SENIOR SECURED TERM LOAN B CREDIT AGREEMENT
BORROWER'S DRAFT — April 5, 2024
among
IRONHAVEN DATA CENTERS LLC, as Borrower,
IRONHAVEN FRANKFURT GmbH, as Co-Borrower,
IRONHAVEN HOLDINGS INC., as Parent Guarantor,
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, as Administrative Agent, Sole Lead Arranger, and Sole Bookrunner,
PINNACLE TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent,
and
THE LENDERS FROM TIME TO TIME PARTY HERETO
$950,000,000 Senior Secured Term Loan B
Consisting of: $675,000,000 USD Tranche €253,571,429 EUR Sub-Tranche (~$275,000,000)
Prepared by:
Calderwood & Harkness LLP 125 Broad Street New York, NY 10004
Counsel to the Borrower
C&H Matter No. 1043-00001
Transmitted to:
Blackthorn & Sundial Software 51 West 52nd Street New York, NY 10019
Attn: Catherine Ellsworth / Derek Huang
Counsel to the Administrative Agent
This document reflects the Borrower's negotiating positions marked against the Administrative Agent's counsel initial draft dated March 22, 2024. All changes from the agent's initial draft are reflected herein and summarized in the Borrower's Negotiating Positions Summary appended to this draft.
CREDIT AGREEMENT CUSIP: 46283LAA5 CRESCENT HARBOR DEAL REFERENCE: CHB-LF-2024-0287
ARTICLE I — DEFINITIONS AND INTERPRETATION
Section 1.01 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related transactions, consummated after the Closing Date, by which the Borrower or any of its Restricted Subsidiaries (a) acquires any going business or all or substantially all of the assets of any firm, corporation, limited liability company, partnership, or other person, whether through purchase of assets, merger, or otherwise, or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a person which have ordinary voting power for the election of directors, managers, or similar governing body of such person.
"Additional Amounts" has the meaning set forth in Section 3.01(b).
"Adjusted EBITDA" (also referred to as "Consolidated Adjusted EBITDA") means, for any period, Consolidated Net Income of the Borrower and its Restricted Subsidiaries for such period, plus, without duplication, to the extent deducted (and not added back) in determining such Consolidated Net Income:
(a) consolidated interest expense for such period;
(b) income tax expense for such period;
(c) depreciation and amortization expense for such period;
(d) non-cash stock-based compensation expense for such period;
(e) transaction fees and expenses paid or payable in connection with the Closing Date transactions, in an aggregate amount not to exceed $32,500,000;
(f) non-recurring restructuring charges, business optimization expenses, and other non-recurring charges for such period, in an aggregate amount not to exceed the greater of (x) $15,000,000 and (y) 10% of Adjusted EBITDA for such period (calculated before giving effect to any add-back under this clause (f));
(g) cost savings, operating expense reductions, and synergies projected by the Borrower in good faith to be realizable within twenty-four (24) months following the date of the applicable acquisition, disposition, restructuring, or operational initiative giving rise thereto, provided that the aggregate amount of add-backs pursuant to this clause (g) shall not exceed 25% of Adjusted EBITDA for such period (calculated before giving effect to any add-back under this clause (g));
(h) run-rate revenue from signed customer contracts (including pre-lease letters of intent with binding economic terms) not yet contributing revenue to the Borrower or its Restricted Subsidiaries during such period, provided that such amount shall not exceed $25,000,000 in any four consecutive fiscal quarter test period;
minus:
(i) non-cash gains and extraordinary items included in Consolidated Net Income for such period.
For the avoidance of doubt, the add-back described in clause (h) above reflects, among other items, the pre-lease letter of intent with Stratos Cloud Services, Inc. with respect to the Virginia Campus (projected annual rent of $14,400,000) and the pre-lease letter of intent with Euronova Digital GmbH with respect to the Frankfurt Campus (projected annual rent of €9,800,000, equivalent to approximately $10,629,000 at the EUR/USD exchange rate of 1.0846).
"Administrative Agent" means Crescent Harbor Bank, National Association, in its capacity as administrative agent for the Lenders under this Agreement and the other Loan Documents, and its successors and assigns in such capacity. The Administrative Agent's address for notices is 1200 Harbor Point Drive, Charlotte, NC 28202.
