1043-00003 · Ironhaven Loudoun Edge LLC · Transaction Documents

environmental-indemnity-agreement.docx DOCUMENT Real Estate

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ENVIRONMENTAL INDEMNITY AGREEMENT

March 18, 2024

THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") is made and entered into as of March 18, 2024 (the "Effective Date"), by and among:

IRONHAVEN DATA CENTERS LLC, a Virginia limited liability company ("IHDC"), with its principal office at 1900 Dominion Tower, Suite 400, Tysons Corner, Virginia 22182;

COBALT RIDGE CAPITAL PARTNERS, LP, a Delaware limited partnership ("Cobalt Ridge" and, together with IHDC, collectively and individually, the "Indemnitors"), with its principal office at 300 Park Avenue South, 14th Floor, New York, New York 10010;

and

PINNACLE FEDERAL SAVINGS BANK, a federally chartered savings bank (the "Indemnitee" or "Lender"), with its principal office at 800 Constitution Avenue NW, Suite 550, Washington, DC 20001.

IHDC, Cobalt Ridge, and Indemnitee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

A. The Loan. Indemnitee has made a construction-to-permanent loan in the original principal amount of Forty-Five Million Dollars ($45,000,000) (the "Loan") to Ironhaven Loudoun Edge LLC, a Virginia limited liability company and single-purpose, bankruptcy-remote entity ("Borrower"), pursuant to that certain Construction Loan Agreement dated as of March 18, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Loan Agreement"), between Borrower and Indemnitee. The Loan is evidenced by a Promissory Note dated March 18, 2024 in the principal amount of Forty-Five Million Dollars ($45,000,000) (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Note").

B. The Property. The Loan is secured by, among other things, that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing dated as of March 18, 2024 (the "Deed of Trust"), recorded or to be recorded in the Clerk's Office of the Circuit Court of Loudoun County, Virginia, encumbering certain real property located at 44350 Prentice Drive, Ashburn, Loudoun County, Virginia 20147, more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"), together with all improvements now or hereafter located thereon (Tax Map Parcel No. 087-23-5571). The Property is a 3.2-acre parcel zoned PD-IP (Planned Development — Industrial Park) under the Loudoun County Revised 1993 Zoning Ordinance, as amended from time to time.

C. The Project. Borrower intends to develop on the Property a 52,000 square foot, 4.5 MW critical IT load edge data center facility known as the Loudoun Edge Facility (the "Project"), with an estimated total project cost of Fifty-Seven Million Dollars ($57,000,000). The Project will include, among other things, data halls, mechanical and electrical infrastructure, emergency generator systems, office and support areas, and associated site improvements.

D. Relationship of Indemnitors. IHDC is the sole member of Borrower. Cobalt Ridge holds an eighty-two percent (82%) membership interest in IHDC. Cobalt Ridge, acting through its general partner Cobalt Ridge GP LLC, a Delaware limited liability company, is providing a Twelve Million Dollar ($12,000,000) equity contribution to the Project and has executed a Completion Guaranty of even date herewith in favor of Indemnitee. By reason of their direct and indirect ownership interests in Borrower and their receipt of substantial economic benefits from the making of the Loan, each Indemnitor has agreed to execute and deliver this Agreement.

E. Environmental Assessment. An environmental site assessment has been conducted with respect to the Property, including that certain Phase I Environmental Site Assessment dated February 16, 2024, prepared by Terraverde Environmental Consultants, Inc. in accordance with ASTM Standard E1527-21 (the "Phase I ESA"). The Phase I ESA did not identify any recognized environmental conditions at the Property, but did identify certain de minimis conditions and historical controlled recognized environmental conditions that have been addressed to the satisfaction of the applicable Governmental Authority.

F. Inducement. As a material condition to Indemnitee's agreement to make the Loan, Indemnitee has required the execution and delivery of this Environmental Indemnity Agreement by the Indemnitors, and the Indemnitors have agreed to execute and deliver this Agreement to induce Indemnitee to make the Loan. Indemnitee would not have agreed to make the Loan but for the execution and delivery of this Agreement by the Indemnitors.

G. Loan Documents. This Agreement is one of the "Loan Documents" as defined in the Loan Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Loan Agreement.

NOW, THEREFORE, in consideration of Indemnitee's agreement to make the Loan, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms

As used in this Agreement, the following terms shall have the meanings set forth below:

"Borrower" means Ironhaven Loudoun Edge LLC, a Virginia limited liability company (Virginia State Corporation Commission Entity ID S9103284; Federal Employer Identification Number 93-4178226), and its permitted successors and assigns under the Loan Documents.

"Environmental Law" means any and all federal, state, and local laws, statutes, regulations, rules, ordinances, codes, directives, guidance documents, policies, and orders, and any judicial or administrative interpretations thereof, relating to the protection of the environment, human health and safety, or the regulation of Hazardous Substances, including, without limitation: (a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §§ 9601 et seq.) ("CERCLA"); (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. §§ 6901 et seq.) ("RCRA"); (c) the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (33 U.S.C. §§ 1251 et seq.); (d) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (e) the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.); (f) the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.); (g) the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §§ 11001 et seq.); (h) the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); (i) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.); (j) the Virginia Waste Management Act (Va. Code § 10.1-1400 et seq.); (k) the Virginia State Water Control Law (Va. Code § 62.1-44.2 et seq.); (l) the Virginia Air Pollution Control Law (Va. Code § 10.1-1300 et seq.); and (m) any analogous or successor federal, state, or local statute or regulation, in each case as the same may be amended, supplemented, or replaced from time to time.

"Environmental Liabilities" means any and all losses, damages, costs, expenses, claims, demands, actions, suits, judgments, penalties, fines, assessments, liens, and liabilities of every kind and nature whatsoever (including, without limitation, reasonable attorneys' fees, expert and consultant fees, laboratory and analytical costs, court costs, and costs of Remediation, investigation, monitoring, and response actions) arising from or related to: (a) the presence, release, threatened release, migration, or disposal of any Hazardous Substance on, under, in, from, or affecting the Property or any adjacent or nearby property as a result of conditions at the Property; (b) any violation of any Environmental Law with respect to the Property or the Project; or (c) any environmental condition affecting the Property, whether arising before, during, or after the term of the Loan.

"Governmental Authority" means any federal, state, county, municipal, or local government or governmental or quasi-governmental authority, agency, department, commission, board, bureau, or instrumentality, including, without limitation, the United States Environmental Protection Agency ("EPA"), the Virginia Department of Environmental Quality ("VDEQ"), the Loudoun County Department of Building and Development, and any successor or analogous authority having jurisdiction over the Property or any activities conducted thereon.

"Hazardous Substance" means: (a) any substance defined as a "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," "pollutant," or "contaminant" under any Environmental Law; (b) petroleum and petroleum products, including crude oil and any fraction thereof, and any additives thereto; (c) asbestos and asbestos-containing materials in any form or condition; (d) polychlorinated biphenyls ("PCBs") in any form or concentration; (e) per- and polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic acid ("PFOA"), perfluorooctane sulfonate ("PFOS"), and all related compounds; (f) lead-based paint and lead in any form; (g) radon gas; (h) urea formaldehyde foam insulation; (i) flammable, explosive, or radioactive materials; (j) pesticides and herbicides; and (k) any other substance, material, chemical, compound, or waste that is regulated, restricted, or prohibited under any Environmental Law or that could give rise to liability under any Environmental Law.

"IHDC" means Ironhaven Data Centers LLC, a Virginia limited liability company (Virginia State Corporation Commission Entity ID S7842196; Federal Employer Identification Number 84-3291057), and its permitted successors and assigns.

"Indemnitee" means Pinnacle Federal Savings Bank, a federally chartered savings bank, and its successors and assigns (including, without limitation, any entity to which the Loan or any interest therein is sold, transferred, or assigned, and any servicer of the Loan).

"Indemnitee Parties" means Indemnitee and its successors, assigns, participants, purchasers of participation interests, directors, officers, employees, agents, affiliates, subsidiaries, and representatives, and each of their respective successors and assigns.

"Indemnitors" means, jointly and severally, Ironhaven Data Centers LLC and Cobalt Ridge Capital Partners, LP, and their respective successors and assigns (subject to the restrictions on transfer set forth in the Loan Documents).

"Loan Agreement" means the Construction Loan Agreement dated as of March 18, 2024, between Borrower and Indemnitee, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Phase I ESA" means that certain Phase I Environmental Site Assessment dated February 16, 2024, prepared by Terraverde Environmental Consultants, Inc. in accordance with ASTM Standard E1527-21 in connection with the Property, together with all supplements, amendments, and updates thereto.

"Property" means the real property located at 44350 Prentice Drive, Ashburn, Loudoun County, Virginia 20147, Tax Map Parcel No. 087-23-5571, as more fully described in Exhibit A attached hereto, together with: (a) all improvements now or hereafter constructed, erected, or placed thereon (including, without limitation, the Loudoun Edge Facility and all related mechanical, electrical, and structural systems); (b) all fixtures, equipment, and personal property attached thereto or used in connection therewith to the extent constituting part of the real property under applicable law; (c) all easements, rights-of-way, appurtenances, and privileges pertaining thereto; and (d) all subsurface areas, soils, groundwater, and surface water located on, beneath, or flowing through the real property.

"Remediation" means any investigation, study, assessment, testing, sampling, monitoring, cleanup, removal, containment, remediation, treatment, abatement, restoration, natural attenuation, bioremediation, institutional controls (including deed restrictions and environmental covenants), engineering controls (including caps, barriers, and containment systems), or other corrective or response action required under any Environmental Law, directed or ordered by any Governmental Authority, or otherwise necessary to address the presence or release of any Hazardous Substance at, on, under, from, or affecting the Property.

Section 1.2 — Rules of Construction

The rules of construction and interpretive provisions set forth in Article I of the Loan Agreement are hereby incorporated herein by reference, mutatis mutandis, and shall apply to this Agreement as though set forth in full herein. Without limiting the generality of the foregoing: (a) the singular shall include the plural, and the plural shall include the singular; (b) all references to gender shall include all genders; (c) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation"; (d) the words "herein," "hereof," "hereunder," and "hereby" shall refer to this Agreement as a whole and not to any particular section or provision hereof; (e) all section and article headings are for convenience of reference only and shall not affect the interpretation of this Agreement; (f) all references to "days" shall mean calendar days unless "business days" are expressly specified; and (g) this Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts-of-law principles that would require the application of the laws of any other jurisdiction.

ARTICLE II — REPRESENTATIONS AND WARRANTIES OF INDEMNITORS

Each Indemnitor hereby represents and warrants to Indemnitee, as of the date hereof, as follows:

Section 2.1 — Phase I ESA

To the actual knowledge of each Indemnitor, after reasonable inquiry and investigation, the Phase I ESA dated February 16, 2024 is accurate and complete in all material respects as of its effective date, and no material changes in the environmental conditions at the Property have occurred since the date thereof. Each Indemnitor has reviewed the Phase I ESA and is not aware of any facts, circumstances, or conditions that would render the Phase I ESA inaccurate, incomplete, or misleading in any material respect. No Indemnitor has withheld from Indemnitee any environmental report, study, assessment, correspondence, or other document relating to environmental conditions at the Property that is in the possession or control of such Indemnitor or of which such Indemnitor has knowledge.

