Exhibit 10.6
AMENDED AND RESTATED BRIDGE PROMISSORY NOTE
Amendment and Restatement Effective Date: August 10, 2022 (the “Amendment and Restatement Effective Date”)
Original Effective Date: March 18, 2022 (the “Original Effective Date”)
FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, GREENIDGE GENERATION HOLDINGS INC., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to the order of B. RILEY COMMERCIAL CAPITAL, LLC or its assigns (the “Noteholder,” and together with the Borrower, the “Parties”), the principal amount of Sixteen Million Three Hundred Eighty-Nine Thousand Seven Hundred Eighty-Two and 91/100 Dollars ($16,389,782.91), together with all accrued interest thereon and all accrued fees as provided in this Bridge Promissory Note (as amended, restated, supplemented, or otherwise modified from time to time, the “Note”).
“300 Jones Road” refers to 300 Jones Road LLC, a Delaware limited liability company and an indirect Subsidiary of the Borrower.
“Additional Incremental Amount” means $497,409.81 which amount, on the Amendment and Restatement Effective Date, shall be added to the outstanding principal amount of the Loan.
“Affiliate” as to any Person, means any other Person that, directly or indirectly through one or more intermediaries, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Amendment and Restatement Effective Date” has the meaning set forth above.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977.
“Applicable Rate” means the per annum rate equal to (i) from the Closing Date to but not including the Amendment and Restatement Effective Date, six percent (6.0%) and (ii) from and after the Amendment and Restatement Effective Date, seven and one-half percent (7.5%).
“Beneficial Ownership Regulation” has the meaning set forth Section 13.10.
“Borrower” has the meaning set forth in the introductory paragraph.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by law to close.
“Cash Equivalents” as to any Person, means (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such Person, (b) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any State thereof or, the District of Columbia having capital, surplus, and undivided profits aggregating in excess of Five Hundred Million and No/100 Dollars ($500,000,000.00), having maturities of not more than one year from the date of acquisition by such Person, (c) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (b) above, (d) commercial paper issued by any issuer rated at least A-1 by S&P or at least P-1 by Moody’s (or carrying an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally), and in each case maturing not more than two hundred and seventy (270) days after the date of acquisition by such Person, or (e) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through (d) above.
“Change of Control” means (a) any Person or group of persons within the meaning of § 13(d)(3) of the Securities Exchange Act of 1934 becomes the beneficial owner, directly or indirectly, of fifty percent (50%) or more of the outstanding Equity Interests of the Borrower, or (b) individuals who constitute the Continuing Directors of the Borrower on the Original Effective Date cease for any reason to constitute at least a majority of the board of directors of the Borrower, or (c) Borrower shall cease to own and control, of record and beneficially, directly or indirectly, one hundred percent (100%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of any Guarantor.
“Closing Date” means the date on which the conditions precedent set forth in Section 12 are satisfied or waived.
“Continuing Director” means a director who either was a member of the board of directors of the Borrower on Original Effective Date or who becomes a member of the board of directors subsequent to that date and whose election, appointment or nomination for election by the stockholders of the Borrower is duly approved by a majority of the continuing directors on the board of directors at the time of such approval by such election or appointment.
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“Debt” of means as to any Person (the “primary obligor”), without duplication, all (a) indebtedness for borrowed money; (b) obligations for the deferred purchase price of property or services, except trade payables arising in the ordinary course of business which are not past due; (c) obligations evidenced by notes, bonds, debentures, or other similar instruments; (d) obligations as lessee under capital leases; (e) obligations in respect of any interest rate swaps, currency exchange agreements, commodity swaps, caps, collar agreements, or other hedge agreements entered into by the primary obligor providing for protection against fluctuations in interest rates, currency exchange rates, or commodity prices, or the exchange of nominal interest obligations, either generally or under specific contingencies; (f) obligations under acceptance facilities and letters of credit; (g) guaranties, endorsements (other than for collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in, or otherwise to assure a creditor against loss, in each case, in respect of indebtedness set out in clauses (a) through (f) of a Person other than the primary obligor; (h) indebtedness set out in clauses (a) through (g) of a Person other than the primary obligor secured by any lien on any asset of the primary obligor, whether or not such indebtedness has been assumed by the primary obligor; and (i) indebtedness of any partnership, unlimited liability company, or unincorporated joint venture in which the primary obligor is a general partner, member, or a joint venturer, respectively (unless such Debt is expressly made non-recourse to the primary obligor).