"Affiliate" means, with respect to any person, any other person that directly or indirectly controls, is controlled by, or is under common control with such person. For purposes of this definition, "control" (including the correlative terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through ownership of voting securities, by contract, or otherwise. The term "Affiliate" shall include, without limitation, Thornfield Capital Partners, LP, Thornfield Capital Management LLC, Thornfield Infrastructure Fund III, LP, and their respective controlled affiliates.
"Aggregate Commitments" means the aggregate amount of the Commitments of all Lenders, which as of the Closing Date shall be $950,000,000.
"Agreement" means this Senior Secured Term Loan B Credit Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Anti-Corruption Laws" means, collectively, the Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and all other applicable anti-bribery and anti-corruption laws and regulations of any jurisdiction in which any Loan Party or any of its Subsidiaries conducts business.
"Applicable Rate" (also referred to as the "Applicable Margin") means (a) with respect to the USD Tranche, 4.25% (425 basis points) per annum, and (b) with respect to the EUR Sub-Tranche, 4.25% (425 basis points) per annum.
"Appraisal" means the MAI appraisal prepared by Meridian Valuation Group, LLC (Howard Finch, MAI) for the Virginia Campus and the Frankfurt Campus, in form and substance satisfactory to the Administrative Agent, delivered in connection with the Closing Date.
"Assignment and Assumption" means an Assignment and Assumption Agreement substantially in the form of Exhibit F hereto.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended.
"Base Rate" means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Crescent Harbor Bank, N.A. as its "prime rate," and (c) Term SOFR for a one-month Interest Period plus 1.00%. Changes in the Base Rate shall be effective from and including the effective date of such change.
"Base Rate Loan" means any Loan bearing interest based on the Base Rate.
"Benchmark" means (a) with respect to the USD Tranche, Term SOFR, and (b) with respect to the EUR Sub-Tranche, EURIBOR; provided that if a Benchmark Transition Event has occurred with respect to either such Benchmark, "Benchmark" shall mean the applicable Benchmark Replacement.
"Benchmark Floor" means (a) with respect to Term SOFR, 0.50% per annum, and (b) with respect to EURIBOR, 0.00% per annum.
"Benchmark Replacement" has the meaning set forth in Section 3.03.
"Benchmark Transition Event" has the meaning set forth in Section 3.03.
"Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
"Bermuda Lender" means any Lender organized under the laws of Bermuda. As of the date hereof, Osprey Insurance Capital, Ltd. is the sole Bermuda Lender.
"Board of Governors" means the Board of Governors of the Federal Reserve System of the United States of America.
"Borrower" means Ironhaven Data Centers LLC, a Delaware limited liability company. EIN: 84-3291057. Address: 4500 Dominion Ridge Boulevard, Suite 300, Ashburn, VA 20147.
"Borrowing" means a borrowing of Loans made by the Lenders on a single date and, with respect to the Term Loan, consisting of the initial draw of the full amount of the Aggregate Commitments on the Closing Date.
"Borrowing Date" means the date on which a Borrowing is made, which for the initial Borrowing shall be the Closing Date.
"Borrowing Request" means a Borrowing Request substantially in the form of Exhibit B.
"Business Day" means any day other than a Saturday, Sunday, or other day on which commercial banks in New York City or Charlotte, North Carolina are authorized or required by law to remain closed; provided that, with respect to any matters relating to the EUR Sub-Tranche, the term "Business Day" shall also require that such day be a TARGET Settlement Day.
"Capital Expenditures" means, for any period, expenditures (including expenditures for the acquisition of fixed or capital assets and capitalized lease expenditures) that would be capitalized in accordance with GAAP; excluding, however, (i) expenditures funded from insurance or condemnation proceeds received by the Borrower or any Restricted Subsidiary, and (ii) expenditures constituting all or a portion of the consideration for a Permitted Acquisition.
"Capital Lease Obligation" means, with respect to any person, any obligation of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property that is required to be classified and accounted for as a finance lease on the balance sheet of such person in accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one year from the date of acquisition thereof, (b) commercial paper maturing no more than 270 days from the date of acquisition thereof and having, at the time of such acquisition, a credit rating of at least A-1 from S&P or P-1 from Moody's, (c) certificates of deposit, time deposits, bankers' acceptances, and money market deposits maturing within one year from the date of acquisition thereof issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having combined capital and surplus of not less than $500,000,000, and (d) shares of any money market mutual fund that has net assets of not less than $500,000,000 and invests primarily in obligations of the type described in clauses (a) through (c) above.
