Exhibit 3.1

 

	EXEMPTED Company Registered and
	filed as No. 385239 On 08-Dec-2021
	Deputy Registrar

 

THE COMPANIES ACT (REVISED)

 

OF THE CAYMAN ISLANDS

 

COMPANY LIMITED BY SHARES

 

MEMORANDUM OF ASSOCIATION

 

OF

 

BITDEER TECHNOLOGIES GROUP

 

Registered Office:

c/o International Corporation Services Ltd.

P.O. Box 472

Harbour Place, 2nd Floor

103 South Church Street

George Town

Grand Cayman KY1-1106

Cayman Islands

 

Auth Code: D55986437158

www.verify.gov.ky

 

 

	EXEMPTED Company Registered and
	filed as No. 385239 On 08-Dec-2021
	Deputy Registrar

 

THE COMPANIES ACT (REVISED)

 

OF THE CAYMAN ISLANDS

 

COMPANY LIMITED BY SHARES

 

MEMORANDUM OF ASSOCIATION

 

OF

 

BITDEER TECHNOLOGIES GROUP

 

1

The name of the Company is Bitdeer Technologies Group.

 

2

The registered office of the Company shall be at the offices of International Corporation Services Ltd., P.O. Box 472, Harbour Place, 2nd Floor, 103 South Church Street, George Town, Grand Cayman KY1-1106, Cayman Islands, or at such other place as the Directors may from time to time decide.

 

3

The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the Companies Act (Revised) as the same may be revised from time to time, or any other law of the Cayman Islands.

 

4

The liability of each Member is limited to the amount from time to time unpaid on such Member's shares.

 

5

The share capital of the Company is US$50,000 divided into 500,000,000,000 shares of a par value of US$0.0000001 each.

 

6

The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.

 

7

Capitalised terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.

 

Auth Code: D55986437158

www.verify.gov.ky

 

 

	EXEMPTED Company Registered and
	filed as No. 385239 On 08-Dec-2021
	Deputy Registrar

 

WE, the subscriber to this Memorandum of Association, wish to be formed into a company pursuant to this Memorandum of Association, and we agree to take the number of shares shown opposite our name.

 

Dated this 8th day of December 2021.

 

Name		Address and Description of Subscriber		Number of Shares taken by Subscriber
International Corporation Services Ltd.		Harbour Place, 2nd Floor, 103 South Church Street, PO Box 472, Grand Cayman, KY1-1106		One Share

 

/s/ Darryl Myers

Darryl Myers

Director

 

WITNESS to the above signature

 

/s/ Melanie Whittaker

Melanie Whittaker

 

Auth Code: D55986437158

www.verify.gov.ky

 

 

 

Exhibit 4.1

 

BITDEER TECHNOLOGIES GROUP

 

Number	Class A Ordinary Shares
[●]	- [●] -

 

Incorporated under the laws of the Cayman Islands

Share capital is US$50,000 divided into 500,000,000,000 Shares of US$0.0000001 par value each

 

THIS IS TO CERTIFY THAT [Name] is the registered holder of [Number] Class A Ordinary Shares in the above-named Company subject to the Amended and Restated Memorandum of Association and Amended and Restated Articles of Association thereof.

 

EXECUTED on behalf of the said Company on the                 day of                                     by:

 

 

THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY ANALOGOUS STATUTE OF ANY OTHER JURISDICTION, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 OR ANY ANALOGOUS STATUTE OF ANY OTHER JURISDICTION.

 

 

 

Exhibit 5.1

 

 

Office: +852 2801 6066 

Mobile: +852 9718 8740 

Email: rthorp@tta.lawyer

 

Bitdeer Technologies Group 

Harbour Place 2nd Floor

103 South Church Street

P.O. Box 472, George Town

Grand Cayman KYI-1106

Cayman Islands

 

March 8, 2023

 

Dear Sirs

 

Bitdeer Technologies Group

 

We have acted as Cayman Islands legal advisers to Bitdeer Technologies Group (the "Company") in connection with the Company’s registration statement on Form F-4, including all amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the "Commission") under the United States Securities Act of 1933 (the "Act"), as amended (including its exhibits, the "Registration Statement"), related to the offering by the Company of American Depositary Shares representing certain of its class A ordinary shares, par value of US$0.0000001 per share (the "Shares"). This opinion is given in accordance with the terms of the Legal Matters section of the Registration Statement.

 

We are furnishing this opinion letter as Exhibits 5.1 and 23.4 to the Registration Statement.

 

1            Documents Reviewed

 

For the purposes of this opinion we have reviewed originals, copies, drafts or conformed copies of the documents listed in Schedule 1 to this opinion, being all of the documents necessary to form our opinion. Defined terms shall have the meanings set out in Schedule 1 or in the Registration Statement.

 

2            Assumptions

 

The following opinions are given only as to and based on circumstances and matters of fact existing at the date hereof and as to the laws of the Cayman Islands as the same are in force at the date hereof. In giving this opinion, we have relied upon the completeness and accuracy (and assumed the continuing completeness and accuracy as at the date hereof) of the Certificate of Good Standing and the Director's Certificate, as to matters of fact, without further verification and have assumed that copy documents or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals.

 

3            Opinions

 

Based upon, and subject to, the foregoing assumptions, and having regard to such legal considerations as we deem relevant, we are of the opinion that:

 

3.1

the Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing under the laws of the Cayman Islands;

 

 

 

3.2

as of March 8, 2023, the authorized share capital of the Company is US$50,000 divided into 500,000,000,000 shares of a par value of US$0.0000001 each;

 

3.3

the issue and allotment of the Shares have been duly authorised and when allotted, issued and paid for as contemplated in the Registration Statement, the Shares will be legally issued and allotted, fully paid and non-assessable. In this opinion the phrase "non-assessable" means, with respect to Shares in the Company, that a shareholder shall not, solely by virtue of its status as a shareholder, in the absence of a contractual arrangement to the contrary, be liable for additional assessments or calls on the Shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). As a matter of Cayman Islands law, a share is only issued when it has been entered in the register of members (shareholders); and

 

3.4

the statements under the caption "Cayman Islands Tax Considerations" in the prospectus forming part of the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material respects and such statements constitute our opinion.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading "Legal Matters" and elsewhere in the prospectus included in the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.

 

This opinion is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.

 

Yours faithfully

 

/s/ TRAVERS THORP ALBERGA
TRAVERS THORP ALBERGA

 

 

SCHEDULE 1

 

List of Documents Reviewed

 

1

the Certificate of Incorporation dated December 8, 2021;

 

2

the register of members of the Company;

 

3

the register of directors of the Company;

 

4

the Memorandum and Articles of Association of the Company as adopted by the sole subscriber on December 8, 2021;

 

5

the Amended and Restated Memorandum and Articles of Association of the Company as conditionally adopted by a special resolution passed on March 8, 2023;

 

6

the written resolutions of the sole director of the Company dated March 8, 2023;

 

7

the written resolutions of the sole shareholder of the Company dated March 8, 2023;

 

8

the certificate of good standing of the Company issued by the Registry of Companies, Cayman Islands on March 6, 2023 (the "Certificate of Good Standing");

 

9

a certificate from a Director of the Company addressed to this firm, a copy of which is attached hereto (the "Director's Certificate"); and

 

10

the Registration Statement.

