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Amendment redline · 16 May 2024

CoreWeave DDTL 1.0: First Amendment

What the amendment changed in the agreement, read from the marked-up copy attached to the filing: struck text was deleted, underlined text was added. Start with the figures and defined terms, then read each change in place.

First Amendment to Credit Agreement (S-1 Ex 10.9) on SEC EDGAR · The deal

Randeep Bubbra | Lawyer | Making the next generation of infrastructure financeable · Firm profile ·

Provisions changed
74
Sections touched
27
Defined terms added
5
Defined terms deleted
0
Words inserted
1,147
Words deleted
260

Figures

Numbers that changed

Amounts, percentages, ratios and periods deleted or inserted in the same provision. Read each in context below.

ProvisionDeleted figuresInserted figures
“Lender Representative”–10.0%
Section 6.06 Restricted Payments–$100,000,000, $50,000,000, 10%
Section 6.06 Restricted Payments–15%

Defined terms

Definitions added, deleted and amended

Added 5

  • [*]
  • [*] Buyback Transactions
  • Excluded Management Person
  • First Amendment
  • First Amendment Effective Date

Amended 13

  • Affiliated Lender
  • Affiliated Lender Cap
  • Change in Law
  • Closing Date
  • Distribution Conditions
  • Erroneous Payment Subrogation Rights
  • Lender Representative
  • Liquidity Requirement
  • Operating Expenses
  • Participant
  • Participant Register
  • Permitted Holders
  • Subsidiary