“Default” means any of the events specified in 2210 which constitute an Event of Default or which, upon the giving of notice, the lapse of time, or both, pursuant to 2210, would, unless cured or waived, become an Event of Default.
“Default Rate” means the Applicable Rate plus 9.0%.
“Disposition” or “Dispose” means the sale, transfer, license, lease, or other disposition (whether in one transaction or in a series of transactions, and including any sale and leaseback transaction) of any asset or property (including, without limitation, any Equity Interests) by any Person (or the granting of any option or other right to do any of the foregoing), 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.
“Dollars” means the lawful currency of the United States.
“ELOC” means that certain $500.0 million committed equity line of credit evidenced by that certain Purchase Agreement, dated as of April 7, 2022 (as amended, restated, supplemented or otherwise modified from time to time), between the Borrower and B. Riley Principal Capital, LLC.
“Environmental Law” means any federal, State and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, that, at any time, apply to Borrower and Guarantor or the Property and relate to Hazardous Materials, including, without limitation, the
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Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act.
“Environmental Report” refers to the environmental report delivered to Noteholder in connection with the Mortgage, such environmental report to be in form, scope and substance satisfactory to the Noteholder.
“Equity Interests” means any and all shares, interests, participations, or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership (or profit) interests in a Person (other than a corporation), securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person, and any and all warrants, rights, or options to purchase any of the foregoing, whether voting or nonvoting, and whether or not such shares, warrants, options, rights, or other interests are authorized or otherwise existing on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of §4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under §414 of the Code.
“Event of Default” has the meaning set forth in 2210.
“Fee Letter” means, individually and collectively, that certain (i) Fee and Advisory Letter, dated as of the Original Effective Date, between the Borrower and B. Riley Securities, Inc., (ii) Advisory Fee Letter, dated as of the Amendment and Restatement Effective Date, between the Borrower and B. Riley Securities, Inc. and (iii) each other Fee Letter entered into between the Borrower, Noteholder and/or B. Riley Securities, Inc. in connection with this Note; each as amended, restated, supplemented, or otherwise modified from time to time.
“GAAP” means generally accepted accounting principles, consistently applied, in the United States of America as in effect from time to time.
“Guarantor” means, individually and collectively as the context requires, (i) Greenidge South Carolina LLC, a Delaware limited liability, (ii) GSC RE LLC, a Delaware limited liability company, (iii) 300 Jones Road, and (iv) each other Person that becomes a guarantor hereunder pursuant to the terms hereof.
“Guaranty” means, collectively and individually as the context may require, (i) that certain Guaranty, dated as of the Original Effective Date, executed by Greenidge South Carolina LLC, a Delaware limited liability company, in favor of the Noteholder, (ii) that certain Guaranty, dated as of the Original Effective Date, executed by GSC RE LLC, a Delaware limited liability, in favor of the Noteholder, (iii) that certain Guaranty, dated as of
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the Original Effective Date, executed by 300 Jones Road in favor of the Noteholder, and (iv) each other guaranty executed after the Original Effective Date by any Person in favor of the Noteholder to guarantee the obligations under this Note and the other Loan Documents; in each case, as amended, restated, supplemented or otherwise modified ad/or confirmed from time to time.
“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government, in each case, as the context may require, having jurisdiction over any of the Parties, any of the Loan Documents, or any collateral of the Loan.