 

 

 

Exhibit 8.1

 

Davis Polk & Wardwell llp 450 Lexington Avenue New York, NY 10017

 

March 8, 2023
Re:	Material U.S. Federal Income Tax Considerations

 

Blue Safari Group Acquisition Corp. 

Cheung Kong Center 

58th Floor, Unit 5801 

2 Queens Road Central 

Central 

Hong Kong

 

Ladies and Gentlemen:

 

We have acted as United States counsel to Blue Safari Group Acquisition Corp., a British Virgin Islands business company (“BSGA”) in connection with (i) the transactions contemplated by the amended and restated agreement and plan of merger, executed on December 15, 2021 and amended on May 30, 2022, December 2, 2022 and March 7, 2023 (as it may be amended and/or restated from time to time, the “Merger Agreement”), by and among Bitdeer Technologies Group, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“BTG”), Bitdeer Technologies Holding Company, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Bitdeer”), BSGA, Blue Safari Merge Limited, a British Virgin Islands business company and a wholly-owned subsidiary of BTG (“BSGA Merger Sub 1”), Blue Safari Merge II Limited, a British Virgin Islands business company and a wholly-owned subsidiary of BTG (“BSGA Merger Sub 2”), Bitdeer Merge Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of BTG (“Bitdeer Merger Sub”) and Blue Safari Mini Corp., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of BSGA (the “Business Combination”), including (i) the merger of BSGA Merger Sub 1 with and into BSGA, with BSGA surviving (the “First SPAC Merger”), (ii) immediately following (and on the same day as) the First SPAC Merger, the merger of BSGA with and into BSGA Merger Sub 2, with BSGA Merger Sub 2 surviving as a direct wholly-owned subsidiary of BTG (the “Second SPAC Merger” and, together with the First SPAC Merger, the “Initial Mergers”) and (iii) one business day following the Initial Mergers, the merger of Bitdeer Merger Sub with and into Bitdeer with Bitdeer surviving as a direct wholly-owned subsidiary of BTG (this merger, together with the Initial Mergers, the “Mergers”). Unless otherwise indicated, each capitalized term used herein has the meaning ascribed to it in the Registration Statement (defined below).

 

This opinion is being delivered in connection with the Registration Statement of BSGA on Form F-4, filed with the Securities and Exchange Commission, as amended and supplemented through the date hereof (the “Registration Statement”).

 

In preparing the opinion set forth below, we have examined and reviewed originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Merger Agreement; (iii) the representation letters of each of BSGA, BTG and Bitdeer delivered to us for purposes of this opinion (together, the “Representation Letters”) and (iii) such other documents, certificates and records as we have deemed necessary or appropriate as a basis for our opinion. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents.

 

 

 

 

In rendering our opinion, we have assumed, without any independent investigation or examination thereof, that (i) the Business Combination (including each of the Mergers) will be consummated in the manner described in the Registration Statement and the Merger Agreement, each will be effective under applicable law, and none of the terms or conditions contained in either the Registration Statement or the Merger Agreement will be waived or modified, (ii) the facts relating to the Mergers and Business Combination are accurately and completely reflected in the Registration Statement and the Merger Agreement, (iii) any representations made in the Representation Letters are true, complete and correct and will remain true, complete and correct at all times up to and including the First SPAC Merger Effective Time, Second SPAC Merger Effective Time, and Acquisition Merger Effective Time (each as defined in the Merger Agreement), as applicable, and (iv) any representations made in the Representation Letters subject to qualification relating to the knowledge, belief, expectation or intent of any party are true, complete and correct and will remain true, complete and correct at all times up to and including the First SPAC Merger Effective Time, Second SPAC Merger Effective Time, and Acquisition Merger Effective Time, as applicable, in each case, without such qualification. Our opinion assumes and is expressly conditioned on, among other things, the initial and continuing accuracy of the facts, information, covenants, representations and warranties set forth in the documents referred to above.

 

Our opinion is based on the Internal Revenue Code of 1986, as amended, Treasury regulations promulgated thereunder, judicial decisions, published positions of the Internal Revenue Service (the “Service”), and such other authorities as we have considered relevant, all as in effect on the date of this opinion and all of which are subject to change or differing interpretations, possibly with retroactive effect. A change in the authorities upon which our opinion is based could affect the conclusions expressed herein. Moreover, there can be no assurance that positions contrary to our opinion will not be taken by the Service or, if challenged, by a court.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein and in the Registration Statement, we hereby confirm that the statements set forth in the Registration Statement under the heading “Material U.S. Federal Income Tax Considerations—Consequences of the Business Combination to U.S. Holders of BSGA Securities” constitute the opinion of Davis Polk & Wardwell LLP as to the material U.S. federal income tax consequences of the Business Combination to U.S. Holders of BSGA Securities.

 

This opinion is being delivered prior to the consummation of the Mergers and Business Combination and therefore is prospective and dependent on future events. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments, any factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.

 

Except as expressly set forth above, we express no other opinion. This opinion has been prepared solely in connection with the Registration Statement and may not be relied upon for any other purpose without our prior written consent. We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities Exchange Commission thereunder.

 

Very truly yours,

 

/s/ Davis Polk & Wardwell LLP
March 8, 2023

 

 

Exhibit 8.2

 

 

March 8, 2023

 

Bitdeer Technologies Holding Company 

08 Kallang Avenue 

Aperia tower 1, #09-03/04 

Singapore 339509

 

Ladies and Gentlemen:

 

We have acted as counsel to Bitdeer Technologies Holding Company, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”), in connection with the Amended and Restated Agreement and Plan of Merger, dated as of December 15, 2021 (as it may be amended and/or restated from time to time, the “Agreement”), by and among the Company, Blue Safari Group Acquisition Corp., a British Virgin Islands business company (“SPAC”), Blue Safari Mini Corp., an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of SPAC (“SPAC Sub”), Bitdeer Technologies Group, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“PubCo”), Blue Safari Merge Limited, a British Virgin Islands business company and a wholly-owned subsidiary of PubCo (“Merger Sub 1”), Blue Safari Merge II Limited, a British Virgin Islands business company and a wholly-owned subsidiary of PubCo (“Merger Sub 2”), and Bitdeer Merge Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of PubCo (“Merger Sub 3”), as amended by the First Amendment to Amended and Restated Agreement and Plan of Merger, dated May 30, 2022, the Second Amendment to Amended and Restated Agreement and Plan of Merger, dated December 2, 2022 and the Third Amendment to Amended and Restated Agreement and Plan of Merger, dated March 7, 2023, by and among SPAC, the Company, Merger Sub 1, Merger Sub 2, Merger Sub 3 and SPAC Sub.

