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Amendment redline · 29 September 2025

CoreWeave DDTL 2.0: Fifth 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.

Fifth Amendment to Credit Agreement (Ex 10.1) on SEC EDGAR · The deal

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

Provisions changed
442
Sections touched
74
Defined terms added
74
Defined terms deleted
20
Words inserted
14,707
Words deleted
2,648

Figures

Numbers that changed

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

ProvisionDeleted figuresInserted figures
“Amortization Tracker Trigger Event”–3.00%
Section 1.01 Defined Terms–4.25%, 3.25%
“Commitments”–$0
“Compliance Certificate”30 days–
“Eligible Private Non-IG Customer”$250,000,000, 40%–
“Eligible Public Non-IG Customer”$750,000,000.–
“Existing Required Lenders”–50%
“Fifth Amendment Albatross Capital Expenditures”–33%, 2%
Section 1.01 Defined Terms–90%
Section 1.01 Defined Terms–75%
“Fifth Amendment GPU Non-Acceptance Distribution Event”–90 days, 90 days
“Fifth Amendment GPU Non-Acceptance Event”–90 days, 90 days
“Fifth Amendment Liquidity Requirement”–$10,000,000, 1.0%
“Fifth Amendment OpenAI Capital Expenditures”–33%, 2%
“Fifth Amendment Required Lenders”–50%
“Incremental Cap”–$0.
“Incremental Commitment”$1,840,000,000,$0.
“Non-IG Contract Requirements”0.35:1.00, 0.35:1.00, $75,000,000, $350,000,000–
Section 2.01 Commitments–$2,400,000,000
Section 2.08 Scheduled Payment of Loans–1.40:1.00
Section 2.10 Fees–1.50%
Section 2.10 Fees–3.00%
Section 2.24 Excess Cash Amounts Waterfall–$0
Section 2.24 Excess Cash Amounts Waterfall–$0
Section 6.13 Fifth Amendment Financial Covenants–1.40:1.00
Section 6.13 Fifth Amendment Financial Covenants–98%, 85%

Defined terms

Definitions added, deleted and amended

Added 74

  • Excluded GPU Servers
  • Existing Collateral
  • Existing Required Lenders
  • Fifth Amendment
  • Fifth Amendment Acquired GPU Servers
  • Fifth Amendment Additional Services Agreement
  • Fifth Amendment Albatross Capital Expenditures
  • Fifth Amendment Albatross Contract
  • Fifth Amendment Albatross Infrastructure
  • Fifth Amendment Albatross Project
  • Fifth Amendment Amortization Amount
  • Fifth Amendment Assets
  • Fifth Amendment Available Cash
  • Fifth Amendment Available Cash Account
  • Fifth Amendment Collateral
  • Fifth Amendment Commitment Fee
  • Fifth Amendment Commitment Termination Date
  • Fifth Amendment Contract Capital Expenditure
  • Fifth Amendment Contract Coverage Ratio
  • Fifth Amendment Contract Debt Service
  • and 54 more below

Deleted 20

  • Acceptable Currencies
  • Albatross MSA
  • Approved Industry
  • Eligible Private Non-IG Customer
  • Eligible Public Non-IG Customer
  • Eligibility Criteria
  • Excluded Contract
  • First Amendment Effective Date
  • Foreign Obligor
  • Incremental Facility Amendment
  • Incremental Lender
  • Non-IG Contract Requirements
  • Obligations
  • Pounds Sterling
  • Prohibited Counterparty
  • Prohibited Industry
  • Specified Foreign Entities
  • Total Delayed Draw Loan Commitment
  • Unadjusted Benchmark Replacement
  • Undrawn Fee

Amended 91

  • Account Withdrawal Certificate
  • Additional Services Agreement
  • Amortization Amount
  • Amortization Tracker
  • Amortization Tracker Trigger Event
  • Anticipated Cure Deadline
  • Applicable Premium
  • Available Cash
  • Available Cash Account
  • Borrowing
  • Borrowing Request
  • Cash Shortfall Event
  • Change of Tax Law
  • Collateral
  • Collateral Accounts
  • Collateral Agreement
  • Commitments
  • Compliance Certificate
  • Conductor
  • Contract Value
  • and 71 more below

