CONFIDENTIAL — SUBJECT TO ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE
SICHERUNGSÜBEREIGNUNGSVERTRAG
(Security Transfer of Movable Assets Agreement)
dated as of May 15, 2024
between
IRONHAVEN FRANKFURT GmbH
as Transferor (Sicherungsgeber)
and
PINNACLE TRUST COMPANY, N.A.
acting through its London branch
as Security Trustee (Sicherungstreuhänder)
for the Secured Parties
in connection with the
Senior Secured Term Loan B Credit Agreement
dated as of May 15, 2024
(CUSIP 46283LAA5)
Governed by the laws of the Federal Republic of Germany
Calderwood & Harkness LLP Matter No. 1043-00001
Crescent Harbor Deal Reference CHB-LF-2024-0287
SICHERUNGSÜBEREIGNUNGSVERTRAG
(Security Transfer of Movable Assets Agreement)
This Sicherungsübereignungsvertrag (Security Transfer of Movable Assets Agreement) (this "Agreement") is entered into as of May 15, 2024 (the "Execution Date"),
BETWEEN:
1. Ironhaven Frankfurt GmbH, a Gesellschaft mit beschränkter Haftung organized and existing under the laws of the Federal Republic of Germany, registered with the Amtsgericht Frankfurt am Main under HRB 129457, with its registered office at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany (the "Transferor" or "Sicherungsgeber");
and
2. Pinnacle Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America, acting through its London branch located at 25 Ropemaker Street, London EC2Y 9LY, United Kingdom, in its capacity as Security Trustee (Sicherungstreuhänder) for the Secured Parties (in such capacity, the "Security Trustee" or "Sicherungstreuhänder" or "Transferee" or "Sicherungsnehmer").
The Transferor and the Security Trustee are each referred to individually as a "Party" and collectively as the "Parties."
PREAMBLE / RECITALS (*Vorbemerkungen*)
The Parties enter into this Agreement on the basis of the following recitals:
(A) The Credit Agreement
On May 15, 2024, (i) Ironhaven Data Centers LLC, a limited liability company organized under the laws of the State of Delaware, United States of America (EIN 84-3291057), with its principal offices at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147 (the "Borrower" or "IHDC"), (ii) Ironhaven Frankfurt GmbH as Co-Borrower in respect of the EUR Sub-Tranche described below, and (iii) Ironhaven Holdings Inc., a corporation organized under the laws of the State of Delaware, United States of America (EIN 84-3291044) (the "Parent Guarantor"), entered into a Senior Secured Term Loan B Credit Agreement (the "Credit Agreement") with Crescent Harbor Bank, N.A., a national banking association with its principal offices at 1200 Harbor Point Drive, Charlotte, North Carolina 28202 (in its capacity as administrative agent, the "Administrative Agent"), Pinnacle Trust Company, N.A. with its principal offices at 101 Constitution Avenue NW, Washington, D.C. 20001 (in its capacity as collateral agent, the "Collateral Agent"), and the several financial institutions from time to time party thereto as lenders (collectively, the "Lenders").
The Credit Agreement provides for aggregate commitments of Nine Hundred Fifty Million United States Dollars ($950,000,000), comprising (a) a United States Dollar Tranche (the "USD Tranche") in the principal amount of Six Hundred Seventy-Five Million United States Dollars ($675,000,000), and (b) a Euro Sub-Tranche (the "EUR Sub-Tranche") in the principal amount of Two Hundred Fifty-Three Million Five Hundred Seventy-One Thousand Four Hundred Twenty-Nine Euros (€253,571,429), which amount is equivalent to approximately Two Hundred Seventy-Five Million United States Dollars ($275,000,000) at the EUR/USD exchange rate of 1.0846 as of the pricing date.
Interest under the Credit Agreement accrues (a) in respect of the EUR Sub-Tranche, at a rate per annum equal to the Euro Interbank Offered Rate ("EURIBOR") plus a margin of 425 basis points (4.25%) per annum, subject to an EURIBOR floor of 0.00%, and (b) in respect of the USD Tranche, at a rate per annum equal to the Secured Overnight Financing Rate ("SOFR") plus a margin of 425 basis points (4.25%) per annum, subject to a SOFR floor of 0.50% per annum. The scheduled maturity date of the Term Loan B under the Credit Agreement is June 3, 2031 (the "Maturity Date"), being seven (7) years from the Closing Date of June 3, 2024 (the "Closing Date").
(B) The Parallel Debt and Security Trust Agreement
On May 15, 2024, Ironhaven Frankfurt GmbH, Pinnacle Trust Company, N.A. (acting through its London branch as Security Trustee), the Administrative Agent, and the Lenders entered into a Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag) (the "Parallel Debt and Security Trust Agreement"), pursuant to which Ironhaven Frankfurt GmbH acknowledged and created an independent abstract payment obligation (the "Parallel Debt" or "Parallelverbindlichkeit") owed to the Security Trustee in an amount at all times equal to the aggregate amount of the Secured Obligations owed from time to time by the Transferor and the other Loan Parties under the Credit Agreement and the other Loan Documents. The Parallel Debt constitutes an independent abstract obligation (selbstständige, abstrakte Zahlungsverpflichtung) within the meaning of German law, separate and independent from but mirroring the underlying Secured Obligations, and is the obligation primarily secured by the German-law security documents, including this Agreement. The Security Trustee holds all security granted in connection with the German-law security package for the benefit of all Secured Parties.
