PURCHASE AND SALE AGREEMENT
Stonebridge Parcel — 62.0 Acres Loudoun County, Virginia
Between
BLACKTHORN REALTY GROUP, INC. a Virginia corporation ("Seller")
and
IRONHAVEN DATA CENTERS LLC a Delaware limited liability company ("Buyer")
Dated as of April 15, 2025
Property: Loudoun County Tax Map Reference No. /95-4A-1/// NE Corner of Belmont Ridge Road and Stonebridge Boulevard Ashburn, Virginia 20148
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as of April 15, 2025 (the "Effective Date"), by and between BLACKTHORN REALTY GROUP, INC., a Virginia corporation, with its principal office at 112 East Market Street, Suite 400, Leesburg, Virginia 20176 ("Seller"), and IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company, with its principal office at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147 ("Buyer"). Seller and Buyer are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller is a corporation duly organized and validly existing under the laws of the Commonwealth of Virginia, with its principal office at 112 East Market Street, Suite 400, Leesburg, Virginia 20176, and is the fee simple owner of approximately 62.0 acres of land located at the northeast corner of Belmont Ridge Road and Stonebridge Boulevard in unincorporated Loudoun County, Virginia, identified on the Loudoun County tax maps as Tax Map Reference No. /95-4A-1/// and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Land");
WHEREAS, Buyer is a limited liability company duly organized and validly existing under the laws of the State of Delaware and registered to transact business in the Commonwealth of Virginia, with its principal office at 44680 Prentice Drive, Suite 200, Ashburn, Virginia 20147, and is engaged in the development, construction, and operation of data center facilities and related critical infrastructure throughout the eastern United States;
WHEREAS, Buyer desires to acquire the Property (as defined herein) for the purpose of developing a data center campus consisting of multiple data center buildings, electrical substations, utility infrastructure, stormwater management facilities, and related improvements (the "Stonebridge Data Center Campus" or the "Project"), which campus is anticipated to represent a total investment in excess of $1.5 billion upon full buildout;
WHEREAS, Seller desires to sell the Property to Buyer, and Buyer desires to purchase the Property from Seller, upon the terms and conditions set forth in this Agreement;
WHEREAS, Buyer has separately entered into or intends to enter into negotiations for the acquisition of the adjacent parcel identified on the Loudoun County tax maps as Tax Map Reference No. /95-4A-2/// (the "Meridian Parcel"), consisting of approximately 19.4 acres, with the intent of assembling both the Property and the Meridian Parcel for an approximately 81.4-acre data center campus; provided, however, that Buyer's acquisition of the Meridian Parcel is a separate transaction and is not a condition to the consummation of the transactions contemplated by this Agreement; and
WHEREAS, the Parties desire to memorialize the terms of their agreement regarding the purchase and sale of the Property as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, for purposes of this Agreement, the term "Affiliate" as applied to Buyer shall expressly include Ridgeline Capital Partners Fund IV, LP, a Delaware limited partnership, and any of its portfolio entities, general partners, limited partners, and managed funds.
"Agreement" means this Purchase and Sale Agreement, including all Exhibits and Schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.
"ALTA/NSPS Survey" or "Survey" means the ALTA/NSPS Land Title Survey of the Property to be obtained by Buyer in accordance with Section 4.6, prepared by Lumen Ridge Engineering, PLLC.
"Assignment" has the meaning set forth in Section 12.6.
"Business Day" means any day other than a Saturday, Sunday, or a day on which commercial banks located in the Commonwealth of Virginia are authorized or required by law or executive order to be closed. If any deadline or time period set forth in this Agreement expires on a day that is not a Business Day, such deadline or time period shall be automatically extended to the next succeeding Business Day.
"Buyer" means Ironhaven Data Centers LLC, a Delaware limited liability company (EIN: 84-3291057; Virginia State Corporation Commission Entity ID: S7491283), and its permitted successors and assigns under this Agreement.
"Buyer's Counsel" means Calderwood & Harkness LLP, 1900 K Street NW, Suite 800, Washington, DC 20006, Attention: Douglas Fairchild, Esq. and Cynthia Ho, Esq.
"Closing" means the consummation of the purchase and sale of the Property contemplated by this Agreement, as more particularly described in Article 8.
"Closing Date" means September 15, 2025, subject to extension as provided in Sections 8.1 and 8.2.
"Deed" means the Special Warranty Deed to be delivered by Seller to Buyer (or Buyer's permitted assignee) at Closing, substantially in the form attached hereto as Exhibit D.
"Due Diligence Period" means the period commencing on the Effective Date and expiring at 5:00 p.m. Eastern Time on the date that is ninety (90) calendar days after the Effective Date (i.e., July 14, 2025).
"Earnest Money Deposit" means, collectively, the First Deposit and the Second Deposit (together with all interest earned thereon while held by the Escrow Agent), totaling Two Million Nine Hundred Twenty-Five Thousand Dollars ($2,925,000), as more particularly described in Section 3.2.
"Effective Date" means April 15, 2025.
"Environmental Laws" means all applicable federal, state, and local laws, statutes, regulations, ordinances, rules, and orders pertaining to the protection of the environment, human health, or natural resources, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), and the Virginia Waste Management Act (Va. Code § 10.1-1400 et seq.), each as amended from time to time.
"Escrow Agent" means Fidelitas Title & Escrow, Inc., a Virginia corporation, with offices at 44121 Harry Byrd Highway, Suite 120, Ashburn, Virginia 20147.