The redline

Every change, provision by provision

Deleted text Inserted text

Opening provisions 4 changes
  1. Conformed CopyExhibit A to Fifth Amendment
  2. as amended by that certain Third Amendment to Credit Agreement, dated as of February 28, 2025, and
  3. as amended by that certain Fourth Amendment to Credit Agreement, dated as of June 6, 2025, and
  4. as amended by that certain FourthFifth Amendment to Credit Agreement, dated as of [●]September 29, 2025.
Section 2.22 1 change
  1. Incremental Facilities. [Reserved] 7490
Section 2.23 2 changes
  1. Section 2.23.
  2. Fifth Amendment Obligations Waterfall 90
Section 2.24 2 changes
  1. Section 2.24.
  2. Excess Cash Amounts Waterfall 92
Article IV 1 change
  1. Conditions PRECEDENTPrecedent
Section 4.02 1 change
  1. All Credit Events 83100
Section 4.03 2 changes
  1. Section 4.03.
  2. Fifth Amendment Credit Events 104
Section 5.27 2 changes
  1. Section 5.27.
  2. Additional Contracts 117
Section 6.13 2 changes
  1. Section 6.13.
  2. Fifth Amendment Financial Covenants 124
Section 9.27 9 changes
  1. Section 9.27.
  2. Further Amendments 168
  3. Projected Contracted Cash Flows Spreadsheet
  4. Schedule 2.08(b)
  5. Amortization Tracker
  6. Schedule 5.23(d)
  7. GPU Obligors
  8. Schedule 5.27
  9. Additional Contracts
Section 1.01 Defined Terms 206 changes
  1. “Acceptable Currencies” “Acceptable Currencies” shall mean, collectively (a) the U.S. Dollar, (b) Pounds Sterling, (c) Yen and (d) Euros.
  2. “Account Withdrawal Certificate” “Account Withdrawal Certificate” shall mean an account withdrawal certificate substantially in the form of Exhibit F, as may be amended after the Fifth Amendment Effective Date with consent of the Lead Lenders and the Borrower.
  3. “Additional Services Agreement” “Additional Services Agreement” shall mean an agreement entered into by and among the Borrower or any of its Subsidiaries and a customer for the provision of Uncontracted Services. (a) an Existing Additional Services Agreements and/or (b) a Fifth Amendment Additional Services Agreement, as the context may require.
  4. “Albatross MSA” “Albatross MSA” shall mean that certain Master Services Agreement, dated as of February 22, 2023, by and between the Parent and Microsoft Corporation, as amended in accordance with this Agreement.
  5. “Albatross MSA” “ Albatross MSA” shall mean that certain Master Services Agreement, dated as of February 22, 2023, by and between the Parent and Microsoft Corporation, as amended in accordance with this Agreement.
  6. “Amortization Amount” “Anticipated Cure DeadlineAmortization Amount” shall have the meaning assigned to such term in Section 7.03(a) Section 2.08(a).
  7. “Amortization Tracker” “ Amortization Tracker” shall mean a spreadsheet substantially in the form of Schedule 2.08(b) as may be amended after the Fifth Amendment Effective Date with consent of the Lead Lenders and the Borrower, which shall be updated from time to time in accordance with Section 5.04( i).
  8. “Amortization Tracker Trigger Event” “ Amortization Tracker Trigger Event” shall mean, (a) the occurrence of the Fifth Amendment Commitment Termination Date or (b) the execution by the Borrower of any amendment to a Master Services Agreement that has the effect of reducing the Contract Value with respect to such Master Services Agreement by an amount that is equal to or greater than 3.00% of the aggregate Contract Value with respect to such Master Services Agreement in effect immediately prior to such amendment.
  9. “Anticipated Cure Deadline” “ Anticipated Cure Deadline” shall have the meaning assigned to such term in Section 7.03(a) .
  10. (I) With respect to Fifth Amendment Delayed Draw Loans, (a) 4.25% for Term SOFR Loans and (b) 3.25% for Base Rate Loans; and
  11. (II) With respect to all Loans other than Fifth Amendment Delayed Draw Loans:
  12. “Applicable Premium” “Applicable Premium” shall mean, for any prepayment of Loans that is made pursuant to Section 2.09(a), 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), Section 2.09(d), Section 2.17(c) or Section 6.05(d) prior to the Term Maturity Date applicable to such Loans being prepaid or any acceleration of such Loans pursuant to Section 7.02 (whether automatic or upon notice) (collectively, the “Payment Events” and each a “Payment Event”), at all times (x) with respect to all Loans other than the Fifth Amendment Delayed Draw Loans, prior to the date that is thirty (30) months after the Commitment Termination Date (which shall be extended by an amount of days equal to the aggregate Qualified Collateral Replenishment Periods to occur prior to the non-extended date that is thirty (30) months after the Commitment Termination Date) and (y) with respect to the Fifth Amendment Delayed Draw Loans, prior to the date that is thirty (30) months after the Fifth Amendment Commitment Termination Date, in each case, a prepayment premium equal to the Make-Whole Amount on the principal amount of such Loans being prepaid on the date of such Payment Event. The Administrative Agent shall have no obligation to calculate or verify the calculation of the Applicable Premium.
  13. “Approved Industry” “Approved Industry” means artificial intelligence and activities that are ancillary thereto.
  14. “Available Cash” “Available Cash” shall mean, for any period, the sum (without duplication) of all amounts (other than Equity Proceeds, Delayed Draw Loans and Other Proceeds) that the Borrower or any of the Obligors actually receives in cash or Cash Equivalents during such period from a “Customer” (or its functional equivalent) pursuant to the terms of the Existing Master Services Agreements and any Existing Additional Services Agreement.
  15. “Available Cash Account” “Available Cash Account” shall mean a trust account established at the Depositary Bank, bearing the account named “Available Cash Account, USBTCNA, as Collateral Agent” and designated as the “Available Cash Account” in writing by the Lender Representative to the Administrative Agent.
  16. (b) any bank surcharge or banking corporation tax surcharge as set out in Chapter 4 of Part 7A of the United Kingdom Corporation Tax Act 2010, the extraordinary tax calculated on increase in interest margin imposed pursuant to Article 26 of the Italian Decree-Law 10 August 2023, No. 104 and any other surcharge or tax of a similar nature implemented in any other jurisdiction, in each case which has been enacted or which has been formally announced or proposed as the date the Recipient becomes a Pparty; or
  17. “Borrowing” “Borrowing” shall mean a group of Loans under any Facility or the Fifth Amendment Delayed Draw Loan Facility and made on a single date to the Borrower.
  18. “Borrowing Request” “Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, as may be amended after the Fifth Amendment Effective Date with consent of the Lead Lenders and the Borrower.
  19. “Cash Shortfall Event” “Cash Shortfall Event” shall mean, with respect to a Quarterly Payment Date, the failure of the Borrower to pay all amounts required to be prepaid as of such Quarterly Payment Date pursuant to Section 2.08(a) Sections 2.08(a) and (b).
  20. “Change of Tax Law” “Change of Tax Law” shall means any change which occurs after the date of this Agreement or, if later, after the date on which the relevant Recipient became a party to this Agreement (as applicable) in any law, regulation or treaty (or in the published interpretation, administration or application of any law, regulation or treaty) or any published practice or published concession of any relevant tax authority other than any change that occurs pursuant to, or in connection with the adoption, ratification, approval or acceptance of, the MLI in or by any jurisdiction.
  21. “Collateral” “Collateral” shall mean all the “Existing Collateral” (or similar term) referred to in any Security Document and all other property of whatever kind and nature, whether now owned or hereinafter acquired, subject or purported to be subject from time to time to a Lien under any Security Document. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Property. and/or the Fifth Amendment Collateral, as the context requires. For avoidance of doubt, no portion of the Fifth Amendment Collateral constituted “Collateral ” (as defined in this Agreement as in effect immediately prior to the Fifth Amendment Effective Date) prior to the Fifth Amendment Effective Date and no Collateral (as defined in this Agreement as in effect immediately prior to the Fifth Amendment Effective Date) securing the Obligations (as defined in this Agreement as in effect immediately prior to the Fifth Amendment Effective Date) prior to the Fifth Amendment Effective Date shall be released in connection with the Fifth Amendment.
  22. “Collateral Accounts” “Collateral Accounts” shall mean (a) the Available Cash Account, (b) the Other Proceeds Account, (c) the Distribution Reserve Account, (d) the Liquidity Account and, (e) each General Account, (f) the Fifth Amendment Available Cash Account, (g) the Fifth Amendment Other Proceeds Account, (h) the Fifth Amendment Distribution Reserve Account and (i) the Fifth Amendment Liquidity Account.
  23. “Collateral Agreement” “Collateral Agreement” shall mean a Collateral Agreement among the Borrower, the Collateral Agent and the other parties from time to time party thereto, in substantially the form attached as Exhibit J, as amended by the First Amendment to the Collateral Agreement (as contemplated by Section 4.03(a)(iii)) or as may be further amended from time to time with the consent of the Required Lenders.
  24. “Commitments” “Commitments” shall mean, collectively, with respect to any Lender such Lender’s (a) Delayed Draw Loan Commitments and, (b) First Amendment Delayed Draw Loan Commitments and (c) Fifth Amendment Delayed Draw Loan Commitments. For avoidance of doubt, as of the Fifth Amendment Effective Date, any Commitments other than the Fifth Amendment Delayed Draw Loan Commitments shall be $0.
  25. “Compliance Certificate” “Compliance Certificate” shall mean a compliance certificate executed by the Chief Financial Officer of the Borrower in substantially the form of Exhibit D, as may be amended in writing by the mutual agreement of the Borrower and the Lead Lenders within thirty (30) days (as may be extended by the Lead Lenders within 30 days in their sole discretion) following the SecondFifth Amendment Effective Date.
  26. “Conductor” “Conductor” shall means Truist Bank as Rollover Equity Escrow Agent pursuant to that certain Stock Purchase Agreement, dated as of January 1, 2023, by and between the Parent, certain shareholders of Conductor Technologies, Inc., Conductor Technologies, Inc. and the other parties party thereto.
  27. “Contract Value” “Contract Value” shall means, as of any date of determination, the sum of all future cash flow payments reasonably expected to be received by the Borrower or any Obligor under the relevant Master Services Agreement (net of any payments already received (including all upfront payments already received) through the latest applicable Term Maturity Date).
  28. intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied) with respect to its funding obligations, under any Facility or Fifth Amendment Delayed Draw Loan Facility, as applicable, or under other agreements generally in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations under any Facility or Fifth Amendment Delayed Draw Loan Facility, as applicable (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, become the subject of a proceeding under a Bail-In Action or any bankruptcy or insolvency laws, or has had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower and each Lender.
  29. “Delayed Draw Availability Period” “Delayed Draw Availability Period” shall mean the period beginning on the Closing Date and ending on the earlier of (x) September 29, 2025 and (y) the Fifth Amendment Effective Date.
  30. “Delayed Draw Loans” “Delayed Draw Loans” shall mean, collectively (a) the Initial Delayed Draw Loans and (b) the First Amendment Delayed Draw Loans. For the avoidance of doubt, the Delayed Draw Loans shall not include the Fifth Amendment Delayed Draw Loans.
  31. “Delivered” “Delivered” shall mean, with respect to any GPU Cluster in connection with an IG Contract or Non-IG Contract, as applicable, such GPU Cluster has (a) satisfied all of the Borrower’s internal testing and other requirements and (b) been deemed, in the Borrower’s good faith determination, ready to be accepted by the applicable customer with respect to such IG Contract or Non-IG Contract, and “Delivery” shall have the meaning correlative thereto.
  32. (a) with respect to any such Restricted Payment made during the Delayed Draw Availability Period or Fifth Amendment Delayed Draw Availability Period, as applicable, in each case, the Specified Representations shall be true and correct in all material respects on and as of the applicable Quarterly Payment Date and date on which such Restricted Payment is made with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) (or, to the extent qualified by materiality, true and correct in all respects);
  33. (d) the Liquidity Requirement or Fifth Amendment Liquidity Requirement, as applicable, shall have been satisfied on such date;
  34. (e) (x) to the extent an IG GPU Non-Acceptance Event exists and is continuing on such date, the amount of any such Restricted Payment that is directly attributable to any IG Customer subject to such IG GPU Non-Acceptance Event shall be equal to or less than the IG GPU Non-Acceptance Distribution Amount applicable to such IG GPU Non-Acceptance Event; and (y) to the extent a Fifth Amendment GPU Non-Acceptance Distribution Event exists and is continuing on such date, the amount of any such Restricted Payment that is directly attributable to any Fifth Amendment Customer subject to such Fifth Amendment GPU Non-Acceptance Distribution Event shall be equal to or less than the Fifth Amendment GPU Non-Acceptance Distribution Amount applicable to such Fifth Amendment GPU Non-Acceptance Distribution Event;
  35. (f) solely to the extent such Restricted Payment will be made with funds in the Distribution Reserve Account or the Fifth Amendment Distribution Reserve Account, the Borrower has confirmed the satisfaction of the above conditions in the Account Withdrawal Certificate pursuant to Section 2.20(d)(i) or Section 2.23(d)( i), as applicable.
  36. “Eligible Contracts” “ Eligible Contracts” shall mean the contracts set forth on Schedule 3.05 under the heading “Master Services Agreements” and designated as “IG Contracts” or “ Non-IG Contracts” as of the Fifth Amendment Effective Date. For the avoidance of doubt, Fifth Amendment Master Services Agreement, Fifth Amendment Additional Services Agreements and Fifth Amendment Contracts shall not be Eligible Contracts.
  37. “Eligible Counterparty” “Eligible Counterparty” shall means any customer that satisfies each of the following requirements:
  38. “Eligible Private Non-IG Customer” “Eligible Private Non-IG Customer” means (a) prior to a Qualified IPO, any Non-IG Customer that (i) is not listed on a national securities exchange or the NASDAQ National Market, (ii) has committed capital and/or assets under management of at least (1) $250,000,000 and (2) the amount that is 40% of the Contract Value of the applicable Non-IG Contract (but solely to the extent of the applicable Non-IG Loan incurred in respect of such Non-IG Contract) of such Non-IG Customer, (iii) is primarily and bona fide active in an Approved Industry and (iv) is not active in a Prohibited Industry; provided that Lender Representative may, in its sole discretion, deem any Non-IG Customer that does not satisfy all of the requirements set forth in the foregoing clauses (i) – (iv) to be an “Eligible Private Non-IG Customer” and (b) after the occurrence of a Qualified IPO, any Non-IG Customer.
  39. “Eligible Public Non-IG Customer” “Eligible Public Non-IG Customer” means any Non-IG Customer that is listed on a national securities exchange or the NASDAQ National Market with a market capitalization of at least $750,000,000.
  40. “Eligibility Criteria” “Eligibility Criteria” means with respect to any customer agreement (a) the term of such agreement shall be (i) no shorter than two years and (ii) no longer than 5 years (to the extent such agreement is a Non-IG Contract) or 6 years (to the extent such agreement is an IG Contract), (b) no later than the first full month after the Infrastructure necessary to provide Services with respect to such agreement is fully operational, the Borrower or the applicable Obligor of the Borrower shall be eligible for payments on a linear monthly basis thereunder, (c) such agreement shall not contain any rights of such customer to “claw-back” cash payments previously paid by the Borrower or such Obligor thereof to such customer with cash directly from the Borrower or such Obligor (excluding any rights within such agreements providing for offsetting or netting rights; provided that, for the avoidance of doubt, such offsetting or netting rights shall be intra-agreement only, and shall not extend to other contracts or obligations unrelated to such underlying Master Services Agreement), (d) such agreement is not the subject of a good faith contest by appropriate legal proceedings, (e) payments made or to be made by the customer with respect to such agreement to the Borrower or such Obligor are denominated exclusively in the Acceptable Currencies, (f) the terms of such agreement (and other agreements related thereto that are necessary to provide Services to the customer) shall permit for the transfer or assignment of such agreement to the Borrower or such Obligor and (g) the agreement with the customer shall be structured such that the customer reserves a minimum amount of capacity of Services by the Borrower or such Obligor during the term of such agreement.
  41. (p) Liens incurred in connection with a Permitted Takeout; provided, that, for avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility; and
  42. “Excess Existing Cash Amount” “ Excess Existing Cash Amount” shall have the meaning assigned to such term in Section 2.24(a).
  43. “Excess Fifth Amendment Cash Amount” “ Excess Fifth Amendment Cash Amount” shall have the meaning assigned to such term in Section 2.24(b).
  44. “Excluded Contract” “Excluded Contract” has the meaning assigned to it under the definition of Non-IG Contract Requirements.
  45. “Excluded GPU Servers” “Excluded GPU Servers” shall mean any GPU Server that (a) is designated as an “Excluded GPU Server” in a written certificate executed by a Responsible Officer of the Borrower certifying that such designation complies clauses (b) and (c) of this definition, (b) is either (i)(A) a Used GPU Server and (B) in accordance with the terms of the applicable Master Services Agreement or Additional Services Agreement, no longer required to be used in connection therewith solely because such Master Services Agreement or Additional Services Agreement, as applicable, has expired at the end of the term thereof (as such term is set forth in the applicable Master Services Agreement or Additional Services Agreement (in each case, as in effect on the Fifth Amendment Effective Date)) or (ii)(A) a new and unused GPU Server and (B) purchased in connection with a Master Services Agreement or Additional Services Agreement, as applicable, with respect to which the applicable GPU Cluster therefor has been (x) delivered to and accepted by the applicable end customer and (y) billing for least six (6) months prior to the date of designation of such GPU Server pursuant to the foregoing clause (a), (c) is, as of the applicable date of designation pursuant to the foregoing clause (a), not required by the terms of the applicable Master Services Agreement or Additional Services Agreement (in each case, as in effect on the Fifth Amendment Effective Date) to be used for the provision of Services thereunder and (d) has been consented to by the Lead Lenders (such consent not to be unreasonably withheld or delayed) to be so designated as an “Excluded GPU Server”.
  46. “Excluded GPU Transaction” “ Excluded GPU Transaction” shall mean one or more transactions with respect to which Excluded GPU Servers are used in connection with the provision of Other Services with respect to any agreement not constituting a Master Services Agreement, in each case, solely to the extent any such transaction, entry into any such agreement and the provision of any such Other Services, in each case, is not prohibited by the terms of the applicable Master Services Agreement or Additional Services Agreement (in each case, as in effect on the Fifth Amendment Effective Date) with respect to which such Excluded GPU Server was originally purchased.
  47. “Existing Additional Services Agreement” “ Existing Additional Services Agreement” shall mean an agreement entered into by and among the Borrower or any of its Subsidiaries and a customer for the provision of Uncontracted Services with respect to the Existing Collateral and set forth on Schedule 5.27.
  48. “Existing Collateral” “Existing Collateral” shall mean, collectively, the “Collateral ” (or similar term) referred to in any Security Document and all other property of whatever kind and nature, whether now owned or hereinafter acquired, subject or purported to be subject from time to time to a Lien under any Security Document, in each case, prior to the Fifth Amendment Effective Date, including without limitation any (x) assets or property other than the Fifth Amendment Collateral and (y) assets or property purchased with the proceeds of the Delayed Draw Loans to the extent provided in the applicable Security Document. For the avoidance of doubt, in no event shall “Existing Collateral” include any Excluded Property.
  49. “Existing Master Services Agreements” “ Existing Master Services Agreements” shall mean, individually or collectively, the (x) IG Contracts and (y) Non-IG Contracts, in each case, related to the Existing Collateral.
  50. “Existing Obligations” “ Existing Obligations” shall mean all amounts owing to any of the Agents, any Lender or any other Secured Party pursuant to the terms of this Agreement or any other Loan Document or Erroneous Payment Subrogation Rights or pursuant to the terms of any Guarantee thereof, including, without limitation, with respect to any Delayed Draw Loan, together with the due and punctual performance of all other obligations of the Borrower and the Obligors under or pursuant to the terms of this Agreement or the other Loan Documents, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, in each case, in connection with any Facility.
  51. “Existing Required Lenders” “Existing Required Lenders” shall mean, at any time, the consent of Lenders having Delayed Draw Loans and Delayed Draw Loan Commitments that, taken together, represent more than 50% of the sum of all Delayed Draw Loans and Delayed Draw Loan Commitments of such Lenders at such time.
  52. “Facility” “Facility” shall mean, collectively (a) the Delayed Draw Loan Facility and, (b) the First Amendment Delayed Draw Loan Facility and (c) solely for the purposes of Section 9.04 and Section 9.08, the Fifth Amendment Delayed Draw Loan Facility.
  53. “Financial Officer” of any Person shall mean the chief financial officer, principal accounting officer, treasurer, assistant treasurer, or controller of such Person.
  54. “First Amendment Effective Date” “First Amendment Effective Date” means August 29, 2024.
  55. “Fifth Amendment” “Fifth Amendment” means that certain Fifth Amendment to Credit Agreement, dated as of the Fifth Amendment Effective Date, by and among the Borrower, Parent, the lenders party thereto, the Depositary Bank and the Agents.
  56. “Fifth Amendment Acquired GPU Servers” “Fifth Amendment Acquired GPU Servers” shall have the meaning assigned to such term in Section 5.24.
  57. “Fifth Amendment Additional Services Agreement” “Fifth Amendment Additional Services Agreement” shall mean an agreement entered into by and among the Borrower or any of its Subsidiaries and a customer for the provision of Uncontracted Services with respect to the Fifth Amendment Collateral, and set forth on Schedule 5.27.
  58. “Fifth Amendment Albatross Capital Expenditures” “Fifth Amendment Albatross Capital Expenditures” shall mean, as of any date of determination, the sum of (x) the aggregate purchase price of all Fifth Amendment Albatross Infrastructure (limited to, solely in respect of each Used GPU Server constituting Fifth Amendment Albatross Infrastructure, the Used GPU Server Purchase Price of each such Used GPU Server) (provided that the aggregate purchase price of Fifth Amendment Albatross Infrastructure constituting ancillary hardware infrastructure included in clauses (x) and (y) of this definition shall not exceed 33% of the purchase price of the GPU Servers (or with respect to any Used GPU Servers, the aggregate Used GPU Server Purchase Price for all such Used GPU Servers) included in all Fifth Amendment Albatross Infrastructure) purchased by, or transferred to, the Borrower or any Obligor as of such date of determination and all installation costs incurred with respect to such Fifth Amendment Albatross Infrastructure (provided that the aggregate amount of such installation costs included in clauses (x) and (y) shall be equal to or less than the amount that is 2% of the aggregate purchase price of such Fifth Amendment Albatross Infrastructure (or with respect to any Used GPU Servers constituting Fifth Amendment Albatross Infrastructure, the aggregate Used GPU Server Purchase Price for all such Used GPU Servers)) and (y) without duplication of clause (x), any Capital Expenditures expected by the Borrower or any Obligor (in the Borrower’s reasonable discretion) to be funded in cash with respect to such Fifth Amendment Albatross Infrastructure.
  59. “Fifth Amendment Albatross Contract” “Fifth Amendment Albatross Contract” shall mean that certain CoreWeave Reserved Compute Instance Order Form 7 dated August 6, 2025 by and between CoreWeave, Inc. and Microsoft Corporation, as amended in accordance with this Agreement.
  60. “Fifth Amendment Albatross Infrastructure” “Fifth Amendment Albatross Infrastructure” shall mean all infrastructure and other related components (including, without limitation, any GPU Servers, networking infrastructure and other hardware) to be used to provide Services with respect to the Fifth Amendment Albatross Project.
  61. “Fifth Amendment Albatross Project” “Fifth Amendment Albatross Project” shall mean the infrastructure-as-a-service, platform-as-a-service, products (including the web portal and subdomains), services (such as support and service level commitments) and solutions to be provided by the Borrower, any Obligor or its Subsidiaries pursuant to the Fifth Amendment Albatross Contract.
  62. “Fifth Amendment Amortization Amount” “Fifth Amendment Amortization Amount” shall have the meaning assigned to such term in Section 2.08(b).
  63. “Fifth Amendment Assets” “Fifth Amendment Assets” shall have the meaning assigned to such term in “Fifth Amendment Collateral”.
  64. “Fifth Amendment Available Cash” “Fifth Amendment Available Cash” shall mean, for any period, the sum (without duplication) of all amounts (other than Equity Proceeds, Loans and Fifth Amendment Other Proceeds) that the Borrower or any of the Obligors actually receives in cash or Cash Equivalents during such period from a “Customer” (or its functional equivalent) pursuant to the terms of any Fifth Amendment Master Services Agreement or any Fifth Amendment Additional Services Agreement, as applicable.
  65. “Fifth Amendment Available Cash Account” “Fifth Amendment Available Cash Account” shall mean a trust account established at the Depositary Bank, bearing the account name, “Fifth Amendment Available Cash Account, USBTCNA, as Collateral Agent” and designated as the “Fifth Amendment Available Cash Account” in writing by the Lender Representative to the Administrative Agent.
  66. “Fifth Amendment Collateral” “Fifth Amendment Collateral” shall mean all the “Fifth Amendment Collateral” (or similar term) referred to in any Security Document and all other property of whatever kind and nature, whether now owned or hereinafter acquired, subject or purported to be subject from time to time to a Lien under any Security Document, in each case on and after the Fifth Amendment Effective Date, including without limitation any (x) assets or property other than the Existing Collateral and (y) assets or property purchased with the proceeds of the Fifth Amendment Delayed Draw Loans (the “Fifth Amendment Assets”) to the extent provided in the applicable Security Document. For the avoidance of doubt, in no event shall “Fifth Amendment Collateral” include any Excluded Property.
  67. “Fifth Amendment Commitment Fee” “Fifth Amendment Commitment Fee” shall have the meaning assigned to such term in Section 2.10(f).
  68. “Fifth Amendment Commitment Termination Date” “Fifth Amendment Commitment Termination Date” shall mean the last day of the Fifth Amendment Delayed Draw Availability Period.