 

Pursuant to the Agreement, (i) at the First SPAC Merger Effective Time, Merger Sub 1 will merge with and into SPAC, with SPAC surviving (the “First SPAC Merger”), (ii) immediately following, and on the same day as, the First SPAC Merger Effective Time, at the Second SPAC Merger Effective Time, SPAC will merge with and into Merger Sub 2, with Merger Sub 2 surviving as a wholly-owned subsidiary of PubCo (the “Second SPAC Merger” and, together with the First SPAC Merger, the “Initial Mergers”), and (iii) one Business Day after the First SPAC Merger Effective Time and the Second SPAC Merger Effective Time, at the Acquisition Merger Effective Time, Merger Sub 3 will merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of PubCo (the “Acquisition Merger” and, together with the Initial Mergers, the “Mergers”).

 

This opinion is being delivered in connection with the preparation and filing of the Registration Statement on Form F-4 of PubCo, and the proxy statement/prospectus contained therein, filed in connection with the Mergers (the “Registration Statement”). Capitalized terms not defined herein have the meanings set forth in the Agreement. All section references, unless otherwise indicated, are to the U.S. Internal Revenue Code of 1986, as amended (the “Code”).

 

In preparing this opinion, we have examined and relied upon the Agreement, the Registration Statement, certain customary tax representation letters provided by the Company, SPAC, and PubCo (the “Tax Representation Letters”), the opinion of Davis Polk & Wardwell LLP regarding the tax treatment of the Initial Mergers (the “Davis Polk Opinion”), and such other documents as we have deemed necessary or appropriate to enable us to render this opinion. In our examination of documents, we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures, the legal capacity of signatories, and the due and valid execution and delivery of documents where such execution and delivery are a prerequisite to the effectiveness of such documents.

 

In rendering this opinion, we have assumed without investigation or verification that the facts and factual statements set forth in the Agreement and the Registration Statement, or otherwise made to us, are true, correct, and complete; that the Mergers will be completed in accordance with the Agreement; that the statements, representations, and agreements contained in the Tax Representation Letters are true, accurate, and complete; the Davis Polk Opinion, including the U.S. federal income tax treatment of the Initial Mergers described therein, is true, accurate, and complete; that there is no change in applicable law between the date hereof and the effective times of the Mergers; that any representation in any of the documents referred to herein that is made based on the knowledge, belief, or intention (or similar qualification) of any person or party is true, correct, and complete without such qualification; and that, as to all matters for which a person or entity has represented that such person or entity is not a party to, does not have, or is not aware of, any plan, intention, understanding, or agreement, there is no such plan, intention, understanding, or agreement. Any inaccuracy or change in, or breach of, any of the aforementioned statements, representations, or assumptions could adversely affect this opinion.

 

Cooley LLP   1333 2nd Street   Suite 400   Santa Monica, CA  90401
t: +1 310 883 6400 f: +1 310 883 6500 cooley.com

 

 

 

 

March 8, 2023
Page Two  

 

This opinion is based on existing provisions of the Code, the Treasury Regulations promulgated thereunder, judicial decisions, and rulings and other pronouncements of the U.S. Internal Revenue Service (the “IRS”) as in effect on the date hereof, all of which are subject to change or reinterpretation (possibly with retroactive effect). This opinion is limited solely to matters governed by United States federal income tax law. No opinion may be implied or inferred beyond that which is stated expressly in this opinion. This opinion is not binding upon the IRS or the courts, and there is no assurance that the IRS will not assert a contrary position or that a court will not sustain such contrary position. In addition, there is no assurance that a change in the law on which this opinion is based, or the interpretation thereof, will not occur or that such change will not affect this opinion. We undertake no responsibility to advise of any such developments in the law.

 

Based on our examination of the foregoing items and subject to the limitations, qualifications, assumptions, and caveats set forth therein and herein, it is our opinion, under currently applicable United States federal income tax law, that the Acquisition Merger should qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder.

 

This opinion is being furnished in connection with the preparation and filing of the Registration Statement and cannot be relied upon for any other purpose without our prior written consent. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm name therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder. This opinion is being delivered prior to the consummation of the Mergers and therefore is prospective and dependent on future events. We are under no obligation to supplement or revise this opinion to reflect any legal developments or factual matters arising subsequent to the date hereof or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue, inaccurate, or incomplete, in which case, this opinion shall be void and of no force or effect, but only to the extent that such untruth, inaccuracy, or incompletion affects the accuracy of this opinion.

 

Sincerely,

 

/s/ Cooley LLP
COOLEY LLP

 

Cooley LLP   1333 2nd Street   Suite 400   Santa Monica, CA  90401
t: +1 310 883 6400 f: +1 310 883 6500 cooley.com

 

 

Exhibit 10.3

 

BITDEER TECHNOLOGIES GROUP

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of _____________, 2023 by and between Bitdeer Technologies Group, an exempted company incorporated and existing under the laws of the Cayman Islands (the “Company”) and ____________ (ID Card No.: _____________) (the “Executive”).

 

RECITALS

 

WHEREAS, the Company desires to employ the Executive and to assure itself of the services of the Executive during the term of Employment (as defined below) and under the terms and conditions of the Agreement;

 

WHEREAS, the Executive desires to be employed by the Company during the term of Employment and under the terms and conditions of the Agreement;

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, the Company and the Executive agree as follows:

 

1.	Employment

 

The Company hereby agrees to employ the Executive and the Executive hereby accepts such employment, on the terms and conditions hereinafter set forth (the “Employment”).

 

2.

Term

 

Subject to the terms and conditions of the Agreement, the initial term of the Employment shall be _____ years, commencing on __________, (the “Effective Date”) and ending on ___________, _____ (the “Initial Term”), unless terminated earlier pursuant to the terms of the Agreement. Upon expiration of the Initial Term of the Employment, the Employment shall be automatically extended for successive periods of _____ months each (each, an “Extension Period”) unless either party shall have given 60 days advance written notice to the other party, in the manner set forth in Section 19 below, prior to the end of the Initial Term or the Extension Period in question, as applicable, that the term of this Agreement that is in effect at the time such written notice is given is not to be extended or further extended, as the case may be (the period during which this Agreement is effective being referred to hereafter as the “Term”).

 

3.	Position and Duties

 

(a)

During the Term, the Executive shall serve as ___________ of the Company or in such other position or positions with a level of duties and responsibilities consistent with the foregoing with the Company and/or its subsidiaries and affiliates as the Board of Directors of the Company (the “Board”) may specify from time to time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in the position or positions in which the Executive serves hereunder and as assigned by the Board, or with the Board’s authorization, by the Company’s Chief Executive Officer.

 

(b)

The Executive agrees to serve without additional compensation (or with additional compensation to be separately agreed with the Company), if elected or appointed thereto, as a director of the Company or any subsidiaries or affiliated entity of the Company (collectively, the “Group”) and as a member of any committees of the board of directors of any such entity, provided that the Executive is indemnified for serving in any and all such capacities on a basis no less favorable than is currently provided to any other director of any member of the Group.

