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Amendment redline · 31 December 2024

CoreWeave DDTL 2.0: Limited Waiver and Second 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.

Limited Waiver and Second Amendment (S-1 Ex 10.15) on SEC EDGAR · The deal

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

Provisions changed
359
Sections touched
86
Defined terms added
26
Defined terms deleted
2
Words inserted
8,479
Words deleted
484

Figures

Numbers that changed

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

ProvisionDeleted figuresInserted figures
“Communications”–30 days
Section 1.01 Defined Terms–90 days
“First Amendment Delayed Draw Loan Commitment”–$100,000,000.
“Obligors”–60 days
Section 5.23 Additional Obligors–10 Business Days
Section 5.23 Additional Obligors–60 days
Section 6.10 Material Project Contracts–$200 million

Defined terms

Definitions added, deleted and amended

Added 26

  • Article 55 BRRD
  • Change of Tax Law
  • Domestic Obligor
  • Domestic Security Documents
  • Domestic Subsidiary
  • Excluded Property
  • First Amendment Effective Date
  • First Amendment Delayed Draw Loan Commitment
  • First Amendment Delayed Draw Loan Facility
  • First Amendment Delayed Draw Loans
  • Foreign Obligor
  • Foreign Security Documents
  • Foreign Subsidiary
  • Lead Lenders
  • Obligors
  • Recipient
  • Second Amendment Effective Date
  • Specified Foreign Entities
  • Subsidiary Guarantee
  • Tax Deduction
  • and 6 more below

Deleted 2

  • EEA Resolution Authority
  • UK Resolution Authority

Amended 64

  • Acquisition
  • Additional Services Agreement
  • Affiliated Lender
  • Available Cash
  • Bail-In Action
  • Bank
  • Borrower
  • Capital Expenditures
  • Collateral
  • Collateral Agreement
  • Communications
  • Contract Value
  • Control Agreement
  • Data Protection Laws
  • Distribution Reserve Account
  • EEA Financial Institution
  • ERISA Affiliate
  • ERISA Event
  • Excluded Taxes
  • Foreign Plan
  • and 44 more below