“Indemnified Party” has the meaning set forth in Section 13.2(b).
“Interest Payment Date” means, subject to Section 3.2 and Section 3.3, the twentieth day of each calendar month, commencing on April 20, 2022.
“Investments” has the meaning set forth in Section 9.5.
“Law” as to any Person, means the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law (including common law), statute, ordinance, treaty, rule, regulation, order, decree, judgment, writ, injunction, settlement agreement, requirement or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Lien” means with respect to any Person, any security interest, lien, encumbrance or other similar interest granted or suffered to exist by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person (including an interest in respect of a capital lease) which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.
“Loan” means the loan evidenced by this Note.
“Loan Documents” means, collectively, this Note, the Fee Letter, each Guaranty, the Mortgage, any other collateral security agreements or assignments and all other agreements, confirmations, documents, certificates, and instruments executed and delivered to the Noteholder by the Borrower or any Guarantor in connection therewith, in each case as any or all of the same may be supplemented, amended, restated and/or replaced from time to time.
“Mandatory Repayment” has the meaning set forth in Section 3.3.
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“Margin Regulations” means Regulations T, U and X of the Federal Reserve Board, as amended.
“Margin Stock” means “margin stock” as defined in the Margin Regulations, including any debt security which is by its terms convertible into “Margin Stock”.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower or any Guarantor; (b) the validity or enforceability of the Note, any Guaranty, the Mortgage or any other Loan Document; (c) the perfection or priority of any Lien purported to be created under the Mortgage; (d) the rights or remedies of the Noteholder hereunder, under any Guaranty, under the Mortgage or under any other Loan Document; or (d) the Borrower’s or, as applicable, a Guarantor’s ability to perform any of its material obligations hereunder, under the applicable Guaranty, under the Mortgage or under any other Loan Document.
“Material Contracts” with respect to any Person, means each contract to which such Person is a party involving aggregate consideration payable by or to such Person equal to at least Five Million and No/100 Dollars ($5,000,000.00) annually or which is otherwise material to the business, condition (financial or otherwise), operations, performance, properties, or prospects of such Person.
“Maturity Date” means the earlier of (a) June 20, 2023 and (b) the date on which all amounts under this Note shall become due and payable pursuant to 2511.
“Mortgage” means the Hypothecated Mortgage, Assignment of Rents and Security Agreement from 300 Jones Road to the Noteholder with respect to the Property (as amended, restated, supplemented or otherwise modified and/or confirmed from time to time).
“Multiemployer Plan” means a Plan which is a multiemployer plan as defined in § 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions.
“net cash proceeds” means, as of the date of determination, any cash proceeds net of underwriting discounts or commissions, and legal, accounting and other expenses directly related to the applicable offering.
“Note” has the meaning set forth in the introductory paragraph.
“Noteholder” has the meaning set forth in the introductory paragraph.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Original Effective Date” has the meaning set forth above.
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“Original Loan Amount” means the loan funded on the Closing Date and evidenced by this Note in the aggregate original principal amount of Twenty-Six Million Five Hundred Thousand and No/100 Dollars ($26,500,000.00).
“Parties” has the meaning set forth in the introductory paragraph.
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law October 26, 2001).