The redline

Every change, provision by provision

Deleted text Inserted text

Opening provisions 1 change
  1. (as amended by the First Amendment to Credit Agreement, dated as of May 16, 2024)
Section 1.01 Defined Terms 23 changes
  1. “Affiliated Lender” “Affiliated Lender” shall mean, at any time, any Lender that is the Parent or any other Affiliate of the Borrower other than (a) the Borrower or any of its Subsidiaries, or (b) a Debt Fund Affiliate or (c) any natural person.
  2. “Affiliated Lender Cap” “Affiliated Lender Cap” shall have the meaning assigned to such term in Section 9.04(f)Section 9.04(e)(iii).
  3. “Change in Law” “Change in Law” shall mean (a) the adoption or implementation of any treaty, law, rule or regulation after the date hereof, (b) any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date hereof or (c) compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law but if not having the force of law, then being one with which the relevant party would customarily comply) of any Governmental Authority made or issued after the date hereof; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or Unitesd States or foreign regulatory agencies, in each case, pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
  4. “Closing Date” “Closing Date” shall mean the first date on which each of the conditions precedent set forth in Sections 4.01 and Section 4.02 (with respect to any conditions expressly applicable to the initial Borrowing of any Delayed Draw Term Loans) are satisfied or waived by the Administrative Agent (at the direction of each Lender) in accordance with the terms thereof.
  5. (A) (i) no actions other than the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower shall be required to perfect security interests in any Collateral consisting of notes or other evidence of Indebtedness, except to the extent set forth in clause (d) to the first paragraph of this definition, (ii) no actions other than the filing of Uniform Commercial Code financing statements and the entry into control agreements with respect to the Collateral Accounts and each other deposit account and securities account of the Borrower shall be required to perfect security interest in any Collateral consisting of proceeds of other Collateral and (iii) except to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower, the Borrower shall not be required to take any action to perfect or provide priority with respect to any security interest on any assets or property except as such action is required pursuant to the Collateral and Guarantee Requirement (it being understood that the Collateral and Guarantee Requirement requires the delivery of Control Agreements with respect to the Collateral Accounts and each other deposit account and securities account of the Borrower);
  6. “[*]” “[*]” means [*] as Rollover Equity Escrow Agent pursuant to that certain [*], dated as of [*], by and between the Parent, certain shareholders of [*], [*] and the other parties party thereto.
  7. “[*] Buyback Transactions” “[*] Buyback Transactions” shall mean the repurchase, redemption or other acquisition of any Equity Interests of the Borrower directly or indirectly held by [*], in an aggregate amount, not to exceed $[*].
  8. (c) any Affiliate of any Person described in clause (i)(a) and (ii)(b) above (other than any Bona Fide Debt Fund of any competitor of the Borrower) that is either identified in writing to the Administrative Agent and readily identifiable on the basis of such Affiliate’s name;
  9. “Distribution Conditions” “Distribution Conditions” shall mean, on any date on any Quarterly Payment Date or on any other date on which aan applicable Restricted Payment pursuant to Section 6.06(a)(1) is made, compliance with the following conditions:
  10. “Erroneous Payment Subrogation Rights” “Erroneous Payment Subrogation Rights” shall have the meaning assigned to it in Section 9.22Section 9.27(ed).
  11. (e) any Investments in graphic processing unit servers and ancillary components, and all related infrastructure (including networking infrastructure);
  12. “Excluded Management Person” “Excluded Management Person” shall mean, individually or collectively, (a) Michael Intrator, (b) Brian Venturo, (c) Brannin McBee, (d) Max Hjelm and (e) Peter Salanki.
  13. “First Amendment” “First Amendment” shall mean the First Amendment to Credit Agreement, dated as of May 16, 2024, by and among CoreWeave Compute Acquisition Co. II, LLC, U.S. Bank Trust Company, National Association, a national banking association, in its capacity as administrative agent for the Lenders and each of the Consenting Lenders (as defined therein).
  14. “First Amendment Effective Date” “First Amendment Effective Date” shall have the meaning ascribed to such term in the First Amendment.
  15. “Lender Representative” “Lender Representative” shall mean Blackstone or an Affiliate of Blackstone designated by Blackstone in writing to the Administrative Agent and the Borrower, or any successor upon the resignation of the Lender Representative designated from time to time by the Required Lenders (excluding, for such purpose only, the existing Lender Representative) and the Borrower in writing to the Administrative Agent; provided that (a) in the event that Blackstone or any of its Affiliates acquires, directly or indirectly, more than 10.0% any Equity Interests in the Parent, or any options, warrants, calls or other rights in the ownership of the Parent or (b) Blackstone and its Affiliates, collectively, hold less than 50% of the Loans and Commitments held by Blackstone and its Affiliates as of the Closing Date, the Required Lenders (excluding, for such purpose only, the existing Lender Representative) and the Borrower may replace Blackstone or its Affiliate as Lender Representative (it being understood that, until the Required Lenders and the Borrower reach mutual agreement as to the Lender Representative, any decisions of the Lender Representative under this Agreement or any other Loan Document shall be made by the Required Lenders (excluding the Lender Representative)).
