INTELLECTUAL PROPERTY SECURITY AGREEMENT
Dated as of May 15, 2024
by and between
IRONHAVEN DATA CENTERS LLC a Delaware limited liability company
as Grantor
and
PINNACLE TRUST COMPANY, N.A. a national trust company, in its capacity as Collateral Agent
Made in connection with that certain Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024
CUSIP: 46283LAA5
CONFIDENTIAL — This document contains proprietary and confidential information of Ironhaven Data Centers LLC and is subject to the confidentiality provisions of the Credit Agreement referenced herein. Distribution is limited to the parties hereto, the Administrative Agent, the Lenders, and their respective counsel.
INTELLECTUAL PROPERTY SECURITY AGREEMENT
May 15, 2024
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement") is entered into as of May 15, 2024 (the "Signing Date"), by and between:
IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company (EIN: 84-3291057), with its principal place of business at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147 (the "Grantor" or "IHDC");
and
PINNACLE TRUST COMPANY, N.A., a national trust company organized and existing under the laws of the United States, with offices at 101 Constitution Avenue NW, Washington, D.C. 20001, in its capacity as Collateral Agent under the Credit Agreement (as defined herein) (the "Collateral Agent"), acting for the ratable benefit of the Secured Parties (as defined herein).
Key Contact for the Collateral Agent: William Hargrove, Senior Vice President, Corporate Trust.
This Agreement is made in connection with 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"), among Ironhaven Data Centers LLC, as Borrower, Ironhaven Frankfurt GmbH, 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.
RECITALS
WHEREAS:
A. The Grantor, Ironhaven Data Centers LLC, is a Delaware limited liability company engaged in the development, ownership, and operation of hyperscale data-center campuses and the provision of colocation and wholesale hosting services to enterprise, cloud, and hyperscale customers across the United States and Europe. The Grantor's business activities depend in material part upon the intellectual property it has developed, acquired, and registered in connection with such operations.
B. The Grantor, as Borrower, has entered into that certain Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024 (the "Credit Agreement"), providing for a nine hundred fifty million dollar ($950,000,000) Senior Secured Term Loan B facility, among Ironhaven Data Centers LLC, as Borrower, Ironhaven Frankfurt GmbH, 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 several Lenders from time to time party thereto. The proceeds of the Term Loan B facility are being used to finance the acquisition, development, construction, and equipping of data-center campuses and for general corporate purposes, as more fully described in the Credit Agreement.
C. Pursuant to Section 6.14 of the Credit Agreement and Section 4.02(f) of the Conditions Precedent thereto, the Grantor is required to execute and deliver this intellectual Property Security Agreement to grant the Collateral Agent, for the ratable benefit of the Secured Parties (as defined in the Credit Agreement), a first-priority security interest in all intellectual property of the Grantor, as a condition to the effectiveness of the Credit Agreement and the initial funding of the Term Loan B facility.
D. Reference is made to the Pledge and Security Agreement, dated as of May 15, 2024 (the "Security Agreement"), by and among the Grantor, Ironhaven Holdings Inc., and the Collateral Agent, pursuant to which the Grantor and Ironhaven Holdings Inc. have granted the Collateral Agent, for the ratable benefit of the Secured Parties, a first-priority security interest in substantially all personal property of the Grantor and Ironhaven Holdings Inc., including general intangibles. This intellectual Property Security Agreement supplements and is in addition to the Security Agreement with respect to intellectual Property Collateral (as defined herein), and is intended to facilitate the recording of the Collateral Agent's security interest in registered and registrable intellectual property with the United States Patent and Trademark Office, the United States Copyright Office, and other applicable registries.
E. The Grantor owns certain trademarks, trademark applications, patents, patent applications, copyrights, copyright registrations, trade secrets, domain names, and related intellectual property rights, and intends to grant a security interest therein to secure the Obligations (as defined in the Credit Agreement), including the nine hundred fifty million dollar ($950,000,000) term loan facility, together with all accrued interest, fees, expenses, indemnities, and other amounts owing thereunder and under the other Loan Documents.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 — Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
"Administrative Agent" means Crescent Harbor Bank, N.A., a national banking association, in its capacity as administrative agent under the Credit Agreement, together with its successors and assigns in such capacity.
"Agreement" means this intellectual Property Security Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Collateral Agent" means Pinnacle Trust Company, N.A., a national trust company organized and existing under the laws of the United States, acting in its capacity as Collateral Agent under the Credit Agreement and as Security Trustee under the Collateral Agent Appointment Agreement, together with its successors and assigns in such capacity.
"Copyright Collateral" means all copyrights, copyright registrations, copyright applications, and copyright licenses owned by the Grantor or in which the Grantor has rights, whether now existing or hereafter acquired, created, or arising, including without limitation (a) all copyrights, copyright registrations, and copyright applications listed on Schedule C hereto, (b) all rights to prepare derivative works based upon or incorporating any such copyrights, (c) all rights to sue or otherwise recover for past, present, and future infringement, misappropriation, or other violation thereof, (d) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto, including without limitation damages and payments for past, present, or future infringement thereof, and (e) all rights to renew, extend, and register any of the foregoing.
