loanagreementvantage-apl






    LOAN AGREEMENT     THIS LOAN AGREEMENT (this “Loan Agreement”) is made and entered into this  26th day of October, 2022, by and between APLD – RATTLESNAKE DEN I, LLC, a Delaware  limited liability company (the “Borrower”), VANTAGE BANK TEXAS, a Texas state bank  (the “Bank”), and APPLIED BLOCKCHAIN, INC., a Nevada corporation (the “Guarantor”).     WHEREAS, Borrower has requested that the Bank extend to Borrower the loan and  credit facilities described herein; and     WHEREAS, the Bank is prepared to extend such loan and credit facilities, in accordance  with and subject to the terms and conditions set forth herein.     NOW, THEREFORE, Borrower and Bank agree as follows:    ARTICLE I  Definitions     1.01 Defined Terms.  The following capitalized terms shall have the following  meanings:    (a) “Advance” means a disbursement by Bank of any of the proceeds of the  Loan (hereinafter defined).    (b) “Affidavit of Borrower” means a sworn affidavit of Borrower (and such  other parties as Bank may require) to the effect that all statements, invoices, bills and  other expenses incident to the acquisition of the Land (hereinafter defined) and the  construction of the Improvements (hereinafter defined), incurred to a specified date,  whether or not specified in the Approved Budget (hereinafter defined), have been paid in  full, except for: (i) amounts retained pursuant to a Construction Contract (hereinafter  defined); and (ii) items to be paid from the proceeds of an Advance then being requested,  or paid in another manner satisfactory to Bank.    (c) “Affidavit of Commencement” means an affidavit to be executed by  Borrower and Contractor (hereinafter defined) confirming the date construction of the  Improvements commenced.    (d) “Affidavit of Completion” means an affidavit to be executed by  Borrower confirming the date on which the construction of the Improvements was  substantially completed.    (e) “Affiliate” means any individual or entity directly or indirectly  controlling, controlled by or under common control with, another individual or entity.    (f) “Applicable Bankruptcy Law” means the United States Bankruptcy  Code or any other present or future insolvency, bankruptcy, liquidation, conservatorship,  





 






  2  reorganization or moratorium Governmental Requirement (hereinafter defined) or other  similar Governmental Requirements.    (g) “Application for Advance” means a written application by Borrower  (and such other parties as Bank may require) to Bank, on a form approved by Bank,  specifying by name, current address, and amount all parties to whom Borrower is  obligated for labor, materials or services supplied for the construction of the  Improvements and all other expenses incident to the Loan, the Land and the construction  of the Improvements, requesting an Advance for the payment of such items, containing, if  requested by Bank, an Affidavit of Borrower, accompanied by such documents as Bank  may reasonably request.  Each Advance shall be made in accordance with the Advance  schedule mutually agreed upon by Borrower and Bank in the Approved Budget, and shall  show the percentage of completion of construction and shall set forth in trade breakdown  form and in such detail as may be required by Bank the amounts expended and/or costs  incurred for work.    (h) “Approved Budget” means a budget and cost itemization prepared by  Borrower, and approved in writing by Bank, specifying the cost by item of: (i) all labor,  materials and services necessary for the construction of the Improvements in accordance  with the Plans (hereinafter defined) and all Governmental Requirements; and (ii) all other  expenses anticipated by Borrower incident to the Loan and the construction of the  Improvements.  The Approved Budget is set forth in Exhibit “B”, which is attached  hereto and incorporated herein for all purposes.    (i) “Architect” means collectively, the architects, engineers, other  professional consultants and planners, and firms, if any, with whom Borrower contracts  for the providing of planning, design, architectural, engineering or other similar services  relating to the construction of the Improvements.    (j) “Architect’s Agreement” means a written agreement, in a form  acceptable to the Bank, that is duly executed by Architect in favor of Bank: (i) consenting  to the assignment and encumbrance hereunder of the Plans and of Borrower’s rights in  the Architectural Contract (hereinafter defined), if any; (ii) agreeing to continue  performance under the Architectural Contract, if any, at the request and for the benefit of  Bank or its designee; (iii) certifying that the Plans comply with all Governmental  Requirements; (iv) subordinating all Liens (hereinafter defined) and claims of Architect  against the Land, the Improvements, Borrower and the Plans, to those of Bank under the  Loan Documents (hereinafter defined); and (v) addressing such other matters as Bank  may require.    (k) “Architectural Contract” means a written agreement between Borrower  and Architect for architectural services pertaining to construction of the Improvements.    (l) “Capital Stock” means: (i) in the case of a corporation, capital stock; (ii)  in the case of an association or business entity, any and all shares, interests,  participations, rights or other equivalents (however designated) of capital stock; (iii) in  





 






  3  the case of a partnership, partnership interests (whether general or limited); (iv) in the  case of a limited liability company, membership interests; and (v) any other interest or  participation that confers on a Person (hereinafter defined) the right to receive a share of  the profits and losses of, or distributions of assets of the entity in question.    (m) “Closing Date” means the date of this Loan Agreement.    (n) “Code” means the Internal Revenue Code of 1986, as amended, and the  regulations promulgated and rulings issued thereunder.    (o) “Collateral” means any and all real and personal property pledged as  security for the Loan.    (p) “Commitment Letter” means any loan commitment letter issued by the  Bank to Borrower pertaining to the Loan.    (q) “Completion Date” means April 13, 2023.    (r) “Construction Advance” means any Advances made for payment of  labor, materials, or services supplied for the construction of the Improvements.    (s) “Construction Contract” means each agreement made by Borrower for  construction of all or any part of the Improvements.    (t) “Contractor” means each Person with whom Borrower makes a  Construction Contract.    (u) “Contractor’s Agreement” means a written agreement duly executed by  Contractor in favor of Bank: (i) consenting to the assignment and encumbrance hereunder  of the Construction Contract; (ii) agreeing to continue performance under the  Construction Contract at the request and for the benefit of Bank or its designee; (iii)  subordinating all liens, security interests and claims of Contractor against the Land or  Borrower, to those of Bank under the Loan Documents; and (iv) addressing such other  matters as Bank may require.    (v) “Contractual Obligation” means, as to any Person, any provision of any  security issued by such Person or of any agreement, instrument or undertaking to which  such Person is a party or by which it or any of its property is bound.    (w) “Deeds of Trust” means, collectively, all mortgages, deeds of trust,  leasehold mortgages, leasehold deeds of trust or other security documents or instruments  of a similar nature which create a Lien or security interest from time to time in, to or  covering the Real Property Collateral (hereinafter defined), including any modifications,  amendments, supplements, ratifications and restatements thereto.    





 






  4  (x) “Default” means any event or circumstance that constitutes an Event of  Default (hereinafter defined) or, that with, the lapse of time, would (if not cured or  otherwise remedied during such time) constitute an Event of Default.    (y) “Distributions” means any dividend or other distribution (whether in cash  or other tangible property) with respect to any Capital Stock or other equity interest of  any entity or any payment (whether in cash or other tangible property) to any Person or  Persons other than the Borrower, including any redemption, retirement, acquisition,  cancellation or termination of any such Capital Stock or other equity interest or of any  option, warrant or other right to acquire any such Capital Stock or other equity interest.    (z) “Environmental Laws” means any and all Federal, state, local and  foreign Governmental Requirements, judgments, permits, concessions, grants, franchises,  licenses, agreements or governmental restrictions relating to pollution and the protection  of health and the environment or the release of any materials into the environment,  including those related to hazardous substances or wastes, air emissions and discharges to  waste or public systems.    (aa) “Environmental Liability” means any claim, demand, obligation, cause  of action, accusation, allegation, order, violation, damage, injury, judgment, injunction,  penalty or fine, cost of enforcement, cost of cleanup, removal, encapsulation or other  remedial action, or any other cost or expense whatsoever, including, without limitation,  reasonable attorneys’ fees and reimbursements, resulting from the violation of any  Environmental Law or the existence of Hazardous Material (hereinafter defined) in  violation of any Environmental Law.    (bb) “Event of Default” has the meaning set forth in Article X hereof.    (cc) “Financial Statements” means the financial statements and other  financial information concerning the Borrower, the Guarantor and any other Obligated  Party (hereinafter defined), as required under Section 9.01 hereof.    (dd) “Governmental Authority” means the United States, the state, the  county, the city or any other political subdivision in which the Real Property Collateral is  located, and any court or political subdivision, agency or instrumentality having  jurisdiction over Borrower or any Obligated Party.    (ee) “Governmental Requirements” means all constitutions, statutes, laws,  ordinances, rules, regulations, orders, writs, injunctions or decrees of any Governmental  Authority applicable to Borrower or any Obligated Party.    (ff) “Guarantor” means any Person who executes a Guaranty in favor of  Bank guarantying the repayment of the Loan.    





 






  5  (gg) “Guaranty” means a guaranty of the Loan executed by a Guarantor, in  form and substance satisfactory to Bank, as the same may be amended, modified,  restated, ratified, supplemented or replaced from time to time.    (hh) “Hazardous Materials” means all explosive or radioactive substances or  wastes and all hazardous or toxic substances, wastes or other pollutants, including  petroleum or petroleum distillates, asbestos or asbestos-containing materials,  polychlorinated biphenyls, radon gas, infectious or medical wastes and all other  substances or wastes of any nature regulated pursuant to any Environmental Law.    (ii) “Improvements” means any and all buildings, covered garages, parking  areas, structures and other improvements of any kind or nature, and any and all additions,  alterations, betterments or appurtenances thereto, now or at any time hereafter situated,  placed or constructed upon the Real Property Collateral or any part thereof.    (jj) “Indebtedness” means, as to any Person at a particular time, without  duplication: (i) all obligations of such Person for borrowed money and all obligations of  such Person evidenced by bonds, debentures, notes, loan agreements or other similar  instruments; and (ii) all direct or contingent obligations of such Person arising under any  leases or other agreements to which a person is a party.    (kk) “Inspecting Person” means person or persons, whether one or more,  designated by Bank from time to time, who may inspect the Improvements from time to  time for the benefit of Bank.    (ll) “IRS” means the United States Internal Revenue Service.    (mm) “Land” means the real estate described in Exhibit “A”, which is attached  hereto and incorporated herein for all purposes.    (nn) “Lien” means any mortgage, pledge, hypothecation, assignment, deposit  arrangement, encumbrance, lien (statutory or other), charge or preference, priority or  other security interest or preferential arrangement of any kind or nature whatsoever  (including any conditional sale or other title retention agreement, and any financing lease  having substantially the same economic effect as any of the foregoing).    (oo) “Loan” means the loan or loans described in Section 2.01 hereof.    (pp) “Loan Documents” means this Loan Agreement, the Note, all Guaranties,  all Deeds of Trust, all Security Agreements and such other documents, instruments and  agreements, evidencing, securing or pertaining to the Loan, as will from time to time be  executed and delivered to Bank by Borrower, any Guarantor, any Obligated Party, or any  other party pursuant to this Loan Agreement, and any future amendments, restatements,  modifications, ratifications, confirmations, extensions or supplements hereto or thereto.    





 






  6  (qq) “Margin Stock” has the meaning given thereto in Section 221.3(v) of  Regulation U, promulgated by the Board of Governors of the Federal Reserve System,  F.R.S. Reg. U, 12 C.F.R. part 221 (January 1, 1983 revision), as amended from time to  time.    (rr) “Material Adverse Change” means: (i) a material adverse change in, or a  Material Adverse Effect (hereinafter defined) upon, the operations, business, prospects,  properties, liabilities (actual or contingent), condition (financial or otherwise) of  Borrower, a Guarantor and other Obligated Party taken as a whole; (ii) a material  impairment of the ability of any Obligated Party to perform its obligations under any  Loan Document to which it is a party; or (iii) a Material Adverse Effect upon the legality,  validity, binding effect or enforceability against Borrower, the Guarantor or any other  Obligated Party of any Loan Document to which it is a party or the rights of the Bank  under any Loan Document.    (ss) “Material Adverse Effect” means, with respect to any event, act,  condition or occurrence of whatever nature (including any adverse determination in any  litigation, arbitration, or governmental investigation or proceeding), whether singly or in  conjunction with any other event or events, act or acts, condition or conditions,  occurrence or occurrences, whether or not related, a material adverse change in, or a  material adverse effect upon, any of: (i) the financial condition, operations, business or  properties of the Borrower; (ii) the financial condition, operations or properties of the  Guarantor; (iii) the rights and remedies of the Bank under the Loan Documents, or the  ability of the Borrower or Guarantor to perform their respective obligations under the  Loan Documents to which it is a party, as applicable; or (iv) the legality, validity or  enforceability of any Loan Document.    (tt) “Monetary Default” means a Person’s failure, in whole or in part, to pay  any amounts due on any indebtedness, after expiration of any applicable cure period.    (uu) “Non-Monetary Default” means any Event of Default hereunder or any  default or event of default under any other Loan Document other than a Monetary  Default.    (vv) “Note” means the promissory note evidencing the Loan and any renewals,  extensions, modifications, re-financings, consolidations and substitutions thereof.    (ww) “Obligated Party” means any party other than Borrower who secures,  guarantees and/or is otherwise obligated to pay all or any portion of the Obligations.    (xx) “Obligations” mean all present and future Indebtedness, obligations and  liabilities of Borrower to Bank arising pursuant to the Loan, this Loan Agreement or any  of the other Loan Documents or otherwise, and any renewals, extensions, increases, or  amendments thereof, or any part thereof, regardless of whether such Indebtedness,  obligations and liabilities are direct, indirect, fixed, contingent, liquidated, unliquidated,  joint, several or joint and several and including interest and fees that accrue after the  





 