  16. “Liquidity Requirement” “Liquidity Requirement” shall mean, as of any date of determination following the initial funding of Delayed Draw Term LoansFirst Amendment Effective Date, the sum of (a) the amount of Unrestricted Cash of the Borrower held in the Liquidity Account plus (b) the undrawn amount of any Liquidity Reserve L/C shall be no less than the greater of (x) $18,750,000,000 or (y) 164.0% of the principal amount of the then-outstanding Loans (provided that (a) following the earlier to occur of (i) a Qualified IPO and (ii) the Loan Balance Trigger Event, the Liquidity Requirement shall be notno less than $250,000,000 and (b) in no event shall the Liquidity Requirement be greater than $356,25,000,000 as of any date of determination).
  17. (b) with respect to any Casualty Event, 100% of the cash proceeds actually received by the Borrower or any of its Affiliates in connection therewith (including casualty insurance settlements and condemnation awards, but only as and when received) minus (i) the reasonable or customary out-of-pocket fees and expenses incurred by the Borrower (including attorneys’ fees, accountants’ fees, investment banking fees, real property related fees, sales commissions, transfer taxes and charges and brokerage and consultant fees) in connection therewith and (ii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued by the Borrower as a result thereof.
  18. “Operating Expenses” “Operating Expenses” shall mean operating costs and expenses of the Borrower and their other administrative, management and overhead costs and expenses (including (a) franchise and similar Taxes and other fees, Taxes and expenses required to maintain their corporate existence and any amounts related to any related to Tax penalties and examinations (but specifically excluding income and similar taxes), (b) indemnity payments in connection with their management and maintenance, (c) amounts relating to insurance (including the costs of premiums and deductibles and brokers’ expenses), (d) amounts related to obtaining and maintaining any Governmental Approvals and complying with the terms of any Material Project DocumentContract and Data Center Leases/Licenses to which the Borrower is a party and (e) legal, accounting, general administrative and other overhead costs and expenses and professional fees).
  19. “Participant” “Participant” shall have the meaning assigned to such term in Section 9.04(c)(i)Section 9.04(b)(vi).
  20. “Participant Register” “Participant Register” shall have the meaning assigned to such term in Section 9.04(c)(i)Section 9.04(b)(vi).
  21. “Permitted Holders” “Permitted Holders” shall mean any holder of Equity Interests of the Parent as of the date hereof and any additional Person who becomes a holder of Equity Interests of the Parent as part of one or more offering process(es) on or prior to DecemberOctober 31, 20234 ; provided that the holders of Equity Interests of the Parent as of the date hereof and any additional Person who becomes a holder of Equity Interests of the Parent as part of one or more offering process(es) on or prior to DecemberOctober 31, 20234 , collectively, have beneficial ownership of more than 50% of the total voting power of the Equity Interest of the Parent; provided, further, that, as of DecemberOctober 31, 20234, the holders of Equity Interests of the Parent as of the date hereof shall, collectively have beneficial ownership of more than 50% of the total voting power of the Equity Interest of the Parent.
  22. “Subsidiary” “Subsidiary” shall mean, with respect to any Person (herein referred to as the “Parent”), any corporation, partnership (general or limited), association, joint venture, limited liability company or other business entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held by such Person.
  23. (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that, if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABRBase Rate Term SOFR Determination Day;
Section 2.01 Commitments 1 change
  1. (c) Minimum Delayed Draw Term Loans. To the extent the Loans are available to be drawn hereunder, including pursuant to Article IV, the Borrower agrees that on or prior to the Commitment Termination Date, it will draw Loans in an amount at least equal to [*]% of the Maximum GPU Amount as of the Commitment Termination Date.
Section 2.03 Requests for Borrowings 1 change
  1. Section 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by delivering to the Administrative Agent a Borrowing Request (or such other form as may be approved by the Administrative Agent) and signed by the Borrower not later than 12:00 noon, New York time, fourteen (14) Business Days (it being understood and agreed that such fourteen (14) Business Day deadline may be the same fourteen (14) Business Day notice deadline applicable to the Funding Date Schedule to the extent the Funding Date Schedule will be updated in accordance thereof) (or, with respect to the initial Borrowings of Delayed Draw Term Loans, five (5) Business Days) before the date of the proposed Borrowing. Each such Borrowing Request shall specify the following information in compliance with Section 2.02:
Section 2.06 Termination of Commitments 1 change