  69. “Fifth Amendment Contract Capital Expenditure” “Fifth Amendment Contract Capital Expenditure” shall mean, collectively the (a) Fifth Amendment OpenAI Capital Expenditure and (b) Fifth Amendment Albatross Capital Expenditure.
  70. “Fifth Amendment Contract Coverage Ratio” “Fifth Amendment Contract Coverage Ratio” shall mean, as of any date of determination, the ratio of (a) the total Projected Contracted Cash Flows with respect to each Fifth Amendment Master Services Agreement related to a Fifth Amendment Contract as of such date of determination to (b) Fifth Amendment
  71. Contract Debt Service, in each case, as of such date of determination. Notwithstanding anything to the contrary, for the purposes of calculating the Fifth Amendment Contract Coverage Ratio after the Fifth Amendment Initial Amortization Payment Date, it is agreed and understood that the payments required to be made under Section 2.08 shall be deemed to have been made with respect to each Quarterly Payment Date on such Quarterly Payment Date (whether or not such payments were actually made on such Quarterly Payment Date), except that, for the avoidance of doubt, such assumption does not relieve the Borrower from making the payments required to be made pursuant to Section 2.08 and failure to make such payments shall result in an Event of Default pursuant to the terms set forth in this Agreement.
  72. “Fifth Amendment Contract Debt Service” “Fifth Amendment Contract Debt Service” shall mean, as of any date of determination, the sum of all scheduled cash interest and scheduled principal payments, in each case, due and payable by the Borrower with respect to all outstanding Fifth Amendment Delayed Draw Loans as of such date of determination until the maturity or acceleration of the Fifth Amendment Delayed Draw Loan Facility. For the avoidance of doubt, Fifth Amendment Contract Debt Service shall not include (i) any principal (other than, for the avoidance of doubt, principal payments expressly required to be paid pursuant to Section 2.08(b)) or interest due and payable with respect to any voluntary or mandatory prepayments pursuant to the Loan Documents and (ii) any scheduled bullet payment required to be paid on the Term Maturity Date.
  73. “Fifth Amendment Contract Infrastructure” “Fifth Amendment Contract Infrastructure” shall mean collectively the (a) Fifth Amendment Albatross Infrastructure and (b) Fifth Amendment OpenAI Infrastructure.
  74. “Fifth Amendment Contracts” “Fifth Amendment Contracts” shall mean, collectively, (a) the Fifth Amendment Albatross Contract, (b) the Fifth Amendment OpenAI Contract and (c) each additional agreement that constitutes a Fifth Amendment Contract as agreed by the Borrower and the Fifth Amendment Required Lenders, in each case, as set forth on Schedule 5.27.
  75. “Fifth Amendment Credit Event” “Fifth Amendment Credit Event” shall mean each Credit Extension with respect to a Fifth Amendment Delayed Draw Loan Commitment by a Lender.
  76. “Fifth Amendment Customer” “Fifth Amendment Customer” shall mean, as of any date of determination, the “Customer” to the Fifth Amendment Contract.
  77. “Fifth Amendment Delayed Draw Availability Period” “Fifth Amendment Delayed Draw Availability Period” shall mean the period beginning on the Fifth Amendment Effective Date and ending on March 31, 2026; provided that, the Fifth Amendment Delayed Draw Availability Period may be extended in accordance with Section 9.27.
  78. “Fifth Amendment Delayed Draw Fee” “Fifth Amendment Delayed Draw Fee” shall have the meaning assigned to such term in Section 2.10(e).
  79. “Fifth Amendment Delayed Draw Funding Date” “Fifth Amendment Delayed Draw Funding Date” shall mean one or more dates on which Fifth Amendment Delayed Draw Loans are made and the conditions precedent set forth in Section 4.03 are satisfied or waived by the Administrative Agent (at the direction of the Fifth Amendment Required Lenders) on such date in accordance with the terms thereof.
  80. “Fifth Amendment Delayed Draw Loan Commitment” “FirstFifth Amendment Delayed Draw Loan Commitment” shall mean, with respect to any Lender, the amount set forth on Schedule 2.01 under the heading “FirstFifth Amendment Delayed Draw Loan Commitment”. The aggregate principal amount of the FirstFifth Amendment Delayed Draw Loan Commitments on the FirstFifth Amendment Effective Date is $13,000,000,000.
  81. “Fifth Amendment Delayed Draw Loan Facility” “FirstFifth Amendment Delayed Draw Loan Facility” shall mean the FirstFifth Amendment Delayed Draw Loan Commitments and the FirstFifth Amendment Delayed Draw Loans.
  82. “Fifth Amendment Delayed Draw Loan Lender” “ Fifth Amendment Delayed Draw Loan Lender” shall mean any Lender set forth on Schedule 2.01 under the heading “Fifth Amendment Delayed Draw Loan Lender”.
  83. “Fifth Amendment Delayed Draw Loans” “FirstFifth Amendment Delayed Draw Loans” shall mean the term loans made by the Lenders to the Borrower from time to time pursuant to Section 2.01(cd).
  84. “Fifth Amendment Distribution Reserve Account” “Fifth Amendment Distribution Reserve Account” shall mean a securities or deposit account of the Borrower or any Subsidiary established with a nationally recognized account bank in consultation with (and acceptable to) the Lender Representative and designated as the “Fifth Amendment Distribution Reserve Account” in writing by the Borrower or any Subsidiary to the Lender Representative and the Administrative Agent.
  85. “Fifth Amendment Effective Date” “FirstFifth Amendment Effective Date” shall means AugustSeptember 29, 20245.
  86. “Fifth Amendment Funding Date GPU Amount” “Fifth Amendment Funding Date GPU Amount” shall mean, as of any date of determination, the amount equal to the sum of:
  87. (a) product of (i) 90% and (ii) the sum of the (A) Fifth Amendment Albatross Capital Expenditures less (B) the GPU Depreciated Amount with respect to such Fifth Amendment Albatross Capital Expenditures, in each case, as of such date of determination;
  88. (b) product of (i) 75% and (ii) the sum of the (A) Fifth Amendment OpenAI Capital Expenditures less (B) the GPU Depreciated Amount with respect to such Fifth Amendment OpenAI Capital Expenditures, in each case, as of such date of determination;
  89. provided that, solely for the purposes of calculating the Fifth Amendment Funding Date GPU Amount in respect of Section 4.03(o), clauses (a)(ii)(B) and (b)(ii)(B) of this definition shall not be applicable.
  90. “Fifth Amendment GPU Non-Acceptance Distribution Amount” “Fifth Amendment GPU Non-Acceptance Distribution Amount” shall mean, on any Quarterly Payment Date or on any other date on which an applicable Restricted Payment pursuant to Section 6.06 is made and solely with respect to a Fifth Amendment GPU Non-Acceptance Distribution Event, the positive difference (if any) of (x) the aggregate amount of funds available as of such date in the Fifth Amendment Distribution Reserve Account directly attributable to the Fifth Amendment Customer subject to such Fifth Amendment GPU Non-Acceptance Distribution Event less (y) the Projected Contracted Cash Flows under the applicable Fifth Amendment Contract directly attributable to the GPU Clusters that are subject to such Fifth Amendment GPU Non-Acceptance Distribution Event.
  91. “Fifth Amendment GPU Non-Acceptance Distribution Event” “Fifth Amendment GPU Non-Acceptance Distribution Event” shall mean, on any Quarterly Payment Date prior to the second full Quarterly Payment Date to occur after the Fifth Amendment Commitment Termination Date (and solely with respect to any Fifth Amendment Customer), the occurrence of each of the following: (i) all GPU Clusters required under an applicable Fifth Amendment Contract with respect to such Fifth Amendment Fifth Amendment Customer have been Delivered and (ii) either (x) such Fifth Amendment Customer has failed to accept all such GPU Clusters with respect to such Fifth Amendment Contract within 90 days after the Delivery of the full amount of all such required GPU Clusters and/or (y) such IG Customer has not paid any invoices delivered to such Fifth Amendment Customer within 90 days after the date when such payment is due and payable under the terms of such invoice.
  92. “Fifth Amendment GPU Non-Acceptance Event” “Fifth Amendment GPU Non-Acceptance Event” shall mean, as of the date of any Fifth Amendment Credit Event and with respect to any Fifth Amendment Customer, the occurrence of each of the following: (a) all GPU Clusters required under any Fifth Amendment Contract with respect to such Fifth Amendment Customer have been Delivered and (b) either, (i) such Fifth Amendment Customer has failed to accept all such GPU Clusters with respect to such Fifth Amendment Contract within 90 days after the Delivery of the full amount of all such required GPU Clusters and/or (ii) such Fifth Amendment Customer has not paid any invoices delivered to such Fifth Amendment Customer within 90 days after the date when such payment is due and payable under the terms of such invoice.
  93. “Fifth Amendment Initial Amortization Payment Date” “Fifth Amendment Initial Amortization Payment Date” shall have the meaning assigned to such term in Section 2.08(b).
  94. “Fifth Amendment Initial Funding Date” “Fifth Amendment Initial Funding Date” shall mean the first dates on which Fifth Amendment Delayed Draw Loans are made and the conditions precedent set forth in Section 4.03 are satisfied or waived by the Administrative Agent (at the direction of the Fifth Amendment Required Lenders) on such date in accordance with the terms thereof.
  95. “Fifth Amendment Liquidity Account” “Fifth Amendment Liquidity Account” shall mean a securities or deposit account of the Borrower established with a nationally recognized account bank in consultation with (and acceptable to) the Lender Representative and designated as the “Fifth Amendment Liquidity Account” in writing by the Borrower to the Lender Representative and the Administrative Agent.
  96. “Fifth Amendment Liquidity Cure Contribution” “Fifth Amendment Liquidity Cure Contribution” shall have the meaning assigned to such term in Section 6.13(a)(ii)(A).
  97. “Fifth Amendment Liquidity Cure Deadline” “Fifth Amendment Liquidity Cure Deadline” shall have the meaning assigned to such term in Section 6.13(a)(ii)(A).
  98. “Fifth Amendment Liquidity Cure Right” “Fifth Amendment Liquidity Cure Right” shall have the meaning assigned to such term in Section 6.13(a)(ii)(A).
  99. “Fifth Amendment Liquidity Requirement” “Fifth Amendment Liquidity Requirement” shall mean, as of any date of determination following the initial funding of Fifth Amendment Delayed Draw Loans the (a) amount of Unrestricted Cash of the Borrower held in the Fifth Amendment Liquidity Account (or, subject to Section 5.20(a) and solely prior to the establishment of the Fifth Amendment Liquidity Account, another Collateral Account) plus (b) undrawn amount of any Fifth Amendment Liquidity Reserve L/C shall be equal to or greater than the greater of (x) $10,000,000 and (y) 1.0% of the principal amount of the then-outstanding Fifth Amendment Delayed Draw Loans.
  100. “Fifth Amendment Liquidity Reserve L/C” “Fifth Amendment Liquidity Reserve L/C” shall mean each irrevocable standby letter of credit in favor of the Collateral Agent for the benefit of the Secured Parties issued by an Acceptable Issuer in form, scope and substance satisfactory to the Fifth Amendment Required Lenders. Any such letter of credit (a) must be drawable prior to its stated maturity (i) in the event the Borrower fails to meet the Fifth Amendment Liquidity Requirement in accordance with this Agreement, (ii) it is not renewed or replaced at least thirty (30) days prior to its stated maturity date, (iii) the issuer thereof ceases to be an Acceptable Issuer and a replacement letter of credit has not been obtained from an Acceptable Issuer within the earlier of (A) thirty (30) days after such downgrade and (B) five (5) Business Days prior to its stated maturity date or (iv) if an Event of Default has occurred and is continuing, (b) must be non-recourse to the Borrower and (c) shall not otherwise constitute Indebtedness of the Borrower or be secured by a Lien on any of the property of the Borrower.
  101. “Fifth Amendment Master Services Agreements” “Fifth Amendment Master Services Agreements” shall mean, individually or collectively, the Fifth Amendment Contracts, in each case, related to the Fifth Amendment Collateral.
  102. “Fifth Amendment Minimum Cash Amount” “Fifth Amendment Minimum Cash Amount” shall have the meaning assigned to such term in Section 2.08(b).
  103. “Fifth Amendment Minimum Funded Amount” “Fifth Amendment Minimum Funded Amount” shall have the meaning assigned to such term in Section 2.01(b).
  104. “Fifth Amendment Obligations” “Fifth Amendment Obligations” shall mean all amounts owing to any of the Agents, any Lender or any other Secured Party pursuant to the terms of this Agreement or any other Loan Document or Erroneous Payment Subrogation Rights or pursuant to the terms of any Guarantee thereof, including, without limitation, with respect to any Fifth Amendment Delayed Draw Loan, together with the due and punctual performance of all other obligations of the Borrower and the Obligors under or pursuant to the terms of this Agreement or the other Loan Documents, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, in each case, other than the Existing Obligations.
  105. “Fifth Amendment OpenAI Capital Expenditures” “Fifth Amendment OpenAI Capital Expenditures” shall mean, as of any date of determination, the sum of (x) the aggregate purchase price of all Fifth Amendment OpenAI Infrastructure (limited to, solely in respect of each Used GPU Server constituting Fifth Amendment OpenAI Infrastructure, the Used GPU Server Purchase Price of each such Used GPU Server) (provided that the aggregate purchase price of Fifth Amendment OpenAI Infrastructure constituting ancillary hardware infrastructure included in clauses (x) and (y) of this definition shall not exceed 33% of the purchase price of the GPU Servers (or with respect to any Used GPU Servers, the aggregate Used GPU Server Purchase Price for all such Used GPU Servers) included in all Fifth Amendment OpenAI Infrastructure purchased by, or transferred to, the Borrower or any Obligor as of such date of determination and all installation costs incurred with respect to such Fifth Amendment OpenAI Infrastructure) (provided that the aggregate amount of such installation costs included in clauses (x) and (y) shall be equal to or less than the amount that is 2% of the aggregate purchase price of such Fifth Amendment OpenAI Infrastructure (or with respect to any Used GPU Servers constituting Fifth Amendment OpenAI Infrastructure, the aggregate Used GPU Server Purchase Price for all such Used GPU Servers)) and (y) without duplication of clause (x), any Capital Expenditures expected by the Borrower or any Obligor (in the Borrower’s reasonable discretion) to be funded in cash with respect to such Fifth Amendment OpenAI Infrastructure.
  106. “Fifth Amendment OpenAI Contract” “Fifth Amendment OpenAI Contract” shall mean that certain CoreWeave Reserved Compute Instance Order Form #2 dated May 8, 2025 by and between CoreWeave, Inc. and OpenAI OpCo, LLC (including as amended by that certain Amendment No. 1 dated as of June 25, 2025).
  107. “Fifth Amendment OpenAI Infrastructure” “Fifth Amendment OpenAI Infrastructure” shall mean all infrastructure and other related components (including, without limitation, any GPU Servers, networking infrastructure and other hardware) to be used to provide Services with respect to the Fifth Amendment OpenAI Project.
  108. “Fifth Amendment OpenAI Project” “Fifth Amendment OpenAI Project” shall mean the infrastructure-as-a-service, platform-as-a-service, products (including the web portal and subdomains), services (such as support and service level commitments) and solutions to be provided by the Borrower, any Obligor or its Subsidiaries pursuant to the Fifth Amendment OpenAI Contract.
  109. “Fifth Amendment Operating Expenses” “Fifth Amendment Operating Expenses” shall mean operating costs and expenses of the Borrower and its Subsidiaries 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 Contract and Data Center Leases/Licenses to which the Borrower or any of its Subsidiaries is a party and (e) legal, accounting, general administrative and other overhead costs and expenses and professional fees), in each case, solely with respect to the Fifth Amendment Collateral.
  110. “Fifth Amendment Other Proceeds” “Fifth Amendment Other Proceeds” shall mean (a) all Net Proceeds from any Disposition by the Borrower or any Subsidiary thereof of any Fifth Amendment Collateral and (b) all Net Proceeds from any Casualty Event with respect to Fifth Amendment Collateral; provided that “Fifth Amendment Other Proceeds” shall not include any Equity Proceeds.
  111. “Fifth Amendment Other Proceeds Account” “Fifth Amendment Other Proceeds Account” shall mean a securities or deposit account of the Borrower established with a nationally recognized account bank in consultation with (and acceptable to) the Lender Representative and designated as the “Fifth Amendment Other Proceeds Account” in writing by the Borrower to the Lender Representative and the Administrative Agent.
  112. “Fifth Amendment Project” “Fifth Amendment Project” shall mean, collectively the (a) Fifth Amendment Albatross Project and (b) Fifth Amendment OpenAI Project.
  113. “Fifth Amendment Required Lenders” “Fifth Amendment Required Lenders” shall mean, at any time, the consent of Fifth Amendment Delayed Draw Loan Lenders having Fifth Amendment Delayed Draw Loans and Fifth Amendment Delayed Draw Loan Commitments that, taken together, represent more than 50% of the sum of all Fifth Amendment Delayed Draw Loans and Fifth Amendment Delayed Draw Loan Commitments of the Fifth Amendment Delayed Draw Loan Lenders at such time.
  114. “Fifth Amendment Transactions” “Fifth Amendment Transactions” shall mean, collectively, the transactions to occur on, prior to or immediately after the initial borrowing of Fifth Amendment Delayed Draw Loans, including (a) the execution and delivery of the Loan Documents and the initial borrowing of Fifth Amendment Delayed Draw Loans and (b) the payment of all fees and expenses owing in connection with the foregoing.
  115. “Financial Officer” of any Person shall mean the chief financial officer, principal accounting officer, treasurer, assistant treasurer, or controller of such Person.
  116. “First Amendment to Collateral Agreement” “First Amendment to Collateral Agreement” shall mean that certain First Amendment to the Collateral Agreement, dated as of the Fifth Amendment Initial Funding Date, by and among the Borrower, the other Obligors party thereto and the Agent.
  117. “First Amendment Delayed Draw Loan Commitment” “First Amendment Delayed Draw Loan Commitment” shall mean, with respect to any Lender, the amount set forth on Schedule 2.01 under the heading “First Amendment Delayed Draw Loan Commitment”. The aggregate principal amount of the First Amendment Delayed Draw Loan Commitments onas of the FirstFifth Amendment Effective Date is $100,000,0000.
  118. “Foreign Obligor” “Foreign Obligor” shall mean each Obligor that is not a Domestic Obligor. Foreign Obligors may be organized, formed or incorporated in the United Kingdom, Sweden, Spain or such other jurisdiction consented to by the Lead Lenders.
  119. “Foreign Obligor” “Foreign Obligor” shall mean each Obligor that is not a Domestic Obligor. Foreign Obligors may be organized, formed or incorporated in the United Kingdom, Sweden, Spain or such other jurisdiction consented to by the Lead Lenders.
  120. “Foreign Security Documents” “Foreign Security Documents” shall mean each security agreement, guarantee agreement, Subsidiary Guarantee Aagreement, control agreement, Control Agreement, pledge agreement, debenture, charge or other similar agreements, in each case, in form and substance satisfactory to the Lead Lenders in their sole discretion, either (a) entered into by one or more Foreign Obligor in order to create, grant or perfect any security interest in the assets of such Foreign Obligor in favor of the Collateral Agent or (b) over the share capital of a Foreign Obligor to secure the Obligations and, in each case, and each of the security agreements and other instruments and documents executed and delivered pursuant to any of the foregoing, the Collateral and Guarantee Requirement, Section 5.10, Section 5.20 or Section 5.23.
  121. “General Accounts” “General Accounts” shall mean any deposit accounts or securities accounts of the Borrower or its Subsidiaries, other than the Available Cash Account, the Distribution Reserve Account and, the Other Proceeds Account, the Fifth Amendment Available Cash Account, the Fifth Amendment Distribution Reserve Account and the Fifth Amendment Other Proceeds Account.
  122. “GPU Level Reporting” “GPU Level Reporting” shall have the meaning assigned to such term in Section 5.22.
  123. “GPU Obligor” “GPU Obligor” shall mean a Person that owns GPU Servers, Fifth Amendment Collateral or any other assets to the extent such Person is identified on Schedule 5.23(d), and with respect to any such Person that is designated as a GPU Obligor pursuant to Section 5.23 of this Agreement after the Fifth Amendment Effective Date, as consented to by the Lead Lenders.
  124. “GPU Servers” “GPU Servers” shall mean any graphics processing units servers and ancillary components, including networking infrastructure, purchased by, or transferred to, the Borrower or the Obligors in connection with the Project and which are new, unused or used (and in the case of used GPU Servers, solely to the extent previously(a) such GPU Servers were used in connection with a Master Services Agreement with respect to which the Borrower or any Obligor has been assigned or transferred rights and obligations thereunder or (b) such GPU Servers consist of Used GPU Servers that provide Services pursuant to the Fifth Amendment OpenAI Contract that have been (x) identified in writing (including by e-mail) by the Borrower to the Agent and the Lead Lenders on or prior to the Fifth Amendment Initial Funding Date and (y) consented to by the Lead Lenders) prior to their purchase or transfer to the Borrower or any of the Obligors only in connection with the Project.
  125. “IG Contract Coverage Ratio” “IG Contract Coverage Ratio” shall mean, as of any date of determination, the ratio of (a) the total Projected Contracted Cash Flows with respect to each Existing Master Services Agreement related to an IG Contract as of such date of determination to (b) IG Debt Service, in each case, as of such date of determination. Notwithstanding anything to the contrary, for the purposes of calculating the IG Contract Coverage Ratio after the Initial Amortization Payment Date, it is agreed and understood that the payments required to be made under Section 2.08 shall be deemed to have been made with respect to each Quarterly Payment Date on such Quarterly Payment Date (whether or not such payments were actually made on such Quarterly Payment Date), except that, for the avoidance of doubt, such assumption does not relieve the Borrower from making the payments required to be made pursuant to Section 2.08 and failure to make such payments shall result in an Event of Default pursuant to the terms set forth in this Agreement.
  126. “IG Contracts” “IG Contracts” shall mean any agreementan Eligible Contract entered into between (a) the Borrower or any Obligor thereof and an IG Customer or (b) Parent (or its Affiliates) and an IG Customer to the extent such agreement is transferred or assigned to the Borrower or its Subsidiaries, in either case, for the provision of Services that satisfies the Eligibility Criteria (and with respect to which, no GPU Cluster (except with respect to GPU Clusters consisting of Excluded GPU Servers) specifically reserved for such IG Contract is being used to provide Services to a contract covered under a Master Services Agreement that is not part of the Collateral); provided that IG Contracts shall be deemed to exclude Fifth Amendment Master Services Agreement, Fifth Amendment Additional Services Agreements and Fifth Amendment Contracts.
  127. “IG Debt Service” “IG Debt Service” shall means, as of any date of determination, the sum of all scheduled cash interest and scheduled principal payments, in each case, due and payable by the Borrower with respect to all outstanding IG Loans and Specified IG Loans as of such date of determination until the maturity or acceleration of the Facility. For the avoidance of doubt, IG Debt Service shall not include (i) any principal (other than, for the avoidance of doubt, principal payments expressly required to be paid pursuant to Section 2.08) or interest due and payable with respect to any voluntary or mandatory prepayments pursuant to the Loan Documents and (ii) any scheduled bullet payment required to be paid on the Term Maturity Date.
  128. “IG GPU Non-Acceptance Event” “IG GPU Non-Acceptance Event” shall mean, on any Quarterly Payment Date prior to the second full Quarterly Payment Date to occur after the Fifth Amendment Commitment Termination Date (and solely with respect to any IG Customer), the occurrence of each of the following: (i) all GPU Clusters required under an applicable IG Contract with respect to such IG Customer have been Delivered and (ii) either (x) such IG Customer has failed to accept all such GPU Clusters with respect to such IG Contract within 90 days after the Delivery of the full amount of all such required GPU Clusters and/or (y) such IG Customer has not paid any invoices delivered to such IG Customer within 90 days after the date when such payment is due and payable under the terms of such invoice.
  129. “Incremental Cap” “Incremental Cap” shall mean, as of the Fifth Amendment Effective Date, $0.
  130. “Incremental Commitment” “Incremental CapCommitment” shall mean $1,840,000,000, less the aggregate principal amount of allCommitments for the Incremental Facilities. The Incremental Commitments as of the Fifth Amendment Effective Date are $0.
  131. “Incremental Facility” “Incremental Facility” shall have the meaning assigned to such term in Section 2.22(a)this Agreement as in effect immediately prior to the Fifth Amendment Effective Date.
  132. “Incremental Facility Amendment” “Incremental Facility Amendment” shall mean an agreement in form and substance reasonably satisfactory to the Administrative Agent, the Borrower and the relevant lenders providing the applicable Incremental Facility containing the terms of any Incremental Facility incurred pursuant to Section 2.22.
  133. “Incremental Lender” “Incremental Lender” shall have the meaning assigned to such term in Section 2.22(a).
  134. “Initial Amortization Payment Date” “Initial Amortization Payment Date” shall have the meaning assigned to such term in Section 2.08(a).
  135. “Initial Delayed Draw Loan Commitment” “Initial Delayed Draw Loan Commitment” shall mean, with respect to any Lender, the amount set forth on Schedule 2.01 under the heading “Delayed Draw Loan Commitment”. The aggregate principal amount of the Delayed Draw Loan Commitments onas of the Fifth Amendment Effective dDate hereof is $5,660,000,0000.
  136. “Lender” “Lender” shall mean each Person listed on Schedule 2.01 that has a Commitment or holds outstanding Loans and any other Person that becomes a party hereto pursuant to an Assignment and Acceptance (or an Affiliated Lender Assignment and Acceptance), other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance; provided that, for the purposes of Sections 2.20(a)-(d), in each case, “Lender” or “Lenders” shall be deemed to exclude the Fifth Amendment Delayed Draw Loan Lenders.
  137. “Lender Representative” “Lender Representative” shall mean Blackstone or an Affiliate of Blackstone designated by Blackstone in writing to the Administrative Agent, the Collateral 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 and the Collateral Agent; provided that (a) in the event that Blackstone or any of its Affiliates acquires, directly or indirectly, more than 10.0% of 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)). Each person acting as the “Lender Representative” shall use commercially reasonable efforts to inform the other Lenders hereunder of any information received or consent provided by such person in its capacity as “Lender Representative”.
  138. “Liquidity Reserve L/C” “Liquidity Reserve L/C” shall mean each irrevocable standby letter of credit in favor of the Collateral Agent for the benefit of the Secured Parties issued by an Acceptable Issuer in form, scope and substance satisfactory to the Existing Required Lenders. Any such letter of credit (a) must be drawable prior to its stated maturity (i) in the event the Borrower fails to meet the Liquidity Requirement in accordance with this Agreement, (ii) it is not renewed or replaced at least thirty (30) days prior to its stated maturity date, (iii) the issuer thereof ceases to be an Acceptable Issuer and a replacement letter of credit has not been obtained from an Acceptable Issuer within the earlier of (A) thirty (30) days after such downgrade and (B) five (5) Business Days prior to its stated maturity date or (iv) if an Event of Default has occurred and is continuing, (b) must be non-recourse to the Borrower and (c) shall not otherwise constitute Indebtedness of the Borrower or be secured by a Lien on any of the property of the Borrower.