(C) The Security Purpose
On May 15, 2024, the Transferor and the Security Trustee entered into a Security Purpose Agreement (Sicherungszweckerklärung) (the "Security Purpose Agreement"), which defines in detail the Secured Obligations for which the German-law security, including the security transfer contemplated by this Agreement, is granted. This Sicherungsübereignungsvertrag secures the Parallel Debt and all Secured Obligations as more fully described in the Security Purpose Agreement.
(D) The Transferor
Ironhaven Frankfurt GmbH is a Gesellschaft mit beschränkter Haftung organized and existing under the laws of the Federal Republic of Germany, duly registered with the commercial register (Handelsregister) at the Amtsgericht Frankfurt am Main under registration number HRB 129457. The registered office (Sitz) of the Transferor is at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany. The Transferor's German tax identification number (Steuernummer) is 045/127/98321 and its VAT identification number (USt-IdNr.) is DE347891205. The managing directors (Geschäftsführer) of the Transferor are Marcus Delaine and Katarina Bremer, each individually authorized to represent the Transferor (einzelvertretungsberechtigt). The Transferor is a wholly owned subsidiary (hundertprozentige Tochtergesellschaft) of Ironhaven Data Centers LLC.
The Transferor's business consists of the development, ownership, and operation of a hyperscale data center campus known as "Ironhaven Frankfurt I" (the "Frankfurt Campus"), located at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany, on a parcel of land comprising approximately 18.7 hectares as more particularly described in the land register (Grundbuch) of Frankfurt am Main-Ost, sheet (Blatt) 54321, cadastral district (Flur) 12, plot (Flurstück) 789.
(E) Purpose of the Security Transfer
The Transferor transfers ownership of certain movable assets to the Security Trustee by way of security (Sicherungsübereignung) in order to secure the Secured Obligations. It is the mutual intention of the Parties that the transfer effected hereby constitutes a fiduciary transfer of title (fiduziarische Sicherungsübereignung) under German law, pursuant to which the Security Trustee acquires legal ownership of the Transferred Assets subject to the fiduciary restrictions and obligations set forth in this Agreement and the Security Purpose Agreement.
(F) Relationship to Other German Security Documents
This Agreement forms part of a comprehensive German-law security package (deutsches Sicherheitenpaket) granted in connection with the Credit Agreement and the Parallel Debt. In addition to this Sicherungsübereignungsvertrag, such security package includes the following documents, each dated May 15, 2024 unless otherwise indicated:
(i) a German Land Charge Agreement (Grundschuldbestellungsurkunde) in favor of the Security Trustee over the Frankfurt Campus parcel described in the Grundbuch of Frankfurt am Main-Ost, Blatt 54321, Flur 12, Flurstück 789;
(ii) a German Global Assignment of Receivables (Globalzession) pursuant to which the Transferor assigns all present and future receivables to the Security Trustee;
(iii) a German Account Pledge Agreement (Kontoverpfändung) over all bank accounts maintained by the Transferor with NordBrücke AG (Neue Mainzer Straße 72, 60311 Frankfurt am Main);
(iv) a German Share Pledge Agreement (Anteilsverpfändungsvertrag), notarized before a German notary public, pursuant to which Ironhaven Data Centers LLC pledges 100% of the shares (Geschäftsanteile) in Ironhaven Frankfurt GmbH to the Security Trustee; and
(v) the Security Purpose Agreement (Sicherungszweckerklärung).
(G) Use of Proceeds Context
The proceeds of the EUR Sub-Tranche in the principal amount of €253,571,429 are intended to fund the Phase I construction of the Frankfurt Campus. Phase I is planned to deliver 40 megawatts (MW) of critical IT load capacity, with the full campus buildout designed to support 80 MW of critical IT load. The estimated total cost of Phase I construction is approximately €253.6 million (equivalent to approximately $275,000,000), and the estimated completion date for Phase I is the first quarter of calendar year 2026 (Q1 2026). The anchor tenant for the Frankfurt Campus is Euronova Digital GmbH, with which the Transferor has executed a pre-lease letter of intent (LOI) for 20 MW of critical IT load capacity on a seven-year term at an annual base rent of €9,800,000.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Section 1 — Definitions (*Definitionen*)
1.1 Definitions. In this Agreement, the following terms shall have the meanings set forth below, unless the context requires otherwise:
"Administrative Agent" means Crescent Harbor Bank, N.A., acting in its capacity as administrative agent under the Credit Agreement, and any successor administrative agent appointed in accordance with the terms of the Credit Agreement.
"Agreement" means this Sicherungsübereignungsvertrag (Security Transfer of Movable Assets Agreement), as the same may be amended, supplemented, restated, or otherwise modified from time to time in accordance with Section 13.4.
"Bestandsverzeichnis" means the current inventory list of all material Transferred Assets maintained by the Transferor in accordance with Section 2.4 and Section 5.4 of this Agreement.
