PLEDGE AND SECURITY AGREEMENT
Dated as of May 15, 2024
by and among
IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company (the "Borrower" or "IHDC")
and
IRONHAVEN HOLDINGS INC., a Delaware corporation (the "Parent Guarantor" or "Holdings")
(IHDC and Holdings, collectively, the "Grantors" and each, a "Grantor")
in favor of
PINNACLE TRUST COMPANY, N.A., a national trust company, as Collateral Agent for the benefit of the Secured Parties (the "Collateral Agent")
in connection with 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 Lenders party thereto
Aggregate Facility Amount: $950,000,000
CUSIP: 46283LAA5
TABLE OF CONTENTS
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PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement") is entered into as of May 15, 2024, by and among IRONHAVEN DATA CENTERS LLC, a Delaware limited liability company ("IHDC" or the "Borrower"), IRONHAVEN HOLDINGS INC., a Delaware corporation ("Holdings" or the "Parent Guarantor," and together with IHDC, the "Grantors" and each, a "Grantor"), in favor of PINNACLE TRUST COMPANY, N.A., a national trust company, in its capacity as Collateral Agent (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent") for the ratable benefit of the Secured Parties (as defined herein).
RECITALS
WHEREAS:
A. Ironhaven Data Centers LLC is a Delaware limited liability company, with its principal place of business and chief executive office located at 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147, bearing Employer Identification Number 84-3291057, engaged in the development, ownership, and operation of hyperscale data-center campuses in the United States and Europe.
B. Ironhaven Holdings Inc. is a Delaware corporation, bearing Employer Identification Number 84-3291044, and is the direct owner of one hundred percent (100%) of the issued and outstanding membership interests in IHDC.
C. IHDC is a wholly owned subsidiary of Holdings, which is in turn wholly owned by Thornfield Infrastructure Fund III, LP, a Delaware limited partnership that is a fund managed by Thornfield Capital Partners, LP, a Delaware limited partnership.
D. Pursuant to 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 IHDC (as Borrower), Ironhaven Frankfurt GmbH, a limited liability company organized under the laws of the Federal Republic of Germany (Gesellschaft mit beschränkter Haftung) (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, the Lenders have agreed to make loans to IHDC and Ironhaven Frankfurt GmbH in an aggregate principal amount of Nine Hundred Fifty Million Dollars ($950,000,000), consisting of a USD Tranche in an aggregate principal amount of Six Hundred Seventy-Five Million Dollars ($675,000,000) and a EUR Sub-Tranche in an aggregate 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 the EUR/USD exchange rate of 1.0846 as of the Signing Date).
E. The proceeds of the loans made under the Credit Agreement will be used to (i) fund the development and construction of two hyperscale data-center campuses (one located in Loudoun County, Virginia and one located in Frankfurt, Germany), (ii) refinance One Hundred Thirty Million Dollars ($130,000,000) in aggregate principal amount of existing mezzanine notes held by Greystone Mezzanine Fund II, LP, (iii) fund transaction fees and expenses in an aggregate amount of approximately Thirty-Two Million, Five Hundred Thousand Dollars ($32,500,000), and (iv) provide working capital of approximately Thirty-Seven Million, Five Hundred Thousand Dollars ($37,500,000).
F. As a condition precedent to the funding of the loans under the Credit Agreement on the Closing Date, each Grantor is required to execute and deliver this Agreement to grant to the Collateral Agent, for the ratable benefit of the Secured Parties, a first-priority security interest in substantially all of the personal property assets of such Grantor, all as more particularly described herein.
G. Each Grantor will derive substantial direct and indirect benefit from the credit extensions to be made under the Credit Agreement, and the execution and delivery of this Agreement is a material inducement to the willingness of the Lenders to extend credit under the Credit Agreement.
H. Pinnacle Trust Company, N.A. has been appointed as Collateral Agent for the benefit of the Secured Parties pursuant to that certain Collateral Agent Appointment Agreement, dated as of May 15, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Collateral Agent Appointment Agreement"), among IHDC, Holdings, Crescent Harbor Bank, N.A. (as Administrative Agent), and Pinnacle Trust Company, N.A. (as Collateral Agent).
I. The relative rights and priorities of the Secured Parties with respect to the Collateral and the proceeds thereof are governed by that certain Intercreditor Agreement, dated as of May 15, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Intercreditor Agreement"), among IHDC, Crescent Harbor Bank, N.A. (in its capacities as Administrative Agent under the Credit Agreement and as agent under that certain Super-Senior Revolving Credit Facility in an aggregate committed amount of One Hundred Million Dollars ($100,000,000)), and Pinnacle Trust Company, N.A. (as Collateral Agent), which governs, among other things, lien priority, the application of enforcement proceeds, and standstill and turnover obligations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor and the Collateral Agent hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.01 — Defined Terms
Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings when used in this Agreement:
"Account" shall have the meaning ascribed to such term in Article 9 of the UCC.
"Borrower" means Ironhaven Data Centers LLC, a Delaware limited liability company.
"Chattel Paper" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes both electronic chattel paper and tangible chattel paper.
"Closing Date" means June 3, 2024, which is the date of initial funding under the Credit Agreement.
"Collateral" has the meaning assigned to such term in Section 2.01 of this Agreement, and shall include all personal property assets of each Grantor described therein, subject to the exclusions set forth in Section 2.02.
"Collateral Agent" means Pinnacle Trust Company, N.A., a national trust company, with its principal office located at 101 Constitution Avenue NW, Washington, D.C. 20001, in its capacity as collateral agent for the benefit of the Secured Parties under this Agreement, the Credit Agreement, and the Collateral Agent Appointment Agreement, together with its successors and assigns in such capacity.
"Collateral Agent Appointment Agreement" has the meaning set forth in Recital H.