"Credit Agreement" means the Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024, among Ironhaven Data Centers LLC, as Borrower, Ironhaven Frankfurt GmbH, 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 several Lenders from time to time party thereto, as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time.
"Domain Name Collateral" means all internet domain names registered to or owned by the Grantor or in which the Grantor has rights, whether now existing or hereafter acquired or registered, including without limitation all domain names listed on Schedule D hereto, together with all registrations and renewals thereof and all rights associated therewith, including all rights to transfer, redirect, or otherwise control such domain names.
"Event of Default" has the meaning ascribed to such term in the Credit Agreement.
"Grantor" means Ironhaven Data Centers LLC, a Delaware limited liability company (EIN: 84-3291057), together with its successors and permitted assigns.
"intellectual Property Collateral" means, collectively, the Trademark Collateral, the Patent Collateral, the Copyright Collateral, the Trade Secret Collateral, the Domain Name Collateral, and the IP License Collateral, together with all proceeds and products thereof.
"IP License Collateral" means all license agreements (whether the Grantor is licensor or licensee thereunder) relating to any Trademark Collateral, Patent Collateral, Copyright Collateral, or Trade Secret Collateral, whether now existing or hereafter entered into, to the extent such licenses are assignable or pledgeable under applicable law and the terms thereof, including without limitation all license agreements listed on Schedule E hereto, together with all rights of the Grantor to receive payments, royalties, and other income thereunder.
"Loan Documents" has the meaning ascribed to such term in the Credit Agreement.
"Material Adverse Effect" has the meaning ascribed to such term in the Credit Agreement.
"Obligations" has the meaning ascribed to such term in the Credit Agreement and includes, without limitation, all principal, interest, fees, indemnities, costs, expenses, and other amounts owing or to become owing under the Credit Agreement and the other Loan Documents, whether now existing or hereafter arising, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated. As of the date hereof, the aggregate principal amount of the term loan facility is nine hundred fifty million dollars ($950,000,000), comprising a USD Tranche in the principal amount of six hundred seventy-five million dollars ($675,000,000) and 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).
"Patent Collateral" means all patents, patent applications, and patent licenses owned by the Grantor or in which the Grantor has rights, whether now existing or hereafter acquired, created, or arising, including without limitation (a) all patents and patent applications listed on Schedule B hereto, (b) all inventions, improvements, and discoveries disclosed or claimed therein, (c) all reissues, continuations, continuations-in-part, divisions, extensions, renewals, and reexaminations thereof, (d) all rights to sue or otherwise recover for past, present, and future infringement thereof, (e) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto, including without limitation damages and payments for past, present, or future infringement thereof, and (f) all products and proceeds of any and all of the foregoing.
"Payment in Full" has the meaning ascribed to such term in the Credit Agreement.
"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.
"Sanctioned Person" has the meaning ascribed to such term in the Credit Agreement.
"Secured Parties" has the meaning ascribed to such term in the Credit Agreement and includes the Administrative Agent (Crescent Harbor Bank, N.A.), the Collateral Agent (Pinnacle Trust Company, N.A.), each Lender from time to time party to the Credit Agreement (including, as of the date hereof, Crescent Harbor Bank, N.A. (commitment of $200,000,000), Ridgeline National Bank (commitment of $175,000,000), Marlowe Asset Management Meridian Capital, LLC (commitment of $150,000,000), Atlas Peak Credit Partners, LP (commitment of $125,000,000), NordBrücke AG (commitment of $150,000,000), Pacific Rim Institutional Lending Corp. (commitment of $75,000,000), and Osprey Insurance Capital, Ltd. (commitment of $75,000,000)), and each other Secured Party from time to time under the Loan Documents.
"Security Agreement" means the Pledge and Security Agreement, dated as of May 15, 2024, by and among the Grantor, Ironhaven Holdings Inc., and the Collateral Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Trade Secret Collateral" means all trade secrets, proprietary information, know-how, processes, techniques, algorithms, data, databases, compilations of data, software (including both source code and object code), and confidential business information of the Grantor, whether now existing or hereafter acquired, created, or arising, in each case to the extent protectable as a trade secret under applicable law.
"Trademark Collateral" means all trademarks, service marks, trade names, trade dress, logos, designs, slogans, and all registrations and applications therefor owned by the Grantor or in which the Grantor has rights, whether now existing or hereafter acquired, created, or arising, including without limitation (a) all trademarks, service marks, trade names, and applications and registrations therefor listed on Schedule A hereto, (b) all goodwill of the business connected with the use of, and symbolized by, any of the foregoing, (c) all rights to sue or otherwise recover for past, present, and future infringement, dilution, unfair competition, or other violation thereof, (d) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto, including without limitation damages and payments for past, present, or future infringement or dilution thereof, and (e) all rights to renew, extend, and register any of the foregoing.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or the State of Delaware, as applicable.
"USPTO" means the United States Patent and Trademark Office.
Section 1.2 — Terms Defined in the Credit Agreement.
All capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Credit Agreement, as in effect on the date hereof. If a term is defined both in this Agreement and in the Credit Agreement, the definition set forth in this Agreement shall control for purposes of this Agreement.
Section 1.3 — Terms Defined in the UCC.