Section 2.2 — No Known Hazardous Substances

Except as disclosed in the Phase I ESA, to the actual knowledge of each Indemnitor, after reasonable inquiry and investigation:

(a) no Hazardous Substances are present on, under, in, or at the Property in quantities or concentrations that exceed applicable regulatory standards or screening levels or that would reasonably be expected to give rise to liability under any Environmental Law;

(b) no release or threatened release of any Hazardous Substance has occurred at, on, under, from, or affecting the Property;

(c) no underground storage tanks (whether active, inactive, closed-in-place, or abandoned) are located on or beneath the Property, and no underground storage tanks have been removed from the Property without proper closure and documentation in accordance with applicable Environmental Law;

(d) no above-ground storage tanks are located on the Property other than those described in Section 3.2(b) hereof, which have not yet been installed as of the date hereof;

(e) no portion of the Property has been used as a landfill, dump, waste disposal site, or waste treatment facility; and

(f) no Hazardous Substances have migrated onto the Property from any adjacent or nearby property.

Section 2.3 — Compliance with Environmental Laws

To the actual knowledge of each Indemnitor, after reasonable inquiry and investigation, the Property is in compliance in all material respects with all applicable Environmental Laws, and Borrower's intended development and operation of the Project, as described in the plans and specifications delivered to Indemnitee, will comply in all material respects with all applicable Environmental Laws. Neither Indemnitor has received any notice from any Governmental Authority or any other person alleging that the Property is not in compliance with any Environmental Law.

Section 2.4 — No Pending Actions

There are no pending or, to the actual knowledge of each Indemnitor, after reasonable inquiry, threatened actions, suits, claims, investigations, inquiries, proceedings, or orders by any Governmental Authority or any third party relating to Hazardous Substances or any Environmental Law with respect to the Property. No Indemnitor has received any written or oral communication from any Governmental Authority or any third party regarding any actual, alleged, or potential violation of any Environmental Law with respect to the Property, or regarding any actual, alleged, or potential liability under any Environmental Law in connection with the Property. The Property is not listed on, and to the actual knowledge of the Indemnitors, has not been proposed for listing on, the National Priorities List under CERCLA, the Comprehensive Environmental Response and Remediation list maintained by VDEQ, or any similar federal, state, or local list of contaminated or potentially contaminated sites.

Section 2.5 — No Liens

No environmental lien, superlien, or other lien arising under any Environmental Law has been imposed on the Property or on any portion thereof. No Governmental Authority has filed or recorded, or threatened to file or record, any notice of lien, notice of violation, or notice of potential liability against the Property or any Indemnitor under any Environmental Law. No Indemnitor has received any notice or communication indicating that any Governmental Authority intends to impose or assert any such lien or encumbrance.

Section 2.6 — Permits

All environmental permits, licenses, approvals, authorizations, registrations, and certifications required under applicable Environmental Laws for the current use and condition of the Property have been obtained and are in full force and effect. All environmental permits, licenses, approvals, authorizations, registrations, and certifications required under applicable Environmental Laws for the development, construction, and operation of the Project (including, without limitation, permits for stormwater management, erosion and sediment control, air emissions from emergency generators, and storage of diesel fuel) have been obtained or will be obtained prior to the commencement of the relevant activity. Each Indemnitor shall use commercially reasonable efforts to cause Borrower to obtain all such permits, licenses, and approvals in a timely manner and in compliance with all applicable Environmental Laws.

Section 2.7 — Organizational Authority

Each Indemnitor represents and warrants that:

(a) Such Indemnitor has the full legal power, authority, and capacity to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by such Indemnitor have been duly authorized by all necessary action on the part of such Indemnitor and do not and will not conflict with, result in a breach of, or constitute a default under, any organizational document of such Indemnitor, any agreement to which such Indemnitor is a party or by which it is bound, or any applicable law, regulation, or order.

(b) IHDC is a limited liability company duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, as evidenced by the records of the Virginia State Corporation Commission (Entity ID S7842196). IHDC has the full power and authority to own its interest in Borrower and to conduct its business as presently conducted.

(c) Cobalt Ridge is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware, as evidenced by the records of the Delaware Secretary of State, and is duly qualified to transact business in the Commonwealth of Virginia. Cobalt Ridge GP LLC, a Delaware limited liability company, is the sole general partner of Cobalt Ridge and has the full power and authority to execute this Agreement on behalf of Cobalt Ridge and to bind Cobalt Ridge to the obligations set forth herein.

(d) This Agreement constitutes the legal, valid, and binding obligation of each Indemnitor, enforceable against such Indemnitor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether enforcement is sought in a proceeding at law or in equity).

ARTICLE III — COVENANTS OF INDEMNITORS

Each Indemnitor hereby covenants and agrees with Indemnitee as follows:

Section 3.1 — Compliance

Each Indemnitor shall cause Borrower to comply, and shall itself comply, with all applicable Environmental Laws with respect to the Property and the Project. Without limiting the generality of the foregoing, each Indemnitor shall cause Borrower to: (a) maintain all environmental permits, licenses, and approvals required for the development, construction, and operation of the Project in full force and effect; (b) comply with all terms, conditions, and requirements of such permits, licenses, and approvals; (c) timely file all reports, notices, and registrations required under applicable Environmental Laws; and (d) cooperate with all inspections, investigations, and inquiries conducted by any Governmental Authority with respect to the Property or the Project.

Section 3.2 — No Hazardous Substances

Each Indemnitor shall not cause or permit, and shall cause Borrower not to cause or permit, the use, generation, manufacture, production, storage, treatment, processing, transport, release, discharge, emission, or disposal of any Hazardous Substance on, under, in, or about the Property, except for the following (each of which must be in strict compliance with all applicable Environmental Laws and all permits, licenses, and approvals issued thereunder):

(a) Construction Materials. Construction materials, including adhesives, sealants, paints, coatings, solvents, and similar materials, used in the ordinary course of construction of the Project in compliance with all applicable Environmental Laws, and stored and handled in accordance with all manufacturer recommendations and applicable safety data sheets;

(b) Diesel Fuel. Diesel fuel stored on-site in connection with the three (3) 2.5 MW emergency generators serving the Loudoun Edge Facility, in properly designed, installed, and maintained above-ground storage systems equipped with secondary containment, overfill prevention, and leak detection systems, all in compliance with all applicable Environmental Laws (including, without limitation, 40 C.F.R. Part 112 and the Virginia Aboveground Storage Tank regulations), and in quantities not to exceed such amounts as are reasonably necessary for the operation of such generators;

(c) Cleaning and Maintenance Supplies. Cleaning and maintenance supplies, janitorial products, and similar materials in commercially reasonable quantities used in the ordinary course of data center operations, including, without limitation, supplies necessary for the maintenance and operation of HVAC, fire suppression, and cooling systems, provided that such materials are stored, handled, and disposed of in accordance with all applicable Environmental Laws and manufacturer instructions.

No Indemnitor shall cause or permit Borrower or any tenant, subtenant, licensee, or occupant of the Property to engage in any activity that would require the filing of a permit, registration, or notification under any Environmental Law for the generation, treatment, storage, or disposal of Hazardous Substances (other than as expressly permitted by this Section 3.2) without the prior written consent of Indemnitee, which consent may be withheld in Indemnitee's sole and absolute discretion.

Section 3.3 — Notices

Each Indemnitor shall promptly notify Indemnitee in writing (and in any event within five (5) business days after obtaining knowledge thereof) of any of the following:

(a) any release or threatened release of any Hazardous Substance on, from, under, or affecting the Property, regardless of quantity or concentration, other than releases that are clearly de minimis in nature and do not require reporting under any Environmental Law;

(b) any notice, claim, demand, directive, citation, summons, complaint, suit, or order received from any Governmental Authority or any third party relating to Hazardous Substances or any Environmental Law affecting the Property, including, without limitation, any notice of violation, notice of potential liability, information request under CERCLA Section 104(e), general notice letter, or special notice letter;

(c) any environmental condition at the Property that could reasonably be expected to give rise to Environmental Liabilities, including, without limitation, the discovery of any previously unknown contamination, staining, odors, or other indicia of the presence of Hazardous Substances;

(d) the discovery of any underground storage tanks, previously unknown above-ground storage tanks, or abandoned wells on the Property;

(e) any spill, leak, discharge, emission, or release of Hazardous Substances from any storage system, equipment, or infrastructure at the Property;

(f) any change in the environmental condition of any property adjacent to or in the vicinity of the Property that could reasonably be expected to affect the environmental condition of the Property; and

(g) any proposal by any Governmental Authority to list the Property or any adjacent property on any list of contaminated or potentially contaminated sites maintained by any federal, state, or local agency.

Each such notice shall describe in reasonable detail the nature and extent of the condition, event, or matter giving rise to the notification obligation and shall include copies of all relevant correspondence, reports, and other documents received or prepared in connection therewith.

Section 3.4 — Remediation

If any Hazardous Substance is found on, under, in, or at the Property in violation of any Environmental Law or in quantities or concentrations that exceed applicable regulatory standards or screening levels or that could reasonably be expected to give rise to liability under any Environmental Law, each Indemnitor shall promptly, at the sole cost and expense of the Indemnitors, and without cost or expense to Indemnitee:

(a) take all Remediation actions required by applicable Environmental Laws, any applicable Governmental Authority, or this Agreement, and take such additional Remediation actions as may be reasonably necessary to bring the Property into full compliance with all applicable Environmental Laws and to eliminate or mitigate any threat to human health, safety, or the environment;

(b) retain qualified environmental consultants and contractors, reasonably acceptable to Indemnitee, to design, implement, and oversee all Remediation activities;

(c) prepare and submit to the applicable Governmental Authority all reports, plans, and other documents required in connection with such Remediation, and provide copies of all such documents to Indemnitee concurrently with their submission to the Governmental Authority;

(d) obtain from the applicable Governmental Authority a "no further action" letter, closure letter, certificate of completion, or equivalent written confirmation that the Remediation has been completed to the satisfaction of such Governmental Authority and in accordance with all applicable Environmental Laws; and

(e) keep Indemnitee fully and promptly informed of all Remediation activities, including, without limitation, by providing Indemnitee with copies of all environmental reports, sampling data, correspondence with Governmental Authorities, and other documents prepared or received in connection with such Remediation.

Indemnitee shall have the right, but not the obligation, to participate in any discussions or negotiations with any Governmental Authority regarding Remediation activities at the Property. No Indemnitor shall enter into any settlement, consent order, or other agreement with any Governmental Authority relating to Remediation of the Property without the prior written consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned, or delayed.