"Commercial Tort Claims" shall have the meaning ascribed to such term in Article 9 of the UCC. All Commercial Tort Claims held by any Grantor as of the Signing Date are identified on Schedule 5 hereto, which schedule shall be supplemented from time to time in accordance with Section 4.03(a) of this Agreement.
"Credit Agreement" means that certain Senior Secured Term Loan B Credit Agreement, dated as of May 15, 2024, in an aggregate principal amount of Nine Hundred Fifty Million Dollars ($950,000,000), among IHDC (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, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Deposit Account" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes all deposit accounts maintained by any Grantor at Crescent Harbor Bank, N.A. and all other operational accounts of any Grantor, in each case that are subject to Deposit Account Control Agreements.
"Deposit Account Control Agreement" or "DACA" means each deposit account control agreement entered into among a Grantor, a depository bank, and the Collateral Agent, in form and substance satisfactory to the Collateral Agent, pursuant to which the Collateral Agent obtains "control" (as defined in UCC Section 9-104) over one or more Deposit Accounts of such Grantor.
"Documents" shall have the meaning ascribed to such term in Article 9 of the UCC.
"Equipment" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes, without limitation, all machinery, equipment, computer hardware, servers, networking equipment, cooling systems (including computer room air conditioning units, chilled water systems, and in-row cooling units), generators (including diesel and natural gas backup generators), uninterruptible power supply ("UPS") systems, transformers, switchgear, power distribution units, battery cabinets, fire suppression systems, security systems, and all other tangible personal property used or to be used in the data-center operations of each Grantor, together with all additions, improvements, accessions, replacements, and substitutions thereto and therefor.
"Equity Interests" means (a) with respect to Holdings, one hundred percent (100%) of the issued and outstanding membership interests in IHDC, and (b) with respect to IHDC, one hundred percent (100%) of the equity interests (Geschäftsanteile) in Ironhaven Frankfurt GmbH, a limited liability company organized under the laws of the Federal Republic of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main under registration number HRB 129457; provided, however, that the pledge of IHDC's equity interests in Ironhaven Frankfurt GmbH is further documented in the German Share Pledge Agreement (Anteilsverpfändungsvertrag) and the separate US Equity Interest Pledge Agreement, and is subject to the limitations set forth in Section 2.02(f) of this Agreement.
"Excluded Assets" has the meaning assigned to such term in Section 2.02 of this Agreement.
"Fixtures" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes all fixtures affixed to real property owned or leased by any Grantor, including, without limitation, all fixtures located at the Virginia campus at 4500–4550 Dominion Ridge Boulevard, Ashburn, Loudoun County, Virginia 20147 (Tax Parcel Nos. 087-27-1234 and 087-27-1235).
"General Intangibles" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes, without limitation, all payment intangibles, software and software licenses, customer contracts, management contracts, service agreements, pre-lease letters of intent, and all other intangible personal property of each Grantor.
"German Share Pledge Agreement" means that certain Share Pledge Agreement (Anteilsverpfändungsvertrag), dated as of the date hereof, by and among IHDC (as pledgor), Ironhaven Frankfurt GmbH, and the Collateral Agent (acting through the German Security Trustee), governed by the laws of the Federal Republic of Germany.
"Grantors" means IHDC and Holdings, collectively, and "Grantor" means either of them, individually.
"Instrument" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes all promissory notes, intercompany notes, and other negotiable or non-negotiable instruments.
"intellectual Property" means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, trade names, copyrights, copyright registrations and applications, trade secrets, domain names, and all licenses, sublicenses, and other agreements relating to any of the foregoing, together with all goodwill associated therewith, all rights to sue for past, present, and future infringements thereof, and all proceeds thereof, as further detailed in the intellectual Property Security Agreement.
"intellectual Property Security Agreement" or "IP Security Agreement" means that certain intellectual Property Security Agreement, dated as of the date hereof, by and among the Grantors and the Collateral Agent.
"Intercreditor Agreement" has the meaning set forth in Recital I.
"Inventory" shall have the meaning ascribed to such term in Article 9 of the UCC.
"Investment Property" shall have the meaning ascribed to such term in Article 9 of the UCC, and includes all securities (whether certificated or uncertificated), securities accounts, securities entitlements, commodity accounts, and commodity contracts of each Grantor.
"Letter-of-Credit Rights" shall have the meaning ascribed to such term in Article 9 of the UCC.
"Obligations" means all present and future indebtedness, liabilities, and obligations of each Grantor to the Secured Parties under or in connection with the Credit Agreement, this Agreement, the Guarantee Agreement, and each other Loan Document, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including, without limitation, all principal (in an aggregate amount of up to Nine Hundred Fifty Million Dollars ($950,000,000)), interest (at a rate equal to Adjusted Term SOFR plus 4.25% per annum on the USD Tranche, with a SOFR floor of 0.50%, and EURIBOR plus 4.25% per annum on the EUR Sub-Tranche, with a EURIBOR floor of 0.00%), fees (including arrangement fees, administrative agent fees, collateral agent fees, ticking fees, and all other fees), expenses, costs of collection, indemnification obligations, and all other amounts payable thereunder or in connection therewith.
"Pledged Equity" has the meaning ascribed to the term "Equity Interests" as used in Section 2.01(m) of this Agreement, as further specified on Schedule 3 hereto.
"Proceeds" shall have the meaning ascribed to such term in UCC Section 9-102(a)(64), and includes, without limitation, whatever is acquired upon the sale, lease, license, exchange, collection, or other disposition of Collateral, including insurance proceeds, and all claims against third parties for loss of or damage to, or destruction of, any or all of the Collateral.