 

(c)

The Executive agrees to devote all of his/her working time and efforts to the performance of his/her duties for the Company and to faithfully and diligently serve the Company in accordance with the Agreement and the guidelines, policies and procedures of the Company approved from time to time by the Board.

 

4.	No Breach of Contract

 

The Executive hereby represents to the Company that: (i) the execution and delivery of the Agreement by the Executive and the performance by the Executive of the Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any other agreement or policy to which the Executive is a party or by which the Executive is otherwise bound, except that the Executive does not make any representation with respect to agreements required to be entered into by and between the Executive and any member of the Group pursuant to the applicable law of the jurisdiction in which the Executive is based, if any; (ii) that the Executive is not in possession of any information (including, without limitation, confidential information and trade secrets) the knowledge of which would prevent the Executive from freely entering into the Agreement and carrying out his/her duties hereunder; and (iii) that the Executive is not bound by any confidentiality, trade secret or similar agreement with any person or entity other than any member of the Group.

 

5.

Location

 

The Executive will be based in ____________, _____ or any other location as requested by the Company during the Term.

 

6.	Compensation and BenefitS

 

(a)

Cash Compensation. As compensation for the performance by the Executive of his/her obligations hereunder, during the Term, the Company shall pay the Executive cash compensation (inclusive of the statutory benefit contributions that the Company is required to set aside for the Executive under applicable law) pursuant to Schedule A hereto, subject to annual review and adjustment by the Board or any committee designated by the Board.

 

(b)

Equity Incentives. During the Term, the Executive shall be eligible to participate, at a level comparable to similarly situated executives of the Company, in such long-term compensation arrangements as may be authorized from time to time by the Board, including any share incentive plan the Company may adopt from time to time in its sole discretion.

 

 

(c)

Benefits. During the Term, the Executive shall be entitled to participate in all of the employee benefit plans and arrangements made available by the Company to its similarly situated executives, including, but not limited to, any retirement plan, medical insurance plan and travel/holiday policy, subject to and on a basis consistent with the terms, conditions and overall administration of such plans and arrangements.

 

7.	Termination of the Agreement

 

The Employment may be terminated as follows:

 

(a)

Death. The Employment shall terminate upon the Executive's death.

 

(b)

Disability. The Employment shall terminate if the Executive has a disability, including any physical or mental impairment which, as reasonably determined by the Board, renders the Executive unable to perform the essential functions of his/her position at the Company, even with reasonable accommodation that does not impose an undue burden on the Company, for more than 180 days in any 12-month period, unless a longer period is required by applicable law, in which case that longer period shall apply.

 

(c)

Cause. The Company may terminate the Executive’s employment hereunder for Cause. The occurrence of any of the following, as reasonably determined by the Company, shall be a reason for Cause, provided that, if the Company determines that the circumstances constituting Cause are curable, then such circumstances shall not constitute Cause unless and until the Executive has been informed by the Company of the existence of Cause and given an opportunity of ten business days to cure, and such Cause remains uncured at the end of such ten-day period:

 

(1)

continued failure by the Executive to satisfactorily perform his/her duties;

 

(2)

willful misconduct or gross negligence by the Executive in the performance of his/her duties hereunder, including insubordination;

 

(3)

the Executive’s conviction or entry of a guilty or nolo contendere plea of any felony or any misdemeanor involving moral turpitude;

 

(4)

the Executive’s commission of any act involving dishonesty that results in material financial, reputational or other harm, monetary or otherwise, to any member of the Group, including but not limited to an act constituting misappropriation or embezzlement of the property of any member of the Group as determined in good faith by the Board; or

 

(5)

any material breach by the Executive of this Agreement.

 

 

(d)

Good Reason. The Executive may terminate his/her employment hereunder for “Good Reason” upon the occurrence, without the written consent of the Company, of an event constituting a material breach of this Agreement by the Company that has not been fully cured within ten business days after written notice thereof has been given by the Executive to the Company setting forth in sufficient detail the conduct or activities the Executive believes constitute grounds for Good Reason, including but not limited to:

 

(1)

the failure by the Company to pay to the Executive any portion of the Executive’s current compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Company, within 20 business days of the date such compensation is due; or

 

(2)

any material breach by the Company of this Agreement.

 

(e)

Without Cause by the Company; Without Good Reason by the Executive. The Company may terminate the Executive’s employment hereunder at any time without Cause upon 60-day prior written notice to the Executive. The Executive may terminate the Executive’s employment voluntarily for any reason or no reason at any time by giving 60-day prior written notice to the Company.

 

(f)

Notice of Termination. Any termination of the Executive’s employment under the Agreement shall be communicated by written notice of termination (“Notice of Termination”) from the terminating party to the other party. The notice of termination shall indicate the specific provision(s) of the Agreement relied upon in effecting the termination.

 

(g)

Date of Termination. The “Date of Termination” shall mean (i) the date set forth in the Notice of Termination, or (ii) if the Executive’s employment is terminated by the Executive’s death, the date of his/her death.

 

(h)

Compensation upon Termination.

 

(1)

Death. If the Executive’s employment is terminated by reason of the Executive’s death, the Company shall have no further obligations to the Executive under this Agreement and the Executive’s benefits shall be determined under the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect in accordance with the terms of such plans and programs.

 

(2)

By Company without Cause or by the Executive for Good Reason. If the Executive’s employment is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company shall (i) continue to pay and otherwise provide to the Executive, during any notice period, all compensation, base salary and previously earned but unpaid incentive compensation, if any, and shall continue to allow the Executive to participate in any benefit plans in accordance with the terms of such plans during such notice period; and (ii) pay to the Executive, in lieu of benefits under any severance plan or policy of the Company, any such amount as may be agreed between the Company and the Executive.

 

 

(3)

By Company for Cause or by the Executive other than for Good Reason. If the Executive’s employment shall be terminated by the Company for Cause or by the Executive other than for Good Reason, the Company shall pay the Executive his/her base salary at the rate in effect at the time Notice of Termination is given through the Date of Termination, and the Company shall have no additional obligations to the Executive under this Agreement.

 

(i)

Return of Company Property. The Executive agrees that following the termination of the Executive’s employment for any reason, or at any time prior to the Executive’s termination upon the request of the Company, he/she shall return all property of the Group that is then in or thereafter comes into his/her possession, including, but not limited to, any Confidential Information (as defined below) or Intellectual Property (as defined below), or any other documents, contracts, agreements, plans, photographs, projections, books, notes, records, electronically stored data and all copies, excerpts or summaries of the foregoing, as well as any automobile or other materials or equipment supplied by the Group to the Executive, if any.

 

(j)

Requirement for a Release. Notwithstanding the foregoing, the Company’s obligations to pay or provide any benefits shall (1) cease as of the date the Executive breaches any of the provisions of Sections 8, 9 and 11 hereof, and (2) be conditioned on the Executive signing the Company’s customary release of claims in favor of the Group and the expiration of any revocation period provided for in such release.

 

8.	Confidentiality and NonDisclosure

 

(a)

Confidentiality and Non-Disclosure.