"Change of Control" means the occurrence of any of the following:
(a) Thornfield Capital Partners, LP (or its Affiliates, including Thornfield Infrastructure Fund III, LP) ceases to own, directly or indirectly, more than 50% of the voting Equity Interests of Ironhaven Holdings Inc.;
(b) Ironhaven Holdings Inc. ceases to own, directly or indirectly, 100% of the Equity Interests of the Borrower;
(c) the Borrower ceases to own, directly or indirectly, 100% of the Equity Interests of IHDC Frankfurt; or
(d) a "change of control" (or similar event, however denominated) occurs under any Material Indebtedness.
"Closing Date" means June 3, 2024.
"Co-Borrower" means Ironhaven Frankfurt GmbH, a Gesellschaft mit beschränkter Haftung 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. Address: Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany. German Tax ID (Steuernummer): 045/127/98321; VAT ID (USt-IdNr.): DE347891205.
"Collateral" means all assets and property of the Loan Parties that are subject to the security interests and liens created pursuant to the Security Documents, including, without limitation, all real property, personal property, deposit accounts, securities accounts, equity interests, intellectual property, inventory, equipment, accounts receivable, and general intangibles, in each case, whether now owned or hereafter acquired.
"Collateral Agent" means Pinnacle Trust Company, National Association, in its capacity as collateral agent and security trustee for the benefit of the Secured Parties under the Security Documents, and its successors and assigns in such capacity. The Collateral Agent's address for notices is 101 Constitution Avenue NW, Washington, D.C. 20001.
"Commitment" means, with respect to each Lender, the amount set forth opposite such Lender's name on Schedule 2.01 as such Lender's commitment to make a Term Loan on the Closing Date, as such amount may be reduced or terminated pursuant to this Agreement.
"Compliance Certificate" means a Compliance Certificate substantially in the form of Exhibit C.
"Confidential Information Memorandum" means the Confidential Information Memorandum prepared by Crescent Harbor Bank, N.A. in connection with the syndication of the Term Loan.
"Consolidated Cash Interest Expense" means, for any period, the aggregate cash interest expense of the Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, excluding (a) PIK interest, (b) amortization of original issue discount and deferred financing costs, (c) commitment fees, (d) letter of credit fees, and (e) any one-time financing fees or charges.
"Consolidated Net Income" means, for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, excluding the income (or loss) of any person that is not a Restricted Subsidiary except to the extent of the amount of dividends or other distributions actually paid to the Borrower or a Restricted Subsidiary by such person during such period.
"Consolidated Total Debt" means, at any date of determination, the aggregate principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (excluding any undrawn commitments under any revolving credit facility, but including any drawn and unreimbursed amounts thereunder).
"Consolidated Total Net Debt" means, at any date of determination, Consolidated Total Debt minus Unrestricted Cash; provided that, for purposes of calculating Consolidated Total Net Debt, the amount of Unrestricted Cash netted against Consolidated Total Debt shall not be subject to any cap.
"Credit Agreement CUSIP" means 46283LAA5.
"Crescent Harbor Deal Reference" means CHB-LF-2024-0287.
"DACA" means a Deposit Account Control Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.
"Debt Incurrence" means the incurrence of any Indebtedness by the Borrower or any Restricted Subsidiary (other than Permitted Indebtedness).
"Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any portion of its Loans within two (2) Business Days of the date on which such funding is required hereunder, unless such failure is the result of such Lender's good-faith determination that one or more conditions precedent to funding has not been satisfied, (b) has notified the Borrower, the Administrative Agent, or any Lender that it does not intend to comply with its funding obligations, or (c) has become the subject of a bankruptcy, insolvency, or similar proceeding.
"Disposition" means the sale, transfer, license, lease, or other disposition (including any sale-leaseback transaction and any issuance of Equity Interests of any Restricted Subsidiary) of any property by the Borrower or any Restricted Subsidiary, including any disposition of property or assets as part of a sale-leaseback, exchange, or other transfer to any other person, excluding (a) dispositions of inventory or obsolete or worn-out equipment in the ordinary course of business, (b) leases or subleases of real property in the ordinary course of business, and (c) dispositions of cash and Cash Equivalents in the ordinary course of business.