"Escrow Agreement" means the separate Escrow Agreement to be executed contemporaneously herewith by Buyer, Seller, and the Escrow Agent in substantially the form attached hereto as Exhibit C.
"First Deposit" means the sum of One Million Four Hundred Sixty-Two Thousand Five Hundred Dollars ($1,462,500) to be deposited by Buyer with the Escrow Agent within two (2) Business Days after the Effective Date, as more particularly described in Section 3.2(a).
"FIRPTA" means Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
"Governmental Authority" means any federal, state, county, municipal, or other governmental or quasi-governmental entity, department, commission, board, bureau, agency, or instrumentality, or any court, tribunal, or arbitral body, including the County of Loudoun, Virginia, the Commonwealth of Virginia, the Loudoun County Board of Supervisors, the Loudoun County Planning Commission, the Loudoun County Department of Planning and Zoning, the Virginia Department of Environmental Quality, and the U.S. Environmental Protection Agency.
"Hazardous Substances" means any pollutants, contaminants, toxic or hazardous substances, materials, wastes, constituents, or chemicals that are regulated by, or form the basis of liability under, any Environmental Law, including petroleum products, asbestos-containing materials, polychlorinated biphenyls, lead-based paint, mold, radon, and per- and polyfluoroalkyl substances (PFAS).
"Improvements" means all buildings, structures, fixtures, paving, fencing, and other improvements of every kind and character located on the Land as of the Closing Date, if any.
"Independent Consideration" has the meaning set forth in Section 3.5.
"Intangible Property" means all intangible rights, privileges, licenses, and appurtenances owned by Seller and pertaining to the Land or the Improvements, including all governmental permits, approvals, authorizations, development rights, density rights, impact fee credits, certificates of occupancy, guaranties, warranties, and other intangible rights related to the ownership, use, or development of the Property.
"Land" means the approximately 62.0 acres of real property located in unincorporated Loudoun County, Virginia, as more particularly described in the legal description attached hereto as Exhibit A, together with all easements, rights-of-way, strips, gores, privileges, and appurtenances thereunto belonging or in any way appertaining thereto.
"Mandatory Cure Items" has the meaning set forth in Section 5.3.
"Meridian Parcel" means the approximately 19.4-acre parcel adjacent to the Property, identified on the Loudoun County tax maps as Tax Map Reference No. /95-4A-2///, which Buyer intends to acquire separately.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Permitted Exceptions" means those title exceptions listed on Exhibit B attached hereto and those matters approved or deemed approved by Buyer pursuant to Article 5.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, trust, estate, unincorporated association, governmental authority, or other entity.
"Personal Property" means any tangible personal property owned by Seller and located on or used in connection with the Land as of the Closing Date, if any.
"Project" means the Stonebridge Data Center Campus, as described in the Recitals.
"Property" means, collectively, the Land, the Improvements, the Intangible Property, and the Personal Property.
"Purchase Price" means Fifty-Eight Million Five Hundred Thousand Dollars ($58,500,000.00), payable as provided in Section 3.1.
"Second Deposit" means the sum of One Million Four Hundred Sixty-Two Thousand Five Hundred Dollars ($1,462,500) to be deposited by Buyer with the Escrow Agent within two (2) Business Days after the expiration of the Due Diligence Period (provided Buyer has not terminated this Agreement pursuant to Section 4.4), as more particularly described in Section 3.2(b).
"Seller" means Blackthorn Realty Group, Inc., a Virginia corporation (EIN: 54-1987234; Virginia State Corporation Commission Entity ID: 0412876-3), with its principal office at 112 East Market Street, Suite 400, Leesburg, Virginia 20176.
"Seller's Counsel" means Whitfield, Poole & Stratton LLP, 305 Harrison Street SE, Suite 200, Leesburg, Virginia 20175, Attention: Harrison Poole, Esq.
"Title Commitment" means the commitment for title insurance issued by the Title Company (as agent for Sovereign Title Insurance Company), with an effective date of April 3, 2025, committing to issue the Title Policy.
"Title Company" means Fidelitas Title & Escrow, Inc., a Virginia corporation, acting in its capacity as title agent and issuing through its underwriter, Sovereign Title Insurance Company.
"Title Objection" has the meaning set forth in Section 5.2.
"Title Policy" means the Owner's Title Insurance Policy (ALTA 2006 form, as amended) in the amount of the Purchase Price ($58,500,000) to be issued by Sovereign Title Insurance Company through the Title Company at Closing, insuring fee simple title to the Property vested in Buyer (or Buyer's permitted assignee), subject only to the Permitted Exceptions.
"ZMOD" means a Zoning Modification Application for data center use under the Loudoun County Zoning Ordinance, expected to be filed under Docket No. ZMOD-2025-0038 with the Loudoun County Department of Planning and Zoning.
Section 1.2 — Rules of Construction
(a) The headings and captions used in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of any provision hereof.
(b) As used in this Agreement, the singular shall include the plural and the plural shall include the singular, and each gender shall include each other gender, as the context requires.
(c) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "but not limited to" or "without limitation," regardless of whether such phrase actually appears.
(d) All references to "Articles," "Sections," "Exhibits," and "Schedules" are to Articles, Sections, Exhibits, and Schedules of this Agreement, unless otherwise indicated.
(e) All references to dollar amounts shall mean lawful currency of the United States of America.
(f) The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(g) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, as more particularly set forth in Section 12.2.
(h) The words "to the extent" shall mean "to the degree that" and shall not simply mean "if."
(i) All references to a "day" or "days" shall mean calendar days unless specifically stated as "Business Days."