"Secured Parties" means, collectively, (a) the Administrative Agent (Crescent Harbor Bank, N.A.), (b) the Collateral Agent (Pinnacle Trust Company, N.A.), and (c) each Lender from time to time party to the Credit Agreement, which Lenders as of the Signing Date include: Crescent Harbor Bank, N.A. (commitment: $200,000,000), Ridgeline National Bank (commitment: $175,000,000), Marlowe Asset Management Meridian Capital, LLC (commitment: $150,000,000), Atlas Peak Credit Partners, LP (commitment: $125,000,000), NordBrücke AG (commitment: $150,000,000), Pacific Rim Institutional Lending Corp. (commitment: $75,000,000), and Osprey Insurance Capital, Ltd. (commitment: $75,000,000), and their respective successors and assigns.
"Security Interest" means the first-priority security interest in the Collateral granted to the Collateral Agent, for the ratable benefit of the Secured Parties, pursuant to this Agreement.
"Signing Date" means May 15, 2024.
"Supporting Obligations" shall have the meaning ascribed to such term in Article 9 of the UCC.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, where the perfection or the effect of perfection or non-perfection of the Security Interest is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York (including, without limitation, the State of Delaware for purposes of filing financing statements or the Commonwealth of Virginia for purposes of fixture filings), the term "UCC" shall mean the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection or the effect of perfection or non-perfection.
Section 1.02 — UCC Terms
All terms defined in Article 9 of the UCC and not otherwise defined in this Agreement or in the Credit Agreement shall have the meanings ascribed to such terms therein. The rules of construction set forth in Article 9 of the UCC shall apply to this Agreement to the extent not inconsistent with the terms hereof. The New York UCC shall govern interpretation of all UCC terms except where the Delaware UCC or the UCC of another jurisdiction governs matters of perfection, priority, or the effect of perfection or non-perfection of the Security Interest. In the event that a term is defined in both the UCC and the Credit Agreement, the definition set forth in the Credit Agreement shall control unless the context of this Agreement requires that the UCC meaning be applied.
Section 1.03 — Rules of Construction
The headings, captions, and arrangements used in this Agreement are for convenience of reference only and shall not be deemed to limit, amplify, or modify the terms of this Agreement, nor shall they affect the meaning thereof. Unless the context otherwise requires: (a) the singular shall include the plural and vice versa; (b) words of any gender shall include each other gender; (c) the term "including" shall mean "including, without limitation"; (d) references to Sections, Articles, Schedules, and Exhibits are to Sections and Articles of, and Schedules and Exhibits to, this Agreement; (e) references to any Person shall include such Person's successors and permitted assigns; (f) references to any agreement, instrument, or document shall mean such agreement, instrument, or document as amended, restated, supplemented, or otherwise modified from time to time to the extent permitted by the terms thereof and by the Credit Agreement; and (g) references to "dollars" or "$" shall mean United States dollars and references to "euros" or "€" shall mean the lawful currency of the member states of the European Union that have adopted the single currency in accordance with the relevant provisions of the Treaty on European Union.
ARTICLE II — GRANT OF SECURITY INTEREST
Section 2.01 — Grant
As collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by required prepayment, by acceleration, or otherwise) of all Obligations, each Grantor hereby unconditionally and irrevocably grants, pledges, hypothecates, and assigns to the Collateral Agent, for the ratable benefit of the Secured Parties, a continuing first-priority security interest in and lien upon all of such Grantor's right, title, and interest in, to, and under the following property, whether now owned or hereafter acquired, and wherever located (all of which is collectively referred to as the "Collateral"):
(a) Accounts. All Accounts of such Grantor, including all accounts receivable, contract rights, and other rights to payment, whether or not earned by performance.
(b) Chattel Paper. All Chattel Paper of such Grantor, including both electronic chattel paper and tangible chattel paper.
(c) Deposit Accounts. All Deposit Accounts of such Grantor, including, without limitation, all deposit accounts maintained at Crescent Harbor Bank, N.A. that are subject to Deposit Account Control Agreements, and all funds, cash, and other amounts on deposit therein or credited thereto.
(d) Documents. All Documents of such Grantor, including all bills of lading, dock warrants, dock receipts, warehouse receipts, and other documents of title.
(e) Equipment. All Equipment of such Grantor, including, without limitation, all servers, networking equipment (including routers, switches, load balancers, and fiber optic cabling), cooling infrastructure (including computer room air conditioning units, chilled water plants, cooling towers, and in-row cooling units), generators (including diesel and natural gas backup generators and associated fuel storage systems), uninterruptible power supply (UPS) systems, transformers, switchgear, power distribution units (PDUs), battery cabinets, automatic transfer switches (ATS), fire suppression systems (including both pre-action sprinkler and gaseous suppression systems), building management systems (BMS), and all other data-center equipment, together with all additions, improvements, attachments, components, parts, fittings, accessions, replacements, and substitutions thereto and therefor.
(f) Fixtures. All Fixtures of such Grantor, including, without limitation, all fixtures affixed to the real property at the Virginia campus located at 4500–4550 Dominion Ridge Boulevard, Ashburn, Loudoun County, Virginia 20147 (Tax Parcel Nos. 087-27-1234 and 087-27-1235, comprising approximately 142 acres), including all built-in mechanical, electrical, and plumbing systems, raised floor systems, structural cabling, and all other items of personal property that have become so related to the real property as to constitute fixtures under the UCC.
(g) General Intangibles. All General Intangibles of such Grantor, including, without limitation, all payment intangibles, software (including both proprietary software and software licenses), customer contracts, management contracts, service level agreements, and all pre-lease letters of intent, including the pre-lease letter of intent with Stratos Cloud Services, Inc. (for approximately 30 MW of critical IT load at an estimated annual rent of $14,400,000) and the pre-lease letter of intent with Euronova Digital GmbH (for approximately 20 MW of critical IT load at an estimated annual rent of €9,800,000), in each case to the extent constituting personal property of such Grantor.