 

(1)

The Executive acknowledges and agrees that: (A) the Executive holds a position of trust and confidence with the Company and that his/her employment by the Company will require that the Executive have access to and knowledge of valuable and sensitive information, material, and devices relating to the Company and/or its business, activities, products, services, customers and vendors, including, but not limited to, the following, regardless of the form in which the same is accessed, maintained or stored: the identity of the Company’s actual and prospective customers and, as applicable, their representatives; prior, current or future research or development activities of the Company; the products and services provided or offered by the Company to customers or potential customers and the manner in which such services are performed or to be performed; the product and/or service needs of actual or prospective customers; pricing and cost information; information concerning the development, engineering, design, specifications, acquisition or disposition of products and/or services of the Company; user base personal data, programs, software and source codes, licensing information, personnel information, advertising client information, vendor information, marketing plans and techniques, forecasts, and other trade secrets (“Confidential Information”); and (B) the direct and indirect disclosure of any such Confidential Information would place the Company at a competitive disadvantage and would do damage, monetary or otherwise, to the Company’s business.

 

 

(2)

During the Term and at all times thereafter, the Executive shall not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee, consultant, principal or agent of any business, or in any other capacity, publish or make known, disclose, furnish, reproduce, make available, or utilize any of the Confidential Information without the prior express written approval of the Company, other than in the proper performance of the duties contemplated herein, unless and until such Confidential Information is or shall become general public knowledge through no fault of the Executive.

 

(3)

In the event that the Executive is required by law to disclose any Confidential Information, the Executive agrees to give the Company prompt advance written notice thereof and to provide the Company with reasonable assistance in obtaining an order to protect the Confidential Information from public disclosure.

 

(4)

The failure to mark any Confidential Information as confidential shall not affect its status as Confidential Information under this Agreement.

 

(c)

Third Party Information in the Executive’s Possession. The Executive agrees that he/she shall not, during the Term, (i) improperly use or disclose any proprietary information or trade secrets of any former employer or other person or entity with which the Executive has an agreement or duty to keep in confidence information acquired by Executive, if any, or (ii) bring into the premises of Company any document or confidential or proprietary information belonging to such former employer, person or entity unless consented to in writing by such former employer, person or entity. The Executive will indemnify the Company and hold it harmless from and against all claims, liabilities, damages and expenses, including reasonable attorneys’ fees and costs of litigation, arising out of or in connection with any violation of the foregoing.

 

(d)

Third Party Information in the Company’s Possession. The Executive recognizes that the Company may have received, and in the future may receive, from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Executive agrees that the Executive owes the Company and such third parties, during the Term and thereafter, a duty to hold all such confidential or proprietary information in strict confidence and not to disclose such information to any person or firm, or otherwise use such information, in a manner inconsistent with the limited purposes permitted by the Company’s agreement with such third party.

 

 

This Section 8 shall survive the termination of the Agreement for any reason. In the event the Executive breaches this Section 8, the Company shall have right to seek remedies permissible under applicable law.

 

9.	Intellectual property

 

	(a)	Prior Inventions. The Executive has attached hereto, as Schedule B, a list describing all inventions, ideas, improvements, designs and discoveries, whether or not patentable and whether or not reduced to practice, original works of authorship and trade secrets made or conceived by or belonging to the Executive (whether made solely by the Executive or jointly with others) that (i) were developed by Executive prior to the Executive’s employment by the Company (collectively, “Prior Inventions”), (ii) relate to the Company’ actual or proposed business, products or research and development, and (iii) are not assigned to the Company hereunder; or, if no such list is attached, the Executive represents that there are no such Prior Inventions. Except to the extent set forth in Schedule B, the Executive hereby acknowledges that, if in the course of his/her service for the Company, the Executive incorporates into a Company product, process or machine a Prior Invention owned by the Executive or in which he/she has an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide right and license (which may be freely transferred by the Company to any other person or entity) to make, have made, modify, use, sell, sublicense and otherwise distribute such Prior Invention as part of or in connection with such product, process or machine.
	(b)	Assignment of Intellectual Property. The Executive hereby assigns to the Company or its designees, without further consideration and free and clear of any lien or encumbrance, the Executive’s entire right, title and interest (within the United States and all foreign jurisdictions) to any and all inventions, discoveries, improvements, developments, works of authorship, concepts, ideas, plans, specifications, software, formulas, databases, designees, processes and contributions to Confidential Information created, conceived, developed or reduced to practice by the Executive (alone or with others) during the Term which (i) are related to the Company’s current or anticipated business, activities, products, or services, (ii) result from any work performed by Executive for the Company, or (iii) are created, conceived, developed or reduced to practice with the use of Company property, including any and all Intellectual Property Rights (as defined below) therein (“Work Product”). Any Work Product which falls within the definition of “work made for hire”, as such term is defined in the U.S. Copyright Act, shall be considered a “work made for hire”, the copyright in which vests initially and exclusively in the Company. The Executive waives any rights to be attributed as the author of any Work Product and any “droit morale” (moral rights) in Work Product. The Executive agrees to immediately disclose to the Company all Work Product. For purposes of this Agreement, “Intellectual Property” shall mean any patent, copyright, trademark or service mark, trade secret, or any other proprietary rights protection legally available.

 

(c)

Patent and Copyright Registration. The Executive agrees to execute and deliver any instruments or documents and to do all other things reasonably requested by the Company in order to more fully vest the Company with all ownership rights in the Work Product. If any Work Product is deemed by the Company to be patentable or otherwise registrable, the Executive shall assist the Company (at the Company’s expense) in obtaining letters of patent or other applicable registration therein and shall execute all documents and do all things, including testifying (at the Company’s expense) as necessary or appropriate to apply for, prosecute, obtain, or enforce any Intellectual Property right relating to any Work Product. Should the Company be unable to secure the Executive’s signature on any document deemed necessary to accomplish the foregoing, whether due to the Executive’s disability or other reason, the Executive hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as the Executive’s agent and attorney-in-fact to act for and on the Executive’s behalf and stead to take any of the actions required of Executive under the previous sentence, with the same effect as if executed and delivered by the Executive, such appointment being coupled with an interest.

 

 

This Section 9 shall survive the termination of the Agreement for any reason. In the event the Executive breaches this Section 9, the Company shall have right to seek remedies permissible under applicable law.

 

10.	Conflicting Employment

 

The Executive hereby agrees that, during the Term, he/she will not engage in any other employment, occupation, consulting or other business activity related to the business in which the Company is now involved or becomes involved during the Term, nor will the Executive engage in any other activities that conflict with his/her obligations to the Company without the prior written consent of the Company.