  7  commencement by or against Borrower of any proceeding under any Applicable  Bankruptcy Law naming Borrower as the debtor in such proceeding, regardless of  whether such interest and fees are allowed claims in such proceeding.    (yy) “Organizational Documents” mean as to: (i) a corporation: (A) copies of  its articles or certificates of incorporation, including all amendments thereto, and a  certificate of good standing; and (B) the bylaws or regulations of such entity certified by  the secretary, manager or other appropriate representative of such entity; (ii) a  partnership, a true copy of its partnership agreement, including all amendments thereto,  certified by an officer of such partnership or by its general partner, together with (in the  case of any limited partnership) copies of the certificates of limited partnerships and a  certificate of good standing; and (iii) a limited liability company, a copy of its operating  agreement, including all amendments thereto, certified by an officer of such limited  liability company or by its managing member, and a copy of its articles or certificate of  formation and a certificate of good standing.    (zz) “Permitted Change”  means a modification to the Plans, the Construction  Contract or both which: (i) is not structural in nature; (ii) does not decrease the rentable  area of the Improvements, or otherwise diminish the revenue generation capabilities of  the Improvements; (iii) modifies the aggregate cost of constructing the Improvements (or  causes a reallocation of costs within the Approved Budget) by less than Ten Thousand  and No/100ths Dollars ($10,000.00) in the singular and less than Fifty Thousand and  No/100ths Dollars ($50,000.00) in the aggregate with all prior Permitted Changes; (iv)  does not cause the Improvements to be in violation of any Requirements of Law or  restrictive covenants applicable to the Land; (v) is disclosed in, and described by, written  notice to Bank (including a copy of any change order) no later than five (5) days  following its implementation; (vi) has been approved by, to the extent applicable, any  tenant as to all or a portion of the Improvements from whom consent is required; (vii) has  been approved by, to the extend applicable, all sureties under payment or performance  bonds, if any, covering the Construction Contract; and (viii) has been approved by any  Governmental Authority from whom consent is required.    (aaa) “Permitted Exceptions” means the matters approved by the Bank as  permitted exceptions of title with respect to the Real Property Collateral and set forth as  exceptions to title in the Title Insurance Policy approved by Bank.    (bbb) “Permitted Liens” means the following: (i) Liens for taxes, assessments  or other governmental charges or levies not yet due or which are being contested in good  faith by appropriate action; (ii) Liens in favor of property owners’ associations securing  payment of assessments or other charges, provided such Liens are subordinate to the Lien  in favor of the Bank; (iii) the Permitted Exceptions and other easements, rights-of-way,  restrictions, plats, declarations of covenants, conditions and restrictions, condominium  declarations or similar encumbrances on the use of real property which do not interfere  with the ordinary conduct of business of the Borrower or materially detract from the  value or use of the Real Property Collateral; and (iv) any inchoate Liens of mechanics,  





 






  8  materialmen or material suppliers incurred in the ordinary course of business securing  debt not yet due and payable.    (ccc) “Person” means any individual, firm, corporation, association,  partnership, joint venture, trust, entity, unincorporated organization or Governmental  Authority.    (ddd) “Personal Property Collateral” means the furniture, fixtures, equipment,  machinery, goods, inventory, work in process, accounts receivable, general intangibles,  contract rights and other personal property described in the Security Agreements securing  this Loan.    (eee) “Plans” means the final working drawings and specifications for the  construction of the Improvements prepared by Architect and as modified or  supplemented from time to time and approved by Bank, Borrower and, to the extent  necessary, by each applicable Governmental Authority.    (fff) “Real Property Collateral” means all of the real property covered by the  Deeds of Trust which secure the Loan.     (ggg) “Requirement of Law” means as to any entity, the Certificate of  Formation or Articles of Incorporation, By-Laws, Partnership Agreement or Company  Agreement, or other organizational or governing documents of such entity, and any law,  treaty, rule or regulation, or determination, including without limitation all  Environmental Laws, rules, regulations and determinations, of an arbitrator or a court or  other Governmental Authority, in each case applicable to or binding upon such Person or  any of its property or to which such Person or any of its properly is subject.    (hhh) “Security Agreements” means, collectively, any Security Agreement  executed by Borrower or other Obligated Party, in form and substance satisfactory to  Bank, creating a Lien in favor of Bank against the Personal Property Collateral, as each  may be amended, modified, ratified, supplemented, restated or replaced from time to  time.    (iii) “Subordinated Debt” means any Indebtedness owing by Borrower which  has been subordinated by written agreement to all Indebtedness now or hereafter owing  by Borrower to Bank, such agreement to be in form and substance satisfactory to Bank.    (jjj) “Survey” means a survey of the Real Property Collateral consisting of a  plat and field notes, prepared by a Registered Professional Land Surveyor, acceptable to  Bank, which survey will: (i) reflect the actual dimensions of the Real Property Collateral,  the gross and net area of the said property, the location of any easements, rights-of-way,  setback lines, encroachments or overlaps thereof or thereover and the outside boundary  lines of any Improvements located thereon; (ii) identify by recording reference any  easements, setback lines or other matters referred to in the title commitment related  thereto; (iii) include the surveyor’s registration number and seal and the date of the  





 






  9  Survey; (iv) include a surveyor’s certificate acceptable to Bank; (v) reflect that the Real  Property Collateral has access to and from a publicly dedicated street, roadway or  highway; (vi) be sufficient to cause the title company to delete the “survey exception” in  Schedule B of the Title Insurance Policy; and (vii) reflect the area within the Real  Property Collateral that has been designated by the Federal Emergency Management  Agency, the Army Corps of Engineers or any other governmental agency or body as  being subject to special or increased flood hazards.    (kkk) “Taxes” means all present or future taxes, levies, imposts, duties,  deductions, withholdings, assessments, fees or other charges imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable  thereto.    (lll) “Title Insurance Policy” means the loan policy or policies of title  insurance issued to the Bank insuring the validity and priority of the Bank’s Deed of  Trust Liens against the Real Property Collateral and containing such endorsements as  may be required by the Bank.    (mmm)“UCC” means the Uniform Commercial Code of the State of Texas or of  any other state having jurisdiction with respect to any of the rights and remedies of Bank  under the Loan Documents, as amended.    1.02 Headings.  The headings, captions and arrangements used in any of the Loan  Documents are, unless specified otherwise, for convenience only and will not be deemed to limit,  amplify or modify the terms of the Loan Documents nor to affect the meaning thereof.    1.03 Number and Gender of Words.  Whenever herein the singular number is used, the  same will include the plural where appropriate, and words of any gender will include each other  gender where appropriate.    ARTICLE II  Description of Loan    2.01 Loan.  Subject to the terms and conditions set forth in this Agreement and in other  Loan Documents, the Bank agrees to make Borrower a Fifteen Million and No/100ths Dollars  ($15,000,000.00) loan (the “Loan”).  The Loan shall bear interest and be repayable as provided  in the Note evidencing the Loan.    2.02 Purposes.  The proceeds to the Loan shall be used for the following purposes: (a)  for the construction of a 136,600 square feet data center, consisting of 16 separate buildings, on  the Land; and (b) to provide funds for closing costs and fees related to the Loan.    2.03 Advances.  Advances on the Loan shall be made in accordance with the  provisions of Article IV hereof.    





 






  10  2.04 Security.  The Loan shall be secured by one or more Deeds of Trust, Security  Agreements, Assignments and other documents described in this Loan Agreement and in the  Note covering the Collateral.    ARTICLE III  Conditions Precedent    3.01 Conditions to Closing and Funding of the Loan.  The closing and funding of this  Loan is subject to the satisfaction of the following conditions precedent on or before the Closing  Date.    (a) Note.  Borrower shall have executed and delivered to Bank the Note  payable to the Bank evidencing the Loan.     (b) Loan Documents.  This Loan Agreement and all other Loan Documents  shall have been duly executed and delivered by Borrower, the Guarantor or any other  Obligated Party, as applicable, to the Bank.    (c) Legal Opinion of Counsel.  If required, the Bank shall have received an  executed written legal opinion of counsel to each of Borrower and Guarantor, which  opinions shall be reasonably satisfactory to the Bank, addressed to the Bank and dated as  of the Closing Date.    (d) Authorizations.  The Bank shall have received a copy of the respective  resolutions (in form and substance reasonably satisfactory to the Bank) of the board of  directors, members, managers, partners or other governing body of Borrower the  Guarantor and any other Obligated Party, each resolution authorizing: (i) the execution,  delivery and performance, of this Agreement and the other Loan Documents to which  Borrower, the Guarantor, or other Obligated Party is a party, as the case may be; (ii) the  consummation of the transactions contemplated hereby; and (iii) the borrowings herein  provided for, all certified by the secretary, manager or other appropriate representative of  the Borrower, the Guarantor or other Obligated Party as of the Closing Date.  Such  certificate shall state that the resolutions set forth therein have not been amended,  modified, revoked or rescinded as of the Closing Date.    (e) Incumbency Certificates.  The Bank shall have received a certificate of the  secretary, manager or other appropriate representative of each of Borrower, the Guarantor  or other Obligated Party, dated as of the Closing Date, as to the incumbency and  signatures of the officer(s) (or other person(s) in a comparable position) of each entity  executing the Loan Documents.    (f) Organizational Documents.  The Bank shall have received, with respect to  any entity which is the Borrower, a Guarantor or other Obligated Party (and any general  partner or managing member thereof) copies of the Organizational Documents for such  entity.    





 






  11  (g) No Proceeding or Litigation; No Injunctive Relief.  No action, suit or  proceeding before any arbitrator or any Governmental Authority shall have been  commenced, no investigation by any Governmental Authority shall have been  commenced and no action, suit, proceeding or investigation by any Governmental  Authority shall have been threatened in writing, against the Borrower or any of the  officers, directors or managers of the Borrower, seeking to restrain, prevent or change the  transactions contemplated by this Agreement in whole or in part or questioning the  validity or legality of the transactions contemplated by this Agreement or seeking  damages in connection with such transactions.    (h) Consents, Licenses, Approvals, Etc.  The Bank shall have received copies  (certified to be such by the Borrower or other appropriate party) of all consents, licenses  and approvals required in accordance with applicable law in connection with the  execution, delivery, performance, validity and enforceability of the Loan Documents, if  the failure to obtain such consents, licenses or approvals, individually or in the aggregate,  could reasonably be expected to have a Material Adverse Effect, and approvals obtained  shall be in full force and effect and be satisfactory in form and substance to the Bank.    (i) Compliance with Law.  Neither the Borrower nor any Guarantor shall be  in violation of any applicable statute, regulation or ordinance, including without  limitation statutes, regulations or ordinances relating to environmental matters, of any  governmental entity, or any agency thereof, in any respect that could reasonably be  expected to have a Material Adverse Effect.    (j) No Default.  No Event of Default shall have occurred and be continuing  hereunder.    (k) No Material Adverse Change.  There shall have been no Material Adverse  Change in the financial condition of Borrower or any Guarantor.    (l) Fees.  The Borrower shall have paid the Bank all loan commitment fees,  expenses and other sums due the Bank in connection with this Loan, as provided in the  Commitment Letter, this Loan Agreement and/or the Loan Documents, including all  attorneys’ fees incurred by the Bank in connection with this Loan.    (m) Security Interests.  The Bank shall have received satisfactory evidence that  the Bank has a valid and perfected first priority security interest against all of the  Personal Property Collateral, subject only to the Permitted Liens.    (n) Required Approvals.   The Bank shall have approved all of the following  items pertaining to the completion of the Improvements: (i) the Plans for the  Improvements; (ii) the Approved Budget; (iii) the Contractor selected by Borrower to  construct the Improvements; (iv) all terms and provisions of the Construction Contract;  and; (v) all outstanding third-party lease and sales contracts pertaining to the sale and/or  leasing of the Improvements.    





 






  12  (o) Title Insurance Policy.  The  Bank shall have received a fully paid Title  Insurance Policy or unconditional commitment for the issuance of a Title Insurance  Policy in the amount of the Loan and in form and content acceptable to the Bank,  insuring that the Lien created by the Deed of Trust against the Real Property Collateral  constitutes a valid first lien against Borrower’s interest in said real property, free and  clear of all defects and encumbrances except the Permitted Exceptions, and containing  such endorsements as the Bank may reasonably request.    (p) Curative Work.  The Bank shall have received evidence that all curative  title work required by the Bank with respect to the Real Property Collateral has been  completed, and that Borrower has obtained all subordinations, waivers, assignments and  third-party agreements required by the Bank.    (q) Survey.  If required, the Bank shall have received the Survey in a form  acceptable to the Bank.    (r) Insurance.  The Bank shall have received binders of insurance evidencing  that any insurance required by the Bank is in force, naming the Bank as additional  insured, mortgagee or loss payee, as its interests appear, and otherwise on terms and  conditions reasonably satisfactory to the Bank.    (s) Environmental Conditions.  The Bank shall have received evidence  satisfactory to the Bank which confirms that the Real Property Collateral is free and clear  of any Hazardous Materials.    (t) Equity.  The Bank shall have received evidence reasonably satisfactory to  the Bank that the Borrower is in possession of any cash equity Borrower is required to  maintain or expend in connection with this Loan.    (u) Pre-leasing and Pre-sales Requirements.  If required, Borrower shall have  satisfied any pre-sales or pre-leasing requirements imposed by the Bank as a condition to  closing this Loan.    (v)   Appraisal.  The Bank shall have obtained an appraisal of the fair market  value of the Collateral securing the Loan, which is acceptable to the Bank in all respects.   Borrower will reimburse the Bank for the cost of the appraisal.    (w) Other Closing Conditions. Borrower shall have satisfied all other  closing conditions imposed by the Bank in connection with the Loan, including all  conditions set forth in the Commitment Letter.    ARTICLE IV  Advances    4.01 Advances.  The proceeds of the Loan shall be advanced as follows: (a) Two  Hundred Thirty Thousand Six Hundred Ninety-Three and 37/100ths Dollars ($230,693.37) shall be  





 