Unless otherwise defined herein or in the Credit Agreement, terms used in this Agreement that are defined in the Uniform Commercial Code as in effect in the State of New York (or, with respect to matters of perfection and priority, the State of Delaware) shall have the meanings set forth therein. Without limiting the generality of the foregoing, the terms "accounts," "chattel paper," "commercial tort claims," "deposit accounts," "documents," "equipment," "fixtures," "general intangibles," "goods," "instruments," "inventory," "investment property," "letter-of-credit rights," "payment intangibles," "proceeds," "products," and "software" shall have the respective meanings set forth in Article 9 of the UCC as in effect in the State of New York.
Section 1.4 — Interpretation.
(a) References in this Agreement to Articles, Sections, Schedules, and Exhibits are to articles and sections of, and schedules and exhibits to, this Agreement unless otherwise specified.
(b) The headings and captions contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
(c) The word "including" (and correlative words such as "include" and "includes") means "including without limitation."
(d) Words importing the singular shall include the plural and vice versa, and words importing any gender shall include all genders.
(e) References to any statute, regulation, or other governmental enactment shall include all amendments, re-enactments, and successor provisions thereto.
(f) References to "the date hereof" or "the date of this Agreement" shall mean May 15, 2024.
ARTICLE II
GRANT OF SECURITY INTEREST
Section 2.1 — Grant.
As collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration, or otherwise) of all Obligations, the Grantor hereby grants, assigns, conveys, mortgages, pledges, hypothecates, and transfers to the Collateral Agent, for the ratable benefit of the Secured Parties, a continuing first-priority security interest in and lien upon all of the Grantor's right, title, and interest in, to, and under the following property, whether now owned or existing or hereafter acquired, created, or arising, and wherever located (collectively, the "Intellectual Property Collateral"):
(a) All Trademark Collateral, including without limitation all trademarks, service marks, trade names, trade dress, logos, designs, slogans, registrations, and applications therefor listed on Schedule A attached hereto, as such Schedule may be supplemented from time to time in accordance with Section 4.4 of this Agreement, together with all goodwill of the business connected with the use of, and symbolized by, such marks;
(b) All Patent Collateral, including without limitation all patents, patent applications, inventions, improvements, reissues, continuations, continuations-in-part, divisions, extensions, and renewals listed on Schedule B attached hereto, as such Schedule may be supplemented from time to time in accordance with Section 4.4 of this Agreement;
(c) All Copyright Collateral, including without limitation all copyrights, copyright registrations, copyright applications, and rights to prepare derivative works listed on Schedule C attached hereto, as such Schedule may be supplemented from time to time in accordance with Section 4.4 of this Agreement;
(d) All Trade Secret Collateral, including without limitation all trade secrets, proprietary information, know-how, processes, techniques, algorithms, data, databases, software (both source code and object code), and confidential business information;
(e) All Domain Name Collateral, including without limitation all internet domain names listed on Schedule D attached hereto, as such Schedule may be supplemented from time to time in accordance with Section 4.4 of this Agreement;
(f) All IP License Collateral, including without limitation all license agreements (whether the Grantor is licensor or licensee) relating to any Trademark Collateral, Patent Collateral, Copyright Collateral, or Trade Secret Collateral, as listed on Schedule E attached hereto, as such Schedule may be supplemented from time to time in accordance with Section 4.4 of this Agreement;
(g) All goodwill of the business connected with the use of, and symbolized by, the Trademark Collateral, including all customer lists, supplier relationships, and going-concern value associated therewith;
(h) All income, royalties, proceeds, damages, claims, and payments now or hereafter due or payable with respect to any and all of the foregoing, including without limitation all license fees, royalties, damages, and payments for past, present, or future infringement, dilution, misappropriation, or other violation of any of the foregoing;
(i) All rights to sue or otherwise recover for past, present, and future infringement, dilution, misappropriation, unfair competition, or other violation of any of the foregoing, including without limitation rights to recover damages, profits, and injunctive relief in connection therewith; and
(j) All products and proceeds of any and all of the foregoing intellectual Property Collateral, in whatever form, including without limitation all insurance proceeds and all causes of action, claims, and warranties relating to any of the foregoing.
Section 2.2 — Secured Obligations.
The security interest granted herein secures the prompt and complete payment and performance of all Obligations under the Credit Agreement and the other Loan Documents, including without limitation:
(a) All principal of the term loan facility in the aggregate amount of nine hundred fifty million dollars ($950,000,000), comprising a USD Tranche in the principal amount of six hundred seventy-five million dollars ($675,000,000) bearing interest at a rate per annum equal to Term SOFR plus 425 basis points and 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) bearing interest at a rate per annum equal to EURIBOR plus 425 basis points;
(b) All interest accrued or to accrue on the foregoing principal amounts, whether at the applicable interest rate, the default rate, or otherwise;
(c) All fees payable under the Credit Agreement and the other Loan Documents, including without limitation the arrangement fee of fourteen million two hundred fifty thousand dollars ($14,250,000), the administrative agent fee of one hundred seventy-five thousand dollars ($175,000) per annum, and the collateral agent fee of two hundred thousand dollars ($200,000) per annum;
(d) All indemnities, costs, expenses (including reasonable attorneys' fees and disbursements), and other amounts payable under the Credit Agreement and the other Loan Documents; and
(e) All other obligations and liabilities of the Grantor to the Secured Parties under the Loan Documents, whether now existing or hereafter arising, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, due or to become due, and howsoever arising.