(h) Instruments. All Instruments of such Grantor, including, without limitation, all promissory notes, intercompany notes, and all other negotiable and non-negotiable instruments.
(i) intellectual Property. All intellectual Property of such Grantor, including, without limitation, all trademarks, service marks, trade names, trademark registrations and applications, patents, patent applications, copyrights, copyright registrations and applications, trade secrets, domain names, and all licenses, sublicenses, and other agreements relating thereto, together with all goodwill associated therewith, all rights to sue for past, present, and future infringements thereof, and all proceeds thereof, all as further specified in the IP Security Agreement.
(j) Inventory. All Inventory of such Grantor, including all goods held for sale or lease or to be furnished under contracts of service, all raw materials, work in process, finished goods, and materials used or consumed in such Grantor's business.
(k) Investment Property. All Investment Property of such Grantor, including all securities (whether certificated or uncertificated), securities accounts, securities entitlements, commodity accounts, and commodity contracts, and all Equity Interests described in clause (m) below.
(l) Letter-of-Credit Rights. All Letter-of-Credit Rights of such Grantor, including all rights to payment or performance under any letter of credit.
(m) Equity Interests. All Equity Interests owned by such Grantor, including:
(i) with respect to Holdings: one hundred percent (100%) of the issued and outstanding membership interests in IHDC, together with all certificates (if any) representing such interests, all options, warrants, and rights to purchase any additional membership interests in IHDC, and all dividends, distributions, profits, cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all of such membership interests;
(ii) with respect to IHDC: one hundred percent (100%) of the equity interests (Geschäftsanteile) in Ironhaven Frankfurt GmbH, a limited liability company organized under the laws of the Federal Republic of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main under registration number HRB 129457 (subject to the 65% limitation set forth in Section 2.02(f) for purposes of this Agreement), together with all certificates (if any) representing such interests, all options, warrants, and rights to purchase any additional equity interests in Ironhaven Frankfurt GmbH, and all dividends, distributions, profits, cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all of such equity interests; and
(iii) all certificates, if any, representing such Equity Interests, all options, warrants, subscription rights, and other rights relating thereto, and all dividends, distributions, profits, and other payments in respect thereof.
(n) Commercial Tort Claims. All Commercial Tort Claims of such Grantor listed on Schedule 5 hereto (as such schedule may be supplemented from time to time in accordance with Section 4.03(a) of this Agreement).
(o) Money. All money, cash, and cash equivalents of such Grantor.
(p) Books and Records. All books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and related data processing software that at any time evidence, contain information relating to, or are otherwise necessary or useful for the collection, realization upon, or disposition of any of the foregoing Collateral.
(q) Supporting Obligations. All Supporting Obligations of such Grantor relating to any of the foregoing.
(r) Proceeds and Products. All Proceeds and products of any and all of the foregoing Collateral, in whatever form, including, without limitation, (i) all insurance proceeds (including all proceeds of fire, theft, business interruption, and other insurance), (ii) all accessions to, substitutions and replacements for, and rents, profits, and products of, each of the foregoing, (iii) all claims against third parties for loss of, damage to, or destruction of any or all of the foregoing, and (iv) all other amounts from time to time paid or payable under or in connection with any of the foregoing.
Section 2.02 — Excluded Assets
Notwithstanding the provisions of Section 2.01, the Collateral shall not include the following (collectively, the "Excluded Assets"):
(a) Anti-Assignment Provisions. Any lease, license, contract, or agreement to the extent that the grant of a security interest therein would violate or invalidate such lease, license, contract, or agreement or create a right of termination in favor of any other party thereto (other than any Grantor); provided, however, that the foregoing exclusion shall not apply to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, or 9-409 of the UCC or any other applicable law (including the federal Bankruptcy Code); provided, further, that upon the termination, lapsing, or rendering ineffective of any such prohibition, the applicable property shall immediately and automatically, without any further action by any party, become part of the Collateral and be subject to the Security Interest granted herein.
(b) Governmental Licenses and Permits. Any governmental license, permit, or other authorization to the extent that the grant of a security interest therein is prohibited by applicable law or regulation; provided that this exclusion shall apply only to the extent of such prohibition and only so long as such prohibition remains in effect.
(c) Intent-to-Use Trademark Applications. Any "intent-to-use" trademark application filed with the United States Patent and Trademark Office to the extent that the grant of a security interest therein would impair the validity or enforceability of such application under the Lanham Act (15 U.S.C. § 1051 et seq.), until such time as a statement of use or an amendment to allege use has been filed with respect to such application and has been accepted by the United States Patent and Trademark Office, at which time such trademark application shall automatically, without any further action by any party, become part of the Collateral.
(d) German-Situs Assets. Any and all assets of Ironhaven Frankfurt GmbH located in the Federal Republic of Germany, which assets are subject to the separate German-law security package, including the land charge (Grundschuld), the global assignment of receivables (Globalzession), the account pledge (Kontoverpfändung), the security transfer of movable assets (Sicherungsübereignungsvertrag), the share pledge agreement (Anteilsverpfändungsvertrag), and the security purpose agreement (Sicherungszweckerklärung), each governed by the laws of the Federal Republic of Germany under the parallel-debt structure set forth in the Credit Agreement and the related German-law security documents.
(e) Legally Prohibited Pledges. Any property to the extent a security interest therein is prohibited by applicable law (including, without limitation, any margin stock to the extent a pledge thereof is prohibited by Regulations T, U, or X of the Board of Governors of the Federal Reserve System), but only so long as such prohibition is effective and only to the extent of such prohibition.