ARTICLE 2 — AGREEMENT OF PURCHASE AND SALE
Section 2.1 — Agreement to Sell and Purchase
Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell, transfer, convey, and assign to Buyer, and Buyer agrees to purchase and accept from Seller, the Property for the Purchase Price of Fifty-Eight Million Five Hundred Thousand Dollars ($58,500,000.00). The Purchase Price represents an approximate per-acre equivalent of Nine Hundred Forty-Three Thousand Five Hundred Forty-Eight Dollars ($943,548) per acre, based on the approximately 62.0 acres comprising the Land. The per-acre figure is provided for reference purposes only and shall not be used to adjust the Purchase Price in the event the acreage of the Land varies from the approximate acreage stated herein, except as may be otherwise agreed in writing by the Parties.
Section 2.2 — Property Description
The Property to be conveyed by Seller to Buyer consists of the following:
(a) The Land. Approximately 62.0 acres of real property located at the northeast corner of Belmont Ridge Road (Virginia Route 659) and Stonebridge Boulevard, in unincorporated Loudoun County, Virginia 20148, as more particularly described in the legal description attached hereto as Exhibit A, together with all easements, rights-of-way, water rights, mineral rights (to the extent owned by Seller), and appurtenances belonging or in any way appertaining thereto. The Land is identified on the Loudoun County tax maps as Tax Map Reference No. /95-4A-1///.
(b) The Improvements. All buildings, structures, fixtures, paving, fencing, and other improvements of every kind and character located on the Land as of the Closing Date, if any.
(c) The Intangible Property. All intangible rights, privileges, licenses, and appurtenances owned by Seller and pertaining to the Land or the Improvements, including all governmental permits, approvals, authorizations, development rights, density rights, impact fee credits, warranties, guaranties, and other intangible rights related to the ownership, use, or development of the Property.
(d) The Personal Property. Any tangible personal property owned by Seller and located on or used in connection with the Land as of the Closing Date, if any.
Section 2.3 — Existing Zoning
The Property is currently zoned PD-IP (Planned Development – Industrial Park) under the Loudoun County Zoning Ordinance, as amended. Buyer acknowledges that the use of the Property for data center purposes requires the filing and approval of a Zoning Modification Application (ZMOD) with the Loudoun County Department of Planning and Zoning. Buyer intends to file such ZMOD application (expected Docket No. ZMOD-2025-0038) following the Effective Date. The Parties acknowledge and agree that the approval of the ZMOD is not a condition precedent to Buyer's obligation to close the transaction contemplated by this Agreement, except to the extent that Buyer exercises its right to terminate this Agreement during the Due Diligence Period pursuant to Section 4.4. Buyer assumes all risk associated with obtaining zoning and entitlement approvals for data center use of the Property, including the risk that such approvals may not be obtained or may be subject to conditions, proffers, or limitations that Buyer deems unsatisfactory.
ARTICLE 3 — PURCHASE PRICE AND EARNEST MONEY DEPOSIT
Section 3.1 — Purchase Price
The Purchase Price for the Property is Fifty-Eight Million Five Hundred Thousand Dollars ($58,500,000.00), payable as follows:
(a) Earnest Money Deposit (credited at Closing): Two Million Nine Hundred Twenty-Five Thousand Dollars ($2,925,000), consisting of the First Deposit and the Second Deposit, each as defined and described in Section 3.2, which shall be applied as a credit against the Purchase Price at Closing; and
(b) Balance Due at Closing: Fifty-Five Million Five Hundred Seventy-Five Thousand Dollars ($55,575,000), representing the Purchase Price less the Earnest Money Deposit ($58,500,000 minus $2,925,000), payable by wire transfer of immediately available federal funds to the account designated by the Escrow Agent or Seller on the Closing Date.
Section 3.2 — Earnest Money Deposit
(a) First Deposit. Within two (2) Business Days after the Effective Date, Buyer shall deposit the sum of One Million Four Hundred Sixty-Two Thousand Five Hundred Dollars ($1,462,500) with the Escrow Agent by wire transfer of immediately available funds (the "First Deposit"). The failure of Buyer to timely deposit the First Deposit shall constitute a default by Buyer under this Agreement, and Seller may terminate this Agreement upon written notice to Buyer if the First Deposit is not received by the Escrow Agent within five (5) Business Days after the Effective Date.
(b) Second Deposit. Provided that Buyer has not terminated this Agreement pursuant to Section 4.4, within two (2) Business Days after the expiration of the Due Diligence Period (i.e., on or before July 16, 2025), Buyer shall deposit the sum of One Million Four Hundred Sixty-Two Thousand Five Hundred Dollars ($1,462,500) with the Escrow Agent by wire transfer of immediately available funds (the "Second Deposit"). The failure of Buyer to timely deposit the Second Deposit (unless Buyer has previously exercised its right to terminate under Section 4.4) shall constitute a default by Buyer under this Agreement.
(c) The First Deposit and the Second Deposit, together with all interest earned thereon while held by the Escrow Agent, are collectively referred to herein as the "Earnest Money Deposit."
(d) The total Earnest Money Deposit of Two Million Nine Hundred Twenty-Five Thousand Dollars ($2,925,000) represents five percent (5%) of the Purchase Price.