Section 2.3 — Supplemental Nature.
This Agreement supplements and does not limit, restrict, or otherwise impair the Security Agreement or any other Loan Document. The security interest granted under this Agreement is in addition to, and not in substitution for, the security interest granted in the Security Agreement with respect to the Grantor's general intangibles and other personal property. In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of the Security Agreement with respect to the intellectual Property Collateral, the provisions of this Agreement shall control and govern. This Agreement is intended to satisfy the requirements of the USPTO and the U.S. Copyright Office for the recordation of security interests in registered and registrable intellectual property, and shall be construed accordingly.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants to the Collateral Agent and the Secured Parties as follows, as of the date hereof and as of each date on which the Schedules hereto are supplemented:
Section 3.1 — Ownership and Title.
The Grantor is the sole and exclusive owner of, or has valid and subsisting rights in, all intellectual Property Collateral listed on the Schedules hereto, free and clear of all liens, security interests, encumbrances, claims, charges, and adverse claims of any kind or nature whatsoever, except for the following (collectively, "Permitted IP Encumbrances"): (a) the security interest and lien created by this Agreement in favor of the Collateral Agent, (b) the security interest and lien created by the Security Agreement in favor of the Collateral Agent, and (c) Permitted Liens as defined in the Credit Agreement. The Grantor has full right, power, and authority to grant the security interest in the intellectual Property Collateral as provided herein, and the grant of such security interest does not violate or contravene the terms of any agreement, instrument, or other document to which the Grantor is a party or by which the Grantor or its properties are bound, except as would not reasonably be expected to have a Material Adverse Effect.
No intellectual Property Collateral is subject to any outstanding judgment, decree, injunction, order, writ, or ruling of any court, tribunal, arbitrator, or governmental authority, or any pending or, to the Grantor's knowledge, threatened litigation, action, proceeding, investigation, or claim, that could reasonably be expected to have a Material Adverse Effect on the value of such intellectual Property Collateral or the Collateral Agent's security interest therein.
Section 3.2 — Validity and Enforceability.
Each trademark registration, patent, and copyright registration listed on the Schedules hereto is valid, subsisting, and enforceable under the laws of the jurisdiction indicated on such Schedule, and has not been adjudged invalid, unenforceable, or unregistrable, in whole or in part, by any court of competent jurisdiction or governmental authority. No proceeding is pending or, to the Grantor's knowledge, threatened that seeks to cancel, invalidate, oppose, or challenge the validity or enforceability of any such registration.
All required registration fees, maintenance fees, annuity payments, renewal fees, filing fees, taxes, and other charges have been timely paid, and all necessary documents, affidavits of use, declarations of continued use, specimens, and other filings have been duly filed and accepted by the applicable governmental authority, in each case as required to maintain and protect each such registration in full force and effect as of the date hereof.
Section 3.3 — Completeness of Schedules.
(a) Schedule A attached hereto sets forth a complete and accurate list of all trademarks, service marks, and trade names (both registered and with applications pending) owned by the Grantor as of the date hereof, including the registration or application number, the date of registration or filing, the jurisdiction of registration, the current status, and the international class or classes of goods and services.
(b) Schedule B attached hereto sets forth a complete and accurate list of all patents and patent applications owned by the Grantor as of the date hereof, including the patent or application number, the date of issuance or filing, the jurisdiction, the current status, and the named inventor(s).
(c) Schedule C attached hereto sets forth a complete and accurate list of all registered copyrights and pending copyright applications owned by the Grantor as of the date hereof, including the registration number, the date of registration, the jurisdiction, the author or claimant, and the type of work.
(d) Schedule D attached hereto sets forth a complete and accurate list of all internet domain names owned by or registered to the Grantor as of the date hereof, including the registrar, the date of registration, and the expiration date.
The information set forth in Schedules A through E is true, correct, and complete in all material respects as of the date hereof.
Section 3.4 — No Infringement.
To the Grantor's knowledge, after due inquiry, the conduct of the Grantor's business as presently conducted does not infringe, misappropriate, dilute, or otherwise violate any intellectual property right of any third party in any manner that would reasonably be expected to result in a Material Adverse Effect. The Grantor has not received any written claim, demand letter, cease-and-desist notice, or other written communication from any third party alleging that the conduct of the Grantor's business infringes, misappropriates, or violates any intellectual property right of such third party, except as disclosed in Schedule 5.15 to the Credit Agreement.
To the Grantor's knowledge, after due inquiry, no third party is infringing, misappropriating, diluting, or otherwise violating any intellectual Property Collateral of the Grantor in any manner that would reasonably be expected to result in a Material Adverse Effect on the value of the intellectual Property Collateral or on the Grantor's business, operations, or financial condition.
Section 3.5 — No Prior Assignments or Conflicting Agreements.