"Besitzmittlungsverhältnis" means the indirect possession relationship (mittelbares Besitzverhältnis) established pursuant to Section 3.2 of this Agreement, under which the Transferor holds direct possession of the Transferred Assets as bailee (Besitzmittler) for the Security Trustee.
"BGB" means the German Civil Code (Bürgerliches Gesetzbuch) in the version published on January 2, 2002 (BGBl. I, p. 42, 2909; 2003 I, p. 738), as amended from time to time.
"Closing Date" means June 3, 2024, being the date on which the conditions precedent to the initial funding under the Credit Agreement are satisfied or waived and the initial advances are made.
"Collateral Agent" means Pinnacle Trust Company, N.A., in its capacity as collateral agent under the Credit Agreement, and any successor collateral agent appointed in accordance with the terms of the Credit Agreement and the Collateral Agent Appointment Agreement.
"Credit Agreement" means the Senior Secured Term Loan B Credit Agreement dated as of May 15, 2024, among the Borrower, the Co-Borrower, the Parent Guarantor, the Administrative Agent, the Collateral Agent, and the Lenders party thereto, as the same may be amended, restated, amended and restated, supplemented, refinanced, or otherwise modified from time to time.
"Enforcement Event" means the occurrence and continuance of an Event of Default (as defined in the Credit Agreement).
"EUR Sub-Tranche" means the Euro-denominated sub-tranche of the Term Loan B under the Credit Agreement in an aggregate principal amount of €253,571,429.
"Event of Default" has the meaning given to that term in the Credit Agreement.
"Execution Date" means May 15, 2024, being the date of execution of this Agreement by both Parties.
"Frankfurt Campus" means the data center campus known as "Ironhaven Frankfurt I" located at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany, situated on the parcel of land described in the Grundbuch of Frankfurt am Main-Ost, Blatt 54321, Flur 12, Flurstück 789, comprising approximately 18.7 hectares, together with all buildings, structures, installations, and improvements now or hereafter located on such parcel.
"GwG" means the German Anti-Money Laundering Act (Geldwäschegesetz) in the version published on June 23, 2017 (BGBl. I, p. 1822), as amended from time to time.
"HGB" means the German Commercial Code (Handelsgesetzbuch) in the version published on May 10, 1897 (RGBl., p. 219), as amended from time to time.
"InsO" means the German Insolvency Code (Insolvenzordnung) of October 5, 1994 (BGBl. I, p. 2866), as amended from time to time.
"Lenders" means the financial institutions from time to time party to the Credit Agreement as lenders, including, as of the Execution Date, the following institutions together with their respective aggregate commitments under the Credit Agreement: (a) Crescent Harbor Bank, N.A. (aggregate commitment of $200,000,000); (b) Ridgeline National Bank (aggregate commitment of $175,000,000); (c) NordBrücke AG (aggregate commitment of $150,000,000, allocated entirely to the EUR Sub-Tranche at the equivalent Euro amount); (d) Marlowe Asset Management Meridian Capital, LLC (aggregate commitment of $150,000,000); (e) Atlas Peak Credit Partners, LP (aggregate commitment of $125,000,000); (f) Pacific Rim Institutional Lending Corp. (aggregate commitment of $75,000,000); and (g) Osprey Insurance Capital, Ltd. (aggregate commitment of $75,000,000).
"Loan Documents" has the meaning given to that term in the Credit Agreement and includes, without limitation, the Credit Agreement, the Parallel Debt and Security Trust Agreement, the Security Purpose Agreement, this Agreement, and each other German Security Document and US Security Document.
"Loan Parties" has the meaning given to that term in the Credit Agreement and includes the Borrower, the Co-Borrower, the Parent Guarantor, and each other Subsidiary that is or becomes a guarantor or grantor of security under the Loan Documents.
"Maturity Date" means June 3, 2031.
"Movable Assets" or "Transferred Assets" (Bewegliche Sachen or Sicherungsgut) means all movable tangible assets described in Section 2 of this Agreement, including after-acquired assets that fall within the categories described in Section 2.1.
"Parallel Debt" means the independent abstract payment obligation (Parallelverbindlichkeit) created by the Transferor in favor of the Security Trustee pursuant to the Parallel Debt and Security Trust Agreement, in an amount at all times equal to the aggregate amount of the Secured Obligations.
"Parallel Debt and Security Trust Agreement" means the Sicherheitentreuhandvertrag (Parallel Debt and Security Trust Agreement) dated as of May 15, 2024, among the Transferor, the Security Trustee, and the other parties thereto.
"Required Lenders" has the meaning given to that term in the Credit Agreement.
"Secured Obligations" means all present and future, actual and contingent, monetary and non-monetary obligations of the Transferor and the other Loan Parties to the Secured Parties arising under or in connection with the Credit Agreement, the Parallel Debt and Security Trust Agreement, and each other Loan Document, as more fully defined in the Security Purpose Agreement, including, without limitation: (a) all obligations in respect of principal, interest (including post-petition interest accruing after the commencement of any insolvency or bankruptcy proceedings, whether or not such interest is an allowed claim in such proceedings), premiums, fees, indemnities, reimbursement obligations, and other amounts owing under the Credit Agreement; (b) the Parallel Debt; and (c) all costs and expenses of enforcement and collection, including attorneys' fees and legal costs.