Section 3.5 — No Environmental Liens

No Indemnitor shall permit any environmental lien, superlien, or other lien arising under any Environmental Law to be imposed on the Property or on any portion thereof. If any such lien is filed or recorded against the Property, the applicable Indemnitor shall cause such lien to be discharged of record, bonded over, or otherwise removed within thirty (30) days after the earlier of (a) the date on which such Indemnitor first obtains knowledge of such lien or (b) the date on which such Indemnitor receives written notice from Indemnitee of the existence of such lien. If any Indemnitor fails to cause such lien to be discharged, bonded, or removed within such thirty (30) day period, Indemnitee may, but shall not be obligated to, take such actions as Indemnitee deems necessary or appropriate to discharge, bond, or remove such lien, and all costs and expenses incurred by Indemnitee in connection therewith (including reasonable attorneys' fees) shall constitute Environmental Liabilities indemnified under Article IV of this Agreement.

Section 3.6 — Access and Inspection

Each Indemnitor shall cause Borrower to permit Indemnitee and its authorized agents, employees, consultants, and contractors to enter upon and access the Property at any reasonable time, upon not less than two (2) business days' prior written or electronic notice to the applicable Indemnitor (except in the case of an emergency or a reasonably suspected violation of Environmental Law, in which case no prior notice shall be required), for the purpose of conducting environmental inspections, assessments, investigations, sampling, testing, monitoring, and other environmental due diligence activities as Indemnitee may deem necessary or desirable. Indemnitee shall use commercially reasonable efforts to minimize disruption to the construction and operation of the Project during any such inspection; provided, however, that Indemnitee's right of access shall not be subject to any conditions or limitations that would impair Indemnitee's ability to conduct a thorough environmental assessment of the Property.

The cost and expense of any environmental inspection or assessment conducted by or on behalf of Indemnitee pursuant to this Section 3.6 shall be borne as follows: (a) if such inspection or assessment is triggered by a reasonably suspected environmental condition, a breach of any representation, warranty, or covenant under this Agreement, a release or threatened release of Hazardous Substances, or a notice from any Governmental Authority, the costs and expenses thereof shall be borne by the Indemnitors; and (b) in all other cases, the costs and expenses thereof shall be borne by Indemnitee.

Section 3.7 — Additional Assessments

Indemnitee may, at any time and from time to time, require the Indemnitors, at the Indemnitors' sole cost and expense, to obtain and deliver to Indemnitee a Phase II Environmental Site Assessment, supplemental environmental investigation, or other environmental study or report with respect to the Property, prepared by a qualified environmental consultant approved by Indemnitee (such approval not to be unreasonably withheld, conditioned, or delayed), if Indemnitee reasonably believes, based on information available to it, that Hazardous Substances may be present on, under, in, or at the Property in violation of any Environmental Law or in quantities or concentrations that could reasonably be expected to give rise to Environmental Liabilities. Any such assessment or investigation shall be conducted in accordance with applicable ASTM standards and all applicable Environmental Laws, and the results thereof shall be delivered to Indemnitee promptly upon completion. Indemnitee's exercise of its rights under this Section 3.7 shall not relieve the Indemnitors of any obligation under this Agreement or any other Loan Document.

ARTICLE IV — INDEMNIFICATION

Section 4.1 — General Indemnification

The Indemnitors, jointly and severally, hereby agree to indemnify, defend (with counsel selected by the Indemnitors and reasonably acceptable to Indemnitee), and hold harmless each of the Indemnitee Parties from and against any and all Environmental Liabilities arising out of, relating to, resulting from, or in connection with any of the following, whether arising before, during, or after the term of the Loan, whether known or unknown, foreseen or unforeseen, and regardless of when discovered:

(a) the presence, existence, release, threatened release, discharge, emission, migration, disposal, generation, manufacture, storage, treatment, or transportation of any Hazardous Substance on, under, in, from, or affecting the Property at any time (whether such Hazardous Substance was placed, released, or disposed of at the Property before, during, or after the period of Borrower's ownership of the Property);

(b) any violation of any Environmental Law with respect to the Property, the Project, or any activity conducted thereon, whether by Borrower, any Indemnitor, any tenant, subtenant, licensee, contractor, subcontractor, or any other person;

(c) any environmental condition at, on, under, in, or emanating from the Property, including, without limitation, contamination of soil, groundwater, surface water, sediment, or ambient air;

(d) any claim, demand, cause of action, investigation, proceeding, order, directive, or judgment by any Governmental Authority or any third party (including, without limitation, any private party contribution action under CERCLA Section 113) arising from any of the foregoing;

(e) any breach by any Indemnitor of any representation, warranty, or covenant of such Indemnitor set forth in this Agreement; and

(f) any assertion against any Indemnitee Party that such Indemnitee Party is or may be liable as an "owner," "operator," "arranger," "transporter," or "responsible party" under any Environmental Law by reason of Indemnitee's interest in the Loan, the Deed of Trust, or the Property.

The obligations of the Indemnitors under this Section 4.1 shall arise upon demand by any Indemnitee Party and shall not be contingent upon the commencement of any legal proceeding or the issuance of any order by any Governmental Authority.

Section 4.2 — Scope of Indemnity

The Environmental Liabilities covered by the indemnification obligations set forth in Section 4.1 include, without limitation, the following:

(a) all costs and expenses of Remediation, investigation, monitoring, sampling, testing, and response actions, whether required by any Governmental Authority, ordered by any court, or undertaken voluntarily in accordance with applicable Environmental Laws;

(b) all fines, penalties, assessments, charges, and other amounts imposed by any Governmental Authority in connection with any violation of any Environmental Law;

(d) all claims for bodily injury, personal injury, wrongful death, and property damage asserted by third parties arising from or related to environmental conditions at the Property;

(e) any diminution in the fair market value of the Property attributable to the presence of Hazardous Substances or any environmental condition;

(f) all reasonable attorneys' fees, expert fees, consultant fees, engineer fees, laboratory and analytical costs, court costs, arbitration costs, mediation costs, and other litigation expenses incurred by any Indemnitee Party in connection with any Environmental Liability or in enforcing the provisions of this Agreement;

(g) all costs and expenses incurred by Indemnitee in exercising its rights under Section 3.6 and Section 3.7 of this Agreement as a result of a confirmed environmental condition or a confirmed breach of any representation, warranty, or covenant hereunder;

(h) all costs and expenses incurred by Indemnitee in responding to any inquiry, investigation, or proceeding initiated by any Governmental Authority relating to environmental conditions at the Property;

(i) all costs and expenses incurred by Indemnitee to prevent or mitigate any environmental condition at the Property if the Indemnitors fail to take timely and adequate action as required by this Agreement; and

(j) all consequential, incidental, and indirect damages suffered by any Indemnitee Party, including, without limitation, lost interest, lost loan servicing fees, and costs of foreclosure or other enforcement actions to the extent attributable to environmental conditions at the Property.

Section 4.3 — Unsecured Obligation

The obligations of the Indemnitors under this Agreement are unsecured, recourse obligations of the Indemnitors and are not secured by the Deed of Trust, the Assignment of Leases and Rents, or any other Loan Document. This Agreement does not create, and shall not be construed as creating, a mortgage, lien, security interest, or other encumbrance on the Property or on any other asset of any Indemnitor. The obligations of the Indemnitors hereunder are personal obligations, enforceable directly against each Indemnitor and its assets, and are not limited to, or payable solely from, the Property or any other collateral securing the Loan.

Section 4.4 — Non-Recourse Carve-Out Character

The indemnification obligations of the Indemnitors under this Agreement constitute non-recourse carve-out obligations of the type customarily excepted from the non-recourse provisions of commercial real estate loan documents. Notwithstanding any provision of the Note, the Loan Agreement, the Deed of Trust, or any other Loan Document to the contrary, the obligations of the Indemnitors under this Agreement shall:

(a) survive the repayment or satisfaction of the Loan, whether in full or in part;

(b) survive the release, reconveyance, foreclosure, or other extinguishment of the Deed of Trust or any other lien securing the Loan;

(c) survive the exercise of any remedy by Indemnitee under the Loan Documents, including, without limitation, foreclosure (whether judicial or non-judicial), trustee's sale, deed-in-lieu of foreclosure, or the appointment of a receiver;

(d) survive the expiration, termination, or cancellation of the Loan Agreement, the Note, or any other Loan Document;

(e) not be subject to, limited by, or affected by the non-recourse or exculpatory provisions of the Loan Agreement or any other Loan Document; and

(f) be and remain separate from and independent of the obligations of Borrower under the Note, the Loan Agreement, the Deed of Trust, and the other Loan Documents.

The obligations of the Indemnitors under this Agreement are absolute, unconditional, and irrevocable, and shall not be affected, diminished, or impaired by any event, occurrence, or circumstance that might otherwise constitute a defense to, or a discharge of, the obligations of a surety or guarantor under applicable law.

Section 4.5 — Joint and Several Liability

The obligations of IHDC and Cobalt Ridge under this Agreement are joint and several. Indemnitee may proceed against either or both Indemnitors, in any order and in any combination, without first proceeding against Borrower, any other person, or any collateral securing the Loan, and without exhausting any other right or remedy available to Indemnitee. The liability of each Indemnitor under this Agreement is primary and direct, and not conditional or contingent upon the pursuit of any remedy against any other party or the enforcement of any other right or security. A separate action or actions may be brought against each Indemnitor, whether or not an action is brought against the other Indemnitor or Borrower, and whether or not Borrower or the other Indemnitor is joined in any such action. The release or discharge of one Indemnitor from its obligations hereunder shall not release or discharge the other Indemnitor.

ARTICLE V — SURVIVAL AND DURATION

Section 5.1 — Survival

The representations, warranties, covenants, and indemnification obligations of the Indemnitors under this Agreement shall survive, and shall remain in full force and effect notwithstanding, any of the following events or circumstances:

(a) the repayment in full of the Loan, the cancellation of the Note, or the satisfaction or discharge of all obligations of Borrower under the Loan Documents;

(b) the release, reconveyance, or foreclosure of the Deed of Trust, or the termination or release of any other lien or security interest securing the Loan;

(c) any transfer of the Property or any interest therein, whether voluntary or involuntary, including, without limitation, any sale, conveyance, foreclosure, trustee's sale, deed-in-lieu of foreclosure, eminent domain proceeding, or other disposition;

(d) the exercise by Indemnitee of any right or remedy under the Loan Documents, at law, or in equity, including, without limitation, the exercise of any remedial rights under the Deed of Trust;

(e) any bankruptcy, insolvency, receivership, reorganization, composition, arrangement, dissolution, liquidation, or similar proceeding commenced by or against Borrower, IHDC, Cobalt Ridge, or any other party;

(f) any amendment, modification, renewal, extension, refinancing, or restructuring of the Loan or any Loan Document;

(g) any release, substitution, or exchange of any collateral securing the Loan;

(h) Indemnitee's acquisition of ownership of the Property through foreclosure, deed-in-lieu of foreclosure, or otherwise; and

(i) any other event or circumstance that might otherwise constitute a legal or equitable discharge of, or defense to, the obligations of the Indemnitors hereunder.

