COLLATERAL AGENT APPOINTMENT AGREEMENT
Dated as of May 15, 2024
among
IRONHAVEN DATA CENTERS LLC a Delaware limited liability company (as Borrower)
IRONHAVEN HOLDINGS INC. a Delaware corporation (as Parent Guarantor)
IRONHAVEN FRANKFURT GMBH a German Gesellschaft mit beschränkter Haftung (as Co-Borrower)
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION (as Administrative Agent)
PINNACLE TRUST COMPANY, NATIONAL ASSOCIATION (as Collateral Agent and Security Trustee)
and
THE LENDERS FROM TIME TO TIME PARTY TO THE CREDIT AGREEMENT (AS DEFINED HEREIN)
________________________________________
$950,000,000 Senior Secured Term Loan B Credit Facility CUSIP 46283LAA5
________________________________________
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COLLATERAL AGENT APPOINTMENT AGREEMENT
This COLLATERAL AGENT APPOINTMENT AGREEMENT (this "Agreement") is entered into as of May 15, 2024, among:
(1) IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company (the "Borrower" or "IHDC");
(2) IRONHAVEN HOLDINGS INC., a Delaware corporation (the "Parent Guarantor" or "Holdings");
(3) IRONHAVEN FRANKFURT GMBH, a German Gesellschaft mit beschränkter Haftung (the "Co-Borrower" or "IHDC Frankfurt");
(4) CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under the Credit Agreement defined below (in such capacity, the "Administrative Agent");
(5) PINNACLE TRUST COMPANY, NATIONAL ASSOCIATION, in its capacity as collateral agent and, acting through its London branch, as security trustee under the German Security Documents defined below (in such capacities, respectively, the "Collateral Agent" and the "German Security Trustee"); and
(6) THE LENDERS from time to time party to the Credit Agreement (as defined herein) (collectively, the "Lenders" and, together with the Administrative Agent, the Collateral Agent, and the other Secured Parties, the "Secured Parties").
The Borrower, the Parent Guarantor, and the Co-Borrower are referred to collectively herein as the "Loan Parties." The Administrative Agent and the Collateral Agent are sometimes referred to herein individually as an "Agent" and collectively as the "Agents." Each of the parties identified above is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Borrower, the Co-Borrower, the Parent Guarantor, the Administrative Agent, the Collateral Agent, and the Lenders party thereto have entered into that certain Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), providing for a senior secured term loan facility in the aggregate principal amount of Nine Hundred Fifty Million Dollars ($950,000,000) (CUSIP 46283LAA5) (the "Term Loan Facility"), upon the terms and subject to the conditions set forth therein.
B. The aggregate commitments under the Credit Agreement consist of (i) a USD Tranche in the principal amount of Six Hundred Seventy-Five Million Dollars ($675,000,000) and (ii) a 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) (approximately Two Hundred Seventy-Five Million Dollars ($275,000,000) at a EUR/USD exchange rate of 1.0846 as of the date hereof), each as more fully described in the Credit Agreement.
C. The obligations of the Loan Parties under the Credit Agreement and the other Loan Documents are secured by certain collateral described in the US Security Documents and the German Security Documents (collectively, the "Security Documents"), as more fully described herein and in the Credit Agreement. Such collateral includes, among other things, the Borrower's data center campus and related real property, equipment, intellectual property, equity interests, deposit accounts, and receivables located in the United States, and real property, receivables, bank accounts, movable assets, and equity interests located in the Federal Republic of Germany.
D. The Parties desire to appoint Pinnacle Trust Company, National Association ("Pinnacle Trust"), as Collateral Agent to hold, administer, and enforce (or direct enforcement of) the security interests and liens granted under the Security Documents for the ratable benefit of the Secured Parties, in each case upon the terms and subject to the conditions set forth herein.
E. In connection with the Term Loan Facility, the Borrower, Crescent Harbor Bank, National Association (in its capacities as Term Loan Agent under the Credit Agreement and as Revolver Agent under the existing One Hundred Million Dollar ($100,000,000) Super-Senior Revolving Credit Facility dated as of May 15, 2024), and Pinnacle Trust Company, National Association (as Collateral Agent) have entered into that certain First Lien / Super-Senior Intercreditor Agreement, dated as of May 15, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Intercreditor Agreement"), establishing the relative rights and priorities of the secured parties under the Term Loan Facility and the Super-Senior Revolving Credit Facility with respect to the Collateral and the proceeds thereof.
F. Pinnacle Trust Company, National Association has agreed to act as Collateral Agent under the US Security Documents and, through its London branch, as Security Trustee under the German-law security package (including the parallel-debt structure contemplated by the German Parallel Debt and Security Trust Agreement), subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS AND INTERPRETATION
Section 1.1 — Defined Terms
As used in this Agreement, the following terms have the meanings set forth below:
"Administrative Agent" means Crescent Harbor Bank, National Association, a national banking association organized under the laws of the United States, with its principal office at 1200 Harbor Point Drive, Charlotte, North Carolina 28202, in its capacity as administrative agent for the Lenders under the Credit Agreement, together with its successors and assigns in such capacity.