  139. “Loan Documents” “Loan Documents” shall mean (a) this Agreement, (b) the Security Documents, (c) any promissory note issued under Section 2.07(d), (d) the Agent Fee Letter and (e) each other document entered into in connection with theany Facility or the Fifth Amendment Delayed Draw Loan Facilitiesy or otherwise designated as a Loan Document by the Borrower and the Lender Representative and delivered to the Administrative Agent.
  140. “Loans” “Loans” shall mean (a) the Delayed Draw Loans. and (b) the Fifth Amendment Delayed Draw Loans; provided that, for the purposes of (i) the definition of “Liquidity Requirement”, (ii) Section 2.08(a) and (iii) Section 2.20(c)(i), in each case, “Loans” shall be deemed to exclude the Fifth Amendment Delayed Draw Loans.
  141. “Make-Whole Amount” “Make-Whole Amount” shall mean a cash amount equal to the present value of interest then accruing pursuant to Section 2.11 on the principal amount of the Loans to be prepaid from the date of such prepayment, repayments or acceleration through the date that, with respect to the (x) Loans other than Fifth Amendment Delayed Draw Loans, is thirty (30) months after the Commitment Termination Date and (y) Fifth Amendment Delayed Draw Loans, is thirty (30) months after the Fifth Amendment Commitment Termination Date, in each case, such present value to be computed using a discount rate equal to the Treasury Rate plus 50 basis points discounted to the prepayment, repayment or acceleration date applied on the same periodic basis as that on which interest on the Loans is payable (assuming a 360-day year consisting of twelve 30-day months). For the avoidance of doubt, (a) with respect to the Delayed Draw Loans, after the date that is thirty (30) months after the Commitment Termination Date, the Make-Whole Amount shall be zero (0) and (b) with respect to the Fifth Amendment Delayed Draw Loans, after the date that is thirty (30) months after the Fifth Amendment Commitment Termination Date, the Make-Whole Amount shall be zero (0).
  142. “Master Services Agreements” “Master Services Agreements” shall mean, individually or collectively, the (x) IG Contracts and (y) Non-IG Contracts.(a) the Existing Master Services Agreements and/or (b) the Fifth Amendment Master Services Agreements, as the context may require; provided that, for the purposes of Section 6.12(f), “Master Services Agreements” shall be deemed to exclude the Fifth Amendment Master Services Agreements.
  143. “Maximum Non-IG Collateral Ratio” “Maximum Non-IG Collateral Ratio” shall mean, as of any date of determination, the ratio of (i) the sum of (A) the sum of (x) the aggregate purchase price of all Non-IG Infrastructure (provided that the aggregate purchase price of such Non-IG Infrastructure constituting ancillary hardware infrastructure included in clauses (i)(A)(x) and (ii)(A)(y) of this definition shall not exceed 33% of the purchase price of the GPU Servers included in all Non-IG Infrastructure) purchased by, or transferred to, the Borrower as of such date of determination and all installation costs incurred with respect to such Non-IG Infrastructure (provided that the aggregate amount of such installation costs included in clauses (i)(A)(x) and (ii)(A)(y) shall be equal to or less than the amount that is 2% of the aggregate purchase price of the GPU Servers for all Non-IG Projects) minus (B) the GPU Depreciated Amount with respect to such Non-IG Infrastructure, in each case, as of such date of determination to (ii)(A) the sum of (x) all Infrastructure purchased by, or transferred to, the Borrower and (y) and all installation costs incurred with respect to such Infrastructure (not to exceed the amount permitted to be added pursuant to the definition of IG Capital Expenditure and Non-IG Capital Expenditure (as applicable)) minus (B) the GPU Depreciated Amount with respect to such Infrastructure, in each case, as of such date of determination.
  144. “Maximum Non-IG Revenue Ratio” “Maximum Non-IG Revenue Ratio” shall means, as of any date of determination, the ratio of (i) the Projected Contracted Cash Flows with respect to the Non-IG Contracts and (ii) the Projected Contracted Cash Flows with respect to all Existing Master Services Agreements.
  145. “Minimum Cash Amount” “ Minimum Cash Amount” shall have the meaning assigned to such term in Section 2.08(a).
  146. “Non-IG Contract Requirements” “Non-IG Contract Requirements” shall mean, with respect to any agreement entered into by and between the Borrower or any Subsidiary of the Borrower and an Eligible Public Non-IG Customer or Eligible Private Non-IG Customer for the provision of Services, (a) after giving effect to such agreement, (1) the Maximum Non-IG Collateral Ratio shall not be greater than 0.35:1.00 and (2) the Maximum Non-IG Revenue Ratio shall not be greater than 0.35:1.00 and (b) the agreement satisfies all Eligibility Criteria; provided that, the Eligibility Criteria shall not be required to be satisfied with respect to any agreement (an “Excluded Contract”) in connection with the funding of a Loan in an amount of less than $75,000,000 (provided, that the aggregate amounts of Loans outstanding in respect of Non-IG Contracts constituting Excluded Contracts exception shall not exceed at any time an amount equal to $350,000,000); provided, further, that the Lender Representative (or, to the extent that Blackstone, together with the Lead Lenders and their Affiliates, hold less than 25% of the aggregate Commitments and outstanding Loans, the Required Lenders) may, in its sole discretion, deem any Non-IG Customer that does not otherwise satisfy all of the Eligibility Criteria to be in compliance with such requirements and thus deemed a Non-IG Customer for purposes hereof.
  147. “Non-IG Contract Coverage Ratio” “Non-IG Contract Coverage Ratio” shall mean, as of any date of determination, the ratio of (a) the total Projected Contracted Cash Flows with respect to each Existing Master Services Agreement related to a Non-IG Contract as of such date of determination to (b) Non-IG Debt Service as of such date of determination. Notwithstanding anything to the contrary, for the purposes of calculating the Non-IG Contract Coverage Ratio after the Initial Amortization Payment Date, it is agreed and understood that the payments required to be made under Section 2.08 shall be deemed to have been made with respect to each Quarterly Payment Date on such Quarterly Payment Date (whether or not such payments were actually made on such Quarterly Payment Date), except that, for the avoidance of doubt, such assumption does not relieve the Borrower from making the payments required to be made pursuant to Section 2.08 and failure to make such payments shall result in an Event of Default pursuant to the terms set forth in this Agreement.
  148. “Non-IG Contracts” “Non-IG Contracts” shall mean, as of any date of determination, any agreementan Eligible Contract (a) that is (i) entered into by and among the Borrower or any Subsidiary of the Borrower and a customer (excluding an IG Customer) or (ii) transferred or assigned to the Borrower or any of its Subsidiaries, in either case, for the provision of Services and (b) satisfies the Non-IG Contract Requirements (and with respect to which, no GPU Cluster specifically(except with respect to GPU Clusters consisting of Excluded GPU Servers) specifically reserved for such Non-IG Contract is being used to provide Services to a contract covered under a Master Services Agreement that is not part of the Collateral); provided that Non-IG Contracts shall be deemed to exclude Fifth Amendment Master Services Agreement, Fifth Amendment Additional Services Agreements and Fifth Amendment Contracts.
  149. “Non-IG Debt Service” “Non-IG Debt Service” shall means, as of any date of determination, the sum of all scheduled cash interest and scheduled principal payments, in each case, due and payable by the Borrower with respect to all outstanding Non-IG Loans as of such date of determination until the maturity or acceleration of the Facility. For the avoidance of doubt, Non-IG Debt Service shall not include (i) any principal (other than, for the avoidance of doubt, principal payments expressly required to be paid pursuant to Section 2.08) or interest due and payable with respect to any voluntary or mandatory prepayments pursuant to the Loan Documents and (ii) any scheduled bullet payment required to be paid on the Term Maturity Date.
  150. “Obligations” “Obligations” shall mean all amounts owing to any of the Agents, any Lender or any other Secured Party pursuant to the terms of this Agreement or any other Loan Document or Erroneous Payment Subrogation Rights or pursuant to the terms of any Guarantee thereof, including, without limitation, with respect to any Loan, together with the due and punctual performance of all other obligations of the Borrower and the Obligors under or pursuant to the terms of this Agreement or the other Loan Documents, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
  151. “Obligations” “Obligations ” shall mean, collectively, (a) the Existing Obligations and (b) the Fifth Amendment Obligations; provided that, for the purposes of Section 2.20, “Obligations” shall be deemed to exclude the Fifth Amendment Obligations.
  152. “Obligors” “Obligors” shall means, collectively, on and after the Second Amendment Effective Date, any Subsidiary of the Borrower that becomes an Obligor in accordance with Section 5.23 hereof. For the avoidance of doubt, all Subsidiaries of the Borrower shall become Obligors under this Agreement pursuant to Section 5.23. It is agreed and understood that, notwithstanding the requirements of Section 5.23, the Specified Foreign EntitiesInterim Obligors shall be deemed to be Obligors for all purposes hereunder on and prior to the Specified Interim Obligors End Date.
  153. “Operating Expenses” “Operating Expenses” shall mean operating costs and expenses of the Borrower and its Subsidiaries 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 Contract and Data Center Leases/Licenses to which the Borrower or any of its Subsidiaries is a party and (e) legal, accounting, general administrative and other overhead costs and expenses and professional fees), in each case, solely with respect to the Existing Collateral.
  154. “Other Proceeds” “Other Proceeds” shall mean (a) all Net Proceeds from any Disposition by the Borrower or any Subsidiary thereof of any Existing Collateral and (b) all Net Proceeds from any Casualty Event with respect to Existing Collateral; provided that “Other Proceeds” shall not include any Equity Proceeds.
  155. “Other Services” “Other Services” shall mean, as of any date, the infrastructure-as-a-service, platform-as-a-service, products (including the web portal and subdomains), services (such as support and service level commitments) and solutions provided to a customer and such customer’s end users.
  156. “Parent Guarantee and Pledge Agreement” “Parent Guarantee and Pledge Agreement” shall mean that certain Parent Guarantee and Pledge Agreement, dated as of the date hereof, by and among Parent and the Collateral Agent, as may be amended from time to time with the consent of the Required Lenders.
  157. “Permitted Ratio Requirements” “Permitted Ratio Requirements” shall mean, collectively, (a) each of the IG Contract Coverage Ratio (with respect to IG Contracts not constituting Specified IG Loans), the IG Contract Coverage Ratio (with respect to IG Contracts constituting Specified IG Loans) and the Non-IG Contract Coverage Ratio shall be equal to or greater than 1.40:1.00, respectively, and (b) the aggregate amount of outstanding (i) IG Loans shall be less than or equal to the aggregate IG Funding Date GPU Amount with respect to such IG Loans and (ii) Non-IG Loans be less than or equal to the Non-IG Funding Date GPU Amount with respect to such Loans.
  158. “Permitted Takeout” “Permitted Takeout” shall mean, on an arms-length basis, any securitization (rated by at least one nationally recognized statistical rating organization) of all or a portion of the Receivables Assets so long as (a) after giving effect to such Permitted Takeout, no Default or Event of Default would exist, (b) such Permitted Takeout would not be reasonably expected to have a Material Adverse Effect, (c) the Borrower has solicited an offer from Blackstone Alternative Credit Advisors LP to provide such Permitted Takeout, after which Blackstone Alternative Credit Advisors LP may commit to (partially) finance such Permitted Takeout within 10 Business Days of solicitation thereof, (d) within 60 days after the consummation of any Permitted Takeout, the Borrower shall have acquired (or have been transferred) (1) one or more Qualified Master Services Agreements (if applicable) and (2) additional Collateral (including Collateral consisting of Qualified Master Services Agreements) such that, after giving pro forma effect to the addition of such Collateral, the Borrower shall be in compliance with the Permitted Ratio Requirements (the period required to acquire (or be transferred) such Collateral with respect to each Permitted Takeout, the “Qualified Collateral Replenishment Period”) and (e) the Net Proceeds of such Permitted Takeout are received by the Borrower. For avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility.
  159. “Permitted Tax Distribution” “Permitted Tax Distribution” shall mean, for any taxable year (or portion thereof) with respect to which the Borrower is a disregarded entity for U.S. federal, state and/or local income tax purposes wholly owned by a corporation, distributions to such corporation to pay federal, foreign, state and local income or franchise Taxes of such corporation (or, for so long as such corporation is a member of a consolidated group for U.S. federal income tax purposes, such corporation’s direct or indirect parent corporation which is the parent of such consolidated group) solely to the extent attributable to the taxable income of the Borrower and any of its Subsidiaries that are pass-through entities for U.S. federal income Tax purposes; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower would have been required to pay as a stand-alone taxpayer in respect of income directly attributable to the Borrower and any of its Subsidiaries that are pass-through entities for U.S. federal income Tax purposes. For the avoidance of doubt, the calculation of such Permitted Tax Distributions shall be modified to take into account any adjustments to income, gain, loss, deduction and credit made pursuant to a Tax audit or other proceeding.
  160. “Pounds Sterling” “Pounds Sterling” shall mean the lawful currency of the United Kingdom.
  161. “Pro Rata Share” “Pro Rata Share” shall mean, with respect to each Lender, at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and, if applicable and without duplication, Loans of such Lender under the applicable Facility or Facilities or under the Fifth Amendment Delayed Draw Loan Facility, as applicable, in each case, at such time and the denominator of which is the amount of the aggregate Commitments and, if applicable and without duplication, Loans under the applicable Facility or Facilities or under the Fifth Amendment Delayed Draw Loan Facility, as applicable, at such time; provided that, in the case of the Delayed Draw Loan Commitments, if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.; provided further that, in the case of the Fifth Amendment Delayed Draw Loan Commitments, if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
  162. “Prohibited Counterparty” “Prohibited Counterparty” means a counterparty (excluding the Parent and its affiliates) to an agreement with a Non-IG Customer to the extent such counterparty holds itself out to conduct (or engage in contractual business dealings with), in a material manner, one or more of the following business or Persons: (i) political action committees, (ii) senior foreign political figures and close associates, such as politically exposed Persons, (iii) any entity subject to any export control list and (iv) any industry specifically prohibited by the sanctions committee (or similar committee) (and their related policies) of any Lender.
  163. “Prohibited Industry” “Prohibited Industry” means, with respect to any Non-IG Customer, the act of such Non-IG Customer knowingly entering into an agreement with a Prohibited Counterparty.
  164. “Project” “Project” shall mean, collectively (a) any IG Project and, (b) any Non-IG Project and (c) any Fifth Amendment Project.
  165. “Projected Contracted Cash Flow Spreadsheet” “Projected Contracted Cash Flow Spreadsheet” shall mean the spreadsheet of contracted cash flows to the Borrower and its Subsidiaries as set forth on Schedule 2.04, which shall be updated from time to time pursuant to Section 4.03(n)(ii) (including in connection with any Fifth Amendment Borrowing).
  166. “Projected Contracted Cash Flow Spreadsheet” “Projected Contracted Cash Flow Spreadsheet” shall mean the spreadsheet of contracted cash flows to the Borrower or any of its Subsidiaries as set forth on Schedule 2.04, as such Schedule 2.04 is updated from time to time as necessary hereunder.
  167. “Projections” “Projections” shall mean any projections and any forward-looking statements (including statements with respect to booked business) of the Borrower and its Subsidiaries furnished to the Lenders or the Administrative Agent by or on behalf of the Borrower prior to the Closing Date or with respect to the Fifth Amendment, the Fifth Amendment Effective Date.
  168. “Qualified Master Services Agreement” “Qualified Master Services Agreement” shall mean, with respect to a transaction otherwise constituting a Permitted Takeout (and solely to the extent such Permitted Takeout is in respect of a securitization of Receivables Assets constituting of one or more Existing Master Services Agreement), a Master Services Agreement with a term that ends no earlier than with respect to the Delayed Draw Loans, the date that is thirty (30) months after the Delayed Draw Funding Date. For avoidance of doubt, notwithstanding anything to the contrary herein, no Fifth Amendment Master Services Agreement shall be a Qualified Master Services Agreement.
  169. “Quarterly Date” “Quarterly Date” shall mean the last Business Day of each fiscal quarter of the Borrower. commencing (a) with respect to the Delayed Draw Loans, with the first full fiscal quarter of the Borrower ending after the Closing Date and (b) with respect to the Fifth Amendment Delayed Draw Loans, with the first full fiscal quarter of the Borrower ending after the Fifth Amendment Effective Date.
  170. “Quarterly Payment Date” “Quarterly Payment Date” shall mean the thirtieth (30th) day of the calendar month (or, with respect to any calendar month ending prior to a thirtieth (30th) day, the last day of such month) immediately following a Quarterly Date, commencing with the first full fiscal quarter of the Borrower ending after the Closing Date.
  171. “Rack Level Reporting” “Rack Level Reporting” shall have the meaning assigned to such term in Section 5.22.
  172. “Receivables Assets” “Receivables Assets” shall means, solely to the extent the following assets or rights constitute Existing Collateral (a)(i) the accounts receivable, royalties, loan receivables, equipment, franchise fees, license fees or patents or other revenue streams; (ii) rights to payment (including pursuant to the terms of joint ventures) subject to a Receivables Facility; and (iii) other assets customarily transferred together with any of the foregoing in a Receivables Facility and the proceeds thereof, including, for the avoidance of doubt, the underlying assets and related contracts and contract rights, guarantees or other obligations in respect of any such receivables, royalties, loan receivables, equipment, franchise fees, license fees or patents, revenue or rights to payment, records and bank accounts related thereto and (b) any security retained by the Borrower in connection with a Receivables Facility.
  173. “Recipient” “Recipient” shall means the Administrative Agent or any Lender.
  174. “Register” “Register” shall have the meaning assigned to such term in Section 9.04(b)(iv) and shall be available for inspection by Blackstone.
  175. “Second Amendment Effective Date” “Second Amendment Effective Date” shall means December 31, 2024.
  176. “Security Documents” “Security Documents” shall means the Domestic Security Documents and the Foreign Security Documents.
  177. “Specified Foreign Entities” “Specified Foreign Entities” shall mean, collectively, (i) until and including June 13, 2025, CoreWeave (Spain) S.L., (ii) until and including March 31, 2025, CoreWeave UK Limited and (iii) until and including April 30, 2025, CoreWeave Sweden AB and, solely with respect to certain other GPU Servers held in Sweden, if any, Parent. For the avoidance of doubt, there shall be no Specified Foreign Entities after June 13, 2025.
  178. “Specified Interim Obligors” “Specified Interim Obligors” shall mean, shall mean, collectively, until and including the Specified Interim Obligors End Date, (i) CoreWeave D.C. Company Spain, S. L., (ii) CoreWeave UK Limited, (iii) CoreWeave Sweden AB and (iv) solely with respect to certain other GPU Servers held in the United Kingdom, Spain, and Sweden, or as otherwise set forth in a certificate satisfactory to Lead Lenders in their sole discretion, Parent. For the avoidance of doubt, there shall be no Specified Interim Obligors after the Specified Interim Obligors End Date.
  179. “Specified Interim Obligors End Date” “Specified Interim Obligors End Date” shall mean December 31, 2025 (or such later date as consented to by the Lead Lenders in writing (or with respect to any such consent requested with respect to such later date that is on or prior to March 31, 2026, such consent not to be unreasonably withheld, delayed or conditioned)).
  180. “Subsidiary Guarantee” “Subsidiary Guarantee” shall means, each guarantee made by the Subsidiaries of the Borrower in favor of the Administrative Agent on behalf of the Secured Parties in form and substance satisfactory to the Lead Lenders.
  181. “Tax Deduction” “Tax Deduction” shall means a deduction or withholding for or on account of Taxes from any payment under a Loan Document, other than a deduction or withholding required by FATCA.
  182. “Term Maturity Date” “Term Maturity Date” shall mean, with respect to (x) any Loan (other than the Fifth Amendment Delayed Draw Loans), the date that is five (5) years after the Delayed Draw Funding Date with respect to such Loan (or if such date is not a Business Day, the next succeeding Business Day) and (y) the Fifth Amendment Delayed Draw Loans, the date that is five (5) years after the Fifth Amendment Delayed Draw Funding Date with respect to such Loan (or if such date is not a Business Day, the next succeeding Business Day).
  183. “Test Period” “Test Period” shall means for any date of determination under this Agreement, the latest four consecutive fiscal quarters for which financial statements have been delivered to the Administrative Agent on or prior to the Closing Date and/or for which financial statements are required to be delivered pursuant to Section 5.04, as applicable (or, before the first delivery of financials pursuant to Section 5.04, the most recent period of four fiscal quarters at the end of which financial statements are available).
  184. “Total Delayed Draw Loan Commitment” “Total Delayed Draw Loan Commitment” shall mean the sum of the Delayed Draw Loan Commitments of all of the Lenders.
  185. “Treasury Rate” “Treasury Rate” shall mean the yield to maturity at a time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two (2) Business Days prior to the prepayment date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the applicable prepayment date to (x) with respect to the Loans other than the Fifth Amendment Delayed Draw Loans, the date that is thirty (30) months after the Commitment Termination Date, provided, however, that if the period from the applicable prepayment date to the date that is thirty (30) months after the Commitment Termination Date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of 1 year shall be used. and (y) with respect to the Fifth Amendment Delayed Draw Loans, the date that is thirty (30) months after the Fifth Amendment Delayed Draw Loans, the Fifth Amendment Commitment Termination Date provided, however, that if the period from the applicable prepayment date to the date that is thirty (30) months after the Fifth Amendment Commitment Termination Date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of 1 year shall be used.
  186. “Unadjusted Benchmark Replacement” “Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that, if the Unadjusted Benchmark Replacement as so determined would be less than zero, the Unadjusted Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
  187. “Uncontracted Infrastructure” “Uncontracted Infrastructure” shall mean, as of any date of determination, collectively, all infrastructure and other related components (including any GPU Servers, networking infrastructure and other hardware) that are (a) purchased by, or transferred to, the Borrower or any of its Subsidiaries and (b) not subject to, or not necessary for the Borrower or any of its Subsidiaries to comply with, any contracted obligations with respect to the Project (or with respect to any provision of services similar to those provided with respect to the Project) as of such date of determination; provided that any such infrastructure and related components that are subject to, or necessary for the Borrower or any of its Subsidiaries to comply with, its contractual obligations under any Material Project Contract that has been terminated or cancelled (other than as a result of the expiration of the stated term of such Material Project Contract and not as a result of a breach or default thereunder) shall be deemed not to be an Uncontracted Infrastructure.
  188. “Uncontracted Services” “Uncontracted Services” shall mean, as of any date of determination, the infrastructure-as-a-service, platform-as-a-service, products (including the web portal and subdomains), services (such as support and service level commitments) and solutions to be provided by the Borrower or any of its Subsidiaries to a customer and such customer’s end users, in each case (i) solely utilizing Uncontracted Infrastructure with respect to such services and (ii) to the extent such services and products are not subject to, or not necessary for the Borrower or any of its Subsidiaries to comply with, any contracted obligations with respect to the Project (or with respect to any provision of services similar to those provided with respect to the Project) as of such date of determination; provided that any such services that are subject to, or necessary for the Borrower or any of its Subsidiaries to comply with, its contractual obligations under any Material Project Contract that has been terminated or cancelled (other than as a result of the expiration of the stated term of such Material Project Contract and not as a result of a breach or default thereunder) shall be deemed not to be an Uncontracted Service.
  189. “Undrawn Fee” “Undrawn Fee” shall have the meaning assigned to it in Section 2.10(d).
  190. “UK Bail-In Legislation” “UK .K. Bail-In Legislation” shall means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
  191. “UK Obligor” “UK Obligor” shall means an Obligor organized under the laws of England and Wales.
  192. “UK Qualifying Recipient” “UK Qualifying Recipient” shall means, in relation to a payment by or in respect of a UK Obligor under a Loan Document, a Recipient which is beneficially entitled (in the case of a UK Treaty Recipient, within the meaning of the relevant UK Treaty) to such payment and is:
  193. “UK Tax Confirmation” “UK Tax Confirmation” shall means a confirmation by a Recipient that it is beneficially entitled to interest payable to that Recipient in respect of a Loan Document and is either:
  194. “UK Treaty Recipient” “UK Treaty Recipient” shall means, in relation to a payment by or in respect of a UK Obligor under a Loan Document, a Recipient which is beneficially entitled to such payment and:
  195. “UK Treaty State” “UK Treaty State” shall means a jurisdiction having a double taxation agreement (a “UK Treaty”) in force with the United Kingdom which makes provision for full exemption from Tax imposed by the United Kingdom on interest.
  196. “Unadjusted Benchmark Replacement” “Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that, if the Unadjusted Benchmark Replacement as so determined would be less than zero, the Unadjusted Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