(f) Foreign Subsidiary Voting Equity Limitation. Voting equity interests in excess of sixty-five percent (65%) of the outstanding voting equity interests of any first-tier foreign subsidiary (including Ironhaven Frankfurt GmbH) that is a "controlled foreign corporation" within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended, if and to the extent that the pledge of a greater percentage of the voting equity interests of such foreign subsidiary would result in material adverse United States federal income tax consequences to any Grantor or to the ultimate equity holders thereof. This sixty-five percent (65%) limitation applies only to voting equity; one hundred percent (100%) of the non-voting equity and economic interests in any such foreign subsidiary shall be pledged hereunder. Notwithstanding the foregoing, because the Geschäftsanteile of Ironhaven Frankfurt GmbH are not separated into distinct voting and non-voting classes, the parties hereto have agreed, based upon the tax analysis prepared by Sylvia Hartwell of Calderwood & Harkness LLP, that sixty-five percent (65%) of the total equity interests in Ironhaven Frankfurt GmbH shall be pledged as Collateral under this Agreement, with the remaining thirty-five percent (35%) not being pledged under United States law. For the avoidance of doubt, the German Share Pledge Agreement (Anteilsverpfändungsvertrag) covers one hundred percent (100%) of the Geschäftsanteile in Ironhaven Frankfurt GmbH as a matter of German law; the sixty-five percent (65%) limitation set forth in this Section 2.02(f) applies solely for United States federal income tax purposes under this Agreement and does not limit or affect the scope of the German-law pledge.
Section 2.03 — Security Interest Secures Obligations
The Security Interest granted herein secures the prompt and complete payment when due (whether at stated maturity, by required prepayment, by acceleration, demand, or otherwise) and performance of all Obligations of the Grantors under the Credit Agreement, the Guarantee Agreement, and all other Loan Documents, including, without limitation:
(a) Principal. All principal amounts outstanding from time to time under the Credit Agreement, up to an aggregate amount of Nine Hundred Fifty Million Dollars ($950,000,000) in commitments (consisting of a USD Tranche of Six Hundred Seventy-Five Million Dollars ($675,000,000) and a EUR Sub-Tranche of approximately Two Hundred Seventy-Five Million Dollars ($275,000,000) equivalent).
(b) Interest. All interest accrued and to accrue on the Obligations, including interest at the applicable rates of (i) Adjusted Term SOFR plus four hundred twenty-five basis points (425 bps) per annum on the USD Tranche (subject to a SOFR floor of fifty basis points (0.50%)), and (ii) EURIBOR plus four hundred twenty-five basis points (425 bps) per annum on the EUR Sub-Tranche (subject to a EURIBOR floor of zero basis points (0.00%)), including, without limitation, interest accruing after the commencement of any proceeding under the Bankruptcy Code or any other applicable insolvency law, whether or not such interest constitutes an allowed claim in such proceeding.
(c) Fees. All fees payable under the Credit Agreement and the other Loan Documents, including, without limitation, (i) the arrangement fee of Fourteen Million, Two Hundred Fifty Thousand Dollars ($14,250,000), (ii) the administrative agent fee of One Hundred Seventy-Five Thousand Dollars ($175,000) per annum, (iii) the collateral agent fee of Two Hundred Thousand Dollars ($200,000) per annum in the aggregate (consisting of One Hundred Twenty-Five Thousand Dollars ($125,000) for domestic collateral agency services and Seventy-Five Thousand Dollars ($75,000) for the German security trustee component), (iv) the ticking fee of Five Hundred Twenty-Seven Thousand, Seven Hundred Seventy-Eight Dollars ($527,778), and (v) all other fees and charges payable by any Grantor under any Loan Document.
(d) Mandatory Prepayment Obligations. All mandatory prepayment obligations under the Credit Agreement, including, without limitation, (i) the Excess Cash Flow sweep at rates of seventy-five percent (75%), fifty percent (50%), or twenty-five percent (25%) of Excess Cash Flow (depending on the applicable Net Leverage Ratio), and (ii) the change of control mandatory prepayment at one hundred one percent (101%) of the outstanding principal amount.
(e) Other Amounts. All other amounts, obligations, covenants, and duties of every type and description owing by any Grantor to any Secured Party under or in connection with any Loan Document, including, without limitation, all indemnification obligations, reimbursement obligations, costs and expenses (including reasonable attorneys' fees and disbursements), and all other amounts payable thereunder.
ARTICLE III — REPRESENTATIONS AND WARRANTIES
Each Grantor hereby represents and warrants to the Collateral Agent and each Secured Party as follows:
Section 3.01 — Title and Ownership
Each Grantor is the sole legal and beneficial owner of all Collateral purported to be owned by such Grantor, and has good and marketable title to such Collateral, free and clear of all liens, claims, encumbrances, charges, and security interests of every kind, except for (a) the Security Interest created by this Agreement and the other Loan Documents, and (b) the Permitted Liens (as such term is defined in the Credit Agreement). Without limiting the generality of the foregoing, the Grantors acknowledge and confirm that the pre-existing lien of Greystone Mezzanine Fund II, LP, evidenced by UCC-1 financing statement(s) filed with the Delaware Secretary of State in connection with the Greystone mezzanine notes (CUSIP 39817MAB3), shall be terminated on or prior to the Closing Date pursuant to the Greystone payoff letter and UCC-3 termination statement(s) to be filed with the Delaware Secretary of State, and no security interest in favor of Greystone Mezzanine Fund II, LP shall remain effective as of the Closing Date. Each Grantor has full right, power, and authority to grant the Security Interest in such Collateral to the Collateral Agent as provided herein.
Section 3.02 — Legal Names and Organizational Information
(a) Ironhaven Data Centers LLC:
(i) Full legal name: Ironhaven Data Centers LLC.
(ii) Jurisdiction of organization: State of Delaware.