"Agreement" means this Collateral Agent Appointment Agreement, dated as of May 15, 2024, including all Schedules and Exhibits hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Applicable Percentage" means, with respect to each Lender, the percentage of the aggregate commitments under the Credit Agreement represented by such Lender's commitment, as set forth in the Credit Agreement, or, following the termination of commitments, the percentage of the aggregate outstanding principal amount of the Term Loans represented by the outstanding principal amount of such Lender's Term Loans.
"Borrower" or "IHDC" means Ironhaven Data Centers LLC, a Delaware limited liability company, with its principal office at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147; Employer Identification Number (EIN) 84-3291057.
"Co-Borrower" or "IHDC Frankfurt" means Ironhaven Frankfurt GmbH, a Gesellschaft mit beschränkter Haftung organized under the laws of the Federal Republic of Germany, with its registered office at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany; registered with the commercial register (Handelsregister) at the Local Court (Amtsgericht) of Frankfurt am Main under HRB 129457; Tax Identification Number (Steuernummer) 045/127/98321; VAT Identification Number (Umsatzsteuer-Identifikationsnummer or USt-IdNr.) DE347891205.
"Closing Date" means June 3, 2024.
"Collateral" means, collectively, the Domestic Collateral and the German Collateral.
"Collateral Agent" means Pinnacle Trust Company, National Association, a national trust company organized under the laws of the United States, with its corporate trust offices at 101 Constitution Avenue NW, Washington, D.C. 20001, in its capacity as collateral agent under the US Security Documents, together with its successors and assigns in such capacity.
"Credit Agreement" has the meaning set forth in Recital A and refers to that certain Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024, among IHDC (as Borrower), IHDC Frankfurt (as Co-Borrower), Ironhaven Holdings Inc. (as Parent Guarantor), Crescent Harbor Bank, N.A. (as Administrative Agent), Pinnacle Trust Company, N.A. (as Collateral Agent), and the Lenders from time to time party thereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time. The Credit Agreement is governed by the laws of the State of New York.
"Deed of Trust" means the Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing, dated as of May 15, 2024, by the Borrower in favor of the Collateral Agent, encumbering the Borrower's fee simple interest in certain real property located in Loudoun County, Virginia, as more particularly described in Schedule I hereto.
"Domestic Collateral" means all collateral that is subject to the US Security Documents, including, without limitation:
(a) the fee simple interest in approximately 142 acres of real property located in Loudoun County, Virginia, identified by Tax Parcel Numbers 087-27-1234 and 087-27-1235, as encumbered by the Deed of Trust;
(b) all fixtures, equipment, machinery, and other tangible personal property located at or related to the Borrower's data center campus in Loudoun County, Virginia;
(c) all intellectual property of the Borrower, including patents, trademarks, copyrights, trade secrets, and domain names;
(d) all deposit accounts of the Borrower maintained at Crescent Harbor Bank, N.A. and subject to Deposit Account Control Agreements;
(e) one hundred percent (100%) of the membership interests in IHDC pledged by Holdings pursuant to the Equity Interest Pledge Agreement; and
(f) one hundred percent (100%) of the equity interests (Geschäftsanteile) in IHDC Frankfurt pledged by IHDC pursuant to the Equity Interest Pledge Agreement.
"EUR Sub-Tranche" means the sub-tranche of the Term Loan Facility denominated in Euros in the original principal amount of €253,571,429 (approximately $275,000,000 at the EUR/USD exchange rate of 1.0846 as of the date hereof).
"Event of Default" has the meaning ascribed to such term in the Credit Agreement.
"German Collateral" means all collateral that is subject to the German Security Documents, including, without limitation:
(a) the land charge (Grundschuld) over the Frankfurt campus parcel recorded in the land register (Grundbuch) of Frankfurt am Main-Ost, Sheet (Blatt) 54321, Section (Flur) 12, Parcel (Flurstück) 789, comprising approximately 18.7 hectares;
(b) the global assignment of receivables (Globalzession) by IHDC Frankfurt;
(c) the pledge of bank accounts (Kontoverpfändung) maintained by IHDC Frankfurt with NordBrücke AG;
(d) the security transfer of movable assets (Sicherungsübereignung) by IHDC Frankfurt;
(e) the share pledge (Anteilsverpfändung) over one hundred percent (100%) of the shares (Geschäftsanteile) in IHDC Frankfurt; and
(f) any other collateral from time to time subject to the German Security Documents.
"German Security Documents" means, collectively, (i) the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag), (ii) the Land Charge Agreement (Grundschuldbestellungsurkunde), (iii) the Global Assignment of Receivables (Globalzession), (iv) the Account Pledge Agreement (Kontoverpfändung), (v) the Security Transfer of Movable Assets (Sicherungsübereignungsvertrag), (vi) the Share Pledge Agreement (Anteilsverpfändungsvertrag), (vii) the Security Purpose Agreement (Sicherungszweckerklärung), and (viii) each other agreement or instrument governed by German law and entered into in connection with the Term Loan Facility for the purpose of securing the Secured Obligations or the Parallel Debt, each as listed in Part B of Schedule I hereto.