Section 5.2 — Statute of Limitations

The obligations of the Indemnitors under this Agreement shall not be subject to any statute of limitations defense that might otherwise be applicable to the Loan, the Loan Documents, or any guaranty or surety obligation, and no Indemnitor shall assert or rely upon any statute of limitations as a defense to any claim or obligation arising under this Agreement, except that the applicable statutes of limitations under the relevant Environmental Laws shall govern the timeliness of claims brought by Indemnitee against the Indemnitors hereunder. The Indemnitors acknowledge that Environmental Liabilities may arise many years after the occurrence of the events giving rise to such liabilities, and the survival provisions of this Agreement are intended to ensure that the Indemnitors remain liable for such Environmental Liabilities regardless of when they are discovered or asserted.

ARTICLE VI — LIMITATION ON LIABILITY; CERTAIN RIGHTS AND WAIVERS

Section 6.1 — No Limitation by Loan Documents

The liability of the Indemnitors under this Agreement shall not be limited, reduced, impaired, or otherwise affected by any non-recourse, exculpatory, or limitation-of-liability provision contained in the Loan Agreement, the Note, the Deed of Trust, or any other Loan Document. The non-recourse provisions of the Loan Agreement, including, without limitation, any provision limiting the personal liability of Borrower, any Indemnitor, or any other party to the collateral securing the Loan, do not apply to, and shall not limit or affect, the obligations of the Indemnitors under this Agreement. The Indemnitors acknowledge and agree that this Agreement is an exception to, and is not governed by, any such non-recourse or exculpatory provisions, and that the Indemnitors' obligations hereunder are fully recourse obligations of the Indemnitors.

Section 6.2 — Waivers by Indemnitors

Each Indemnitor hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law:

(a) any defense based on the non-recourse nature of the Loan or any non-recourse or exculpatory provision contained in any Loan Document;

(b) any right to require Indemnitee to proceed against Borrower, any collateral, any guarantor, or any other person before proceeding against such Indemnitor under this Agreement, including, without limitation, any right of marshaling, any right to assert the benefit of any statute of limitations applicable to the obligations of Borrower, and any defense arising from the election of remedies by Indemnitee;

(d) any defense of laches, estoppel, or waiver, and any defense based on any claim that Indemnitee's rights hereunder are barred by the passage of time, the failure to act, or any course of dealing between the parties;

(e) any defense arising from the modification, amendment, extension, renewal, supplement, restatement, increase, or other change in the terms of the Loan, the Note, the Loan Agreement, the Deed of Trust, or any other Loan Document, in each case whether or not notice thereof is given to such Indemnitor;

(f) any defense arising from the release, substitution, exchange, impairment, or non-perfection of any collateral securing the Loan, or the release, discharge, or compromise of any obligation of Borrower, any guarantor, or any other person;

(g) notice of acceptance of this Agreement, notice of any action taken or omitted in reliance hereon, and any requirement that Indemnitee exhaust any right, power, or remedy, or proceed against any other security, before enforcing this Agreement;

(h) any right to assert the defense of res judicata or collateral estoppel based on any proceeding, judgment, or order relating to the Loan, the Loan Documents, or the obligations of Borrower; and

(i) any other defense or right that would or might constitute a legal or equitable defense available to, or a discharge of, a surety, guarantor, or indemnitor under the laws of the Commonwealth of Virginia or any other applicable jurisdiction, including, without limitation, the suretyship defenses available under Virginia Code §§ 49-25 through 49-28.

Section 6.3 — No Duty to marshal

Indemnitee shall have no obligation to marshal any assets, collateral, guaranties, or security, and no obligation to pursue any particular order of enforcement, before or in connection with enforcing this Agreement against any Indemnitor. Indemnitee may enforce this Agreement in any order and in any manner that Indemnitee, in its sole discretion, determines to be appropriate.

Section 6.4 — Subrogation

No Indemnitor shall be entitled to exercise or enforce, and each Indemnitor hereby irrevocably waives, any right of subrogation, contribution, reimbursement, or indemnity against Borrower or the Property, or any right to participate in or benefit from any collateral or security held by Indemnitee, until the Loan has been repaid in full, all obligations of Borrower under the Loan Documents have been fully satisfied, and all obligations of the Indemnitors under this Agreement and all other Loan Documents have been fully satisfied. If, notwithstanding the foregoing, any amount is paid to any Indemnitor in violation of this Section 6.4, such amount shall be held in trust for the benefit of Indemnitee and shall be promptly paid to Indemnitee for application to the Loan and any other obligations under the Loan Documents in such order as Indemnitee may determine.

ARTICLE VII — ADDITIONAL PROVISIONS

Section 7.1 — Notices

All notices, requests, demands, consents, approvals, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) sent by nationally recognized overnight courier (with tracking capability), or (c) sent by certified mail, return receipt requested, postage prepaid, in each case addressed as follows (or to such other address as any Party may designate by written notice to the other Parties in accordance with this Section 7.1):

If to IHDC:

Ironhaven Data Centers LLC 1900 Dominion Tower, Suite 400 Tysons Corner, Virginia 22182

Attention: General Counsel

Telephone: (703) 555-4100

Email: legalnotices@ironhavendc.com

With a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 2001 M Street NW, Suite 1200 Washington, DC 20036

Attention: Angela Fontaine

Telephone: (202) 555-7200

Email: afontaine@calderwoodharkness.com

If to Cobalt Ridge:

Cobalt Ridge Capital Partners, LP 300 Park Avenue South, 14th Floor New York, New York 10010

Attention: Marcus J. Kellner

Telephone: (212) 555-3800

Email: mkellner@cobaltridgecapital.com

If to Indemnitee:

Pinnacle Federal Savings Bank 800 Constitution Avenue NW, Suite 550 Washington, DC 20001

Attention: Thomas R. Whitfield, SVP, Technology & Data Center Lending

Telephone: (202) 555-9400

Email: twhitfield@pinnaclefederal.com

With a copy (which shall not constitute notice) to:

Hargrove, Liddell & Pace LLP 1750 K Street NW, Suite 900 Washington, DC 20006

Attention: Jonathan Breckinridge

Telephone: (202) 555-6100

Email: jbreckinridge@hlplaw.com

Notices shall be deemed received: (i) if delivered personally, upon delivery; (ii) if sent by overnight courier, on the next business day after deposit with such courier; and (iii) if sent by certified mail, on the third (3rd) business day after deposit in the United States mail. Rejection or refusal to accept, or inability to deliver because of a changed address of which no notice was given, shall be deemed receipt of the notice sent.

Section 7.2 — Governing Law

This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflicts-of-law principles that would require or permit the application of the laws of any other jurisdiction. To the extent that any Environmental Law of the United States is applicable to any matter arising under this Agreement, such federal law shall be applied in addition to, and not in lieu of, applicable Virginia law.

Section 7.3 — Jurisdiction and Venue

Each Indemnitor hereby irrevocably and unconditionally: (a) submits to the exclusive jurisdiction of the courts of the Commonwealth of Virginia and the United States District Court for the Eastern District of Virginia for any action, suit, or proceeding arising out of or relating to this Agreement; (b) agrees that venue for any such action, suit, or proceeding shall lie in the Circuit Court of Loudoun County, Virginia, or the Alexandria Division of the United States District Court for the Eastern District of Virginia, as Indemnitee may elect; (c) waives any objection to the laying of venue in any such court; and (d) waives any defense of forum non conveniens or any similar doctrine. Each Indemnitor agrees that service of process may be made in any manner permitted by the laws of the Commonwealth of Virginia or the Federal Rules of Civil Procedure. Nothing in this Section 7.3 shall affect the right of Indemnitee to serve process in any other manner permitted by law or to bring any action or proceeding in any other court of competent jurisdiction.

Section 7.4 — Waiver of Jury Trial

EACH INDEMNITOR AND INDEMNITEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE BY EACH PARTY, AND EACH PARTY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY OTHER PARTY OR BY ANY OTHER PERSON TO INDUCE THIS WAIVER. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS OF THIS AGREEMENT.

Section 7.5 — Amendments

This Agreement may not be amended, modified, supplemented, restated, or waived except by a written instrument signed by all Parties hereto. No waiver of any provision of this Agreement, and no consent to any departure by any Indemnitor from any provision of this Agreement, shall be effective unless in writing and signed by Indemnitee, and any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No course of dealing between the Parties, no delay or omission on the part of Indemnitee in exercising any right or remedy hereunder, and no single or partial exercise of any right or remedy shall operate as a waiver of any right or remedy or preclude the further exercise thereof.