Section 3.3 — Escrow Provisions
The Earnest Money Deposit shall be held by Fidelitas Title & Escrow, Inc. (the Escrow Agent) in a federally insured, interest-bearing escrow account at a financial institution reasonably acceptable to both Parties, in accordance with the terms of the separate Escrow Agreement to be executed contemporaneously herewith by Buyer, Seller, and the Escrow Agent, substantially in the form attached hereto as Exhibit C. All interest earned on the Earnest Money Deposit shall accrue for the benefit of the Party ultimately entitled to receive the Earnest Money Deposit. The Escrow Agent shall not disburse the Earnest Money Deposit except in accordance with the terms of this Agreement and the Escrow Agreement. The Escrow Agent's tax identification number shall be used for tax reporting purposes with respect to interest earned on the Earnest Money Deposit. Upon disbursement of the Earnest Money Deposit, the Escrow Agent shall report interest earned to the Party receiving such funds, as required by applicable law.
Section 3.4 — Disposition of Earnest Money Deposit
The Earnest Money Deposit shall be disbursed as follows:
(a) Closing. If the Closing occurs in accordance with this Agreement, the Earnest Money Deposit (including all accrued interest) shall be applied as a credit against the Purchase Price payable by Buyer at Closing.
(b) Termination During Due Diligence Period. If Buyer timely terminates this Agreement during the Due Diligence Period pursuant to Section 4.4, the Earnest Money Deposit (including all accrued interest, but less the Independent Consideration of $100.00 described in Section 3.5) shall be returned to Buyer within five (5) Business Days after the Escrow Agent's receipt of Buyer's termination notice.
(c) Buyer's Default. If Buyer defaults in its obligation to close hereunder (after all conditions precedent to Buyer's obligation to close have been satisfied or waived) and Seller exercises its remedies pursuant to Section 11.1, the Earnest Money Deposit (including all accrued interest) shall be paid to Seller as liquidated damages, which shall constitute Seller's sole and exclusive remedy for such default.
(d) Seller's Default. If Seller defaults in its obligation to close or materially breaches any representation, warranty, or covenant under this Agreement, and Buyer elects to terminate this Agreement pursuant to Section 11.2(a)(i), the Earnest Money Deposit (including all accrued interest) shall be returned to Buyer within five (5) Business Days, without prejudice to Buyer's other remedies as set forth in Section 11.2.
Section 3.5 — Independent Consideration
One Hundred Dollars ($100.00) of the First Deposit constitutes independent consideration for Buyer's rights under this Agreement, including the right to investigate, inspect, and evaluate the Property during the Due Diligence Period and the option to terminate this Agreement during the Due Diligence Period (the "Independent Consideration"). The Independent Consideration has been bargained for and agreed upon by the Parties and is fully earned by Seller upon execution of this Agreement. The Independent Consideration is non-refundable under all circumstances and shall be retained by Seller. In the event of a termination of this Agreement for any reason, the Independent Consideration shall not be returned to Buyer but shall remain the property of Seller.
ARTICLE 4 — DUE DILIGENCE
Section 4.1 — Due Diligence Period
Buyer shall have a period of ninety (90) calendar days commencing on the Effective Date within which to conduct due diligence investigations, inspections, studies, analyses, and evaluations of the Property (the "Due Diligence Period"). The Due Diligence Period shall commence on April 15, 2025 and shall expire at 5:00 p.m. Eastern Time on July 14, 2025. During the Due Diligence Period, Buyer shall have the right to investigate all aspects of the Property that Buyer deems relevant, including physical, environmental, geotechnical, zoning, entitlement, title, survey, utility, market, and financial matters, all at Buyer's sole cost and expense and subject to the terms and conditions of this Article 4.
Section 4.2 — Access to Property
(a) Grant of Access. During the Due Diligence Period, and thereafter prior to Closing so long as this Agreement remains in effect and has not been terminated, Seller shall permit Buyer and its authorized agents, employees, consultants, contractors, engineers, environmental professionals, surveyors, and other representatives (collectively, "Buyer's Representatives") to access the Property at reasonable times during normal business hours for purposes of conducting inspections, surveys, environmental site assessments (Phase I and Phase II), geotechnical investigations, topographic surveys, wetland delineations, utility investigations, and such other due diligence activities as Buyer may reasonably determine to be necessary or desirable.
(b) Prior Notice. Buyer shall provide Seller with not less than forty-eight (48) hours' advance written notice (which may be provided by electronic mail to Seller's designated contact) before entering the Property for any invasive inspections, borings, samplings, or other activities that involve the physical disturbance of the Property. Non-invasive inspections, including visual observations, photograph documentation, and above-ground surveys, may be conducted upon reasonable prior notice to Seller, which may be less than forty-eight (48) hours.
(c) Insurance. Prior to entering the Property, Buyer shall carry and maintain, and shall cause each of Buyer's Representatives entering the Property to carry and maintain, commercial general liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate, issued by an insurer licensed to do business in the Commonwealth of Virginia with a rating of not less than A-VII from A.M. Best Company. Buyer shall name Seller as an additional insured on such policy and shall provide Seller with certificates of insurance evidencing such coverage upon request.
(d) Indemnification. Buyer shall indemnify, defend, and hold Seller harmless from and against any and all claims, demands, liabilities, losses, damages, costs, and expenses (including reasonable attorney fees) arising out of or relating to any damage to the Property or injury to persons caused by the activities of Buyer or Buyer's Representatives on the Property in connection with Buyer's due diligence investigations; provided, however, that Buyer's indemnification obligations under this Section 4.2(d) shall not extend to (i) the discovery or disclosure of any pre-existing conditions on the Property (including any pre-existing environmental contamination), (ii) the exacerbation of any pre-existing condition that occurs solely as a result of the customary and non-negligent performance of standard environmental or geotechnical testing, or (iii) any claims arising from the negligence or willful misconduct of Seller or Seller's agents. The indemnification obligations set forth in this Section 4.2(d) shall survive the Closing or any termination of this Agreement for a period of twelve (12) months.