"Disqualified Lender" means any person identified on Schedule 11.04(a), as such schedule may be supplemented by the Borrower from time to time in accordance with Section 11.04.
"Eligible Assignee" means any person that meets the requirements to be an assignee under Section 11.04 (subject to such consents, if any, as may be required under Section 11.04) other than a Disqualified Lender.
"Environmental Indemnity Agreement" means the Environmental Indemnity Agreement to be executed by the Borrower in favor of the Collateral Agent with respect to the Virginia Campus.
"Environmental Laws" means all applicable federal, state, local, and foreign laws, statutes, rules, regulations, orders, and ordinances relating to the protection of the environment, human health, or safety, or to hazardous or toxic materials, substances, or wastes, including the Comprehensive Environmental Response, Compensation, and Liability Act, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act, and their state counterparts.
"Environmental Liability" means any liability, obligation, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense, or cost (including reasonable attorneys' fees) arising under or relating to any Environmental Law.
"Equity Contribution" means the contribution by Thornfield Infrastructure Fund III, LP of $410,000,000 in equity to Ironhaven Holdings Inc. for downstream contribution to the Borrower, to be made simultaneously on the Closing Date.
"Equity Cure" has the meaning set forth in Section 7.01(c).
"Equity Interests" means, with respect to any person, shares of capital stock, partnership interests, membership interests, beneficial interests, or other ownership interests in such person, whether now outstanding or hereafter issued, and any warrants, options, or other rights entitling the holder thereof to purchase or acquire any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or 414(c) of the Internal Revenue Code.
"ERISA Event" means (a) a "reportable event" (as defined in Section 4043 of ERISA) with respect to a Plan, (b) the failure of any Loan Party or ERISA Affiliate to meet the minimum funding requirements of Section 412 of the Internal Revenue Code or Section 302 of ERISA with respect to a Plan, (c) the filing of a notice of intent to terminate any Plan under Section 4041(c) of ERISA, (d) the institution of proceedings to terminate any Plan by the PBGC, or (e) any other event or condition that could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan.
"EUR Sub-Tranche" means the portion of the Term Loan denominated in Euros in the aggregate original principal amount of €253,571,429, which is equivalent to approximately $275,000,000 at the EUR/USD exchange rate of 1.0846 on the Closing Date.
"EURIBOR" means, with respect to any Interest Period applicable to the EUR Sub-Tranche, the rate per annum equal to the Euro Interbank Offered Rate as administered by the European Money Markets Institute (or any successor administrator), as published on the applicable Calderon Health IT screen page (or any successor thereto) at approximately 11:00 a.m. (Brussels time) two (2) TARGET Settlement Days prior to the commencement of such Interest Period, for deposits in Euros with a maturity equal to such Interest Period; provided that if such rate is less than the Benchmark Floor applicable to EURIBOR, then EURIBOR shall be deemed to be the Benchmark Floor.
"Event of Default" has the meaning set forth in Section 8.01.
"Excess Cash Flow" means, for any fiscal year, an amount equal to:
(a) Adjusted EBITDA for such fiscal year,
minus
(b) Consolidated Cash Interest Expense paid in cash during such fiscal year,
minus
(c) scheduled principal payments of the Loans and other Indebtedness actually made during such fiscal year (excluding any voluntary or mandatory prepayments),
minus
(d) income taxes paid in cash during such fiscal year,
minus
(e) Capital Expenditures made during such fiscal year (to the extent paid in cash and not financed with long-term Indebtedness or equity contributions),
minus (or plus)
(f) increases (or decreases) in Working Capital during such fiscal year,
minus
(g) voluntary prepayments of the Loans and Permitted Refinancing Indebtedness actually made during such fiscal year (which shall reduce the Excess Cash Flow prepayment obligation dollar-for-dollar).