The Grantor has not previously assigned, transferred, pledged, hypothecated, encumbered, or otherwise disposed of any of the intellectual Property Collateral (or any interest therein) to any person or entity, except as expressly permitted by the Credit Agreement, the Security Agreement, and this Agreement. No intellectual Property Collateral has been dedicated to the public or abandoned, whether voluntarily or by operation of law.
There are no agreements, commitments, understandings, or arrangements (whether written or oral) that restrict, limit, or prohibit the grant of the security interest created hereunder or that would conflict with or be breached by the execution, delivery, and performance of this Agreement, except (i) as may be set forth in permitted license agreements disclosed on Schedule E hereto (IP Licenses) and (ii) limitations arising under applicable federal intellectual property law governing the recordation of security interests with the USPTO or the U.S. Copyright Office.
Section 3.6 — Authorization and Enforceability.
The execution, delivery, and performance by the Grantor of this Agreement have been duly authorized by all necessary limited liability company action on the part of the Grantor, including the requisite approvals of the board of managers (or equivalent governing body) of the Grantor. No other action, consent, approval, authorization, or filing with or notice to any governmental authority or other person is required for the due execution, delivery, and performance of this Agreement by the Grantor, except for the filing of UCC financing statements and the recordation of short-form security agreements with the USPTO and U.S. Copyright Office as contemplated by Article V of this Agreement.
This Agreement constitutes a valid and legally binding obligation of the Grantor, enforceable against the Grantor in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general applicability affecting creditors' rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).
Section 3.7 — Jurisdiction and Registrations.
All trademark registrations and patent registrations included in the intellectual Property Collateral that are registered in the United States are registered with the United States Patent and Trademark Office (USPTO), and all related records are current and in good standing. All copyright registrations included in the intellectual Property Collateral that are registered in the United States are registered with the United States Copyright Office, and all related records are current and in good standing.
The Grantor is a Delaware limited liability company, duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Grantor's principal place of business is located at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147. Under Article 9 of the Uniform Commercial Code, the Grantor is "located" in the State of Delaware for purposes of determining the proper jurisdiction for the filing of UCC financing statements.
Section 3.8 — OFAC and Sanctions Compliance.
The Grantor represents and warrants that none of the intellectual Property Collateral is the subject of any restriction, prohibition, or limitation arising under economic sanctions laws and regulations administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"), the U.S. Department of State, the European Union (including Council Regulation (EU) No. 269/2014 and Council Regulation (EU) No. 833/2014, each as amended), Her Majesty's Treasury of the United Kingdom, or any other applicable sanctions regime or authority. No intellectual property license included in the IP License Collateral is with any Sanctioned Person (as defined in the Credit Agreement), nor is any intellectual Property Collateral used in or derived from any transaction, activity, or conduct involving any Sanctioned Person or any country, territory, or region that is the subject of comprehensive sanctions (including, as of the date hereof, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People's Republic, and Luhansk People's Republic regions of Ukraine).
ARTICLE IV
COVENANTS
The Grantor hereby covenants and agrees with the Collateral Agent and the Secured Parties as follows:
Section 4.1 — Protection and Maintenance of intellectual Property.
The Grantor shall, at its own cost and expense:
(a) Diligently maintain, protect, defend, and enforce its rights in and to the intellectual Property Collateral against infringement, misappropriation, dilution, and any other violation by third parties, and shall not take any action, or fail to take any action, that would reasonably be expected to impair, diminish, or jeopardize the validity, enforceability, or value of any material intellectual Property Collateral;
(b) Promptly register or apply for registration of any registrable intellectual property with the appropriate governmental authority, including the USPTO, the U.S. Copyright Office, or any applicable foreign registry, to the extent the Grantor determines in its reasonable business judgment that such registration is necessary or advisable to protect its rights therein;
(c) Make timely payment of all filing fees, maintenance fees, annuity payments, renewal fees, taxes, and other charges required by any governmental authority to maintain and protect each registration, patent, trademark, or copyright included in the intellectual Property Collateral;
(d) Not permit any registration of any material trademark, patent, or copyright to lapse, expire, be abandoned, be cancelled, or become dedicated to the public, except where the Grantor determines in its reasonable business judgment that (i) such intellectual property is no longer material to the conduct of its business and (ii) such lapse, expiration, abandonment, or cancellation would not reasonably be expected to have a Material Adverse Effect; and
(e) File all required affidavits of use, declarations of continued use, renewals, and other documents necessary to maintain each trademark registration in full force and effect under applicable law, including Sections 8 and 15 affidavits under the Lanham Act (15 U.S.C. §§ 1058 and 1065).
Section 4.2 — No Disposition or Encumbrance.
Except as expressly permitted under the Credit Agreement and the Security Agreement (including dispositions and encumbrances permitted under Sections 7.04 (Fundamental Changes), 7.05 (Dispositions), and 7.01 (Liens) of the Credit Agreement, including the Permitted Liens baskets and permitted asset sales set forth therein), the Grantor shall not, without the prior written consent of the Collateral Agent (acting at the direction of the Required Lenders):
(a) Sell, assign, transfer, convey, pledge, hypothecate, or otherwise dispose of any intellectual Property Collateral, or any interest therein;
(b) Grant any exclusive license with respect to any material intellectual Property Collateral; provided, however, that the Grantor may grant non-exclusive licenses of intellectual Property Collateral in the ordinary course of business consistent with past practice;
(c) Create, incur, assume, or suffer to exist any lien, security interest, encumbrance, charge, or claim of any kind on or with respect to any intellectual Property Collateral, other than Permitted IP Encumbrances; or
(d) Enter into any agreement or commitment to do any of the foregoing.