  1. (c) Automatic Termination. If the initial funding of Delayed Draw Term Loans has not occurred on or prior to the Termination Blackout Date, the Commitments shall be reduced to zero and this Agreement shall contemporaneously terminate and be of no force and effect, other than the rights, privileges, immunities and indemnities of the Agents expressly set forth in the Loan Documents, which shall survive in accordance with the terms hereof.
Section 2.09 Prepayment of Loans 2 changes
  1. later times to which the Administrative Agent may agree). Each such notice shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid. The Administrative Agent will promptly notify the Lenders of any such notice of the foregoing, and any such notice may be contingent upon the consummation of a refinancing or other event and such notice may otherwise be extended or revoked. Prepayments shall be accompanied by accrued interest and fees to the extent required by Section 2.10 or Section 2.11(d).
  2. (i) If, prior to the fourth (4th) year anniversary of the Commitment Termination Date, (A) the Borrower makes a voluntary prepayment of the Loans pursuant to Section 2.09(a) or a mandatory prepayment of the Loans pursuant to Section 2.09(b)(i), Section 2.09(b)(ii), Section 2.09(b)(iv) (other than in connection with Casualty Events), Section 2.09(b)(v) or Section 6.05(d), or (B) the Loans are accelerated or (C) the Loans are subject to a mandatory assignment by a Non-Consenting Lender in accordance with Section 2.17(c), the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, the Applicable Premium (with respect to the Delayed Draw Term Loans).
Section 2.12 Illegality of Term SOFR 2 changes
  1. Section 2.12. Illegality of Term SOFR. If after the date hereof any Lender shall determine that the introduction of any Change in Law or in the interpretation or administration thereof, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its Llending Ooffice to make Term SOFR Loans, then, on notice thereof by such Lender to the Borrower and the Administrative Agent, the obligation of that Lender to make Term SOFR Loans shall be suspended until such Lender shall have notified the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exists.
  2. (c) Before giving any notice to the Administrative Agent pursuant to this Section 2.12, the affected Lender shall designate a different Llending Ooffice with respect to its Term SOFR Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.
Section 2.15 Taxes 1 change
  1. (c) Without duplication of any amounts paid under Section 2.15(a) or (b), the Borrower shall indemnify the Administrative Agent and each Lender, within twenty (20) days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by, or required to be withheld or deducted from a payment to, the Administrative Agent or such Lender, as applicable, on or with respect to any payment by or on account of any obligation of the Borrower under, or otherwise with respect to, any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that a certificate as to the amount of such payment or liability and setting forth in reasonable detail the basis and calculation for such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error of the Lender or the Administrative Agent, as applicable. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c)(i)Section 9.04(b)(vi) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (c).
Section 2.17 Mitigation Obligations; Replacement of Lenders 1 change
  1. (c) If any Lender (such Lender, a “Non-Consenting Lender”) (x) has failed to consent to a proposed waiver, amendment, other modification, discharge or termination which pursuant to the terms of Section 9.08 requires the consent of Lenders in addition to the Required Lenders or (y) has failed to confirm the satisfaction of the conditions precedent pursuant to Article IV and, in each case, with respect to which the Required Lenders shall have granted their consent, then, provided that no Event of Default then exists, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and its Commitments hereunder to one or more assignees in accordance with Section 9.04 and deliver any outstanding notes to the Borrower; provided that (i) all Obligations of the Borrower then owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment and (ii) the Non-Consenting Lender shall receive a price equal to the principal amount thereof plus accrued and unpaid interest thereon; provided, further that, in the event a Non-Consenting Lender has not consented to the waiver of any condition precedent to the initial funding of the Delayed Draw Term Loans pursuant to Section 4.02, and with respect to which the Required Lenders shall have granted their consent, the Commitments of such Non-Consenting Lender in such circumstance may also, at the Borrower’s option, be re-allocated to other Lenders willing to increase its Commitments hereunder. In connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender, and the replacement Lender shall otherwise comply with Section 9.04. Each Lender agrees that, if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Non-Consenting Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 9.04. In the event that
Section 2.19 Defaulting Lenders 1 change
  1. (ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agents hereunder; second, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing to the extent no Default or Event of Default is a condition to funding the subsequent mentioned Loan), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.01 and Section 4.02 (with respect to any funding of initial Delayed Draw Term Loans) were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Section 2.20 Cash Waterfall 3 changes