 

11.	Non-competition and Non-Solicitation

 

(a)

Non-Competition. In consideration of the compensation provided to the Executive by the Company hereunder, the adequacy of which is hereby acknowledged by the parties hereto, the Executive agree that during the Term and for a period of one year following the termination of the Employment for whatever reason, the Executive shall not engage in Competition (as defined below) with the Group. For purposes of this Agreement, “Competition” by the Executive shall mean the Executive’s engaging in, or otherwise directly or indirectly being employed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or permitting the Executive’s name to be used in connection with the activities of, any other business or organization which competes, directly or indirectly, with the Group in the Business; provided, however, it shall not be a violation of this Section 11(a) for the Executive to become the registered or beneficial owner of up to five percent (5%) of any class of the capital stock of a publicly traded corporation in Competition with the Group, provided that the Executive does not otherwise participate in the business of such corporation.

 

 

For purposes of this Agreement, “Business” means interior design, decoration and construction, and any other business and any other business which the Group engages in, or is preparing to become engaged in, during the Term.

 

(b)

Non-Solicitation; Non-Interference. During the Term and for a period of one year following the termination of the Executive’s employment for any reason, the Executive agrees that he/she will not, directly or indirectly, for the Executive’s benefit or for the benefit of any other person or entity, do any of the following:

 

(1)

solicit from any customer doing business with the Group during the Term business of the same or of a similar nature to the Business;

 

(2)

solicit from any known potential customer of the Group business of the same or of a similar nature to that which has been the subject of a known written or oral bid, offer or proposal by the Group, or of substantial preparation with a view to making such a bid, proposal or offer;

 

(3)

solicit the employment or services of, or hire or engage, any person who is known to be employed or engaged by the Group; or

 

(4)

otherwise interfere with the business or accounts of the Group, including, but not limited to, with respect to any relationship or agreement between the Group and any vendor or supplier.

 

(c)

Injunctive Relief; Indemnity of Company. The Executive agrees that any breach or threatened breach of subsections (a) and (b) of this Section 11 would result in irreparable injury and damage to the Company for which an award of money to the Company would not be an adequate remedy. The Executive therefore also agrees that in the event of said breach or any reasonable threat of breach, the Company shall be entitled to seek an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all persons and/or entities acting for and/or with the Executive. The terms of this paragraph shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including, but not limited to, remedies available under this Agreement and the recovery of damages. The Executive and the Company further agree that the provisions of this Section 11 are reasonable. The Executive agrees to indemnify and hold harmless the Company from and against all reasonable expenses (including reasonable fees and disbursements of counsel) which may be incurred by the Company in connection with, or arising out of, any violation of this Agreement by the Executive. This Section 11 shall survive the termination of the Agreement for any reason.

 

12.            Withholding Taxes

 

Notwithstanding anything else herein to the contrary, the Company may withhold (or cause there to be withheld, as the case may be) from any amounts otherwise due or payable under or pursuant to the Agreement such national, state, provincial, local or any other income, employment, or other taxes as may be required to be withheld pursuant to any applicable law or regulation.

 

 

13.            Assignment

 

The Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer the Agreement or any rights or obligations hereunder; provided, however, that the Company may assign or transfer the Agreement or any rights or obligations hereunder to any member of the Group without such consent. If the Executive should die while any amounts would still be payable to the Executive hereunder if the Executive had continued to live, all such amounts unless otherwise provided herein shall be paid in accordance with the terms of this Agreement to the Executive’s devisee, legatee, or other designee or, if there be no such designee, to the Executive’s estate. The Company will require any and all successors (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Company in the same amount and on the same terms as the Executive would be entitled to hereunder if the Company had terminated the Executive’s employment other than for Cause, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Section 13, “Company” shall mean the Company as herein before defined and any successor to its business and/or assets as aforesaid which executes and delivers the agreement provided for in this Section 13 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law.

 

14.            Severability

 

If any provision of the Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of the Agreement are declared to be severable.

 

15.            Entire Agreement

 

The Agreement constitutes the entire agreement and understanding between the Executive and the Company regarding the terms of the Employment and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The Executive acknowledges that he/she has not entered into the Agreement in reliance upon any representation, warranty or undertaking which is not set forth in the Agreement.

 

16.            Governing Law

 

The Agreement shall be governed by and construed in accordance with the law of the Cayman Islands.

 

 

17.            AMENDMENT

 

The Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to the Agreement, which agreement is executed by both of the parties hereto.

 

18.            Waiver

 

Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

19.            Notices

 

All notices, requests, demands and other communications required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given and made if (i) delivered by hand, (ii) otherwise delivered against receipt therefor, (iii) sent by a recognized courier with next-day or second-day delivery to the last known address of the other party; or (iv) sent by e-mail with confirmation of receipt.

 

20.            Counterparts

 

The Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which together shall constitute one and the same instrument. The Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. Photographic copies of such signed counterparts may be used in lieu of the originals for any purpose.

 

21.            No Interpretation against Drafter

 

Each party recognizes that the Agreement is a legally binding contract and acknowledges that such party has had the opportunity to consult with legal counsel of choice. In any construction of the terms of the Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such terms.

 

[Remainder of the page intentionally left blank.]

 

 

IN WITNESS WHEREOF, the Agreement has been executed as of the date first written above.

 

COMPANY:	BITDEER TECHNOLOGIES GROUP
	a Cayman Islands exempted company
	By:
	Name:
	Title:
EXECUTIVE:
	Name:
	Address:

 

 

Schedule A

 

Cash Compensation

 

		Amount				Pay Period
Base Salary
Cash Bonus

 

 

Schedule B

 

List of Prior Inventions

 

Title		Date		Identifying Number or Brief Description

 

______ No inventions or improvements   ______ Additional Sheets Attached   Signature of Executive: ________________   Print Name of Executive: _______________   Date: ____________

 

 

 

Exhibit 10.4

 

BITDEER TECHNOLOGIES GROUP

 

INDEMNIFICATION AGREEMENT

 

THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of            , 2023 by and between Bitdeer Technologies Group, an exempted company incorporated and existing under the laws of the Cayman Islands (the “Company”), and                        (Passport/ID Card No.:                       ) (the “Indemnitee”).

 

WHEREAS, the Indemnitee has agreed to serve as a director or officer of the Company and in such capacity will render valuable services to the Company; and

 

WHEREAS, in order to induce and encourage highly experienced and capable persons such as the Indemnitee to render valuable services to the Company, the board of directors of the Company (the “Board”) has determined that this Agreement is not only reasonable and prudent, but necessary to promote and ensure the best interests of the Company and its shareholders;

 

NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to render valuable services the Company, the Company and the Indemnitee hereby agree as follows:

 

1.            Definitions. As used in this Agreement:

 

(a)            “Change in Control” shall mean a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar or successor schedule or form) promulgated under the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred (irrespective of the applicability of the initial clause of this definition) if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act, but excluding any trustee or other fiduciary holding securities pursuant to an employee benefit or welfare plan or employee share plan of the Company or any subsidiary or affiliate of the Company, or any entity organized, appointed, established or holding securities of the Company with voting power for or pursuant to the terms of any such plan) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 30% or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least two-thirds of the Continuing Directors (as defined below) in office immediately prior to such person’s attaining such interest; (ii) the Company is a party to a merger, consolidation, scheme of arrangement, sale of assets or other reorganization, or a proxy contest, as a consequence of which Continuing Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of the Company (or any successor entity) thereafter; or (iii) during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Board of the Company (including for this purpose any new director whose election or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) (such directors being referred to herein as “Continuing Directors”) cease for any reason to constitute at least a majority of the Board of the Company.