  13  advanced for closing costs associated with this Loan; and (b) the remaining Fourteen Million Seven  Hundred Sixty-Nine Thousand Three Hundred Six and 63/100ths Dollars ($14,769,306.63) shall be  reserved and advanced for the completion of the construction of the Improvements, in accordance  with Sections 4.02 and 4.03 and Exhibit “B” hereof.  No portion of the Loan may be advanced after  the Completion Date.    4.02 Construction Advances.  The funding of any Advances for the construction of  Improvements on the Land shall be subject to the following conditions and procedures:    (a) Requests for Advances.  Each Application for Advance shall be submitted  by Borrower to Bank a reasonable time (but not less than five (5) business days) prior to the  requested date of the Advance.   Except as Bank may otherwise determine from time to  time, each Advance will be made at Bank’s principal office.  Each request for an Advance  shall be in a form and substance acceptable to the Bank, and shall contain such information  as Bank may request.    (b) Advances.  Advances will be made in sixteen (16) installments as each of the  sixteen (16) buildings is completed and as Borrower receives a certificate of occupancy for  the operation of each such building as a data center.  Each installment shall be in an amount  of not more than Nine Hundred Thirty-Seven Thousand Five Hundred and No/100ths  Dollars ($937,500.00).  Advances shall be made only for costs and expenses specified in the  Approved Budget, and then only for work performed, services rendered or materials  furnished.  No Advance shall be made for advance or unearned payments.  Advances for  payment of costs of construction of the Improvements shall be made only after completion  of each individual building included in the Improvements, as set forth above, and shall not  exceed Nine Hundred Thirty-Seven Thousand Five Hundred and No/100ths Dollars  ($937,500.00), which is based on the aggregate of: (i) the costs of labor, materials and  services incorporated into the Improvements in a manner acceptable to Bank; plus (ii) if  approved by Bank, the purchase price of all uninstalled materials to be utilized in the  construction of the Improvements stored on the Land, or elsewhere with the written consent  of and in a manner acceptable to Bank; less (iii) retainage, if any; and less (iv) all prior  Advances for payment of costs of labor, materials and services for the construction of the  Improvements.  Without limitation of other conditions applicable thereto, the final Advance,  including all retainage, will not be made until Bank has received the following: (x) evidence  that an Affidavit of Completion was recorded in the real property records of the county in  which the Land is located, more than thirty (30) days prior to the date on which the final  Advance will be made; (xi) a completion certificate from the Inspecting Person, if any; (xii)  evidence that all Governmental Requirements have been satisfied, including but not limited  to, delivery to Bank of certificates of occupancy permitting the Improvements to be legally  occupied; (xii) evidence that no mechanic’s or materialmen’s liens or other encumbrances  have been filed and remain in effect against the Land; (xiv) final lien releases or waivers by  Architect, Contractor and all subcontractors, materialmen and other parties who have  supplied labor, materials or services for the construction of the Improvements, or who  otherwise might be entitled to claim a contractual, statutory or constitutional lien against the  Land; and (xv) if required by the Bank, an “as-built” Survey showing that the Improvements  as completed do not encroach on any boundary line, easement, building setback line or other  





 






  14  restricted area.  To the extent that the Improvements are divided into phases or identifiable  segments, references in the preceding sentence to a final Advance shall include each final  Advance with respect to such a phase or segment.    (c) Conditions to each Advance.  As conditions precedent to each Advance,  including the first Advance, in addition to all other requirements herein, Borrower must  satisfy the following requirements and, if required by Bank, deliver to Bank evidence of  such satisfaction:    (i) Each advance request shall be submitted to the Bank on an AIA  Document G702 payment application form or other form acceptable to Bank.  The  Borrower and the Contractor must all certify to the accuracy of the information  contained in each advance request.    (ii) Each advance request shall be accompanied by such additional  information as the Bank may reasonably request.    (iii) There shall then exist no Event of Default nor shall there have  occurred any event which with the giving of notice or the lapse of time, or both,  could become an Event of Default.    (iv) The representations and warranties made in this Loan Agreement  shall be true and correct on and as of the date of each Advance, and the request for  an Advance shall constitute the representation and warranty by Borrower that such  representations and warranties are true and correct at such time.    (v) The Title Insurance Policy shall be endorsed and extended, if  required by Bank, to cover each Advance, with no additional title exceptions  objectionable to Bank.    (vi) Borrower shall procure and deliver to Bank, if required by Bank,  releases or waivers of mechanic’s liens and receipted bills showing payment of all  amounts due to all parties who have furnished materials or services or performed  labor of any kind in connection with the construction of any of the Improvements.    (vii) An inspection by and acceptable report from the Inspecting Person  which approves any Advance for payment.  Borrower will pay or reimburse the  Bank for all amounts charged by the Inspecting Person to conduct these inspections.    (viii) All amounts requested must be in line with the Approved Budget.   Borrower shall be responsible for paying all cost overruns pertaining to the  construction of the Improvements.      (d) Approved Budget Allocations.  The Bank shall not be obligated to make an  Advance of an item allocated in the Approved Budget to the extent that the amount of the  Advance of such item when added to the amount of prior Advances of such item would  





 






  15  exceed the amount allocated to such item in the Approved Budget.  Bank reserves the right  to make Advances which are allocated to any of the items in the Approved Budget for such  other items therein or in such different proportions as Bank may, in its sole discretion, deem  necessary or advisable.  Borrower may not reallocate items of cost in or change the  Approved Budget in excess of Five Thousand and No/100ths Dollars ($5,000.00) in any  given instance or Fifty Thousand and No/100ths Dollars ($50,000.00) in the aggregate,  without the prior written consent of Bank.      (e) No Waiver.  No Advance shall constitute a waiver of any condition  precedent to the obligation of Bank to make any further Advance or preclude Bank from  thereafter declaring the failure of Borrower to satisfy such condition precedent to be a  Default.      (f) Conditions Precedent for the Benefit of Bank.  All conditions precedent to  the obligation of Bank to make any Advance are imposed hereby solely for the benefit of  Bank, and no other party may require satisfaction of any such condition precedent or be  entitled to assume that Bank will refuse to make any Advance in the absence of strict  compliance with such conditions precedent.  Any requirement of this Agreement may be  waived by Bank, in whole or in part, at any time.  Any requirement herein of submission of  evidence of the existence or nonexistence of a fact means that the fact shall exist or not exist,  as the case may be, and without waiving any condition or any obligation of Borrower, Bank  may at all times independently establish to its satisfaction such existence or nonexistence.      (g) Subordination.  Bank shall not be obligated to make, and Borrower shall not  be entitled to, any Advance until such time as Bank shall have received, to the extent  requested by Bank, subordination agreements from Architect, Contractor and all other  Persons furnishing labor, materials or services for the design or construction of the  Improvements, subordinating to the lien of the Deed of Trust and the rights of Bank  thereunder any lien, claim or charge they may have against Borrower or the Land.     4.03 Additional Conditions to Advances.  In addition to the requirements in Section 4.02,  each Advance is subject to the satisfaction of the following conditions precedent:    (a) Representations and Warranties.  The representations and warranties made  by the Borrower in this Loan Agreement and any representations and warranties made by  the Borrower which are contained in any certificate, document or financial or other  statement furnished at any time under or in connection herewith or therewith, shall be true  and correct in all material respects as of the date of any Advance.    (b) No Default.  No Default shall have occurred and be continuing as of the date  of any Advance.    (c) Compliance with Covenants.  Borrower shall be in full compliance with all  covenants and agreements imposed upon Borrower hereunder or under any of the other  Loan Documents.    





 






  16  (d) Advance Requests.  All requests for Advances must be in writing and  submitted upon such form as the Bank may reasonably request.  Any Advance request shall  be accompanied by such other reports, borrowing base certificates and other information as  the Bank may require.    4.04 Revolving Line of Credit.  This Loan is not a revolving line of credit, meaning that  Borrower may not re-borrow the proceeds of this Loan.  No portion of the Loan may be advanced  after the Completion Date.    4.05 Advance Account.  Borrower shall inform Bank which account it maintains with  Bank in which Advances made to Borrower hereunder shall be deposited.  In the Event of Default,  Bank shall have the right to utilize all funds in such account to cure such Event of Default or  complete the construction of the Improvements, at Bank’s election.    ARTICLE V  Representations and Warranties    In order to induce the Bank to enter into this Loan Agreement and to make the Loan to  Borrower, Borrower hereby represents and warrants to the Bank that on the Closing Date and as  of the date of any Advance hereunder:    5.01 Existence; Compliance with Law.  Borrower: (a) is duly organized or formed, as  appropriate, validly existing and in good standing under the laws of the jurisdiction of its  incorporation, formation or organization, as appropriate; (b) has the requisite corporate,  partnership or limited liability company power and authority to conduct the business in which it  is currently engaged; (c) is qualified as a foreign entity to do business under the laws of any  jurisdiction, where the failure to so qualify could reasonably be expected to have a Material  Adverse Effect; and (d) is in compliance with all Governmental Requirements except to the  extent that the failure to comply therewith could not reasonably be expected to, in the aggregate,  have a Material Adverse Effect.    5.02 Power; Authorization; Enforceable Obligations.  Borrower has the corporate,  partnership or limited liability company (as applicable) power and authority to make, deliver and  perform the Loan Documents to which it is a party and (in the case of the Borrower) to borrow  hereunder, and has taken all corporate or other action necessary to be taken by it to authorize: (a)  the borrowings on the terms and conditions of this Agreement; and (b) the execution, delivery  and performance of the Loan Documents to which it is a party.  No consent, waiver or  authorization of, or filing with any entity (including without limitation any Governmental  Authority) is required to be made or obtained by the Borrower in connection with the borrowings  hereunder.  This Loan Agreement has been, and each Loan Document will be, duly executed and  delivered on behalf of the Borrower, and this Loan Agreement constitutes, and each Loan  Document when executed and delivered hereunder will constitute, a legal, valid and binding  obligation of the Borrower, enforceable against the Borrower, in accordance with its terms,  subject to the effect, if any, of bankruptcy, insolvency, reorganization, arrangement or other  similar laws relating to or affecting the rights of creditors generally and the limitations, if any,  imposed by the general principles of equity and public policy.  





 






  17  5.03 No Legal Bar.  The execution, delivery and performance of this Loan Agreement  and the other Loan Documents, the borrowings hereunder and the use of the proceeds of the  Loan: (a) do not violate any Requirement of Law or Contractual Obligation of the Borrower; (b)  do not contravene the articles of incorporation, charter, bylaws, partnership agreement, articles or  certificate of formation, operating agreement or other organizational documents of the Borrower;  and (c) do not result in, or require, the creation or imposition of any Lien on any of its properties  or revenues except the Permitted Liens and the Collateral.    5.04 No Material Litigation.  No litigation, investigation or proceeding of or before any  arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower,  threatened in writing by or against the Borrower or against any of its properties or revenues: (a)  with respect to this Loan Agreement or any of the other Loan Documents or any of the  transactions contemplated hereby or thereby; or (b) which could reasonably be expected to have  a Material Adverse Effect.    5.05 Regulation U.  Borrower is not engaged, nor will it engage, principally or as one  of its important activities, in the business of extending credit for the purpose of “purchasing” or  “carrying” any “margin stock” within the respective meanings of each of the quoted terms under  Regulation U of the Board of Governors of the Federal Reserve System as now and from time to  time hereafter in effect.  No part of the proceeds of any Loans will be used for “purchasing” or  “carrying” “margin stock” as so defined or for any purpose which violates, or which would be  inconsistent with, the provisions of the Regulations of such Board of Governors.  If requested by  the Bank, Borrower will furnish to the Bank a statement in conformity with the requirements of  Federal Reserve Form U-l referred to in said Regulation U to the foregoing effect.    5.06 Disclosure.  No representations or warranties made by the Borrower in this  Agreement or in any other document furnished from time to time in connection herewith (as such  other documents may be supplemented from time to time) contains or will contain any untrue  statement of a material fact or omits or will omit to state any material fact necessary to make the  statements herein or therein, in light of the circumstances under which they were made, not  misleading.    5.07 Environmental Representations.  To the knowledge of Borrower, and except as  otherwise disclosed by the Bank in writing:    (a) the Real Property Collateral is currently free of all Hazardous Material  which would violate any applicable Environmental Laws;    (b) neither Borrower nor any other Obligated Party has ever caused or  permitted any Hazardous Material to be placed, held, stored, located or disposed of on,  under or at the Real Property Collateral, or any part thereof, in violation of any  Environmental Law;    (c) there are no underground storage tanks on any portion of the Real Property  Collateral;    





 






  18  (d) the Borrower has been issued and will maintain all required federal, state  and local permits, licenses, certificates and approvals required under Environmental  Laws;    (e) the Borrower has not received notice of, or has actual knowledge of any  violations of any Environmental Law;    (f) there has been no spill, release, threatened release, discharge or disposal of  Hazardous Materials as to the Real Property Collateral;    (g) The foregoing representations and warranties shall survive the payment in  full or the performance of all Obligations.    5.08 Other Agreements.  The Borrower is not in default in the performance,  observance, or fulfillment of any of the obligations, covenants or conditions contained in any  agreement or instrument material to the business of the Borrower, taken as a whole, which would  result in, or could reasonably be expected to result in, a Material Adverse Effect.    5.09 No Defaults on Outstanding Judgments or Orders.  The Borrower has satisfied all  unstayed and un-appealed judgments, and Borrower is not in default with respect to any  judgment, or any material writ, injunction, decree, rule or regulation of any court, arbitrator or  federal, state, municipal or other governmental authority, commission, board, bureau, agency or  instrumentality, domestic or foreign applicable to the Borrower, except for defaults which could  not reasonably be expected to result in a Material Adverse Effect.    5.10 Ownership and Liens.  The Borrower or other Obligated Party has good and  indefeasible title to all of the Personal Property Collateral.  The security interest created by the  Security Agreement constitutes a valid and perfected first and prior lien against the Personal  Property Collateral, subject to no other liens, security interests or charges, except for the  Permitted Exceptions and Permitted Liens.    5.11 Operation of Business.  The Borrower possesses all licenses, permits, franchises,  patents, copyrights, trademarks and trade names, or rights thereto, required to conduct its  business substantially as now conducted and as presently proposed to be conducted and  Borrower is not in violation of any valid rights of others with respect to any of the foregoing  where the failure to possess such licenses, permits, franchises, patents, copyrights, trademarks,  trade names or rights thereto or the violation of the valid rights of others with respect thereto, in  any one case or in the aggregate, that could reasonably be expected to have a Material Adverse  Effect.    5.12 Taxes.  All income tax liabilities or income tax obligations of the Borrower (other  than those being contested in good faith by appropriate proceedings) have been paid or have  been accrued by or reserved for by the Borrower.  All ad valorem taxes assessed against the  Collateral have been paid current.    