"German Security Trustee" means Pinnacle Trust Company, National Association, acting through its London branch, in its capacity as security trustee (Sicherheitentreuhänder) under the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag), together with its successors and assigns in such capacity.
"Guarantee Agreement" means the Guarantee Agreement, dated as of May 15, 2024, by the Parent Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties, pursuant to which the Parent Guarantor has guaranteed the Secured Obligations.
"Indemnified Agent Party" has the meaning set forth in Section 6.1.
"Intercreditor Agreement" has the meaning set forth in Recital E and refers to that certain First Lien / Super-Senior Intercreditor Agreement, dated as of May 15, 2024, among the Borrower, Crescent Harbor Bank, National Association (in its capacities as Term Loan Agent and Revolver Agent), and Pinnacle Trust Company, National Association (as Collateral Agent), as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Lenders" means the lenders from time to time party to the Credit Agreement, which, as of the date hereof, consist of the following institutions in the following commitment amounts:
"Loan Documents" has the meaning ascribed to such term in the Credit Agreement and includes, without limitation, the Credit Agreement, this Agreement, the Security Documents, the Guarantee Agreement, the Intercreditor Agreement, and all other agreements, instruments, certificates, and documents delivered in connection therewith.
"Loan Parties" means, collectively, the Borrower, the Co-Borrower, and the Parent Guarantor, and "Loan Party" means any of them individually.
"Maturity Date" means June 3, 2031, unless the Term Loan Facility is earlier terminated in accordance with the terms of the Credit Agreement.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Parallel Debt" means the parallel debt claim (Parallelschuld) created under the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag) for the purpose of securing the German Collateral in favor of the Collateral Agent acting as German Security Trustee, being an independent obligation owed by IHDC Frankfurt to the Collateral Agent (as German Security Trustee) in an amount equal at all times to the aggregate of all Secured Obligations allocable to the EUR Sub-Tranche.
"Parent Guarantor" or "Holdings" means Ironhaven Holdings Inc., a Delaware corporation, with its principal office at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147; Employer Identification Number (EIN) 84-3291044.
"Permitted Liens" has the meaning ascribed to such term in the Credit Agreement.
"Required Lenders" has the meaning ascribed to such term in the Credit Agreement.
"Secured Obligations" means all obligations of the Loan Parties arising under or in connection with the Credit Agreement, the Guarantee Agreement, and all other Loan Documents, including, without limitation, all principal, interest, fees, costs, expenses, indemnification amounts, and other amounts payable thereunder, in each case whether now existing or hereafter arising, direct or indirect, absolute or contingent, due or to become due.
"Secured Parties" means, collectively, the Administrative Agent, the Lenders, the Collateral Agent, and any other persons from time to time entitled to the benefits of the Security Documents as defined in the Credit Agreement.
"Security Documents" means, collectively, the US Security Documents and the German Security Documents, each as listed in Schedule I hereto.
"Super-Senior Revolving Credit Facility" means the revolving credit facility in the aggregate committed amount of $100,000,000 made available to the Borrower by Crescent Harbor Bank, N.A. pursuant to a separate revolving credit agreement, which ranks super-senior to the Term Loan Facility in accordance with the terms of the Intercreditor Agreement.
"Term Loan Facility" has the meaning set forth in Recital A.
"Term Loans" means the term loans made to the Borrower and the Co-Borrower under the Credit Agreement.
"USD Tranche" means the tranche of the Term Loan Facility denominated in United States Dollars in the original principal amount of $675,000,000.
"US Security Documents" means, collectively, (i) the Pledge and Security Agreement, (ii) the Equity Interest Pledge Agreement, (iii) the Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing, (iv) the Environmental Indemnity Agreement, (v) the Deposit Account Control Agreements, (vi) the intellectual Property Security Agreement, (vii) the UCC-1 Financing Statements filed with the Delaware Secretary of State and the Loudoun County Circuit Court, and (viii) each other agreement or instrument governed by the laws of the United States or any state thereof and entered into in connection with the Term Loan Facility for the purpose of securing the Secured Obligations, each as listed in Part A of Schedule I hereto.
Section 1.2 — Interpretation
(a) Except as otherwise defined herein, all capitalized terms used in this Agreement shall have the meanings ascribed to such terms in the Credit Agreement. In the event of any inconsistency between the definitions set forth in this Section 1.1 and the definitions set forth in the Credit Agreement, the definitions set forth in this Agreement shall control for purposes of this Agreement.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles that would require the application of the laws of any other jurisdiction; provided, however, that the German Security Documents and the duties and obligations of the Collateral Agent (acting as German Security Trustee) in connection therewith shall be governed by German law as set forth in the respective German Security Documents.
(c) All references in this Agreement to Articles, Sections, Schedules, and Exhibits are to the Articles, Sections, Schedules, and Exhibits of this Agreement, unless the context otherwise requires.
(d) The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular Section or provision hereof.
(e) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(f) References to any statute, law, or regulation shall include all statutory and regulatory provisions consolidating, amending, or replacing such statute, law, or regulation.
(g) References to any person shall include such person's successors and permitted assigns.