"Excess Cash Flow Percentage" means:
(a) 75%, if the Net Leverage Ratio as of the last day of the applicable fiscal year is greater than 4.50x;
(b) 50%, if the Net Leverage Ratio as of the last day of the applicable fiscal year is greater than 3.50x but less than or equal to 4.50x;
(c) 25%, if the Net Leverage Ratio as of the last day of the applicable fiscal year is greater than 2.50x but less than or equal to 3.50x; and
(d) 0%, if the Net Leverage Ratio as of the last day of the applicable fiscal year is less than or equal to 2.50x.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan pursuant to a law in effect on the date on which such Lender acquires such interest in the Loan (other than pursuant to an assignment request by the Borrower under Section 3.07); (c) Taxes attributable to such Recipient's failure to comply with Section 3.01(e); and (d) any Taxes imposed under FATCA.
"FATCA" means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), any current or future Treasury regulations or other official administrative guidance promulgated or issued thereunder, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any fiscal or regulatory legislation, rules, or practices adopted pursuant to any intergovernmental agreement, treaty, or convention among governmental authorities implementing the foregoing.
"Federal Funds Effective Rate" means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day's federal funds transactions by depository institutions, as determined in such manner as shall be set forth on the Federal Reserve Bank of New York's website from time to time.
"Fee Letter" means the Fee Letter dated February 28, 2024, among the Borrower, the Administrative Agent, and Crescent Harbor Bank, N.A.
"Frankfurt Campus" means the data center campus known as "Ironhaven Frankfurt I" located at Hanauer Landstraße 188, 60314 Frankfurt am Main, Germany (Grundbuch von Frankfurt am Main-Ost, Blatt 54321, Flur 12, Flurstück 789), comprising approximately 18.7 hectares, with planned capacity of 80 MW critical IT load (Phase I: 40 MW).
"Frankfurt Campus Construction Escrow Agreement" means the Construction Escrow Agreement to be entered into among IHDC Frankfurt, Crescent Harbor Bank, N.A., and NordBrücke AG (as Frankfurt Escrow Bank), in form and substance satisfactory to the Administrative Agent.
"GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time, subject to Section 1.03.
"Globalzession" means the global assignment of receivables (Globalzession) to be granted by IHDC Frankfurt in favor of the Collateral Agent (acting through its London branch) over all present and future trade receivables, claims, and other receivables of IHDC Frankfurt.
"Governmental Authority" means the government of the United States of America, any other nation, or any political subdivision thereof, whether state, provincial, or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government.
"Greystone Mezzanine Notes" means the mezzanine notes in the original principal amount of $130,000,000, bearing interest at 12.50% PIK, held by Greystone Mezzanine Fund II, LP (CUSIP: 39817MAB3), which are to be repaid in full on the Closing Date in accordance with Section 4.01(n).
"Grundschuld" means the land charge without personal liability (Buchgrundschuld ohne Brief) in the amount of €280,000,000 (plus 15% annual interest and a one-time additional amount of 5% of the nominal amount) to be registered in the land register (Grundbuch) of Frankfurt am Main-Ost against the Frankfurt Campus property (Blatt 54321, Flur 12, Flurstück 789) in favor of the Collateral Agent (acting through its London branch) pursuant to the German Parallel Debt and Security Trust Agreement.
"Guarantee" or "Guarantee Agreement" means the Guarantee Agreement to be executed by the Parent Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form attached hereto.
"Guarantor" (also referred to as "Parent Guarantor") means Ironhaven Holdings Inc., a Delaware corporation. EIN: 84-3291044.
"Incremental Facility" has the meaning set forth in Section 2.12.
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"intellectual Property" means all patents, patent applications, trademarks, trademark registrations and applications, service marks, copyrights, copyright registrations and applications, trade secrets, domain names, technology, know-how, processes, and other intellectual property of any kind.
"Intercreditor Agreement" means the Intercreditor Agreement to be entered into by and among the Administrative Agent, the Collateral Agent, and the administrative agent under the Super-Senior Revolving Credit Facility, governing the respective rights and remedies of the Secured Parties and the holders of Indebtedness under the Super-Senior Revolving Credit Facility with respect to the Collateral.
"Interest Coverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Adjusted EBITDA for the most recently completed period of four consecutive fiscal quarters ending on or before such date to (b) Consolidated Cash Interest Expense for such period.
"Interest Period" means, with respect to any SOFR Loan or EURIBOR Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a SOFR Loan or EURIBOR Loan and ending on the numerically corresponding day in the calendar month that is one, three, or six months thereafter (or, during the first six months after the Closing Date, one week thereafter), as the Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of EURIBOR Loans, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.