  197. “Uncontracted Infrastructure” “Uncontracted Infrastructure” shall mean, as of any date of determination, collectively, all infrastructure and other related components (including any GPU Servers, networking infrastructure and other hardware) that are (a) purchased by, or transferred to, the Borrower or any of its Subsidiaries and (b) not subject to, or not necessary for the Borrower or any of its Subsidiaries to comply with, any contracted obligations with respect to the Project (or with respect to any provision of services similar to those provided with respect to the Project) as of such date of determination; provided that any such infrastructure and related components that are subject to, or necessary for the Borrower or any of its Subsidiaries to comply with, its contractual obligations under any Material Project Contract that has been terminated or cancelled (other than as a result of the expiration of the stated term of such Material Project Contract and not as a result of a breach or default thereunder) shall be deemed not to be an Uncontracted Infrastructure.
  198. “Uncontracted Services” “Uncontracted Services” shall mean, as of any date of determination, the infrastructure-as-a-service, platform-as-a-service, products (including the web portal and subdomains), services (such as support and service level commitments) and solutions to be provided by the Borrower or any of its Subsidiaries to a customer and such customer’s end users, in each case (i) solely utilizing Uncontracted Infrastructure with respect to such services and (ii) to the extent such services and products are not subject to, or not necessary for the Borrower or any of its Subsidiaries to comply with, any contracted obligations
  199. with respect to the Project (or with respect to any provision of services similar to those provided with respect to the Project) as of such date of determination; provided that any such services that are subject to, or necessary for the Borrower or any of its Subsidiaries to comply with, its contractual obligations under any Material Project Contract that has been terminated or cancelled (other than as a result of the expiration of the stated term of such Material Project Contract and not as a result of a breach or default thereunder) shall be deemed not to be an Uncontracted Service.
  200. “Undrawn Fee” “Undrawn Fee” shall have the meaning assigned to it in Section 2.10(d).
  201. “Used GPU Server” “Used GPU Server” shall mean any GPU Server that has been used in the provision of Other Services prior to such GPU Server’s Used GPU Server Contribution Date.
  202. “Used GPU Server Contribution Date” “Used GPU Server Contribution Date” shall mean the date on which a Used GPU Server is contributed to the Fifth Amendment Delayed Draw Loan Facility in accordance with the terms of this Agreement and the other Loan Documents.
  203. “Used GPU Server Depreciated Amount” “Used GPU Server Depreciated Amount” shall mean, with respect to any Used GPU Server, the aggregate amount of depreciation applicable to such Used GPU Server calculated in good faith by the Calculation Agent and the Borrower in a manner substantially consistent with how such calculation is made on Schedule 2.03 as in effect on the Closing Date, on a straight-line basis in accordance with GAAP assuming a useful life of six (6) years, determined with respect to the period commencing with the applicable date such Used GPU Server was initially placed in service through the applicable Used GPU Server Contribution Date, and as set forth (including the calculation thereof in reasonable detail) in a written certificate of a Responsible Officer of the Borrower and delivered to the Agent (for distribution to the Lenders) on or prior to the applicable Used GPU Server Contribution Date. For the avoidance of doubt, depreciation with respect to the “Used GPU Server Depreciated Amount” shall be calculated based on the ordinary course practices or conventions of the Borrower and the Obligors, including the utilization of a “half-month convention method” (for example, if the date with respect to which Infrastructure is placed in service is (x) on or before the fifteenth (15th) day of a calendar month, a full month depreciation will be
  204. taken and (y) after the fifteenth (15th) day of a calendar month, depreciation applicable to such Infrastructure will be effected beginning with the immediately following calendar month).
  205. “Used GPU Server Purchase Price” “Used GPU Server Purchase Price” shall mean, with respect to any Used GPU Server, the amount equal to (a) the purchase price of such Used GPU Server less (b) the Used GPU Server Depreciated Amount with respect to such Used GPU Server.
  206. “VAT” “VAT” shall means:
Section 1.10 Investment Grade Status Change 1 change
  1. Section 1.10. Investment Grade Status Change. No Default or Event of Default shall be deemed to occur under Section 7.01(b), (c) or (d) (solely as a result of an Event of Default occurring with respect to such Sections in respect of a failure to comply with the requirements under Section 6.12(c) and (d)Section 6.12(d)), nor shall a Credit Extension be deemed to have occurred, solely as a result of a Master Services Agreement (i) no longer satisfying the requirements necessary for such Master Services Agreement to be considered to be a IG Contract or (ii) no longer considered to be a Non-IG Contract (clauses (i) and (ii) collectively, the “IG Status Change”), provided however, for the avoidance of doubt, any IG Status Change shall affect the calculation of “Applicable Margin”, payments to be made under Section 2.08 and calculations under Section 6.12(b)-(c) (solely for calculations with respect to Test Periods following such IG Status Change).
Section 2.01 Commitments 4 changes
  1. (a) The Initial Delayed Draw Loans. Subject to the terms set forth herein, each Lender having a Delayed Draw Loan Commitment agrees to make Initial Delayed Draw Loans in U.S. Dollars to the Borrower on any Business Day during the Delayed Draw Availability Period, in an aggregate principal amount that will not result in (i) any such Lender’s outstanding Initial Delayed Draw Loans exceeding such Lender’s Initial Delayed Draw Loan Commitment then in effect or (ii) the aggregate outstanding Initial Delayed Draw Loans of all such Lenders exceeding the TotalInitial Delayed Draw Loan Commitments then in effect, in each case, after giving effect thereto and to the application of the proceeds thereof. Such Delayed Draw Loans may be Base Rate Loans or Term SOFR Loans as further provided herein.
  2. (b) Minimum Fifth Amendment Delayed Draw Loans. To the extent that on any applicable date, the Loans are available to be drawn hereunder, including pursuant to Article IVArticle IV, the Borrower agrees that on any such date (i) on or prior to the Commitment Termination Date, it willthe Borrower shall draw Delayed Draw Loans in ana minimum amount at least equal to no less than the Minimum Funded Amount. and (ii) on or prior to the last day of the Fifth Amendment Commitment Termination Date, the Borrower shall draw Fifth Amendment Delayed Draw Loans in a minimum amount equal to no less than $2,400,000,000 (the “Fifth Amendment Minimum Funded Amount”). It is agreed and understood that a Default or Event of Default shall not be deemed to occur in the event that the Borrower fails to draw an amount no less than the Fifth Amendment Minimum Funded Amount on or prior to the Fifth Amendment Commitment Termination Date.
  3. (d) The Fifth Amendment Delayed Draw Loans. Subject to the terms set forth herein, each Lender having a Fifth Amendment Delayed Draw Loan Commitment agrees to make Fifth Amendment Delayed Draw Loans in U.S. Dollars to the Borrower on any Business Day during the Fifth Amendment Delayed Draw Availability Period, in an aggregate principal amount that will not result in (i) any such Lender’s outstanding Fifth Amendment Delayed Draw Loans exceeding such Lender’s Fifth
  4. Amendment Delayed Draw Loan Commitment then in effect or (ii) the aggregate outstanding Fifth Amendment Delayed Draw Loans of all Lenders exceeding the aggregate Fifth Amendment Delayed Draw Loan Commitments then in effect, in each case, after giving effect thereto and to the application of the proceeds thereof. Such Fifth Amendment Delayed Draw Loans may be Base Rate Loans or Term SOFR Loans as further provided herein.
Section 2.02 Loans and Borrowings 1 change
  1. Section 2.02. Loans and Borrowings. Each Loan to the Borrower shall be made as part of a Borrowing consisting of Loans made by the Lenders rateably in accordance with their respective Commitments under the applicable Facility or the Fifth Amendment Delayed Draw Loan Facility, as applicable. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and not joint and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
Section 2.03 Requests for Borrowings 2 changes
  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 (or, with respect to (x) the initial Borrowings of Delayed Draw Loans, five (5) Business Days and (y) the initial Borrowing of Fifth Amendment Delayed Draw Loans, two (2) Business Days) before the date of the proposed Borrowing. Each such Borrowing Request shall specify the following information in compliance with Section 2.02:
  2. (e) the quantity, and purchase orders (or, if applicable and consented to in writing by the Lead Lenders in their sole discretion, a schedule of the quantity, type, location and gross asset value in form and substance satisfactory to the Lead Lenders) with respect to the applicable GPU Servers (including a calculation of the Projected Contracted Cash Flows with respect to all Master Services Agreement to the Borrower or any Subsidiary of the Borrower in respect of such GPU Servers) to be acquired (or that have been acquired since the immediately preceding Borrowing) in connection with the Borrowing.
Section 2.05 Conversion and Continuation Elections 1 change
  1. (a) The Borrower shall have the option to (i) request that any Loan be made as a Term SOFR Loan, (ii) convert at any time all or any part of outstanding Loans from Base Rate Loans to Term SOFR Loans, (iii) convert any Term SOFR Loan to a Base Rate Loan, or (iv) continue all or any portion of any Loan as a Term SOFR Loan upon the expiration of the applicable Interest Period. Any Loan having the same proposed Interest Period to be made or continued as, or converted into, a Term SOFR Loan must be in a minimum amount of $1,000,000 (or such lesser amount as the Administrative Agent (at the direction of the Lender Representative) may agree). Any such election must be made by the Borrower by 2:00 p.m. (New York time) on the third Business Day prior to (A) the date of any proposed Loan which is to bear interest at Term SOFR, (B) the end of each Interest Period with respect to any Term SOFR Loans to be continued as such, or (C) the date on which the Borrower wishes to convert any Base Rate Loan to a Term SOFR Loan for an Interest Period designated by the Borrower in such election. If no election is received with respect to a Term SOFR Loan by 2:00 p.m. (New York time) on the third Business Day prior to the end of the Interest Period with respect thereto, that Term SOFR Loan shall be converted to a Term SOFR Loan with a three-month Interest Period. The Borrower must make such election by notice to the Administrative Agent with respect to the Loans in writing, including by electronic transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) substantially in the form of Exhibit E or in a writing in any other form acceptable to the Administrative Agent (at the direction of the Lender Representative). No Loan shall be made, converted into or continued as a Term SOFR Loan if an Event of Default has occurred and is continuing at the time of the proposed conversion or continuation and the Existing Required Lenders or the Fifth Amendment Required Lenders, as applicable, have determined in writing not to make or continue any Loan as a Term SOFR Loan as a result thereof. It is agreed and understood that, on or after the Fifth Amendment Commitment Termination Date, at the election of the Borrower (1) all the outstanding Fifth Amendment Delayed Draw Loans shall be deemed to be converted into one tranche of Fifth Amendment Delayed Draw Loans (which such conversion, for the avoidance of doubt, shall not be deemed to amend the Term Maturity Date with respect to such Fifth Amendment Delayed Draw Loans) and (2) no breakage fees shall be applicable to such conversion.
Section 2.06 Termination of Commitments 3 changes
  1. (a) Delayed Draw Loan Commitments.
  2. (i) Upon each Borrowing of Delayed Draw Loans, the Commitments of each Lender will be reduced by an amount equal to the amount of Delayed Draw Loans made by such Lender in connection with such Borrowing. The Commitments of each Lender with respect to the Facilities will terminate at 11:59 p.m. New York time on the final day of the Delayed Draw Availability Period. The Commitments with respect to the Fifth Amendment Delayed Draw Loan Facility will terminate at 11:59 p.m. New York time on the final day of the Fifth Amendment Delayed Draw Availability Period; and
  3. (ii) Notwithstanding anything to the contrary in this Agreement, after the Termination Blackout Date and solely to the extent a GPU Server Disruption has occurred, the Borrower and the Lender Representative may mutually agree in their good faith determinations, at or about the time of such occurrence, to terminate, in whole or in part, without premium or penalty, the Commitments; provided that each reduction of the Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000. The Borrower and the Lender Representative shall notify the Lenders and the Administrative Agent, in writing, of any election to terminate or reduce the Commitments pursuant to this Section 2.06(a)(ii) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Any termination or reduction pursuant to this Section 2.06(a)(ii) shall apply proportionately and permanently to reduce the Commitments of each of the applicable Lenders.
Section 2.08 Scheduled Payment of Loans 1 change
  1. (b) On each Quarterly Payment Date (commencing on the first Quarterly Payment Date that occurs after the first full Quarterly Date to occur after the Fifth Amendment Commitment Termination Date (such date, the “Fifth Amendment Initial Amortization Payment Date”)), the Borrower shall repay the Fifth Amendment Delayed Draw Loans in an amount equal to the greater of (such amount, the “Fifth Amendment Amortization Amount”): (i) an amount such that, after giving pro forma effect to such repayment, the Fifth Amendment Contract Coverage Ratio, as of the Quarterly Date with respect to such Quarterly Payment Date, shall be equal to or greater than 1.40:1.00, respectively; and (ii) an amount such that, after giving pro forma effect to such repayment, (A) the aggregate outstanding principal amount of Fifth Amendment Delayed Draw Loans shall be less than or equal to the Fifth Amendment Funding Date GPU Amount. For avoidance of doubt, (x) other than with the prior written consent of the Fifth Amendment Required Lenders, no modifications to any Fifth Amendment Contract shall reduce any applicable Fifth Amendment Amortization Amount due with respect to any applicable Quarterly Payment Date pursuant to this Section 2.08(b) below the Fifth Amendment Amortization Amount with respect to such Quarterly Payment Date as implied in the Projected Contracted Cash Flow Spreadsheet and/or Amortization Tracker, in each case, as in effect on the Fifth Amendment Effective Date and (y) if any Fifth Amendment Contract were to be extended, renewed, amended in a manner that modifies, or otherwise have the effect of modifying, any Fifth Amendment Amortization Amount in a manner that would otherwise reduce such Fifth Amendment Amortization Amount with respect to any applicable Quarterly Payment Date below the Fifth Amendment Amortization Amount with respect to such Quarterly Payment Date as implied in the Projected Contracted Cash Flow Spreadsheet and/or Amortization Tracker, in each case, as in effect on the Fifth Amendment Effective Date, the Fifth Amendment Amortization Amount with respect to such Quarterly Payment Date shall be deemed to be the Fifth Amendment Amortization Amount with respect to such Quarterly Payment Date as reflected in the amount implied in such Projected Contracted Cash Flow Spreadsheet or such Amortization Tracker, as applicable.
Section 2.09 Prepayment of Loans 9 changes
  1. (i) Mechanics. Except as otherwise set forth herein, the Borrower shall have the right at any time and from time to time to prepay Loans in whole or in part without premium or penalty (but subject to Section 2.09(a)(ii) and, Section 2.09(c) and Section 2.09(d)), in an aggregate principal amount that is an integral multiple of (A) $500,000 and not less than $500,000 or (B) if less, the amount of Loans outstanding under the applicable Facility or the Fifth Amendment Delayed Draw Loan Facility, as applicable. The Borrower shall notify the Administrative Agent by written notice substantially in the form of Exhibit B hereto of any prepayment hereunder not later than 12:00 noon, New York time, one (1) Business Day prior to the date of prepayment (or such 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 2.11(d).
  2. (ii) Application of Voluntary Prepayments. Prepayment of the Loans pursuant to Section 2.09(a) shall be applied to installments of principal as directed by the Borrower (however, in the absence of such direction, such prepayments shall be applied in direct order of maturity); provided that, for any specific Facility or, Facilities (or tranche within such Facility) or the Fifth Amendment Delayed Draw Loan Facility, as applicable, such prepayments shall be applied ratably among the Lenders to that specific Facility or, Facilities (or tranche within such Facility) or the Fifth Amendment Delayed Draw Loan Facility, as applicable. For the avoidance of doubt, (x) the payment of interest on any Loans shall be made ratably among the parties owed such obligations in proportion to the respective amounts owed each and, (y) the prepayment of outstanding principal amount of any Loans which are then due and payable shall be made ratably among the parties owed such obligations in proportion to the respective amounts owed each and (z) for avoidance of doubt, notwithstanding anything set forth herein, such prepayments shall be subject to Section 2.09(d).
  3. (vi) Application of Mandatory Prepayments. Any prepayment of the Loans pursuant to Section 2.09(b) shall be prepaid together with all accrued and unpaid interest thereon and any breakage costs pursuant to Section 2.14 and shall be applied to installments of principal (with respect to which such prepayments shall be applied in the inverse order of maturity). For the avoidance of doubt, (A) the payment of interest on any Loans shall be made ratably among the parties owed such obligations in proportion to the respective amounts owed each and (B) the prepayment of outstanding principal amount of any Loans which are then due and payable shall be made ratably among the parties owed such obligations in proportion to the respective amounts owed each. For avoidance of doubt, notwithstanding anything set forth herein, such prepayments shall be subject to Section 2.09(d).
  4. (i) If, other than with respect to the Fifth Amendment Delayed Draw Loans, prior to the date that is thirty (30) months after the Commitment Termination Date (which shall be extended by an amount of days equal to the aggregate Qualified Collateral Replenishment Periods to occur prior to the non-extended date that is thirty (30) months after the Commitment Termination Date), and/or with respect to the Fifth Amendment Delayed Draw Loans, prior to the date that is thirty (30) months after the Fifth Amendment 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
  5. connection with Casualty Events), Section 2.09(b)(v), Section 2.09(d) or Section 6.05(d), (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 Loans).
  6. (ii) The Applicable Premium shall become immediately due and payable, and Borrower will pay such premium, as compensation to the Lenders for the loss of their investment opportunity and not as a penalty, whether or not a Bankruptcy Event has commenced, and (if a Bankruptcy Event has commenced) without regard to whether such Bankruptcy Event is voluntary or involuntary, or whether payment occurs pursuant to a motion, plan of reorganization, or otherwise, and without regard to whether the Loans are satisfied or released by foreclosure (whether or not by power of judicial proceeding), deed in lieu of foreclosure or by any other means. Without limiting the foregoing, any redemption, prepayment, repayment, or payment of the Loans in or in connection with a Bankruptcy Event shall constitute an optional prepayment thereof under the terms of Section 2.09(a) and require the immediate payment of the Applicable Premium. Any Applicable Premium payable pursuant to this Section 2.09(c)(i) or Section 2.09(d), as applicable, shall be presumed to be the liquidated damages sustained by each Lender as the result of the redemption and/or acceleration of its Loans and the Borrower agrees that it is reasonable under the circumstances in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Applicable Premium shall be in addition to, and not in lieu of, all principal payments and other amount due pursuant to this Agreement.
  7. (d) If the Loans under the Facility are prepaid:
  8. (i) in full pursuant to any provision of this Section 2.09, the Borrower shall concurrently prepay in full in cash the aggregate outstanding principal amount of the Fifth Amendment Delayed Draw Loan Facility (which shall be accompanied by accrued interest and fees to the extent required by Section 2.09(c), 2.10 and 2.11(d)); or
  9. (ii) in any amount less than a prepayment in full pursuant to Section 2.09(a) and/or in connection with a Permitted Takeout, in each case, then Borrower shall pay or cause to be paid a percentage (which such percentage shall be equal to the percentage that the Facility was so prepaid) of the aggregate principal amounts of the Loans then outstanding in respect of the Fifth Amendment Delayed Draw Loan Facility (which shall be accompanied by accrued interest and fees to the extent required by Section 2.09(c), 2.10 and 2.11(d)).
Section 2.10 Fees 5 changes
  1. Amount less (ii) the actual aggregate principal amount of Delayed Draw Loans which have borrowed on or prior to the Commitment Termination Date which shall be divided among such Lenders based on their Pro Rata Share. The Commitment Fee (if greater than zero) shall be earned on the Commitment Termination Date and due and payable within five (5) Business Days after the Commitment Termination Date.
  2. (c) The Borrower agrees to pay (or cause to be paid) to the Lenders, each for their own accounts, an upfront fee (the “Delayed Draw Upfront Fee”) in an amount equal to 1.50% per annum of the aggregate Delayed Draw Loans actually funded to the Borrower on a Delayed Draw Funding Date, which shall be divided among such Lenders based on their pPro rR ata sS hare of such Delayed Draw Loans. Each Delayed Draw Upfront Fee will be earned and due and payable on the Delayed Draw Funding Date with respect to such Delayed Draw Upfront Fee.
  3. (d) The Borrower agrees to pay (or cause to be paid) to the Lenders, each for their own accounts, an undrawn fee (the “Undrawn Fee”), in an amount equal to 0.50% per annum of the positive difference, if any, of (i) the aggregate Commitments (other than the Fifth Amendment Delayed Draw Loan Commitments) (as such Commitments may be terminated in part or in whole in accordance with Section 2.06(a)) as of (A) the end of each month ended prior to the Commitment Termination Date and (B), without duplication, the Commitment Termination Date less (ii) the greater of (A) the average aggregate principal amount of Loans (excluding the Fifth Amendment Delayed Draw Loans) outstanding as of (1) the end of the applicable month and (2) without duplication, the Commitment Termination Date, respectively, and (B) the Minimum Funded Amount. The Undrawn Fee shall accrue and be earned on a monthly basis at all times during the Delayed Draw Availability Period. The Undrawn Fee (if greater than zero) shall be due and payable in arrears within five (5) Business Days after the Commitment Termination Date and shall be divided among such Lenders based on their Pro Rata Share.
  4. (e) The Borrower agrees to pay (or cause to be paid) to the Fifth Amendment Delayed Draw Loan Lenders, each for their own accounts, an upfront fee (the “Fifth Amendment Delayed Draw Fee”) in an amount equal to 1.50% of the aggregate amount of Fifth Amendment Delayed Draw Loans actually funded to the Borrower on a Fifth Amendment Delayed Draw Funding Date, which shall be divided among such Fifth Amendment Delayed Draw Loan Lenders based on their Pro Rata Share of such Fifth Amendment Delayed Draw Loans, and may, at the option of each Fifth Amendment Delayed Draw Loan Lender, be netted and/or taken as original issue discount. Each Fifth Amendment Delayed Draw Fee will be earned and due and payable on the Fifth Amendment Delayed Draw Funding Date with respect to such Fifth Amendment Delayed Draw Fee.
  5. (f) The Borrower agrees to pay (or cause to be paid) to the Fifth Amendment Delayed Draw Loan Lenders, each for their own accounts, a commitment fee (the “Fifth Amendment Commitment Fee”) in an amount (measured as of the Fifth Amendment Commitment Termination Date) equal to 3.00% of the positive difference, if any, of (i) the Fifth Amendment Minimum Funded Amount less (ii) the actual aggregate principal amount of Fifth Amendment Delayed Draw Loans which have been borrowed on or prior to the Fifth Amendment Commitment Termination Date (excluding, for the avoidance of doubt, the amount of any voluntary prepayments, voluntary commitment reductions, other reductions or other prepayments (including following any Event of Default or acceleration) of the Fifth Amendment Delayed Draw Loans, in each case, made on or prior to the Fifth Amendment Commitment Termination Date), in each case, calculated as of the Fifth Amendment Commitment Termination Date, which shall be divided among such Fifth Amendment Delayed Draw Loan Lenders based on their Pro Rata Share. The Fifth Amendment Commitment Fee (if greater than zero) shall be earned on the Fifth Amendment Commitment Termination Date and due and payable within five (5) Business Days after the Fifth Amendment Commitment Termination Date.
Section 2.13 Increased Costs 2 changes
  1. and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) to the Borrower or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered in connection therewith (but only to the extent the applicable Lender is imposing such charges or additional amounts on other similarly situated borrowers under credit facilities comparable to the Facilities or the Fifth Amendment Delayed Draw Loan Facility, as applicable).
  2. (b) If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or any of the Loans made by such Lender or as a consequence of the Commitments to make any of the foregoing, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered in connection therewith (but only to the extent the applicable Lender is imposing such charges or additional amounts on other similarly situated borrowers under credit facilities comparable to the Facilities or the Fifth Amendment Delayed Draw Loan Facility, as applicable).
Section 2.15 Taxes 3 changes
  1. (2) if such Recipient is a UK Non-BankQualifying Recipient pursuant to clause (b) of the definition thereof, a UK Tax Confirmation.
  2. (ii) Each Recipient lending to a UK Obligor under a Revolving Credit Loan which becomes a party to this Agreement after the date of this Agreement shall indicate, in the documentation which it executes on becoming a party to this Agreement as a Recipient, which of the following categories it falls in: (i) not a UK Qualifying Recipient; (ii) a UK Qualifying Recipient (other than by virtue of being a UK Treaty Recipient); or (iii) a UK Qualifying Recipient by virtue of being a UK Treaty Recipient (on the assumption that all procedural formalities have been completed).
  3. (iii) If a Recipient lending to a UK Obligor under a Revolving Credit Loan fails to indicate its status in accordance with this Section 2.15(k) then such Recipient shall be treated for the purposes of this Agreement (including by each UK Obligor) as if it is not a UK Qualifying Recipient until such time as it notifies the Administrative Agent which category applies (and the Administrative Agent, upon receipt of such notification, shall inform the relevant UK Obligor).
Section 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-offs 2 changes
  1. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, or fees, or of amounts payable under Section 2.09(c), Section 2.09(d), Section 2.13 or 2.15, or otherwise) prior to 2:00 p.m., New York City time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except that payments pursuant to Sections 2.15 and 9.05 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan shall in each case be made in the currency in which such Loan was made. All payments of other amounts due hereunder or under any other Loan Document shall be made in U.S. Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