(e) Authorized Consultants. Without limiting the generality of the foregoing, Buyer's consultants expressly authorized to access the Property include the following firms and individuals:
(i) Pendleton Environmental Associates, Inc. (Dr. Renata Volkov, Principal) — Phase I and Phase II Environmental Site Assessments;
(ii) Brannigan Geotechnical Engineering, LLC (Neil Brannigan, PE, Principal) — geotechnical investigations, soil borings, and subsurface analysis;
(iii) Lumen Ridge Engineering, PLLC (Carlos Esteban, PE, Principal) — civil engineering, ALTA/NSPS Land Title Survey, and site surveys;
(iv) Cornerstone Land Use Consulting, LLC (Alan Mercer, Principal) — land use, zoning, and entitlement consulting; and
(v) Kestrel Infrastructure Advisors, LLC (Diane Prescott, Managing Director) — utility infrastructure and power availability analysis.
Buyer may designate additional consultants and representatives by providing written notice to Seller, which notice shall include the name of the firm, the scope of work, and the name of the individual(s) who will access the Property.
Section 4.3 — Due Diligence Materials
(a) Seller's Delivery Obligation. Within five (5) Business Days after the Effective Date, Seller shall deliver to Buyer or make available for Buyer's review and copying (at Buyer's expense) copies of the following documents and materials, to the extent such documents and materials are in Seller's possession or under Seller's reasonable control:
(i) all existing surveys, plats, subdivision plats, and site plans of or relating to the Property;
(ii) all existing environmental reports, assessments, audits, or studies of or relating to the Property, including any Phase I or Phase II Environmental Site Assessment reports;
(iii) all existing geotechnical reports, soils analyses, or subsurface investigations of or relating to the Property;
(iv) copies of all real property tax bills, assessment notices, and tax payment receipts for the Property for the three (3) most recent tax years;
(v) copies of all recorded easements, covenants, conditions, restrictions, and declarations affecting the Property, to the extent in Seller's possession;
(vi) copies of all existing utility correspondence, utility service agreements, utility availability letters, or capacity letters relating to the Property, including correspondence with Northgate Partners LLC, Greaves & Co., Loudoun Water, and any telecommunications providers;
(vii) copies of any governmental notices, violations, citations, or pending proceedings affecting the Property received by Seller within the five (5) year period preceding the Effective Date;
(viii) copies of all leases, licenses, occupancy agreements, or other agreements granting any Person the right to use or occupy the Property (if any);
(ix) evidence of current zoning compliance, any pending zoning applications, variance applications, special exception applications, or zoning modification applications relating to the Property, and any proffers or conditions of zoning approval;
(x) insurance loss history for the Property for the past five (5) years, as may be obtained from Seller's insurance carrier(s); and
(xi) such other documents and materials reasonably requested by Buyer relating to the ownership, operation, condition, or development potential of the Property.
(b) Disclaimer of Third-Party Reports. Seller makes no representation or warranty as to the accuracy, completeness, or adequacy of any third-party reports, surveys, studies, or assessments delivered to Buyer hereunder. Buyer acknowledges that such documents are provided for informational purposes only and that Buyer shall conduct its own independent investigations and analyses. Buyer shall not be entitled to rely upon any such third-party materials as a representation or warranty of Seller, except to the extent that Seller has made an express representation or warranty in Section 6.1 with respect to the subject matter thereof.
Section 4.4 — Buyer's Right to Terminate During Due Diligence Period
(a) Termination Right. Buyer may terminate this Agreement for any reason or for no reason whatsoever by delivering written notice of termination to Seller and to the Escrow Agent on or before the expiration of the Due Diligence Period (i.e., on or before 5:00 p.m. Eastern Time on July 14, 2025). The termination notice shall be effective upon delivery in accordance with Section 12.1.
(b) Return of Earnest Money. Upon timely delivery of a termination notice by Buyer under this Section 4.4, the Escrow Agent shall return the Earnest Money Deposit (including all accrued interest, but less the Independent Consideration of $100.00) to Buyer within five (5) Business Days after the Escrow Agent's receipt of such termination notice. Upon such return, neither Party shall have any further rights, obligations, or liabilities under this Agreement, except for those obligations that expressly survive termination pursuant to Section 12.12.
(c) Deemed Waiver. If Buyer fails to deliver a written termination notice to Seller and the Escrow Agent prior to the expiration of the Due Diligence Period, Buyer shall be deemed to have waived its right to terminate under this Section 4.4, and the Earnest Money Deposit shall thereupon become non-refundable to Buyer except as otherwise expressly provided in this Agreement (including Seller's default under Article 11, failure of a condition precedent under Article 7, casualty under Section 10.1, and condemnation under Section 10.2).
Section 4.5 — Environmental Matters
(a) Environmental Assessments. Buyer intends to commission a Phase I Environmental Site Assessment of the Property in accordance with ASTM Standard E1527-21 (the "Phase I ESA"), with a target completion date of June 1, 2025. If the Phase I ESA identifies recognized environmental conditions or recommends further investigation, Buyer intends to commission Phase II Environmental Site Assessment investigations (the "Phase II ESA"), which may include soil borings, groundwater sampling, soil gas sampling, and laboratory analysis. All environmental assessments shall be performed by Pendleton Environmental Associates, Inc. (Dr. Renata Volkov, Principal) or such other qualified environmental professional as Buyer may designate.
