days after written demand by the Administrative Agent in accordance with Section 2.3 hereof;
(b) Misrepresentation. Any representation or warranty made by Guarantor herein or in any certificate, document, or financial statement delivered to the Administrative Agent in connection with this Carry Guaranty proves to have been false or misleading in any material respect as of the date when made or deemed made;
(c) Covenant Default. Breach by Guarantor of any covenant, agreement, or obligation contained in this Carry Guaranty that continues unremedied for thirty (30) days after written notice from the Administrative Agent specifying such breach; provided, however, that if such breach is not reasonably susceptible of cure within such thirty (30)-day period, and Guarantor has commenced and is diligently pursuing such cure within such period, such cure period shall be extended for an additional reasonable period not to exceed thirty (30) days; and provided, further, that if such breach is by its nature not capable of being cured, such breach shall constitute an Event of Default immediately upon the occurrence thereof, without the necessity of notice or the passage of time;
(d) Unauthorized Change of Control. A Change of Control occurs without the prior written consent of the Administrative Agent;
(e) Insolvency. Guarantor becomes the subject of any proceeding under Title 11 of the United States Code (11 U.S.C. § 101 et seq.), or any other applicable federal or state bankruptcy, insolvency, reorganization, receivership, or similar law, whether voluntary or involuntary; or Guarantor makes a general assignment for the benefit of creditors, or a receiver, trustee, custodian, or similar official is appointed for Guarantor or for a substantial portion of Guarantor's assets;
(f) Cross-Default. An Event of Default (as defined therein) occurs under the Construction Loan Agreement or any other Loan Document;
(g) Material Judgment or Lien. One or more final, non-appealable judgments, orders, or decrees for the payment of money in an aggregate amount in excess of Five Million and No/100 Dollars ($5,000,000) (to the extent not covered by insurance or indemnification) are rendered against Guarantor, or any lien or encumbrance in excess of such threshold is imposed upon any asset of Guarantor, and in either case the same remains undischarged, unbonded, unvacated, and unstayed for a period of sixty (60) consecutive days following the entry thereof; and
(h) Invalidity of Guaranty. This Carry Guaranty or any other Loan Document to which Guarantor is a party ceases to be in full force and effect (other than in accordance with its terms or by reason of the indefeasible payment in full of all obligations thereunder), or Guarantor contests or challenges the validity or enforceability of this Carry Guaranty or any provision hereof.
Section 6.2 — Remedies
(a) Upon the occurrence and during the continuance of an Event of Default hereunder, the Administrative Agent (acting on behalf of and for the ratable benefit of the Lenders) may, by written notice to Guarantor:
(i) declare all Guaranteed Obligations immediately due and payable, whereupon the same shall become immediately due and payable by Guarantor without further notice or demand;
(ii) exercise any and all rights and remedies available to the Administrative Agent and the Lenders under this Carry Guaranty, the other Loan Documents, and applicable law, including, without limitation, the right to bring suit for the collection of the Guaranteed Obligations; and
(iii) proceed directly against Guarantor without first proceeding against Borrower, any collateral securing the Loan, or any other guarantor or obligor, and without being required to exhaust any other remedy.
(b) All remedies available to the Administrative Agent and the Lenders under this Carry Guaranty, the other Loan Documents, and applicable law are cumulative and not exclusive of any other remedies that may be available. The exercise or partial exercise of any remedy shall not preclude the exercise of any other remedy. No delay or failure by the Administrative Agent or any Lender in exercising any right or remedy shall operate as a waiver thereof.
ARTICLE 7 — SUBORDINATION
Section 7.1 — Subordination of Guarantor's Claims
Any and all indebtedness, liabilities, and claims of Guarantor against Borrower (whether now existing or hereafter arising, whether arising by loan, advance, capital contribution, dividend, distribution, or otherwise, and whether evidenced by note, account, contract, or other instrument) are hereby subordinated in right of payment, to the fullest extent permitted by applicable law, to the prior indefeasible payment in full, in cash, of all obligations of Borrower under the Construction Loan Agreement, the Note, and the other Loan Documents. Until all such obligations have been indefeasibly paid in full and all commitments of the Lenders under the Construction Loan Agreement have been terminated, Guarantor shall not demand, accept, or receive from Borrower, and Borrower shall not make, any payment on account of any such subordinated indebtedness, liabilities, or claims.