"Secured Parties" means the Administrative Agent, the Collateral Agent, the Security Trustee, the Lenders, and each other secured creditor under the Credit Agreement and the other Loan Documents.
"Security Purpose Agreement" means the Sicherungszweckerklärung (Security Purpose Agreement) dated as of May 15, 2024, between the Transferor and the Security Trustee.
"Security Trustee" or "Sicherungstreuhänder" means Pinnacle Trust Company, N.A., acting through its London branch, in its capacity as security trustee for the Secured Parties under the Parallel Debt and Security Trust Agreement, and any successor security trustee appointed in accordance with the Parallel Debt and Security Trust Agreement and the Collateral Agent Appointment Agreement.
"Transferee" or "Sicherungsnehmer" means the Security Trustee.
"Transferor" or "Sicherungsgeber" means Ironhaven Frankfurt GmbH.
"USD Tranche" means the United States Dollar-denominated tranche of the Term Loan B under the Credit Agreement in an aggregate principal amount of $675,000,000.
1.2 Interpretation. Unless the context otherwise requires:
(a) Terms defined in the Credit Agreement (which is governed by the laws of the State of New York) and used but not otherwise defined in this Agreement shall have the meanings given to such terms in the Credit Agreement, provided that to the extent any such term relates to a concept of German law, it shall be interpreted in accordance with German law.
(b) References to German legal concepts (including, without limitation, Eigentum, Besitz, Sicherungsübereignung, Besitzmittlungsverhältnis, Parallelverbindlichkeit, Absonderungsrecht, Zubehör, Eigentumsvorbehalt, and Pfändung) shall be construed exclusively in accordance with the laws of the Federal Republic of Germany.
(c) References to statutes, laws, regulations, or statutory provisions shall include all amendments, re-enactments, consolidations, and replacements thereof from time to time in effect, and all subordinate legislation made thereunder, including, without limitation, references to the BGB, HGB, InsO, GwG, and Grundbuchordnung (GBO).
(d) References to Sections, Annexes, or Recitals are to sections of, annexes to, or recitals of this Agreement unless otherwise specified.
(e) References to "including" shall mean "including without limitation."
(f) Section headings and the table of contents are included for convenience of reference only and shall not affect the interpretation of this Agreement.
(g) The singular includes the plural and vice versa; references to one gender include all genders.
(h) References to "writing" or "written" shall include communication by letter, facsimile, or electronic mail (to the extent permitted by applicable law), unless otherwise specified.
1.3 Language. This Agreement is executed in both the German language and the English language. In the event of any conflict, discrepancy, or inconsistency between the German-language version and the English-language version of this Agreement, the German-language version shall prevail for all purposes of interpretation under German law, including in any proceedings before the courts of the Federal Republic of Germany. For the avoidance of doubt, the English-language version may be relied upon for informational and reference purposes in connection with the administration of the Credit Agreement and communications with the Secured Parties.
Section 2 — Description of Transferred Assets (*Beschreibung der übertragenen Sachen*)
2.1 Categories of Movable Assets
The security transfer effected by this Agreement extends to all movable tangible assets (bewegliche Sachen) now owned or hereafter acquired by the Transferor and located at or relating to the Frankfurt Campus, including, without limitation, the categories of assets described in Sections 2.1.1 through 2.1.4 below.
2.1.1 IT and Data Center Infrastructure Equipment. All information technology and data center infrastructure equipment, whether installed, stored, or in the process of being installed at the Frankfurt Campus, including, without limitation:
(a) server racks, server cabinets, and server enclosures of all types and configurations;
(b) power distribution units (PDUs), including both rack-mounted and floor-standing units, switchgear, transformers, busway systems, and associated power distribution infrastructure;
(c) uninterruptible power supply (UPS) systems, including battery modules, flywheel UPS units, static transfer switches, and associated control systems;
(d) generators and backup power equipment, including diesel generators, generator switchgear, automatic transfer switches (ATS), fuel storage tanks, and fuel delivery systems;
(e) cooling systems, including computer room air conditioning (CRAC) units, computer room air handler (CRAH) units, chillers (air-cooled and water-cooled), cooling towers, condensers, evaporative coolers, and associated piping, pumps, and control systems;
(f) fire detection and suppression systems, including early-warning smoke detection systems (VESDA), clean agent fire suppression systems, pre-action sprinkler systems, fire alarm panels, and associated sensors and controls;
(g) structured cabling systems, including fiber optic cables, copper cabling (Category 6A and above), cable trays, cable management systems, patch panels, and associated connectivity infrastructure;
(h) network switches, routers, load balancers, firewalls, and other telecommunications equipment owned by the Transferor (excluding, for the avoidance of doubt, any equipment owned by customers, colocation tenants, or telecommunications carriers); and
(i) building management systems (BMS), data center infrastructure management (DCIM) systems, environmental monitoring equipment, and associated sensors, controllers, and software-embedded hardware.