The redline

Every change, provision by provision

Deleted text Inserted text

Opening provisions 2 changes
  1. as amended by that certain First Amendment to Credit Agreement, dated as of August 29, 2024, and as amended by that certain Second Amendment to Credit Agreement, dated as of December 31, 2024
  2. TABLE OF CONTENTSTable of Contents
Section 5.13 1 change
  1. Limited Purpose Status of Borrower and Obligors 895
Section 5.23 2 changes
  1. Section 5.23.
  2. Additional Obligors 98
Section 5.24 2 changes
  1. Section 5.24.
  2. Warranty Coverage 99
Section 5.25 2 changes
  1. Section 5.25.
  2. Payment of Operating Expenses 99
Section 5.26 2 changes
  1. Section 5.26.
  2. Perfection Certificate 99
Section 6.08 1 change
  1. Business of the Borrower; Subsidiaries Joint Ventures 88103
Section 9.26 2 changes
  1. Schedule 3.07(a) Borrower and Subsidiary Information
  2. CREDIT AGREEMENT dated as of May 16, 2024 (as amended, amended and restated, supplemented or otherwise modified, this “Agreement”) COREWEAVE COMPUTE ACQUISITION CO., IV, LLC, a Delaware limited liability company, a Delaware limited liability company (the “Borrower”), the LENDERS party hereto from time to time, U.S. BANK NATIONAL ASSOCIATION, as Depositary Bank (in such capacity, the “Depositary Bank”) U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as administrative agent (in such capacity, together with any successor administrative agent appointed pursuant to the provisions of Article VIII, the “Administrative Agent”), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as collateral agent (in such capacity, together with any successor collateral agent appointed pursuant to the provisions of Article VIII, the “Collateral Agent”), 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., as Lead Lenders (the “Lead Lenders”) and together with Magnetar Financial LLC, Co-Lead Investors (the “Co-Lead Investors”), and the lenders listed on Schedule 2.01, as Lenders.
Section 1.01 Defined Terms 151 changes
  1. “Acquisition” “Acquisition” shall mean the acquisition by the Borrower or any of its Subsidiaries of the Infrastructure.
  2. “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.
  3. “Affiliated Lender” “Affiliated Lender” shall mean, at any time, any Lender that is the Parent or any other Affiliate of the Borrower or any of its Subsidiaries other than (a) the Borrower or any of its Subsidiaries or (b) any natural person.
  4. “Article 55 BRRD” “Article 55 BRRD” shall mean Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
  5. “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 Master Services Agreements and any Additional Services Agreement.
  6. “Bail-In Action” “Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
  7. (a) (a) with respect to any EEA Member Country which has implementinged Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the, or which at any time implements, Article 55 BRRD the relevant implementing law, or regulation rule or requirement for such EEA Member Country from time to time which isas described in the EU Bail-In Legislation Schedule and from time to time;
  8. (b) (b) with respect toin relation to any state other than such an EEA Member Country and the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).any analogous law or regulation from time to time which requires contractual recognition of any Write-Down and Conversion Powers contained in that law or regulation; and
  9. in relation to the United Kingdom, the U.K. Bail-in Legislation.
  10. “Bank” “Bank” shall have the meaning set forth in the definition of “Cash Equivalents”. “Bank Levy” shall mean any amount payable by any Recipient or any of its Affiliates on the basis of or in relation to:
  11. (a) its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof, including the United Kingdom bank levy as set out in the United Kingdom Finance Act 2011, the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out in Article 235 ter ZE bis of the French Code Général des impôts, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz) (as amended), the Dutch bankenbelasting as set out in the bank levy act (Wet bankenbelasting), the Swedish bank levy as set out in the Swedish Act on State Support to Credit Institutions (Sw. Lag (2015:1017) om förebyggande statligt stöd till kreditinstitut och om stabilitetsfonden)), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito) as set out in the Law 16/2012 of 27 December 2012 and/or any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose;
  12. (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 Party; or
  13. (c) any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011) or the Single Resolution Mechanism established by EU Regulation 806/2014 of 15 July 2014.
  14. “Borrower” “Borrower” shall have the meaning assigned to such term in the introductory paragraph of this Agreement and for purposes of Sections 2.20, 9.04, 9.08 and the definitions of “Projected Contracted Cash Flows”, “Maximum Non-IG Collateral Ratio,” “Borrower” shall mean collectively the Borrower and its Subsidiaries.
  15. “Capital Expenditures” “Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capitalized Leases) by the Borrower and the Obligors during such period that, in conformity with GAAP, are required to be included as capital expenditures on the consolidated statement of cash flows of the Borrower and the Obligors.
  16. (h) time deposit accounts, certificates of deposit and money market deposits in an aggregate face amount not more than 1/2 of 1% of the total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Borrower’s most recently completed fiscal year.
  17. “Change of Tax Law” “Change of Tax Law” 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.
  18. “Collateral” “Collateral” shall mean all the “Collateral” as defined(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.
  19. “Collateral Agreement” “Collateral Agreement” shall mean a Collateral Agreement among the Borrower and, the Collateral Agent and the other parties from time to time party thereto, in substantially the form attached as Exhibit J.
  20. (a) the Administrative Agent shall have received each Security Document required to be delivered on the Closing Date pursuant to Section 4.02(a)(iii) or from time to time pursuant to Section 5.10, subject to the limitations and exceptions of this Agreement or any Security Document, duly executed by the Borrower, the Obligors or the Parent, as applicable;
  21. (b) the Obligations shall have been guaranteed by (x) the Parent pursuant to the Parent Guarantee and Pledge Agreement and (y) each Subsidiary pursuant to a Subsidiary Guarantee;
  22. (c) the Obligations shall have been secured pursuant to the Collateral Agreement and the Parent Guarantee and Pledge Agreementapplicable Security Documents by a first-priority security interest, subject to Liens permitted by Section 6.02, in all the Equity Interests of the Borrower (and its Subsidiaries and, the Collateral Agent, to the extent such interests are certificated, shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank);
  23. (d) all Pledged Debt owing to the Borrower or any Obligor that is evidenced by a promissory note with a principal amount in excess of $25,000,000 shall have been delivered to the Collateral Agent pursuant to the Collateral Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank.
  24. (e) the Obligations shall have been secured by a first-priority perfected security interest in substantially all now owned or at any time hereafter acquired tangible and intangible assets of the Borrower and each Obligor, in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Security Documents (to the extent appropriate in the applicable jurisdiction); and
  25. (f) except as otherwise contemplated by this Agreement or any Security Document, all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Security Documents, applicable Law or reasonably requested by the Administrative Agent or the Collateral Agent (at the request of the Required Lenders) to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement”, shall have been filed, registered or recorded.
  26. (A) with respect to the Borrower and each Domestic Subsidiary, (i) no actions other than the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower shall be required to perfect security interests in any Collateral consisting of notes or other evidence of Indebtedness, except to the extent set forth in clause (d) to the first paragraph of this definition, (ii) no actions other than the filing of Uniform Commercial Code financing statements and the entry into control agreements with respect to the Collateral Accounts and each other deposit account and securities account of the Borrower shall be required to perfect security interest in any Collateral consisting of proceeds of other Collateral and (iii) except to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower, the Borrower and each Domestic Subsidiary shall not be required to perfect or provide priority with respect to any security interest on any assets or property except (1) as required pursuant to the Collateral and Guarantee Requirement (it being understood that the Collateral and Guarantee Requirement requires the delivery of Control Agreements with respect to the Collateral Accounts and each other deposit account and securities account of the Borrower); and each Subsidiary) and (2) to the extent such assets or property are domiciled and deployed in a jurisdiction that is not located in the United States;
  27. (B) the Collateral Agent (at the direction of the Lender Representative) may grant extensions of time for the creation or perfection of security interests in, or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this definition where the Lender Representative reasonably determines, in consultation with the Borrower, that the creation or perfection of security interests or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents, and the Lender Representative shall notify the other Lenders of any such extension so granted; and
  28. (C) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Security Documents. ; and
  29. (D) With respect to each Foreign Subsidiaries and with the prior consent of the Lead Lenders, such Foreign Subsidiary may not be required to perfect or provide priority with respect to any security interest on any assets.
  30. “Communications” “Communications” shall have the meaning assigned to such term in Section 9.17(a). “Compliance Certificate” shall mean a compliance certificate executed by athe Chief fFinancial Responsible Officer of the Borrower in substantially the form of Exhibit D, as may be amended by the Lead Lenders within 30 days following the Second Amendment Effective Date.
  31. “Contract Value” “Contract Value” 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).
  32. “Control Agreement” “Control Agreement” shall mean, with respect to each Collateral Account and any other deposit account or securities account of the Borrower or any Obligor, one or more control agreements entered into by the Borrower or such Obligor, the Collateral Agent and the relevant depositary bank, which is sufficient to establish the Collateral Agent’s control (in the case of any account in the United States, pursuant to Section 9-104 of the UCC) over such account and is, in each case, in form and substance reasonably satisfactory to the Lender Representative. For the avoidance of doubt, any Control Agreement in respect of any account located outside of the United States shall be subject at all times to the Collateral and Guarantee Requirement.
  33. “Data Protection Laws” “Data Protection Laws” shall mean, collectively, all applicable federal, state, provincial, local or foreign Laws, ordinances, regulations, rules, codes, orders, judgments or other legally binding requirements or rules of Law that relate to the collection, handling, possession, processing, sale, transmission or use of personal data or personal information, including, to the extent applicable to the business of Borrower and its Subsidiaries, (a) the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and repealing Directive 95/46/EC), (b) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (Cal. Civ. Code §§ 1798.100 et seq.), (c) the Colorado Privacy Act (Colo. Rev. Stat. §§6-1-1301 et seq.), (d) the Connecticut Personal Data Privacy and Online Monitoring Act (Conn. Pub. Act No. 22-15), (e) the Utah Consumer Privacy Act (Utah Code §§ 13-61-101 et seq.), (f) the Virginia Consumer Data Protection Act (VA Code Ann. §§ 59.1-575 et seq.), (g) the Canadian Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) and (h) the Personal Information Protection Law of the People’s Republic of China, adopted on August 20, 2021; each of the foregoing as amended or restated, and their foreign, state, provincial or local counterparts or equivalents.
  34. “Disposition” or “Dispose” shall mean the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance (a) by the Borrower of any of its Equity Interests to the Parent or (b) by any Subsidiary of the Borrower of any of its Equity Interests to the Borrower; provided, further, that no withdrawals or transfers from General Accounts or dispositions of General Accounts shall constitute a Disposition hereunder.
  35. (b) any competitor of the Borrower or its Subsidiaries that is identified in writing (which list of competitors may be supplemented by the Borrower after the date hereof by means of a written notice to each Lender (with a copy to the Administrative Agent), but which supplementation shall not apply retroactively to disqualify any previously acquired assignment or participation in any Loan);
  36. (c) any Affiliate of any Person described in clause (a) and (b) above (other than any Bona Fide Debt Fund of any competitor of the Borrower or its Subsidiaries) that is either identified in writing to the Administrative Agent and readily identifiable on the basis of such Affiliate’s name;
  37. “Distribution Reserve Account” “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 reasonably acceptable to) the Lender Representative and designated as the “Distribution Reserve Account” in writing by the Borrower or any Subsidiary to the Lender Representative and the Administrative Agent.
  38. “Domestic Obligor” “Domestic Obligor” shall mean any Obligor that is organized under the laws of the United States, any state thereof, or the District of Columbia.
  39. “Domestic Security Documents” “Domestic Security Documents” shall mean the Collateral Agreement, the Parent Guarantee and Pledge Agreement, the Control Agreements 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 or Section 5.10 or Section 5.23.
  40. “Domestic Subsidiary” “Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.
  41. “EEA Financial Institution” “EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEAa Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
  42. “EEA Resolution Authority” “EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
  43. 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.
  44. “ERISA Affiliate” “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
  45. “ERISA Event” “ERISA Event” shall mean (a) a Reportable Event; (b) the failure to meet the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) the incurrence by the Borrower or its Domestic Subsidiaries of any liability under Title IV of ERISA (other than for PBGC premiums due but not delinquent under Section 4007 of ERISA); (e) the receipt by the Borrower or any of its Domestic Subsidiaries from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan, or to appoint a trustee to administer any Plan under Section 4042 of ERISA, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (f) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (g) the incurrence by the Borrower or any of its Domestic Subsidiaries of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Borrower or any of its Domestic Subsidiaries of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its Subsidiaries of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA; or (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA).
  46. (a) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing property, casualty or liability insurance to the Borrower or any of its Subsidiaries, pursuant to reimbursement or indemnification obligations to such Person;
  47. (c) to the extent constituting Indebtedness (but not for borrowed money), indemnification obligations of the Borrower or its Subsidiaries under one or more Master Services Agreements, and any Additional Services Agreement and, to the extent applicable, the Data Center Leases/Licenses to which the Borrower is a party;
  48. (d) contingent liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business, to the extent otherwise constituting Indebtedness, including those relating to (i) the endorsement of negotiable instruments received in the normal course of its business and (ii) contingent liabilities incurred with respect to any Loan Document, any Master Services Agreement or Additional Services Agreement and, to the extent applicable, the Data Center Leases/Licenses to which the Borrower is a party; and
  49. (e) Indebtedness of the Borrower in an aggregate principal amount at any time outstanding not to exceed $15,000,000.; and
  50. (f) Indebtedness (i) owed by the Borrower to an Obligor or (ii) by an Obligor to the Borrower or another Obligor, in either case, subject to the consent (not to be unreasonably withheld) of the Lead Lenders; provided that any Indebtedness incurred pursuant to this clause (f) shall be subordinated in right of payment to the Obligations and shall not have a final maturity date earlier than 90 days after any Term Maturity Date.
  51. (c) any Investment acquired by the Borrower or any of its Subsidiaries (1) in exchange for any other Investment or accounts receivable held by the Borrower or any of its Subsidiaries in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (2) as a result of a foreclosure by the Borrower or any of its Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default with respect to any contractual counterparty of the Borrower or any of its Subsidiaries;
  52. (d) to the extent constituting an Investment, any guarantee of Indebtedness permitted to be incurred pursuant to Section 6.01; and
  53. (f) advances, loans or extensions of trade credit in the ordinary course of business by the Borrower or any of its Subsidiaries; and
  54. (g) Investments (i) by the Borrower in any Obligor or (ii) by any Obligor in another Obligor or the Borrower, in either case, subject to the consent (not to be unreasonably withheld) of the Lead Lenders;
  55. (b) pledges and deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any of its Subsidiaries;
  56. (d) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness or (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any of its Subsidiaries;
  57. (f) Liens for materialmen’s, mechanics’, workers’, repairmen’s, or other like Liens, arising in the ordinary course of the Borrower’s or any of its Subsidiaries’ business or in connection with the operation and maintenance of the Project, which (i) do not in the aggregate materially detract from the value of the property or assets to which they are attached or materially impair the construction or use thereof, and (ii) are either for amounts not yet due or for amounts being contested in good faith by appropriate proceedings;