(iii) Employer Identification Number (EIN): 84-3291057.
(iv) Organizational identification number: as set forth on Schedule 1 hereto.
(v) Chief executive office: 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147.
(vi) Registered agent: Cascade Systems, 160 Greentree Drive, Suite 101, Dover, Delaware 19904.
(vii) Type of entity: limited liability company.
(b) Ironhaven Holdings Inc.:
(i) Full legal name: Ironhaven Holdings Inc.
(ii) Jurisdiction of organization: State of Delaware.
(iii) Employer Identification Number (EIN): 84-3291044.
(iv) Organizational identification number: as set forth on Schedule 1 hereto.
(v) Chief executive office: 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, Virginia 20147.
(vi) Registered agent: Cascade Systems, 160 Greentree Drive, Suite 101, Dover, Delaware 19904.
(vii) Type of entity: corporation.
(c) No Grantor has, within the five (5) years preceding the date hereof, changed its legal name, identity, state of organization, organizational structure, or form of business organization, except as disclosed on Schedule 1 hereto. No Grantor uses or has used any trade names, fictitious names, assumed names, or "doing business as" names other than those disclosed on Schedule 1 hereto.
Section 3.03 — Perfection; Filing Offices
(a) Upon the filing of UCC-1 financing statements with the Delaware Secretary of State naming each of IHDC and Holdings as debtor, the Security Interest in all Collateral in which a security interest may be perfected by filing under the UCC will be duly perfected as a first-priority security interest (subject only to Permitted Liens that have priority as a matter of law).
(b) The filing of a UCC-1 fixture filing in the Office of the Clerk of the Circuit Court of Loudoun County, Virginia, describing the Fixtures at Tax Parcel Nos. 087-27-1234 and 087-27-1235, will perfect the Security Interest in such Fixtures as against the owner of the real property and any person having an interest in the real property.
(c) The execution and delivery of Deposit Account Control Agreements with Crescent Harbor Bank, N.A. (and such other depository banks as may from time to time maintain Deposit Accounts for any Grantor) will perfect the Security Interest in all Deposit Accounts by "control" as defined in UCC Section 9-104.
(d) The delivery to the Collateral Agent of all certificates (if any) representing Equity Interests, together with undated blank stock powers or transfer instruments duly executed in blank, will perfect the Security Interest in all certificated securities constituting Collateral.
(e) No filing, registration, recording, or other action (other than those actions described in this Section 3.03 and in Article V of this Agreement) is necessary to create, establish, perfect, or maintain the Security Interest in the Collateral as a valid, enforceable, and perfected first-priority security interest therein, subject only to Permitted Liens.
Section 3.04 — No Conflicting Liens
No effective UCC financing statement, security agreement, or other instrument similar in effect covering all or any part of the Collateral is on file or of record in any filing office or registry, except for:
(a) UCC-1 financing statements filed by Greystone Mezzanine Fund II, LP with the Delaware Secretary of State in connection with the mezzanine notes bearing CUSIP 39817MAB3, which UCC-1 filings will be terminated by UCC-3 termination statements filed on or prior to the Closing Date;
(b) financing statements filed or to be filed in favor of the Collateral Agent pursuant to this Agreement and the other Loan Documents; and
(c) such other filings as may be permitted as Permitted Liens under the Credit Agreement.
Section 3.05 — Equity Interests
(a) Schedule 3 hereto sets forth a true, correct, and complete list of all Equity Interests owned by each Grantor as of the Signing Date, including the issuer, the type and class of interest, the certificate number (if any), the percentage of outstanding interests represented thereby, and the number of units, shares, or Geschäftsanteile represented thereby.
(b) As of the Signing Date: (i) Holdings owns one hundred percent (100%) of the issued and outstanding membership interests in IHDC, and (ii) IHDC owns one hundred percent (100%) of the issued and outstanding Geschäftsanteile in Ironhaven Frankfurt GmbH (registered with the Amtsgericht Frankfurt am Main, HRB 129457).
(c) All such Equity Interests are duly authorized, validly issued, fully paid, and non-assessable (or, in the case of the membership interests in IHDC and the Geschäftsanteile in Ironhaven Frankfurt GmbH, the equivalent thereof under applicable law), and are free and clear of all liens, claims, and encumbrances other than the Security Interest and the Permitted Liens.
(d) There are no outstanding options, warrants, rights, or agreements to purchase or acquire any Equity Interests in IHDC or Ironhaven Frankfurt GmbH, except as disclosed on Schedule 3.
Section 3.06 — Intellectual Property
Schedule 4 hereto sets forth a true, correct, and complete list of all registered intellectual Property owned by each Grantor as of the Signing Date, including, with respect to each item, the applicable registration or application number, the jurisdiction of registration, and the registered owner. The intellectual Property is further documented in, and subject to the terms and conditions of, the IP Security Agreement.
Section 3.07 — Deposit Accounts
Schedule 6 hereto sets forth a true, correct, and complete list of all Deposit Accounts maintained by each Grantor as of the Signing Date, including the name and address of each depository bank, the account number for each account, the type of each account (operating, reserve, escrow, or other), and confirmation of the DACA status for each such account. All Deposit Accounts listed on Schedule 6 are subject to Deposit Account Control Agreements in favor of Pinnacle Trust Company, N.A., as Collateral Agent, or will be subject to such agreements on or prior to the Closing Date.
Section 3.08 — Commercial Tort Claims
Schedule 5 hereto sets forth a true, correct, and complete list of all Commercial Tort Claims held by any Grantor as of the Signing Date, including, for each such claim, the court in which such claim is pending (if any), the case number, the parties thereto, and a brief description of the nature of the claim. As of the Signing Date, the Grantors represent that no Grantor holds any Commercial Tort Claims, and Schedule 5 is marked "None."