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Permitted Liens” means, collectively, (a) the Liens and security interests created by the Loan and Loan Documents; (b) any Lien, encumbrances and other matters disclosed in a title policy issued to 300 Jones Road with respect to the property subject to the Mortgage and acceptable to the Noteholder; (c) any Lien, if any, for taxes or fees in lieu of taxes imposed by any Governmental Authority not yet due or delinquent or which are otherwise being contested in compliance with this Note and do not give rise to an Material Adverse Effect; (d) any lease to any Affiliate of Borrower subject to and subordinated to the Mortgage, in form, scope and substance satisfactory to the Noteholder; (e) immaterial transfers of portions of the Property for dedication and/or the granting of easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone or other fiber optic or other data transmission lines, electric lines or other utilities or for other similar purposes, provided that no such transfer, conveyance or encumbrance set forth in this clause (e) shall impair the utility, operation and value of the Property or could reasonably be expected to give rise to a Material Adverse Effect; (f) zoning ordinances, building codes, entitlements, subdivision Laws and restrictions or other similar land use requirements or restrictions which are imposed by any Governmental Authority having jurisdiction over the Property which are not violated in any material respect by the current use of such Property; (g) unsecured obligations to tenants and other Persons (e.g., real estate leasing brokers) in connection with leases of the Property which are in effect as of Original Effective Date or otherwise entered into in accordance with the Loan Documents; (h) any workers’, mechanics’ or other similar Liens on the Property; (i) such other title and survey exceptions as the Noteholder has approved or may approve in writing in the Noteholder’s sole discretion; (j) Liens securing Debt permitted under Section 9.1(c); and (k) purchase money liens and liens securing capital leases obligations with unaffiliated third parties entered into in the ordinary course of business securing Debt permitted under Section 9.1(e) hereof.
“Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, Governmental Authority, or other entity.
“Plan” at any one time, means any “employee benefit plan” that is covered by ERISA and in respect of which the Borrower or an ERISA Affiliate is (or, if such plan were
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terminated at such time, would under §4062 or §4069 of ERISA be deemed to be) an “employer” as defined in §3(5) of ERISA.
“Property” has the meaning given to such term in the Mortgage.
“Related Parties” with respect to any Person, means such Person’s Affiliates and the directors, officers, employees, partners, agents, trustees, administrators, managers, advisors, and representatives of it and its Affiliates.
“Reportable Event” means any of the events set forth in §4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived.
“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any comprehensive or country-wide Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by a Sanctions Authority; (b) any Person operating, organized, or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person that is the subject or target of any Sanctions.
“Sanctions” mean all economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by a Sanctions Authority.
“Sanctions Authority” means OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom, Canada, or other relevant sanctions authority.
“Solvent” with respect to any Person as of any date of determination, means that on such date (a) the present fair salable value of the property and assets of such Person exceeds the debts and liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the property and assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts and other liabilities, including contingent liabilities, as such debts and other liabilities become absolute and matured, (c) such Person does not intend to incur, or believe that it will incur, debts and liabilities, including contingent liabilities, beyond its ability to pay such debts and liabilities as they become absolute and matured, and (d) such Person does not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Subsidiary” as to any Person, means any corporation, partnership, limited liability company, joint venture, trust, or estate of or in which more than fifty percent (50%) of (a) the issued and outstanding capital stock having ordinary voting power to elect a
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majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class of such corporation may have voting power upon the happening of a contingency), (b) the interest in the capital or profits of such partnership, limited liability company, or joint venture or, (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Note shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Taxes” means any and all present or future income, stamp, or other taxes, levies, imposts, duties, deductions, charges, fees, or withholdings imposed, levied, withheld, or assessed by any Governmental Authority, together with any interest, additions to tax, or penalties imposed thereon and with respect thereto.
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Amounts applied to repay the Loan under clauses (a) and (b) of this Section 3.3 shall be applied to the Scheduled Amortization Amounts set forth in Section 3.1 in inverse order of maturity thereof until paid in full. Amounts applied to repay the Loan under clause (c) of this Section 3.3 shall be applied as set forth therein until paid in full. No prepaid amount may be reborrowed.
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The financial statements to be delivered under this Section 8.9 shall be prepared in accordance with GAAP applied on a consistent basis as at the dates and throughout the period involved, subject, in the case of the interim financial statements delivered under clause (b) hereof, to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the audited financial statements delivered under clause (a) above). Concurrently with the delivery of the financial statements set forth in clauses (a) and (b) above, the Chief Financial Officer of the Borrower shall certify to the Noteholder that such financial statements were prepared in compliance with this Section 8.9.