 






  19  5.13 Land.  The Borrower or other Obligated Party possesses a good and indefeasible  leasehold interest in the Real Property Collateral, subject only to the Permitted Exceptions, and  true, correct and complete copies of each of the Permitted Exceptions have been delivered to  Bank.  Each of the Permitted Exceptions is in full force and effect.  The Real Property Collateral  abuts and has direct access to a public right-of-way.  When constructed, no building or other  Improvements will encroach upon any building line, setback line, side yard line or any easement,  except as expressly permitted by applicable Governmental Authorities and approved in writing  by the Bank or except as allowed by the Permitted Exceptions.  The Real Property Collateral is  taxed separately without regard to any other property and for all purposes the Real Property  Collateral may be mortgaged, conveyed, and otherwise dealt with as an independent parcel.    5.14 Approval Parties.  If new Improvements are to be constructed on the Real  Property Collateral, Borrower has obtained all permits and approvals required to build the  Improvements.    5.15 Condemnation; Casualty.  There has been: (a) no notice of taking by eminent  domain or condemnation of any portion of the Real Property Collateral; (b) no notice of taking  by eminent domain or condemnation or relocation of any roadways abutting the Real Property  Collateral, to the best of the Borrower’s knowledge, is contemplated by any Governmental  Authority.  No part of the Improvements has been damaged or injured as a result of any fire,  explosion, accident, flood or other casualty which is not either fully restored or in the process of  being restored in accordance with the terms of this Agreement.    5.16 Improvements.  The existing Improvements, if any, and all Improvements that  will be built with the proceeds of the Loan: (a) do not and will not violate any Governmental  Requirements (including subdivision, zoning, building, environmental protection and wetlands  protection laws); and (b) do not and will not violate any building permits, or violate, in any  material respect, any restrictions of record, or any agreement affecting the Improvements or any  part thereof.  No portion of the Improvements will be located in an area having special flood  hazards according to the flood hazard boundary maps used by the United States Department of  Housing and Urban Development in connection with the National Flood Insurance Program.    5.17 Utilities.  The Improvements have, or when constructed, will have adequate water  and electrical supply, storm and sanitary sewerage facilities, other required public utilities, fire  and police protection and means of appropriate access between the Improvements and public  roads.  Upon completion of the construction of the Improvements, the Borrower shall take all  commercially reasonable actions to cause the constructed Improvements to comply with all  Governmental Requirements.    5.18 Material Agreements.  Borrower is not a party to any agreement or instrument or  subject to any charter or other corporate restriction the performance of or compliance with which  could reasonably be expected to have a Material Adverse Effect.  Borrower is not in default in  the performance, observance or fulfillment of any of the obligations, covenants or conditions  which default has not been cured within any applicable cure periods, contained in: (a) any  agreement to which it is a party, which default could reasonably be expected to have a Material  





 






  20  Adverse Effect; or (b) with respect to Borrower, any agreement or instrument evidencing or  governing Indebtedness.     5.19 Financial Information.  All financial information heretofore provided to the Bank  concerning Borrower, the Guarantor and any other Obligated Party is true, accurate and  complete.  Since the date of any financial statement no Material Adverse Change has occurred  with respect to Borrower, the Guarantor or to any other Obligated Party.    5.20 Commencement of Construction.  Prior to the recordation of the Deed of Trust, no  work of any kind (including the destruction or removal of any existing improvements, site work,  clearing, grubbing, draining or fencing of the Land) shall have commenced or shall have been  performed on the Land, no equipment or material shall have been delivered to or upon the Land  for any purpose whatsoever, and no contract (or memorandum or affidavit thereof) for the  supplying of labor, materials or services for the construction of the Improvements shall have  been executed or recorded in any mechanic’s lien affidavit or other public records.    ARTICLE VI  Affirmative Covenants    Until the Loan and all Obligations owing by Borrower to the Bank are fully paid and  satisfied, Borrower agrees and covenants that it will:    6.01 Insurance.    (a) Borrower shall at all times during the construction of the Improvements  maintain builders’ risk insurance covering the Improvements.  As and when the  Improvements are completed, Borrower will purchase and maintain an all-risks casualty  insurance insuring the Improvements against fire and other casualties.  Borrower will also  maintain flood insurance, if the Land is located in whole or in part in a flood zone, and  windstorm insurance, if windstorm coverage is not included in the coverages provided  under Borrower’s all risk casualty insurance policy.     (b) Borrower will maintain with financially sound and reputable insurance  companies, insurance with respect to its properties and business against loss or damage of  the kinds customarily insured against by persons engaged in the same or similar business,  including but not limited to, commercial property insurance, all risks property damage,  commercial general liability, worker’s compensation, business interruption and other  insurance, of such types and in such amounts as are customarily carried under similar  circumstances by similar businesses providing for not less than thirty (30) days’ prior  notice to Bank of termination, lapse or cancellation of such insurance.  Each insurance  policy will name Bank as “additional insured” and “loss payee”, as applicable.  Borrower  will, and will cause each Obligated Party to, deliver to Bank upon Bank’s request,  originals or certified copies of insurance policies, each in form and substance satisfactory  to Bank.    (c) Not later than fifteen (15) days before the expiration date of any such  





 






  21  insurance policy, Borrower shall deliver to Bank a binder of the insurer evidencing the  renewal or replacement of that policy, with premiums fully paid for at least one (1) year  together with (in the case of a renewal) a copy of all endorsements to the policy and not  previously delivered to Bank, or (in the case of a replacement) an original or certified  copy of the replacement policy.  Borrower shall pay all premiums on policies required  hereunder as they become due and payable and promptly deliver to Bank evidence  satisfactory to Bank of the timely payment thereof.  Borrower shall at all times comply  with the requirements of these insurance policies.    (d) If Borrower fails to obtain and/or maintain the insurance required  hereunder, or under the Loan Documents: (i) BORROWER WILL INDEMNIFY AND  HOLD BANK HARMLESS FROM AND AGAINST ANY DAMAGE, LOSS,  LIABILITY OR EXPENSE RESULTING FROM ALL RISKS THAT WOULD HAVE  BEEN COVERED BY THE REQUIRED INSURANCE IF SO MAINTAINED; (ii) if  any loss occurs, Bank shall nevertheless be entitled to the benefit of all insurance  covering the loss and held by or for Borrower, to the same extent as if it had been made  payable to Bank; and (iii) Bank has the right (but not the obligation) to obtain such  insurance at Borrower’s expense, which may at Bank’s election be coverage for Bank’s  interest only, the costs and expenses so expended by Bank shall be due and payable by  Borrower on demand and secured by the Loan Documents.  If any property, title or other  insurer becomes insolvent or subject to any bankruptcy, receivership or similar  proceeding or if, in Bank’s reasonable opinion the financial responsibility of such insurer  is or becomes inadequate, Borrower shall promptly obtain and deliver to Bank a like  policy (or, if and to the extent permitted by Bank, a certified copy of the policy issued by  another insurer acceptable to the Bank).    (e) Bank has the right (but not the obligation) to make proof of loss for, settle  and adjust any claim under, and receive the proceeds of, all insurance for loss of or  damage to the Land, and the costs and expenses (including reasonable attorneys’ fees),  appraisal costs and consultant fees incurred by Bank in the adjustment and collection of  insurance proceeds shall be due and payable by Borrower on demand and secured by the  Loan Documents.  Bank shall not be, under any circumstances, liable or responsible for  failure to collect or exercise diligence in the collection of any of such proceeds or for the  obtaining, maintaining or adequacy of any insurance or for failure to see to the proper  application of any amount paid over to Borrower.    (f) Borrower shall take all necessary action, with Bank’s consent, to collect  any insurance proceeds lawfully or equitably payable to Borrower or Bank in connection  with any loss of or damage to the Collateral, all of which shall be paid directly to Bank.   Except as otherwise expressly provided herein or in the Loan Documents, any insurance  proceeds collected as the result of any casualty shall, at Bank’s option and in its sole  discretion, be: (i) released to Borrower; (ii) applied to repair or restore any damage to the  Collateral; or (iii) applied against the balance then owing on the Loan.    (g) Borrower shall complete the construction of the Improvements by the  Completion Date.  





 






  22  6.02 Notices.  Promptly notify the Bank:    (a) of the occurrence of any Default;    (b) of any matter that has resulted or could reasonably be expected to result in  a Material Adverse Change, including: (i) breach or non-performance of, or any default  under, a contractual obligation of Borrower, a Guarantor or any other Obligated Party;  (ii) any dispute, litigation, investigation, proceeding or suspension between Borrower, a  Guarantor or any other Obligated Party and any Governmental Authority; or (iii) the  commencement of, or any material development in, any litigation or proceeding affecting  Borrower, a Guarantor or any other Obligated Party; and     (c) of any material change in accounting policies or financial reporting  practices by Borrower or the Guarantor.    Each notice pursuant to this Section 6.02 will describe any and all provisions of this Loan  Agreement and any other Loan Document that have been breached or affected thereby.    6.03 Accounts and Records.  Maintain a complete set of books and records for the  Borrower.    6.04 Preservation of Existence, Etc.    (a) Preserve, renew and maintain in full force and effect its legal existence  and good standing under the Governmental Requirements of the jurisdiction of its  organization and each state in which it is qualified to do business; and    (b)  take all reasonable action to maintain all rights, privileges, permits,  licenses and franchises necessary or desirable in the normal conduct of its business,  except to the extent that failure to do so could not reasonably be expected to have a  Material Adverse Change.    6.05 Maintenance of Properties and the Improvements.    (a) Maintain, preserve and protect the Improvements and all of its material  properties and equipment necessary in the operation of its business in good working order  and condition, ordinary wear and tear excepted;    (b) make all necessary repairs thereto and renewals and replacements thereof  except where the failure to do so could not reasonably be expected to have a Material  Adverse Change;    (c) use the standard of care typical in the industry in the operation and  maintenance of its facilities;    





 






  23  (d) preserve or renew all of its registered patents, trademarks, trade names and  service marks (including licenses thereof), except to the extent that failure to do so could  not reasonably be expected to have a Material Adverse Change; and    (e) faithfully comply with Borrower’s obligation under all agreements  pertaining to the operation, maintenance and management of the Improvements.    6.06 Right of Inspection.  Permit Bank to: (a) visit its properties and installations;  (b) examine, audit and make and take away copies or reproductions of its books and records; and  (c) discuss with its respective directors, partners, principal officers and independent auditors its  respective businesses, assets, liabilities, financial positions, results of operations and business  prospects, at all reasonable times, subject to the rights of any tenants leasing space in the  Improvements.  Borrower shall be responsible for the reasonable costs and expenses associated  with such inspection.  In addition, Borrower shall permit Bank and its designees from time to  time to make such inspections and audits, and to obtain such confirmations or other information  as Bank deems necessary or desirable and shall reimburse Bank on demand for all costs and  expenses incurred by Bank in connection with such inspections and audits, provided that if an  Event of Default has not occurred or is continuing, Bank shall not conduct such visits,  inspections and audits more frequently than twice per calendar year.    6.07 Right to Additional Information.  Furnish Bank, within fifteen (15) days after the  Bank shall request it, such additional information and statements, lists of assets and liabilities,  tax returns, and other reports with respect to Borrower’s, a Guarantor’s financial condition,  business operations and compliance with the terms of the Loan Documents as Bank may  reasonably request from time to time.    6.08 Compliance with Governmental Requirements.  Conduct its business in an orderly  and efficient manner consistent with good business practices, and perform and comply with all  Governmental Requirements applicable to its businesses, operations and property (including  without limitation, all applicable Environmental Laws).    6.09 Taxes.  Timely pay and discharge when due all of its Indebtedness and  obligations, including without limitation, all assessments, taxes, governmental charges, levies,  Liens and claims, of every kind and nature, imposed upon Borrower, the Guarantor or any of  their properties, income or profits, prior to the earlier of the date on which such obligation would  become delinquent or the date penalties would attach. Borrower will also promptly provide the  Bank with evidence that all ad valorem taxes and assessments against the Real Property  Collateral and the Personal Property Collateral have been paid in full prior to the due date for  paying such ad valorem taxes.  Notwithstanding the above, Borrower will not be required to pay  and discharge any such assessment, tax, government charge, levy, Lien or claim so long as:  (a) the legality of the same will be contested in good faith by appropriate judicial, administrative  or other legal proceedings instituted with reasonable promptness and diligently conducted; and  (b) Borrower has established on their books adequate reserves with respect to such contested  assessment, tax, government charge, levy, Lien or claim.    