"Kontoverpfändung" means the pledge of bank accounts (Kontoverpfändung) to be granted by IHDC Frankfurt in favor of the Collateral Agent (acting through its London branch) over all bank accounts maintained by IHDC Frankfurt with any bank in Germany.
"Lenders" means the financial institutions from time to time party to this Agreement as lenders, as set forth in Schedule 2.01, and their respective successors and assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment, encumbrance, lien (statutory or other), charge, or preference, priority, or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement).
"Loan Documents" means this Agreement, the Guarantee Agreement, the Security Documents, the Intercreditor Agreement, the Fee Letter, the Promissory Notes (if any), the Virginia Campus Construction Escrow Agreement, the Frankfurt Campus Construction Escrow Agreement, and each other agreement, instrument, or document executed and delivered in connection herewith or therewith, in each case as amended, restated, supplemented, or otherwise modified from time to time.
"Loan Parties" means, collectively, the Borrower, the Co-Borrower, and the Guarantor.
"Loans" means the Term Loans made by the Lenders pursuant to Article II.
"Material Adverse Effect" means a material adverse change in or effect on (a) the business, assets, financial condition, or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the Loan Documents, or (c) the rights and remedies of the Administrative Agent, the Collateral Agent, and the Lenders under the Loan Documents.
"Material Contract" means any contract or agreement to which the Borrower or any Restricted Subsidiary is a party the loss or termination of which would reasonably be expected to have a Material Adverse Effect, and shall in any event include the pre-lease letters of intent with Stratos Cloud Services, Inc. and Euronova Digital GmbH.
"Material Indebtedness" means Indebtedness (other than the Loans) of any one or more of the Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $25,000,000.
"Maturity Date" means June 3, 2031 (the date that is seven (7) years after the Closing Date); provided that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
"Maximum Capital Expenditure Amount" means (a) $325,000,000 for the fiscal year ending December 31, 2024, and (b) $250,000,000 for the fiscal year ending December 31, 2025 and for each fiscal year thereafter; provided that, in each case, unused amounts of up to 25% of the applicable year's limit may be carried forward and applied to Capital Expenditures in the immediately succeeding fiscal year.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any event, the cash proceeds received in respect of such event, including any cash received in respect of any non-cash consideration, net of (a) all reasonable and customary fees and expenses paid to third parties in connection therewith, (b) Taxes paid or reasonably estimated to be payable as a result thereof, and (c) any amount required to be paid to repay Indebtedness secured by Permitted Liens on the assets subject to such event.
"Net Leverage Ratio" (also referred to as the "Maximum Net Leverage Ratio") means, as of any date of determination, the ratio of (a) Consolidated Total Net Debt as of such date to (b) Consolidated Adjusted EBITDA for the most recently completed period of four consecutive fiscal quarters ending on or before such date. The Net Leverage Ratio shall not exceed 6.00x, tested quarterly commencing with the fiscal quarter ending September 30, 2024.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"OID" means the original issue discount of 50 basis points (reflecting a 99.50 issue price), resulting in net proceeds to the Borrower of $950,000,000 × 99.50% = $945,250,000.
"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced any Loan Document).
"Other Taxes" means all present or future stamp, court, documentary, intangible, recording, filing, or similar Taxes that arise from any payment made under, or from the execution, delivery, performance, enforcement, or registration of, or from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
"Parallel Debt" has the meaning set forth in the German Parallel Debt and Security Trust Agreement.
"Parent" means Ironhaven Holdings Inc.
"Permitted Acquisition" means any Acquisition by the Borrower or any Restricted Subsidiary that satisfies each of the following conditions: (a) the business to be acquired is in the same or a substantially related line of business as the Borrower and its Restricted Subsidiaries, (b) no Default or Event of Default exists or would result therefrom, (c) the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.01 after giving effect to such Acquisition (calculated on a pro forma basis as described in Section 1.04), and (d) the aggregate consideration paid does not exceed $75,000,000 for any single Acquisition or $125,000,000 in the aggregate for all Acquisitions during the term of this Agreement.