  58. (g) Liens of the Borrower or any of its Subsidiaries arising by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar rights arising in the ordinary course of business;
  59. (o) any zoning, building, environmental and land use laws, regulations and ordinances or similar requirements of Law (including Environmental Law) that do not individually or in the aggregate materially detract from the ability of the Borrower or any of its Subsidiaries to use the property affected by such restrictions for its intended use; and
  60. (p) Liens incurred in connection with a Permitted Takeout.; and
  61. (q) Liens subordinated in right of security and in right of payment to the Liens securing the Obligations hereunder securing Indebtedness incurred pursuant to clause (f) of the definition of Excepted Debt.
  62. “Excluded Property” “Excluded Property” shall mean any asset or property described in the final paragraph of Section 4.01 of the Collateral Agreement in clauses (1) through (8) thereof.
  63. “Excluded Taxes” “Excluded Taxes” shall mean, with respect to any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower or its Subsidiaries hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.17) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.15, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes
  64. attributable to such recipient’s failure to comply with Section 2.15(e) and Section 2.15(g) and, (d) any Taxes imposed under FATCA., (e) any United Kingdom withholding Taxes to which Section 2.15(h) applies; (f) any Bank Levy or any payment attributable to or liability arising as a consequence of any Bank Levy; and (g) any VAT (in respect of which Section 2.15(l) shall apply).
  65. “First Amendment Effective Date” “First Amendment Effective Date” means August 29, 2024.
  66. “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 on the First Amendment Effective Date is $100,000,000.
  67. “First Amendment Delayed Draw Loan Facility” “First Amendment Delayed Draw Loan Facility” shall mean the First Amendment Delayed Draw Loan Commitments and the First Amendment Delayed Draw Loans.
  68. “First Amendment Delayed Draw Loans” “First 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(c).
  69. “Foreign Plan” “Foreign Plan” shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA) or arrangement that is not subject to US law and is maintained or contributed to by the Borrower or its Subsidiaries but excluding any employee benefit arrangement mandated by non-US law and maintained by a Governmental Authority.
  70. “Foreign Plan Event” “Foreign Plan Event” shall mean with respect to any Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered; (c) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan; or (d) the existence of unfunded liabilities of the Borrower or any of its Subsidiaries in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority.
  71. “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.
  72. “Foreign Security Documents” “Foreign Security Documents” shall mean each security agreement, guarantee agreement, Subsidiary Guarantee Agreement, 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 or Section 5.23.
  73. “Foreign Subsidiary” “Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.
  74. “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.
  75. “GPU Clusters” “GPU Clusters” shall mean all GPU clusters necessary for the Borrower and the Obligors to provide Services with respect to an IG Contract or Non-IG Contract.
  76. “GPU Depreciated Amount” “GPU Depreciated Amount” shall mean, as of any date of determination, the aggregate amount of depreciation applicable to Infrastructure calculated in good faith by the Calculation Agent and the Borrower in accordance with Schedule 2.03 on a straight-line basis in accordance with GAAP assuming a useful life of six (6) years. For the avoidance of doubt, depreciation with respect to the “GPU 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 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).
  77. “GPU Server Disruption” “GPU Server Disruption” shall mean the occurrence of an event or circumstance, the result of which could be reasonably expected to materially delay the delivery of GPU Servers and their ancillary components (including networking infrastructure) required with respect to the Project such that it could reasonably bebe reasonably expected to cause the Borrower or the Obligors not to be able to comply with the terms of the Master Services Agreements.
  78. “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 (solely to the extent previously 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) prior to their purchase or transfer to the Borrower or any of the Obligors only in connection with the Project.
  79. “IG Capital Expenditure” “IG Capital Expenditure” shall mean, as of any date of determination, the sum of (x) the aggregate purchase price of all IG Infrastructure (provided that the aggregate purchase price of IG Infrastructure constituting ancillary hardware infrastructure included in clause (x) and (y) of this definition shall not exceed [*]% of the purchase price of the GPU Servers included in all IG 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 IG Infrastructure (provided that the aggregate amount of such installation costs included in clause (x) and (y) shall be equal to or less than the amount that is [*]% of the aggregate purchase price of such IG Infrastructure) and (y) without duplication of clause (x), any Capital Expenditures expected by the Borrower (in itsor any Obligor (in the Borrower’s reasonable discretion) to be funded in cash with respect to such IG Infrastructure.
  80. “IG Contracts” “IG Contracts” shall mean any agreement 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 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).
  81. “IG Customer” “IG Customer” shall mean, as of any date of determination, the Eligible Counterparty to an agreement entered with the Borrower or any of its Subsidiaries for the provision of Services to the extent that such counterparty has (a) a corporate credit rating equal to or higher than Baa3 (or the equivalent) by
  82. Moody’s or BBB- (or the equivalent) by S&P or (b) delivered, to the Borrower or such Subsidiary, a full and unconditional guaranty of such counterparty’s payment obligations under such agreement by a parent entity of such counterparty that satisfies the requirements included in the immediately preceding clause (a).
  83. “IG Project” “IG 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 or its Subsidiaries pursuant to an IG Contract.
  84. “Indemnified Taxes” “Indemnified Taxes” shall mean (a) Taxes imposed on or with respect to any payment made by or on account of any obligation of the Borrower or its Subsidiaries under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes, other than, in the case of clauses (a) and (b), Excluded Taxes.
  85. “Intercompany Services Agreement” “Intercompany Services Agreement” shall mean the Intercompany Services Agreement entered into on or prior to the Closing Date between the Borrower and the Parent, as amended from time to time in accordance with this Agreementwith the prior consent of the Lead Lenders .
  86. “Investment” “Investment” shall mean, for any Person, to (a) purchase or acquire any Equity Interests or the Indebtedness of another Person, (b) make any loans, advances or capital contribution to another Person (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries) and (c) purchase or acquire (in one or a series of related transactions) all or substantially all of the property or business of another Person or assets constituting a business unit, line of business or division of such other Person. For purposes of covenant compliance, the amount of any Investment at any time shall be (i) the amount actually invested (measured at the time when made) minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment. For purposes of clarity, Investments shall exclude any investments made with amounts on deposit in any General Account.
  87. “Lead Lenders” “Lead Lenders” shall have the meaning assigned to such term in the introductory paragraph of this Agreement. .
  88. “Liquidity Account” “Liquidity Account” shall mean a securities or deposit account of the Borrower established with a nationally recognized account bank in consultation with (and reasonably acceptable to) the Lender Representative and designated as the “Liquidity Account” in writing by the Borrower to the Lender Representative and the Administrative Agent.
  89. “Material Adverse Effect” “Material Adverse Effect” shall mean any event or circumstance arising in respect of the Borrower and its Subsidiaries or, solely with respect to any event or circumstance affecting the Borrower and its Subsidiaries that has had (a) a material adverse effect on the business, operations, properties, assets or financial condition of the Borrower and its Subsidiaries, (b) a material adverse effect on the ability of the Borrower and its Subsidiaries to fully and timely perform its payment obligations under the Loan Documents, or (c) a material impairment of the validity or enforceability of, the material rights, remedies or benefits available to the Lenders, the Administrative Agent or the Collateral Agent under, any Loan Document.
  90. “Material Indebtedness” “Material Indebtedness” shall mean, with respect to the Borrower, its Subsidiaries or the Parent, any Indebtedness (excluding the Loans and, for avoidance of doubt, undrawn letters of credit and performance bonds) of the Borrower, its Subsidiaries or the Parent, as applicable, in an aggregate principal amount exceeding (a) with respect to any Indebtedness of the Borrower or its Subsidiaries, $15,000,000 and (b) with respect to any Indebtedness of the Parent, (x) prior to the Loan Balance Trigger Date (as defined in the Parent Guarantee and Pledge Agreement) $15,000,000 or (y) following the Loan Balance Trigger Date, the greater of $150,000,000 and thirty percent (30%) of Consolidated EBITDA (as defined in the Parent Guarantee and Pledge Agreement).
  91. “Material Intellectual Property” “Material Intellectual Property” shall mean any intellectual property that is material to the operation of the business of the Borrower and its Subsidiaries after giving effect to any designation, transfer or exclusive license.
  92. “Material Project Contracts” “Material Project Contracts” shall mean (a) the Master Services Agreements, (b) the Intercompany Services Agreement, (c) the assignment agreements with respect to each Master Services Agreement between the Parent, the Borrower and the Subsidiaries of the Borrower and (d) any other agreement designated as a “Material Project Contract” by the Borrower and the Lender Representative.
  93. “Multiemployer Plan” “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower, its Subsidiaries or ERISA Affiliate makes or is obligated to make contributions, or during the five preceding calendar years, has made or been obligated to make contributions.
  94. banking fees, real property related fees, sales commissions, transfer taxes and charges and brokerage and consultant fees), (iii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued by any Parent Company, the Borrower’s direct or indirect equity owners or the Borrower as a result thereof, in each case to the extent attributable to the Borrower (including, for the avoidance of doubt, Permitted Tax Distributions, and including, in respect of any proceeds received by any Foreign Subsidiary or subsidiary thereof in connection with such Disposition or Permitted Takeout, any Taxes that are or would be payable if such proceeds were repatriated to the United States, regardless of whether such proceeds are actually repatriated), and (iv) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities related to any of the applicable assets or retained by the Borrower, including liabilities related to environmental matters or against any indemnification obligations; and
  95. (b) with respect to any Casualty Event, 100% of the cash proceeds actually received by the Borrower in connection therewith (including casualty insurance settlements and condemnation awards, but only as and when received) minus (i) the reasonable or customary out-of-pocket fees and expenses incurred by the Borrower (including attorneys’ fees, accountants’ fees, investment banking fees, real property related fees, sales commissions, transfer taxes and charges and brokerage and consultant fees) in connection therewith and (ii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued by any Parent Company, the Borrower’s direct or indirect equity owners, the Borrower or any of its Affiliates as a result thereof, in each case, to the extent attributable to the Borrower (including, for the avoidance of doubt, Permitted Tax Distributions)., and including, in respect of any proceeds received by any Foreign Subsidiary or subsidiary thereof in connection with such Casualty Event, any Taxes that are or would be payable if such proceeds were repatriated to the United States, regardless of whether such proceeds are actually repatriated).
  96. “Non-IG Capital Expenditure” “Non-IG Capital Expenditure” shall mean, as of any date of determination, 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 clause (x) and (y) of this definition shall not exceed [*]% of the purchase price of GPU Servers included in all Non-IG Infrastructure) purchased by, or transferred to, the Borrower or any of the Obligors 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 clause (x) and (y) shall be equal to or less than the amount that is [*]% of the aggregate purchase price of GPU Servers included in all Non-IG Infrastructure) and (y) without duplication of clause (x), any Capital Expenditures expected by the Borrower (in itsor any Obligor (in the Borrower’s reasonable discretion) to be funded in cash with respect to such Non-IG Infrastructure.
  97. “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 [*] and (2) the Maximum Non-IG Revenue Ratio shall not be greater than [*] and (b) the agreement satisfies all Eligibility Criteria; provided that, the Eligibility Criteria shall not be required to be satisfied with respect to any
  98. “Non-IG Contracts” “Non-IG Contracts” shall mean, as of any date of determination, any agreement (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 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).
  99. “Non-IG Customer” “Non-IG Customer” shall mean, as of any date of determination, the Eligible Counterparty (excluding any IG Customers as of such date of determination) to an agreement entered into with, or transferred or assigned to, the Borrower or any of its Subsidiaries for the provision of Services.
  100. “Non-IG Project” “Non-IG 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 or any of its Subsidiaries pursuant to a Non-IG Contract.
  101. “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.
  102. “Obligors” “Obligors” 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, on and prior to the date that is 60 days after the Second Amendment Effective Date, notwithstanding the requirements of Section 5.23, the Specified Foreign Entities shall be deemed to be Obligors for all purposes hereunder.
  103. “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).
  104. “Other Connection Taxes” “Other Connection Taxes” shall mean, with respect to any Agent or Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower or its Subsidiaries hereunder, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
  105. “Other Proceeds” “Other Proceeds” shall mean (a) all Net Proceeds from any Disposition by the Borrower or any Subsidiary thereof of any Collateral and (b) all Net Proceeds from any Casualty Event; provided that “Other Proceeds” shall not include any Equity Proceeds.
  106. “Other Proceeds Account” “Other Proceeds Account” shall mean a securities or deposit account of the Borrower established with a nationally recognized account bank in consultation with (and reasonably acceptable to) the Lender Representative and designated as the “Other Proceeds Account” in writing by the Borrower to the Lender Representative and the Administrative Agent.
  107. “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 reasonably bebe 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.
  108. “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 stand-alone corporation, distributions to such corporation to pay federal, foreign, state and local income or franchise Taxes of such corporation 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.
  109. “Pledged Debt” “Pledged Debt” shall have the meaning assigned to such term in the Collateral Agreement.; provided that, solely as it relates to a Subsidiary of the Borrower, any reference to “Grantor” with respect to such term in the Collateral Agreement shall be deemed to be a reference to a Subsidiary of the Borrower for the purpose of this definition herein.
  110. “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.
  111. “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.
  112. “Recipient” “Recipient” means the Administrative Agent or any Lender.
  113. “Resolution Authority” “Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authorityany body which has authority to exercise any Write-down and Conversion Powers.
  114. “Responsible Officer” of any Person shall mean any executive officer, Financial Officer, director, company secretary, general partner, managing member or sole member of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.
  115. “Second Amendment Effective Date” “Second Amendment Effective Date” means December 31, 2024.
  116. “Security Documents” “Security Documents” shall mean the Collateral Agreement, the Parent Guarantee and Pledge Agreement, the Control Agreements 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 or Section 5.10.means the Domestic Security Documents and the Foreign Security Documents.
  117. “Services” “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.
  118. “Specified Foreign Entities” “Specified Foreign Entities” shall mean, collectively, CoreWeave (Spain) S.L., CoreWeave UK Limited, CoreWeave Sweden AB and, solely with respect to certain other GPU Servers held in Sweden, if any, Parent.
  119. “Specified IG Project” “Specified IG 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 or any of its Subsidiaries pursuant to a Specified IG Contract.
  120. “Subsidiary Guarantee” “Subsidiary Guarantee” 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.
  121. “Tax Deduction” “Tax Deduction” 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.
  122. “UCC” “UCC” shall mean the Uniform Commercial Code as in effect in the applicable jurisdiction in the United States.
  123. “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.
  124. “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.
  125. “U.K. Bail-In Legislation” “U.K. Bail-In Legislation” 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).
  126. “UK Resolution Authority” “UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
  127. “UK Obligor” “UK Obligor” means an Obligor organized under the laws of England and Wales.
  128. “UK Qualifying Recipient” “UK Qualifying Recipient” 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:
  129. (a) a Recipient (i) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA or (ii) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance;
  130. (b) a Recipient which is (i) a company resident in the United Kingdom for United Kingdom tax purposes, (ii) a partnership each member of which is (A) a company resident in the United Kingdom for United Kingdom tax purposes or (B) a company not resident in the United Kingdom for United Kingdom tax purposes which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of a Loan Document that falls to it by reason of Part 17 of the CTA or (iii) a company not resident in the United Kingdom for United Kingdom tax purposes which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any interest payable to it in respect of a Loan Document; or
  131. (c) a UK Treaty Recipient.
  132. “UK Tax Confirmation” “UK Tax Confirmation” 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:
  133. (a) a company resident in the United Kingdom for United Kingdom tax purposes;
  134. (b) a partnership each member of which is (i) a company resident in the United Kingdom for United Kingdom tax purposes or (ii) a company not resident in the United Kingdom for United Kingdom tax purposes which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of a Loan Document that falls to it by reason of Part 17 of the CTA; or
  135. (c) a company not resident in the United Kingdom for United Kingdom tax purposes which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any interest payable to it in respect of a Loan Document.
  136. “UK Treaty Recipient” “UK Treaty Recipient” 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:
  137. (a) is treated as a resident of a UK Treaty State for the purposes of the relevant UK Treaty and is entitled to the benefit of such UK Treaty;
  138. (b) does not carry on a business in the United Kingdom through a permanent establishment (as such term is defined for the purposes of the relevant UK Treaty) with which that Recipient’s participation in any Loan is effectively connected; and
  139. (c) fulfils all other conditions which must be fulfilled in order to benefit from full exemption under the relevant UK Treaty and under relevant domestic law from Tax imposed by the United Kingdom on interest such that payments of interest may be made by the relevant UK Obligor to that Recipient without a Tax Deduction imposed by the United Kingdom on interest, including the completion of any necessary procedural formalities.
  140. “UK Treaty State” “UK Treaty State” 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.
  141. “Unrestricted Cash” “Unrestricted Cash” shall mean cash or Cash Equivalents of the Borrower or any of its Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower or its Subsidiaries; provided that cash or Cash Equivalents that would appear as “restricted” on a consolidated balance sheet of the Borrower and its Subsidiaries solely because such cash or Cash Equivalents are subject to a deposit account control agreement or a securities account control agreement in favor of the Collateral Agent shall constitute Unrestricted Cash hereunder.
  142. “VAT” “VAT” means:
  143. (a) any value added tax imposed pursuant to the United Kingdom Value Added Tax Act 1994;
  144. (b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and any national legislation implementing that Directive or any predecessor to it or supplemental to that Directive; and
  145. (c) any other tax of a similar nature, whether imposed by the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) or (b) above, or imposed elsewhere.
  146. “Write-Down and Conversion Powers” “Write-Down and Conversion Powers” shall mean, with respect:
  147. (a) to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under thein relation to any Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule. from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
  148. (b) in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation:
  149. (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
  150. (ii) any similar or analogous powers under that Bail-In Legislation; and
  151. (c) in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and any similar or analogous powers under the UK Bail-In Legislation.
Section 1.03 Effectuation of Transfers 1 change
  1. Section 1.03. Effectuation of Transfers. Each of the representations and warranties of the Borrower or any of its Subsidiaries contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions unless the context otherwise requires.
Section 1.06 Negative Covenant Compliance 1 change
  1. Section 1.06. Negative Covenant Compliance. For purposes of determining whether the Borrower or any of its Subsidiaries complies with any exception to Article VI where compliance with any such exception is based on a financial ratio or metric being satisfied as of a particular point in time, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken and (b) correspondingly, any such ratio and metric shall only prohibit the Borrower or its Subsidiaries from creating, incurring, assuming, suffering to exist or making, as the case may be, any new, for example, Liens, Indebtedness or Investments, but shall not result in any previously permitted, for example, Liens, Indebtedness or Investments ceasing to be permitted hereunder. For avoidance of doubt, with respect to determining whether the Borrower or any of its Subsidiaries comply with any negative covenant in Article VI, to the extent that any obligation, transaction, or action could be attributable to more than one exception to any such negative covenant, the Borrower may categorize or re-categorize all or any portion of such obligation, transaction or action to any one or more exceptions to such negative covenant that permit such obligation, transaction or action.
Section 2.03 Requests for Borrowings 1 change
  1. (e) the quantity, and purchase orders 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 reasonably 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 Required Lenders have determined in writing not to make or continue any Loan as a Term SOFR Loan as a result thereof.
Section 2.09 Prepayment of Loans 3 changes
  1. (i) Dispositions of Uncontracted Infrastructure. Promptly upon receipt by the Borrower or any Subsidiary of the Borrower (but in any event within one (1) Business Day of such receipt), the Borrower or such Subsidiary shall apply 100% of the Net Proceeds of any Disposition of Uncontracted Infrastructure pursuant to Section 6.05(d) to prepay the Loans in accordance with Section 2.09(b)(vi).
  2. (ii) Non-Permitted Indebtedness. Promptly upon receipt by the Borrower or any Subsidiary of the Borrower (but in any event within one (1) Business Day of such receipt), the Borrower or such Subsidiary shall apply 100% of the Net Proceeds of any incurrence of Indebtedness that is not permitted pursuant to Section 6.01 to prepay the Loans in accordance with Section 2.09(b)(vi).
  3. (iv) Other Proceeds. Promptly upon receipt by the Borrower or any Subsidiary of the Borrower (but in any event within five (5) Business Days of such receipt), the Borrower or such Subsidiary shall apply (x) any proceeds of a Disposition (but excluding any Disposition of Uncontracted Infrastructure pursuant to Section 6.05(d), Dispositions of which are covered by clause (i) above or Dispositions constituting a Permitted Takeout) and (y) the Other Proceeds (excluding any Other Proceeds subject to prepayment under clause (x) of this Section 2.09(b)(iv) and excluding (A) in the case of any Casualty Event, any Net Proceeds thereof less than $10,000,000 from any single event or $20,000,000 in the aggregate from all such events during any fiscal year and (B) in the case of any Disposition by the Borrower or any Subsidiary of the Borrower permitted pursuant to Section 6.05 (other than Section 6.05(d)), any Net Proceeds thereof less than $10,000,000 from any single event or $20,000,000 in the aggregate from all such events during any fiscal year) received by the Borrower or such Subsidiary, to prepay the Loans in accordance with Section 2.09(b)(vi).
Section 2.10 Fees 3 changes
  1. (b) The Borrower agrees to pay (or cause to be paid) to the Lenders, each for their own accounts, a commitment fee (the “Commitment Fee”) in an amount (measured as of the Commitment Termination Date) equal to 2.50% per annum of the positive difference, if any, of (i) the Minimum Funded Amount less (ii) the actual aggregate principal amount of 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 pro rata share 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 (as such Commitments may be terminated in part or in whole in accordance with Section 2.06(a)) as of the end of each month ended prior to the Commitment Termination Date less (ii) the greater of (A) the average aggregate principal amount of Loans outstanding as of the end of the applicable month 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 within five (5) Business Days after the Commitment Termination Date and shall be divided among such Lenders based on their Pro Rata Share.
Section 2.13 Increased Costs 1 change
  1. (ii) subject any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (dg) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities, or capital attributable thereto; or
Section 2.15 Taxes 34 changes
  1. (a) Any and all payments by or on account of any obligation of the Borrower or any Obligor under any Loan Document shall be made free and clear of and without deduction or withholding for any Taxes except as required by applicable Law; provided that if the Borrower, any Obligor, the Administrative Agent or any other Person acting on behalf of the Administrative Agent in regards to any such payments shall be required by law to deduct Taxes from such payments, then (i) if such Taxes are Indemnified Taxes, the sum payable by the Borrower or any Obligor shall be increased as necessary so that after making all required deductions and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 2.15) the Administrative Agent or Lender, as applicable, receives an amount equal to the sum it would have received had no such deductions or withholdings for Indemnified Taxes been made, (ii) the Borrower, any Obligor, the Administrative Agent or any other Person acting on behalf of the Administrative Agent shall make such deductions or withholdings and (iii) the Borrower, any Obligor, the Administrative Agent or any other Person acting on behalf of the Administrative Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
  2. (b) Without duplication, the Borrower and each Obligor shall pay any Other Taxes payable on account of any obligation of the Borrower or such Obligor and upon the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents, to the relevant Governmental Authority in accordance with applicable law.
  3. (c) Without duplication of any amounts paid under Section 2.15(a) or (b), the Borrower and the Obligors shall indemnify the Administrative Agent and each Lender, within twenty (20) days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by, or required to be withheld or deducted from a payment to, the Administrative Agent or such Lender, as applicable, on or with respect to any payment by or on account of any obligation of the Borrower or the Obligors under, or otherwise with respect to, any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that a certificate as to the amount of such payment or liability and setting forth in reasonable detail the basis and calculation for such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error of the Lender or the Administrative Agent, as applicable. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower or any Obligor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower or any Obligor to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(b)(vi) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that, if the Borrower reasonably believes that such Taxes were not correctly or legally asserted, such Lender will use reasonable best efforts to cooperate with the Borrower to obtain a refund of such Taxes (which shall be repaid to the Borrower in accordance with Section 2.15(f)). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (c).
  4. (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any Obligor to a Governmental Authority, the Borrower or such Obligor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
  5. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as willand shall cooperate in order to complete any procedural formalities as will, in each case, permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such
  6. Lender is subject to backup withholding or information reporting requirements, to determine the rate of any such withholding Tax or backup withholding and to obtain and maintain authorization to make payments under any Loan Document without withholding or at a reduced rate of withholding. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.15(e)(ii)(A), (B) and (D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
  7. (ii) Without limiting the generality of the foregoing,
  8. (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), copies of duly executed and completed any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
  9. (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.; and
  10. (E) each Recipient in respect of a UK Obligor shall deliver to the relevant UK Obligor and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the relevant UK Obligor or the Administrative Agent):
  11. (1) if such Recipient holds a valid passport under the HMRC DTTP Scheme, confirmation of its HMRC DTTP Scheme reference number and jurisdiction of Tax residence and confirmation that it wishes its passport to be applied in respect of this Agreement; and
  12. (2) if such Recipient is a UK Non-Bank Recipient, a UK Tax Confirmation.
  13. (f) If a party determines, in good faith and in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or any Obligor or with respect to which the Borrower or any Obligor has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to the Borrower or such Obligor (but only to the extent of indemnity payments made under this Section 2.15 with respect to the Indemnified Taxes giving rise to such refund), net of all reasonable and documented out-of-pocket expenses (including Taxes) of such indemnified party, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower and each Obligor, upon the request of the indemnified party, agrees to repay as soon as reasonably practicable the amount paid over to the Borrower or such Obligor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the indemnified party in the event the indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.15(f), in no event will the indemnified party be required to pay any amount to the Borrower or any Obligor pursuant to this Section 2.15(f) the payment of which would place such indemnified party in a less favorable net after-Tax position than such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require the indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower, any Obligor or any other Person.
  14. (h) A payment in by or in respect of a UK Obligor shall not be increased under Section 2.15(a) by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, and such Tax Deduction shall be regarded as an Excluded Tax for all purposes under this Agreement, if on the date the payment falls due:
  15. (i) the payment could have been made to the relevant Recipient without such Tax Deduction if the Recipient had been a UK Qualifying Recipient, but on that date that Recipient is not or has ceased to be a UK Qualifying Recipient, other than as a result of any Change of Tax Law;
  16. (ii) the relevant Recipient is a UK Qualifying Recipient solely by virtue of limb (b) of the definition of “UK Qualifying Recipient” and (A) an officer of HMRC has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Recipient has received from a Obligor a certified copy of that Direction and (B) the payment could have been made to the Recipient without such Tax Deduction if that Direction had not been made;
  17. (iii) the relevant Recipient is a UK Qualifying Recipient solely by virtue of limb (b) of the definition of “UK Qualifying Recipient” and (A) the relevant Recipient has not given a UK Tax Confirmation to the relevant UK Obligor and (B) the payment could have been made to the Recipient without such Tax Deduction if the Recipient had given a UK Tax Confirmation to the relevant UK Obligor on the basis that the UK Tax Confirmation would have enabled the relevant UK Obligor to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or
  18. (iv) the relevant Recipient is a UK Treaty Recipient (or would be on the assumption that all procedural formalities have been completed) and the relevant UK Obligor making the payment or in respect of whom the payment is made is able to demonstrate that the payment could have been made to the Recipient without a Tax Deduction had that Recipient complied with its obligations under Section 2.15(e) or Section 2.15(k) below.
  19. (i) If: (i) a Recipient assigns, novates, transfers, sub-participates, sub-contracts or otherwise disposes of any of its rights or obligations under the Loan Documents or changes its lending office or branch; and (ii) as a result of circumstances existing at the date the assignment, novation, transfer, sub- participation, sub-contract or other change occurs, a UK Obligor would be obliged to make a payment to the relevant Recipient, new Recipient or Recipient acting through its new office or branch under this Section 2.15 on account of a Tax Deduction imposed by the United Kingdom, then the relevant Recipient, new Recipient or Recipient acting through its new office or branch is not entitled to receive payment under this Section 2.15 in respect of such Tax Deduction imposed by the United Kingdom to the extent such payment would be greater than the payment that would have been made to the existing Recipient or Recipient acting through its previous office or branch had the assignment, novation, transfer, sub-participation, sub-contract or other change not occurred.
  20. (j) If, in relation to a Tax Deduction imposed by the United Kingdom: (i) a Tax Deduction should have been made in respect of a payment made by or in respect of a UK Obligor to a Recipient under a Loan Document; (ii) either (A) the relevant UK Obligor (or the Administrative Agent, if it is the applicable withholding agent) was unaware, and could not reasonably be expected to have been aware, that such Tax Deduction was required and as a result did not make the Tax Deduction or made a Tax Deduction at a reduced rate, (B) in reliance on the notifications and confirmation provided pursuant to Section 2.15(k), the relevant UK Obligor did not make such Tax Deduction or made a Tax Deduction at a reduced rate or (C) any Recipient has not complied with its obligations under Section 2.15(k)(i) and, as a result, the relevant UK Obligor did not make the Tax Deduction or made a Tax Deduction at a reduced rate; and (iii) the relevant UK Obligor would not have been required to make an increased payment under Section 2,15(a) in respect of that Tax Deduction, then the Recipient that received the payment in respect of which the Tax Deduction should have been made or made at a higher rate undertakes to promptly reimburse the relevant UK Obligor for the amount of the Tax Deduction that should have been made (and any penalty, interest or expenses payable in connection with any failure to pay or any delay in paying any of the same, save to the extent that such penalty, interest and/or expense arises as a result of a UK Obligor’s failure to account promptly for the Tax in question following reimbursement by the Recipient pursuant to this Section 2.15(j)). Any Obligor shall be entitled to set-off any amount or payment due from a Recipient pursuant to this Section 2.15(j) against any amount or payment owed by that Obligor (and, in the event of any such set-off by a Obligor, for the purposes of the Loan Documents, the Administrative Agent or, as the case may be, the Collateral Agent shall treat such set-off as reducing only amounts due to the relevant Recipient).