Section 4.3 — Prosecution of Infringement.
The Grantor shall promptly notify the Collateral Agent in writing of any infringement, misappropriation, dilution, or other violation of any material intellectual Property Collateral of which the Grantor becomes aware, providing reasonable detail regarding the nature and scope of such infringement or violation. The Grantor shall take commercially reasonable steps, consistent with prudent business practices, to protect and enforce its rights in such intellectual Property Collateral, including by sending cease-and-desist notices, filing administrative proceedings, or initiating litigation where appropriate. Nothing in this Section 4.3 shall be construed to require the Grantor to commence litigation in circumstances where the Grantor determines in good faith, after consultation with counsel, that such litigation would not be commercially reasonable or in the best interests of the Grantor's business.
Section 4.4 — Notice of New intellectual Property.
(a) Within thirty (30) days after the end of each fiscal quarter of the Grantor (or such shorter period as may be required under the Credit Agreement), the Grantor shall deliver to the Collateral Agent a written supplement to the Schedules hereto, in form and substance reasonably satisfactory to the Collateral Agent, identifying any new trademarks, service marks, trade names, patents, patent applications, copyrights, copyright registrations, copyright applications, domain names, or IP licenses acquired, created, filed, registered, or entered into by the Grantor during such fiscal quarter.
(b) With respect to any such newly acquired or created intellectual property, the Grantor shall promptly (and in any event within thirty (30) days after the delivery of the applicable supplement) execute and deliver to the Collateral Agent such additional intellectual property security agreements, short-form assignments, or other documents and instruments as the Collateral Agent may reasonably request to perfect the security interest granted hereunder in such intellectual property, including short-form security agreements suitable for recording with the USPTO or U.S. Copyright Office.
(c) Each such supplement, when delivered, shall be deemed to amend and supplement the applicable Schedule to this Agreement and shall be incorporated herein by reference as though fully set forth herein as of the date of delivery. The intellectual Property Collateral described in any such supplement shall be subject to all of the terms, conditions, representations, warranties, covenants, and agreements of this Agreement.
Section 4.5 — Further Assurances.
The Grantor shall, at its own cost and expense, promptly execute, acknowledge, and deliver all further instruments, documents, certificates, and agreements, and take all further action, that may be necessary or desirable, or that the Collateral Agent may reasonably request, in order to:
(a) Perfect, maintain, and protect the first-priority security interest granted or purported to be granted hereby in the intellectual Property Collateral, including by filing UCC financing statements, UCC continuation statements, and amendments thereto with the Delaware Secretary of State and any other appropriate filing office;
(b) Enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to the intellectual Property Collateral; and
(c) Record this Agreement (or a short-form version thereof, in the forms attached hereto as Exhibits A, B, and C) with the USPTO and/or the U.S. Copyright Office, as applicable, and with any other applicable governmental registry or authority.
Section 4.6 — Recordation of Security Interest.
The Grantor hereby authorizes the Collateral Agent to record this Agreement (or a short-form intellectual property security agreement derived herefrom) with the USPTO and/or the U.S. Copyright Office, as applicable, and to make any and all filings (including electronic filings) reasonably necessary or advisable to evidence or perfect the Collateral Agent's security interest in the intellectual Property Collateral. The Grantor shall cooperate fully with the Collateral Agent in connection with any such recording, including by executing additional short-form trademark security agreements, short-form patent security agreements, and short-form copyright security agreements, in the forms attached hereto as Exhibits A, B, and C (or in such other form as the Collateral Agent may reasonably require), and by providing any information, documentation, or authorization that may be required by the applicable governmental office for recordation purposes.
Section 4.7 — Use of Trademarks.
The Grantor shall continue to use each material trademark included in the Trademark Collateral in interstate or international commerce, or in such other manner as may be required under applicable law, sufficient to maintain the validity, enforceability, and registration of such trademark. The Grantor shall maintain consistent quality standards with respect to goods and services offered under such trademarks and shall exercise appropriate quality control over any licensees authorized to use such trademarks. The Grantor shall not take any action, or fail to take any action, that would cause any material trademark to become generic, abandoned, cancelled, invalid, or unenforceable, or that would impair the goodwill associated therewith.
Section 4.8 — No Adverse Action.
The Grantor shall not enter into any agreement, arrangement, or understanding, or take any action, that would (a) materially impair the value of any material intellectual Property Collateral, (b) materially impair or adversely affect the Collateral Agent's security interest in the intellectual Property Collateral, or (c) conflict with, or be inconsistent with, the obligations of the Grantor under this Agreement, the Security Agreement, or the Credit Agreement, in each case in any manner that would reasonably be expected to have a Material Adverse Effect.
Section 4.9 — Change of Name, Identity, or Location.