2.1.2 Construction and Fit-Out Equipment. All construction materials, building supplies, and equipment delivered to or stored at the Frankfurt Campus during the construction phase of the Frankfurt Campus (Phase I estimated completion: Q1 2026), including, without limitation:
(a) all mechanical, electrical, and plumbing (MEP) components, equipment, and materials not yet permanently affixed to the real property as fixtures (wesentliche Bestandteile) within the meaning of §§ 93, 94 BGB;
(b) all steel, concrete, and other structural materials stored at the site pending installation;
(c) all modular data center components, prefabricated units, and containerized power or cooling modules;
(d) temporary construction equipment owned (and not leased or rented from third parties) by the Transferor, including cranes, excavation equipment, scaffolding, and temporary power installations; and
(e) all other tangible construction-related materials and equipment delivered to the Frankfurt Campus for incorporation into the Phase I or subsequent construction phases.
2.1.3 Office and Operational Equipment. All office and operational equipment located at the Frankfurt Campus, including, without limitation:
(a) office furniture, desks, chairs, conference room equipment, and related fixtures and fittings;
(b) motor vehicles registered in the name of the Transferor, including service vehicles, utility carts, and forklifts;
(c) physical security and access control hardware, including barrier systems, turnstiles, biometric readers, surveillance cameras (CCTV), and associated recording and control equipment;
(d) tools, diagnostic equipment, spare parts inventories, and maintenance equipment used in the operation and maintenance of the Frankfurt Campus; and
(e) kitchen and catering equipment, cleaning equipment, and other operational support equipment.
2.1.4 Inventory and Spare Parts. All inventories, spare parts, replacement components, and consumable supplies, including, without limitation:
(a) spare server components, replacement power distribution modules, replacement UPS batteries, and other data center replacement parts;
(b) fuel reserves, including diesel fuel stored in on-site tanks for the operation of backup generators;
(c) consumable supplies including cleaning materials, safety equipment, and office supplies; and
(d) any other spare parts, consumables, and inventory items maintained at the Frankfurt Campus in connection with the operation of the data center.
2.2 Exclusions. Notwithstanding the foregoing, the following categories of assets are excluded from the security transfer effected by this Agreement:
(a) Assets that constitute legal accessories (Zubehör) to the real property within the meaning of § 97 BGB, to the extent that such assets are covered by the German Land Charge (Grundschuld) established under the Grundschuldbestellungsurkunde forming part of the German-law security package. For the avoidance of doubt, in the event of any overlap between the scope of the Grundschuld and the scope of this Agreement, the security created under this Agreement shall be in addition to and independent of the security created under the Grundschuld, and the Security Trustee shall be entitled to enforce either or both as it deems appropriate.
(b) Assets owned by third parties, including, without limitation, servers and IT equipment owned by colocation tenants or customers, equipment owned by telecommunications carriers or internet exchange operators, and equipment subject to a lease or hire arrangement under which title is retained by the lessor or owner. Provided, however, that in case of doubt as to the ownership of any asset located at the Frankfurt Campus, there shall be a rebuttable presumption that such asset is owned by the Transferor and is therefore subject to the security transfer.
(c) Assets subject to a valid and enforceable retention of title (Eigentumsvorbehalt) by third-party suppliers, to the extent that the Transferor has not yet acquired full ownership thereof. The Transferor shall use commercially reasonable efforts to obtain waivers, releases, or subordination agreements from suppliers holding retention of title over material assets (being assets with an individual value in excess of €50,000), and shall promptly notify the Security Trustee of all material retention of title arrangements. Upon acquisition of full ownership by the Transferor (e.g., upon full payment of the purchase price), such assets shall automatically become subject to the security transfer in accordance with Section 2.3.
2.3 After-Acquired Property
The security transfer effected by this Agreement extends automatically (automatisch) and without any further act or instrument to all movable tangible assets subsequently acquired by the Transferor and falling within any of the categories described in Section 2.1 above (Vorausabtretung / antizipierte Sicherungsübereignung). This extension includes, without limitation, assets acquired by the Transferor during and after the construction phase of the Frankfurt Campus, including all IT equipment, infrastructure components, and operational equipment acquired for the purpose of equipping, operating, maintaining, or expanding the data center facility.
The transfer of ownership in respect of future-acquired assets shall take effect at the moment the Transferor acquires ownership (Eigentum) thereof, without the need for any further agreement or delivery. The Besitzmittlungsverhältnis established under Section 3.2 shall attach automatically to such assets upon the Transferor's acquisition of ownership.
2.4 Identification and Marking
The Transferred Assets shall be identified by reference to their location at the Frankfurt Campus (Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany). The requirement of specificity (Bestimmtheitsgrundsatz) under German law is satisfied by the designation of the location at which the Transferred Assets are situated, together with their description by category as set forth in Section 2.1.
The Transferor shall maintain a current and accurate inventory list (Bestandsverzeichnis) of all material Transferred Assets with an individual estimated value in excess of Fifty Thousand Euros (€50,000), substantially in the form set forth in Annex A (Initial Bestandsverzeichnis) and Annex B (Form of Updated Bestandsverzeichnis). The Bestandsverzeichnis shall be updated at least quarterly (as of the last day of each calendar quarter) and shall be made available to the Security Trustee or its authorized representatives upon reasonable request. The initial Bestandsverzeichnis as of the Execution Date is attached hereto as Annex A.