  21. (k) Without limiting the generality of the foregoing:
  22. (i) If a Recipient lending to a UK Obligor under this Agreement becomes aware that it is not, or ceases to be, a UK Qualifying Recipient in respect of a payment payable to that Recipient by or on behalf of that UK Obligor, such Recipient shall promptly (but in any event where it is possible to do so at least ten (10) Business Days prior to the next interest payment date) notify the Administrative Agent. If the Administrative Agent receives any such notification from a Recipient it shall promptly (but in any event where it is possible to do so at least nine (9) Business Days prior to the next interest payment date) notify the relevant UK Obligor. Without prejudice to the foregoing, each Recipient lending to a UK Obligor under this Agreement shall promptly provide to the Administrative Agent (if requested by the Administrative Agent): (i) a written confirmation that it is or, as the case may be, is not, a UK Qualifying Recipient; and (ii) such documents and other evidence as the Administrative Agent may reasonably require to support any confirmation given pursuant to this Section 2.15(k)(i), and until such time as a Recipient has complied with any request pursuant to this Section 2.15(k)(i), the Administrative Agent and each UK Obligor shall be entitled to treat such Recipient as not being a UK Qualifying Recipient for all purposes under the Loan Documents.
  23. (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).
  24. (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).
  25. (l) In relation to VAT:
  26. (i) All amounts expressed to be payable under a Loan Document by any party to this Agreement to a Recipient which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies and accordingly, subject to Section 2.15(l)(ii), if VAT is or becomes chargeable on any supply or supplies made by any Recipient to any party to this Agreement in connection with a Loan Document:
  27. (A) if such Recipient is required to account to the relevant tax authority for the VAT, that party shall pay to the Recipient (in addition to and at the same time as paying the consideration for that supply or supplies) an amount equal to the amount of the VAT (upon such Recipient providing an appropriate VAT invoice to such party); or
  28. (B) if such party is required to directly account for such VAT under a reverse charge procedure, then such party shall account for the VAT at the appropriate rate (and the relevant Recipient must promptly provide an appropriate VAT invoice to such party stating that the amount is charged in respect of a supply that is subject to VAT but that the reverse charge procedure applies).
  29. (ii) If VAT is or becomes chargeable on any supply made by any Recipient (the “Supplier”) to any other Recipient (the “VAT Party”) under a Loan Document, and any party to this Agreement other than the VAT Party (the “Relevant Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the VAT Party in respect of that consideration):
  30. (A) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this Section 2.15(l)(ii) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient determines (acting reasonably and in good faith) relates to the VAT chargeable on that supply; and
  31. (B) (where the VAT Party is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the VAT Party, pay to the VAT Party an amount equal to the VAT chargeable on that supply but only to the extent that the VAT Party determines (acting reasonably and in good faith) that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
  32. (iii) Where a Loan Document requires any party to this Agreement to reimburse or indemnify a Recipient for any costs or expenses, that party shall reimburse or indemnify (as the case may be) the Recipient against any VAT incurred by the Recipient in respect of the costs or expenses, to the extent that the Recipient determines (acting reasonably and in good faith) that neither it nor any group of which it is a member for VAT purposes is entitled to credit or receives repayment in respect of the VAT from the relevant tax authority.
  33. (iv) Any reference in this Section 2.15(l) to any party to this Agreement shall, at any time when such party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply or (as appropriate) receiving the supply under the grouping rules (as provided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union)) so that a reference to a party to this Agreement shall be construed as a reference to that party or the relevant group or unity (or fiscal unity) of which that party is a member for VAT purposes at the relevant time or the relevant member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
  34. (v) In relation to any supply made by a Recipient to any party to this Agreement under a Loan Document, if reasonably requested by such Recipient, that party must promptly provide such Recipient with details of that party’s VAT registration and such other information as is reasonably requested in connection with such Recipient’s VAT reporting requirements in relation to such supply.
Section 2.17 Mitigation Obligations; Replacement of Lenders 2 changes
  1. (a) If any Lender requests compensation under Section 2.13, or if the Borrower or any Obligor is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as applicable, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
  2. (b) If any Lender requests compensation under Section 2.13 or 2.14, or if the Borrower or any Obligor is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with paragraph (a) of this Section 2.17, or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.13, 2.14 or 2.15) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower or any Obligor (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.13, Section 2.14 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments. Nothing in this Section 2.17 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.
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 with respect to itself that, as of the date hereof, the Closing Date and as otherwise required by Section 4.02:
Section 3.01 Organization; Powers 1 change
  1. Section 3.01. Organization; Powers. TheEach of the Borrower and its Subsidiaries (a) is duly organized, incorporated or established validly existing and (if applicable) in good standing under the laws of the jurisdiction of its organization, incorporation or establishment (as applicable), (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and Material Project Contracts to which it is a party and each other agreement or instrument contemplated thereby to which it is or will be a party and to borrow and otherwise obtain credit hereunder.
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 and the 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 (ii) violate any provision of (B) 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, (B) any applicable order of any court or order of any Governmental Authority or (B) 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 delivered by the Borrower 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 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
Section 3.05 Title to Properties; Material Project Contracts 1 change
  1. (a) The Borrower and each Obligor has good and valid (subject to the terms of the Material Project Contracts and the Data Center Leases/Licenses to which the Borrower is a party) title to, or valid leasehold interests (as applicable) in, all its material properties and assets necessary for the operation of the Project as contemplated hereby, except for Liens permitted under this Agreement. There is no breach or default, or condition that with notice and/or the passage of time would constitute a breach or default by the Borrower or any Obligor (nor, to the Borrower’s knowledge, by any counterparty thereto) under the Material Project Contracts or the Data Center Leases/Licenses to which the Borrower or any Obligor is a party, except in each case to the extent that such breach, default or condition would not reasonably to have any Material Adverse Effect.
Section 3.07 Equity Interests; Subsidiaries 2 changes
  1. (a) Schedule 3.07(a) sets forth as of the Second Amendment Effective dDate hereof 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.
  2. (b) The Borrower has no Subsidiaries[Reserved].
Section 3.08 Litigation; Compliance with Laws; Anti-Money Laundering Laws, Anti-Corruption Laws and San 5 changes
  1. (a) Except as set forth on Schedule 3.08(a), there are no actions, suits, investigations or proceedings at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending against, or, to the knowledge of the Borrower, threatened in writing against or affecting, the Borrower, any Obligor or any business, property or rights of the Borrower or any Obligor which (a) individually or in the aggregate would reasonably be expected to have a Material Adverse Effect or (b) purport to affect or pertain to any Loan Document or any Transaction.
  2. (b) None of the Material Project Contracts is subject to any action, suit, litigation, arbitration or administrative proceeding or dispute which is reasonably likely to be adversely determined against the Borrower, any Obligor or the Project and, if so adversely determined, would reasonably be expected to have a Material Adverse Effect.
  3. (c) (i) None of the Borrower or itsnor any Obligor, or any of their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any currently applicable law, rule or regulation, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) the Borrower and each Obigor holds all permits, licenses, registrations, certificates, approvals, consents, clearances and other authorizations from any Governmental Authority (“Governmental Approvals”) required under any currently applicable law, rule or regulation for the operation of its business as presently conducted, except as would not, individually or in the aggregate, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
  4. (d) The Borrower and each Obligor is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Data Protection Laws and Environmental Laws governing its business and the requirements of any permits issued under such Environmental Laws), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
  5. maintains in effect policies and procedures designed to promote and achieve compliance by the Borrower, and its directors, officers, employees and agents, with applicable Sanctions. The Borrower will not use, directly or knowingly indirectly, any part of any proceeds of the Loans: (A) to fund or facilitate any activities or business of, with or involving any Sanctioned Person in violation of applicable Sanctions or (B) in any manner that would constitute or give rise to a violation of Sanctions by any Person (including any Lender).
Section 3.09 Federal Reserve Regulations 1 change
  1. (a) None of the Borrower or any Obligor is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
Section 3.10 Investment Company Act 1 change
  1. Section 3.10. Investment Company Act. TheNeither the Borrower nor any Domestic Obligor is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended. The Borrower is not a “covered fund” under the Volcker Rule (Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act).
Section 3.11 Use of Proceeds 1 change
  1. Section 3.11. Use of Proceeds. The Borrower shall use the proceeds of the 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.
Section 3.12 Taxes 1 change
  1. Section 3.12. Taxes. Except as set forth in Schedule 3.12, the Borrower and each Obligor has timely filed (after giving effect to any applicable extensions) all federal, state and other tax returns and reports, domestic and foreign (as applicable), required to be filed by it and each such Tax return is complete and accurate and the Borrower or such Obligor has paid all Taxes, assessments, fees and other charges levied upon it or upon its properties, income or assets that are due and payable, other than those that are being contested in good faith and by appropriate proceedings and for which adequate reserves are being maintained in accordance with GAAP or the failure of which to be filed, complete, accurate or paid would not reasonably be expected to have a Material Adverse Effect. The Borrower is a disregarded entity of Parent for U.S. federal income tax purposes.
Section 3.13 No Material Misstatements 2 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 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, 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 or the other transactions contemplated hereby have been prepared in
Section 3.15 Environmental Matters 1 change
  1. Section 3.15. Environmental Matters. Except as set forth on Schedule 3.15 or for matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (a) no unresolved Environmental Claim or penalty under Environmental Laws has been received or incurred by the Borrower or any Obligor, and there are no judicial, administrative or other actions, suits or proceedings pending or, to the knowledge of any of the Borrower threatened against the Borrower or any Obligor, which allege a violation of or liability under any Environmental Laws, (b) the Borrower and each Obligor has obtained, and maintained in full force and effect, all permits registrations and licenses required by Governmental Authorities under Environmental Laws for the conduct of their businesses and operations as currently conducted and the Borrower and each Obligor is, and has been, in compliance with the terms and conditions of all such permits, registrations and licenses and with all applicable Environmental Laws, (c) each of the Borrower and the Obligors is not currently conducting, funding or responsible for any investigation, remediation, remedial action or cleanup of any Release of Hazardous Materials, (d) there has been no Release of Hazardous Materials by the Borrower, any Obligor, or by any other person, at any property currently or, to the knowledge of any of the Borrower, formerly owned or operated by the Borrower or any Obligor that would reasonably be expected to give rise to any liability of the Borrower or any Obligor or Environmental Claim against any of the Borrower or any Obligor under any Environmental Laws, (e) no Hazardous Material has been generated, owned, or controlled by the Borrower and transported for disposal or released at any location in a manner that would reasonably be expected to give rise to an Environmental Claim against the Borrower or other liability under Environmental Laws of the Borrower and (f) the Borrower has not entered into a contract to expressly assume, guarantee or indemnify any third party for any liability of any other Person arising under Environmental Law. Representations and warranties of the Borrower with respect to environmental matters (including Environmental Law and Hazardous Materials) are limited to those in this Section 3.15 unless expressly stated.
Section 3.16 Solvency 1 change
  1. Section 3.16. Solvency. On the date hereof and on the Closing Date, immediately after giving effect to the Transactions (i) the fair value of the assets (for the avoidance of doubt, calculated to include goodwill and other intangibles) of the Borrower and its Subsidiaries, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis, (ii) the present fair saleable value of the property of the Borrower and its Subsidiaries will be greater than the amount that will be required to pay the probable liabilities of the Borrower and its Subsidiaries on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, in each case, on a consolidated basis, (iii) the Borrower and its Subsidiaries will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured and (iv) the Borrower and its Subsidiaries will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
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 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 any of the Borrower (or, any predecessor) is a party or by which any of 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, taken as a whole.
Section 3.19 Insurance 1 change
  1. Section 3.19. Insurance. All insurance required to be obtained and maintained by the Borrower and its Subsidiaries pursuant to Section 5.02 and Schedule 5.02 has been obtained and is in full force and effect.
Section 3.20 Status as Senior Debt; Perfection of Security Interests 2 changes
  1. (a) On and after the date hereof, the Borrower’s obligations of the Borrower and the Obligors under the Loan Documents are secured and unsubordinated obligations and rank at least pari passu in priority of payment with all unsecured obligations of the Borrower and the Obligors, outstanding at any time except for any obligations of the Borrower or any Obligor held by those whose claims are preferred under any bankruptcy or insolvency procedures to the extent required by the terms of any applicable Laws.
  2. (b) Each Security Document delivered pursuant to Sections 4.01, 4.02 and 5.10 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 Capital Stock (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 can be obtained by filing financing statements, making such other filings specified therein or by possession, as security for the 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 3.22 Intellectual Property 1 change
  1. Section 3.22. Intellectual Property. Except as has not resulted in and would not reasonably be expected to have a Material Adverse Effect, (a) the Borrower and the Subsidiaries owns or hashave the right to use all patents, trademarks, service marks, trade names, domain names, copyrights, trade secrets, know-how, licenses and other intellectual property rights, including the Intellectual Property Collateral, which are necessary for the development, ownership and operation of the Project, including in accordance with the applicable Material Project Contracts, and (b) to the knowledge of the Borrower, no material product, process, method, service, substance, part or other material offered for sale, sold, contemplated to be sold or used by it in connection with its business infringes, misappropriates or violates any patent, trademark, service mark, trade name, domain name, copyright, trade secrets, know-how, license or other intellectual property right owned by any other Person.
Section 4.02 All Credit Events 5 changes
  1. (A) certificates, if any, representing the pledged Equity Interests referred to therein accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);