The Grantor shall provide at least thirty (30) days' prior written notice to the Collateral Agent before:
(a) Changing its legal name from "Ironhaven Data Centers LLC" or adopting any new trade name, assumed name, or fictitious business name;
(b) Changing its state of organization from the State of Delaware or redomiciling, converting, or reorganizing into a different form of entity or under the laws of a different jurisdiction; or
(c) Changing its principal place of business from 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147 to any other location.
The Grantor acknowledges that any such change may require the filing of additional UCC financing statements, amendments, or other documents to maintain the perfection and priority of the Collateral Agent's security interest, and the Grantor agrees to cooperate with the Collateral Agent in making such filings promptly following any such change.
ARTICLE V
PERFECTION
Section 5.1 — UCC Financing Statements.
The Grantor hereby authorizes the Collateral Agent (and Calderwood & Harkness LLP, as counsel to the Grantor, and Blackthorn & Sundial Software, as counsel to the Collateral Agent, on behalf of the Collateral Agent) to prepare and file, without the signature of the Grantor (to the extent permitted by applicable law), one or more UCC-1 financing statements (and continuation statements, amendments, and other filings as may be necessary or advisable from time to time) with the Secretary of State of the State of Delaware and any other appropriate filing office in any applicable jurisdiction, describing the intellectual Property Collateral (or describing the collateral as "all assets" or "all personal property" of the Grantor, or using words of similar import, to the extent such broader description is consistent with the Security Agreement). The Grantor further authorizes the Collateral Agent to file such financing statements and amendments as may be necessary or advisable to reflect any supplement to the Schedules hereto delivered pursuant to Section 4.4.
The parties acknowledge that, concurrently with the execution and delivery of this Agreement, UCC-1 financing statements have been filed with the Secretary of State of the State of Delaware (Filing No. 2024-0515-1847) listing Ironhaven Data Centers LLC (as Debtor) and naming Pinnacle Trust Company, N.A., as Collateral Agent (as Secured Party), covering all assets of the Grantor, including without limitation all general intangibles, intellectual property, and all proceeds and products thereof.
Section 5.2 — USPTO and Copyright Office Filings.
Concurrently with the execution of this Agreement, the Grantor shall execute and deliver to the Collateral Agent the following documents, in each case in form and substance satisfactory to the Collateral Agent and suitable for recording with the applicable governmental office:
(a) A short-form trademark security agreement, substantially in the form of Exhibit A hereto, identifying each trademark registration and application listed on Schedule A and granting a security interest therein to the Collateral Agent, suitable for recording with the USPTO;
(b) A short-form patent security agreement, substantially in the form of Exhibit B hereto, identifying each patent and patent application listed on Schedule B and granting a security interest therein to the Collateral Agent, suitable for recording with the USPTO; and
(c) A short-form copyright security agreement, substantially in the form of Exhibit C hereto, identifying each copyright registration and application listed on Schedule C and granting a security interest therein to the Collateral Agent, suitable for recording with the U.S. Copyright Office.
The Collateral Agent shall cause such short-form instruments to be recorded with the USPTO and U.S. Copyright Office, as applicable, promptly following execution and delivery thereof.
Section 5.3 — Power of Attorney.
The Grantor hereby irrevocably appoints the Collateral Agent as its true and lawful attorney-in-fact, with full power of substitution and subrogation, coupled with an interest, to execute, deliver, record, and file, on behalf of and in the name of the Grantor, any and all documents, instruments, certificates, applications, agreements, and other writings that the Collateral Agent deems necessary, desirable, or advisable to perfect, protect, maintain, or enforce the security interest granted hereunder in the intellectual Property Collateral, including without limitation:
(a) UCC-1 financing statements, UCC-3 amendments, continuation statements, and termination statements;
(b) Assignments for recording with the USPTO or the U.S. Copyright Office, including conditional assignments, security interest recordations, and releases;
(c) Applications for registration of trademarks, patents, copyrights, or domain names with any governmental authority; and
(d) Any other instruments or documents that the Collateral Agent may reasonably request in connection with the exercise of its rights and remedies under this Agreement;
provided, that the Collateral Agent shall exercise the power of attorney granted in this Section 5.3 only upon the occurrence and during the continuance of an Event of Default. The power of attorney granted in this Section 5.3 is irrevocable and is coupled with an interest, and shall survive the dissolution, liquidation, or other cessation of existence of the Grantor.
ARTICLE VI
REMEDIES
Section 6.1 — Remedies Upon Event of Default.