  2. (b) Subject to Section 2.20 or Section 2.23, as applicable, if at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, interest and fees then due from the Borrower hereunder, such funds shall be applied (i) first, towards payment of outstanding fees and expenses of the Agents, (ii) second, towards payment of interest and fees then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, towards payment of principal then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
Section 2.17 Mitigation Obligations; Replacement of Lenders 2 changes
  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, (A) 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 Loans pursuant to Section 4.02, and with respect to which the Required Lenders shall have granted their consent, or (B) in the event a Non-Consenting Lender has not consented to the waiver of any condition
  2. precedent to the initial funding of the Fifth Amendment Delayed Draw Loans pursuant to Section 4.03, and with respect to which the Fifth Amendment Required Lenders shall have granted their consent, in each case, 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 a Lender does not comply with the requirements of the immediately preceding sentence within one (1) Business Day after receipt of such notice, each Lender shall be deemed to have executed and delivered, and in addition hereby authorizes and directs the Administrative Agent to execute and deliver, such documentation as may be required to give effect to an assignment in accordance with Section 9.04 on behalf of a Non-Consenting Lender and any such documentation shall be effective for purposes of documenting an assignment pursuant to Section 9.04. For the avoidance of doubt, if any Lender shall be deemed a Non-Consenting Lender and is required to assign all or any portion of its Loans or its Loans are prepaid by the Borrower, then the Borrower shall pay the Applicable Premium that would otherwise be payable by the Borrower in connection with the voluntary prepayment thereof.
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 Loans) and Section 4.03 (with respect to any funding of Fifth Amendment Delayed Draw 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 1 change
  1. (iii) Distribution Reserve Account. The Borrower shall deposit, or cause to be deposited, in the Distribution Reserve Account all amounts transferred from the Available Cash Account pursuant to Section 2.20(b)(iv)Section 2.20(b)(v).
Section 2.22 [Reserved] 3 changes
  1. Section 2.22. Incremental Facilities.[Reserved]At any time prior to the Incremental Facility Sunset Date, the Borrower may increase the aggregate amount of the Commitments of any existing Class by requesting new delayed draw term loan commitments to provide Delayed Draw Loans (any such increase, an “Incremental Facility” or the “Incremental Facilities”) by an aggregate amount not in excess of the Incremental Cap, tested at the time of incurrence thereof. The Borrower may invite (A) any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or (B) any other Person to provide all or a portion of the Incremental Commitments (any such Person, an “Incremental Lender”).
  2. (b) Any Incremental Facility shall be effected pursuant to an Incremental Facility Amendment executed and delivered by the Administrative Agent, the Borrower and the applicable Incremental Lenders, which Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22 (it being agreed and understood that the terms applicable to any Incremental Facility incurred hereunder shall be substantially similar to the terms applicable to the then-existing Commitments). The Lenders hereby irrevocably authorize and direct the Administrative Agent to enter into any Incremental Facility Amendment and any amendment to any of the other Loan Documents with the Borrower or the Parent as may be necessary in order to establish new tranches or sub-tranches in respect of Delayed Draw Loans or Commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches (which may include amending and restating the Loan Documents), in each case on terms consistent with this Section 2.22; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such amendments. For the avoidance of doubt, the amendments referred to in this Section 2.22 shall be subject to the approval requirements set forth in Section 9.08(b)(i) through Section 9.08(b)(viii), in each case, to the extent applicable.
  3. (c) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitments shall become a Lender hereunder.
Section 2.23 Fifth Amendment Obligations Waterfall 17 changes
  1. Section 2.23. Fifth Amendment Obligations Waterfall.
  2. (a) Deposits into Accounts.
  3. (i) Fifth Amendment Available Cash Account. The Borrower shall deposit, and shall use reasonable best efforts to cause third parties that would otherwise make payments directly to the Borrower to deposit, in the Fifth Amendment Available Cash Account (without duplication): (i) the proceeds of all Fifth Amendment Available Cash; (ii) any Fifth Amendment Other Proceeds transferred from the Fifth Amendment Other Proceeds Account pursuant to Section 2.23(c); and (iii) any amounts transferred from the Fifth Amendment Distribution Reserve Account pursuant to Section 2.23(d)(ii).
  4. (ii) Fifth Amendment Other Proceeds Account. The Borrower shall deposit, and shall use reasonable best efforts to cause third parties that would otherwise make payments directly to the Borrower in respect of the Fifth Amendment Collateral to deposit, in the Fifth Amendment Other Proceeds Account, Fifth Amendment Other Proceeds promptly after receipt thereof by the Borrower.
  5. (iii) Fifth Amendment Distribution Reserve Account. The Borrower shall deposit, or cause to be deposited, in the Fifth Amendment Distribution Reserve Account all amounts transferred from the Fifth Amendment Available Cash Account pursuant to Section 2.23(b)(v).
  6. (b) Withdrawals from the Fifth Amendment Available Cash Account. Pursuant to an Account Withdrawal Certificate delivered by the Borrower to the Depositary Bank and countersigned by the Calculation Agent (and with respect to the Calculation Agent, such signature not to be unreasonably delayed or withheld), all amounts in the Fifth Amendment Available Cash Account shall be disbursed by the Depositary Bank from time to time for application, at the following times and in the following order of priority:
  7. (i) first, on each date as needed, to pay, to the extent not paid pursuant to Section 2.20(b)(i) and constituting Fifth Amendment Obligations, (A) the indemnities, administrative fees and expenses (including fees, charges and disbursements of counsel) which are then due and payable under the Loan Documents and (B) all indemnities, administrative fees and expenses (including fees, charges and disbursements of counsel) which are then due and payable to the Depositary Bank, ratably among the parties owed such obligations in proportion to the respective amounts owed to each;
  8. (ii) second, on each Quarterly Payment Date, to pay scheduled interest payments and expenses which are then due and payable with respect to the Fifth Amendment Delayed Draw Loan Facility;
  9. (iii) third, on each Quarterly Payment Date, to make the repayments of principal with respect to the Fifth Amendment Delayed Draw Loan Facility as required pursuant to Section 2.08;
  10. (iv) fourth, on each date as needed, Fifth Amendment Operating Expenses solely with respect to any contractual obligations assigned or otherwise transferred to the Borrower pursuant to the terms of this Agreement; and
  11. (v) fifth, on each Quarterly Payment Date, after giving effect to transfers made pursuant to clauses (i) through (iv) of this Section 2.23(b), to the Fifth Amendment Distribution Reserve Account.
  12. (c) Withdrawals from the Fifth Amendment Other Proceeds Account. Pursuant to an Account Withdrawal Certificate delivered by the Borrower and countersigned by the Calculation Agent (and with respect to the Calculation Agent, such signature not to be unreasonably delayed or withheld), funds on deposit in the Fifth Amendment Other Proceeds Account shall be transferred from time to time:
  13. (i) first, as needed, to make any mandatory prepayment of the Loans required pursuant to Section 2.09(b)(iv); and
  14. (ii) second, to the Fifth Amendment Available Cash Account for application in accordance with Section 2.23(b).
  15. (d) This Section 2.22 shall supersede any provisions in Section 2.16 or 9.04 to the contraryWithdrawals from the Fifth Amendment Distribution Reserve Account.
  16. (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 depositary bank who shall withdraw and transfer to any Person or account (including to the General Accounts) specified in such Account Withdrawal Certificate, such amounts on deposit in the Fifth Amendment Distribution Reserve Account.
  17. (ii) If the funds on deposit in the Fifth Amendment Available Cash Account are insufficient to make all payments in respect of the Fifth Amendment Obligations then due and payable, a Responsible Officer of the Borrower shall deliver an Account Withdrawal Certificate countersigned by the Calculation Agent to the applicable depositary bank and the Collateral Agent (and acknowledged by the Calculation Agent) setting forth the amount of such insufficiency and directing the Depositary Bank to transfer from the Fifth Amendment Distribution Reserve Account the amount of such insufficiency to the Fifth Amendment Available Cash Account for application in accordance with the provisions set forth in Section 2.23(b); provided that any such transfer shall be only of amounts on deposit in the Fifth Amendment Distribution Reserve Account.
Section 2.24 Excess Cash Amounts Waterfall 3 changes
  1. Section 2.24. Excess Cash Amounts Waterfall.
  2. (a) If an amount greater than $0 is deposited by the Borrower in the Distribution Reserve Account (such amount, the “Excess Existing Cash Amount”) pursuant to Section 2.20(b)(v) of this Agreement, the Borrower shall promptly (but in any event substantially concurrently with receipt of any such Excess Existing Cash Amount), apply such Excess Existing Cash Amount in accordance with Section 2.23 of this Agreement solely to the extent the funds on deposit in the Fifth Amendment Available Cash Account are insufficient to make all payments then due and payable pursuant to Section 2.23(b)(i)-(iii).
  3. (b) If an amount greater than $0 is deposited by the Borrower in the Fifth Amendment Distribution Reserve Account (such amount, the “Excess Fifth Amendment Cash Amount”) pursuant to Section 2.23(b)(v) of this Agreement, the Borrower shall promptly (but in any event substantially concurrently with receipt of any such Excess Fifth Amendment Cash Amount), apply such Excess Fifth Amendment Cash Amount in accordance with Section 2.20 of this Agreement solely to the extent the funds on deposit in the Available Cash Account are insufficient to make all payments then due and payable pursuant to Section 2.20(b)(i)-(iii).
Article III 1 change
  1. The Borrower, on behalf of itself and its Subsidiaries, represents and warrants to the Administrative Agent, the Collateral Agent and each of the Lenders that as of the date hereof, the Closing Date and as otherwise required by Section 4.02 or Section 4.03:
Section 3.02 Authorization; No Conflicts 1 change
  1. Section 3.02. Authorization; No Conflicts. The execution, delivery and performance by the Borrower and its Subsidiaries of each of the Loan Documents to which it is a party, and the borrowings hereunder, the Transactions and the Fifth Amendment Transactions (a) have been duly authorized by all necessary corporate, stockholder, limited liability company or partnership action required to be obtained by the Borrower or such Subsidiary, as applicable, and (b) will not (i) violate any provision of (A) law, statute, rule or regulation, (B) the certificate or articles of incorporation or other constitutive documents or limited liability company agreement or by-laws of the Borrower or such Subsidiary, as applicable, (C) any applicable order of any court or order of any Governmental Authority or (D) any indenture, lease, agreement or other instrument to which the Borrower or such Subsidiary, as applicable, is a party or by which it or any of its property is or may be bound or (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, lease, agreement or other instrument, where any such conflict, violation, breach or default referred to in clauses (i)(A), (C) and (D) of this Section 3.02 would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (c) will not result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or such Subsidiary, as applicable, other than the Liens created by the Loan Documents. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
Section 3.03 Enforceability 1 change
  1. Section 3.03. Enforceability. This Agreement has been duly executed and delivered by the Borrower and each Obligor and constitutes, and each other Loan Document and Material Project Contract in effect as of the Closing Date and the Fifth Amendment Effective Date and delivered by the Borrower or Obligor that is party thereto will constitute, a legal, valid and binding obligation of the Borrower or such Obligor enforceable against the Borrower or such Obligor in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting creditors’ rights generally, (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (c) implied covenants of good faith and fair dealing and (d) the need for filings and registrations necessary to create or perfect Liens on the Collateral granted by the Borrower or such Obligor in favor of the Secured Parties.
Section 3.04 Governmental Approvals 1 change
  1. Section 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with, permit from, notice to, or any other action by, any Governmental Authority is or will be required in connection with (a) the entry of the Borrower or any Obligor into, or the performance by the Borrower or any Obligor of its obligations under, the Loan Documents, (b) the development, ownership and operation of the Project as contemplated by the Loan Documents, the Material Project Contracts and the Data Center Leases/Licenses (to the extent required to be obtained by the Borrower or its Subsidiaries), (c) the consummation of the Transactions and the Fifth Amendment Transactions by the Borrower or (d) the grant by the Borrower or any Obligor of the Liens granted under the Security Documents or the validity, perfection and enforceability thereof or for the exercise by the Collateral Agent of its rights and remedies thereunder, except for (i) the filing of UCC financing statements (or the filing of financing statements under any other local equivalent) or (ii) such consents, authorizations, filings or other actions that have either (A) been made or obtained and are in full force and effect, (B) are listed on Schedule 3.04 or (C) such actions, consents, approvals, registrations or filings the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect.
Section 3.05 Title to Properties; Material Project Contracts 1 change
  1. (b) Schedule 3.05 contains a true, correct and complete list of all the Material Project Contracts in effect as of the Fifth Amendment Effective dDate hereof, and all such Material Project Contracts are in full force and effect and no defaults currently exist thereunder.
Section 3.07 Equity Interests; Subsidiaries 1 change
  1. (a) Schedule 3.07(a) sets forth as of the SecondFifth Amendment Effective Date the name and jurisdiction of incorporation, formation, establishment or organization of the Borrower and its Subsidiaries and the percentage of each class of Equity Interests owned by the Parent, indicating the ownership thereof. The Equity Interests in the Borrower and its Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable. There is no existing option, warrant, call, right, commitment or other agreement to which the Borrower or any of its Subsidiaries is a party requiring, and there is no Equity Interest in the Borrower or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by the Borrower or any of its Subsidiaries of any additional Equity Interests in the Borrower or such Subsidiary or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase an Equity Interest in the Borrower or such Subsidiary.
Section 3.11 Use of Proceeds 1 change
  1. Section 3.11. Use of Proceeds. The proceeds of the Delayed Draw Loans (other than Fifth Amendment Delayed Draw Loans) shall be used by the Borrower to finance the (a) IG Capital Expenditures and (b) Non-IG Capital Expenditures, in each case, of the Borrower and any Obligor, and including, in each case, to consummate portions of the Acquisition, to pay transaction costs and expenses incurred in connection therewith. The proceeds of the Fifth Amendment Delayed Draw Loans shall be used by the Borrower to finance the Fifth Amendment Contract Capital Expenditures of the Borrower and any Obligor (or, solely with respect to the GPU Obligors, to finance Fifth Amendment Contract Capital Expenditures in respect of the Fifth Amendment Contract Infrastructure described on Schedule 5.23(d)), and including, in each case, to consummate portions of the Acquisition of the Fifth Amendment Contract Infrastructure, to pay transaction costs and expenses incurred in connection therewith.
Section 3.13 No Material Misstatements 3 changes
  1. (a) All written information (other than the Projections, estimates and information of a general economic nature) concerning the Borrower, its Subsidiaries, the Transactions, the Fifth Amendment Transactions, and any other transactions contemplated hereby prepared by or on behalf of the Borrower or its Subsidiaries in connection with the Transactions or the other transactions contemplated hereby (as modified or supplemented by other information so furnished), when taken as a whole, as of the date hereof and as of the Fifth Amendment Effective Date, in each case, does not contain any untrue statement of a material fact as of any such date or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
  2. (b) The Projections prepared by or on behalf of the Borrower, its Subsidiaries or any of its representatives and that have been made available to any Lenders or the Administrative Agent in connection with the Transactions, the Fifth Amendment Transactions, or the other transactions contemplated hereby have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date thereof, as of the date such Projections were furnished to the Administrative Agent (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and its Affiliates, that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material, and that no assurances can be given that any such Projections will be realized).
  3. (c) As of the date hereof and as of the Fifth Amendment Effective Date, the information included in the Beneficial Ownership Certification provided to any Lender in connection with this Agreement is true and correct in all material respects.
Section 3.14 Employee Benefit Plans 1 change
  1. Section 3.14. Employee Benefit Plans. Each Plan has been administered in compliance with the applicable provisions of ERISA and the Code (and the regulations and published interpretations thereunder) except for such noncompliance that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. As of the date hereof and the Fifth Amendment Effective Date, the excess of the present value of all benefit liabilities under each Plan of the Borrower and the ERISA Affiliates (based on those assumptions used to fund such Plan), as of the last annual valuation date applicable thereto for which a valuation is available, over the value of the assets of such Plan would not reasonably be expected to have a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on those assumptions used to fund each such Plan) as of the last annual valuation dates applicable thereto for which valuations are available, does not exceed the value of the assets of all such underfunded Plans by an amount that would reasonably be expected to have a Material Adverse Effect. No ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur that, when taken together with all other ERISA Events and Foreign Plan Events which have occurred or for which liability is reasonably expected to occur, would reasonably be expected to have a Material Adverse Effect.
Section 3.18 Labor Matters 1 change
  1. Section 3.18. Labor Matters. There are no strikes pending or threatened against the Borrower or any Subsidiary that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The hours worked and payments made to employees of the Borrower or any Obligor have not been in violation in any material respect of the Fair Labor Standards Act or any other applicable law dealing with such matters. All material payments due from the Borrower or any Subsidiary or for which any claim may be made against the Borrower or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or any Subsidiary to the extent required by GAAP. Consummation of the Transactions and the Fifth Amendment Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower (or, any predecessor) is a party or by which the Borrower (or, in each case, any predecessor) is bound, other than collective bargaining agreements that, individually or in the aggregate, are not material to the Borrower.
Section 3.20 Status as Senior Debt; Perfection of Security Interests 2 changes
  1. (b) Each Security Document delivered pursuant to Sections 4.01, 4.02 and, 4.03, 5.10 and 5.20 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid, and enforceable security interest in the Collateral described therein and proceeds thereof in all material respects. On and after the Closing Date, in the case of (i) the Pledged Collateral described in each of the Collateral Agreement and the Parent Guarantee and Pledge Agreement or any Pledged Collateral or other security granted in respect of Ccapital Sstock (or equivalent) of any Foreign Subsidiary of the Borrower, when stock certificates, if any, representing such Pledged Collateral are delivered to the Collateral Agent, and (ii) the other Collateral described in the Security Documents, when (A) financing statements under Article 9 of the UCC and (B) other filings specified therein in appropriate form are filed in the offices specified therein, the Liens created by the Security Documents shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Borrower or any Obligor in such Collateral and the proceeds thereof to the extent perfection
  2. can be obtained by filing financing statements, making such other filings specified therein or by possession, as security for the applicable Obligations of the Borrower or any Obligor, in each case prior and superior in right to any other Person, subject, in the case of Collateral other than Pledged Collateral, to Prior Liens, and in the case of Pledged Collateral, to Liens for Taxes, banker’s liens or other rights of set-off arising (and that have priority) by operation of law.
Section 3.21 Location of Business and Offices 1 change
  1. Section 3.21. Location of Business and Offices. The Borrower’s jurisdiction of organization is the State of Delaware as of the date hereof and, as of the Closing Date and as of the Fifth Amendment Effective Date; the name of the Borrower as listed in the public records of its jurisdiction of organization is CoreWeave Compute Acquisition Co., IV, LLC as of the date hereof and, as of the Closing Date and as of the Fifth Amendment Effective Date; the tax identification number of the Borrower is 99-0796066 as of the date hereof and, as of the Closing Date and as of the Fifth Amendment Effective Date; and the organizational identification number of the Borrower in its jurisdiction of organization is 2955822 as of the Closing Date (or as set forth in a notice delivered to the AdministrativeCollateral Agent pursuant to Section 5.01(b))Section 5.10(c)) and as of the Fifth Amendment Effective Date. The Borrower’s principal place of business and chief executive office is located at the address specified in Section 9.01(a) (or as set forth in any notice delivered pursuant to Section 5.10(c) or Section 9.01(a)).
Section 4.01 Signing Date 1 change
  1. (d) (i) The Administrative Agent and Collateral Agent shall have received at least three (3) Business Days prior to the date hereof all documentation and other information required by regulatory authorities with respect to the Borrower and the Parent under applicable “know your customer” and Anti-Corruption Laws, and Anti-Money Laundering Laws, and regulations, including without limitation the PATRIOT Act, that has been reasonably requested by the Administrative Agent in writing at least ten (10) days in advance of the date hereof and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender shall have received a Beneficial Ownership Certification in relation to the Borrower at least one (1) day prior to the date hereof (provided that, upon execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ed) shall be deemed satisfied).
Section 4.02 Credit Events 6 changes
  1. Section 4.02. All Credit Events. The obligation of the Lenders to make Credit Extensions (other than, for the avoidance of doubt, (i) with respect to any Fifth Amendment Credit Event and (ii) 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 Loans) and (y) the Required Lenders (in the case of any other Credit Extension) of each of the following conditions precedent:
  2. (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of each of the Borrower and the Parent has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i)Section 4.02(a)(i) above;
  3. (l) The aggregate amount of Delayed Draw Loans incurred with respect to such Credit Event shall be less than or equal to the IG Funding Date GPU Amount and Non- IGNon-IG Funding Date GPU Amount (as applicable), in each case as of the date of disbursement, determined on a pro forma basis after giving effect to the Borrowing of such Delayed Draw Loans and the requirements under Section 3.11 with respect to such Delayed Draw Loans, and, to the extent that the Borrower or any Subsidiary of the Borrower is consummating the Acquisition with respect to such Credit Event with the Parent, the Administrative Agent shall have received a copy of each invoice from the Parent to the Borrower or such Subsidiary of the Borrower reflecting the Acquisition by the Borrower or such Subsidiary of the Borrower from the Parent at a price in an amount equal to or less than the IG Funding Date GPU Amount and/or Non-IG Funding Date GPU Amount, in each case as of the date of such Credit Event.
  4. (r) The Administrative Agent shall have received an updated GPU Depreciation Amount Spreadsheet (to the extent such GPU Depreciation Amount Spreadsheet is to be updated with respect to an applicable Borrowing in accordance thereof).
  5. Each Credit Event (other than, for the avoidance of doubt, (i) with respect to any Fifth Amendment Credit Event and (ii) with respect to a conversion of Loans to the other Type or a continuation of Term SOFR Loans) shall be deemed to constitute a representation and warranty by the Borrower on the date of such Credit Event as to the matters specified in Sections 4.02(j) and 4.02(k).
  6. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Credit Event specifying its objection thereto. Notice by the Administrative Agent of the Closing Date to the Borrower and the Lenders shall be conclusive and binding.
Section 4.03 Fifth Amendment Credit Events 25 changes
  1. Section 4.03. Fifth Amendment Credit Events . The obligation of the Lenders to make Credit Extensions with respect to any Fifth Amendment Credit Event is subject to the satisfaction or waiver by the Administrative Agent at the direction of the Lead Lenders of each of the following conditions precedent:
  2. (a) Solely with respect to the initial funding of Fifth Amendment Delayed Draw Loans, the Administrative Agent shall have received each of the following:
  3. (i) a copy of (A) the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of the Borrower and the Parent, (x) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) or (y) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of the Borrower and the Parent and (B) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of the Borrower and the Parent as of a recent date from such Secretary of State (or other similar official);
  4. (ii) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, or the general partner, managing member or sole member, of each of the Borrower and the Parent, in each case dated the Fifth Amendment Initial Funding Date and certifying:
  5. (A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of the Borrower and the Parent as in effect on the Fifth Amendment Initial Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below;
  6. (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each of the Borrower and the Parent (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and the grant of the security interest required under the Security Document to which such Person is a party, in each case as of the Fifth Amendment Initial Funding Date, and, in the case of the Borrower, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Fifth Amendment Initial Funding Date;
  7. (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of each of the Borrower and the Parent has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above;