All of the foregoing statements and reports shall be in form, scope and substance reasonably satisfactory to the Noteholder.
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Greenidge Generation Holdings Inc.
135 Rennell Drive, 3rd Floor
Fairfield, CT 06890
Attention: General Counsel
Email: tburke@greenidge.com
With a copy to (which shall not constitute notice):
King & Spalding LLP
300 S Tryon Street Suite 1700
Charlotte, NC 28202
Attention: Christopher T. Buchanan
Telephone: (704) 503 2602
Email: cbuchanan@kslaw.com
11100 Santa Monica Blvd Ste 800, Los Angeles, CA 90025
Attn: General Counsel
Telephone: (310) 966-1444
Email: legal@brileyfin.com
With a copy to (which shall not constitute notice):
Duane Morris LLP
1540 Broadway
29
New York, NY 10036
Attn: James T. Seery
Telephone: (973) 424-2088
Email: JTSeery@duanemorris.com
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provided that, such indemnity shall not be available to any Indemnified Party to the extent that such claims, damages, losses, liabilities, or related expenses (A) are determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnified Party, (B) result from a claim brought by the Borrower against any Indemnified Party for breach in bad faith of such Indemnified Party’s obligations under any Loan Document or (C) arise in connection with claims solely among the Indemnified Parties. This Section 13.2 shall only apply to Taxes that represent losses, claims, damages, or similar charges arising from a non-Tax claim.
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[signature page follows]
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IN WITNESS WHEREOF, the Borrower has executed this Amended and Restated Bridge Promissory Note as of the date first written above.
| GREENIDGE GENERATION HOLDINGS INC.
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| By__________________________________ |
Acknowledged and Agreed:
B. RILEY COMMERCIAL CAPITAL, LLC
By:_____________________________________
Name: Philip J. Ahn
Title: CFO
Exhibit A
Payments on the Loan
Amount of Principal Paid | Unpaid Principal Amount of the Loan | Name of Person Making the Notation |
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Schedule 9.1(b)
Permitted Debt
1. Debt pursuant to Master Equipment Finance Agreement dated as of May 25, 2021 by and between Greenidge Generation LLC and Arctos Credit, LLC.
2. Debt pursuant to Indenture dated October 13, 2021 by and between Greenidge Generation Holdings Inc., a Delaware corporation and Wilmington Savings Fund Society, FSB, a federal savings bank, as trustee, as amended by First Supplemental Indenture dated as of October 13, 2021.
3. Debt pursuant to Equipment Lease Agreement dated March 11, 2021 by and between Greenidge Generation LLC, as Lessee and Galaxy Digital Mining LLC, as Lessor.
4. Debt pursuant to Equipment Finance and Security Agreement dated December 21, 2020 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
5. Debt pursuant to Equipment Finance and Security Agreement dated March 4, 2021 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
6. Debt pursuant to Equipment Finance and Security Agreement dated March 4, 2021 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
7. Debt pursuant to Equipment Finance and Security Agreement dated December 21, 2020 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
8. Debt pursuant to Equipment Finance and Security Agreement dated December 21, 2020 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
9. Debt pursuant to Equipment Finance and Security Agreement dated December 21, 2020 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
10. Debt pursuant to Equipment Finance and Security Agreement dated December 21, 2020 by and between Greenidge Generation LLC, as Borrower and Foundry Digital LLC, as Lender.
Schedule 9.2
Permitted Liens
Schedule 9.5(c)
Permitted Investments
None
Schedule 9.9
Affiliated Transactions
1. Borrower anticipates causing a wholly-owned subsidiary to enter into one or more agreements with one or more portfolio companies of Atlas Holdings (the “Subject Affiliate”) whereby such wholly-owned subsidiary may lease real property from a Subject Affiliate and purchase power and related services from a Subject Affiliate (or an intermediary of the Subject Affiliate) in order to enable such wholly-owned subsidiary to construct, own, operate and maintain datacenters.