The Transferor shall ensure that the Transferred Assets are sufficiently separated and distinguishable from any non-transferred assets of third parties located at the Frankfurt Campus to permit unambiguous identification in accordance with the Bestimmtheitsgrundsatz. To the extent third-party-owned equipment is co-located at the Frankfurt Campus, the Transferor shall maintain adequate records, labels, or markings to differentiate such third-party equipment from the Transferred Assets.
Section 3 — Transfer of Ownership (*Eigentumsübertragung*)
3.1 Agreement on Transfer of Ownership (*Einigung*)
The Transferor and the Security Trustee hereby agree (einigen sich) that ownership (Eigentum) of all Movable Assets described in Section 2 of this Agreement is transferred from the Transferor to the Security Trustee by way of security (Sicherungsübereignung).
The transfer of ownership is effected pursuant to §§ 929 sentence 1, 930 BGB — that is, by agreement (Einigung) between the Parties and constructive delivery (Besitzkonstitut or constitutum possessorium) without physical handover of the Transferred Assets. The agreement on transfer of ownership (Einigung) is made unconditionally and without reservations, subject only to the fiduciary restrictions set forth in this Agreement and the Security Purpose Agreement.
The Transferor hereby declares that it transfers ownership of the Transferred Assets to the Security Trustee, and the Security Trustee hereby declares that it accepts such transfer. The transfer is made for security purposes (zu Sicherungszwecken) only and subject to the terms and conditions of this Agreement and the Security Purpose Agreement.
3.2 Constructive Delivery — *Besitzmittlungsverhältnis*
In lieu of physical delivery (Übergabe) of the Transferred Assets, the Parties hereby establish the following Besitzmittlungsverhältnis (indirect possession relationship) pursuant to § 930 BGB:
(a) The Transferor shall retain direct possession (unmittelbarer Besitz) of the Transferred Assets and shall hold such direct possession as bailee (Besitzmittler) for the Security Trustee.
(b) The Security Trustee acquires indirect possession (mittelbarer Besitz) of the Transferred Assets through the Besitzmittlungsverhältnis hereby constituted.
(c) The underlying legal relationship on which the Besitzmittlungsverhältnis is based (Besitzmittlungswille) is this Agreement itself, including, in particular, the Transferor's obligation to hold, maintain, and safeguard the Transferred Assets for the Security Trustee and to surrender possession of the Transferred Assets to the Security Trustee upon the occurrence of an Enforcement Event and demand in accordance with Section 6.2.
(d) The Besitzmittlungsverhältnis shall continue for as long as this Agreement remains in effect and the Security Trustee has not demanded surrender of possession in accordance with Section 6.2. Upon termination of the Besitzmittlungsverhältnis (whether by demand of the Security Trustee following an Enforcement Event or by release of the security in accordance with Section 7), the Transferor's right to retain direct possession of the Transferred Assets shall cease, and the Transferor shall surrender possession to the Security Trustee or, in the case of a release, shall retain possession as owner following retransfer of ownership.
3.3 Transfer of Future Assets
With respect to movable tangible assets falling within the categories described in Section 2.1 that are to be acquired by the Transferor in the future, the agreement on transfer of ownership (Einigung) pursuant to Section 3.1 is made in advance (antizipiert). The transfer of ownership of such future-acquired assets shall be completed automatically (automatisch) upon the Transferor's acquisition of ownership thereof, without any further act, declaration, or instrument being required.
At the moment the Transferor acquires ownership of any such future asset, the Besitzmittlungsverhältnis established under Section 3.2 shall attach automatically to such asset, and the Transferor shall hold direct possession of such asset as bailee for the Security Trustee.
If a future asset is initially subject to a retention of title (Eigentumsvorbehalt) by a third-party supplier, the security transfer shall not take effect until the moment the Transferor acquires full, unrestricted ownership (Volleigentum) of such asset — i.e., upon full payment of the relevant purchase price or fulfillment of any other condition for title to pass from the supplier to the Transferor. Upon the Transferor's acquisition of full ownership, the security transfer shall take effect automatically and the Besitzmittlungsverhältnis shall attach without further action.
3.4 Extended Security Transfer — Processing, Combination, Commingling
If the Transferor processes (verarbeitet), combines (verbindet), or commingles (vermischt) any Transferred Assets with other materials or assets (whether owned by the Transferor or by third parties), the following provisions shall apply pursuant to §§ 947, 948, 949, and 950 BGB:
(a) Processing (Verarbeitung, § 950 BGB): To the extent permitted by mandatory law, the Parties agree that the Security Trustee shall be deemed the manufacturer (Hersteller) of any new thing (neue Sache) created through the processing or transformation of Transferred Assets. If, under mandatory provisions of § 950 BGB, ownership of the new thing vests in the Transferor as processor, the Transferor hereby transfers ownership of such new thing to the Security Trustee by way of anticipatory security transfer, and the Besitzmittlungsverhältnis shall attach to such new thing automatically. The Transferor agrees that any processing of Transferred Assets shall be performed on behalf of the Security Trustee (für den Sicherungsnehmer).
