PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is dated as of the Effective Date (as defined below), by and between Makerstar Capital, Inc., a Delaware corporation (the “Seller”), and CSRE Properties Dalton, LLC, a Georgia limited liability company (the “Buyer”). The date this Agreement is executed by the last of Buyer and Seller shall be the “Effective Date” hereof.
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller and Buyer agree as follows:
All of the items referred to in Sections 1(a) - (d) above are hereinafter collectively referred to as the “Property”.
THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE BECAUSE OF A BUYER DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT; PROVIDED, HOWEVER, THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES NOR SELLER’S RIGHTS TO BUYER’S EXPRESS INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT. BY PLACING ITS INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: Seller _/s/__ Buyer _/s/__
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All such exceptions listed in Sections 3(a) are defined herein as the “Permitted Exceptions”, and the title policy described in this Section 3 is defined herein as the “Title Policy”. Notwithstanding the foregoing, (i) deeds of trust and/ or mortgages, mechanic’s liens or other monetary liens or encumbrances on the Property (collectively, “Liens”), (ii) property taxes and assessments that may become delinquent prior to Closing and (iii) exceptions or encumbrances to title which are affirmatively created by Seller without the consent of Buyer after the date of this Agreement (collectively, “Excluded Exceptions”) shall not be Permitted Exceptions hereunder, whether Buyer gives written notice of such or not, and shall be paid off, satisfied, discharged, cured and/or removed by Seller at or before Closing, the same being a condition precedent for the benefit of Buyer. Buyer may elect at Closing to effect cure of any Excluded Exceptions not cured by Seller by payment, from the proceeds otherwise constituting the Purchase Price, of amounts required to satisfy and cure such Excluded Exceptions.
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Buyer covenants to use good faith efforts to obtain the approvals, if any, required by paragraphs (vi), (vii) and (viii) above, prior to Closing. The Closing pursuant to this Agreement shall be deemed a waiver by Buyer of all unfulfilled conditions hereunder benefiting Buyer.
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For purposes of this Agreement, whenever the phrase “to Seller’s knowledge” is used, it shall refer to the actual knowledge of Shengyin Chen, Alex Wang, and the officers of Makerstar Capital, Inc., for the Property, after reasonable and diligent inquiry and investigation.
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Seller hereby irrevocably waives, to the fullest extent permitted by applicable law, any defenses it may now or hereafter have in any way relating to any or all of the following:
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Seller acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the MIPA and that the waivers set forth in this guaranty are knowingly made in contemplation of such benefits. The obligations of Seller under this Section 11 are separate and independent of its obligations to convey the Property pursuant to the remainder of this Agreement, and shall survive the Closing and termination of this Agreement.
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If to Seller: | MakerStar Capital Inc. 4 Park Plaza, Ste 1230 |
with a copy to: | MakerStar Capital Inc. |
If to Buyer: | CSRE Properties Dalton, LLC |
with a copy to: |
Cozen O'Connor 1717 Main Street, Suite 3100 Dallas, TX 75238 Attention: Steven P. Katkov, Esq. Email: skatkov@cozen.com |
or such other address as either party may from time to time specify in writing delivered to the other in accordance with this Section 14(a).
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* * * * * *
{Signatures Follow}
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date(s) written below next to their respective signatures.
| BUYER: |
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Date: 2/2/2024 | CSRE PROPERTIES DALTON, LLC |
| a Georgia limited liability company |
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| By: CleanSpark, Inc., a Nevada corporation |
| Its: Sole Member and Manager |
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| By: /s/ Zachary Bradford |
| Zach Bradford, Chief Executive Officer |
| SELLER: |
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Date: 2/2/2024 | MAKERSTAR CAPITAL, INC. |
| a Delaware corporation |
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| By: /s/ Steven Yan |
| Name: Steven Yan |
| Its: CEO |
BY EXECUTION HEREOF, THE UNDERSIGNED ESCROW HOLDER HEREBY COVENANTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
LAND SERVICES USA, LLC
By:______________________
Its:______________________
Date:____________________
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EXHIBIT A
Depiction of the Real Property
EXHIBIT B
Legal Description of the Real Property
All that tract or parcel of land lying and being in Land Lot No. 48 in the 13th District and 3rd Section of Whitfield County, Georgia, being a part of Tract 15B of the Whitfield Properties Industrial Park, Phase I, according to plat thereof recorded in Plat Cabinet C, Slide 1572, in the Office of the Clerk of the Superior Court of Whitfield County, Georgia, and being more particularly described as follows:
Beginning at the point of intersection of the west right of way line of Enterprise Drive with the south right of way line of Howell Drive; thence south 02 degrees 38 minutes 53 seconds west, as measured along the west right of way line of Enterprise Drive, 364.54 feet to a point; thence south 88 degrees 35 minutes 32 seconds west 300.21 feet to a point; thence north 02 degrees 38 minutes 52 seconds east 379.21 feet to a point in the south right of way line of Howell Drive; thence south 87 degrees 30 minutes 35 seconds east along the southerly right of way of Howell Drive 128.16 feet to a point; thence continuing along the southerly right of way of Howell Drive an arc distance of 171.87 feet to the point of beginning.
LESS AND EXCEPT all that tract of land taken by condemnation styled Whitfield County, Georgia vs. The Duckett Corporation re Civil Action File No. 12-CI-1220-M, as evidenced by Consent Final Judgment, dated June 18, 2014, recorded June 18, 2014, and recorded in Deed Book 6047, Page 156, Whitfield County, Georgia Records.
[Redacted Exhibits C and forward, not material documents]
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