  2. (B) copies of proper financing statements, filed or duly prepared for filing under the UCC in all United States jurisdictions that are necessary or reasonably requested by the Required Lenders in order to perfect and protect the Liens created under the Collateral Agreement on assets of the Borrower, covering the Collateral described in the Collateral Agreement; and
  3. (C) evidence that all other actions, recordings and filings required by the Security Documents as of the Closing Date that are necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for, provided that the Collateral and Guarantee Requirement shall be deemed to have been satisfied so long as the Collateral Agent shall have received, on or prior to the Closing Date, (1) Uniform Commercial Code financing statements in appropriate form for filing by the Lenders or their counsel under the Uniform Commercial Code in the jurisdiction of incorporation or organization of the Borrower and (2) to the extent certificated or represented by an instrument, any certificates or instruments representing or evidencing Equity Interests in the Borrower and accompanied by instruments of transfer and stock powers undated and endorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);
  4. (iv) copies of a recent Lien, tax and judgment searches in each jurisdiction reasonably requested by the Administrative Agent with respect to the Borrower and Parent; and
  5. (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- 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.
Article V 1 change
  1. The Borrower covenants and agrees with the Agents and each Lender that from and after the Closing Date (unless expressly provided herein) until Payment in Full, the Borrower shall, and shall cause its Subsidiaries to:
Section 5.03 Payment of Tax Obligations 1 change
  1. Section 5.03. Payment of Tax Obligations. Pay and discharge promptly when due all Taxes imposed upon it or upon its income or profits or in respect of its property or assets, before the same shall become delinquent or in default; provided, however, that such payment and discharge shall not be required with respect to any such Tax to the extent (a) the validity or amount thereof shall be contested in good faith by appropriate proceedings, and the Borrower and its Subsidiaries shall maintain on their books reserves in accordance with GAAP with respect thereto or (b) the failure to pay, discharge or otherwise satisfy such obligations would not reasonably be expected to have a Material Adverse Effect.
Section 5.04 Financial Statements, Reports, Etc 8 changes
  1. (a) within 120 days (or, with respect to the fiscal year ending December 31, 2024, 150 days) after the end of each fiscal year of the Parent and the Borrower (which period for delivery may be extended by the Administrative Agent at the direction of the Lender Representative (and notified by the Lender Representative to the other Lenders)), starting with the fiscal year ending December 31, 2024, a balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Parent, the Borrower and the Subsidiaries of the Borrower, as of the close of such fiscal
  2. year and the results of its operations during such year and setting forth in comparative form, commencing with the fiscal year ending December 31, 2025, the corresponding figures for the prior fiscal year, all audited by independent accountants of recognized national standing reasonably acceptable to the Administrative Agent at the direction of the Required Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respect (other than resulting from (x) the impending maturity of any Indebtedness or (y) any actual or prospective breach of any financial covenant contained in any Indebtedness)) to the effect that such financial statements fairly present, in all material respects, the financial position and results of operations of the Parent, the Borrower and the Subsidiaries of the Borrower, in accordance with GAAP;
  3. (b) within 60 days after the end of each of the first three full fiscal quarters of each fiscal year of the Parent and the Borrower, starting with the fiscal quarter ended on September 30, 2024, a balance sheet and related statements of operations and cash flows showing the financial position of the Parent and, the Borrower and the Subsidiaries of the Borrower, as of the close of such fiscal quarter and the results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form, commencing with the fiscal quarter ending September 30, 2025, the corresponding figures for the corresponding periods of the prior fiscal year, all certified by a Financial Officer of the Parent and the Borrower, on behalf of the Parent and the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Parent and Borrower, in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
  4. (c) promptly after the same become publicly available, copies of all periodic and other available reports, proxy statements and, other materials filed by the Parent, the Borrower and the Subsidiaries of the Borrower with the SEC, or after an initial public offering, distributed to its stockholders generally, if and as applicable;
  5. (e) within 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 Agreement and, (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 and (vi) concurrently with the delivery of the financial statements pursuant to Sections 5.04(a) and (b), the accuracy of such financial statements;
  6. (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower, the Subsidiaries of the Borrower, the Parent or the Project, or compliance with the terms of any Loan Document, in each case of this Section 5.04(g), as the Administrative Agent (on behalf of itself or any Lender) may reasonably request, including documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and
  7. (h) (i) prior to a Qualified IPO, no later than ten (10) Business Days prior to any Quarterly Payment Date (commencing with the first Quarterly Payment Date with respect to the first full Quarterly Date to occur after the Commitment Termination Date), a summary of projected cash revenues (to be based on billing rates, start dates, end dates and other applicable terms of all IG Contracts and Non-IG Contracts) in a manner substantially consistent with how such summary is illustrated in Exhibit M. and (ii) prior to any payment of any Operating Expense and in accordance with Section 5.25, no later than five (5) Business Days prior to such payment of Operating Expenses (or such later date as agreed by the Lead Lenders in writing), the Borrower shall deliver to the Administrative Agent, the Lenders and the Lender Representative a certificate executed by the Chief Financial Officer certifying (1) to the amount of Available Cash to be withdrawn with respect to such payment of Operating Expenses with respect to such date payment of Operating Expenses, (2) to the amount of Available Cash projected to remain in the Available Cash Account after giving effect to the withdrawal described in the immediately preceding clause (1) with respect to such date of payment of Operating Expenses and (3) that the amount resulting from the calculation described in the immediately preceding clause (2) with respect to such date of payment of Operating Expenses shall be no less than the scheduled cash interest and scheduled principal payments, in each case, due and payable by the Borrower with respect to the next Quarterly Payment Date.
  8. 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, Form 10-K or 10-Q, 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 reasonable 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 to the Administrative Agent (which shall furnish to the Lenders) upon request.
Section 5.05 Litigation and Other Notices 6 changes
  1. Section 5.05. Litigation and Other Notices. Furnish to the Administrative Agent (which shall furnish to the Lenders) written notice of the following promptly (and, in any event in the case of clause (a) below, within three (3) Business Days) after any Responsible Officer of the Borrower, Parent or any Subsidiary obtains actual knowledge thereof:
  2. (b) the filing or commencement of, or any written threat or written notice of intention of any Person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Borrower, the Subsidiaries of the Borrower or the Project as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;
  3. (c) any breach or default under any Material Project Contract or Data Center Lease/License that would reasonably be likely to result in the termination, suspension or revocation of such Material Project Contract or Data Center Lease/License to which the Borrower or any Subsidiary of the Borrower is a party;
  4. (d) any casualty, damage or loss to the Project (or any portion thereof), whether or not insured, through fire, theft, other hazard or casualty, or any act or omission of the Borrower or its Subsidiaries, of its employees, agents contractors, consultants or representatives, or of any other Person, if such casualty, damage or loss affects the Borrower, the Subsidiaries of the Borrower or the Project in an amount in excess of $75,000,000;
  5. (f) any (i) noncompliance with any Environmental Law at the Project or any Release of Hazardous Materials at, on or from the Project, in each case that would reasonably be expected to have a Material Adverse Effect, or (ii) pending or, to the Borrower’s or any of its Subsidiaries’ knowledge, threatened, Environmental Claim against the Borrower, the Subsidiaries of the Borrower or the Project that would reasonably be expected to have a Material Adverse Effect;
  6. (h) any other development specific to the Borrower, the Subsidiaries of the Borrower or the Project that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect.
Section 5.07 Maintaining Records; Access to Properties and Inspections 1 change
  1. Section 5.07. Maintaining Records; Access to Properties and Inspections. Maintain all financial records in accordance with GAAP and permit any Persons designated by the Lender Representative or, upon the occurrence and during the continuance of an Event of Default, any Lender to visit and visually inspect the financial records and the properties of the Borrower or its Subsidiaries at reasonable times, upon reasonable prior notice to the Borrower, and as often as reasonably requested and to make extracts from and copies of such financial records, and permit any Persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender, upon reasonable prior notice to the Borrower to discuss the affairs, finances and condition of the Borrower or its Subsidiaries with the officers thereof, or the general partner, managing member or sole member thereof, and independent accountants therefor (subject to reasonable requirements of confidentiality, including requirements imposed by law or by contract, or attorney-client or similar privilege); provided that, during any calendar year absent the occurrence and continuation of an Event of Default, one (1) visit by the Administrative Agent (or any Person designated by the Administrative Agent) shall be at the Borrower’s expense.
Section 5.10 Preservation of Rights; Further Assurances 4 changes
  1. Section 5.10. Preservation of Rights; Further Assurances. The Borrower shall and shall cause its Subsidiaries to:
  2. (b) take all such further actions (including the filing and recording of financing statements, and other documents and recordings of Liens in stock registries, as applicable), that may be required under any applicable law, or that the Lender Representative may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Borrower (including any stamp duty), and provide to the Lender Representative, from time to time upon reasonable request evidence reasonably satisfactory to the Lender Representative as to the perfection and priority of the Liens created or intended to be created by the Security Documents; and
  3. (c) (i) furnish to the Collateral Agent prompt written notice of any change (A) in the Borrower’s corporate or organization name of the Borrower or its Subsidiaries, (B) in the Borrower’s identity or organizational structure of the Borrower or its Subsidiaries or (C) in the Borrower’s principal place of business or location (as defined in Section 9-307 of the UCC) of the Borrower or its Subsidiaries; provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
  4. (d) solely with respect to any Subsidiary of the Borrower, on any date on which the representations and warranties set forth in Article III are required to be true and correct (either in all material respects or otherwise), ensure that the representations and warranties set forth in Section 3.17 shall be true and correct as it relates to such Subsidiary as of such date (it being agreed and understood that, solely for the purposes of this Section 5.10(d), any reference to “Borrower” in Section 3.17 shall be deemed to be a reference to such Subsidiary).
Section 5.12 Anti-Money Laundering Laws; Anti-Corruption Laws and Sanctions 1 change
  1. (a) . Policies and procedures will be maintained and enforced by or on behalf of the Borrower and its Subsidiaries that are reasonably designed to promote and achieve compliance, by the Borrower, its Subsidiaries and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities.
Section 5.13 Limited Purpose Status of Borrower and Obligors 1 change
  1. Section 5.13. Limited Purpose Status of Borrower and Obligors. Borrower shall and, to the extent required by the Lead Lenders (and to the extent applicable and not prohibited by applicable laws or regulations), the Borrower shall cause the Obligors, to (i) maintain its status as a limited purpose entity, subject to customary “special-purpose entity” provisions as set forth in the Borrower’s organizational documents in effect as of the date of the Agreement, (ii) shall not amend or modify its organizational documents without the consent of the Administrative Agent (acting on the written direction of the Required Lenders) and, to the extent such amendment or modification affects such “special-purpose entity” provisions, the consent of the Required Lenders (and in each case, which such consent shall not be unreasonably withheld or delayed), and (iii) maintain at least one “independent manager” or “independent director” approved by the Required Lenders.
Section 5.14 Separateness 10 changes
  1. (a) . Borrower shall conduct its business such that it is a separate and readily identifiable business from, and independent of, any other Person (other than its Subsidiaries), and further covenants that it shall:
  2. (ii) (b) maintain its assets and liabilities separate and distinct from those of each other Person, and will not commingle its assets with those of any other Person;
  3. (iii) (c) maintain its accounts and funds separate and distinct from the accounts and funds of each other Person and will receive, deposit, withdraw and disburse its funds separately from any funds of any other Person;
  4. (iv) (d) maintain records, books, accounts and minutes separate from those of any other Person;
  5. (vi) (f) maintain an arm’s-length relationship with its Affiliates (except as otherwise permitted by this Agreement);
  6. (vii) (g) maintain separate financial statements from each other Person, or if part of a consolidated group, then it will be shown as a separate member of such group;
  7. (viii) (h) use separate invoices and checks from those of each other Person;
  8. (ix) (i) hold itself out as a separate entity (except for U.S. federal (and applicable state and local) income tax purposes);
  9. (xi) (k) observe all corporate or other procedures required under applicable Law and under its constitutive documents; and
  10. (b) To the extent not prohibited by applicable laws or regulations, each Obligor shall conduct its business such that it is a separate and readily identifiable business on terms satisfactory to the Lead Lenders.
Section 5.15 Collateral Accounts 4 changes
  1. (a) On and after the Closing Date, the Borrower will 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 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) On and after the Closing Date, the Borrower will deposit, or use reasonable best efforts to cause to be deposited, as soon as practicable following the receipt thereof, all Available Cash into the Available Cash Account in accordance with the terms of this Agreement.
  3. (c) On and after the Closing Date, the Borrower will deposit, or use reasonable best efforts to cause to be deposited, as soon as practicable following the receipt thereof, all other amounts required to be deposited into a Collateral Account into such Collateral Account in accordance with the terms of this Agreement.
  4. (d) On and after the Second Amendment Effective Date each Obligor shall (1) maintain Collateral Accounts in a manner satisfactory to the Lead Lenders, (2) to the extent such Obligor receives any payment provided with respect to a Master Services Agreement, direct all counterparty payors with respect to such payments to deposit such funds directly into such accounts in a manner satisfactory to the Lead Lenders and (3) to deposit within three (3) Business Days after receipt thereof, or in the case of any counterparty to a Master Services Agreement who deposits such funds to an account other than a Collateral Account despite instructions to deposit such funds in a Collateral Account, cause to be deposited, following the receipt thereof, all other amounts required to be deposited into a Collateral Account in a manner satisfactory to the Lead Lenders.
Section 5.16 Payment of Obligations 1 change
  1. Section 5.16. Payment of Obligations. The Borrower and its Subsidiaries shall (i) pay and discharge, at or before maturity, all of its respective obligations and liabilities, excluding Tax liabilities and other governmental claims, except where the same may be contested in good faith by appropriate proceedings and (ii) shall maintain, in accordance with GAAP, reserves as appropriate for the accrual of any of the same except, in each case, to the extent a non-compliance would not reasonably be expected to have a Material Adverse Effect.
Section 5.17 Compliance with Data Protection Laws 1 change
  1. Section 5.17. Compliance with Data Protection Laws. (a) Comply, and make commercially reasonable efforts to cause its directors, officers, employees and agents (in their respective capacities as such) to comply, with all Data Protection Laws applicable to its business and operations, (b) maintain written policies and procedures by or on behalf of the Borrower that are reasonably designed to promote and achieve compliance by, the Borrower and its directors, officers, employees and agents (in their respective capacities as such), with Data Protection Laws applicable to its business and operations and (c) perform any investigation or remedial action to the extent required by Governmental Authorities under Data Protection Laws, in each except, except to the extent a non-compliance would not reasonably be expected to have a Material Adverse Effect.
Section 5.18 Lender Calls 1 change
  1. Section 5.18. Lender Calls. Starting with the fiscal quarter ended September 30, 2024, 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 reasonably 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 reasonably agree) after the execution of any Data Center Lease/License by the Borrower or its Subsidiaries, 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 reasonably 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 2 changes