 

 

(b)            “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee.

 

(c)            The term “Expenses” shall mean, without limitation, expenses of Proceedings, including attorneys’ fees, disbursements and retainers, accounting and witness fees, expenses related to preparation for service as a witness and to service as a witness, travel and deposition costs, expenses of investigations, judicial or administrative proceedings and appeals, amounts paid in settlement of a Proceeding by or on behalf of the Indemnitee, costs of attachment or similar bonds, any expenses of attempting to establish or establishing a right to indemnification or advancement of expenses, under this Agreement, the Company’s Memorandum of Association and Articles of Association as currently in effect (the “Articles”), applicable law or otherwise, and reasonable compensation for time spent by the Indemnitee in connection with the investigation, defense or appeal of a Proceeding or action for indemnification for which the Indemnitee is not otherwise compensated by the Company or any third party. The term “Expenses” shall not include the amount of judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, which are actually levied against or sustained by the Indemnitee to the extent sustained after final adjudication.

 

(d)            The term “Independent Legal Counsel” shall mean any firm of attorneys reasonably selected by the Board of the Company, so long as such firm has not represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company, within the preceding five (5) years. Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Company’s Articles, applicable law or otherwise.

 

(e)            The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, or other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), by reason of (i) the fact that the Indemnitee is or was a director or officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, whether or not the Indemnitee is serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement is to be provided under this Agreement, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Company’s Articles, applicable law or otherwise.

 

 

(f)            The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director/an executive officer of the Company which imposes duties on, or involves services by, such director/executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company.

 

2.            Services by the Indemnitee. The Indemnitee agrees to serve as a director or officer of the Company under the terms of the Indemnitee’s agreement with the Company for so long as the Indemnitee is duly elected or appointed or until such time as the Indemnitee tenders a resignation in writing or is removed from the Indemnitee’s position; provided, however, that the Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or other obligation imposed by operation of law).

 

3.            Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was a director or officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, against all Expenses, judgments, fines, interest or penalties, and excise taxes assessed with respect to any employee benefit or welfare plan, which are actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this section shall be made in respect of any claim, issue or matter as to which such person shall have been adjudicated by final judgment by a court of competent jurisdiction to be liable to the Company for willful misconduct in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such amounts which such other court shall deem proper.

 

4.            Proceeding Other Than a Proceeding by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company), by reason of the fact that the Indemnitee is or was a director or officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, against all Expenses, judgments, fines, interest or penalties, and excise taxes assessed with respect to any employee benefit or welfare plan, which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, to the fullest extent permitted by applicable law; provided, however, that any settlement of a Proceeding must be approved in advance in writing by the Company (which approval shall not be unreasonably withheld).

 

 

5.            Indemnification for Costs, Charges and Expenses of Witness or Successful Party. Notwithstanding any other provision of this Agreement (except as set forth in subparagraph 9(a) hereof), and without a requirement for determination as required by Paragraph 8 hereof, to the extent that the Indemnitee (a) has prepared to serve or has served as a witness in any Proceeding in any way relating to (i) the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans or such plan’s participants or beneficiaries or (ii) anything done or not done by the Indemnitee as a director or officer of the Company or in connection with serving at the request of the Company as an agent of another enterprise, or (b) has been successful in defense of any Proceeding or in defense of any claim, issue or matter therein, on the merits or otherwise, including the dismissal of a Proceeding without prejudice or the settlement of a Proceeding without an admission of liability, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith to the fullest extent permitted by applicable law.

 

6.            Partial Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of the Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, which are actually and reasonably incurred by the Indemnitee in the investigation, defense, appeal or settlement of any Proceeding, but not, however, for the total amount of the Indemnitee’s Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, then the Company shall nevertheless indemnify the Indemnitee for the portion of such Expenses, judgments, fines, interest or penalties or excise taxes to which the Indemnitee is entitled.

 

7.            Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee to the fullest extent permitted by applicable law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding, a statement that such Expenses do not relate to any matter described in subparagraph 9(a) of this Agreement, and an undertaking in writing to repay any advances if it is ultimately determined as provided in subparagraph 8(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement.

 

8.            Indemnification Procedure; Determination of Right to Indemnification.

 

(a)            Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification or advancement of Expenses in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in writing. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify.

 

(b)            The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by applicable law, for indemnification pursuant to this Agreement and shall be absolutely entitled to such indemnification, unless a determination is made that the Indemnitee has not met such standards by a court of competent jurisdiction.

 

 

(c)            If a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the rights provided by this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors or shareholders of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors or shareholders of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein.

 

(d)            If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings).

 

(e)            With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his/her own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee.

 

 

9.            Limitations on Indemnification. No payments pursuant to this Agreement shall be made by the Company:

 

(a)            To indemnify or advance funds to the Indemnitee for Expenses with respect to (i) Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable law or (ii) Expenses incurred by the Indemnitee in connection with preparing to serve or serving, prior to a Change in Control, as a witness in cooperation with any party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification or advancement of Expenses in each such case may be provided by the Company if the Board finds it to be appropriate;

 

(b)            To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, sustained in any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance;

 

(c)            To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties sustained in any Proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation;

 

(d)            To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;

 

(e)            To indemnify the Indemnitee for any Expenses (including without limitation any Expenses relating to a Proceeding attempting to enforce this Agreement), judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, on account of the Indemnitee’s conduct if such conduct shall be finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct, including, without limitation, breach of the duty of loyalty; or

 

(f)             If a court of competent jurisdiction finally determines that any indemnification hereunder is unlawful. In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication;

 

(g)            To indemnify the Indemnitee in connection with Indemnitee’s personal tax matter; or

 

(h)            To indemnify the Indemnitee with respect to any claim related to any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee.

 

 

10.           Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director or officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any possible Proceeding by reason of the fact that the Indemnitee was a director or officer of the Company or serving in any other capacity referred to in this Paragraph 10.

 

11.           Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Company’s Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office.

 

12.           Successors and Assigns.

 

(a)            This Agreement shall be binding upon the Indemnitee, and shall inure to the benefit of, the Indemnitee and the Indemnitee’s heirs, executors, administrators and assigns, whether or not the Indemnitee has ceased to be a director or officer, and the Company and its successors and assigns. Upon the sale of all or substantially all of the business, assets or share capital of the Company to, or upon the merger of the Company into or with, any corporation, partnership, joint venture, trust or other person, this Agreement shall inure to the benefit of and be binding upon both the Indemnitee and such purchaser or successor person. Subject to the foregoing, this Agreement may not be assigned by either party without the prior written consent of the other party hereto.