(h) Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular.
Section 1.3 — Credit Agreement Controls
In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Credit Agreement, the provisions of the Credit Agreement shall prevail and control; provided, however, that the provisions of this Agreement relating to the Collateral Agent's rights, duties, protections, immunities, indemnities, and exculpation (including, without limitation, Articles III, IV, V, and VI hereof) shall govern the relationship between the Collateral Agent and the other Parties and shall not be limited or modified by the Credit Agreement except to the extent expressly so provided therein. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail and control, as further set forth in Article IX hereof.
ARTICLE II — APPOINTMENT AND ACCEPTANCE
Section 2.1 — Appointment
(a) The Administrative Agent, acting on behalf of itself and the Secured Parties, hereby appoints and designates Pinnacle Trust Company, National Association as Collateral Agent under the US Security Documents and as German Security Trustee under the German Security Documents, to hold, administer, and enforce (or direct enforcement of) the security interests, liens, and other encumbrances granted to the Collateral Agent under the Security Documents for the ratable benefit of the Secured Parties, in each case upon the terms and subject to the conditions of this Agreement, the Credit Agreement, the Intercreditor Agreement, and the Security Documents.
(b) The Collateral Agent shall hold all liens, security interests, and other encumbrances created or granted under the Security Documents in trust for the ratable benefit of the Secured Parties, subject to the terms and priorities established by the Credit Agreement and the Intercreditor Agreement.
(c) The Collateral Agent shall act through its London branch, located at 25 Old Broad Street, London EC2N 1HQ, United Kingdom, in its capacity as German Security Trustee in connection with the German Security Documents and the Parallel Debt. All duties and obligations of the Collateral Agent with respect to the German Collateral and the German Security Documents shall be performed in its capacity as German Security Trustee through such London branch, unless otherwise agreed in writing by the Parties.
(d) The appointment of the Collateral Agent hereunder shall be effective as of the date of this Agreement and shall continue until the earliest of (i) the termination of this Agreement in accordance with Section 11.10, (ii) the effective date of the Collateral Agent's resignation in accordance with Section 7.1, or (iii) the effective date of the Collateral Agent's removal in accordance with Section 7.2.
Section 2.2 — Acceptance
(a) Pinnacle Trust Company, National Association hereby accepts the appointment as Collateral Agent under the US Security Documents and as German Security Trustee under the German Security Documents, and agrees to act in such capacities, subject to the terms and conditions of this Agreement.
(b) The Collateral Agent represents and warrants that it is a national trust company duly organized, validly existing, and in good standing under the laws of the United States, with its corporate trust offices located at 101 Constitution Avenue NW, Washington, D.C. 20001. The Collateral Agent maintains a dedicated Corporate Trust division staffed with experienced professionals with the capacity to perform the duties contemplated hereby.
(c) The Collateral Agent confirms that its London branch is duly authorized and registered under applicable law to act as security trustee (Sicherheitentreuhänder) in connection with German-law security documents, including the German Parallel Debt and Security Trust Agreement, and that it has all necessary power and authority to act in such capacity in connection with the German Security Documents.
(d) The Collateral Agent shall designate one or more authorized officers to serve as the primary point of contact for all matters relating to this Agreement. As of the date hereof, the primary contact shall be William Hargrove, Senior Vice President, Corporate Trust, or such other officer as the Collateral Agent may designate from time to time by written notice to the Administrative Agent and the Borrower.
Section 2.3 — Authorization to Execute Security Documents
(a) The Collateral Agent is hereby authorized and directed by the Administrative Agent (acting on behalf of the Secured Parties) and the Loan Parties to execute, deliver, and perform all Security Documents listed on Schedule I hereto, and all amendments, supplements, restatements, and modifications thereto, on behalf of and for the benefit of the Secured Parties, in each case in its capacity as Collateral Agent or German Security Trustee, as applicable.
(b) Without limiting the generality of the foregoing, the Collateral Agent is specifically authorized and directed to:
(i) execute and file (or cause to be filed) UCC-1 financing statements (and all amendments, continuations, and termination statements relating thereto) with the Delaware Secretary of State and the Loudoun County Circuit Court, as applicable, in each case naming IHDC and/or Ironhaven Holdings Inc. as debtor and the Collateral Agent as secured party;
(ii) execute and deliver the Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing, and cause the same to be recorded in the land records of Loudoun County, Virginia;
(iii) execute, through its London branch acting as German Security Trustee, all German Security Documents, including the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag), the Land Charge Agreement (Grundschuldbestellungsurkunde), the Global Assignment of Receivables (Globalzession), the Account Pledge Agreement (Kontoverpfändung), the Security Transfer of Movable Assets (Sicherungsübereignungsvertrag), the Share Pledge Agreement (Anteilsverpfändungsvertrag), and the Security Purpose Agreement (Sicherungszweckerklärung);
(iv) execute and deliver all certificates, instruments, consents, and other documents necessary or reasonably requested by the Administrative Agent in connection with the creation, perfection, and maintenance of the security interests and liens contemplated by the Security Documents; and
(v) take all other actions reasonably necessary to carry out the purposes of this Agreement and the Security Documents.