Upon the occurrence and during the continuance of an Event of Default (as defined in the Credit Agreement, including without limitation Events of Default arising under Sections 8.01(a) (Failure to Pay Principal), 8.01(b) (Failure to Pay Interest or Fees), 8.01(d) (Cross-Default), 8.01(f) (Bankruptcy), and 8.01(g) (Involuntary Bankruptcy) thereof), the Collateral Agent (acting at the direction of the Required Lenders, as provided in the Credit Agreement) shall have, in addition to all other rights and remedies available under the Credit Agreement, the Security Agreement, this Agreement, and applicable law (including the rights and remedies of a secured party under the UCC as in effect in the State of New York and the State of Delaware), the following rights and remedies with respect to the intellectual Property Collateral:
(a) Possession and Control. The right to take immediate possession, custody, and control of any and all intellectual Property Collateral, without demand or notice (except as required by applicable law), and to hold, maintain, protect, and preserve the same pending disposition or other realization thereon;
(b) Exercise of License Rights. The right to exercise all of the Grantor's rights under all IP License Collateral, including the right to collect all royalties, license fees, and other payments due or to become due thereunder, and to enforce all rights of the Grantor against the counterparties thereto;
(c) Disposition. The right to assign, sell, license, sublicense, or otherwise dispose of the intellectual Property Collateral (or any portion thereof), at one or more public or private sales, with or without advertisement, upon at least ten (10) Business Days' prior written notice to the Grantor (which the Grantor agrees is commercially reasonable notice within the meaning of Section 9-612 of the UCC, unless a shorter period of notice is permitted by applicable law), and to apply the net proceeds of any such disposition to the Obligations in such order and priority as is provided in the Credit Agreement (including Section 2.05(b) thereof) and the Intercreditor Agreement. The Collateral Agent (and any Secured Party) may be a purchaser at any public sale;
(d) Prosecution of Claims. The right to commence, prosecute, defend, settle, compromise, and collect the proceeds of any and all claims, suits, actions, or proceedings for infringement, misappropriation, dilution, unfair competition, or other violation of any of the intellectual Property Collateral, in the name of the Grantor or in the Collateral Agent's own name, and to collect and receive all damages, profits, awards, settlements, and other amounts payable in connection therewith; and
(e) Recordation of Transfers. The right to execute, deliver, record, and file assignments of trademarks, patents, copyrights, and other intellectual Property Collateral with the USPTO, the U.S. Copyright Office, and any other applicable governmental registry or domain name registrar, reflecting any transfer, assignment, sale, or other disposition of intellectual Property Collateral effected pursuant to this Article VI.
All rights and remedies of the Collateral Agent under this Agreement are cumulative and not exclusive of any other rights or remedies available at law, in equity, or under any other Loan Document.
Section 6.2 — License to Use intellectual Property.
The Grantor hereby grants to the Collateral Agent an irrevocable, non-exclusive, royalty-free, fully paid-up, worldwide license (with the right to sublicense to any purchaser, assignee, or transferee of any intellectual Property Collateral), effective only upon the occurrence and during the continuance of an Event of Default, to use, practice, exploit, reproduce, display, perform, distribute, prepare derivative works based upon, make, have made, sell, offer for sale, import, export, sublicense, assign, or otherwise exploit any and all intellectual Property Collateral, solely to the extent necessary or advisable to exercise the remedies granted under this Article VI and to realize upon and dispose of the intellectual Property Collateral.
This license is irrevocable, shall run with the intellectual Property Collateral, and shall inure to the benefit of any successor or assign of the Collateral Agent and any purchaser of intellectual Property Collateral at a foreclosure sale or other disposition pursuant to Section 6.1. This license shall survive and remain in full force and effect notwithstanding any bankruptcy, insolvency, reorganization, liquidation, dissolution, or similar proceeding involving the Grantor, and shall be deemed a "license" within the meaning of Section 365(n) of Title 11 of the United States Code (the Bankruptcy Code).
Section 6.3 — Application of Proceeds.
All proceeds received by the Collateral Agent from any sale, licensing, sublicensing, assignment, or other disposition of intellectual Property Collateral pursuant to this Article VI shall be applied in the order of priority set forth in Section 2.05(b) of the Credit Agreement and the First Lien / Super-Senior Intercreditor Agreement, dated as of May 15, 2024 (the "Intercreditor Agreement"), among Ironhaven Data Centers LLC, Crescent Harbor Bank, N.A. (in its capacities as Term Loan Agent and Revolver Agent), and Pinnacle Trust Company, N.A., as Collateral Agent. Without limiting the generality of the foregoing, such proceeds shall be applied in the following order:
first, to the payment of all costs and expenses of the Collateral Agent incurred in connection with the enforcement, collection, or disposition of the intellectual Property Collateral, including reasonable attorneys' fees, costs of sale, and other out-of-pocket expenses;
second, to the payment of the Obligations in accordance with the priority and allocation provisions set forth in the Credit Agreement and the Intercreditor Agreement; and
third, the balance, if any, to the Grantor or as otherwise required by applicable law.
Section 6.4 — Waivers.
To the fullest extent permitted by applicable law, the Grantor hereby irrevocably waives:
(a) Any right to require the Collateral Agent to proceed against any other person or entity before proceeding against the Grantor or the intellectual Property Collateral;
(b) Any right to require the Collateral Agent to proceed against or exhaust any other collateral or security before proceeding against the intellectual Property Collateral;
(c) Any right to require the Collateral Agent to pursue any other remedy in the Collateral Agent's power before proceeding against the intellectual Property Collateral;
(d) Any defense arising by reason of any disability or other defense of the Grantor or any other person, or by reason of the cessation from any cause whatsoever of the liability of the Grantor or any other person; and
(e) Any right to assert a defense, setoff, or counterclaim in any action or proceeding brought by the Collateral Agent to enforce this Agreement.