(b) Known Environmental Issues. The Parties acknowledge that the Property has a history of agricultural use and that there is a potential for residual pesticide contamination, including but not limited to organochlorine pesticides, in the northwest quadrant of the Property (an area comprising approximately 4.2 acres). Buyer has authorized Pendleton Environmental Associates, Inc. to conduct Phase II soil and groundwater sampling in this area, with a target completion date of July 1, 2025. Seller shall provide reasonable access to the Property for such sampling in accordance with Section 4.2.
(c) Buyer's Remedies. If the Phase II ESA results indicate the presence of Hazardous Substances in concentrations exceeding applicable Virginia Department of Environmental Quality ("VDEQ") regulatory action levels or other applicable federal or state cleanup standards, Buyer's remedies shall include, at Buyer's election:
(i) termination of this Agreement pursuant to Section 4.4, if such election is made within the Due Diligence Period, with a return of the Earnest Money Deposit (less the Independent Consideration);
(ii) negotiation with Seller in good faith regarding a mutually acceptable Purchase Price adjustment or the establishment of an environmental remediation escrow, which shall be documented in a written amendment to this Agreement; or
(iii) proceeding to Closing and accepting the environmental condition of the Property on an "as-is, where-is" basis, without any adjustment to the Purchase Price.
Nothing in this Section 4.5(c) shall limit Buyer's general right to terminate under Section 4.4 during the Due Diligence Period for any reason or no reason.
(d) Seller's Environmental Representations. Seller represents that, to Seller's actual knowledge (as defined in Section 6.3): (i) no underground storage tanks are located on the Property or have been located on the Property at any time during Seller's period of ownership; and (ii) Seller has not received any written notice of violation, investigation, enforcement action, or remediation requirement from any Governmental Authority, including the VDEQ or the U.S. Environmental Protection Agency, concerning the environmental condition of the Property. The foregoing representations are subject to and qualified by the more detailed representations and warranties set forth in Section 6.1(e).
Section 4.6 — Title and Survey Review
(a) Title Commitment. Buyer has received or shall promptly obtain a commitment for title insurance from the Title Company (Fidelitas Title & Escrow, Inc., acting as agent for Sovereign Title Insurance Company) with an effective date of April 3, 2025, committing to issue the Title Policy in the amount of $58,500,000. Buyer's review and objection procedures with respect to the Title Commitment are set forth in Article 5.
(b) ALTA/NSPS Survey. Buyer shall obtain, at Buyer's sole cost and expense, an ALTA/NSPS Land Title Survey of the Property (the "Survey"), to be prepared by Lumen Ridge Engineering, PLLC (Carlos Esteban, PE), in accordance with the 2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys as adopted by the American Land Title Association and the National Society of Professional Surveyors, including such Table A optional items as Buyer may select. The target completion date for the Survey is June 15, 2025. Buyer shall furnish a copy of the completed Survey to Seller and to the Title Company promptly upon receipt. Buyer's review and objection procedures with respect to matters disclosed by the Survey are set forth in Article 5.
ARTICLE 5 — TITLE AND SURVEY
Section 5.1 — Title Commitment
Buyer acknowledges receipt of the Title Commitment issued by Fidelitas Title & Escrow, Inc. (acting as agent for Sovereign Title Insurance Company) with an effective date of April 3, 2025, for an Owner's Title Insurance Policy in the amount of Fifty-Eight Million Five Hundred Thousand Dollars ($58,500,000) (the "Title Commitment"). The Title Commitment includes Schedule A (setting forth the proposed insured, the amount of insurance, and the estate or interest in the land), Schedule B-I (setting forth the requirements to be satisfied prior to issuance of the Title Policy), and Schedule B-II (setting forth the exceptions from coverage that will appear in the Title Policy). Buyer shall review the Title Commitment and the documents referenced therein as part of Buyer's due diligence.
Section 5.2 — Title Objections
(a) Objection Deadline. On or before the date that is thirty (30) calendar days after the Effective Date (i.e., May 15, 2025), Buyer shall deliver to Seller and to Seller's Counsel (Whitfield, Poole & Stratton LLP, Attention: Harrison Poole, Esq.) a written notice setting forth any objections to matters disclosed in the Title Commitment, the underlying title exception documents, or the Survey (each, a "Title Objection" and collectively, the "Title Objections"). Any matters disclosed in the Title Commitment or Survey to which Buyer does not timely object shall be deemed Permitted Exceptions.
(b) Seller's Response. Seller shall have fifteen (15) Business Days after Seller's receipt of Buyer's Title Objection notice within which to notify Buyer in writing whether Seller elects to cure, or to attempt to cure, each Title Objection. Seller shall have no obligation to cure any Title Objection other than the Mandatory Cure Items described in Section 5.3. Seller's failure to respond within such fifteen (15) Business Day period shall be deemed an election by Seller not to cure the subject Title Objection(s).