  1. (a) The Borrower shall, as soon as reasonably practicable but in no event later than sixty (60) days after the Closing Date (or such later date as the Lender Representative may reasonably agree) deliver to the Administrative Agent a duly executed Control Agreement with respect to each Collateral Account (except with respect to the Available Cash Account) between the Borrower, the Collateral Agent and each depositary bank at which each such Collateral Account is located.
  2. (b) No later than one hundred twenty (120) days after the Closing Date (or such later date as the Lender Representative may reasonably agree), 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 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 reasonably 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 Date.
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 to promptly accept the applicable GPU Clusters with respect to such IG Contract or Non-IG Contract in accordance with the terms of the applicable IG Contract or Non-IG Contract and (b) promptly provide invoices to such customer for the Services rendered under the applicable IG Contract or Non-IG Contract in accordance with the terms thereof.
Section 5.22 Serial Numbers 1 change
  1. Section 5.22. Serial Numbers. The Borrower shall provide the Lenders within sixty (60) days after the date of each Borrowing with the serial numbers with respect to the applicable GPU Servers (if any) that were acquired by the Borrower or its Subsidiaries with the proceeds of such Borrowing.
Section 5.23 Additional Obligors 7 changes
  1. Section 5.23. Additional Obligors.
  2. (a) The Borrower shall provide the Lenders with 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.
  3. (b) Prior to any Person becoming a Subsidiary of the Borrower, the structure and governance of such Subsidiary shall be in form and substance satisfactory to the Lead Lenders. No Person shall become a Subsidiary or an Obligor to the extent the Lead Lenders determine that the grant of security or Guarantee therefrom would result in any adverse tax consequences to the Lenders.
  4. (c) If any Person shall have become a Subsidiary of the Borrower, then the Borrower shall, within 60 days thereafter (or such later date as the Lead Lenders may agree), cause such Subsidiary to:
  5. (i) enter into, execute and deliver to the Collateral Agent such Security Documents as are requested by the Lead Lenders in form and substance satisfactory to the Lead Lenders,
  6. (ii) (if not already so delivered) deliver certificates (or the foreign equivalent thereof, as applicable) representing the Pledged Interests 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
  7. (iii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates requested by the Lead Lenders or the Collateral Agent or required under the Loan Documents, including, but not limited to, copies of organizational documents, resolutions and a signed copy of one or more customary legal opinions of counsel addressed to the Collateral Agent and the other Secured Parties, in each case, in form and substance satisfactory to the Lead Lenders.
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 with proceeds of the Loans (to the extent such Loans are drawn on or after the Second Amendment Effective Date), 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 equal to the product of (x) two (2) percent and (y) the total costs of such GPU Servers, individually and in the aggregate.
Section 5.25 Payment of Operating Expenses 1 change
  1. Section 5.25. Payment of Operating Expenses. The Borrower and the Obligors shall ensure that (and as evidenced by the applicable certificate delivered pursuant to Section 5.04(h)(ii)), immediately prior to paying any Operating Expenses on the date of payment of such Operating Expenses, there is sufficient Available Cash in the Available Cash Account as of such date of determination in an amount such that, after giving effect to the payment of such Operating Expenses, the remaining amount of Available Cash in the Available Cash Account shall be sufficient to make the principal payments required pursuant to Section 2.08 and the accrued interest calculated pursuant to Section 2.11 on the Quarterly Payment Date immediately succeeding the date of such payment of Operating Expenses.
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 sixty (60) days after the Second Amendment Effective Date (or such later date as the Lead Lenders may agree) deliver to the Administrative Agent a duly executed perfection certificate satisfactory to the Lead Lenders.
Article VI 1 change
  1. The Borrower covenants and agrees with each Lender that from and after the Closing Date (unless expressly provided herein) until Payment in Full, the Borrower shall not, and shall not permit any of its Subsidiaries to:
Section 6.02 Liens 1 change
  1. (a) Liens on property or assets of the Borrower existing on the Closing dDate hereof and set forth on Schedule 6.02(a); provided that such Liens shall secure only those obligations that they secure on the date hereof;
Section 6.04 Investments, Loans and Advances 1 change
  1. 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 Project Contracts or GPU Servers, shall be made to any non-Obligor Affiliate of an Obligor, Parent, or any Affiliate of Parent, in each case, without the prior consent of the Lead Lenders.
Section 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions 2 changes
  1. (c) issuances of common Equity Interests (i) by the Borrower to Parent (or (ii) by any Subsidiary of the Borrower to the Borrower (in each case, so long as all such common Equity Interests are subject to the Liens granted under the Security Documents in accordance with the terms of the Collateral and Guarantee Requirement);
  2. provided that, in no event shall the Borrower or any of its Subsidiaries Dispose of any GPU Servers other than (i) as otherwise permitted in Section 6.05(d) above, (ii) Dispositions by the Borrower to any of the Obligor with the prior consent of the Lead Lenders and (iii) Dispositions by any Obligor to another Obligor or to the Borrower with the prior consent of the Lead Lenders.
Section 6.06 Restricted Payments 2 changes
  1. Section 6.06. Restricted Payments. Pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests of the Person paying such dividends or distributions) or redeem, purchase, retire or otherwise acquire for value any shares of any class of its Equity Interests or set aside any amount for any such purpose, or make any payment to an Affiliate in respect of any compensation, management, consulting, advisory or other fees, bonuses or commissions (each, a “Restricted Payment”); provided, however, that the Borrower or any of its Subsidiaries may make Restricted Payments in the following circumstances:
  2. (d) the repurchase, redemption, retirement or other acquisition of Equity Interests from former or current employees, officers, directors, consultants, Affiliates or other persons performing services for the Borrower, any Subsidiary of the Borrower or the Parent or any direct or indirect Subsidiary of the Parent pursuant to the terms of stock repurchase plans, restricted stock agreements or similar agreements under which the Borrower, any Subsidiary of the Borrower or Parent or any direct or indirect Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal, 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) 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); provided that, the aggregate Restricted Payments made under this clause (d) shall not (I) exceed (i) prior to a Qualified IPO, $100,000,000 in any fiscal year and (ii) after the occurrence of a Qualified IPO, the greater of (x) $50,000,000 and (y) ten percent (10%) of Consolidated EBITDA or (II) be used to repurchase, redeem, retire or otherwise acquire the Equity Interest of the Parent held by any Excluded Management Person;
Section 6.07 Transactions with Affiliates 5 changes
  1. Agreement or (y) upon terms no less favorable to the Borrower or such Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate (as confirmed in a letter addressed to the board of directors (or equivalent governing body) of the Borrower or such Subsidiary from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is (i) in the good faith determination of the Borrower or such Subsidiary qualified to render such letter and (ii) reasonably satisfactory to the Required Lenders); provided that this Section 6.07 shall not apply to:
  2. (a) the indemnification of directors (or persons holding similar positions for non-corporate entities) of the Borrower or any Subsidiary of the Borrower in accordance with customary practice;
  3. (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); and
  4. (d) any customary transactions effected as part of a Permitted Takeout.; and
  5. (e) any transaction between the Borrower and an Obligor otherwise permitted under Article VI.
Section 6.08 Business of the Borrower;Joint Ventures 3 changes
  1. Section 6.08. Business of the Borrower; SubsidiariesJoint Ventures
  2. (a) Fundamentally alter the character of the business of the Borrower and its Subsidiaries from the business conducted by, contemplated to be conducted by or proposed to be conducted by, the Borrower onas of the Closing dDate hereof, and other business activities which are extensions thereof or otherwise incidental, synergistic, reasonably related, or ancillary to any of the foregoing.
  3. (b) Have any Subsidiaries or eEnter into any joint venture (except in connection with a Permitted Takeout).
Section 6.09 Negative Pledge Agreements 1 change
  1. Section 6.09. Negative Pledge Agreements. Enter into any agreement or instrument that by its terms prohibits the granting of Liens by the Borrower or any Subsidiary pursuant to the Security Documents other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:
Section 6.10 Material Project Contracts 3 changes
  1. (g) enter into, become a party to, or otherwise become liable under any agreement for the provision of infrastructure as a service, platform as a service, products (including the web portal and domains), services (such as support and service level commitments) and solutions to be provided by the Borrower or any Subsidiary of the Borrower other than in connection with the Master Services Agreements or any Additional Services Agreement.; or
  2. (h) enter into, become a party to, or otherwise become liable under any agreement that could be expected to restrict, tamper with, extract value from or trade new rights or obligations in exchange for modifications of Material Project Contract.
  3. Notwithstanding the foregoing or any other term of this Agreement or any Loan Document, 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.
Section 7.01 Events of Default 12 changes
  1. (a) any representation or warranty made or deemed made by the Borrower, any of its Subsidiaries or the Parent in any Loan Document, or any representation or warranty contained in any certificate furnished in connection with or pursuant to any Loan Document, shall prove to have been incorrect in any material respect (or, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in any respect) when so made or deemed made and thirty (30) days have elapsed from the date a Responsible Officer of the Borrower, any Subsidiary or the Parent, as applicable, obtains knowledge thereof unless, in the case of an incorrect representation or warranty that is capable of being cured, corrected or otherwise remedied, such incorrect representation or warranty is cured, corrected or otherwise remedied and (as cured, corrected or remedied) would not reasonably be expected to result in a Material Adverse Effect;
  2. (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, Subsidiary Guarantee, Pledge 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;
  3. (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, Subsidiary Guarantee, Pledge Agreement or any other Security Document, which is covered under clause (b) above), when and as the same is due and payable, and such default shall continue unremedied for a period of three (3) Business Days; provided that it shall not be an Event of Default under this clause (c) if the Cure Right is exercised and satisfied in accordance with Section 7.03 on or prior to the Anticipated Cure Deadline;
  4. (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) (solely with respect to the Borrower), 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 the Liquidity Cure Right is exercised and satisfied in accordance with Section 6.12(d)(ii) on or prior to the Liquidity Cure Deadline; provided, however, 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), (c) and (e) 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 reasonably agree), the Borrower or any of its Subsidiaries enters into additional IG Contracts and Non-IG Contracts, as applicable, 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) if the Cure Right is exercised and satisfied in accordance with Section 7.03 on or prior to the Anticipated Cure Deadline;
  5. (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, Subsidiary Guarantee, Pledge Agreement and any other Security Document, such default shall continue unremedied for a period of thirty (30) days thereafter;
  6. (f) (i) the Borrower, any Subsidiary or the Parent shall fail to make any payment beyond the applicable grace period with respect thereto, if any, in respect of any Material Indebtedness (which, in the case of the Parent, shall be limited to Material Indebtedness (excluding, for the avoidance of doubt, the Material Indebtedness described in subclause (f)(iii) below) constituting working capital lines or revolving facilities provided by financial institutions which are not Affiliates of the Parent) at the final stated maturity thereof, (ii) the Borrower, its Subsidiaries or the Parent shall fail to observe or perform any other agreement or condition relating to any Material Indebtedness (which, in the case of the Parent, shall be limited to Material Indebtedness (excluding, for the avoidance of doubt, the Material Indebtedness described in subclause (f)(iii) below) constituting working capital lines or revolving facilities provided by financial institutions which are not Affiliates of the Parent), or any other event occurs with respect to such Material Indebtedness, and, in each case, continues beyond the applicable grace period with respect thereto, the effect of which default or other event is to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity and (iii) the Parent shall fail to observe or perform any other agreement or condition relating to the 2021 Note Issuance Agreement (to the extent constituting Material Indebtedness), or any other event occurs with respect to such Material Indebtedness, and, in each case, continues beyond the applicable grace period with respect thereto, the effect of which default or other event is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity; provided that, for avoidance of doubt, this Section 7.01(f) shall not apply to (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness or (B) any event requiring a prepayment or offer to purchase pursuant to customary asset sale, casualty or condemnation event, change in control provision or excess cash flow sweeps;
  7. (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower, any Subsidiary, Parent, or of a substantial part of the property or assets of the Borrower, any Subsidiary or the Parent, taken as a whole, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Subsidiary, Parent or for a substantial part of the property or assets of the Borrower, any Subsidiary or Parent, taken as a whole, or (iii) the winding-up or liquidation of the Borrower, any Subsidiary or Parent; and, in each case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
  8. (i) the Borrower, any Subsidiary or Parent shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in Section 7.01(h), (iii) apply for, request or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Subsidiary or Parent or for a substantial part of the property or assets of the Borrower, any Subsidiary or the Parent, taken as a whole, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
  9. (j) the failure of the Borrower, any Subsidiary or the Parent to pay one or more final, non-appealable judgments aggregating in excess of, in the case of the Borrower or any Subsidiary, $15,000,000 or, in the case of the Parent, (x) prior to a Loan Balance Trigger Event (as defined in the Parent Guarantee and Pledge Agreement) $15,000,000 or (y) following the Loan Balance Trigger Date (as defined in the Parent Guarantee and Pledge Agreement), the greater of $150,000,000 and thirty percent (30%) of Consolidated EBITDA (as defined in the Parent Guarantee and Pledge Agreement) (in each case, net of any amounts which are covered by insurance or bonded), which judgments are not satisfied or discharged or effectively waived or stayed for a period of sixty (60) consecutive days;
  10. (l) (i) other than in accordance with the terms of any Loan Document, any such Loan Document shall for any reason cease to be in full force and effect, shall be declared void by a Governmental Authority or shall be asserted in writing by the Borrower, any Subsidiary or the Parent not to be a legal, valid and binding obligation of the Borrower, such Subsidiary or Parent party thereto, (ii) other than in accordance with the terms of any Loan Document, any security interest purported to be created by any Security Document and to extend to Collateral that is material to the Borrower, any Obligor or Parent on a consolidated basis shall cease to be, or shall be asserted in writing by the Borrower, such Obligor or Parent not to be, a valid and perfected security interest in the securities, assets or properties covered thereby, except to the extent that (x) any such loss of priority results from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or the Parent Guarantee and Pledge Agreement or any other Security Document, or (y) any such loss of validity, perfection or priority is the result of any failure by the Required Lenders to cause the Collateral Agent to take any action necessary to secure the validity, perfection or priority of the Liens or (iii) other than in accordance with the terms of the Loan Documents, the Guarantee pursuant to any Security Document by the Borrower, any Obligor or the Parent of any of the Obligations shall cease to be in full force and effect or shall be asserted in writing by the Borrower, such Obligor or the Parent not to be in effect or not to be legal, valid and binding obligations of the Borrower, such Obligor or the Parent party thereto;
  11. (m) (i) any Material Project Contract shall at any time for any reason cease to be valid and binding or in full force and effect or be rescinded, terminated or cancelled (except for expiration in accordance with its terms and not as a result of a breach or default thereunder by the Borrower or any of its Subsidiaries) or shall be suspended or enjoined or (ii) the Borrower, any of its Subsidiaries, the Parent or any counterparty to a Material Project Contract shall be in default (after any applicable notice, grace period or both) under any Material Project Contract provided, however, that none of the events described in this Section 7.01(m) will be an Event of Default if, within ninety (90) days after the earlier of any Responsible Officer of the Borrower, Parent 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 reasonably agree), the Borrower or any of its Subsidiaries replaces such affected Material Project Contract with an agreement in form and substance reasonably acceptable to the Required Lenders, is on substantially similar terms or terms that, taken as a whole, do not affect the Borrower’s ability to remain in compliance with its payment obligations hereunder and such agreement is with a comparable counterparty; or