  8. (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of each of the Borrower and the Parent; and
  9. (E) as to the satisfaction of the conditions set forth in Sections 4.03(h), 4.03(i), 4.03(j) and 4.03(o);
  10. (iii) the First Amendment to the Collateral Agreement, duly executed by the Borrower and each other Person party thereto, copies of each certificate, filing, financing statement and evidence that all other actions, recordings and filings required by the Security Documents as of the Fifth Amendment Initial Funding Date that are necessary to satisfy the Collateral and Guarantee Requirement after giving effect to the First Amendment to the Collateral Agreement;
  11. (iv) copies of a recent Lien, tax and judgment searches in each jurisdiction requested by the Administrative Agent (at the direction of the Fifth Amendment Required Lenders) with respect to the Borrower, the Domestic Obligors and Parent; and
  12. (v) financial model with respect to the Fifth Amendment Project and the Fifth Amendment Transactions, including an initial operating budget for the Borrower and the Fifth Amendment Project, in form and substance satisfactory to the Lead Lenders; provided that the Lead Lenders hereby acknowledge receipt of the financial model delivered as of September 26, 2025 as of the Fifth Amendment Effective Date.
  13. (c) Solely with respect to the initial funding of the Fifth Amendment Delayed Draw Loans, the Administrative Agent shall have received a solvency certificate satisfactory to Lead Lenders and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower, the Obligors and the Parent after giving effect to the Fifth Amendment Transactions.
  14. (d) Solely with respect to the initial funding of the Fifth Amendment Delayed Draw Loans, the Fifth Amendment Available Cash Account has been established.
  15. (e) The Administrative Agent shall have received, in each case in form and substance satisfactory to the Fifth Amendment Required Lenders, each Fifth Amendment Master Services Agreement in effect as of such date of initial funding of the Fifth Amendment Delayed Draw Loans except to the extent such Fifth Amendment Master Services Agreement has been previously delivered to the Administrative Agent.
  16. (g) The Administrative Agent shall have received a Borrowing Request.
  17. (h) The representations and warranties set forth in Article III hereof shall be true and correct in all material respects on and as of the date of such Fifth Amendment Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) (or, to the extent qualified by materiality, true and correct in all respects).
  18. (i) At the time of and immediately after such Fifth Amendment Credit Event, no Event of Default or Default shall have occurred and be continuing.
  19. (j) Immediately after giving effect to such Fifth Amendment Credit Event, no Cash Shortfall Event shall have occurred and be continuing and the Fifth Amendment Liquidity Requirement shall be satisfied.
  20. (k) The Fifth Amendment Delayed Draw Fee with respect to such Fifth Amendment Credit Event shall have been paid in accordance with Section 2.10(e).
  21. (l) To the extent the proceeds of such Fifth Amendment Credit Event will be used for an Acquisition, the Administrative Agent shall have received duly written acknowledgments of payments and confirmation of release of liens (if applicable), in each case in form and substance satisfactory to the Lender Representative, with respect to all GPU Servers purchased with such proceeds such that such GPU Servers shall be free and clear of all Liens other than Liens pursuant to the Security Documents; provided, however, that such acknowledgments and releases may be conditioned upon receipt of payment with respect to such Acquisition through a customary funds flow relating to such Fifth Amendment Credit Event.
  22. (m) To the extent all or any portion of the proceeds of such Fifth Amendment Credit Event will be used for an Acquisition for the provision of Services with respect to a Fifth Amendment Contract, no Fifth Amendment GPU Non-Acceptance Event with respect to the applicable Fifth Amendment Customer with respect to such Fifth Amendment Contract shall have occurred and be continuing.
  23. (o) Immediately before and after giving effect to a Fifth Amendment Credit Event, the aggregate amount of Fifth Amendment Delayed Draw Loans incurred on the date of such Fifth Amendment Credit Event shall be less than or equal to the Fifth Amendment Funding Date GPU Amount as of the date of disbursement, determined on a pro forma basis after giving effect to the Borrowing of the Fifth Amendment Delayed Draw Loans and the requirements under Section 3.11 with respect to such Fifth Amendment Delayed Draw Loans, and the Agent shall have received a copy of each invoice from the Parent to the Borrower, Obligor or such Subsidiary of the Borrower (in each case, if applicable) reflecting the transactions by the Borrower, Obligor or such Subsidiary of the Borrower from the Parent at a price in an amount equal to or less than the Fifth Amendment Funding Date GPU Amount as of the date of such Borrowing.
  24. Each Fifth Amendment Credit Event (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) shall be deemed to constitute a representation and warranty by the Borrower on the date of such Fifth Amendment Credit Event as to the matters specified in Sections 4.02(j)4.03(h) and 4.02(k)4.03(i) .
  25. For purposes of determining compliance with the conditions specified in this Section 4.02Section 4.03, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Fifth Amendment Credit Event specifying its objection thereto. Notice by the Administrative Agent of the Closing Date to the Borrower and Lenders shall be conclusive and binding.
Section 5.02 Insurance 1 change
  1. (a) Maintain with financially sound and reputable insurance companies, insurance with respect to all of its properties and business at all times in such amounts, with deductibles and covering such risks as the Borrower, in the good faith judgment of its management, determines to be prudent and in any case consistent with the type, scope and amounts set forth in Schedule 5.02 (adjusted to take into account any Acquisitions after the date hereof). Each such policy of insurance shall (i) name the Collateral Agent, on behalf of the Secured Parties as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a lender loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties as the lender loss payee thereunder.
Section 5.04 Financial Statements, Reports, Etc 4 changes
  1. (e) within five (5) Business Days after the delivery of the financial statements pursuant to Sections 5.04(a) and (b), a Compliance Certificate, executed by the Chief Financial Officer of the Borrower, 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 Master Services Agreements and any Additional Services Agreements, (iii) compliance with the terms and conditions of this Agreement in all material respects, (iv) no Default or Event of Default having had occurred and/or be continuing, (v) all GPU Clusters are owned by the Borrower or an Obligor (including a GPU Obligor) and (vi) concurrently with the delivery of the financial statements pursuant to Sections 5.04(a) and (b), the accuracy of such financial statements;
  2. (f) solely to the extent the Closing Date has occurred, account statements for the Collateral Accounts then in existence on a monthly basis provided within two (2) weeks after the end of each calendar month;
  3. (i) within five (5) Business Days after the occurrence of an Amortization Tracker Trigger Event, the Borrower shall deliver an updated (A) Amortization Tracker and (B) Projected Contracted Cash Flow Spreadsheet to reflect the then-effective Projected Contracted Cash Flows.
  4. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.04 may be satisfied with respect to financial information of the Borrower by furnishing (A) the applicable financial statements of any direct or indirect parent of the Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable,which in such case, must include the Parent) Form 10-K or 10-Q (including delivery of reports and proxy statements), as applicable, filed with the SEC; provided that, with respect to each of subclauses (A) and (B) of this paragraph, to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating or other information that explains in detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower on a standalone basis, on the other hand; provided that the Administrative Agent shall have no obligation to monitor any such filings and the Borrower shall provide electronic copies, or a link to such filings, to the Administrative Agent (which shall furnish to the Lenders) upon request.. For avoidance of doubt, Borrower shall continue to deliver Compliance Certificates to Administrative Agent pursuant to Section 5.04(e).
Section 5.15 Collateral Accounts 2 changes
  1. (a) On and after (i) with respect to the Fifth Amendment Available Cash Account, the Fifth Amendment Distribution Reserve Account, the Fifth Amendment Liquidity Account and the Fifth Amendment Other Proceeds Account, the Fifth Amendment Initial Funding Date and (ii) with respect to all other Collateral Accounts, the Closing Date, the Borrower will, to the extent required, maintain the Collateral Accounts pursuant to the terms of this Agreement, and will ensure that each Collateral Account (except with respect to the Available Cash Account and the Fifth Amendment Available Cash Account) and any other deposit account or securities account of the Borrower or its Subsidiaries in effect from time to time is subject to a Control Agreement in accordance with Section 5.20 and the terms of the Collateral Agreement.
  2. (b) (i) On and after the Closing Date, the Borrower will deposit, or use best efforts to cause to be deposited, as soon as practicable following the receipt thereof, all Available Cash into the Available Cash Account and (ii) on and after the Fifth Amendment Initial Funding Date, the Borrower will deposit, or use best efforts to cause to be deposited, as soon as practicable following the receipt thereof, all Fifth Amendment Available Cash into the Fifth Amendment Available Cash Account, in each case, in accordance with the terms of this Agreement.
Section 5.18 Lender Calls 1 change
  1. Section 5.18. Lender Calls. Starting with the fiscal quarter ended September 30, 2024, at the request of any Lead Lender, participate in one conference call in each fiscal quarter with the Administrative Agent and the Lenders, such calls to be held at such time as may be requested by the Lender Representative after the annual or quarterly financial statements with respect to the Borrower are to be delivered pursuant to Sections 5.04(a) and (b), to review the financial results and the financial condition of the Borrower and its Subsidiaries.
Section 5.19 Collateral Access Agreements 1 change
  1. Section 5.19. Collateral Access Agreements. Within one hundred twenty (120) days (or such later date as the Lender Representative may agree) after the execution of any Data Center Lease/License by the Borrower or its Subsidiaries, to the extent not previously delivered, the Borrower shall deliver to the Administrative Agent, at the Borrower’s expense (unless such expense is reasonably determined by the Borrower to exceed $100,000, in which case, such expense may be at the option of the Lenders assumed by the Lenders; provided that such assumption shall be irrevocable for the duration of the applicable Data Center Lease/License and shall not in any respect be deemed to be Obligations under this Agreement or the other Loan Documents) one or more duly executed collateral access agreements (in form and substance acceptable to the Required Lenders), in each case, among the Borrower or such Subsidiary, the Collateral Agent and each third party counterparty to a Data Center Lease/License.
Section 5.20 Post-Closing Obligations 4 changes
  1. (a) No later than thirty (30) days after the Fifth Amendment Initial Funding Date (or such later date as the Lender Representative may agree), the Borrower shall establish (i) the Fifth Amendment Liquidity Account, (ii) the Fifth Amendment Other Proceeds Account and (iii) the Fifth Amendment Distribution Reserve Account.
  2. (b) (a) The Borrower shall, as soon as practicable but in no event later than sixty (60) days after the ClosingFifth Amendment Initial Funding Date (or such later date as the Lender Representative may agree) deliver to the Administrative Agent a duly executed Control Agreement with respect to each Collateralthe (i) Fifth Amendment Liquidity Account, (except with respect to the Available Cashii) Fifth Amendment Other Proceeds Account) and (iii) Fifth Amendment Distribution Reserve Account, in each case, between the Borrower, the Collateral Agent and each depositary bank at which each such Collateral Account is located.
  3. (c) (b) No later than one hundred twenty (120) days after the ClosingFifth Amendment Initial Funding Date (or such later date as the Lender Representative may agree), except to the extent that the Borrower, the Collateral Agent (at the direction of the Required Lenders or the Fifth Amendment Required Lenders, as applicable) and the applicable third party counterparty to a Data Center Lease/License have previously executed a collateral access agreement with respect to such Data Center Lease/License, the Borrower shall use its best efforts to deliver to the Administrative Agent, at the Borrower’s expense (unless such expense is reasonably determined by the Borrower to exceed $100,000, in which case, such expense may be at the option of the Lenders be assumed by the Lenders; provided that such assumption shall be irrevocable for the duration of the applicable Data Center Lease/License, shall be set forth in writing pursuant to an agreement reasonably acceptable to the Borrower and, notwithstanding anything in this Agreement or the other Loan Documents to the contrary, the costs and expenses assumed by the Lenders and the expenses of the Lenders incurred in connection with such assumption shall not be reimbursable by the Borrower or its Subsidiaries and shall not in any respect be deemed to be Obligations under this Agreement or the other Loan Documents) one or more duly executed collateral access agreements (in form and substance acceptable to the Required Lenders), in each case, among the Borrower, the Collateral Agent and each third party counterparty to a Data Center Lease/License entered into on or prior to Closing Datethe Fifth Amendment Initial Funding Date and in connection with any Fifth Amendment Contracts.
  4. (d) No later than one hundred twenty (120) days after the Fifth Amendment Effective Date (or such later date as the Lead Lenders may agree), the Borrower shall deliver or cause to be delivered amendments to any applicable Foreign Security Documents, local counsel opinions with respect thereto, and copies of each certificate, filing, financing statement and evidence that all other actions, recordings and filings required in connection with such amendments to the Foreign Security Documents, in each case, as requested by the Administrative Agent (acting at the direction of the Fifth Amendment Required Lenders) or the Lead Lenders.
Section 5.21 GPU Clusters 1 change
  1. Section 5.21. GPU Clusters. The Borrower and its Subsidiaries shall (a) use its commercially reasonable efforts to cause the applicable customer with respect to any IG Contract or, Non-IG Contract or Fifth Amendment Contract, as applicable, to promptly accept the applicable GPU Clusters with respect to such IG Contract or, Non-IG Contract or Fifth Amendment Contract, as applicable, in accordance with the terms of the applicable IG Contract or, Non-IG Contract or Fifth Amendment Contract and (b) promptly provide invoices to such customer for the Services rendered under the applicable IG Contract or, Non-IG Contract or Fifth Amendment Contract in accordance with the terms thereof.
Section 5.22 Serial Numbers 1 change
  1. Section 5.22. Serial Numbers. The Borrower shall provide to the Lenders within sixty (60) days after the date of each Borrowing, with respect to any GPU Servers acquired with the proceedings of such Borrower, (x) the serial numbers of such acquired GPU Servers (“GPU Level Reporting”) and (y) if GPU Level Reporting is not available, the serial numbers with respect to the applicableracks of such acquired GPU Servers (if any) that were acquired by the Borrower or its Subsidiaries with the proceeds of such Borrowing.”Rack Level Reporting”); provided that with respect to any such acquired GPU Server for which only Rack Level Reporting is provided, to the extent that after the delivery of such Rack Level Reporting, the Borrower or any Obligor receives a document that lists the serial number for any such GPU Server, the Borrower shall promptly (but in any event, no less than fifteen (15) days after receipt thereof) deliver such document setting forth the serial number to the Administrative Agent.
Section 5.23 Additional Obligors 4 changes
  1. (a) The Borrower shall provide the Lenders with ten (10) Business Days’ (or such shorter time as the Lead Lenders may agree in their sole discretion) notice prior to forming or acquiring any new Subsidiary.
  2. (c) If any Person shall have become a Subsidiary of the Borrower, then the Borrower shall, within sixty (60) days thereafter (or such later date as the Lead Lenders may agree), cause such Subsidiary to:
  3. (ii) (if not already so delivered) deliver certificates (or the foreign equivalent thereof, as applicable) representing the Ppledged Iinterests of each such Subsidiary (if any) held by the Borrower or Obligor, as applicable, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments evidencing the Pledged Debt owing by such Subsidiary to the Borrower or any Obligor indorsed in blank to the Collateral Agent, together with, if applicable, supplements to the Collateral Agreement; provided that any Excluded Property shall not be required to be pledged as Collateral and
  4. (d) As of the Fifth Amendment Effective Date, the GPU Servers and GPU Clusters owned by each such GPU Obligor are set forth on Schedule 5.23(d), which may be amended from time to time with the Lead Lenders consent.
Section 5.24 Warranty Coverage 1 change
  1. Section 5.24. Warranty Coverage. On and after the Second Amendment Effective Date and solely to the extent the applicable Master Services Agreement has a term longer than three (3) years, the Borrower or the Obligors will maintain extended manufacturer’s warranty coverage on the GPU Servers acquired by the Borrower or the Obligors, as applicable, after the Second Amendment Effective Date with proceeds of the LoansDelayed Draw Loans or the Fifth Amendment Delayed Draw Loans (any such GPU Servers acquired with the proceeds of the Fifth Amendment Delayed Draw Loans, the “Fifth Amendment Acquired GPU Servers”), as applicable (to the extent such LoansDelayed Draw Loans or Fifth Amendment Delayed Draw Loans, as applicable, are drawn on or after the Second Amendment Effective Date or the Fifth Amendment Effective Date, respectively), such that after giving effect to such extended manufacturer’s warranty coverage, the total manufacturer’s warranty coverage with respect to such GPU Servers shall be no shorter than the term of the applicable Master Services Agreement with respect to such GPU Servers; provided that, the Borrower and the Obligors shall be required to maintain extended manufacturer’s warranty coverage solely with respect to any such GPU Servers to the extent the total fees, costs, premiums or similar expenses to be incurred in connection with such extended manufacturer’s warranty coverage would not exceed the amount that is (I) with respect to any GPU Servers other than the Fifth Amendment Acquired GPU Servers, equal to the product of (x) two (2) percent and (y) the total costs of such GPU Servers, individually and in the aggregate and (II) with respect to the Fifth Amendment Acquired GPU Servers, equal to the product of (x) two (2) percent and (y) the total costs of such Fifth Amendment Acquired GPU Servers, individually and in the aggregate.
Section 5.26 Perfection Certificate 1 change
  1. Section 5.26. Perfection Certificate. The Borrower shall, as soon as practicable but in no event later than June 13January 27, 20256 (or such later date as the Lead Lenders may agree) deliver to the Administrative Agent a duly executed perfection certificate satisfactory to the Lead Lendersin form and substance substantially consistent with the Amended and Restated Perfection Certificate delivered on July 14, 2025.
Section 5.27 Additional Contracts 1 change
  1. Section 5.27. Additional Contracts. The Borrower shall, on the Fifth Amendment Effective Date, deliver to the Administrative Agent a copy of a complete and accurate Schedule 5.27 setting forth, as of the Fifth Amendment Effective Date, each (a) Additional Services Agreement and (b) Fifth Amendment Contract, which Schedule 5.27 may be amended, supplemented and/or otherwise modified from time to time by the Borrower with the consent of the Lead Lenders.
Section 6.04 Investments, Loans and Advances 2 changes
  1. (e) any Investments made in connection with a Permitted Takeout; provided, that, for avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility.
  2. Notwithstanding the foregoing or any other term of this Agreement or any Loan Document, no Investments, sales, leases, sale and leaseback transactions, Dispositions or other transfers of Material Intellectual Property, shall be to any non-grantor Affiliate of a grantor. Notwithstanding the foregoing or any other term of this Agreement or any Loan Document, for avoidance of doubt, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility.
Section 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions 2 changes
  1. (d) after the expiration of the stated term of a Master Services Agreement (and not as a result of a breach or default thereunder), Dispositions of Uncontracted Infrastructure corresponding to such expired Master Services Agreement; provided that (i) 100% of the Net Proceeds received in connection with such Disposition shall be in the form of cash or Cash Equivalents and in an amount greater than or equal to the IG Funding Date GPU Amount, Non-IG Funding Date GPU Amount and/or Non-IGFifth Amendment Funding Date GPU Amount (as applicable) allocated in respect of such Uncontracted Infrastructure minus any amounts of Loans prepaid with respect to such allocated IG Funding Date GPU Amount and/or, Non-IG Funding Date GPU Amount and/or Fifth Amendment Funding Date GPU Amount prior to the date of such Disposition and (ii) 100% of the Net Proceeds of such Disposition are applied to prepay the Loans in accordance with Section 2.09(b)(i) (including the payment of the Applicable Premium) and Section 2.09(d) (including the payment of the Applicable Premium);
  2. (f) any Dispositions made in connection with a Permitted Takeout; provided, that, for avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility.
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, the Fifth Amendment 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);
  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(l) or Section 4.03(o), as applicable, 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, (ii) the Borrower is in compliance with the requirements under Section 6.12 and Section 6.13 and (iii) the Borrower shall have delivered a certificate of a Responsible Officer of the Borrower certifying that, immediately after giving effect to such Restricted Payment, on a pro forma basis, the Borrower projects that the amount of cash and Cash Equivalents deposited in the Collateral Accounts shall be in an amount that will satisfy the projected payments required to be made pursuant to Section 2.20(b)(i)-(iv) on the immediately succeeding Quarterly Payment Date (it being understood that such projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such projections and the actual results may vary from such projections), Restricted Payments made in connection with the Conductor Buyback Transactions;
  4. (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(d) and Section 6.13(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 99% of the GPU Servers deployed (pursuant to the model delivered to the Lenders prior to the Closing Date) in connection with the Master Services Agreements (excluding any Master Services Agreement consummated within 90 days prior to the end of such fiscal quarter) during such fiscal quarter have been invoiced to the applicable customers under the Master Services Agreements 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); and
  5. (f) following the Qualified Collateral Replenishment Period, any Restricted Payments made in connection with a Permitted Takeout, so long as the Borrower shall have delivered a certificate of a Responsible Officer of the Borrower certifying that, immediately after giving effect to such Restricted Payment, on a pro forma basis, the Borrower projects that the amount of cash and Cash Equivalents deposited in the Collateral Accounts shall be in an amount that will satisfy the projected payments required to be made pursuant to Section 2.20(b)(i)-(iv)Section 2.20(b)(i)-(iv) on the immediately succeeding Quarterly Payment Date (it being understood that such projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such projections and the actual results may vary from such projections).
Section 6.07 Transactions with Affiliates 2 changes
  1. (c) any payments consisting of Delayed Draw Loans made for the purposes of paying invoices from the Parent to the Borrower or any Subsidiary of the Borrower or from the Borrower to any Subsidiary of the Borrower delivered to the Administrative Agent pursuant to Section 4.02(l) or Section 4.03(o), as applicable;
  2. (d) any customary transactions effected as part of a Permitted Takeout; provided, that, for avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility. and
Section 6.08 Business of the Borrower; Joint Ventures 1 change
  1. (b) Enter into any joint venture (except in connection with a Permitted Takeout; provided, that, for avoidance of doubt, notwithstanding anything set forth herein, a Permitted Takeout shall not be permitted with respect to the Fifth Amendment Delayed Draw Loan Facility.).
Section 6.10 Material Project Contracts 1 change
  1. Notwithstanding the foregoing or any other term of this Agreement or any Loan Document, (x) on and after the Second Amendment Effective Date, if any change to any Master Services Agreement, including any related documentation and supplemental purchase orders, together with all other changes to any other Master Services Agreements in the aggregate after the Second Amendment Effective Date, implies a $200 million reduction in the Contract Value in the aggregate, any such change shall be deemed material with respect to this Section 6.10 and (y) on and after the Fifth Amendment Effective Date, any Excluded GPU Server may be used in an Excluded GPU Transaction.
Section 6.13 Fifth Amendment Financial Covenants 14 changes
  1. Section 6.13. Fifth Amendment Financial Covenants
  2. (a) Fifth Amendment Minimum Liquidity.
  3. (i) Fifth Amendment Minimum Liquidity Covenant.
  4. (A) Subject to Section 6.13(a)(ii) and Section 7.03, commencing on and after the Fifth Amendment Initial Funding Date, the Borrower shall at all times thereafter satisfy the Fifth Amendment Liquidity Requirement and the Borrower shall deliver to the Administrative Agent (which shall furnish to the Lenders) on or prior to the last Business Day of each fiscal quarter ended following the first Quarterly Payment Date to occur after the Fifth Amendment Initial Funding Date, a certificate, signed by a Responsible Officer of the Borrower, certifying as to the Borrower’s compliance with the requirements set forth in this Section 6.13. Upon Payment in Full, funds available in the Fifth Amendment Liquidity Account shall, at the discretion of the Borrower, be transferred to the Borrower.
  5. (B) The Collateral Agent (A) is hereby authorized to (and shall upon the occurrence of any drawing right set out in clause (2) or clause (4) below upon the direction of the Lender Representative), draw on any Fifth Amendment Liquidity Reserve L/C at any time if (1) the Borrower fails to meet the Fifth Amendment Liquidity Requirement in accordance with the terms this Section 6.13
  6. (following the Liquidity Cure Deadline set forth in Section 6.13(a)(ii)), (2) a Fifth Amendment Liquidity Reserve L/C is not renewed or replaced at least thirty (30) days prior to its stated maturity date, (3) an Event of Default has occurred and is continuing or (4) the issuer thereof ceases to be an Acceptable Issuer and a replacement letter of credit has not been obtained from an Acceptable Issuer within the earlier of (x) thirty (30) days after such downgrade and (y) five (5) Business Days prior to its stated maturity date, in each case, in accordance with the terms of such Fifth Amendment Liquidity Reserve L/C and (B) shall cause the proceeds of such draw to be deposited in the Fifth Amendment Liquidity Account.