Section 7.2 — Turnover
If Guarantor receives any payment, distribution, or other value from Borrower on account of any subordinated indebtedness, liability, or claim in violation of Section 7.1 hereof, whether received directly or indirectly, and whether received in cash, property, or otherwise, such payment, distribution, or value shall be received and held in trust by Guarantor for the benefit of the Administrative Agent and the Lenders and shall be immediately turned over to the Administrative Agent, in the form received (duly endorsed or assigned to the Administrative Agent, if necessary), for application to the obligations of Borrower under the Loan Documents in accordance with the terms of the Construction Loan Agreement.
ARTICLE 8 — INDEPENDENT OBLIGATIONS; NO IMPAIRMENT
Section 8.1 — Independent Obligations
This Carry Guaranty constitutes a primary obligation of Guarantor and not merely that of a surety. The obligations of Guarantor hereunder are independent of and separate from the obligations of Borrower under the Construction Loan Agreement, the Note, and the other Loan Documents. The Administrative Agent shall not be required to join Borrower as a party in any action or proceeding to enforce this Carry Guaranty, and no action or proceeding against Borrower or any collateral shall be required as a condition precedent to the Administrative Agent's right to enforce this Carry Guaranty against Guarantor.
Section 8.2 — No Impairment
The obligations of Guarantor hereunder shall not be released, diminished, discharged, impaired, or otherwise affected by any of the following, whether or not Guarantor receives notice thereof or consents thereto:
(a) any amendment, modification, supplement, restatement, extension, renewal, or waiver of or to any Loan Document, including, without limitation, any increase or decrease in the amount of the Loan, any change in the interest rate, any change in the Maturity Date, or any change in the terms of repayment;
(b) any release, exchange, substitution, non-perfection, or impairment of any collateral securing the Loan, including, without limitation, the deed of trust on the approximately 81.4-acre campus (comprised of the Stonebridge Parcel and the Meridian Parcel), the pledge of the membership interests in Borrower, the assignment of the EPC contract with Titan-McAllister Construction Group, LLC, the assignment of the Large Load Service Agreement with Vantage Power Cooperative, the assignment of all permits, approvals, and entitlements relating to the Project, or any other collateral at any time securing any obligation under the Loan Documents;
(c) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation, dissolution, or similar proceeding relating to Borrower, or any action taken by the Administrative Agent or any Lender in any such proceeding;
(d) any invalidity, illegality, or unenforceability of any obligation of Borrower under the Construction Loan Agreement, the Note, or any other Loan Document, or any deficiency in or failure of any collateral; and
(e) any other act, omission, event, or circumstance that might otherwise constitute a legal or equitable defense to, or a legal or equitable discharge of, a surety or guarantor, whether or not similar to the foregoing.
Section 8.3 — Relationship to Completion Guaranty
This Carry Guaranty is separate and independent from the Completion Guaranty executed by Guarantor of even date herewith in favor of the Administrative Agent for the ratable benefit of the Lenders. The obligations of Guarantor under this Carry Guaranty are in addition to, and not in limitation or substitution of, the obligations of Guarantor under the Completion Guaranty. The satisfaction of the obligations under the Completion Guaranty shall not relieve Guarantor of the obligations under this Carry Guaranty, and the satisfaction of the obligations under this Carry Guaranty shall not relieve Guarantor of the obligations under the Completion Guaranty. Each of this Carry Guaranty and the Completion Guaranty may be enforced independently by the Administrative Agent, and the exercise of remedies under one such instrument shall not preclude or limit the exercise of remedies under the other.
ARTICLE 9 — MISCELLANEOUS
Section 9.1 — Governing Law