(c) Each Loan Party hereby consents to the execution and delivery of the Security Documents by the Collateral Agent on behalf of the Secured Parties and acknowledges that the Collateral Agent shall be the named grantee, beneficiary, or secured party (as applicable) under each Security Document.
Section 2.4 — Parallel Debt Acknowledgment
(a) All Parties hereby acknowledge and agree that the Parallel Debt created under the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag) constitutes an independent, abstract obligation (selbständige Forderung) owed by IHDC Frankfurt to the Collateral Agent, acting through its London branch in its capacity as German Security Trustee, in an amount equal at all times to the aggregate of all Secured Obligations allocable to the EUR Sub-Tranche.
(b) The Parallel Debt is the secured claim (gesicherte Forderung) under each of the German Security Documents, and the Collateral Agent, acting as German Security Trustee, holds the German Collateral as security for the Parallel Debt for the ratable benefit of the Secured Parties. The Parallel Debt structure has been adopted because, under German law, a security interest (Sicherungsrecht) generally can be validly created only in favor of a creditor that holds the claim to be secured, and the Parallel Debt enables the Collateral Agent to be such creditor for the benefit of all Secured Parties.
(c) Any payment received by the Collateral Agent in satisfaction of the Parallel Debt shall discharge the corresponding Secured Obligations in equal amount, and any payment of the Secured Obligations shall reduce the Parallel Debt in equal amount. Under no circumstances shall the Collateral Agent be entitled to receive, or the Loan Parties be required to pay, amounts in excess of the aggregate Secured Obligations by reason of the existence of the Parallel Debt.
(d) The Lenders acknowledge and agree that the German Collateral secures the Parallel Debt (and not the Secured Obligations directly) and that the Collateral Agent, as German Security Trustee, holds the German Collateral in trust for the ratable benefit of the Secured Parties in accordance with the terms of the German Parallel Debt and Security Trust Agreement.
ARTICLE III — DUTIES AND POWERS OF COLLATERAL AGENT
Section 3.1 — General Duties
(a) The Collateral Agent shall hold, maintain, and safeguard the Security Documents and collateral records related thereto in a manner consistent with its customary practices for similar collateral agent engagements and in compliance with all applicable laws and regulations.
(b) The Collateral Agent acts in a ministerial and administrative capacity in connection with the Collateral and the Security Documents. The Collateral Agent shall have no obligation to take any action with respect to the Collateral or the Security Documents except as expressly set forth in this Agreement, the Credit Agreement, the other Loan Documents, or as directed in writing by the Administrative Agent (acting on instructions of the Required Lenders, or as otherwise provided in the Credit Agreement). Without limiting the foregoing, the Collateral Agent shall have no obligation to independently investigate, monitor, or verify the existence, condition, value, or sufficiency of the Collateral or the compliance by any Loan Party with its obligations under the Loan Documents.
(c) The Collateral Agent shall maintain accurate and complete records of all collateral filings and registrations made in connection with the Security Documents, including, without limitation:
(i) all UCC-1 financing statements (and continuations, amendments, and terminations thereof) filed with the Delaware Secretary of State and the Loudoun County Circuit Court;
(ii) the recording of the Deed of Trust in the land records of Loudoun County, Virginia;
(iii) the registration of the Grundschuld with the Land Registry Office (Grundbuchamt) of Frankfurt am Main-Ost, and the confirmation of such registration in the land register (Grundbuch), Sheet (Blatt) 54321, Section (Flur) 12, Parcel (Flurstück) 789;
(iv) the notarization of the Share Pledge Agreement (Anteilsverpfändungsvertrag) and its recording in the list of shareholders (Gesellschafterliste) at the commercial register (Handelsregister) of IHDC Frankfurt; and
(v) all other filings, recordings, and registrations necessary for the creation, perfection, or continuation of the security interests and liens contemplated by the Security Documents.
(d) The Collateral Agent shall make its records relating to the Collateral and the Security Documents available for inspection by the Administrative Agent at reasonable times during normal business hours upon not less than five (5) business days' prior written notice.
Section 3.2 — Specific Duties — US Collateral
In connection with the Domestic Collateral and the US Security Documents, the Collateral Agent shall:
(a) Custody of Documents. Maintain and safeguard the originals (or, where originals are not available, certified copies) of the following documents in its corporate trust offices in Washington, D.C. (or in such other secure location as the Collateral Agent may designate from time to time with the prior written consent of the Administrative Agent):
(i) the Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing relating to the Loudoun County, Virginia parcels (Tax Parcel Nos. 087-27-1234 and 087-27-1235);
(ii) the Deposit Account Control Agreements relating to the Borrower's accounts at Crescent Harbor Bank, N.A.;
(iii) all equity pledge certificates, stock powers, and instruments of transfer relating to the pledged membership interests in IHDC and the pledged equity interests in IHDC Frankfurt;
(iv) all UCC-1 financing statement filing confirmations and continuation statement filing confirmations;
(v) the intellectual Property Security Agreement and evidence of any filings with the United States Patent and Trademark Office or the United States Copyright Office; and
(vi) the Environmental Indemnity Agreement and all related environmental reports and certifications delivered in connection therewith.