  1. (ii) second, on each Quarterly Payment Date, to pay scheduled interest payments and expenses which are then due and payable with respect to the Facilitiesy ;
  2. (iii) third, on each Quarterly Payment Date, to make the repayments of principal with respect to the Facilitiesy as required pursuant to Section 2.08;
  3. (i) On any Quarterly Payment Date or within thirty (30) days thereafter, if the Distribution Conditions have been satisfied pursuant to Section 6.06(a), then pursuant to an Account Withdrawal Certificate delivered by the Borrower (and countersigned by the Calculation Agent (such signature not to be unreasonably delayed or withheld)) to the Collateral Agent, the Collateral Agent shall deliver the direction prepared by the Borrower and annexed to the applicable Account Withdrawal Certificate to the applicable dDepositary bBank who shall withdraw and transfer to any Person or account (including to the General Account) specified in such Account Withdrawal Certificate, such amounts on deposit in the Distribution Reserve Account.
Section 2.21 Benchmark Replacement 1 change
  1. (a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent (at the direction of the Required Lenders) and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders; provided that the Administrative Agent, in its sole discretion, may abstain from executing such amendment until so directed by the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 3.042.21(ba) will occur prior to the applicable Benchmark Transition Start Date.
Section 4.02 All Credit Events 8 changes
  1. Section 4.02. All Credit Events. The obligation of the Lenders to make Credit Extensions (other than, for the avoidance of doubt, with respect to a conversion of Loans to the other Type or a continuation of Term SOFR Loans) is subject to the satisfaction or waiver by the Administrative Agent at the direction of (x) each Lender (in the case of any condition to the initial funding of Delayed Draw Term Loans) and (y) the Required Lenders (in the case of any other Credit Extension) of each of the following conditions precedent:
  2. (a) Solely with respect to the initial funding of Delayed Draw Term Loans, the Administrative Agent shall have received each of the following:
  3. (c) Solely with respect to the initial funding of Delayed Draw Term Loans, the Administrative Agent shall have received a solvency certificate in the form attached hereto as Exhibit L and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and the Parent after giving effect to the Transactions.
  4. (d) Solely with respect to the initial funding of Delayed Draw Term Loans, all Collateral Accounts (other than any General Account) have been established.
  5. (e) Solely with respect to the initial funding of Delayed Draw Term Loans, the Administrative Agent shall have received customary insurance certificates required pursuant to Section 5.02 and Schedule 5.02, along with endorsements naming the Collateral Agent as an additional insured with respect to all liability policies maintained by the Borrower and as first loss payee with respect to the assets of the Borrower under the applicable insurance policies and a certification from the Borrower that (i) the Borrower has obtained all insurance policies required to be obtained and maintained by the Borrower under the Loan Documents as of the Closing Date, (ii) all such insurance policies are in full force and effect and all premiums then due thereon have been paid in full and (iii) such insurance policies comply with Section 5.02 and Schedule 5.02.
  6. (f) Solely with respect to the initial funding of Delayed Draw Term Loans, the Administrative Agent shall have received, in each case in form and substance satisfactory to the Required Lenders, the assignment by the Parent to the Borrower of each Closing Date MSA.
  7. (g) Solely with respect to the initial funding of Delayed Draw Term Loans, (i) file-stamped copies, in a form appropriate for filing, of the UCC-3 amendments relating to the Magnetar Debt Documents (as defined in the Parent Guarantee and Pledge Agreement) amending the existing UCC-1 financing statements relating to such Magnetar Debt Documents to exclude from the collateral package thereof the Liens on, and security interests, in the Collateral under (and as defined in) the Parent Guarantee and Pledge Agreement and (ii) copies (and reasonably satisfactory evidence that such copies have been filed) of the UCC-3 termination statements relating to the [*] Documents terminating all Liens on, and security interests in, the collateral granted by the Parent to [*] under the [*] Documents with respect to any Collateral to be granted by the Borrower to the Secured Parties under the Collateral Agreement.
  8. (h) Solely with respect to the initial funding of Delayed Draw Term Loans, the Administrative Agent shall have received all fees due and payable to the Agents, any Lender, the Arrangers or to the Lead Lenders on or prior to such funding date (including, without limitation, fees payable pursuant to the Agent Fee Letter), and to the extent invoiced at least three (3) Business Days prior to the date of such funding, all other amounts due and payable pursuant to the Loan Documents, including, to the extent so invoiced, reimbursement or payment of all reasonable out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any Loan Document.
Article V 1 change
  1. The Borrower covenants and agrees with the Agents and each Lender that, unless the Required Lenders shall otherwise consent in writing, from and after the date hereof (unless expressly provided herein) until Payment in Full, the Borrower willshall:
Section 5.04 Financial Statements, Reports, Etc 1 change
  1. (e) within 5 Business Days after the delivery of the financial statements pursuant to Sections 5.04(a) and (b), a Compliance Certificate certifying as to (i) the accuracy of, and a reconciliation with respect to, the Projected Contracted Cash Flows previously provided, (ii) compliance with the terms of the Closing Date MSAs and any Additional Services Agreement, in each case, in effect as of the date thereof and (iii) concurrently with the delivery of the financial statements pursuant to Sections 5.04(a) and (b), the accuracy of such financial statements;
Section 5.05 Litigation and Other Notices 1 change
  1. (c) any breach or default under any Material Project Contract or Data Center Lease/License in existence as of such time that would reasonably be likely to result in the termination, suspension or revocation of such Material Project Contract or Data Center Lease/License to which the Borrower is a party;
Section 5.06 Compliance with Laws 1 change
  1. Section 5.06. Compliance with Laws. Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (owned or leased), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that this Section 5.06 shall not apply to Data Protection Laws, which are the subject of Section 5.19Section 5.18, Environmental Laws, which are the subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.
Article VI 1 change
  1. The Borrower covenants and agrees with each Lender that, unless the Required Lenders shall otherwise consent in writing, from and after the date hereof (unless expressly provided herein) until Payment in Full, the Borrower willshall not:
Section 6.06 Restricted Payments 5 changes
  1. (a) on each Quarterly Payment Date or within thirty (30) days thereafter, with amounts deposited in, or credited to, the Distribution Reserve Account or any General Account (1) so long as the Distribution Conditions are satisfied on such Quarterly Payment Date or, if the date of such Restricted Payment is not a Quarterly Payment Date, on the immediately preceding Quarterly Payment Date and (2) to the extent that the applicable Distribution Conditions are not satisfied as of such Quarterly Payment Date or date of such Restricted Payment, to make Permitted Tax Distributions with the consent of the Lender Representative (which such consent shall not be unreasonably withheld or delayed); and
  2. (b) within seven (7) Business Days after any Borrowing of Delayed Draw Loans, with the proceeds of Delayed Draw Loans funded for the purpose of paying invoices from the Parent to the Borrower delivered to the Administrative Agent pursuant to Section 4.02(ml) for any Acquisition for which the proceeds of such Delayed Draw Loans have been borrowed in each case in an amount not to exceed the aggregate amount of such invoices.;
  3. (c) so long as, when determined as of the date of declaration thereof, (i) no Default or Event of Default exists and is continuing and (ii) the Borrower is in compliance with the requirements under Section 6.12(a), the consummation of the [*] Buyback Transactions;
  4. (d) the repurchase, redemption, retirement or other acquisition of Equity Interests from former or current employees, officers, directors, consultants, Affiliates or other persons performing services for the Borrower or the Parent or any direct or indirect Subsidiary of the Parent pursuant to the terms of stock repurchase plans, restricted stock agreements or similar agreements under which the Borrower or Parent or any direct or indirect Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal; provided that, the aggregate Restricted Payments made under this clause (d) shall not (I) exceed (i) prior to a Qualified IPO, $100,000,000 in any fiscal year and (ii) after the occurrence of a Qualified IPO, the greater of (x) $50,000,000 and (y) 10% of Consolidated EBITDA or (II) be used to repurchase, redeem, retire or otherwise acquire the Equity Interest of the Parent held by any Excluded Management Person; and
  5. (e) any other Restricted Payment so long as, immediately after giving effect to such Restricted Payment, on a pro forma basis (i) the amount of cash and Cash Equivalents deposited in the Collateral Accounts shall be at least 15% greater than the projected payments required to be made pursuant to Section 2.20(b)(i)-(iv) on the immediately succeeding Quarterly Payment Date, (ii) the Distribution Conditions are satisfied, (iii) the Borrower is in compliance with the covenants set forth in Section 6.12(a) and (iv) as of the most recently ended fiscal quarter (commencing with the first full fiscal quarter after the Closing Date), (A) at least [*]% of the [*] GPU Servers and [*] GPU Servers deployed (pursuant to the model delivered to the Lenders prior to the Closing Date) in connection with the Closing Date MSAs during such fiscal quarter have been invoiced to the applicable customers under the Closing Date MSAs and (B) to the extent then due and payable, such invoices shall have been paid as of the end of the fiscal quarter described in the immediately preceding subclause (A).
Section 6.07 Transactions with Affiliates 1 change
  1. (c) any payments consisting of Delayed Draw Loans made for the purposes of paying invoices from the Parent to the Borrower delivered to the Administrative Agent pursuant to Section 4.02(ml).
Section 6.10 Material Project Contracts 2 changes