Section 3.09 — Location of Tangible Collateral
All Equipment and Inventory of IHDC is located at 4500–4550 Dominion Ridge Boulevard, Ashburn, Loudoun County, Virginia 20147 (the "Virginia Campus"), and at such other locations as are set forth on Schedule 7 hereto. All Equipment and Inventory of Holdings (if any) is located at the chief executive office of Holdings, as set forth on Schedule 1. No tangible Collateral is located at any location other than the locations set forth on Schedule 1 and Schedule 7, except for tangible personal property in transit between such locations or temporarily removed therefrom in the ordinary course of business. All assets of Ironhaven Frankfurt GmbH located in the Federal Republic of Germany (including at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany) are excluded from the Collateral under this Agreement and are covered by the German security documents described in Section 2.02(d).
Section 3.10 — Good Standing and Authorization
(a) Each Grantor is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization (the State of Delaware for both IHDC and Holdings), and has full power and authority to own and operate its properties and to conduct its business as presently conducted and as proposed to be conducted.
(b) Each Grantor has full power, authority, and legal right to execute, deliver, and perform its obligations under this Agreement and to grant the Security Interest herein.
(c) The execution, delivery, and performance of this Agreement by each Grantor has been duly authorized by all necessary limited liability company action (in the case of IHDC, by member resolutions) and corporate action (in the case of Holdings, by board resolutions), as certified in the Secretary's/Officer's Certificate dated May 15, 2024, copies of which have been delivered to the Collateral Agent and the Administrative Agent.
(d) The execution and delivery of this Agreement by each Grantor and the grant of the Security Interest herein do not and will not (i) violate the organizational documents of such Grantor, (ii) violate any applicable law, rule, or regulation, (iii) conflict with, result in a breach of, or constitute a default under any agreement or instrument to which such Grantor is a party or by which such Grantor or its property is bound, or (iv) result in the creation or imposition of any lien on any of the Collateral other than the Security Interest and the Permitted Liens.
Section 3.11 — OFAC and Sanctions Compliance
(a) No Grantor, nor any of its subsidiaries, nor any director, officer, or, to the knowledge of such Grantor, any employee or agent of any Grantor or any of its subsidiaries, is a person that is, or is owned or controlled by persons that are, (i) the target of any sanctions administered or enforced by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC"), the United States Department of State, the United Nations Security Council, the European Union (including Council Regulation (EU) No 269/2014, as amended), Her Majesty's Treasury of the United Kingdom, the United Kingdom Office of Financial Sanctions Implementation ("OFSI"), or any other relevant sanctions authority (collectively, "Sanctions"), or (ii) located, organized, or resident in a country or territory that is, or whose government is, the subject of comprehensive territorial Sanctions (as of the Signing Date, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine).
(b) Each Grantor has implemented and maintains in effect policies and procedures designed to ensure compliance by such Grantor and its subsidiaries, and their respective directors, officers, employees, and agents, with all applicable Sanctions, anti-money laundering laws (including the Bank Secrecy Act, the USA PATRIOT Act, and the German Anti-Money Laundering Act (Geldwäschegesetz — GwG)), and anti-corruption laws (including the Foreign Corrupt Practices Act and the UK Bribery Act 2010).
Section 3.12 — No Financing Statements
Except as disclosed in Section 3.04 above, no UCC financing statement or analogous filing or recording, in any jurisdiction, covers all or any part of the Collateral, other than (a) the Greystone filing referenced in Section 3.04(a) (which shall be terminated on or prior to the Closing Date) and (b) financing statements filed or to be filed in favor of the Collateral Agent pursuant to this Agreement and the other Loan Documents. No Grantor has authorized the filing of any financing statement naming such Grantor as debtor, except in connection with the Greystone mezzanine notes (which authorization has been revoked) and the Loan Documents.
ARTICLE IV — COVENANTS
Each Grantor hereby covenants and agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:
Section 4.01 — Maintenance of Collateral
Each Grantor shall (a) maintain the Collateral in good condition and repair, ordinary wear and tear excepted, and (b) not permit any material waste or deterioration of the Collateral. Without limiting the generality of the foregoing, all Equipment located at the Virginia Campus and at any other location shall be maintained, serviced, and repaired in accordance with industry standards for Tier III and Tier IV data-center operations, including all manufacturer-recommended maintenance schedules, and each Grantor shall not take or fail to take any action that would materially impair the value or utility of any material portion of the Collateral.
Section 4.02 — Insurance
(a) Each Grantor shall maintain insurance on the Collateral in accordance with, and to the extent required by, the Credit Agreement, including, without limitation, (i) builder's risk insurance (during the construction phase of the Virginia Campus and the Frankfurt campus), (ii) property insurance (including "all-risk" property and casualty coverage), (iii) commercial general liability insurance, (iv) business interruption insurance, and (v) such other insurance as may be required by the Credit Agreement or as is customary for data-center operators of similar size and operations. All such insurance shall be placed through Calloway & Strand Insurance Brokers, Inc. (attention: Patricia Calloway, Managing Director), or such other insurance broker or brokers as may be approved by the Collateral Agent.
(b) The Collateral Agent (Pinnacle Trust Company, N.A.) shall be named as loss payee (or mortgagee, as applicable) and as an additional insured on all required property and casualty insurance policies, and the Collateral Agent shall receive copies of all certificates of insurance evidencing such coverage.
(c) Evidence of compliance with the insurance requirements set forth in the Credit Agreement shall be certified by Calloway & Strand Insurance Brokers, Inc. by delivery of an Insurance Compliance Certificate to the Collateral Agent and the Administrative Agent on or prior to the Closing Date and annually thereafter.