ENVIRONMENTAL INDEMNITY AGREEMENT
March 18, 2024
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") is made and entered into as of March 18, 2024 (the "Effective Date"), by and among:
IRONHAVEN DATA CENTERS LLC, a Virginia limited liability company ("IHDC"), with its principal office at 1900 Dominion Tower, Suite 400, Tysons Corner, Virginia 22182;
COBALT RIDGE CAPITAL PARTNERS, LP, a Delaware limited partnership ("Cobalt Ridge" and, together with IHDC, collectively and individually, the "Indemnitors"), with its principal office at 300 Park Avenue South, 14th Floor, New York, New York 10010;
and
PINNACLE FEDERAL SAVINGS BANK, a federally chartered savings bank (the "Indemnitee" or "Lender"), with its principal office at 800 Constitution Avenue NW, Suite 550, Washington, DC 20001.
IHDC, Cobalt Ridge, and Indemnitee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Loan. Indemnitee has made a construction-to-permanent loan in the original principal amount of Forty-Five Million Dollars ($45,000,000) (the "Loan") to Ironhaven Loudoun Edge LLC, a Virginia limited liability company and single-purpose, bankruptcy-remote entity ("Borrower"), pursuant to that certain Construction Loan Agreement dated as of March 18, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Loan Agreement"), between Borrower and Indemnitee. The Loan is evidenced by a Promissory Note dated March 18, 2024 in the principal amount of Forty-Five Million Dollars ($45,000,000) (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Note").
B. The Property. The Loan is secured by, among other things, that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing dated as of March 18, 2024 (the "Deed of Trust"), recorded or to be recorded in the Clerk's Office of the Circuit Court of Loudoun County, Virginia, encumbering certain real property located at 44350 Prentice Drive, Ashburn, Loudoun County, Virginia 20147, more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"), together with all improvements now or hereafter located thereon (Tax Map Parcel No. 087-23-5571). The Property is a 3.2-acre parcel zoned PD-IP (Planned Development — Industrial Park) under the Loudoun County Revised 1993 Zoning Ordinance, as amended from time to time.
C. The Project. Borrower intends to develop on the Property a 52,000 square foot, 4.5 MW critical IT load edge data center facility known as the Loudoun Edge Facility (the "Project"), with an estimated total project cost of Fifty-Seven Million Dollars ($57,000,000). The Project will include, among other things, data halls, mechanical and electrical infrastructure, emergency generator systems, office and support areas, and associated site improvements.
D. Relationship of Indemnitors. IHDC is the sole member of Borrower. Cobalt Ridge holds an eighty-two percent (82%) membership interest in IHDC. Cobalt Ridge, acting through its general partner Cobalt Ridge GP LLC, a Delaware limited liability company, is providing a Twelve Million Dollar ($12,000,000) equity contribution to the Project and has executed a Completion Guaranty of even date herewith in favor of Indemnitee. By reason of their direct and indirect ownership interests in Borrower and their receipt of substantial economic benefits from the making of the Loan, each Indemnitor has agreed to execute and deliver this Agreement.
E. Environmental Assessment. An environmental site assessment has been conducted with respect to the Property, including that certain Phase I Environmental Site Assessment dated February 16, 2024, prepared by Terraverde Environmental Consultants, Inc. in accordance with ASTM Standard E1527-21 (the "Phase I ESA"). The Phase I ESA did not identify any recognized environmental conditions at the Property, but did identify certain de minimis conditions and historical controlled recognized environmental conditions that have been addressed to the satisfaction of the applicable Governmental Authority.
F. Inducement. As a material condition to Indemnitee's agreement to make the Loan, Indemnitee has required the execution and delivery of this Environmental Indemnity Agreement by the Indemnitors, and the Indemnitors have agreed to execute and deliver this Agreement to induce Indemnitee to make the Loan. Indemnitee would not have agreed to make the Loan but for the execution and delivery of this Agreement by the Indemnitors.
G. Loan Documents. This Agreement is one of the "Loan Documents" as defined in the Loan Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of Indemnitee's agreement to make the Loan, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Borrower" means Ironhaven Loudoun Edge LLC, a Virginia limited liability company (Virginia State Corporation Commission Entity ID S9103284; Federal Employer Identification Number 93-4178226), and its permitted successors and assigns under the Loan Documents.
"Environmental Law" means any and all federal, state, and local laws, statutes, regulations, rules, ordinances, codes, directives, guidance documents, policies, and orders, and any judicial or administrative interpretations thereof, relating to the protection of the environment, human health and safety, or the regulation of Hazardous Substances, including, without limitation: (a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §§ 9601 et seq.) ("CERCLA"); (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. §§ 6901 et seq.) ("RCRA"); (c) the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (33 U.S.C. §§ 1251 et seq.); (d) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (e) the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.); (f) the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.); (g) the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §§ 11001 et seq.); (h) the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); (i) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.); (j) the Virginia Waste Management Act (Va. Code § 10.1-1400 et seq.); (k) the Virginia State Water Control Law (Va. Code § 62.1-44.2 et seq.); (l) the Virginia Air Pollution Control Law (Va. Code § 10.1-1300 et seq.); and (m) any analogous or successor federal, state, or local statute or regulation, in each case as the same may be amended, supplemented, or replaced from time to time.
"Environmental Liabilities" means any and all losses, damages, costs, expenses, claims, demands, actions, suits, judgments, penalties, fines, assessments, liens, and liabilities of every kind and nature whatsoever (including, without limitation, reasonable attorneys' fees, expert and consultant fees, laboratory and analytical costs, court costs, and costs of Remediation, investigation, monitoring, and response actions) arising from or related to: (a) the presence, release, threatened release, migration, or disposal of any Hazardous Substance on, under, in, from, or affecting the Property or any adjacent or nearby property as a result of conditions at the Property; (b) any violation of any Environmental Law with respect to the Property or the Project; or (c) any environmental condition affecting the Property, whether arising before, during, or after the term of the Loan.
"Governmental Authority" means any federal, state, county, municipal, or local government or governmental or quasi-governmental authority, agency, department, commission, board, bureau, or instrumentality, including, without limitation, the United States Environmental Protection Agency ("EPA"), the Virginia Department of Environmental Quality ("VDEQ"), the Loudoun County Department of Building and Development, and any successor or analogous authority having jurisdiction over the Property or any activities conducted thereon.
"Hazardous Substance" means: (a) any substance defined as a "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," "pollutant," or "contaminant" under any Environmental Law; (b) petroleum and petroleum products, including crude oil and any fraction thereof, and any additives thereto; (c) asbestos and asbestos-containing materials in any form or condition; (d) polychlorinated biphenyls ("PCBs") in any form or concentration; (e) per- and polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic acid ("PFOA"), perfluorooctane sulfonate ("PFOS"), and all related compounds; (f) lead-based paint and lead in any form; (g) radon gas; (h) urea formaldehyde foam insulation; (i) flammable, explosive, or radioactive materials; (j) pesticides and herbicides; and (k) any other substance, material, chemical, compound, or waste that is regulated, restricted, or prohibited under any Environmental Law or that could give rise to liability under any Environmental Law.
"IHDC" means Ironhaven Data Centers LLC, a Virginia limited liability company (Virginia State Corporation Commission Entity ID S7842196; Federal Employer Identification Number 84-3291057), and its permitted successors and assigns.
"Indemnitee" means Pinnacle Federal Savings Bank, a federally chartered savings bank, and its successors and assigns (including, without limitation, any entity to which the Loan or any interest therein is sold, transferred, or assigned, and any servicer of the Loan).
"Indemnitee Parties" means Indemnitee and its successors, assigns, participants, purchasers of participation interests, directors, officers, employees, agents, affiliates, subsidiaries, and representatives, and each of their respective successors and assigns.
"Indemnitors" means, jointly and severally, Ironhaven Data Centers LLC and Cobalt Ridge Capital Partners, LP, and their respective successors and assigns (subject to the restrictions on transfer set forth in the Loan Documents).
"Loan Agreement" means the Construction Loan Agreement dated as of March 18, 2024, between Borrower and Indemnitee, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Phase I ESA" means that certain Phase I Environmental Site Assessment dated February 16, 2024, prepared by Terraverde Environmental Consultants, Inc. in accordance with ASTM Standard E1527-21 in connection with the Property, together with all supplements, amendments, and updates thereto.
"Property" means the real property located at 44350 Prentice Drive, Ashburn, Loudoun County, Virginia 20147, Tax Map Parcel No. 087-23-5571, as more fully described in Exhibit A attached hereto, together with: (a) all improvements now or hereafter constructed, erected, or placed thereon (including, without limitation, the Loudoun Edge Facility and all related mechanical, electrical, and structural systems); (b) all fixtures, equipment, and personal property attached thereto or used in connection therewith to the extent constituting part of the real property under applicable law; (c) all easements, rights-of-way, appurtenances, and privileges pertaining thereto; and (d) all subsurface areas, soils, groundwater, and surface water located on, beneath, or flowing through the real property.
"Remediation" means any investigation, study, assessment, testing, sampling, monitoring, cleanup, removal, containment, remediation, treatment, abatement, restoration, natural attenuation, bioremediation, institutional controls (including deed restrictions and environmental covenants), engineering controls (including caps, barriers, and containment systems), or other corrective or response action required under any Environmental Law, directed or ordered by any Governmental Authority, or otherwise necessary to address the presence or release of any Hazardous Substance at, on, under, from, or affecting the Property.
Section 1.2 — Rules of Construction
The rules of construction and interpretive provisions set forth in Article I of the Loan Agreement are hereby incorporated herein by reference, mutatis mutandis, and shall apply to this Agreement as though set forth in full herein. Without limiting the generality of the foregoing: (a) the singular shall include the plural, and the plural shall include the singular; (b) all references to gender shall include all genders; (c) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation"; (d) the words "herein," "hereof," "hereunder," and "hereby" shall refer to this Agreement as a whole and not to any particular section or provision hereof; (e) all section and article headings are for convenience of reference only and shall not affect the interpretation of this Agreement; (f) all references to "days" shall mean calendar days unless "business days" are expressly specified; and (g) this Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts-of-law principles that would require the application of the laws of any other jurisdiction.
ARTICLE II — REPRESENTATIONS AND WARRANTIES OF INDEMNITORS
Each Indemnitor hereby represents and warrants to Indemnitee, as of the date hereof, as follows:
Section 2.1 — Phase I ESA
To the actual knowledge of each Indemnitor, after reasonable inquiry and investigation, the Phase I ESA dated February 16, 2024 is accurate and complete in all material respects as of its effective date, and no material changes in the environmental conditions at the Property have occurred since the date thereof. Each Indemnitor has reviewed the Phase I ESA and is not aware of any facts, circumstances, or conditions that would render the Phase I ESA inaccurate, incomplete, or misleading in any material respect. No Indemnitor has withheld from Indemnitee any environmental report, study, assessment, correspondence, or other document relating to environmental conditions at the Property that is in the possession or control of such Indemnitor or of which such Indemnitor has knowledge.
Section 2.2 — No Known Hazardous Substances
Except as disclosed in the Phase I ESA, to the actual knowledge of each Indemnitor, after reasonable inquiry and investigation:
(a) no Hazardous Substances are present on, under, in, or at the Property in quantities or concentrations that exceed applicable regulatory standards or screening levels or that would reasonably be expected to give rise to liability under any Environmental Law;
(b) no release or threatened release of any Hazardous Substance has occurred at, on, under, from, or affecting the Property;