 






  24  6.10 Notice of Indebtedness.  Promptly inform the Bank of the creation, incurrence or  assumption by Borrower of any actual or contingent liabilities not permitted under this Loan  Agreement or any other Loan Document.    6.11 Additional Documents.  Execute and deliver, or cause to be executed and  delivered, to Bank, from time to time as required by Bank, any and all other agreements,  instruments and documents which Bank may reasonably request in order to provide the rights  and remedies to Bank granted or provided for by the Loan Documents or give effect to the  transactions contemplated under this Loan Agreement and the other Loan Documents.    6.12 Updated Appraisals.  Promptly reimburse the Bank for the cost of any updated  appraisals obtained by the Bank from time to time to confirm the fair market value of the  Collateral securing the Loan except Borrower shall not be obligated to reimburse the Bank for  more than one updated appraisal in any one calendar year.    6.13 Pledge of Additional Collateral.  If this Agreement or the other Loan Documents  establish a loan to value requirement for this Loan, and if Borrower fails to comply with that loan  to value requirement, Borrower will, upon demand, pledge additional collateral on the Loan  which is satisfactory to the Bank in the Bank’s sole discretion to satisfy this loan to value  requirement or Borrower shall prepay such part of the principal then owing on the Loan to  comply with this loan to value requirement.    6.14 Primary Banking Relationship.  Borrower will maintain all operating accounts  related to the Improvements and the Land with Bank.  To the extent Borrower has operating  accounts related to the Improvements and the Land with another financial institution, upon  execution of this Loan Agreement, Borrower will cause such accounts to be closed and shall  move the funds from such accounts to operating accounts established with Bank.    ARTICLE VII  Negative Covenants    Until the Loan and all Obligations owing by Borrower to the Bank are fully paid and  satisfied, Borrower will not, without first obtaining the prior written consent of the Bank:    7.01 Nature of Business.  Make any material change in the nature of its business as  carried on as of the Closing Date.    7.02 Liquidations, Mergers, Consolidations.  Become a party to a merger or  consolidation, or purchase or otherwise acquire all or a substantial part of the assets of any  Person or any shares or other evidence of beneficial ownership of any Person, or dissolve,  liquidate or cease operations.    7.03 Sale of Assets.  Sell, lease, assign, transfer or otherwise dispose of any of its  assets, other than: (i) in the ordinary course of business; or (ii) as otherwise approved in the Loan  Documents.    





 






  25  7.04 Sale and Leaseback.  Enter into any arrangement with any Person pursuant to  which it leases from such Person real or personal property that has been or is to be sold or  transferred, directly or indirectly, by it to such Person.    7.05 Liens.  Create, incur or permit to exist any Lien or encumbrance on any of its  assets, other than: (a) Liens and security interests securing Indebtedness owing to Bank;  (b) Liens for taxes, assessments or similar charges that are: (i) not yet due; or (ii) being contested  in good faith by appropriate proceedings and for which Borrower has established adequate  reserves; and (c) Liens and security interests existing as of the Closing Date which have been  disclosed to and approved by Bank in writing; and (d) any Permitted Liens.    7.06 Indebtedness.  Create, incur, permit or assume any Indebtedness, other than:  (a) Indebtedness to Bank; (b) Indebtedness outstanding on the Closing Date which has been  disclosed to and approved by Bank in writing; and (c) other Indebtedness in an aggregate amount  not to exceed Two Hundred Thousand and No/100ths Dollars ($200,000.00).    7.07 Transfer of Ownership.  Permit the sale, pledge or other transfer of any of the  ownership interests in Borrower.    7.08 Change in Management.  Permit a change in the senior management of Borrower.    7.09 Restriction and Encumbrances.  Impose any restrictive covenants, encumbrances,  easements or restrictions or file any subdivision plats affecting the Real Property Collateral,  without the prior written consent of the Bank.    7.10 Loans and Investments.  Make any advance, loan, extension of credit, or capital  contribution to or investment in, or purchase any stock, bonds, notes, debentures, or other  securities of, any Person involving amounts in excess of Two Hundred Thousand and No/100ths  Dollars ($200,000.00).    7.11 Transactions with Affiliates.  Enter into any transaction, including, without  limitation, the purchase, sale or exchange of property or the rendering of any service, with any  Affiliate of Borrower, except in the ordinary course of and pursuant to the reasonable  requirements of Borrower's business and upon fair and reasonable terms no less favorable to  Borrower than would be obtained in a comparable arm’s-length transaction with a Person not an  Affiliate of Borrower.    7.12 Dividends.  If an Event of Default has occurred and is continuing, declare or pay  any dividends on any shares of its Capital Stock, make any other Distributions with respect to  any payment on account of the purchase, redemption, or other acquisition or retirement of any  shares of its Capital Stock.    7.13 Environmental Responsibilities.    (a) cause or permit any Hazardous Materials to be placed, held, located,  escaped, leaked, spilled, discharged, emitted, released or disposed of on, from, under or at  





 






  26  the Real Property Collateral and Improvements in violation of any Environmental Law;  and    (b) clean up or remove any Hazardous Materials placed, held, located,  escaped, leaked, spilled, discharged, emitted, released or disposed of on, from, under or at  the Real Property Collateral and Improvements, except in accordance with  Environmental Laws.    7.14 Margin Stock.  Use any portion of the proceeds of the Loans: (a) in connection  with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any  corporation with a view towards obtaining control of such other corporation, unless such tender  offer or other acquisition is to be made on a negotiated basis with the approval of the board of  directors of the Person to be acquired; (b) directly or indirectly, for the purpose, whether  immediate, incidental or ultimate, of purchasing or carrying any “margin stock” within the  meaning of Regulation T, U or X issued by the Board of Governors of the Federal Reserve  System, as at any time amended; or (c) for any purpose in violation of any applicable law or  regulation.    7.15 Hosting Agreements.  The Borrower shall not enter into any hosting agreements  with respect to the Collateral except to the extent such hosting agreements comply with the  following terms and conditions:    (a) Approval.  Except for hosting agreements that are already executed or  approved, the Borrower shall not enter into any hosting agreement with respect to the  Improvements unless: (i) such hosting agreement does not materially differ from the form  of hosting agreement previously approved by Bank; or (ii) if such hosting agreement does  materially differ, then such hosting agreement is satisfactory to or deemed satisfactory to  the Bank prior to execution.  The Borrower’s standard form of hosting agreement, and  any revisions thereto, must have the prior written approval of the Bank.  Any hosting  agreement shall be “deemed” satisfactory to the Bank to the extent:     (i) such hosting agreement is in the form previously approved by the  Bank, with no material deviations except as approved in writing by the Bank in its  reasonable discretion;    (ii) such hosting agreement is entered into in the ordinary course of  business with a bona fide third-party customer, and the Borrower, acting in good  faith and exercising due diligence, has determined that the customer is financially  capable of performing its obligations under the hosting agreement;    (iii) a copy of any hosting agreement with monthly rent in excess of  Twenty-Five Thousand and No/100ths Dollars ($25,000.00) is received by the  Bank within fifteen (15) days after execution;    (iv) such hosting agreement reflects an arm’s-length transaction; and    





 






  27     (v) such hosting agreement is expressly subordinate to the Bank’s lien.    The Borrower shall provide to the Bank a correct and complete copy of each  hosting agreement, including any exhibits, and each guarantee thereof (if any), prior to  execution unless the hosting agreement in question is satisfactory to the Bank under the  preceding requirements.  The Borrower shall, throughout the term of this Loan  Agreement, pay all reasonable costs incurred by the Bank in connection with the Bank’s  review and approval of hosting agreements and each guarantee thereof (if any), including  reasonable attorneys’ fees and costs.    (b) Effect of Approval.  No approval of any hosting agreement by the Bank  shall be for any purpose other than to protect the Bank’s security, and to preserve the  Bank’s rights under the Loan Documents.  No approval by the Bank shall result in a  waiver of any default of the Borrower.  In no event shall any approval by the Bank of a  hosting agreement be a representation of any kind, with regard to the hosting agreement  or its adequacy or enforceability, or the financial capacity of any customer or guarantor.    ARTICLE VIII  Covenants Regarding Construction    8.01 Compliance with Governmental Requirements.  All Governmental Requirements  shall be timely complied with and evidence thereof delivered to Bank.  Borrower assumes full  responsibility for the compliance of the Plans for the development and completion of the  Improvements with all Governmental Requirements and with sound building and engineering  practices, and notwithstanding any approvals by Bank, Bank shall have no obligation or  responsibility for the Plans or any other matter incident to the construction of the Improvements.    8.02 Construction Contracts.  Borrower shall become party to no contract, including any  Construction Contract, for the performance of any work on the Land or for the supplying of any  labor, materials or services for the construction of the Improvements except upon such terms and  with such parties as shall be approved in writing by Bank.  Each Construction Contract shall provide  that all liens, claims and charges of Contractor are subordinate to the Deed of Trust and the rights of  Bank thereunder and shall require all subcontracts to contain a provision subordinating the  subcontractors’ liens, claims and charges to the Deed of Trust and the rights of Bank thereunder.    8.03 Utilities; Access.  Borrower shall take all steps necessary to provide that: (a) all  utility services necessary for the construction of the Improvements and the operation thereof for  their intended purposes are available for connection to the Improvements, including water supply,  storm and sanitary sewer facilities, and gas, electric and telephone facilities; and (b) either all roads  necessary for access to and from the Land have been completed or the necessary rights of way  therefor have been acquired by the appropriate Governmental Authority or dedicated to the public  use and accepted by such Governmental Authority, and all necessary steps have been taken by  Borrower and such Governmental Authority to assure the complete construction and installation  thereof prior to the Completion Date.    8.04 Construction of the Improvements.  The construction of the Improvements shall be  





 






  28  prosecuted with diligence and continuity in a good and workmanlike manner and in accordance  with sound building and engineering practices, all applicable Governmental Requirements and the  Plans, and shall be completed by the Completion Date.  Once construction of the Improvements  commences, Borrower shall not permit cessation of work for a period in excess of 30 days, except  cessation for not more than 60 days in the aggregate caused by acts of God or other causes not  within the control of Borrower, without the prior written consent of Bank.    8.05 Correction of Defects.  Borrower shall correct or cause to be corrected: (a) any  defect in the Improvements; (b) any material departure in the construction of the Improvements  from the Plans, Governmental Requirements or the requirements of any lease, if applicable; or (c)  any encroachment by any part of the Improvements or any structure located on the Land on any  building line, easement, property line, or restricted area.    8.06 Storage of Materials.  Borrower shall cause all materials supplied for, or intended to  be utilized in, the construction of the Improvements, but not affixed to or incorporated into the  Improvements or the Land, to be stored on the Land or at such other location as may be approved by  Bank in writing, with adequate safeguards, as required by Bank, to prevent and insure against loss,  theft, damage or commingling with other materials or projects.  With respect to materials not stored  on the Land, Borrower shall execute and deliver such financing statements and security agreements  as Bank shall require to evidence and perfect Bank’s security interest therein.     8.07 Inspection of the Land.  Borrower shall permit Bank, Inspecting Person, any  Governmental Authority and their agents and representatives at all reasonable times to enter upon  the Land and any location where materials intended to be utilized in the construction of the  Improvements are stored.    8.08 Notices by Governmental Authority; Property Damage.  Borrower shall timely  comply with and promptly furnish to Bank true and complete copies of any notice or claim by any  Governmental Authority pertaining to the Land.  Borrower shall promptly notify Bank of any fire or  other Land damage or any notice of taking or eminent domain action or proceeding affecting the  Land.  Borrower shall maintain the insurance policies required hereunder in full force and effect  until the Obligation is fully paid and performed.    8.09 Application of Advances.  Borrower shall disburse each Advance for payment of  costs and expenses specified in the Approved Budget and for no other purpose.    8.10 Cost Overages.  If from time to time Bank reasonably determines that the  unadvanced portion of the Loan will be insufficient for payment in full of: (a) costs of labor,  materials and services required for the construction of the Improvements; (b) other costs and  expenses specified in the Approved Budget; and (c) other costs and expenses required to be paid in  connection with the construction of the Improvements in accordance with the Plans, any  Governmental Requirements, then Borrower shall, on request of the Bank, deposit an amount equal  to any projected shortfall into a construction account to be maintained at the Bank by Borrower.   Bank may advance all or a portion of these funds prior to approving and funding any further  Advance on the Loan.    





 






  29   8.11 Direct Disbursement and Application by Bank.  Bank shall have the right, but not  the obligation, to disburse and apply directly the proceeds of any Advance to the satisfaction of any  of Borrower’s obligations hereunder.  Any Advance by Bank for such purpose shall be part of the  Loan and shall be secured by the Loan Documents.  Borrower hereby authorizes Bank to hold, use,  disburse and apply the Loan and any funds on deposit in its accounts with Bank for payment of  costs of construction of the Improvements, expenses incident to the Loan and the payment or  performance of any obligation of Borrower hereunder.  Borrower hereby assigns and pledges the  proceeds of the Loan and the amounts now or hereafter on deposit in in its accounts with Bank and  grants therein a security interest to Bank for such purposes.  Bank may advance and incur such  expenses as Bank reasonably deems necessary to preserve the Land and any other security for the  Loan, and such expenses shall be secured by the Loan Documents and payable to Bank upon  demand.    8.12 No Liability of Bank.  Bank shall have no liability, obligation or responsibility with  respect to the construction of the Improvements except to advance the Loan pursuant to this  Agreement.  Bank shall not be obligated to inspect the Land or the construction of the  Improvements, nor be liable for: (a) the adequacy or content of any Construction Contract; (b) the  performance or default of Borrower, Architect, Inspecting Person, Contractor or any other party; (c)  any failure to construct, complete, protect or insure the Improvements; (d) the payment of costs of  labor, materials or services supplied for the construction of the Improvements; or (e) the  performance of any obligation of Borrower.  Nothing, including without limitation any Advance or  acceptance of any document or instrument, shall be construed as a representation or warranty,  express or implied, to any party by Bank.  Further, Bank shall not have, and has not assumed, and  by its execution and acceptance of this Agreement hereby expressly disclaims any liability or  responsibility for the payment or performance of any indebtedness or obligation of Borrower or of  any Guarantor, and no term or condition hereof, or of any of the Loan Documents, shall be  construed otherwise.  Borrower hereby expressly acknowledges that no term or condition hereof, or  of any of the Loan Documents, shall be construed so as to deem the relationship between Borrower,  any Guarantor, and Bank to be other than that of borrower, guarantor and Bank, and Borrower shall  at all times represent that the relationship between Borrower, any Guarantor and Bank is solely that  of borrower, guarantor and Bank.  Borrower hereby indemnifies and agrees to hold Bank harmless  from and against any liability, loss, cost or expense incurred or suffered by Bank as a result of any  assertion or claim of any liability or responsibility of Bank for the payment or performance of any  indebtedness or obligation of Borrower or of any Guarantor.    8.13 Assignment of Construction Contracts.  As additional security for the payment of the  Loan, Borrower hereby transfers and assigns to Bank all of Borrower’s rights and interest, but not  its obligations, in, under and to each Construction Contract upon the following terms and  conditions:       (a) Borrower represents and warrants that the copy of each Construction  Contract it will furnish to Bank is a true and complete copy thereof, including all amendments  thereto, if any, and that Borrower's interest therein is not subject to any claim, setoff or  encumbrance.    





