Exhibit 10.4
SECURED PROMISSORY NOTE
October __, 2022 $6,500,000.00
CSRE PROPERTIES SANDERSVILLE, LLC, a Georgia limited liability company, having a mailing address at 2380 Godby Road, College Park, Georgia 30349 (“Maker”), hereby promises to pay to the order of LUNA SQUARES, LLC (f/k/a Innovative Property Management, LLC), a Delaware limited liability company, having a mailing address of Level 5 97 Pacific Highway North Sydney NSW 2060 AUSTRALIA (“Holder”), the principal amount of $6,500,000.00 (Six Million Five Hundred Thousand and No/Dollars) (the “Principal Balance”) or such greater or lesser amount as may be due hereunder from time to time together with interest thereon calculated from the date hereof (the “Closing Date”) in accordance with the provisions of this secured promissory note (this “Note”).
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or
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“Asset Sale” means any single sale, transfer, assignment, lease, license or other disposition, whether voluntary or involuntary (including, without limitation, any settlement of or payment in respect of any property, casualty or other insurance claim or any condemnation or similar proceeding), of Collateral or a series of related dispositions of Collateral having an aggregate fair market value in excess of $100,000.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.
“Collateral” means all property pledged or granted or purported to be pledged or granted as collateral pursuant to any Security Document.
“Debt” of any Person means (a) all indebtedness of such Person for borrowed money, (b) all indebtedness of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all capital lease and finance lease obligations of such Person, (d) all obligations of such Person for the deferred purchase price of property or services, (e) obligations with respect to letters of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings, (f) any equity interests or other equity instrument, whether or not mandatorily redeemable, that under GAAP is characterized as debt, issued by such Person, (g) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to, or to invest in, any other Person, or otherwise to assure a creditor against loss, in each case, in respect of any Debt set out in clauses (a) through (f) of such other Person, and (h) the obligations of any other Person set out in clauses (a) through (g) secured by any Lien on any asset of such first Person, whether or not such obligation has been assumed by such first Person.
“Default” means any of the events specified in Section 7(a), whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Dollars,” “cash” and “$” each means freely transferable lawful money of the United States of America.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession) and the Securities and Exchange Commission, which are applicable to the circumstances as of the date of determination.
“Insolvency Proceeding” means any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or
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its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets of any Person in connection with a bankruptcy, insolvency, reorganization or relief of debtors.
“law” or “laws” means, collectively, all international, federal, state, local or foreign law, statute or ordinance, treaty, common law, or any rule, code and administrative or judicial authority, regulation, judgment, order, writ, injunction, decree, arbitration award, agency requirement, license or permit of, or agreement with, any governmental authority.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim or encumbrance, or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset of any kind or nature whatsoever including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.
“Loan” means the Loan.
“Maker Parent” means Mawson Infrastructure Group Inc., a Delaware corporation.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial condition, results of operations or prospects of Maker, (b) the ability of Maker Parent or Maker to fully and timely perform its obligations under the Note Documents or (c) the rights and remedies of Holder under the Note Documents.
“Maximum Rate” means the maximum non-usurious interest rate permitted by applicable law.
“Note Documents” means this Note, the Security Documents, and any other document designated as such by Holder, in each case as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Note Obligations” means all indebtedness, liabilities and Obligations, of any nature or kind, present or future, at any time owing by Maker or Maker Parent to Holder pursuant to any Note Document.
“Obligations” means any and all Debt, liabilities and obligations, in each case including, without limitation, any and all interest thereon accruing before and after any Insolvency Proceeding (whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and any and all premiums, penalties, fees, expenses and other amounts in respect thereof, regardless of whether direct or indirect, now existing or hereafter arising, absolute or contingent, secured or unsecured, or long-term or short-term.
“Payment in Full” means in respect of a Loan under this Note, the indefeasible payment in full, in cash, of all principal, interest and other Note Obligations (other than inchoate indemnity
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and reimbursement obligations) or the set- off of amounts due and payable to the Maker under the Purchase and Sale Agreement under Section 22.4 against that Loan.
“Permitted Liens” shall have the meaning assigned to such term in the Security Agreement.
“Person” means and includes an individual, a partnership, a joint venture, a limited liability company, a corporation or trust, an unincorporated organization, a group, a government or other department or agency thereof, or any other entity.
“Purchase and Sale Agreement” means the Purchase and Sale Agreement dated September 8, 2022 between CSRE Properties Sandersville, LLC, Luna Squares, LLC, Mawson Infrastructure Group, Inc. and CleanSpark Inc.
“Security Agreement” means that certain Guarantee and Security Agreement in the form attached hereto as Exhibit A, dated as of the date hereof, by and among Maker and Maker Parent, each as grantors, and Holder, as secured party, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Security Documents” shall mean the Security Agreement and each other security document or pledge agreement delivered in accordance with applicable law purporting to grant a valid, perfected Lien on any property as Collateral for the Note Obligations, and any other document or instrument utilized to pledge or grant or purport to pledge or grant a Lien on any property as Collateral for the Note Obligations, in each case as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association, or other business entity, a majority of the partnership or other similar ownership interest thereof that is vested with management or control rights is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes hereof, a Person shall be deemed to have a majority ownership interest in a limited liability company, partnership, association, or other business entity if such Person shall be allocated a majority of limited liability company, partnership, association, or other business entity gains or losses or shall be or shall control any managing director, managing member, manager or general partner of such limited liability company, partnership, association, or other business entity.
“UCC” means the Uniform Commercial Code as enacted and in effect from time to time in any applicable jurisdiction.
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Beneficiary Account Name & Address: | LUNA SQUARES LLC |
Beneficiary Account #: | 1504553392 |
For Domestic Wires: | Routing Number (ABA) |
For International Wires: | Swift/BIC Code |
Beneficiary Bank: Signature Bank | Signature Bank |
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Level 5 97 Pacific Highway North Sydney New South Wales
Australia 2066Email: james@mawsoninc.com
Attn: James Manning, CEO
with a copy (which shall not constitute notice) to:
Email: legal@mawsoninc.com
Attn: General Counsel
CleanSpark, Inc.
Email: Legal@cleanspark.com
Attn: Legal Department, 2370 Corporate Circle, Suite 160
Henderson, Nevada 89074
with a copy (which shall not constitute notice) to:
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
Email: jdaniels@bakerdonelson.com; gbarnes@bakerdonelson.com
Attn: Justin Daniels and Gary Barnes
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* * *
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IN WITNESS WHEREOF, Maker has executed and delivered this Note on the date first above written.
MAKER:
CSRE PROPERTIES SANDERSVILLE, LLC,
a Georgia limited liability company
By: CSRE Property Management Company, LLC, a Georgia limited liability company, its Manager
By: CleanSpark, Inc., a Nevada corporation, its Manager
By: /s/ Zachary K. Bradford
Zachary K. Bradford, President
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