  1. (g) prior to the Commitment Termination Date, finance any Acquisition of [*] GPU Servers or [*] GPU Servers required to satisfy the obligations under or pursuant to the Restricted Purchase Orders other than with (i) the proceeds of Loans made under this Agreement and (ii) equity contributions from the Parent; provided, however, that this Section 6.10(g) shall not apply if (x) following the Closing Date, the conditions precedent for Loans to be made pursuant to Article IV are not met and (y) each of the Lenders have failed to confirm, in writing, that they are willing to waive the applicable conditions in Article IV (notwithstanding that the conditions precedent are not met) within five (5) Business Days of the Borrower’s written request for such confirmation;
  2. (g) [reserved];
Section 6.11 Use of Proceeds Not in Violation 1 change
  1. (b) The Borrower will not, directly or knowingly indirectly, use the proceeds of the Loans hereunder, or lend, contribute or otherwise make available such proceeds to any Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, the target of Sanctions or is located, organized or resident in a country or territory that is, or whose government is, the subject to Sanctions broadly prohibiting dealings with such government, country or territory, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
Section 7.02 Remedies Upon Event of Default 1 change
  1. Section 7.02. Remedies Upon Event of Default. Upon the occurrence and during the continuation of an Event of Default (other than a Bankruptcy Event of Default), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Lenders, shall (subject to Article VIII), by notice to the Borrower, take any or all of the following actions, at the same or different times: (a) terminate the Commitments and thereupon the Commitments shall terminate immediately, (b) declare the Loans and Obligations then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid fees and premiums (including any Applicable Premium) accrued hereunder and under any other Loan Document, shall become forthwith due and payable and (c) direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC), and in the case of any event with respect to any Bankruptcy Event of Default, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid and premiums (including any Applicable Premium) accrued fees, all other Obligations and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, in each case, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each of the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Section 7.03 Right to Equity Cure 1 change
  1. (a) Notwithstanding anything to the contrary contained in Sections 7.01 or 7.02, in the event that a Cash Shortfall Event exists with respect to any Quarterly Payment Date, then from the first day of the applicable fiscal quarter with respect to the applicablesuch Quarterly Payment Date until the expiration of the fifteenththirtieth (15th30th ) day following such Quarterly Payment Date (the last day of such period being the “Anticipated Cure Deadline”), such Cash Shortfall Event and corresponding Event of Default under 7.01(b) or 7.01(c) may be cured on or prior to the applicable Anticipated Cure Deadline (the “Cure Right”) by the receipt of Equity Proceeds (which shall be in the form of common equity or other equity in a form reasonably acceptable to the Lender Representative) in amount necessary to cure such Cash Shortfall Event, on or prior to the Anticipated Cure Deadline (“Cure Equity”) by applying 100% of the Cure Equity to prepay the Loans pursuant to Section 2.09(b)(i).
Section 8.02 Agents in Their Individual Capacities 1 change
  1. Section 8.02. Agents in Their Individual Capacities. U.S. Bank National Association or its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its respective Affiliates as though U.S. Bank, Trust Company National Association were not an Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, U.S. Bank Trust Company, National Association or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge that the Agents shall not be under any obligation to provide such information to them. With respect to its Loans (if any), U.S. Bank Trust Company, National Association and its Affiliates shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent and the terms “Lender” and “Lenders” include a Person serving as an Agent hereunder in its individual capacity. Any successor to U.S. Bank Trust Company, National Association as an Agent shall also have the rights attributed to U.S. Bank Trust Company, National Association under this Section 8.02.
Section 8.20 Exculpatory Provisions 4 changes
  1. Section 8.20. Exculpatory Provisions . The Lender Representative shall have no duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Lender Representative shall not:
  2. (a) be subject to any fiduciary or other implied duties, regardless of whether any Default or any Event of Default has occurred and is continuing; and
  3. (b) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and the Lender Representative shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as the Lender Representative or any of its Affiliates in any capacity.
  4. The Lender Representative shall not be liable for any action taken or not taken by it (i) to the extent such actions are taken or not taken in accordance with the express terms of this Agreement, (ii) with the consent or at the request of the Required Lenders or (iii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Lender Representative shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV.
Section 9.04 Successors and Assigns 5 changes