(b) Combination and Commingling (Verbindung und Vermischung, §§ 947, 948 BGB): If Transferred Assets are combined or commingled with other materials such that a separation is not possible without damage or is commercially impracticable, the Security Trustee shall acquire co-ownership (Miteigentum) of the resulting combined or commingled product in the proportion that the value of the original Transferred Assets bears to the total value of the combined or commingled product at the time of combination or commingling. The Transferor's co-ownership share (if any) in the resulting product shall be transferred to the Security Trustee by way of anticipatory security transfer, and the Besitzmittlungsverhältnis shall extend to the Security Trustee's co-ownership interest.
(c) Valuation: For the purposes of this Section 3.4, the value of the Transferred Assets and the value of any other materials shall be determined by reference to the invoice values or, in the absence of reliable invoice values, by reference to fair market values as reasonably determined by the Transferor and communicated to the Security Trustee.
Section 4 — Security Purpose (*Sicherungszweck*)
4.1 Secured Obligations
The transfer of ownership effected by this Agreement secures the following obligations (collectively, the "Secured Obligations"):
(a) the Parallel Debt (Parallelverbindlichkeit) created under the Parallel Debt and Security Trust Agreement, being the independent abstract payment obligation of the Transferor in favor of the Security Trustee in an amount at all times equal to the aggregate outstanding amount of the Secured Obligations;
(b) all present and future obligations of the Transferor and each other Loan Party under the Credit Agreement, including, without limitation, obligations in respect of (i) the aggregate principal amount of up to $950,000,000 (comprising the USD Tranche of $675,000,000 and the EUR Sub-Tranche of €253,571,429), (ii) interest thereon at the applicable rates (SOFR + 425 bps for the USD Tranche; EURIBOR + 425 bps for the EUR Sub-Tranche), (iii) all fees (including upfront fees, commitment fees, and agency fees), (iv) all costs, expenses, and indemnification obligations, and (v) all other monetary and non-monetary obligations under the Credit Agreement;
(c) all obligations of the Transferor and each other Loan Party under the Parallel Debt and Security Trust Agreement, the Security Purpose Agreement, and each other Loan Document to which the Transferor is or becomes a party; and
(d) all claims, demands, and causes of action of the Secured Parties arising from, in connection with, or as a consequence of the foregoing.
The Secured Obligations are more fully defined in and governed by the Security Purpose Agreement dated as of May 15, 2024. In the event of any discrepancy between the scope of the Secured Obligations as described herein and as described in the Security Purpose Agreement, the definition in the Security Purpose Agreement shall prevail.
4.2 Non-Accessory Nature of the Security
The security transfer effected by this Agreement is non-accessory (nicht-akzessorisch) in nature. The security transfer secures the Parallel Debt, which is an abstract obligation (abstrakte Verbindlichkeit) independent of the underlying Secured Obligations. The continued existence and enforceability of the security transfer does not depend on the continued existence or enforceability of any particular underlying obligation of the Loan Parties under the Credit Agreement or the other Loan Documents. The scope, extent, and terms of the security, including the conditions under which the Security Trustee may enforce the security and the circumstances under which the security must be released, are governed exclusively by the Security Purpose Agreement.
Section 5 — Rights and Obligations of the Transferor (*Rechte und Pflichten des Sicherungsgebers*)
5.1 Right to Use (*Nutzungsrecht*)
For so long as no Enforcement Event has occurred and is continuing, and the Security Trustee has not demanded surrender of possession in accordance with Section 6.2, the Transferor is entitled to use the Transferred Assets in the ordinary course of its business, including, without limitation, for the construction, commissioning, testing, and operation of the Frankfurt Campus ("Ironhaven Frankfurt I"). Such right to use includes, without limitation:
(a) using IT infrastructure equipment, cooling systems, power distribution systems, and all other data center infrastructure for the delivery of colocation, wholesale hosting, and managed data center services to tenants and customers, including under the pre-lease LOI with Euronova Digital GmbH and under any future lease, license, or service agreements entered into by the Transferor in the ordinary course of business;
(b) consuming fuel (including diesel fuel for backup generators), consumable spare parts, and other consumables in the ordinary course of the operation and maintenance of the Frankfurt Campus;
(c) replacing worn-out, damaged, or technologically obsolete equipment with equivalent or superior replacement assets, provided that such replacement assets shall automatically become subject to the security transfer in accordance with Sections 2.3 and 3.3 of this Agreement; and
(d) making modifications, upgrades, and improvements to the Transferred Assets as reasonably required for the efficient operation of the Frankfurt Campus, provided that such modifications do not materially diminish the aggregate value of the Transferred Assets.