(c) no underground storage tanks (whether active, inactive, closed-in-place, or abandoned) are located on or beneath the Property, and no underground storage tanks have been removed from the Property without proper closure and documentation in accordance with applicable Environmental Law;
(d) no above-ground storage tanks are located on the Property other than those described in Section 3.2(b) hereof, which have not yet been installed as of the date hereof;
(e) no portion of the Property has been used as a landfill, dump, waste disposal site, or waste treatment facility; and
(f) no Hazardous Substances have migrated onto the Property from any adjacent or nearby property.
Section 2.3 — Compliance with Environmental Laws
To the actual knowledge of each Indemnitor, after reasonable inquiry and investigation, the Property is in compliance in all material respects with all applicable Environmental Laws, and Borrower's intended development and operation of the Project, as described in the plans and specifications delivered to Indemnitee, will comply in all material respects with all applicable Environmental Laws. Neither Indemnitor has received any notice from any Governmental Authority or any other person alleging that the Property is not in compliance with any Environmental Law.
Section 2.4 — No Pending Actions
There are no pending or, to the actual knowledge of each Indemnitor, after reasonable inquiry, threatened actions, suits, claims, investigations, inquiries, proceedings, or orders by any Governmental Authority or any third party relating to Hazardous Substances or any Environmental Law with respect to the Property. No Indemnitor has received any written or oral communication from any Governmental Authority or any third party regarding any actual, alleged, or potential violation of any Environmental Law with respect to the Property, or regarding any actual, alleged, or potential liability under any Environmental Law in connection with the Property. The Property is not listed on, and to the actual knowledge of the Indemnitors, has not been proposed for listing on, the National Priorities List under CERCLA, the Comprehensive Environmental Response and Remediation list maintained by VDEQ, or any similar federal, state, or local list of contaminated or potentially contaminated sites.
Section 2.5 — No Liens
No environmental lien, superlien, or other lien arising under any Environmental Law has been imposed on the Property or on any portion thereof. No Governmental Authority has filed or recorded, or threatened to file or record, any notice of lien, notice of violation, or notice of potential liability against the Property or any Indemnitor under any Environmental Law. No Indemnitor has received any notice or communication indicating that any Governmental Authority intends to impose or assert any such lien or encumbrance.
Section 2.6 — Permits
All environmental permits, licenses, approvals, authorizations, registrations, and certifications required under applicable Environmental Laws for the current use and condition of the Property have been obtained and are in full force and effect. All environmental permits, licenses, approvals, authorizations, registrations, and certifications required under applicable Environmental Laws for the development, construction, and operation of the Project (including, without limitation, permits for stormwater management, erosion and sediment control, air emissions from emergency generators, and storage of diesel fuel) have been obtained or will be obtained prior to the commencement of the relevant activity. Each Indemnitor shall use commercially reasonable efforts to cause Borrower to obtain all such permits, licenses, and approvals in a timely manner and in compliance with all applicable Environmental Laws.
Section 2.7 — Organizational Authority
Each Indemnitor represents and warrants that:
(a) Such Indemnitor has the full legal power, authority, and capacity to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by such Indemnitor have been duly authorized by all necessary action on the part of such Indemnitor and do not and will not conflict with, result in a breach of, or constitute a default under, any organizational document of such Indemnitor, any agreement to which such Indemnitor is a party or by which it is bound, or any applicable law, regulation, or order.
(b) IHDC is a limited liability company duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, as evidenced by the records of the Virginia State Corporation Commission (Entity ID S7842196). IHDC has the full power and authority to own its interest in Borrower and to conduct its business as presently conducted.
(c) Cobalt Ridge is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware, as evidenced by the records of the Delaware Secretary of State, and is duly qualified to transact business in the Commonwealth of Virginia. Cobalt Ridge GP LLC, a Delaware limited liability company, is the sole general partner of Cobalt Ridge and has the full power and authority to execute this Agreement on behalf of Cobalt Ridge and to bind Cobalt Ridge to the obligations set forth herein.
(d) This Agreement constitutes the legal, valid, and binding obligation of each Indemnitor, enforceable against such Indemnitor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether enforcement is sought in a proceeding at law or in equity).
ARTICLE III — COVENANTS OF INDEMNITORS
Each Indemnitor hereby covenants and agrees with Indemnitee as follows:
Section 3.1 — Compliance
Each Indemnitor shall cause Borrower to comply, and shall itself comply, with all applicable Environmental Laws with respect to the Property and the Project. Without limiting the generality of the foregoing, each Indemnitor shall cause Borrower to: (a) maintain all environmental permits, licenses, and approvals required for the development, construction, and operation of the Project in full force and effect; (b) comply with all terms, conditions, and requirements of such permits, licenses, and approvals; (c) timely file all reports, notices, and registrations required under applicable Environmental Laws; and (d) cooperate with all inspections, investigations, and inquiries conducted by any Governmental Authority with respect to the Property or the Project.
Section 3.2 — No Hazardous Substances
Each Indemnitor shall not cause or permit, and shall cause Borrower not to cause or permit, the use, generation, manufacture, production, storage, treatment, processing, transport, release, discharge, emission, or disposal of any Hazardous Substance on, under, in, or about the Property, except for the following (each of which must be in strict compliance with all applicable Environmental Laws and all permits, licenses, and approvals issued thereunder):
(a) Construction Materials. Construction materials, including adhesives, sealants, paints, coatings, solvents, and similar materials, used in the ordinary course of construction of the Project in compliance with all applicable Environmental Laws, and stored and handled in accordance with all manufacturer recommendations and applicable safety data sheets;
(b) Diesel Fuel. Diesel fuel stored on-site in connection with the three (3) 2.5 MW emergency generators serving the Loudoun Edge Facility, in properly designed, installed, and maintained above-ground storage systems equipped with secondary containment, overfill prevention, and leak detection systems, all in compliance with all applicable Environmental Laws (including, without limitation, 40 C.F.R. Part 112 and the Virginia Aboveground Storage Tank regulations), and in quantities not to exceed such amounts as are reasonably necessary for the operation of such generators;
(c) Cleaning and Maintenance Supplies. Cleaning and maintenance supplies, janitorial products, and similar materials in commercially reasonable quantities used in the ordinary course of data center operations, including, without limitation, supplies necessary for the maintenance and operation of HVAC, fire suppression, and cooling systems, provided that such materials are stored, handled, and disposed of in accordance with all applicable Environmental Laws and manufacturer instructions.
No Indemnitor shall cause or permit Borrower or any tenant, subtenant, licensee, or occupant of the Property to engage in any activity that would require the filing of a permit, registration, or notification under any Environmental Law for the generation, treatment, storage, or disposal of Hazardous Substances (other than as expressly permitted by this Section 3.2) without the prior written consent of Indemnitee, which consent may be withheld in Indemnitee's sole and absolute discretion.
Section 3.3 — Notices
Each Indemnitor shall promptly notify Indemnitee in writing (and in any event within five (5) business days after obtaining knowledge thereof) of any of the following:
(a) any release or threatened release of any Hazardous Substance on, from, under, or affecting the Property, regardless of quantity or concentration, other than releases that are clearly de minimis in nature and do not require reporting under any Environmental Law;
(b) any notice, claim, demand, directive, citation, summons, complaint, suit, or order received from any Governmental Authority or any third party relating to Hazardous Substances or any Environmental Law affecting the Property, including, without limitation, any notice of violation, notice of potential liability, information request under CERCLA Section 104(e), general notice letter, or special notice letter;
(c) any environmental condition at the Property that could reasonably be expected to give rise to Environmental Liabilities, including, without limitation, the discovery of any previously unknown contamination, staining, odors, or other indicia of the presence of Hazardous Substances;
(d) the discovery of any underground storage tanks, previously unknown above-ground storage tanks, or abandoned wells on the Property;
(e) any spill, leak, discharge, emission, or release of Hazardous Substances from any storage system, equipment, or infrastructure at the Property;
(f) any change in the environmental condition of any property adjacent to or in the vicinity of the Property that could reasonably be expected to affect the environmental condition of the Property; and
(g) any proposal by any Governmental Authority to list the Property or any adjacent property on any list of contaminated or potentially contaminated sites maintained by any federal, state, or local agency.
Each such notice shall describe in reasonable detail the nature and extent of the condition, event, or matter giving rise to the notification obligation and shall include copies of all relevant correspondence, reports, and other documents received or prepared in connection therewith.
Section 3.4 — Remediation
If any Hazardous Substance is found on, under, in, or at the Property in violation of any Environmental Law or in quantities or concentrations that exceed applicable regulatory standards or screening levels or that could reasonably be expected to give rise to liability under any Environmental Law, each Indemnitor shall promptly, at the sole cost and expense of the Indemnitors, and without cost or expense to Indemnitee:
(a) take all Remediation actions required by applicable Environmental Laws, any applicable Governmental Authority, or this Agreement, and take such additional Remediation actions as may be reasonably necessary to bring the Property into full compliance with all applicable Environmental Laws and to eliminate or mitigate any threat to human health, safety, or the environment;
(b) retain qualified environmental consultants and contractors, reasonably acceptable to Indemnitee, to design, implement, and oversee all Remediation activities;
(c) prepare and submit to the applicable Governmental Authority all reports, plans, and other documents required in connection with such Remediation, and provide copies of all such documents to Indemnitee concurrently with their submission to the Governmental Authority;
(d) obtain from the applicable Governmental Authority a "no further action" letter, closure letter, certificate of completion, or equivalent written confirmation that the Remediation has been completed to the satisfaction of such Governmental Authority and in accordance with all applicable Environmental Laws; and
(e) keep Indemnitee fully and promptly informed of all Remediation activities, including, without limitation, by providing Indemnitee with copies of all environmental reports, sampling data, correspondence with Governmental Authorities, and other documents prepared or received in connection with such Remediation.
Indemnitee shall have the right, but not the obligation, to participate in any discussions or negotiations with any Governmental Authority regarding Remediation activities at the Property. No Indemnitor shall enter into any settlement, consent order, or other agreement with any Governmental Authority relating to Remediation of the Property without the prior written consent of Indemnitee, which consent shall not be unreasonably withheld, conditioned, or delayed.
Section 3.5 — No Environmental Liens
No Indemnitor shall permit any environmental lien, superlien, or other lien arising under any Environmental Law to be imposed on the Property or on any portion thereof. If any such lien is filed or recorded against the Property, the applicable Indemnitor shall cause such lien to be discharged of record, bonded over, or otherwise removed within thirty (30) days after the earlier of (a) the date on which such Indemnitor first obtains knowledge of such lien or (b) the date on which such Indemnitor receives written notice from Indemnitee of the existence of such lien. If any Indemnitor fails to cause such lien to be discharged, bonded, or removed within such thirty (30) day period, Indemnitee may, but shall not be obligated to, take such actions as Indemnitee deems necessary or appropriate to discharge, bond, or remove such lien, and all costs and expenses incurred by Indemnitee in connection therewith (including reasonable attorneys' fees) shall constitute Environmental Liabilities indemnified under Article IV of this Agreement.