 






  30     (b) Neither this assignment nor any action by Bank shall constitute an  assumption by Bank of any obligations under any Construction Contract, and Borrower shall  continue to be liable for all obligations of Borrower thereunder, Borrower hereby agreeing to  perform all of its obligations under each Construction Contract.  Borrower agrees to  indemnify and hold Bank harmless against and from any loss, cost, liability or expense  (including but not limited to, reasonable attorneys’ fees) resulting from any failure of  Borrower to so perform.       (c) Bank shall have the right at any time (but shall have no obligation) to take in  its name or in the name of Borrower such action as Bank may at any time determine to be  necessary or advisable to cure any default under any Construction Contract or to protect the  rights of Borrower or Bank thereunder.  Bank shall incur no liability if any action so taken by  it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify  and hold Bank harmless against and from any loss, cost, liability or expense (including but not  limited to reasonable attorneys’ fees) incurred in connection with any such action, except to  the extent caused by the gross negligence or willful misconduct of the Bank.       (d) Borrower hereby irrevocably constitutes and appoints Bank as Borrower’s  attorney-in-fact, in Borrower’s or Bank’s name, to enforce all rights of Borrower under each  Construction Contract.       (e) Prior to the occurrence of a Default, Borrower shall have the right to exercise  its rights as owner under each Construction Contract, provided that Borrower shall not cancel  or amend any Construction Contract or do or suffer to be done any act which would impair  the security constituted by this assignment without the prior written consent of Bank.       (f) This assignment shall inure to the benefit of Bank and its successors and  assigns, any purchaser upon foreclosure of the Deed of Trust, any receiver in possession of  the Land and any corporation formed by or on behalf of Bank which assumes Bank’s rights  and obligations under this Agreement.    8.14 Payment of Claims.  Borrower shall promptly pay or cause to be paid when due all  costs and expenses incurred in connection with the Land and the construction of the Improvements,  and Borrower shall keep the Land free and clear of any liens, charges or claims other than the lien of  the Deed of Trust, the Permitted Liens and other liens, if any, approved in writing by Bank.    8.15 Restrictions and Annexation.  Borrower shall not impose any restrictive covenants or  encumbrances upon the Land, execute or file any subdivision plat affecting the Land or consent to  the annexation of the Land to any city, without the prior written consent of Bank.     8.16 Changes.  Borrower shall not issue any change orders or make any changes to the  Approved Budget without the prior written consent of Bank.  No approval by Bank of any change  order shall make Bank responsible for the adequacy, form or content of any such change order.        





 






  31  ARTICLE IX  Financial Reporting and Financial Covenants    Until the Loan and all Obligations owing by Borrower to the Bank are fully paid and  satisfied, Borrower will comply with the following financial covenants.    9.01 Financial Information.  Furnish the Bank the following financial information:     (a) Annual Financial Statements.  As soon as available, and in any event  within ninety (90) days after the end of each fiscal year, Borrower will provide the Bank  with a copy of Borrower’s annual year-end financial statements, said financial statements  to be in a form and substance acceptable to the Bank in all respects.    (b) Guarantor’s Financial Statements.  As soon as available, and in any event  within ninety (90) days after the end of each calendar year, Guarantor shall provide the  Bank with a copy of Guarantor’s financial and cash flow statements, said statements to be  dated as of the end of each calendar year, and shall be in a form and substance acceptable  to the Bank in all respects.    (c) Interim Financial Statements.  Within forty-five (45) days after the end of  each fiscal quarter, Borrower and Guarantor will provide the Bank with a copy of  Borrower’s and Guarantor’s respective unaudited financial statements, said financial  statements to be in a form and substance acceptable to the Bank in all respects.      (d) Tax Returns.  Copies of Borrower’s and Guarantor’s income tax returns  (federal and state, and including any applicable extension request), said returns and  extension requests to be provided within thirty (30) days after the applicable filing date  for the tax reporting period thereof and shall be prepared by a tax professional  satisfactory to Bank.    (e) Rent Rolls.  Within thirty (30) days after every June 30th and December  31st, Borrower will provide the Bank with a current rent roll for the Improvements  containing the names and addresses of each tenant leasing space and/or each party subject  to a Hosting Agreement, in the Improvements, the amount of rent and any security  deposit paid by each tenant and whether each lease is current or not.    (f) Other.  Borrower shall provide such other financial information and  reports as the Bank may reasonably request from time to time, including rent rolls, sales  status reports, borrowing base reports, compliance certifications and other like reports  pertaining to the financial condition of the Borrower and the Guarantor and the Collateral  securing this Loan.            





 






  32  ARTICLE X  Events of Default and Remedies    10.01 Events of Default.  Each of the following will constitute an “Event of Default”  under this Loan Agreement:    (a) The failure, refusal or neglect of Borrower to pay when due any part of the  principal of, or interest due on the Loan or any other Indebtedness Borrower now or  hereafter owes the Bank.    (b) The failure of Borrower, a Guarantor or any other Obligated Party to  timely and properly observe, keep or perform any covenant, agreement or condition  required herein or in any of the other Loan Documents.    (c) Any representation or warranty contained herein, in any of the other Loan  Documents or in any other document ever delivered by Borrower, a Guarantor or any  Obligated Party to Bank in connection with the Loan is false, misleading, erroneous or  breached in any material respect.    (d) If Borrower, a Guarantor or any Obligated Party: (i) becomes insolvent, or  makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors,  or admits in writing its inability to or is unable to pay its debts as they become due;  (ii) generally is not paying its debts as such debts become due; (iii) has a receiver, trustee  or custodian appointed for, or take possession of, all or substantially all of the assets of  such party, either in a proceeding brought by such party or in a proceeding brought  against such party and such appointment is not discharged or such possession is not  terminated within sixty (60) days after the effective date thereof or such party consents to  or acquiesces in such appointment or possession; (iv) files a petition for relief under the  Applicable Bankruptcy Laws or an involuntary petition for relief is filed against such  party under any Applicable Bankruptcy Law, or an order for relief naming such party is  entered under any Applicable Bankruptcy Law, or any composition, rearrangement,  extension, reorganization or other relief of debtors now or hereafter existing is requested  or consented to by such party; (v) fails to have discharged within a period of thirty (30)  days any attachment, sequestration or similar writ levied upon any Property of such party;  or (vi) fails to pay within thirty (30) days any final money judgment against such party.    (e) A levy against the Collateral or any part thereof, or against any material  portion of Borrower’s other property, or any execution, garnishment, attachment,  sequestration or other writ or similar proceeding which is not permanently dismissed or  discharged within thirty (30) days after such levy.    (f) Abandonment of any portion of the Collateral or of any material portion of  any of the other property of Borrower or any Obligated Party.    (g) The dissolution, liquidation, termination or forfeiture of the right to do  business of Borrower, a Guarantor or any Obligated Party, or if Borrower, a Guarantor or  





 






  33  any Obligated Party is an individual, the death or disability of the Borrower, a Guarantor  or any other Obligated Party.    (h) An inability of Borrower to satisfy any condition specified herein as  precedent to the obligation of Bank to make an Advance.    (i) Borrower, a Guarantor or other Obligated Party shall have: (i) concealed,  removed or permitted to be concealed or removed any part of its property or assets with  the intent to hinder, delay or defraud any of its creditors; (ii) made or suffered a transfer  of any of its property assets which may be fraudulent under any bankruptcy, fraudulent  conveyance or similar Governmental Requirement; or (iii) suffered or permitted while  insolvent (under any applicable definition of the term) any creditor to obtain a Lien upon  any of its property or assets through legal proceedings or distraint which Lien is not  permanently vacated within thirty (30) days.    (j) The occurrence of any event or condition which results in, or with notice  or lapse of time or both could result in, a default in the payment of any Indebtedness of  Borrower, a Guarantor or other Obligated Party to any Person other than Bank, excluding  any Indebtedness or obligation not exceeding, individually or in the aggregate, Two  Hundred Thousand and No/100ths Dollars ($200,000.00).    (k) The occurrence of a Material Adverse Change.    (l) The occurrence of any default under any other documents evidencing or  securing any other Indebtedness the Borrower now or hereafter owes the Bank.    (m) The issuance or entry of any attachment or other Lien (other than Bank’s  Lien against the Collateral) against any of the property and assets of Borrower for an  amount in excess of Two Hundred Thousand and No/100ths Dollars ($200,000.00), if  undischarged, unbonded or undismissed within thirty (30) days after such entry.    (n) Any Loan Document or any provision thereof ceases to be in full force  and effect, Borrower or any Obligated Party or any other Person contests the validity or  enforceability of any Loan Document or any provision thereof or Borrower or any  Obligated Party denies that it has any or further liability or obligation under any Loan  Document, or purports to revoke, terminate or rescind any Loan Document or any  provision thereof.    (o) After commencement of construction of the Improvements, the cessation  of the construction of the Improvements for more than ten (10) days without the written  consent of Bank, except cessation for not more than thirty (30) days in the aggregate  caused by acts of God or other causes not within the control of Borrower.  A failure of  the construction of any part of the Improvements, or of any of the materials, articles or  fixtures supplied for incorporation into the construction of the Improvements, to comply  with the Plans or any Governmental Requirement.    





 






  34  (p) Borrower defaults under any term of the Ground Lease between Borrower  and E.D.B., Ltd., for the lease of the Land, or otherwise loses or forfeits its rights to its  leasehold interest for the Land.    Nothing contained in this Loan Agreement will be construed to limit the events of default  enumerated in any of the other Loan Documents and all such events of default will be  cumulative.     10.02 Cure Periods.  The occurrence of any Non-Monetary Defaults listed in Sections  10.01(c), (g), (i), (m), (n) and (p) (“No Notice Defaults”) shall constitute an Event of Default  immediately upon the occurrence of the event constituting such default.  The occurrence of any  Monetary Defaults under Sections 10.01(a) or (j) shall constitute an Event of Default if the Bank  shall declare such occurrence as an Event of Default and notifies Borrower in writing of same,  and Borrower shall fail to cure such Events of Default within ten (10) calendar days following  notice from the Bank.  The occurrence of any other Non-Monetary Default shall constitute an  Event of Default hereunder if the Bank shall declare such occurrence as an Event of Default and  notifies Borrower in writing of same, and Borrower shall fail to cure such Event of Default,  within thirty (30) calendar days following notice from the Bank.    10.03 Remedies.  Upon the occurrence of any Event of Default and after the passage of  any applicable time period: (a) the entire unpaid balance of principal of the Note, together with  all accrued but unpaid interest thereon, and all other Indebtedness owing to Bank by Borrower at  such time will, at the option of Bank, become immediately due and payable without further  notice, demand, presentation, notice of dishonor, notice of intent to accelerate, notice of  acceleration, protest or notice of protest of any kind, all of which are expressly waived by  Borrower; (b) Bank may, at its option, cease further Advances on the Loan; (c) reduce any claim  to judgment; and (d) exercise any and all rights and remedies afforded by any of the Loan  Documents, or by law or equity or otherwise, as Bank will deem appropriate.  All rights and  remedies of Bank set forth in this Loan Agreement and in any of the other Loan Documents may  be exercised by Bank at its option and in its sole discretion, upon the occurrence of an Event of  Default.    10.04 Right of Setoff.  If an Event of Default shall have occurred and be continuing,  Bank and its Affiliates are hereby authorized at any time and from time to time, to the fullest  extent not prohibited by applicable Governmental Requirements, to set off and apply any and all  deposits (general or special, time or demand, provisional or final, in whatever currency) at any  time held and other obligations (in whatever currency) at any time owing by Bank or any such  Affiliate against the Indebtedness owing hereunder.  The rights of Bank and its Affiliates under  this Section are in addition to other rights and remedies (including other rights of setoff) that  Bank or its Affiliates may have.  Bank agrees to notify Borrower promptly after any such setoff  and application, provided that the failure to give such notice shall not affect the validity of such  setoff and application.    10.05 Performance by Bank.  Should any covenant, duty, or agreement of any Obligated  Party fail to be performed in accordance with the terms of the Loan Documents, Bank may, at its  option, perform, or attempt to perform, such covenant, duty or agreement on behalf of any  





 