Section 4.03 — Further Assurances; After-Acquired Property
(a) Each Grantor shall, at its own expense, promptly execute and deliver to the Collateral Agent all further instruments, documents, financing statements (including UCC-1 amendments and UCC-3 continuation statements), certificates, and agreements, and shall take all further action, that may be reasonably requested by the Collateral Agent (including the filing of any financing statement or amendment under the UCC or any other applicable law, the making of any recordation with the USPTO or the US Copyright Office, and the delivery of any certificates or instruments) in order to create, establish, preserve, protect, perfect, and maintain the validity, enforceability, and first-priority status of the Security Interest in the Collateral.
(b) All Collateral acquired by any Grantor after the date hereof shall automatically and without further action be subject to the Security Interest granted herein, and each Grantor shall take all actions reasonably requested by the Collateral Agent to perfect the Security Interest in such after-acquired Collateral; provided, however, that:
(i) With respect to Commercial Tort Claims, each Grantor shall deliver to the Collateral Agent a supplemental notice identifying any new Commercial Tort Claim within thirty (30) days of such Grantor becoming aware of such Commercial Tort Claim, together with a supplement to Schedule 5 describing such claim in reasonable detail, and shall execute such additional documents as may be reasonably necessary to perfect the Security Interest therein;
(ii) With respect to Deposit Accounts, each Grantor shall deliver to the Collateral Agent a Deposit Account Control Agreement with respect to any new Deposit Account opened by such Grantor within thirty (30) days of the opening of such Deposit Account; and
(iii) With respect to intellectual Property, each Grantor shall deliver to the Collateral Agent notice of any new patent, trademark, service mark, or copyright registration or application within thirty (30) days of the filing or issuance thereof, together with such supplemental IP filings as may be reasonably necessary to perfect and maintain the Security Interest therein.
Section 4.04 — Restrictions on Liens
No Grantor shall create, incur, assume, or suffer to exist any lien, security interest, encumbrance, charge, or other adverse claim upon or with respect to any Collateral, other than (a) the Security Interest created by this Agreement and the other Loan Documents, and (b) the Permitted Liens (as defined in the Credit Agreement). This covenant is made in furtherance of, and not in limitation of, the negative pledge covenant set forth in the Credit Agreement.
Section 4.05 — Restrictions on Dispositions
No Grantor shall sell, transfer, assign, convey, lease, license, sublicense, or otherwise dispose of any Collateral (whether in a single transaction or a series of related transactions), except as expressly permitted by the Credit Agreement (including Permitted Dispositions as defined therein). Without limiting the generality of the foregoing, the Grantors acknowledge the capital expenditure covenant contained in the Credit Agreement, pursuant to which capital expenditures are limited to Three Hundred Twenty-Five Million Dollars ($325,000,000) for fiscal year 2024 and Two Hundred Fifty Million Dollars ($250,000,000) per fiscal year for fiscal year 2025 and each fiscal year thereafter, in each case with a twenty-five percent (25%) carry-forward of any unused amounts.
Section 4.06 — Change of Name, Location, or Structure
No Grantor shall (a) change its legal name, (b) change its jurisdiction of organization, (c) change its organizational structure or form of business organization, (d) change its chief executive office or principal place of business, or (e) change its organizational identification number, in each case without providing at least thirty (30) days' prior written notice to the Collateral Agent and, if necessary, causing to be filed, at such Grantor's expense, amended UCC financing statements or other filings in the appropriate filing offices to maintain the perfection and priority of the Security Interest.
Section 4.07 — Deposit Accounts
(a) Each Grantor shall maintain Deposit Account Control Agreements in favor of the Collateral Agent over all Deposit Accounts maintained by such Grantor (other than any Excluded Accounts as may be specified in the Credit Agreement).
(b) Each Grantor shall not open any new Deposit Account without providing prompt notice to the Collateral Agent, and shall cause a Deposit Account Control Agreement in form and substance satisfactory to the Collateral Agent to be delivered with respect to any such new Deposit Account within thirty (30) days of the opening thereof.
(c) The Deposit Account Control Agreements executed with Crescent Harbor Bank, N.A. for the operating accounts and reserve accounts of IHDC shall remain in full force and effect at all times during the term of this Agreement.
Section 4.08 — Equity Interests
(a) No Grantor shall permit the issuance of additional equity interests in any subsidiary that would dilute or impair the Collateral Agent's Security Interest in the Pledged Equity, except as expressly permitted under the Credit Agreement.
(b) If any Equity Interests constituting Collateral become certificated after the date hereof, the applicable Grantor shall promptly (and in any event within five (5) business days) deliver to the Collateral Agent the original certificate(s) representing such Equity Interests, together with undated blank stock powers or transfer instruments duly executed in blank by such Grantor.
(c) Each Grantor shall cause the books and records of each issuer of Pledged Equity to reflect the Security Interest in such Pledged Equity.
Section 4.09 — Intellectual Property
(a) Each Grantor shall diligently maintain, protect, and enforce all material intellectual Property owned by such Grantor, including, without limitation, by (i) taking all commercially reasonable actions to maintain the validity and enforceability of such intellectual Property, (ii) making all required filings, payments, and renewals with the USPTO, the US Copyright Office, and any other applicable governmental authority, and (iii) prosecuting and defending against infringements, dilutions, and other challenges to such intellectual Property.
(b) No Grantor shall abandon, or fail to diligently prosecute any application for, or fail to maintain or renew any registration of, any material intellectual Property without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed).
(c) No Grantor shall grant any exclusive license of any material intellectual Property to any third party without the prior written consent of the Collateral Agent, except to the extent permitted under the Credit Agreement.
Section 4.10 — Records and Inspection
(a) Each Grantor shall keep accurate and complete records and accounts of all Collateral, including records sufficient to identify and describe the Collateral, the value thereof, and the location thereof.