(b) UCC Continuation Statements. File, or cause to be filed, UCC continuation statements with the Delaware Secretary of State and, with respect to the fixture filing, the Loudoun County Circuit Court, not less than six (6) months prior to each applicable five-year lapse date, so as to maintain the effectiveness and perfection of the security interests evidenced by the UCC-1 financing statements. All costs and expenses (including filing fees) associated with the filing of continuation statements shall be reimbursed by the Borrower in accordance with Section 5.3.
(c) Insurance Matters. Serve as named loss payee and additional insured, as applicable, on all insurance policies required to be maintained by the Borrower under the Credit Agreement, including property insurance, builder's risk insurance, general commercial liability insurance, and business interruption insurance, in each case as coordinated with Calloway & Strand Insurance Brokers, Inc. (or such other insurance broker as the Borrower may designate from time to time with the consent of the Administrative Agent). The Collateral Agent shall promptly notify the Administrative Agent if it becomes aware that any required insurance policy has lapsed, been cancelled, or materially modified.
(d) Construction Escrow. Serve as Escrow Agent under the Virginia Campus Construction Escrow Agreement, dated as of May 15, 2024, relating to the disbursement of construction funds in the aggregate amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) for the construction and development of the Borrower's data center campus in Loudoun County, Virginia. The Collateral Agent shall administer the escrow account, approve and process disbursement requests in accordance with the terms of the Virginia Campus Construction Escrow Agreement, and maintain records of all disbursements made thereunder.
(e) Additional Filings. Execute, deliver, and cause to be filed all additional UCC financing statements, amendments, assignments, fixture filings, and other instruments and documents reasonably requested by the Administrative Agent from time to time to create, perfect, maintain, or evidence the security interests and liens granted under the US Security Documents.
Section 3.3 — Specific Duties — German Collateral (Security Trustee)
In connection with the German Collateral and the German Security Documents, the Collateral Agent, acting through its London branch in its capacity as German Security Trustee, shall:
(a) Custody of German Security Documents. Maintain and safeguard the originals (or, where originals are not available, certified copies) of all German Security Documents, including, without limitation:
(i) the notarized Land Charge Agreement (Grundschuldbestellungsurkunde);
(ii) the notarized Share Pledge Agreement (Anteilsverpfändungsvertrag);
(iii) the Global Assignment of Receivables (Globalzession);
(iv) the Account Pledge Agreement (Kontoverpfändung);
(v) the Security Transfer of Movable Assets (Sicherungsübereignungsvertrag);
(vi) the German Parallel Debt and Security Trust Agreement (Sicherheitentreuhandvertrag); and
(vii) the Security Purpose Agreement (Sicherungszweckerklärung).
(b) Grundschuld Registration. Monitor the registration of the Grundschuld with the Land Registry Office (Grundbuchamt) of Frankfurt am Main-Ost and confirm, upon receipt of notice from the Grundbuchamt or from German local counsel, that the Grundschuld has been duly registered in the land register (Grundbuch), Sheet (Blatt) 54321, Section (Flur) 12, Parcel (Flurstück) 789, in favor of the Collateral Agent (as German Security Trustee). Upon registration, the Collateral Agent shall promptly notify the Administrative Agent and the Borrower of such registration, including the registration date, priority ranking, and any notations or qualifications entered in the Grundbuch.
(c) Account Pledge and Receivables Assignment. Hold the Globalzession, the Kontoverpfändung, and the Sicherungsübereignungsvertrag, and maintain the Sicherungszweckerklärung, in each case in accordance with the terms of the respective German Security Documents. The Collateral Agent shall ensure that notice of the Kontoverpfändung has been delivered to NordBrücke AG as account bank, and shall maintain evidence of such delivery.
(d) Parallel Debt Administration. Administer the Parallel Debt in accordance with the German Parallel Debt and Security Trust Agreement, including maintaining records of the outstanding amount of the Parallel Debt, reconciling the Parallel Debt with the corresponding Secured Obligations allocable to the EUR Sub-Tranche, and issuing certificates or confirmations regarding the Parallel Debt as reasonably requested by the Administrative Agent or any Lender.
(e) Coordination with German Counsel. Coordinate with Wendt Falkenberg Rechtsanwälte PartG mbB, Mainzer Landstraße 46, 60325 Frankfurt am Main, Germany, or such other German local counsel as may be designated from time to time, with respect to all matters relating to the German Security Documents, including perfection, registration, enforcement, and release of the German Collateral. The Collateral Agent may rely upon the advice and opinions of such German counsel in connection with the performance of its duties under this Section 3.3.
Section 3.4 — Actions Upon Direction
(a) The Collateral Agent shall take enforcement action with respect to the Collateral only upon the written direction of the Administrative Agent (acting on instructions of the Required Lenders, or as otherwise provided in the Credit Agreement), subject in all cases to the terms of the Intercreditor Agreement. The Collateral Agent shall not be required to take any enforcement action in the absence of such written direction, regardless of whether an Event of Default has occurred and is continuing under the Credit Agreement.