  35  Obligated Party.  In such event, Borrower will pay to Bank on demand any amount expended by  Bank in such performance or attempted performance, together with interest thereon at the rate  provided in the Note for past-due payments from the date of such expenditure by Bank until  paid.  Notwithstanding the foregoing, it is expressly understood that Bank does not assume and  will never have any liability or responsibility for the performance of any duties of Borrower  hereunder.    10.06 Rights Cumulative; Election of Remedies.  All rights and remedies of Bank under  the terms of this Loan Agreement will be cumulative of, and in addition to, the rights and  remedies of Bank under any and all other agreements between Borrower and Bank (including,  but not limited to, the other Loan Documents), and not in substitution or diminution of any rights  and remedies now or hereafter held by Bank under the terms of any other agreement.  Such rights  and remedies may be pursued separately, successively or concurrently against Borrower, or any  Obligated Party or any Property covered under the Loan Documents at the sole discretion of  Bank.  The exercise or failure to exercise any of the same will not constitute a waiver or release  thereof or of any other Right, and the same will be nonexclusive.    10.07 Waiver of Deficiency Statute.  In the event an interest in any of the Real Property  Collateral is foreclosed upon pursuant to a judicial or nonjudicial foreclosure sale, Borrower  agrees, notwithstanding the provisions of Sections 51.003, 51.004 and 51.005 of the Texas  Property Code (as the same may be amended from time to time), and to the extent not prohibited  by Governmental Requirements, that Bank shall be entitled to seek a deficiency judgment from  Borrower, the Guarantor and any other Obligated Party equal to the difference between the  Obligations and the amount for which the Real Property Collateral was sold pursuant to judicial  or nonjudicial foreclosure sale.  Borrower acknowledges and agrees that this waiver creates an  irrebuttable presumption that the foreclosure sale price is equal to the fair market value of the  Real Property Collateral for purposes of calculating deficiencies owed by Borrower, the  Guarantor and the other Obligated Parties against whom recovery of a deficiency is sought.    ARTICLE XI  Miscellaneous    11.01 Waiver and Agreement.  Neither the failure nor any delay on the part of Bank to  exercise any right, remedy, power or privilege herein or under any of the other Loan Documents  will operate as a waiver thereof, nor will any single or partial exercise of such right, remedy,  power or privilege preclude any other or further exercise thereof or the exercise of any other  right, remedy, power or privilege.  No waiver of any provision in this Loan Agreement or in any  of the other Loan Documents and no departure by any Obligated Party therefrom will be  effective unless the same will be in writing and signed by Bank, and then will be effective only  in the specific instance and for the purpose for which given and to the extent specified in such  writing.  No modification or amendment to this Loan Agreement or to any of the other Loan  Documents will be valid or effective unless the same is signed by the party against whom it is  sought to be enforced.    11.02 Benefits.  This Loan Agreement will be binding upon and inure to the benefit of  Bank and Borrower, and their respective successors and assigns, provided, however, that  





 






  36  Borrower may not, without the prior written consent of Bank, assign or encumber any interests,  rights, remedies, powers, duties or obligations under this Loan Agreement or any of the other  Loan Documents.    11.03 Notices.    (a) Except in the case of notices and other communications expressly  permitted to be given by telephone, all notices and other communications provided for  herein shall be in writing and shall be delivered by hand or overnight courier service,  mailed by certified or registered mail or sent by fax or electronic communication as  follows:    If to the Borrower, to: APLD - Rattlesnake Den I, LLC, a Delaware  limited liability company   Attention: Wesley Cummins   3811 Turtle Creek Blvd., # 2100  Dallas, Texas 75219    If to the Guarantor, to: Applied Blockchain, Inc., a Nevada corporation  Attention: Wesley Cummins  3811 Turtle Creek Blvd., # 2100  Dallas, Texas 75219    If to the Bank, to: Vantage Bank Texas, a Texas state bank      Attention: James R. Luttrell      4520 Camp Bowie Blvd.      Fort Worth, Texas 76107.    Notices sent by hand or overnight courier service, or mailed by certified or  registered mail, shall be deemed to have been given when received; notices sent by fax  shall be deemed to have been given when sent (except that, if not given during normal  business hours for the recipient, shall be deemed to have been given at the opening of  business on the next business day for the recipient).  Notices delivered through electronic  communications shall be effective as provided in Section 11.03(b).    (b) Unless the Bank otherwise prescribes: (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgement from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgement),  provided that if such notice or other communication is not sent during the normal  business hours of the recipient, such notice or communication shall be deemed to have  been sent at the opening of business on the next business day for the recipient; and (ii)  notices or communications posted to an Internet or intranet website shall be deemed  received upon the deemed receipt by the intended recipient at its e-mail address as  described in the foregoing Section 11.03(b)(i) of notification that such notice or  communication is available and identifying the website address therefor.  





 






  37  (c) Any party hereto may change its address, fax number or email address for  notices and other communications hereunder by notice to the other parties hereto.    11.04 Continuation and Survival.  All covenants, agreements, representations and  warranties made in or pursuant to this Loan Agreement and the other Loan Documents will be  deemed continuing and made at and as of the date of this Loan Agreement and at and as of all  times thereafter.  All statements contained in any certificate, financial statement, legal opinion or  other instrument delivered by or on behalf of Borrower, the Guarantor or other Obligated Party  pursuant to or in connection with any of the Loan Documents will constitute additional  representations and warranties made under this Loan Agreement.  All covenants, agreements,  representations and warranties made in or pursuant to this Loan Agreement and the other Loan  Documents will survive until payment in full of all sums owing and performance of all other  obligations hereunder by Borrower to Bank and will not be waived by the execution and delivery  of this Loan Agreement, any Advance, completion of construction or development of the  Improvements, any investigation by Bank or any other event except a specific written waiver by  Bank.    11.05 Usury.  The parties hereto intend to conform strictly to the applicable  Governmental Requirements pertaining to usury.  In no event, whether by reason of demand for  payment or acceleration of the maturity of the Obligations or otherwise, will the interest  contracted for, charged or received by Bank hereunder or otherwise exceed the maximum  amount permissible under applicable Governmental Requirements.  If, from any circumstance  whatsoever, interest would otherwise be payable to Bank in excess of the maximum lawful  amount, the interest payable to Bank will be reduced automatically to the maximum amount  permitted under applicable Governmental Requirements.  If Bank will ever receive anything of  value deemed interest under applicable Governmental Requirements which would apart from this  provision be in excess of the maximum lawful amount, an amount equal to any amount which  would have been excessive interest will be applied to the reduction of the principal amount  owing on the Obligations in the inverse order of its maturity and not to the payment of interest,  or if such amount which would have been excessive interest exceeds the unpaid principal balance  of the Obligations, such excess will be refunded to Borrower.  The interest and any other  amounts that would have been payable in respect of any portion of the Obligations or during any  period but were not payable as a result of the operation of this Section 11.05 shall be cumulated  and the interest and other amounts on any other portion of the Obligations or periods shall be  increased (but not above the maximum amount permitted under applicable Governmental  Requirement) until such cumulated amount shall have been received by Bank.  All interest paid  or agreed to be paid to Bank will, to the extent permitted by applicable Governmental  Requirements, be amortized, prorated, allocated and spread throughout the full stated term  (including any renewal or extension) of such Indebtedness so that the amount of interest on  account of such Indebtedness does not exceed the maximum permitted by applicable  Governmental Requirements.  The provisions of this Section 11.05 will control all existing and  future agreements between Borrower and Bank.    11.06 No Third-Party Beneficiary.  This Loan Agreement is for the sole benefit of Bank  and Borrower and is not for the benefit of any third party.    





 






  38  11.07 Bank’s Consent or Approval.  Except where otherwise expressly provided in the  Loan Documents, in any instance where the approval, consent or the exercise of judgment of  Bank is required, the granting or denial of such approval or consent and the exercise of such  judgment will be: (a) within the sole discretion of Bank; and (b) deemed to have been given only  by a specific writing intended for the purpose and executed by Bank.  Each provision for  consent, approval, inspection, review or verification by Bank is for Bank’s own purposes and  benefit only.    11.08 Applicable Governmental Requirements.  This Loan Agreement and the other  Loan Documents have been executed and delivered in the State of Texas, are performable in  Tarrant County, Texas, and will be governed by and construed in accordance with the  Governmental Requirements of the State of Texas and the Governmental Requirements of the  United States applicable to transactions within the State of Texas.  Except to the extent that the  Governmental Requirements of the United States may apply to the terms hereof, the substantive  Governmental Requirements of the State of Texas shall govern the validity, construction,  enforcement and interpretation of this Loan Agreement and the other Loan Documents.  In the  event of a dispute involving this Loan Agreement, any other Loan Document or any other  instrument executed in connection herewith, Borrower irrevocably agrees that, except as set forth  in Section 11.09, venue for such dispute shall lie in any court of competent jurisdiction in Tarrant  County, Texas.       11.09 ARBITRATION. THE PARTIES FURTHER AGREE AS FOLLOWS:    (a) UPON WRITTEN NOTICE BY BANK OR BORROWER TO THE  OTHER, ANY AND ALL CONTROVERSIES BETWEEN THE  PARTIES SHALL BE RESOLVED BY ARBITRATION IN  ACCORDANCE WITH THE COMMERCIAL ASSOCIATION RULES  OF THE AMERICAN ARBITRATION ASSOCIATION IN EFFECT AT  THE TIME OF FILING, UNLESS THE COMMERCIAL  ARBITRATION RULES CONFLICT WITH THIS PROVISION, AND  IN SUCH EVENT THE TERMS OF THIS PROVISION SHALL  CONTROL.  ANY ARBITRATION HEREUNDER SHALL BE  BEFORE AT LEAST THREE ARBITRATORS ASSOCIATED WITH  THE AMERICAN ARBITRATION ASSOCIATION AND SELECTED  IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION  RULES OF THE AMERICAN ARBITRATION ASSOCIATION.  THE  AWARD OF THE ARBITRATORS, OR A MAJORITY OF THEM,  SHALL BE FINAL, AND JUDGEMENT UPON THE AWARD  RENDERED MAY BE ENTERED IN ANY COURT, STATE OR  FEDERAL, HAVING JURISDICTION.  ERRORS OF LAW SHALL BE  AN ADDITIONAL GROUND FOR VACATING OF AN AWARD  RENDERED PURSUANT TO THIS PROVISION.    (b) ARBITRABLE DISPUTES INCLUDE ANY AND ALL  CONTROVERSIES OR CLAIMS BETWEEN THE PARTIES OF  WHATEVER TYPE OR MANNER, INCLUDING WITHOUT  





 






  39  LIMITATION, ANY CLAIM ARISING OUT OF OR RELATING TO  THIS AGREEMENT, ANY PROPOSED OR ACTUAL LOAN OR  EXTENSION OF CREDIT, ALL PAST, PRESENT AND/OR FUTURE  AGREEMENTS INVOLVING THE PARTIES, ANY TRANSACTIONS  BETWEEN OR INVOLVING THE PARTIES, AND/OR ANY ASPECT  OF ANY PAST OR PRESENT RELATIONSHIP OF THE PARTIES,  WHETHER BANKING OR OTHERWISE, SPECIFICALLY  INCLUDING ANY ALLEGED TORT COMMITTED BY ANY PARTY.    (c) DEPOSITIONS MAY BE TAKEN AND OTHER DISCOVERY  OBTAINED IN ANY ARBITRATION UNDER THIS PROVISION.   WITHIN THIRTY (30) DAYS OF THE DATE A RESPONSIVE  PLEADING IS FILED IN AN ARBITRATION PROCEEDING  HEREUNDER, ALL PARTIES SHALL SERVE ON ALL OTHER  PARTIES AN INITIAL DISCLOSURE AS WOULD BE REQUIRED  BY RULE 26, FEDERAL RULES OF CIVIL PROCEDURE.    (d) FOR THE PURPOSES OF THIS PROVISION, “THE PARTIES”  MEANS GRANTORS, BENEFICIARY, TRUSTEE, BANK AND EACH  OF THEM, AND ALL PERSONS AND ENTITIES SIGNING THIS  AGREEMENT OR ANY OTHER AGREEMENTS, SECURITY  INSTRUMENTS AND/OR GUARANTEES EXECUTED  HERETOFORE OR CONTEMPORANEOUSLY WITH AND AS PART  OF THE SAME TRANSACTION WITH THIS AGREEMENT.  “THE  PARTIES” SHALL ALSO INCLUDE INDIVIDUAL PARTNERS,  OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND/OR  REPRESENTATIVES OF ANY PARTY TO THOSE DOCUMENTS,  AND SHALL INCLUDE ANY OTHER OWNER AND HOLDER OF  THE LOAN DOCUMENTS.    (e) THE PARTIES SHALL HAVE THE RIGHT TO INVOKE SELF-HELP  REMEDIES (SUCH AS SET-OFF, NOTIFICATION OF ACCOUNT  DEBTORS, SEIZURE AND/OR FORECLOSURE OF COLLATERAL,  AND NON-JUDICIAL SALE OF PERSONAL PROPERTY AND REAL  PROPERTY COLLATERAL) BEFORE, DURING OR AFTER ANY  ARBITRATION AND/OR PERFORMANCE, RECEIVER,  INJUNCTION OR RESTRAINING ORDER, AND SEQUESTRATION)  BEFORE OR AFTER ANY ARBITRATION.  THE PARTIES NEED  NOT AWAIT THE OUTCOME OF THE ARBITRATION BEFORE  USING SELF-HELP REMEDIES.  USE OF SELF-HELP OR  ANCILLARY AND/OR PROVISIONAL JUDICIAL REMEDIES  SHALL NOT OPERATE AS A WAIVER OF EITHER PARTY’S  RIGHT TO COMPEL ARBITRATION.    (f) THE PARTIES AGREE THAT ANY ACTION REGARDING ANY  CONTROVERSY BETWEEN THE PARTIES SHALL EITHER BE  





 