(c) Buyer's Election. If Seller elects not to cure, or is unable to cure, any Title Objection (other than a Mandatory Cure Item), Buyer shall have ten (10) Business Days after receipt of Seller's response (or after Seller is deemed to have elected not to cure) within which to notify Seller in writing of Buyer's election to:
(i) waive such Title Objection, in which case the matter giving rise to the Title Objection shall become a Permitted Exception and Buyer shall proceed to Closing;
(ii) if the Due Diligence Period has not yet expired, terminate this Agreement pursuant to Section 4.4, in which case the Earnest Money Deposit (less the Independent Consideration) shall be returned to Buyer; or
(iii) if the Due Diligence Period has expired, terminate this Agreement and receive a return of the Earnest Money Deposit (including all accrued interest), but only if the uncured Title Objection constitutes a "material title defect," which shall mean a title matter that (A) renders title to the Property unmarketable or uninsurable, (B) materially impairs the use of the Property for data center development, or (C) creates a lien or encumbrance in excess of Two Hundred Fifty Thousand Dollars ($250,000) that Seller is not obligated to cure as a Mandatory Cure Item.
If Buyer fails to make a timely election under this Section 5.2(c), Buyer shall be deemed to have waived such Title Objection, and the matter shall become a Permitted Exception.
Section 5.3 — Mandatory Cure Items
Notwithstanding anything in Section 5.2 to the contrary, Seller shall be unconditionally obligated to cure and remove (or cause to be cured and removed) at or prior to Closing (by payment, bonding, or otherwise), whether or not objected to by Buyer, each of the following (collectively, the "Mandatory Cure Items"):
(a) all monetary liens, deeds of trust, mortgages, security interests, and financing statements encumbering the Property, other than the Permitted Exceptions;
(b) any judgment liens against Seller that attach to the Property;
(c) any mechanic's liens, materialmen's liens, or similar statutory liens arising from work ordered by Seller or Seller's agents or contractors on the Property; and
(d) real property tax liens for delinquent real property taxes, penalties, and interest owed with respect to the Property for any period prior to the Closing Date.
Seller shall use reasonable efforts to cure all Mandatory Cure Items on or before the Closing Date. The cost of curing all Mandatory Cure Items shall be borne exclusively by Seller. At Closing, the Escrow Agent is authorized to apply a portion of the Purchase Price to the payment and satisfaction of any Mandatory Cure Items, as reflected on the settlement statement.
Section 5.4 — Survey Objections
The Title Objection procedures set forth in Sections 5.2 and 5.3 shall apply equally to matters first disclosed by the ALTA/NSPS Survey of the Property. The target completion date for the Survey is June 15, 2025. If the Survey is not completed until after the Title Objection deadline of May 15, 2025, Buyer shall have fifteen (15) Business Days after Buyer's receipt of the completed, certified Survey within which to deliver Title Objections with respect to matters disclosed by the Survey that were not previously disclosed in the Title Commitment or the underlying title exception documents. The procedures set forth in Sections 5.2(b) and 5.2(c) shall apply to any such Survey-related Title Objections, mutatis mutandis.
Section 5.5 — Title Insurance Policy
(a) Owner's Title Policy. At Closing, the Title Company shall issue, or shall irrevocably commit to issue, an Owner's Title Insurance Policy (ALTA 2006 form, as amended, or such successor form as may then be in effect) in the amount of Fifty-Eight Million Five Hundred Thousand Dollars ($58,500,000), issued by Sovereign Title Insurance Company through Fidelitas Title & Escrow, Inc., insuring fee simple title to the Property vested in Buyer (or Buyer's permitted assignee), subject only to the Permitted Exceptions (the "Title Policy"). The premium for the Owner's Title Policy shall be paid by Buyer.
(b) Extended Coverage and Endorsements. Buyer may request that the Title Company issue the Title Policy with extended coverage (deletion of the standard survey exception, parties in possession exception, mechanic's lien exception, and other standard printed exceptions) and such endorsements as Buyer may reasonably require, including ALTA 3.1 (Zoning), ALTA 9 (Comprehensive), ALTA 17 (Access and Entry), ALTA 18 (Single Tax Parcel), ALTA 19 (Contiguity), ALTA 25 (Same as Survey), ALTA 28 (Easement – Damage or Enforced Removal), and ALTA 35 (Minerals and Other Subsurface Substances). The cost of extended coverage and all endorsements shall be borne by Buyer. Seller shall execute such affidavits, certifications, and other documents as the Title Company may reasonably require in connection with the issuance of extended coverage and endorsements.
(c) Lender's Title Policy. In connection with Buyer's anticipated construction financing for the Project, Buyer may request the Title Company to issue a Lender's Title Insurance Policy (ALTA 2006 Loan Policy form) in the amount of up to Three Hundred Ninety Million Dollars ($390,000,000) in favor of Buyer's construction lender(s). The premium and cost of the Lender's Title Policy shall be borne by Buyer. Seller's cooperation with the issuance of a Lender's Title Policy is addressed in Section 8.7.
Section 5.6 — Permitted Exceptions
The "Permitted Exceptions" shall consist of the following:
(a) those specific title exception items listed on Exhibit B attached hereto;
(b) those matters disclosed in the Title Commitment or the Survey to which Buyer does not timely object, or which Buyer waives or is deemed to have waived, pursuant to this Article 5;
(c) the lien of real property taxes and assessments not yet due and payable as of the Closing Date;
(d) zoning and land use regulations of Loudoun County, Virginia, applicable to the Property (current zoning: PD-IP);
(e) the standard printed exceptions in the Title Policy, to the extent such standard printed exceptions are not removed by extended coverage or endorsements obtained by Buyer; and
(f) any matter created by or on behalf of Buyer.