  12. (n) any Data Center Lease/License shall at any time for any reason cease to be valid and binding or in full force and effect or be rescinded, terminated or cancelled (except for expiration in accordance with its terms and not as a result of a breach or default thereunder by the Borrower, any Subsidiary or the Parent) or shall be suspended or enjoined and any such event or circumstance under such Data Center Lease/License results in a breach of or default under any term or provision of a Master Services Agreement; provided, however, that none of the events described in this Section 7.01(n) will be an Event of Default if, within ninety (90) days after the earlier of any Responsible Officer of the Borrower, any Subsidiary or Parent 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 reasonably agree), the Borrower, such Subsidiary or Parent replaces such affected Data Center Lease/License with an agreement that is reasonably expected to allow the Borrower or any of its Subsidiaries to comply with all its obligations under the Master Services Agreements, and the Borrower shall have provided a certificate to the Administrative Agent confirming such replacement and compliance and attaching a copy of such replacement Data Center Lease/License.
Section 7.03 Right to Equity Cure 1 change
  1. (a) Notwithstanding anything to the contrary contained in Sections 7.01 or 7.02, in the event that a Cash Shortfall Event exists with respect to any Quarterly Payment Date 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), 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 equity in a form reasonably 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) and any corresponding Event of Default, prepay the Loans in accordance with Section 2.09(a), (3) with respect to the financial covenants set forth in Sections 6.12(a)-(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), as applicable, with respect to such applicable fiscal quarter for the purpose of determining compliance with the covenants set forth in Section 6.12 at the end of such fiscal quarter and the applicable subsequent periods and (4) with respect to the financial covenant set forth in Section 6.12(f) and 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, (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 Sections 6.12(e)-(f) 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 Sections 6.12(e)-(f) with respect to such fiscal quarter, without giving regards to the timing of the application of such Cure Equity).
Section 8.01 Appointment and Authority 1 change
  1. (b) Each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and authorizes U.S. Bank Trust Company, National Association to act as the Collateral Agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Borrower and each Obligor to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent, and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 8.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII (including Section 8.12) and Article IX as though the Collateral Agent, or such co-agents, sub-agents and attorneys-in-fact, were expressly referred to in such provisions.
Section 8.03 Liability of Agents 1 change
  1. Section 8.03. Liability of Agents. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), (b) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, the Collateral Agent, or any of their Affiliates in any capacity, (c) be responsible for or have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere herein, other than that the Agents shall confirm receipt of items expressly required to be delivered to the Agents, (d) be responsible for or have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent, (e) shall be deemed to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to a Responsible Officer of such Agent by the Borrower or a Lender or (f) be responsible in any manner to any Lender or Participant for any recital, statement, representation or warranty made by the Borrower or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, the existence, value, sufficiency or collectability of the Collateral, any failure to monitor or maintain any part of the Collateral, any loss or diminution in the value of the Collateral, or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, or for any failure of the Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or Participant to ascertain or to inquire as to the observance or performance of any of the covenants, agreements or other terms contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Borrower or any Affiliate thereof. Notwithstanding the foregoing, the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Agents are required to exercise as directed in writing by the Administrative Agent at the written instruction of the Required Lenders (in the case of the Collateral Agent) or the Required Lenders or the Lender Representative, as applicable (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents) together with indemnity or security satisfactory to the Agent; provided that the Agents shall not be required to take any action that, in its opinion 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, earthquakes, fire, flood, sabotage, epidemics, pandemics, riots, nuclear or natural 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 reasonablte efforts which are consistent with accepted practices in the baking industry to resume performance as soon as practicable under the circumstances).
Section 8.13 Appointment of Supplemental Agents 1 change
  1. (c) Should any instrument in writing from the Borrower or any Obligor be required by any Supplemental Agent so appointed by an Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrower or such Obligor shall execute, acknowledge and deliver any and all such instruments promptly upon request by such Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the applicable Agent until the appointment of a new Supplemental Agent.
Section 8.15 Enforcement 2 changes
  1. Section 8.15. Enforcement. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower or any of its Subsidiaries or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent or the Collateral Agent in accordance with Section 7.02 and the Security Documents for the benefit of all the Lenders or Secured Parties, as applicable; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent, as applicable) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.16(c)), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower or any of its
  2. Subsidiaries under any federal, state or foreign bankruptcy, insolvency, receivership or similar law; and provided, further, that if at any time there is no Person acting as the Administrative Agent or the Collateral Agent, as applicable, hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent or the Collateral Agent, as applicable, pursuant to Section 7.02 and the Security Documents, as applicable and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.16(c), any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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. 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 1 change
  1. (c) The Depositary Bank shall have no obligations other than to administer the 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 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. 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 8.20 Exculpatory Provisions 4 changes
  1. Section 8.20. Exculpatory Provisions. The Lender Representative and the Lead Lenders shall have no duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Lender Representative and the Lead Lenders shall not:
  2. (b) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and the Lender Representative and the Lead Lenders shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as the Lender Representative, Lead Lenders or any of itstheir Affiliates in any capacity.
  3. The Lender Representative and the Lead Lenders shall not be liable for any action taken or not taken by it (i) to the extent such actions are taken or not taken in accordance with the express terms of this Agreement, (ii) with the consent or at the request of the Required Lenders or (iii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.
  4. The Lender Representative and the Lead Lenders shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV.
Section 9.01 Notices 1 change
  1. (i) if to the Borrower or any of its Subsidiaries, to:
Section 9.15 Jurisdiction; Consent to Service of Process 2 changes
  1. (a) Each of the Borrower, the Obligors, the Agents and the Lenders hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. The Borrower and each Obligor further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the Borrower at the address specified for the Borrower and its Subsidiaries in Section 9.01. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement (other than Section 8.09 or Section 8.15) shall affect any right that any Lender or Agent may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or, its Subsidiaries or their respective properties in the courts of any jurisdiction.
  2. (b) Each of the Borrower, the Obligors, the Agents, and the Lenders hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court sitting in New York County. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 9.16 Confidentiality 2 changes
  1. any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, (ii) as part of reporting or review procedures to Governmental Authorities (including bank examiners) or the National Association of Insurance Commissioners, (iii) to its current and prospective leverage providers and financing sources, current and prospective limited partners, investors, valuation providers, consultants, parent companies, Affiliates or auditors (so long as each such Person shall have been instructed to keep the same confidential in accordance with this Section 9.16); provided that, with respect to any disclosure pursuant to this clause (iii) (other than with respect to ordinary course disclosures, including disclosures made pursuant to applicable legal or regulatory requirements) to a Person which is not an Affiliate of a Lender or Agent, the applicable Lender or Agent shall use commercially reasonable efforts to notify the Borrower of the information that it intends to disclose, in connection with the exercise of any remedies under any Loan Document or in order to enforce its rights under any Loan Document in a legal proceeding, (v) to any prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such Person (1) shall have been instructed to keep the same confidential in accordance with this Section 9.16 or on terms at least as restrictive as those set forth in this Section 9.16 and (2) is not a Disqualified Lender) in accordance with the standard processes of the Agent or customary market standards 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; 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.
  2. (b) The Borrower hereby agrees that each of the Lenders may place, with the consent of the Borrower, customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as they choose, and circulate similar promotional materials, after the final closing of the Transactions in the form of a “tombstone” or otherwise describing the names of the Borrower or any of its Subsidiaries, and in each case its subsidiaries (or any of them), and the amount, type and closing date of such Transactions, all at the expense of such Lender; provided that each Lender hereby agrees not to include the name of any other party in such advertisements or other materials without the prior written consent of such other party.
Section 9.17 Communications 1 change
  1. (b) Posting. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on IntraLinks, SyndTrak or a substantially similar electronic transmission system (the “Platform”). The Borrower hereby acknowledges that (i) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (ii) certain of the Lenders may have personnel who do not wish to receive material non-public information with respect to the Borrower or, its Subsidiaries, or their respective securities (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”. By marking Borrower Materials “PUBLIC,” the Borrower authorizes such Borrower Materials to be made available to a portion of the Platform designated “Public Investor,” which is intended to contain only information that is publicly available or not material information (though it may be sensitive and proprietary) with respect to the Borrower or, its Subsidiaries or their respective securities for purposes of United States federal and state securities laws or is of a type that would be publicly available if the Borrower or such Subsidiary was a public reporting company (in each case, as reasonably determined by the Borrower). Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC”. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable
Section 9.18 Release of Liens and Guarantees 7 changes
  1. (a) after Payment in Full, the Collateral shall be automatically released from any Liens created by the Loan Documents, and the Loan Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Lenders, the Borrower and the Subsidiaries of the Borrower under the Loan Documents shall terminate and the Parent shall be released from the Parent Guarantee and Pledge Agreement, all without delivery of any instrument or performance of any act by any Person.
  2. (b) except to the extent provided in the immediately succeeding clause (c), Collateral shall be released from the Liens created by the Loan Documents upon delivery of a certification from the Borrower and upon the approval, authorization or ratification in writing by such percentage of the Lenders whose consent is required by Section 9.08(b)(iv);
  3. (i) uUpon a Disposition of Collateral permitted hereunder and under the other Loan DocumentsArticle IV, the Collateral so Disposed; and
  4. (ii) upon the approval, authorization, or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 9.08(b)(iv)) of the release of any Collateral, such Collateral;
  5. (ii) (iii) uUpon a release of any Collateral under the terms of each applicable Security Document or upon such Collateral no longer being required to be perfected under the Collateral and Guarantee Requirement, such Collateral; orprovided that the release of any Obligor from its Obligations solely as a result of such Obligor no longer being a Subsidiary of the Borrower shall only be permitted upon delivery of a certification to the Administrative Agent from the Borrower and upon the approval, authorization or ratification in writing by the Lead Lender.
  6. (d) (c) the Parent shall be automatically released from the Parent Guarantee and Pledge Agreement without delivery of any instrument or performance of any act by any Person upon the approval, authorization or ratification in writing by such percentage of the Lenders whose consent is required by Section 9.08(b)(iv).;
  7. (e) (d) Inin connection with any termination or release of Collateral from the Liens securing the Obligations or a release of the Parent from the Parent Guarantee and Pledge Agreement, the Agents shall at the direction of the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 9.08(b)(iv)):
Section 9.19 PATRIOT Act and Similar Legislation 1 change
  1. Section 9.19. PATRIOT Act and Similar Legislation. Each of the Administrative Agent, the Collateral Agent and Lenders hereby notifies the Borrower and each Obligor that pursuant to the requirements of the PATRIOT Act and the customer due diligence requirements for financial institutions of the Financial Crimes Enforcement Network (as published at 81 FR 29397, 31 CFR 1010, 1020, 1023, 1024, and 1026), and similar legislation, as applicable, it is required to obtain, verify and record information that identifies the Borrower, each Obligor and itstheir direct and indirect beneficial owners, which information includes the name and address of the Borrower or such Obligor and other information that will allow the Administrative Agent, the Collateral Agent and the Lenders to identify time to time the Borrower or such Obligor and its direct and indirect beneficial owners in accordance with the PATRIOT Act and the customer due diligence requirements for financial institutions of the Financial Crimes Enforcement Network. The Borrower and each Obligor agrees to furnish such information promptly upon the reasonable request of a Lender. Each Lender shall be responsible for satisfying its own requirements in respect of obtaining all such information.
Section 9.21 No Fiduciary Duty 1 change
  1. Section 9.21. No Fiduciary Duty. Each Agent, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Borrower and its Subsidiaries. The Borrower hereby agrees that subject to applicable law, nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Agents, the Lenders and the Borrower, their equity holders, or their Affiliates. The Borrower hereby acknowledges and agrees that (a) the transactions contemplated by the Loan Documents are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower, on the other, (b) in connection therewith and with the process leading to such transaction none of the Lenders is acting as the agent or fiduciary of the Borrower, its management, equity holders, creditors or any other person, (c) no Lender has assumed an advisory or fiduciary responsibility in favor of the Borrower with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether any Lender or any of its Affiliates has advised or is currently advising the Borrower on other matters) or any other obligation to the Borrower except the obligations expressly set forth in the Loan Documents, (d) the Borrower has consulted its own legal and financial advisors to the extent it has deemed appropriate and (e) the Lenders may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates and no Lender has an obligation to disclose any such interests to the Borrower or its Affiliates. The Borrower further acknowledges and agrees that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Section 9.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 1 change
  1. Section 9.22. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything in this Agreement or any other Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any LenderPerson that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
Section 9.26 Erroneous Payments 1 change
  1. (d) The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the applicable Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge, or otherwise satisfy any Obligations owed by the Parent or, the Borrower or any Obligor; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the applicable Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower for the purpose of making a payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.

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