Section 3.6 — Access and Inspection
Each Indemnitor shall cause Borrower to permit Indemnitee and its authorized agents, employees, consultants, and contractors to enter upon and access the Property at any reasonable time, upon not less than two (2) business days' prior written or electronic notice to the applicable Indemnitor (except in the case of an emergency or a reasonably suspected violation of Environmental Law, in which case no prior notice shall be required), for the purpose of conducting environmental inspections, assessments, investigations, sampling, testing, monitoring, and other environmental due diligence activities as Indemnitee may deem necessary or desirable. Indemnitee shall use commercially reasonable efforts to minimize disruption to the construction and operation of the Project during any such inspection; provided, however, that Indemnitee's right of access shall not be subject to any conditions or limitations that would impair Indemnitee's ability to conduct a thorough environmental assessment of the Property.
The cost and expense of any environmental inspection or assessment conducted by or on behalf of Indemnitee pursuant to this Section 3.6 shall be borne as follows: (a) if such inspection or assessment is triggered by a reasonably suspected environmental condition, a breach of any representation, warranty, or covenant under this Agreement, a release or threatened release of Hazardous Substances, or a notice from any Governmental Authority, the costs and expenses thereof shall be borne by the Indemnitors; and (b) in all other cases, the costs and expenses thereof shall be borne by Indemnitee.
Section 3.7 — Additional Assessments
Indemnitee may, at any time and from time to time, require the Indemnitors, at the Indemnitors' sole cost and expense, to obtain and deliver to Indemnitee a Phase II Environmental Site Assessment, supplemental environmental investigation, or other environmental study or report with respect to the Property, prepared by a qualified environmental consultant approved by Indemnitee (such approval not to be unreasonably withheld, conditioned, or delayed), if Indemnitee reasonably believes, based on information available to it, that Hazardous Substances may be present on, under, in, or at the Property in violation of any Environmental Law or in quantities or concentrations that could reasonably be expected to give rise to Environmental Liabilities. Any such assessment or investigation shall be conducted in accordance with applicable ASTM standards and all applicable Environmental Laws, and the results thereof shall be delivered to Indemnitee promptly upon completion. Indemnitee's exercise of its rights under this Section 3.7 shall not relieve the Indemnitors of any obligation under this Agreement or any other Loan Document.
ARTICLE IV — INDEMNIFICATION
Section 4.1 — General Indemnification
The Indemnitors, jointly and severally, hereby agree to indemnify, defend (with counsel selected by the Indemnitors and reasonably acceptable to Indemnitee), and hold harmless each of the Indemnitee Parties from and against any and all Environmental Liabilities arising out of, relating to, resulting from, or in connection with any of the following, whether arising before, during, or after the term of the Loan, whether known or unknown, foreseen or unforeseen, and regardless of when discovered:
(a) the presence, existence, release, threatened release, discharge, emission, migration, disposal, generation, manufacture, storage, treatment, or transportation of any Hazardous Substance on, under, in, from, or affecting the Property at any time (whether such Hazardous Substance was placed, released, or disposed of at the Property before, during, or after the period of Borrower's ownership of the Property);
(b) any violation of any Environmental Law with respect to the Property, the Project, or any activity conducted thereon, whether by Borrower, any Indemnitor, any tenant, subtenant, licensee, contractor, subcontractor, or any other person;
(c) any environmental condition at, on, under, in, or emanating from the Property, including, without limitation, contamination of soil, groundwater, surface water, sediment, or ambient air;
(d) any claim, demand, cause of action, investigation, proceeding, order, directive, or judgment by any Governmental Authority or any third party (including, without limitation, any private party contribution action under CERCLA Section 113) arising from any of the foregoing;
(e) any breach by any Indemnitor of any representation, warranty, or covenant of such Indemnitor set forth in this Agreement; and
(f) any assertion against any Indemnitee Party that such Indemnitee Party is or may be liable as an "owner," "operator," "arranger," "transporter," or "responsible party" under any Environmental Law by reason of Indemnitee's interest in the Loan, the Deed of Trust, or the Property.
The obligations of the Indemnitors under this Section 4.1 shall arise upon demand by any Indemnitee Party and shall not be contingent upon the commencement of any legal proceeding or the issuance of any order by any Governmental Authority.
Section 4.2 — Scope of Indemnity
The Environmental Liabilities covered by the indemnification obligations set forth in Section 4.1 include, without limitation, the following:
(a) all costs and expenses of Remediation, investigation, monitoring, sampling, testing, and response actions, whether required by any Governmental Authority, ordered by any court, or undertaken voluntarily in accordance with applicable Environmental Laws;
(b) all fines, penalties, assessments, charges, and other amounts imposed by any Governmental Authority in connection with any violation of any Environmental Law;
(c) all damages to natural resources, including the costs of assessing and restoring natural resource damages;
(d) all claims for bodily injury, personal injury, wrongful death, and property damage asserted by third parties arising from or related to environmental conditions at the Property;
(e) any diminution in the fair market value of the Property attributable to the presence of Hazardous Substances or any environmental condition;
(f) all reasonable attorneys' fees, expert fees, consultant fees, engineer fees, laboratory and analytical costs, court costs, arbitration costs, mediation costs, and other litigation expenses incurred by any Indemnitee Party in connection with any Environmental Liability or in enforcing the provisions of this Agreement;
(g) all costs and expenses incurred by Indemnitee in exercising its rights under Section 3.6 and Section 3.7 of this Agreement as a result of a confirmed environmental condition or a confirmed breach of any representation, warranty, or covenant hereunder;
(h) all costs and expenses incurred by Indemnitee in responding to any inquiry, investigation, or proceeding initiated by any Governmental Authority relating to environmental conditions at the Property;
(i) all costs and expenses incurred by Indemnitee to prevent or mitigate any environmental condition at the Property if the Indemnitors fail to take timely and adequate action as required by this Agreement; and
(j) all consequential, incidental, and indirect damages suffered by any Indemnitee Party, including, without limitation, lost interest, lost loan servicing fees, and costs of foreclosure or other enforcement actions to the extent attributable to environmental conditions at the Property.
Section 4.3 — Unsecured Obligation
The obligations of the Indemnitors under this Agreement are unsecured, recourse obligations of the Indemnitors and are not secured by the Deed of Trust, the Assignment of Leases and Rents, or any other Loan Document. This Agreement does not create, and shall not be construed as creating, a mortgage, lien, security interest, or other encumbrance on the Property or on any other asset of any Indemnitor. The obligations of the Indemnitors hereunder are personal obligations, enforceable directly against each Indemnitor and its assets, and are not limited to, or payable solely from, the Property or any other collateral securing the Loan.
Section 4.4 — Non-Recourse Carve-Out Character
The indemnification obligations of the Indemnitors under this Agreement constitute non-recourse carve-out obligations of the type customarily excepted from the non-recourse provisions of commercial real estate loan documents. Notwithstanding any provision of the Note, the Loan Agreement, the Deed of Trust, or any other Loan Document to the contrary, the obligations of the Indemnitors under this Agreement shall:
(a) survive the repayment or satisfaction of the Loan, whether in full or in part;
(b) survive the release, reconveyance, foreclosure, or other extinguishment of the Deed of Trust or any other lien securing the Loan;
(c) survive the exercise of any remedy by Indemnitee under the Loan Documents, including, without limitation, foreclosure (whether judicial or non-judicial), trustee's sale, deed-in-lieu of foreclosure, or the appointment of a receiver;
(d) survive the expiration, termination, or cancellation of the Loan Agreement, the Note, or any other Loan Document;
(e) not be subject to, limited by, or affected by the non-recourse or exculpatory provisions of the Loan Agreement or any other Loan Document; and
(f) be and remain separate from and independent of the obligations of Borrower under the Note, the Loan Agreement, the Deed of Trust, and the other Loan Documents.
The obligations of the Indemnitors under this Agreement are absolute, unconditional, and irrevocable, and shall not be affected, diminished, or impaired by any event, occurrence, or circumstance that might otherwise constitute a defense to, or a discharge of, the obligations of a surety or guarantor under applicable law.
Section 4.5 — Joint and Several Liability
The obligations of IHDC and Cobalt Ridge under this Agreement are joint and several. Indemnitee may proceed against either or both Indemnitors, in any order and in any combination, without first proceeding against Borrower, any other person, or any collateral securing the Loan, and without exhausting any other right or remedy available to Indemnitee. The liability of each Indemnitor under this Agreement is primary and direct, and not conditional or contingent upon the pursuit of any remedy against any other party or the enforcement of any other right or security. A separate action or actions may be brought against each Indemnitor, whether or not an action is brought against the other Indemnitor or Borrower, and whether or not Borrower or the other Indemnitor is joined in any such action. The release or discharge of one Indemnitor from its obligations hereunder shall not release or discharge the other Indemnitor.
ARTICLE V — SURVIVAL AND DURATION
Section 5.1 — Survival
The representations, warranties, covenants, and indemnification obligations of the Indemnitors under this Agreement shall survive, and shall remain in full force and effect notwithstanding, any of the following events or circumstances:
(a) the repayment in full of the Loan, the cancellation of the Note, or the satisfaction or discharge of all obligations of Borrower under the Loan Documents;
(b) the release, reconveyance, or foreclosure of the Deed of Trust, or the termination or release of any other lien or security interest securing the Loan;
(c) any transfer of the Property or any interest therein, whether voluntary or involuntary, including, without limitation, any sale, conveyance, foreclosure, trustee's sale, deed-in-lieu of foreclosure, eminent domain proceeding, or other disposition;
(d) the exercise by Indemnitee of any right or remedy under the Loan Documents, at law, or in equity, including, without limitation, the exercise of any remedial rights under the Deed of Trust;
(e) any bankruptcy, insolvency, receivership, reorganization, composition, arrangement, dissolution, liquidation, or similar proceeding commenced by or against Borrower, IHDC, Cobalt Ridge, or any other party;
(f) any amendment, modification, renewal, extension, refinancing, or restructuring of the Loan or any Loan Document;
(g) any release, substitution, or exchange of any collateral securing the Loan;
(h) Indemnitee's acquisition of ownership of the Property through foreclosure, deed-in-lieu of foreclosure, or otherwise; and
(i) any other event or circumstance that might otherwise constitute a legal or equitable discharge of, or defense to, the obligations of the Indemnitors hereunder.
Section 5.2 — Statute of Limitations
The obligations of the Indemnitors under this Agreement shall not be subject to any statute of limitations defense that might otherwise be applicable to the Loan, the Loan Documents, or any guaranty or surety obligation, and no Indemnitor shall assert or rely upon any statute of limitations as a defense to any claim or obligation arising under this Agreement, except that the applicable statutes of limitations under the relevant Environmental Laws shall govern the timeliness of claims brought by Indemnitee against the Indemnitors hereunder. The Indemnitors acknowledge that Environmental Liabilities may arise many years after the occurrence of the events giving rise to such liabilities, and the survival provisions of this Agreement are intended to ensure that the Indemnitors remain liable for such Environmental Liabilities regardless of when they are discovered or asserted.
ARTICLE VI — LIMITATION ON LIABILITY; CERTAIN RIGHTS AND WAIVERS
Section 6.1 — No Limitation by Loan Documents
The liability of the Indemnitors under this Agreement shall not be limited, reduced, impaired, or otherwise affected by any non-recourse, exculpatory, or limitation-of-liability provision contained in the Loan Agreement, the Note, the Deed of Trust, or any other Loan Document. The non-recourse provisions of the Loan Agreement, including, without limitation, any provision limiting the personal liability of Borrower, any Indemnitor, or any other party to the collateral securing the Loan, do not apply to, and shall not limit or affect, the obligations of the Indemnitors under this Agreement. The Indemnitors acknowledge and agree that this Agreement is an exception to, and is not governed by, any such non-recourse or exculpatory provisions, and that the Indemnitors' obligations hereunder are fully recourse obligations of the Indemnitors.