(b) Upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, the Collateral Agent shall, upon the written direction of the Administrative Agent, exercise any and all remedies available to it under the Security Documents, this Agreement, and applicable law, including, without limitation:
(i) foreclosure of the Deed of Trust encumbering the Loudoun County, Virginia parcels (Tax Parcel Nos. 087-27-1234 and 087-27-1235) in accordance with the laws of the Commonwealth of Virginia;
(ii) enforcement of the Grundschuld over the Frankfurt campus parcel through the German enforcement procedures (Zwangsvollstreckung), including application for a compulsory auction (Zwangsversteigerung) or compulsory administration (Zwangsverwaltung);
(iii) enforcement of equity pledges over the membership interests in IHDC and the shares in IHDC Frankfurt, including foreclosure sales and transfers;
(iv) exercise of rights under the Deposit Account Control Agreements, including the issuance of exclusive control notices to the depository bank;
(v) enforcement of the Globalzession and the Kontoverpfändung, including notification to account debtors and NordBrücke AG; and
(vi) any other remedy available under the Security Documents, at law, or in equity.
(c) The Collateral Agent shall have no independent obligation to monitor compliance by the Loan Parties with financial or other covenants under the Credit Agreement, to investigate whether an Event of Default has occurred or is continuing, or to take any action to ascertain or verify the existence, nature, or extent of any Collateral.
(d) All directions delivered by the Administrative Agent to the Collateral Agent pursuant to this Section 3.4 shall be in the form of a Direction Letter substantially in the form of Exhibit A hereto, or in such other written form as the Administrative Agent and the Collateral Agent may agree. The Collateral Agent shall be entitled to rely conclusively on any such Direction Letter and shall not be required to independently verify that the conditions to such action have been satisfied or that the Administrative Agent has obtained the requisite approvals of the Required Lenders.
Section 3.5 — Actions Without Direction
(a) The Collateral Agent may (but shall not be required to) take protective and preservative actions with respect to the Collateral, without the prior written direction of the Administrative Agent, if the Collateral Agent determines in its reasonable discretion that such action is necessary or advisable to preserve the value, priority, or perfection of the security interests and liens granted under the Security Documents. Such protective actions may include, without limitation:
(i) filing UCC continuation statements if the Borrower fails to reimburse the Collateral Agent for filing fees in a timely manner;
(ii) paying insurance premiums on insurance policies required to be maintained by the Borrower under the Credit Agreement, if the Borrower has failed to make such payments and the applicable insurance policy is at risk of lapsing or cancellation;
(iii) paying property taxes or other governmental charges on the Collateral if the Borrower has failed to make such payments and the applicable taxing authority has commenced or threatened to commence lien enforcement proceedings; and
(iv) taking any other action that the Collateral Agent reasonably determines is necessary to prevent the impairment, lapse, or loss of any security interest or lien in favor of the Secured Parties.
(b) All costs and expenses incurred by the Collateral Agent in taking protective actions pursuant to this Section 3.5 shall be reimbursable by the Borrower in accordance with Section 5.3, and shall constitute Obligations under the Credit Agreement secured by the Collateral. The Collateral Agent shall promptly notify the Administrative Agent and the Borrower of any protective action taken pursuant to this Section 3.5.
Section 3.6 — Relationship with Administrative Agent
(a) The Collateral Agent takes direction exclusively from the Administrative Agent (which in turn acts at the direction of the Required Lenders or as otherwise provided in the Credit Agreement). No individual Lender shall have the right to direct the Collateral Agent to take or refrain from taking any action with respect to the Collateral or the Security Documents. Any communication from a Lender requesting that the Collateral Agent take or refrain from taking any action shall be referred by the Collateral Agent to the Administrative Agent.
(b) The Collateral Agent may rely conclusively, and shall be fully protected in relying, upon any direction, instruction, certificate, notice, request, consent, or other communication received from the Administrative Agent, and shall be entitled to assume that such direction, instruction, certificate, notice, request, consent, or communication has been duly authorized by the Required Lenders (or such other requisite percentage of Lenders as may be specified in the Credit Agreement) unless the Collateral Agent has actual knowledge to the contrary.
(c) The Collateral Agent shall promptly deliver to the Administrative Agent copies of all notices, communications, and documents received by the Collateral Agent from any Loan Party, any governmental authority, or any third party in connection with the Collateral or the Security Documents, except to the extent that such notices, communications, or documents are addressed jointly to the Collateral Agent and the Administrative Agent.
(d) The Administrative Agent shall promptly notify the Collateral Agent of the occurrence of any Event of Default of which the Administrative Agent has actual knowledge, and shall provide the Collateral Agent with copies of all notices of default, acceleration notices, and similar communications delivered by the Administrative Agent to the Loan Parties.
Section 3.7 — OFAC and Sanctions Compliance
(a) The Collateral Agent represents that it maintains a comprehensive compliance program designed to ensure compliance with all applicable sanctions laws and regulations, including those administered by OFAC, the European Union, the United Kingdom's Office of Financial Sanctions Implementation ("OFSI"), and other applicable sanctions authorities.