  7. (ii) Cure.
  8. (A) Notwithstanding anything herein to the contrary, in the event that the Borrower fails to comply with the requirements of the covenant under Section 6.13(a)(i) from and after the date of such non-compliance until the expiration of the fifteenth (15th) Business Day subsequent to such date of non-compliance (such date, the “Fifth Amendment Liquidity Cure Deadline”), the Borrower may, upon written notice to the Administrative Agent, receive cash contributions to the Equity Interests of the Borrower (a “Fifth Amendment Liquidity Cure Contribution”) made, directly or indirectly, to the Borrower and deposited in the Fifth Amendment Liquidity Account on or prior to the applicable Fifth Amendment Liquidity Cure Deadline and the Borrower’s compliance with Section 6.13(a)(i) as of the applicable date shall be recalculated by increasing its Unrestricted Cash by an amount equal to the net cash proceeds of all such Fifth Amendment Liquidity Cure Contributions (the “Fifth Amendment Liquidity Cure Right”).
  9. (B) If, after giving effect to the foregoing recalculation, the Borrower shall then be in compliance with Section 6.13(a)(i), the Borrower shall be deemed to have satisfied the requirements of Section 6.13(a)(i) as of the relevant date of determination with the same effect as though there had been no failure to comply therewith, and any applicable breach or default of Section 6.13(a)(i) that had occurred shall be deemed cured for the purposes of this Agreement.
  10. (C) Notwithstanding anything herein to the contrary, from and after the date on which the Borrower provides notice of its intention to use the Fifth Amendment Liquidity Cure Right, (A) no Default or Event of Default shall be deemed to have occurred or be continuing with respect to Section 6.13(a)(i) unless the requisite Fifth Amendment Liquidity Cure Contributions are not received by the Borrower on or prior to the Fifth Amendment Liquidity Cure Deadline and (B) the Administrative Agent shall not exercise any applicable remedy under this Agreement, the Loan Documents or applicable Law on the basis of an Event of Default caused by the failure to comply with Section 6.13(a)(i) until the earlier of (x) the passing of the Fifth Amendment Liquidity Cure Deadline without exercise and satisfaction of the Fifth Amendment Liquidity Cure Right and (y) the date the Borrower confirms to the Administrative Agent in writing that it does not intend to exercise the Fifth Amendment Liquidity Cure Right.
  11. (D) Notwithstanding anything herein to the contrary, the Fifth Amendment Liquidity Cure Contributions shall not be given effect in excess of the amount required for purposes of complying the covenant set forth in Section 6.13(a)(i).
  12. (b) Fifth Amendment Funding Date GPU Amount: Commencing on the Fifth Amendment Initial Amortization Payment Date, the Borrower will not permit the aggregate amount of the outstanding Fifth Amendment Delayed Draw Loans to exceed the aggregate Fifth Amendment Funding Date GPU Amount with respect to such Fifth Amendment Delayed Draw Loans as of any Quarterly Payment Date.
  13. (c) Fifth Amendment Contract Coverage Ratio: Commencing on the Fifth Amendment Initial Amortization Payment Date, the Borrower will not permit the Fifth Amendment Contract Coverage Ratio to be less than 1.40:1.00, as of any Quarterly Payment Date.
  14. (d) Fifth Amendment Billing Event: With respect to any Fifth Amendment Master Services Agreement, as of the last day of any monthly billing period (commencing on the last day of the first monthly billing period in which 98% of the Infrastructure has been deployed pursuant to such Fifth Amendment Master Services Agreement), the Borrower shall cause at least 85% of the total monthly services under such Fifth Amendment Master Services Agreement to be invoiced to and paid by the applicable customer pursuant to the terms of such Fifth Amendment Master Services Agreement.
Section 7.01 Events of Default 4 changes
  1. (b) default shall be made in the payment or a mandatory prepayment that has not been waived in accordance with the terms hereof of any (i) principal of any Loan when and as the same is due and payable or (ii) amount under the Parent Guarantee, and Pledge Agreement, the Subsidiary Guarantee, Pledgethe Collateral Agreement or any other Security Document when and as the same is due and payable, in each case, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise; provided that it shall not be an Event of Default under this clause (b) if the Cure Right is exercised and satisfied in accordance with Section 7.03 on or prior to the Anticipated Cure Deadline;
  2. (c) default shall be made in the payment of any interest on any Loan, reimbursement obligation or any other amount (other than an amount referred to in Section 7.01(b) above) due under any Loan Document (other than the Parent Guarantee, and Pledge Agreement, the Subsidiary Guarantee, Pledgethe Collateral Agreement or any other Security Document, which is covered under clause (b) above),
  3. (d) default shall be made in the due observance or performance by the Borrower or any of its Subsidiaries of any covenant or agreement contained in Section 5.01(a), Section 5.05(a), Section 5.08, Section 5.12, Section 5.23(c) or in Article VI; provided that it shall not be an Event of Default under this clause (d) if (A) the Liquidity Cure Right is exercised and satisfied in accordance with Section 6.12(d)(ii) on or prior to the Liquidity Cure Deadline or (B) the Fifth Amendment Liquidity Cure Right is exercised and satisfied in accordance with Section 6.13(a)(ii) on or prior to the Fifth Amendment Liquidity Cure Deadline; provided, howeverfurther, that none of the events described in this Section 7.01(d) will be an Event of Default as it relates to a breach of the financial covenants under (1) Sections 6.12(b), 6.12(c) and , 6.12(e) and 6.13(b) if, (i) within ninety (90) days after the earlier of any Responsible Officer of the Borrower or any Subsidiary having knowledge thereof or receiving notice thereof from the Administrative Agent (or such longer time period as the Lender Representative (or, to the extent that Blackstone, together with the Lead Lenders and their Affiliates, hold less than 25% of the aggregate Commitments and outstanding Loans, the Required Lenders) may agree), the Borrower or any of its Subsidiaries enters into additional IG Contracts and Non-IG, with respect to the Fifth Amendment Delayed Draw Loans, Fifth Amendment Contracts, as applicablein each case, such that, after giving pro forma effect thereto, the Borrower is in compliance with such applicable financial covenant or (ii) if the Cure Right is exercised and satisfied in accordance with Section 7.03 on or prior to the Anticipated Cure Deadline and (2) Section 6.12(f) and Section 6.13(d) if the Cure Right is exercised and satisfied in accordance with Section 7.03 on or prior to the Anticipated Cure Deadline; provided, further, that any default under Sections 6.12(a)-(f) shall not constitute an Event of Default with respect to the Fifth Amendment Delayed Draw Loans and the Fifth Amendment Delayed Draw Loans may not be accelerated as a result thereof until the date on which the Delayed Draw Loans (if any) have been accelerated by the Existing Required Lenders; provided, further, that any default under Section 6.13(a)-(d) shall not constitute an Event of Default with respect to the Delayed Draw Loans and the Delayed Draw Loans may not be accelerated as a result thereof until the date on which the Fifth Amendment Delayed Draw Loans (if any) have been accelerated by the Fifth Amendment Required Lenders.
  4. (e) default shall be made in the due observance or performance by the Borrower, its Subsidiaries or the Parent of any covenant or agreement of the Borrower, such Subsidiary or the Parent, as applicable, contained in any Loan Document (other than those specified in Section 7.01(a), 7.01(b), 7.01(c) and 7.01(d)) after the earlier to occur of (i) the date that a Responsible Officer of the Borrower, any Subsidiary or the Parent, as applicable, obtains knowledge thereof or (ii) the receipt of notice thereof to the Borrower, any Subsidiary or the Parent from the Administrative Agent or the Required Lenders, and, other than in the case of a default under the Parent Guarantee, and Pledge Agreement, the Subsidiary Guarantee, Pledgethe Collateral Agreement andor any other Security Document, such default shall continue unremedied for a period of thirty (30) days thereafter;
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 (for avoidance of doubt, with respect to the Existing Obligations, Fifth Amendment Obligations and/or all of the Obligations, as applicable): (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 3 changes
  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 or the Borrower fails to comply with the requirement of any financial covenant set forth in Sections 6.12(a)-(c) or, Sections 6.12(e)-(f) or Sections 6.13(b)-(d), then from the first day of the applicable fiscal quarter with respect to the applicable Quarterly Payment Date (with respect to a Cash Shortfall Event) or fiscal quarter (with respect to such financial covenant) until the expiration of the thirtieth (30th) day following the applicable Quarterly Payment Date (with respect to a Cash Shortfall Event) or the fifteenth (15th) day following the date financial statements referred to in Sections 5.04(a) or (b) are required to be delivered in respect of such fiscal period (with respect to such financial covenant) for which such financial covenant is being measured (the last day of such period being the “Anticipated Cure Deadline”), such Cash Shortfall Event or financial covenant and corresponding Event of Default 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
  2. equity in a form acceptable to the Lender Representative) in amount necessary to cure such Cash Shortfall Event or financial covenant, as applicable, on or prior to the Anticipated Cure Deadline and (“Cure Equity”) by applying 100% of the Cure Equity to (1) with respect to a Cash Shortfall Event, prepay the Loans pursuant to Section 2.08(a), (2) with respect to the financial covenant set forth in Section 6.12(e) or Section 6.13(b) and any corresponding Event of Default, prepay the Loans in accordance with Section 2.09(a) and Section 2.09(d), (3) with respect to the financial covenants set forth in Sections 6.12(a)-(c) and Section 6.13(c) and any corresponding Event of Default, be deemed to increase the amounts set forth in clause (a) of the definition of “IG Contract Coverage Ratio” and “Non-IG Contract Coverage Ratio” (in each case with respect to the financial covenant set forth in Section 6.12(a)) and, clause (b) of the definitions of “Maximum Non-IG Collateral Ratio” and “Maximum Non-IG Revenue Ratio” (with respect to the financial covenants set forth in Sections 6.12(b)-(c), as applicable) and clause (a) of the definition of “Fifth Amendment Contract Coverage Ratio” (with respect to the financial covenant set forth in Section 6.13(c)), as applicable, with respect to such applicable fiscal quarter for the purpose of determining compliance with the covenants set forth in Section 6.12 and Section 6.13 at the end of such fiscal quarter and the applicable subsequent periods and (4) with respect to the financial covenants set forth in Section 6.12(f) and Section 6.13(d) any corresponding Event of Default, be deemed to increase the amounts required to be invoiced and/or paid, as applicable, under such Master Services Agreement to an amount that is at least 85% of the total monthly services under such Master Services Agreement provided with respect to the applicable monthly billing period (it being agreed and understood that (A) at the option of the Borrower or the Parent, such Cure Equity may be deposited into the Available Cash Account, or the Fifth Amendment Available Cash Account, as applicable (B) a single Cure Equity may be used to cure more than one of the financial covenants set forth in Sections 6.12(a)-(c) or (c), Sections 6.12(e)-(f) or Sections 6.13(b)-(d) and a Cash Shortfall Event and (C) to the extent a Cure Equity is used with respect to a Cash Shortfall Event relating to any fiscal quarter, such Cure Equity may also be used to cure one of the financial covenants set forth in Sections 6.12(a)-(c) or (c), Sections 6.12(e)-(f) or Sections 6.13(b)-(d) with respect to such fiscal quarter, without giving regards to the timing of the application of such Cure Equity).
  3. (b) Commencing on the applicable Quarterly Payment Date or fiscal quarter until the Anticipated Cure Deadline, the Lenders (i) shall not be permitted to accelerate Loans held by them, to terminate the Commitments held by them or to exercise remedies against the Collateral on the basis of an Event of Default resulting from a Cash Shortfall Event or a breach of any financial covenant set forth in Sections 6.12(a), -(c), Sections 6.12(e)-(f) or Sections 6.13(b), -(cd ) and (e), as applicable, and (ii) shall not be obligated to make any Credit Extension under the Fifth Amendment Delayed Draw Loan Facility until the applicable Cash Shortfall Event (solely in respect of Section 2.08(b)) or such financial covenant breach is no longer continuing.
Section 7.04 Application of Funds 16 changes
  1. (a) any amounts or other distributions received on account of the Existing Obligations, including any proceeds of Existing Collateral, shall be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):
  2. First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including counsel fees payable under Section 8.12 and amounts payable under Sections 2.13 and 2.15) payable to the Administrative Agent, the Collateral Agent and the Depositary Bank in their respective capacities as such;
  3. Second, to payment of that portion of the Existing Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including
  4. counsel fees payable under Section 8.12 and amounts payable under Sections 2.13 and 2.15), ratably among them in proportion to the amounts described in this clause Second payable to them;
  5. Third, to payment of that portion of the Existing Obligations constituting accrued and unpaid interest on the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Third payable to them;
  6. Fourth, to payment of that portion of the Existing Obligations constituting unpaid principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them;
  7. Fifth, to the payment of all other Existing Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date;
  8. Sixth, to the payment of all Fifth Amendment Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Fifth Amendment Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
  9. Last, the balance, if any, after Payment in Full, to the Borrower or as otherwise required by Laws; and
  10. (b) any amounts or other distributions received on account of the Fifth Amendment Obligations, including any proceeds of Fifth Amendment Collateral, shall be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):
  11. First, to payment of fees, indemnities, expenses and other amounts (other than principal and interest, but including counsel fees payable under Section 8.12 and amounts payable under Sections 2.13 and 2.15) due and payable to the Administrative Agent, the Collateral Agent and the Depositary Bank in their respective capacities as such;
  12. Second, to payment of that portion of the Fifth Amendment Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including counsel fees payable under Section 8.12 and amounts payable under Sections 2.13 and 2.15), ratably among them in proportion to the amounts described in this clause Second payable to them;
  13. Third, to payment of that portion of the Fifth Amendment Obligations constituting accrued and unpaid interest on the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Third payable to them;
  14. Fourth, to payment of that portion of the Fifth Amendment Obligations constituting unpaid principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them;
  15. Fifth, to the payment of all other Fifth Amendment Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
  16. Sixth, to the payment of all Existing Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Existing Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Section 8.03 Liability of Agents 1 change
  1. or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law. In no event shall any Agent be responsible for any failure or delay in the performance of any act or obligation hereunder arising out of or caused by, directly or indirectly, force majeure events beyond its control, including any provision of any law or regulation or any act of any governmental authority, strikes, work stoppages, accidents, acts of war, other military disturbances or terrorism, earthquales, fire, flood, sabotage, epidemics, pandemics, riots, nuclear or naturual catastrophes or acts of God, labor disputes, acts of civil or military authority, or the unavailability of the Federal Reserve Board wire systems and interruptions, loss or malfunctions of utilities, communication facilities or computer (software and hardware) services (it being understood that the Agents shall use reasonable efforts which are consistent with accepted practices in the baking industry to resume performance as soon as pracitcable under the circumstances).
Section 8.05 Delegation of Duties 1 change
  1. Section 8.05. Delegation of Duties. The Agents may perform or execute any and all of its duties and exercise its rights and powers under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents or of exercising any rights and remedies thereunder) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel, other consultants and experts of its own selection concerning all matters pertaining to such duties. The Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Agent-Related Persons of the Agents and any such subagent, and shall apply to their respective activities in connection with the syndication of the Facilities and the Fifth Amendment Delayed Draw Loan Facility as well as activities as an Agent. The Agents shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final non-appealable judgment of a court of competent jurisdiction).
Section 8.17 Lead Lenders and the Co-Lead Investors 1 change
  1. Section 8.17. Lead Lenders and the Co-Lead Investors. The Borrower hereby appoints Blackstone Tactical Opportunities Advisors L.L.C., Blackstone Alternative Credit Advisors LP, Blackstone Private Investments Advisors L.L.C. and Blackstone Alternative Solutions L.L.C. and Magnetar Financial LLC as Co-Lead Investors in connection with the Loans. It is further agreed that Blackstone Tactical Opportunities Advisors L.L.C., Blackstone Alternative Credit Advisors LP, Blackstone Private Investments Advisors L.L.C. and Blackstone Alternative Solutions L.L.C. shall have “left” placement in any documentation used in connection with the Facilities. or the Fifth Amendment Delayed Draw Loan Facility, as applicable. The Lead Lenders and the Co-Lead Investors shall have no right, power, obligation, liability, responsibility, or duty under this Agreement other than those set forth herein and those applicable to all Lenders as such. Without limiting the foregoing, the Lead Lenders and the Co-Lead Investors so identified shall not have or be deemed to have any fiduciary relationship with any Lender. Any decision to be determined by the Lead Lenders shall be made by all of the Lead Lenders unless a Lead Lender affirmatively elects to abstain. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
Section 8.18 Depositary Bank 3 changes
  1. (a) Each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and authorizes U.S. Bank National Association to act as the Depositary Bank for purposes of administering the Available Cash Account and the Fifth Amendment Available Cash Account, together with such powers and discretion as are reasonably incidental thereto. The Borrowers hereby appoint U.S. Bank National Association and U.S. Bank National Association hereby agrees, to act as “securities intermediary” (within the meaning of Section 8 102(a)(14) of the UCC) with respect to the Available Cash Account and the Fifth Amendment Available Cash Account and as a “bank” (within the meaning of 9-102(a) of the UCC) with respect to the Available Cash Account and the Fifth Amendment Available Cash Account. The Depositary Bank is the agent and bailee of the Collateral Agent (such bailments being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the UCC) for the purpose of receiving payments contemplated hereunder. This Agreement constitutes a “security agreement” as defined in Article 9 of the UCC.
  2. (b) The Borrower, the Collateral Agent and the Depositary Bank agree that, for purposes of the UCC, notwithstanding anything to the contrary contained in any other agreement relating to the establishment and operation of the Available Cash Account and the Fifth Amendment Available Cash Account, the jurisdiction of the Depositary Bank (in its capacity as the securities intermediary and bank) is the State of New York and the laws of the State of New York govern the establishment and operation of the Available Cash Account and the Fifth Amendment Available Cash Account.
  3. (c) The Depositary Bank shall have no obligations other than to administer the Available Cash Account and the Fifth Amendment Available Cash Account in accordance with the terms hereof. The Depositary Bank shall not, by reason of this Agreement, be a trustee for or owe a fiduciary duty to any Secured Party (and no implied duties, covenants, functions or responsibilities shall be read into this Depositary Agreement or otherwise claimed to exist by any Person against the Depositary Bank). Without limiting the generality of the foregoing, the Depositary Bank shall take all actions as the Borrower, the Calculation Agent or the Collateral Agent shall direct it to perform in accordance with the express provisions of this Agreement, and the Depositary Bank shall have no liability for any failure or delay in taking any action hereunder attributable to a failure or delay of the Calculation Agent, Collateral Agent or the Borrower, as applicable, in providing any such direction. The Depositary Bank shall exercise the same degree of care in administering the funds held in the Available Cash Account and the Fifth Amendment Available Cash Account and the investments purchased with such funds in accordance with the terms of this Agreement as the Depositary Bank exercises in the ordinary course of its day-to-day business in administering other funds and investments for its own account and as required by applicable Law. The Depositary Bank shall not be required to invest any funds held hereunder except as directed in this Agreement or otherwise agreed in writing between the Borrower and the Depositary Bank (which shall not require the consent of any Lender). The Depositary Bank shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers. The Depositary Bank shall not be charged with knowledge of any Event of Default unless the Depositary Bank has received written notice from the Collateral Agent or the Borrower that an Event of Default has occurred and is continuing. The Depositary Bank shall have no obligation to request the deposit of any funds referenced herein into the Available Cash Account or the Fifth Amendment Available Cash Account. The Depositary Bank shall have no obligation to monitor compliance by the Borrower or any of its Subsidiaries with any requirements of, or obligations under, any Loan Document. The Depositary Bank shall have no duty to calculate any amounts to be distributed under the terms of this Agreement and shall have no liability for the accuracy, or compliance with the terms of any Loan Document, of any such calculations provided to it.
Section 9.01 Notices 15 changes
  1. 290 W Mt Pleasant Ave, Suite 41010 Eisenhower Pkwy
  2. Roseland, New Jersey Livingston, NJ 0706839
  3. 1011 Centre Road, Suite 203
  4. GlobalDelle Donne Corporate TrustCenter
  5. Wilmington, DE 19805
  6. 214 N. Tryon Street, 27th Floor
  7. Charlotte, NC 28202
  8. Attention: James A. Hanlely (CoreWeave Administrator)
  9. Email: james.hanley1@usbank.com; agency.services@usbank.com; james.hanley2@usbank.com
  10. 100 Wall Street, Suite 60006th Floor
  11. Attention: James HallFernando Moreyra (CoreWeave Administrator)
  12. Email: james.hall2Fernando.moreyra@usbank.com
  13. 100 Wall Street, Suite 60006th Floor
  14. Attention: James HallFernando Moreyra (CoreWeave Administrator)
  15. Email: james.hall2Fernando.moreyra@usbank.com
Section 9.05 Expenses; Indemnity 1 change
  1. damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence or willful misconduct of such Indemnitee or of any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Loan Document by such Indemnitee (other than the Agents) or of any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role under any Facility or the Fifth Amendment Delayed Draw Loan Facility, as applicable, and other than any claims arising out of any act or omission of the Borrower or its Affiliates). Neither any Indemnitee nor the Borrower and its Affiliates shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor, to the extent permissible under applicable Law, shall any Indemnitee, Borrowers or its Affiliates have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof) (other than, in the case of the Borrower, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses in each case subject to the indemnification provisions of this Section 9.05(b)). In the case of action, suit, litigation, investigation, or proceeding to which the indemnity in this action, suit, litigation, investigation, proceeding or any governmental or regulatory action Section 9.05(b) applies, such indemnity shall be effective whether or not such action, suit, litigation, investigation, or proceeding is brought by the Borrower, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 9.05 shall be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 9.05(b). The agreements in this 9.05(b) shall survive the resignation or removal of the Administrative Agent or Collateral Agent, the replacement of any Lender and Payment in Full. For the avoidance of doubt, this Section 9.05(b) shall not apply to Taxes, except any Taxes that represent liabilities, obligations, losses, damages, penalties, claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claims.
Section 9.16 Confidentiality 1 change
  1. for dissemination of such type of information, (vi) [reserved], (vii) on a confidential basis to (x) any rating agency when required by such rating agency in connection with rating the Borrower or the Loans (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any information relating to the Borrower and its Subsidiaries received by it) or (y) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities or the Fifth Amendment Delayed Draw Loan Facility, as applicable; and (viii) with the prior written consent of the Borrower. In addition, each of the Agents and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Credit Extensions. If a Lender or an Agent is requested or required to disclose any such information (other than to its bank examiners and similar regulators, or to internal or external auditors) pursuant to or as required by law or legal process or subpoena, to the extent reasonably practicable it shall give prompt notice thereof to the Borrower so that the Borrower may seek an appropriate protective order at the Borrower’s sole expense and such Lender or Agent will cooperate with the Borrower (or the applicable Affiliate) in seeking such protective order. Notwithstanding the foregoing, with respect to any Lender that is an investment company subject to the reporting requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, such Lender may, to the extent required by Laws, identify the Borrower, its industry, the type of loans and commitments held by such Lender, the value (and valuation methodology) of such Lender’s holdings in Borrower, other customary information consistent with such Lender’s customary practice and other required information in accordance with its Securities Exchange Act of 1934 and/or Investment Company Act of 1940 reporting practices, and such Lender shall not be required to notify the Borrower of such disclosures. Without limitation of anything in this Section 9.16, it is agreed and understood that none of the Agents or Lender shall, nor shall they permit any of their Affiliates to, make any press release or similar disclosure concerning this Agreement, the Loan Documents or the transactions contemplated hereby or thereby without the prior written consent of the Borrower.
Section 9.27 Further Amendments 3 changes
  1. Section 9.27. Further Amendments. The Fifth Amendment Delayed Draw Loan Lenders hereby agree that any amendment or modification to the definition of “Fifth Amendment Delayed Draw Availability Period” that extends the period therein to a date that is no more than three (3) months after March 31, 2026 shall only require the consent of the Lead Lenders.
  2. [SIGNATURE PAGES FOLLOW INTENTIONALLY OMITTED]
  3. [Signature Pages Omitted]

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