  40  BROUGHT BY ARBITRATION, AS DESCRIBED HEREIN, OR BY  JUDICIAL PROCEEDINGS, BUT SHALL NOT BE PURSUED  SIMULTANEOUSLY IN DIFFERENT OR ALTERNATIVE FORUMS.   A TIMELY WRITTEN NOTICE OF INTENT TO ARBITRATE  PURSUANT TO THIS AGREEMENT STAYS AND/OR ABATES ANY  AND ALL ACTION IN A TRIAL COURT, SAVE AND EXCEPT A  HEARING ON A MOTION TO COMPEL ARBITRATION AND/OR  THE ENTRY OF AN ORDER COMPELLING ARBITRATION AND  STAYING AND/OR ABATING THE LITIGATION PENDING THE  FILING OF THE FINAL AWARD OF THE ARBITRATORS.    (g) ANY AGGRIEVED PARTY SHALL SERVE A WRITTEN NOTICE OF  INTENT TO ARBITRATE TO ANY AND ALL OPPOSING PARTIES  WITHIN 360 DAYS AFTER DISPUTE HAS ARISEN.  A DISPUTE IS  DEFINED TO HAVE ARISEN ONLY UPON RECEIPT OF SERVICE  OF JUDICIAL PROCESS OR OF A COMPLAINT IN ARBITRATION.  FAILURE TO SERVE A WRITTEN NOTICE OF INTENT TO  ARBITRATE WITHIN THE TIME SPECIFIED ABOVE SHALL BE  DEEMED A WAIVER OF THE AGGRIEVED PARTY’S RIGHT TO  COMPEL ARBITRATION OF SUCH CLAIM. THE ISSUE OF  WAIVER PURSUANT TO THIS AGREEMENT IS AN ARBITRABLE  DISPUTE.    (h) ACTIVE PARTICIPATION IN PENDING LITIGATION DURING THE  360 DAY NOTICE PERIOD, WHETHER AS PLAINTIFF OR  DEFENDANT, IS NOT A WAIVER OF THE RIGHT TO COMPEL  ARBITRATION. ALL DISCOVERY OBTAINED IN THE PENDING  LITIGATION MAY BE USED IN ANY SUBSEQUENT  ARBITRATION PROCEEDING.    (i) THE PARTIES FURTHER AGREE THAT: (i) NO ARBITRATION  PROCEEDING SHALL BE CERTIFIED AS A CLASS ACTION OR  PROCEED AS A CLASS ACTION; AND (ii) NO ARBITRATION  PROCEEDING HEREUNDER SHALL BE CONSOLIDATED WITH,  OR JOINED IN ANY WAY WITH, ANY OTHER ARBITRATION  PROCEEDING.    (j) ANY ARBITRATOR SELECTED SHALL BE KNOWLEDGEABLE IN  THE SUBJECT MATTER OF THE DISPUTE. EACH OF THE  PARTIES SHALL PAY AN EQUAL SHARE OF THE ARBITRATION  COSTS, FEES, EXPENSES AND OF THE ARBITRATORS’ FEES,  COSTS AND EXPENSES.    (k) ALL STATUTES OF LIMITATIONS WHICH WOULD OTHERWISE  BE APPLICABLE SHALL APPLY TO ANY ARBITRATION  PROCEEDING HEREUNDER AND THE COMMENCEMENT OF  





 






  41  ANY ARBITRATION PROCEEDING TOLLS SUCH LIMITATIONS.    (l) IN ANY ARBITRATION PROCEEDING SUBJECT TO THIS  PROVISION, THE ARBITRATORS, OR MAJORITY OF THEM, ARE  SPECIFICALLY EMPOWERED TO DECIDE (BY DOCUMENTS  ONLY, OR WITH A HEARING, AT THE ARBITRATORS’ SOLE  DISCRETION) PRE-HEARING MOTIONS WHICH ARE  SUBSTANTIALLY SIMILAR TO PRE-HEARING MOTIONS TO  DISMISS AND MOTIONS FOR SUMMARY ADJUDICATION.    (m) THIS ARBITRATION PROVISION SHALL SURVIVE ANY  TERMINATION, AMENDMENT, OR EXPIRATION OF THE  AGREEMENT IN WHICH THIS PROVISION IS CONTAINED,  UNLESS ALL OF THE PARTIES OTHERWISE EXPRESSLY AGREE  IN WRITING.    (n) THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT  EVIDENCES A TRANSACTION INVOLVING INTERSTATE  COMMERCE IN THAT THE FUNDS WHICH MAY BE ADVANCED  OR COMMITTED UNDER THIS AGREEMENT ARE DERIVED  FROM INTERSTATE AND/OR INTERNATIONAL FINANCIAL  MARKETS. THE FEDERAL ARBITRATION ACT SHALL GOVERN  THE INTERPRETATION, ENFORCEMENT AND PROCEEDINGS  PURSUANT TO THE ARBITRATION CLAUSE OF THIS NOTE.    (o) THE ARBITRATORS, OR A MAJORITY OF THEM, SHALL AWARD  ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY  PURSUANT TO THE TERMS OF THE ARBITRATION CLAUSE OF  THIS NOTE.    (p) VENUE OF ANY ARBITRATION PROCEEDING HEREUNDER  SHALL BE IN TARRANT COUNTY, TEXAS.    11.10 Loan Agreement Governs.  This Loan Agreement, together with the other Loan  Documents, comprise the complete and integrated agreement of the parties on the subject matter  hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter.   In the event of any conflict between the terms of this Loan Agreement and any terms of any  other Loan Document, the terms of this Loan Agreement will govern; provided, that the  inclusion of supplemental rights or remedies in favor of Bank in any other Loan Document will  not be deemed a conflict with this Loan Agreement.  Each Loan Document was drafted with the  joint participation of the respective parties thereto and will be construed neither against nor in  favor of any party, but rather in accordance with the fair meaning thereof.    11.11 Time of Essence.  Time will be of the essence in this Loan Agreement.    





 






  42  11.12 Invalid Provisions.  If any provision of this Loan Agreement or any of the other  Loan Documents is held to be illegal, invalid or unenforceable under present or future  Governmental Requirements, such provision will be fully severable and the remaining provisions  of this Loan Agreement or any of the other Loan Documents will remain in full force and effect  and will not be affected by the illegal, invalid or unenforceable provision or by its severance.    11.13 Expenses of Bank.  Borrower shall pay to Bank on demand: (a) all costs and  expenses incurred by Bank in connection with the preparation, negotiation, execution and  administration of this Loan Agreement and the other Loan Documents and any and all  amendments, modifications, renewals, extensions, increases, and supplements thereof and  thereto, including, without limitation, the fees and expenses of Bank’s legal counsel and  professionals; (b) all costs and expenses incurred by Bank in connection with the enforcement,  workout or restructure of this Loan Agreement or any other Loan Document, including, without  limitation, the fees and expenses of Bank’s legal counsel and professionals; and (c) all other  costs and expenses incurred by Bank in connection with this Loan Agreement or any other Loan  Document, including, without limitation, all costs, expenses, taxes, assessments, filing fees and  other charges levied by a Governmental Authority or otherwise payable in respect of this Loan  Agreement or any other Loan Document.    11.14 INDEMNIFICATION OF BANK.  BORROWER AND GUARANTOR  HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD THE BANK AND ITS  OFFICERS, AGENTS, DIRECTORS, EMPLOYEES AND COUNSEL (EACH AN  “INDEMNIFIED PERSON”) HARMLESS FROM AND AGAINST ANY AND ALL LOSS,  LIABILITY, OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM, DEFICIENCY  AND EXPENSE (INCLUDING INTEREST, PENALTIES, ATTORNEY’S FEES AND  AMOUNT PAID IN SETTLEMENT) TO WHICH ANY INDEMNIFIED PERSON MAY  BECOME SUBJECT, ARISING OUT OF OR BASED UPON THE LOAN, THE LOAN  DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY OR OTHERWISE,  INCLUDING WITHOUT LIMITATION, ANY AND ALL LOSS, LIABILITY, OBLIGATION,  DAMAGE, PENALTY, JUDGMENT, CLAIM, DEFICIENCY OR EXPENSE RESULTING  FROM THE BANK’S SOLE OR CONTRIBUTORY NEGLIGENCE, EXCEPT TO THE  EXTENT ANY SUCH LOSS, LIABILITY, OBLIGATION, DAMAGE, PENALTY,  JUDGMENT, CLAIM, DEFICIENCY OR EXPENSE IS CAUSED BY THE GROSS  NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNIFIED PERSON.    11.15 Participation of the Loan.  Borrower agrees that Bank may, at its option, sell  interests in the Loan and its rights and remedies under this Loan Agreement to one or more  financial institutions or other Person acceptable to Bank and, in connection with each such sale,  Bank may disclose any financial and other information available to Bank concerning Borrower  or any Obligated Party to each prospective purchaser.    11.16 Counterparts; Facsimile Documents and Signatures.  This Loan Agreement may  be separately executed in any number of counterparts, each of which will be an original, but all  of which, taken together, will be deemed to constitute one and the same instrument.  For  purposes of negotiating and finalizing this Loan Agreement, if this document or any document  executed in connection with it is transmitted by facsimile machine, electronic mail or other  





 






  43  electronic transmission, it will be treated for all purposes as an original document.  Additionally,  the signature of any party on this document transmitted by way of a facsimile machine or  electronic mail will be considered for all purposes as an original signature.  Any such transmitted  document will be considered to have the same binding legal effect as an original document.  At  the request of any party, any faxed or electronically transmitted document will be re-executed by  each signatory party in an original form.    11.17 Imaging of Documents.  Borrower understands and agrees that: (a) Bank’s  document retention policy may involve the electronic imaging of executed Loan Documents and  the destruction of the paper originals; and (b) Borrower waives any right that it may have to  claim that the imaged copies of the Loan Documents are not originals.    11.18 No Oral Agreements.  The term “WRITTEN AGREEMENT” will include this  Loan Agreement, together with each and every other document relating to and/or securing the  Obligations, regardless of the date of execution.  THIS WRITTEN AGREEMENT  REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT  BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR  SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO  UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.    11.19 Confidentiality.  In handling any confidential information, Bank and all  employees and agents of Bank shall exercise the same degree of care that Bank exercises with  respect to its own proprietary information of the same types to maintain the confidentiality of  any non-public information thereby received or received pursuant to or relating to this Loan  Agreement or the Loan Documents except that disclosure of such information may be made: (a)  to the subsidiaries or Affiliates of Bank in connection with their present or prospective business  relations with Borrower; (b) to prospective transferees or purchasers of any interest in the Loans  who have agreed to be bound by this Section 11.19; (c) by either Bank or Borrower as required  by law, regulations, rule or order, subpoena, judicial order or similar order; (d) to Bank’s  accountants, auditors and regulators as may be required in connection with the examination,  audit or similar investigation of Bank; and (e) as Bank may determine in connection with the  enforcement of any remedies hereunder.  Confidential information hereunder shall not include  information that either: (y) is in the public domain or in the knowledge or possession of Bank  when disclosed to Bank, or becomes part of the public domain after disclosure to Bank through  no fault of Bank; or (z) is disclosed to Bank by a third party, provided Bank does not have actual  knowledge that such third party is prohibited from disclosing such information.    [Signature Page Follows]  





 






  44  Executed effective as of the date first written above.    BORROWER:    APLD – RATTLESNAKE DEN I, LLC, a  Delaware limited liability company            By:                 Wesley Cummins, Manager            By:                 David Rench, Manager      GUARANTOR:    APPLIED BLOCKCHAIN, INC., a Nevada  corporation            By:                 Wesley Cummins, Chief Executive Officer    





 






  45  BANK:    VANTAGE BANK TEXAS, a Texas state bank      By:          James R. Luttrell, Executive Vice President    





 






  Exhibit “A”  1 of 1  EXHIBIT “A”    Legal Description of the Land    LEASEHOLD ESTATE ONLY as created and described in that certain Ground Lease dated  April 13, 2022, by and between EDB, Ltd., a Texas Limited Liability Company, as Lessor, and  APLD - Rattlesnake Den I LLC or its assigns, as Lessee, as evidenced by that certain  Memorandum of Ground Lease, recorded under Clerk’s File No. ___________, of the Official  Public Records of Glasscock County, Texas, and being over and across:    FIELD NOTE DESCRIPTION OF A 50.00 ACRE TRACT OF LAND, SITUATED IN AND  BEING OUT OF SECTION 11, BLOCK 34, TOWNSHIP 5 SOUTH, ABSTRACT 270, TEXAS  AND PACIFIC RAILWAY COMPANY SURVEY, GLASSCOCK COUNTY, TEXAS, AND  BEING OUT OF THAT SAME LAND AS CONVEYED IN A SPECIAL WARRANTY DEED  RECORDED IN VOLUME 307 ON PAGE 634 OF THE DEED RECORDS OF SAID  GLASSCOCK COUNTY, AND BEING MORE PARTICULARLY DESCRIBED AS  FOLLOWS;    BEGINNING AT N.(y): 10600710.85, E.(x): 1944710.27, A ONE HALF INCH IRON ROD  WITH A RED PLASTIC CAP MARKED “MAVERICK FIRM #10194514” (RPC) SET ON  THE WEST RIGHT-OF-WAY LINE OF RANCH TO MARKET ROAD 33, AS DEDICATED  IN A DEED RECORDED IN VOLUME 59 ON PAGE 444 OF SAID DEED RECORDS,  FROM WHICH A ONE AND ONE HALF INCH GALVANIZED IRON PIPE FOUND FOR  THE NORTHEAST CORNER OF SECTION 1, SAID BLOCK AND TOWNSHIP, BEARS  N.39°27'18"E., 11302.61 FEET AND A ONE INCH IRON PIPE BY A STONE MARKED  “NW 25-K”, AT THE SOUTHEAST CORNER OF SECTION 23, SAID BLOCK AND  TOWNSHIP BEARS S.29°25'41 "E., 14950.03 FEET, AND A ONE HALF INCH IRON ROD  WITH AN ILLEGIBLE ORANGE PLASTIC CAP, AT OR NEAR THE NORTHEAST  CORNER OF SAID SECTION 11, BEARS N.55°43'25"E., 4097.55 FEET, THIS BEING THE  NORTHEAST CORNER HEREOF;    THENCE S.05°22'26"E., ALONG SAID RIGHT-OF-WAY, 2183.45 FEET TO AN “RPC” SET  FOR THE SOUTHEAST CORNER HEREOF;    THENCE WEST, 1139.63 FEET TO AN “RPC” SET FOR THE SOUTHWEST CORNER  HEREOF;    THENCE N.01°52'09"E., 2175.00 FEET TO AN “RPC” SET FOR THE NORTHWEST  CORNER HEREOF;    THENCE EAST, 864.20 FEET TO THE POINT OF BEGINNING, CONTAINING 50.00  ACRES OF LAND.  





 






  Exhibit “B”  1 of 1  EXHIBIT “B”    Approved Budget