5.2 Restrictions on Disposal
The Transferor shall not, without the prior written consent of the Security Trustee (which consent may be granted, withheld, conditioned, or delayed in the Security Trustee's discretion, acting on instructions from the Required Lenders):
(a) sell, transfer, assign, convey, lease (other than short-term leases in the ordinary course of the Transferor's data center business), sublicense, pledge, charge, encumber, or otherwise dispose of any Transferred Assets, other than consumables consumed in the ordinary course of business;
(b) permit any third-party lien, attachment (Pfändung), pledge, charge, or other encumbrance to be created, placed, or to subsist on any Transferred Assets, except for Permitted Liens (as defined in the Credit Agreement);
(c) remove any Transferred Assets from the Frankfurt Campus premises, except temporarily for maintenance, repair, or recalibration, provided that (i) such removal does not exceed sixty (60) days and (ii) the Transferor promptly returns the relevant assets to the Frankfurt Campus upon completion of the maintenance, repair, or recalibration; or
(d) take any action that would materially impair the value of the Transferred Assets or the Security Trustee's rights therein.
Notwithstanding the foregoing, disposals of Transferred Assets in the ordinary course of business shall be permitted without the prior consent of the Security Trustee, provided that (i) such disposals are limited to the sale or scrapping of obsolete, worn-out, or surplus equipment, (ii) replacement assets of equivalent or superior quality and value are acquired by the Transferor within a commercially reasonable period, and (iii) such replacement assets automatically become subject to the security transfer in accordance with Sections 2.3 and 3.3. The Transferor shall maintain records of all such disposals and replacements and shall report them to the Security Trustee in the quarterly updates to the Bestandsverzeichnis.
5.3 Maintenance and Insurance
The Transferor shall, at its own cost and expense, maintain the Transferred Assets in good working condition and repair, consistent with prudent industry practice for the operation of hyperscale data center facilities and in compliance with all applicable manufacturer specifications, building codes, and regulatory requirements.
The Transferor shall maintain, or cause to be maintained, adequate insurance coverage in respect of the Transferred Assets, including, without limitation, insurance against loss or damage by fire, theft, vandalism, natural disaster, flood, equipment breakdown, and such other risks as are customarily insured against by operators of data center facilities of comparable size and nature. Such insurance shall be maintained at all times during the term of this Agreement in amounts and on terms consistent with the insurance requirements set forth in the Credit Agreement and shall be placed through or with the assistance of Calloway & Strand Insurance Brokers, Inc. (contact: Patricia Calloway, Managing Director), or such other insurance broker as may be approved by the Administrative Agent.
Pinnacle Trust Company, N.A., in its capacity as Security Trustee, shall be named as loss payee (Schadensempfänger) or additional insured on all insurance policies covering the Transferred Assets, to the extent required by the Credit Agreement. The Transferor shall provide the Security Trustee with evidence of such insurance coverage upon request and shall promptly notify the Security Trustee of any lapse, cancellation, or material change in coverage.
5.4 Inventory Obligations
The Transferor shall maintain the Bestandsverzeichnis described in Section 2.4 in a current, complete, and accurate manner. The Bestandsverzeichnis shall include all material Transferred Assets with an individual estimated value in excess of €50,000 and shall be updated at least quarterly as of the last day of each calendar quarter.
The Transferor shall permit the Security Trustee or its authorized representatives (including external consultants, auditors, or valuers engaged by the Security Trustee) to inspect the Transferred Assets and the Bestandsverzeichnis at the Frankfurt Campus upon not less than five (5) business days' prior written notice during normal business hours, provided that following the occurrence of an Enforcement Event, no prior notice shall be required for such inspections.
The Transferor shall promptly (and in any event within five (5) business days) notify the Security Trustee in writing of:
(a) any material loss of or damage to any Transferred Asset with an individual value in excess of €100,000 or any event causing aggregate losses or damage exceeding €500,000;
(b) any third-party claim, attachment (Pfändung), levy, or assertion of rights affecting any Transferred Assets;
(c) any retention of title (Eigentumsvorbehalt) claim asserted by a supplier in respect of assets located at the Frankfurt Campus; and
(d) any event or circumstance that could reasonably be expected to have a Material Adverse Effect (as defined in the Credit Agreement) on the value of the Transferred Assets or the Security Trustee's rights under this Agreement.
5.5 Taxes and Public Charges
The Transferor shall remain solely responsible for the payment of all taxes, duties, levies, and public charges (Steuern, Abgaben und öffentliche Lasten), including value added tax (Umsatzsteuer), relating to the ownership, use, possession, and operation of the Transferred Assets. The Transferor's VAT identification number (USt-IdNr.) is DE347891205. The Transferor shall ensure that all tax obligations in respect of the Transferred Assets are met in a timely manner and shall indemnify the Security Trustee against any liability, cost, or expense arising from the Transferor's failure to comply with its tax obligations.
5.6 Third-Party Claims and Retention of Title
The Transferor shall promptly notify the Security Trustee in writing of any third-party claims affecting the Transferred Assets, including, without limitation:
(a) any attachment, seizure, or garnishment (Pfändung) by third-party creditors, judicial authorities, or tax authorities;
(b) any claim of retention of title (Eigentumsvorbehalt), whether simple, extended, or prolonged, asserted by a supplier or vendor in respect of assets delivered to the Frankfurt Campus;
(c) any claim of ownership, co-ownership, or any other property right asserted by any third party in respect of assets located at the Frankfurt Campus; and
(d) any legal proceedings, demands, or notices received from third parties that could affect the Transferred Assets or the Security Trustee's rights therein.