ARTICLE 6 — REPRESENTATIONS AND WARRANTIES
Section 6.1 — Seller's Representations and Warranties
Seller hereby represents and warrants to Buyer as of the Effective Date and again as of the Closing Date as follows:
(a) Organization and Authority. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia (Virginia State Corporation Commission Entity ID: 0412876-3). Seller has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated herein. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all necessary corporate action, including the approval of Seller's Board of Directors. Donald R. Whitaker, as President of Seller, has been duly authorized by the Board of Directors of Seller to execute this Agreement on behalf of Seller and to bind Seller to the terms hereof. No further consent, approval, or authorization of any shareholder, officer, director, or other Person is required for Seller to enter into and perform its obligations under this Agreement.
(b) No Conflicts. The execution, delivery, and performance of this Agreement by Seller, and the consummation of the transactions contemplated herein, do not and will not (i) violate or conflict with Seller's articles of incorporation, bylaws, or any resolution of its Board of Directors, (ii) violate or conflict with any law, statute, rule, regulation, order, writ, injunction, judgment, or decree of any Governmental Authority applicable to Seller or the Property, or (iii) breach, conflict with, or result in a default under any contract, agreement, mortgage, deed of trust, lease, license, or other instrument or obligation to which Seller is a party or by which Seller or the Property is bound.
(c) Title. Seller holds fee simple title to the Property, free and clear of all liens, encumbrances, charges, security interests, options, claims, and restrictions, except for the Permitted Exceptions. Seller has not granted any Person any right, title, or interest in or to the Property (other than the Permitted Exceptions) that would survive the Closing or impair or interfere with Buyer's ownership or use of the Property after the Closing.
(d) No Leases. There are no leases, tenancies, licenses, occupancy agreements, or other agreements granting any Person the right to use, occupy, or possess the Property or any portion thereof, and no Person or entity is in possession of the Property or any portion thereof other than Seller. No Person has any right to acquire or lease any interest in the Property, except for Buyer under this Agreement.
(e) Environmental. To Seller's actual knowledge (as defined in Section 6.3), except as may be disclosed in existing environmental reports delivered or made available to Buyer pursuant to Section 4.3:
(i) no Hazardous Substances have been generated, stored, treated, released, discharged, or disposed of on, under, in, or about the Property in violation of applicable Environmental Laws during Seller's period of ownership;
(ii) no underground storage tanks (as defined in 40 C.F.R. § 280.12) are located on the Property or were located on the Property at any time during Seller's period of ownership;
(iii) Seller has not received any written notice from any Governmental Authority, including the Virginia Department of Environmental Quality, the U.S. Environmental Protection Agency, or any other federal, state, or local environmental regulatory agency, regarding any environmental violation, investigation, enforcement action, cleanup order, or remediation requirement affecting the Property; and
(iv) to Seller's actual knowledge, no polychlorinated biphenyls ("PCBs"), asbestos-containing materials, or lead-based paint are present in any structures or improvements on the Property.
(f) Litigation. There is no pending, or to Seller's actual knowledge, threatened, litigation, action, suit, arbitration, administrative proceeding, condemnation proceeding, or governmental investigation affecting the Property or Seller's ability to consummate the transactions contemplated by this Agreement. Seller has not received any written notice of any threatened eminent domain or condemnation proceeding with respect to the Property or any portion thereof.
(g) Compliance with Laws. To Seller's actual knowledge, the Property is in material compliance with all applicable laws, statutes, ordinances, codes, rules, regulations, and orders of all Governmental Authorities having jurisdiction over the Property, including all applicable zoning, building, fire, health, safety, and environmental laws and regulations.
(h) No Options or Rights of First Refusal. There are no outstanding options to purchase, rights of first refusal, rights of first offer, preferential purchase rights, or other similar agreements or arrangements affecting the Property, other than this Agreement. No Person (other than Buyer under this Agreement) has any right or option to acquire all or any portion of the Property.
(i) Taxes. All real property taxes, assessments, and charges payable with respect to the Property for all periods prior to the Closing Date have been, or will be, paid when due and payable. There are no pending or threatened special assessments or reassessments affecting the Property, and Seller has not received any notice of any proposed increase in the assessed valuation of the Property, other than routine annual reassessments by the Loudoun County Commissioner of the Revenue.
(j) Foreign Person. Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Seller is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code. Seller's federal employer identification number is 54-1987234. At Closing, Seller shall deliver a FIRPTA Certificate in the form attached hereto as Exhibit E.
(k) OFAC/Anti-Money Laundering. Neither Seller nor, to Seller's actual knowledge, any of its officers, directors, shareholders, or Affiliates is a Person (i) designated on the list of Specially Designated Nationals and blocked Persons maintained by the Office of Foreign Assets Control ("OFAC") of the United States Department of the Treasury, (ii) subject to sanctions, restrictions, or prohibitions under any Executive Order of the President of the United States or any regulation administered by OFAC, or (iii) a Person with whom transactions are prohibited or restricted under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Trading with the Enemy Act (50 U.S.C. App. § 5(b)), the USA PATRIOT Act (Pub. L. 107-56), or any similar law.
(l) Bankruptcy. No petition in bankruptcy, voluntary or involuntary, has been filed by or against Seller. Seller has not made an assignment for the benefit of creditors, filed a petition or had a petition filed against it seeking reorganization or arrangement under the federal bankruptcy laws or any state insolvency law, or had a receiver, trustee, or liquidator appointed for or over all or a substantial portion of its property.
(m) Contracts. Except as disclosed on Schedule 6.1(m) attached hereto, there are no contracts, agreements, commitments, arrangements, or obligations of any kind (whether written or oral) relating to the Property that will survive the Closing or be binding on Buyer or the Property after the Closing, including service contracts, maintenance agreements, management agreements, construction contracts, and supply agreements.