"Permitted Indebtedness" means, without duplication:
(a) Indebtedness under the Super-Senior Revolving Credit Facility in an aggregate committed amount not to exceed $100,000,000;
(b) Capital Lease Obligations and Purchase Money Indebtedness in an aggregate amount not to exceed the greater of (x) $30,000,000 and (y) 20% of Adjusted EBITDA (calculated on an LTM basis);
(c) intercompany Indebtedness among the Loan Parties;
(d) Indebtedness arising from or in connection with Permitted Investments;
(e) additional incremental Indebtedness incurred pursuant to Section 2.12 in an aggregate principal amount not to exceed $200,000,000, subject to pro forma compliance with a Net Leverage Ratio of 5.50x;
(f) guarantees by the Borrower or any Restricted Subsidiary of Indebtedness otherwise permitted under this definition;
(g) Indebtedness in respect of performance bonds, surety bonds, bid bonds, and similar obligations incurred in the ordinary course of business;
(h) Indebtedness arising from treasury, cash management, and netting services in the ordinary course of business;
(i) Indebtedness arising under Swap Contracts entered into for hedging purposes and not for speculation;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft, or similar instrument drawn against insufficient funds in the ordinary course of business; and
(k) other Indebtedness in an aggregate amount not to exceed $10,000,000 at any time outstanding.
"Permitted Investments" means:
(a) investments in Cash Equivalents;
(b) investments in Restricted Subsidiaries;
(c) short-term direct obligations of the United States of America;
(d) money market funds rated at least AAA by S&P or Aaa by Moody's;
(e) Permitted Acquisitions;
(f) investments consisting of advances to employees in the ordinary course of business in an aggregate amount not to exceed $2,000,000;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers; and
(h) a general basket of investments in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 30% of Adjusted EBITDA (calculated on an LTM basis) at any time outstanding.
"Permitted Liens" means:
(a) Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings with adequate reserves;
(b) statutory Liens of landlords, carriers, warehousepersons, mechanics, materialmen, repairmen, construction contractors, and other Liens imposed by law arising in the ordinary course of business for amounts not yet overdue by more than 60 days or being contested in good faith;
(c) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance, and other types of social security;
(d) judgment Liens not constituting an Event of Default under Section 8.01(h), provided that the aggregate amount of all such judgment Liens does not exceed $10,000,000;
(e) Liens securing Capital Lease Obligations and Purchase Money Indebtedness permitted under clause (b) of the definition of Permitted Indebtedness, provided that such Liens attach only to the assets financed thereby;
(f) Liens in favor of the Collateral Agent for the benefit of the Secured Parties;
(g) easements, zoning restrictions, rights-of-way, encroachments, and similar encumbrances on real property that do not materially interfere with the ordinary conduct of business;
(h) Liens arising under the Intercreditor Agreement in connection with the Super-Senior Revolving Credit Facility; and
(i) other Liens securing Indebtedness or obligations in an aggregate amount not to exceed $5,000,000 at any time.
"Permitted Refinancing Indebtedness" means Indebtedness issued to refinance, extend, renew, or replace any Indebtedness permitted hereunder, provided that (a) the principal amount of such Permitted Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced (plus accrued interest and reasonable premiums, fees, and expenses), (b) the maturity date of such Permitted Refinancing Indebtedness is no earlier than the maturity date of the Indebtedness being refinanced, and (c) such Permitted Refinancing Indebtedness is not secured by assets other than those securing the Indebtedness being refinanced.
"Plan" means any "employee benefit plan" (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA, Section 302 of ERISA, or Section 412 of the Internal Revenue Code, which is sponsored, maintained, or contributed to by, or required to be contributed to by, the Borrower or any ERISA Affiliate.
"Promissory Note" means a Promissory Note substantially in the form of Exhibit A.
"Pro Rata Share" means, with respect to each Lender, a fraction (expressed as a percentage), the numerator of which is the outstanding principal amount of such Lender's Term Loans and the denominator of which is the aggregate outstanding principal amount of all Term Loans.
"Purchase Money Indebtedness" means Indebtedness incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (including real property improvements), provided that (a) such Indebtedness is incurred within 180 days after such acquisition, construction, or improvement, (b) such Indebtedness does not exceed the cost of such acquisition, construction, or improvement, and (c) such Indebtedness is secured only by the assets so acquired, constructed, or improved.
"Recipient" means the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.