  1. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 9.04 (including, in the case of an assignment to an Affiliated Lender, Section 9.04(f)Section 9.04(e)) (and any attempted assignment or transfer by Lender not in accordance with this Section 9.04 shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in Section 9.04(c)Section 9.04(b)(vi)), the Lenders, the Agents and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents and the Lenders, and the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
  2. absent manifest error, provided that no Lender shall have any obligation to disclose all or any portion of such register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the United States Proposed Treasury Regulations (or, in each case, any amended or successor sections). Each Lender that sells such a participation shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Any agreement or instrument (oral or written) pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to exercise rights under and to enforce this Agreement and the other Loan Documents and to approve any waiver, amendment or modification of any provision of this Agreement and the other Loan Documents; provided that (x) such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 9.08(b)(i), Section 9.08(b)(ii), Section 9.08(b)(iii) or Section 9.08(b)(iv) that affects such Participant and (y) no other agreement (oral or written) in respect of the foregoing with respect to such Participant may exist between such Lender and such Participant. Subject to Section 9.04(c)(ii)Section 9.04(b)(vi), the Borrower agrees that each Participant shall be entitled to the benefits (and subject to the requirements and limitations) of Sections 2.13 and 2.15 to the same extent as if it were the Lender from whom it obtained its participation and had acquired its interest by assignment pursuant to Section 9.04(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16(c) as though it were a Lender.
  3. (ii) If any assignment or participation under this Section 9.04 is made to any Affiliate of any Disqualified Lender without the Borrower’s prior written consent or deemed consent (any such person, a “Disqualified Person”), then, such assignment shall not be null and void, but the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower owing to such Disqualified Person, (B) in the case of any outstanding Loans, held by such Disqualified Person, purchase such Loans by paying the amount that such Disqualified Person paid to acquire such Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require that such Disqualified Person assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.04), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees; provided that (I) in the case of clause (B), the applicable Disqualified Person has received payment of an amount equal to the lesser of (1) par and (2) the amount that such Disqualified Person paid for the applicable Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Borrower and (II) in the case of clause (C), the relevant assignment shall otherwise comply with this Section 9.04 (except that no registration and processing fee required under this Section 9.04 shall be required with any assignment pursuant to this paragraph). Nothing in this Section 9.04(e)Section 9.04(d) shall be deemed to prejudice any right or remedy that the Borrower may otherwise have at law or equity.
  4. (f) Notwithstanding anything in Section 9.08 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by the Parent or the Borrower therefrom, or subject to Section 9.04(h)Section 9.04(g), any plan of reorganization pursuant to the Bankruptcy Code or any equivalent under any other Debtor Relief Law (it being understood and agreed that any such vote shall be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code and any similar provision of any other Debtor Relief Law), (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, no Affiliated Lender shall have any right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action and:
  5. (h) Although Debt Fund Affiliates shall be Eligible Assignees and shall not be subject to the provisions of Sections 9.04(e), (f), or (g) or (h), any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Loans and Commitments under this Agreement to a Person who is or will become, after such assignment, a Debt Fund Affiliate only through (x) Dutch auctions or other offers to purchase or take by assignment open to all Lenders on a pro rata basis in accordance with procedures of the type described in Schedule 9.04(f) (for the avoidance of doubt, without requiring any representation as to the possession of material non-public information by such Affiliate) or (y) open market purchase on a non-pro rata basis. Notwithstanding anything in Section 9.08 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by the Borrower or the Parent therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Loans held by Debt Fund Affiliates, in the aggregate, may not account for more than 49.9% of the Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Section 9.08.
Section 9.16 Confidentiality 1 change
  1. (b) The Borrower hereby agrees that each of the Lenders may place, with the consent of the Borrower, customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as they choose, and circulate similar promotional materials, after the final closing of the Transactions in the form of a “tombstone” or otherwise describing the names of the Borrower, and in each case its subsidiaries (or any of them), and the amount, type and closing date of such Transactions, all at the expense of such Lender; provided that each Lender hereby agrees not to include the name of any other party in such advertisements or other materials without the prior consent of such other party

Method

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