Section 6.2 — Waivers by Indemnitors
Each Indemnitor hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law:
(a) any defense based on the non-recourse nature of the Loan or any non-recourse or exculpatory provision contained in any Loan Document;
(b) any right to require Indemnitee to proceed against Borrower, any collateral, any guarantor, or any other person before proceeding against such Indemnitor under this Agreement, including, without limitation, any right of marshaling, any right to assert the benefit of any statute of limitations applicable to the obligations of Borrower, and any defense arising from the election of remedies by Indemnitee;
(c) any defense based on any statute of limitations, except as expressly provided in Section 5.2 of this Agreement;
(d) any defense of laches, estoppel, or waiver, and any defense based on any claim that Indemnitee's rights hereunder are barred by the passage of time, the failure to act, or any course of dealing between the parties;
(e) any defense arising from the modification, amendment, extension, renewal, supplement, restatement, increase, or other change in the terms of the Loan, the Note, the Loan Agreement, the Deed of Trust, or any other Loan Document, in each case whether or not notice thereof is given to such Indemnitor;
(f) any defense arising from the release, substitution, exchange, impairment, or non-perfection of any collateral securing the Loan, or the release, discharge, or compromise of any obligation of Borrower, any guarantor, or any other person;
(g) notice of acceptance of this Agreement, notice of any action taken or omitted in reliance hereon, and any requirement that Indemnitee exhaust any right, power, or remedy, or proceed against any other security, before enforcing this Agreement;
(h) any right to assert the defense of res judicata or collateral estoppel based on any proceeding, judgment, or order relating to the Loan, the Loan Documents, or the obligations of Borrower; and
(i) any other defense or right that would or might constitute a legal or equitable defense available to, or a discharge of, a surety, guarantor, or indemnitor under the laws of the Commonwealth of Virginia or any other applicable jurisdiction, including, without limitation, the suretyship defenses available under Virginia Code §§ 49-25 through 49-28.
Section 6.3 — No Duty to marshal
Indemnitee shall have no obligation to marshal any assets, collateral, guaranties, or security, and no obligation to pursue any particular order of enforcement, before or in connection with enforcing this Agreement against any Indemnitor. Indemnitee may enforce this Agreement in any order and in any manner that Indemnitee, in its sole discretion, determines to be appropriate.
Section 6.4 — Subrogation
No Indemnitor shall be entitled to exercise or enforce, and each Indemnitor hereby irrevocably waives, any right of subrogation, contribution, reimbursement, or indemnity against Borrower or the Property, or any right to participate in or benefit from any collateral or security held by Indemnitee, until the Loan has been repaid in full, all obligations of Borrower under the Loan Documents have been fully satisfied, and all obligations of the Indemnitors under this Agreement and all other Loan Documents have been fully satisfied. If, notwithstanding the foregoing, any amount is paid to any Indemnitor in violation of this Section 6.4, such amount shall be held in trust for the benefit of Indemnitee and shall be promptly paid to Indemnitee for application to the Loan and any other obligations under the Loan Documents in such order as Indemnitee may determine.
ARTICLE VII — ADDITIONAL PROVISIONS
Section 7.1 — Notices
All notices, requests, demands, consents, approvals, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) sent by nationally recognized overnight courier (with tracking capability), or (c) sent by certified mail, return receipt requested, postage prepaid, in each case addressed as follows (or to such other address as any Party may designate by written notice to the other Parties in accordance with this Section 7.1):
If to IHDC:
Ironhaven Data Centers LLC 1900 Dominion Tower, Suite 400 Tysons Corner, Virginia 22182
Attention: General Counsel
Telephone: (703) 555-4100
Email: legalnotices@ironhavendc.com
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 2001 M Street NW, Suite 1200 Washington, DC 20036
Attention: Angela Fontaine
Telephone: (202) 555-7200
Email: afontaine@calderwoodharkness.com
If to Cobalt Ridge:
Cobalt Ridge Capital Partners, LP 300 Park Avenue South, 14th Floor New York, New York 10010
Attention: Marcus J. Kellner
Telephone: (212) 555-3800
Email: mkellner@cobaltridgecapital.com
If to Indemnitee:
Pinnacle Federal Savings Bank 800 Constitution Avenue NW, Suite 550 Washington, DC 20001
Attention: Thomas R. Whitfield, SVP, Technology & Data Center Lending
Telephone: (202) 555-9400
Email: twhitfield@pinnaclefederal.com
With a copy (which shall not constitute notice) to:
Hargrove, Liddell & Pace LLP 1750 K Street NW, Suite 900 Washington, DC 20006
Attention: Jonathan Breckinridge
Telephone: (202) 555-6100
Email: jbreckinridge@hlplaw.com
Notices shall be deemed received: (i) if delivered personally, upon delivery; (ii) if sent by overnight courier, on the next business day after deposit with such courier; and (iii) if sent by certified mail, on the third (3rd) business day after deposit in the United States mail. Rejection or refusal to accept, or inability to deliver because of a changed address of which no notice was given, shall be deemed receipt of the notice sent.
Section 7.2 — Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflicts-of-law principles that would require or permit the application of the laws of any other jurisdiction. To the extent that any Environmental Law of the United States is applicable to any matter arising under this Agreement, such federal law shall be applied in addition to, and not in lieu of, applicable Virginia law.
Section 7.3 — Jurisdiction and Venue
Each Indemnitor hereby irrevocably and unconditionally: (a) submits to the exclusive jurisdiction of the courts of the Commonwealth of Virginia and the United States District Court for the Eastern District of Virginia for any action, suit, or proceeding arising out of or relating to this Agreement; (b) agrees that venue for any such action, suit, or proceeding shall lie in the Circuit Court of Loudoun County, Virginia, or the Alexandria Division of the United States District Court for the Eastern District of Virginia, as Indemnitee may elect; (c) waives any objection to the laying of venue in any such court; and (d) waives any defense of forum non conveniens or any similar doctrine. Each Indemnitor agrees that service of process may be made in any manner permitted by the laws of the Commonwealth of Virginia or the Federal Rules of Civil Procedure. Nothing in this Section 7.3 shall affect the right of Indemnitee to serve process in any other manner permitted by law or to bring any action or proceeding in any other court of competent jurisdiction.
Section 7.4 — Waiver of Jury Trial
EACH INDEMNITOR AND INDEMNITEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE BY EACH PARTY, AND EACH PARTY ACKNOWLEDGES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY OTHER PARTY OR BY ANY OTHER PERSON TO INDUCE THIS WAIVER. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS OF THIS AGREEMENT.
Section 7.5 — Amendments
This Agreement may not be amended, modified, supplemented, restated, or waived except by a written instrument signed by all Parties hereto. No waiver of any provision of this Agreement, and no consent to any departure by any Indemnitor from any provision of this Agreement, shall be effective unless in writing and signed by Indemnitee, and any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No course of dealing between the Parties, no delay or omission on the part of Indemnitee in exercising any right or remedy hereunder, and no single or partial exercise of any right or remedy shall operate as a waiver of any right or remedy or preclude the further exercise thereof.
Section 7.6 — Successors and Assigns
This Agreement shall be binding upon the Indemnitors and their respective heirs, executors, administrators, legal representatives, successors, and assigns, and shall inure to the benefit of Indemnitee and its successors, assigns, and participants. Indemnitee may, without the consent of, and without notice to, the Indemnitors, sell, assign, transfer, or grant participations in the Loan, the Loan Documents, and this Agreement, in whole or in part, to any person or entity, and each such assignee, transferee, or participant shall be entitled to the benefits of this Agreement to the same extent as if such assignee, transferee, or participant were originally named as the Indemnitee hereunder. No Indemnitor may assign, delegate, or transfer its obligations under this Agreement without the prior written consent of Indemnitee, and any purported assignment, delegation, or transfer in violation of this Section 7.6 shall be null, void, and of no force or effect.
Section 7.7 — Severability
If any provision of this Agreement, or the application of any provision to any Party or circumstance, is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. To the extent permitted by applicable law, each Party hereby waives any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect. If any provision is held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to amend such provision so as to give effect to the original intent of the Parties to the greatest extent consistent with applicable law.
Section 7.8 — Entire Agreement
This Agreement, together with the other Loan Documents, constitutes the entire agreement among the Parties with respect to environmental indemnification relating to the Property and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, among the Parties with respect to such subject matter. No Party has relied on any representation, warranty, or agreement of any other Party with respect to the subject matter of this Agreement that is not expressly set forth herein or in the other Loan Documents.
Section 7.9 — No Third-Party Beneficiaries
Except for the Indemnitee Parties, who are intended third-party beneficiaries of Section 4.1 and Section 4.2 of this Agreement with the right to enforce the provisions thereof, no person or entity that is not a Party to this Agreement shall have any rights, benefits, claims, or remedies under this Agreement, and nothing in this Agreement shall be construed to create any duty, obligation, or liability on the part of any Party to any person or entity that is not a Party hereto or an Indemnitee Party.
Section 7.10 — Counterparts; Electronic Signatures
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, portable document format (PDF), or other electronic means (including, without limitation, Brightwater Software or other commercially recognized electronic signature platforms), and signatures so transmitted shall be deemed original signatures for all purposes and shall be binding upon the Parties. Each Party agrees that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility under the Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001 et seq.), the Uniform Electronic Transactions Act (as adopted in Virginia at Va. Code § 59.1-479 et seq.), and any applicable state law.
Section 7.11 — Attorneys' Fees
In the event of any action, suit, or proceeding to enforce, interpret, or construe any provision of this Agreement, including, without limitation, any action to recover Environmental Liabilities or to compel performance of any obligation hereunder, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, expert and consultant fees, court costs, and all other costs and expenses incurred in connection with such action, suit, or proceeding, including, without limitation, all such costs and expenses incurred on appeal and in any post-judgment proceedings. This provision shall survive any judgment or final order entered in any such action, suit, or proceeding and shall not be merged into any such judgment or order.
Section 7.12 — Relationship to Other Loan Documents
This Agreement is in addition to, and not in substitution for, any environmental representations, warranties, covenants, indemnities, or other obligations contained in the Loan Agreement, the Deed of Trust, or any other Loan Document. The rights and remedies of Indemnitee under this Agreement are cumulative and are in addition to, and not in lieu of, any rights and remedies available to Indemnitee under the other Loan Documents, at law, or in equity. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any other Loan Document with respect to environmental matters, the provisions of this Agreement shall control and govern to the extent of such conflict or inconsistency.
Section 7.13 — Recitals
The recitals set forth above are incorporated herein by reference and made a part of this Agreement for all purposes. Each Indemnitor acknowledges and agrees that the recitals are true, accurate, and complete.
IN WITNESS WHEREOF, the Parties have executed this Environmental Indemnity Agreement as of the date first written above.
INDEMNITORS:
IRONHAVEN DATA CENTERS LLC, a Virginia limited liability company
By: ________
Name: Priya S. Ramaswamy
Title: Chief Executive Officer
Date: ________
COBALT RIDGE CAPITAL PARTNERS, LP, a Delaware limited partnership
By: Cobalt Ridge GP LLC, a Delaware limited liability company, its General Partner
By: ________
Name: Marcus J. Kellner
Title: Managing Partner
Date: ________
INDEMNITEE:
PINNACLE FEDERAL SAVINGS BANK, a federally chartered savings bank
By: ________
Name: Thomas R.

ENVIRONMENTAL INDEMNITY AGREEMENT

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