(b) The Collateral Agent shall not knowingly distribute, transfer, or release any funds, proceeds of Collateral, or other amounts to any person or entity that is (i) listed on the OFAC Specially Designated Nationals and blocked Persons List (the "SDN List"), the Sectoral Sanctions Identifications List (the "SSI List"), or any similar list maintained by OFAC, (ii) listed on any sanctions list maintained by the European Union or the United Kingdom's OFSI, (iii) located, organized, or resident in any country or territory that is the subject of comprehensive territorial sanctions by the United States, the European Union, or the United Kingdom, or (iv) owned or controlled by any person described in clauses (i), (ii), or (iii) above to the extent that such ownership or control would cause the person to be subject to applicable sanctions.
(c) The Collateral Agent shall promptly notify the Administrative Agent if it becomes aware (including through the results of its screening processes) that any Loan Party, any Lender, or any other Secured Party is or becomes a sanctioned person or is otherwise in violation of applicable sanctions laws or regulations. Upon receipt of any such notification, the Administrative Agent and the Collateral Agent shall consult in good faith to determine the appropriate course of action in light of applicable legal requirements.
(d) Nothing in this Agreement shall require the Collateral Agent to take any action that would cause it to be in violation of applicable sanctions laws or regulations or to be in breach of its internal compliance policies and procedures.
ARTICLE IV — STANDARD OF CARE; LIMITATION OF LIABILITY
Section 4.1 — Standard of Care
(a) The Collateral Agent shall perform its duties hereunder with reasonable care, using the same degree of care and diligence as it would exercise in the management of its own comparable affairs. The Collateral Agent shall not, however, be liable for any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Administrative Agent or the Required Lenders, or in reliance upon the advice or opinions of counsel.
(b) The Collateral Agent shall not be responsible for, and makes no representation or warranty with respect to, (i) the validity, genuineness, enforceability, collectibility, or sufficiency of any Security Document, any Loan Document, or any Collateral, (ii) the perfection, priority, or value of any lien or security interest in any Collateral, (iii) the financial condition of any Loan Party or the ability of any Loan Party to perform its obligations under any Loan Document, or (iv) the accuracy or completeness of any statement, warranty, or representation made by any Loan Party in any Loan Document or in any certificate, report, or other document delivered in connection therewith.
(c) The Collateral Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it has reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 4.2 — Limitation of Liability
(a) The Collateral Agent shall not be liable for:
(i) any loss, liability, damage, cost, or expense arising from the negligence, willful misconduct, bad faith, or breach of duty of any other party to this Agreement or any other Loan Document;
(ii) any consequential, indirect, special, punitive, or exemplary damages (including, without limitation, lost profits, loss of business opportunity, or diminution in value), regardless of whether the Collateral Agent has been advised of the possibility of such damages, even if such damages are foreseeable;
(iii) any act or omission of any sub-agent, delegate, correspondent, or other person selected by the Collateral Agent in good faith to perform any of the duties or exercise any of the powers of the Collateral Agent hereunder, except to the extent that the Collateral Agent was grossly negligent in the selection of such sub-agent, delegate, correspondent, or other person; or
(iv) any loss, damage, or expense arising from any action taken or omitted by the Collateral Agent in accordance with the direction of the Administrative Agent (acting on instructions of the Required Lenders), even if such action or omission subsequently proves to have been erroneous or inadvisable.
(b) The Collateral Agent shall not be liable for any error of judgment made in good faith by an authorized officer of the Collateral Agent, unless it is conclusively established by a final, non-appealable judgment of a court of competent jurisdiction that such error constituted gross negligence or willful misconduct.
(c) Aggregate Liability Cap. Notwithstanding anything to the contrary in this Agreement, the aggregate liability of the Collateral Agent under this Agreement (including for breach of contract, negligence, or any other theory of liability) shall not exceed the total fees paid or payable to the Collateral Agent hereunder during the twelve (12) month period immediately preceding the date on which the relevant claim first arose. This limitation shall not apply to losses resulting from the Collateral Agent's own gross negligence, willful misconduct, or bad faith.
Section 4.3 — Reliance on Documents
(a) The Collateral Agent may rely upon, and shall be protected in acting or refraining from acting upon, any notice, direction, instruction, consent, certificate, affidavit, statement, instrument, document, opinion, or other communication believed by it in good faith to be genuine and correct and to have been signed, sent, or made by the proper person or persons. The Collateral Agent shall not be under any duty to make any investigation or inquiry as to any statements contained in any such communication and may accept the same as conclusive evidence of the truth and accuracy of the statements therein.
(b) The Collateral Agent may consult with, and rely upon the advice and opinions of, legal counsel (including Calderwood & Harkness LLP, as counsel to the Borrower, Blackthorn & Sundial Software, as counsel to the Agents, and Wendt Falkenberg Rechtsanwälte PartG mbB, as German local counsel), accountants, financial advisors, and other experts and professional advisors selected by it with reasonable care, and shall not be liable for any action taken or omitted in good faith in accordance with the advice of such counsel, accountants, financial advisors, or other experts.