 

(b)            If the Indemnitee is deceased and is entitled to indemnification under any provision of this Agreement, the Company shall indemnify the Indemnitee’s estate and the Indemnitee’s spouse, heirs, executors, administrators and assigns against, and the Company shall, and does hereby agree to assume, any and all Expenses actually and reasonably incurred by or for the Indemnitee or the Indemnitee’s estate, in connection with the investigation, defense, appeal or settlement of any Proceeding. Further, when requested in writing by the spouse of the Indemnitee, and/or the Indemnitee’s heirs, executors, administrators and assigns, the Company shall provide appropriate evidence of the Company’s agreement set out herein to indemnify the Indemnitee against and to itself assume such Expenses.

 

13.           Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.

 

14.           Severability. Each and every paragraph, sentence, term and provision of this Agreement is separate and distinct so that if any paragraph, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, unlawfulness or enforceability of any other paragraph, sentence, term or provision hereof. To the extent required, any paragraph, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement.

 

 

15.           Savings Clause. If this Agreement or any paragraph, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable paragraph, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law.

 

16.           Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof.

 

17.           Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Company’s Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company.

 

18.           Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other.

 

19.         Notices. Any notice required to be given under this Agreement shall be directed to         of the Company, at      08 Kallang Avenue, Aperia tower 1, #09-03/04, Singapore                                                             and to the Indemnitee at                                                          or to such other address as either shall designate to the other in writing.

 

[The remainder of this page is intentionally left blank.]

 

 

IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as of the date first written above.

 

	Bitdeer Technologies Group
	By:
	Name:
	Title:
	INDEMNITEE
	By:
	Name:

 

[Signature Page to Indemnification Agreement]

 

 

Exhibit 10.5

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

LEASE

 

This LEASE (“Lease”) is dated as of June 6, 2018 (the “Commencement Date”) and is by and between Alcoa USA Corp., a Delaware corporation, 201 Isabella Street, Ste. 500, Pittsburgh, Pennsylvania 15212, (“Landlord”) and Dory Creek, LLC, a Texas limited liability company, with an office at 2121 W Chandler Blvd, Suite 112 Chandler, AZ 85224 (“Tenant”). Tenant and Landlord are collectively referred to as the “Parties”.

 

W I T N E S S E T H:

 

ARTICLE 1

 

Premises, Term, Rent, Security Deposit, Lease Extension 

 

1.01.       Landlord is the owner of certain real property, buildings, infrastructure and electric delivery facilities located in Milam County, Texas (the “Alcoa Property”), including the site of the Landlord’s former Rockdale smelter facility. Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord, a certain portion of Landlord’s real property and improvements located thereon, all as described herein.

 

1.02.       Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the real property and personal property more particularly described in Exhibit A-1 attached hereto (the “Land”), certain existing buildings and improvements located on the Land (the “Buildings”) as more particularly described in Exhibit A-2 and a certain portion of Landlord’s existing electric power delivery network (the “Private User Network” or “PUN”) as more particularly described in Exhibit A-3 (excluding, however, certain electric power delivery facilities and equipment retained by Landlord (“Landlord’s PUN Equipment”) and underground rights or air rights except as expressly set forth herein). The Land, Buildings and the PUN are sometimes referred to collectively herein as the “Premises”. The Tenant’s use of the Premises as exclusive or non-exclusive is more specifically designated and detailed in Exhibits attached hereto. Tenant is further granted the non-exclusive right to use certain common areas (the “Common Areas”) as more particularly described on Exhibit A-4 attached hereto, and as further referenced in Article 39 hereof and certain portions of Landlord’s PUN Equipment. Common Areas and the Landlord’s PUN Equipment are also used by Landlord and may be used by other tenants of Landlord, current and future; provided, however, that out of the total electric delivery capacity of the Landlord’s PUN Equipment (the “Total Electric Capacity”), the maximum name plate rating of power transformers [***] and [***] of [***] megawatts and circuit [***] of [***] megawatts for a total of 584 megawatts shall be reserved for Tenant’s use of the Landlord’s PUN Equipment pursuant to the provisions of this Lease (the “Tenant’s Share of Total Electric Capacity”). The Common Areas which are to be maintained by Tenant, and the usage fees to be paid for use by Tenant as additional rent, are stated in Exhibit A-4 and Section 39.02.

 

 

1.03.       (a)       Landlord shall continue to have access to all roads throughout the Premises, and any outdoor space, on an as needed basis to continue to perform work in accordance with Section 3.01. Landlord reserves to itself the right, from time to time, to grant such easements, rights, restrictions and dedications that Landlord deems necessary or desirable for management of the Alcoa Property, and to cause the recordation of the same, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with Tenant’s use of the Premises pursuant to this Lease. Upon request by Landlord, Tenant shall execute any of the aforementioned documents, and failure to do so shall constitute a material default of this Lease by Tenant.

 

(b)       Landlord shall continue to have access to the Premises’ courtyards and the equipment, facilitates, and infrastructure adjacent thereto to perform demolition activities until January 1, 2020. Tenant agrees to cooperate with Landlord, at no material cost to Tenant to help facilitate the completion of such work. The Tenant and Landlord will work together to reasonably minimize the impact of the work on the

Tenant’s and Landlord’s operations. 

 

1.04.       The initial term of this Lease (“Initial Term”), for which the Premises are hereby leased, shall commence on the Commencement Date and shall end on the last day of the month in which occurs the day preceding the expiration of seven (7) years after the Commencement Date, which ending date is hereinafter called the “Expiration Date”, or shall end on such earlier date upon which said term may expire or be cancelled or terminated pursuant to any of the conditions or covenants of this Lease or pursuant to law or shall end on such later date upon which said term may be extended pursuant to any of the conditions or covenants of this Lease. 

 

1.05.       Except as expressly set forth in this Lease, Tenant shall have no right to enter or occupy the Premises until the Commencement Date, provided that Tenant has furnished Landlord with copies of those certain documents as specified in Exhibit B. Except as otherwise provided herein, any entry prior to the Commencement Date, as hereinafter defined, shall be subject to the express written consent of Landlord and subject to all of the terms and provisions of this Lease; provided further that no such early entry shall operate to change the Commencement Date or the Expiration Date provided for herein.

 

 

1.06.       Upon execution hereof, Tenant has paid Landlord a lump sum rent in the amount of [***] for the period from the Commencement Date through December 31, 2018 (the “Preliminary Period”). The rents payable by Tenant under this Lease, for the balance of the Initial Term, shall be and consist of:

 

(a)       Fixed Rent. From January 1, 2019 to and including December 31, 2019 (the “First Rent Period”), Tenant shall pay fixed rent in the initial amount of [***] per year (“Initial Rent”), which shall be payable in twelve equal monthly installments of [***] payable in advance on the first (1^st) day of each and every calendar month in the First Rent Period. From the termination of the First Rent Period through the balance of the Initial Term, and subject to the escalation provided in Section 1.06(b), Tenant shall pay fixed rent in the amount of [***] per year, which shall be payable in initial equal monthly installments of [***] for the remaining Initial Term (collectively “Fixed Rent”). Fixed Rent is payable in advance on the first (1^st) day of each and every calendar month, except that Tenant shall pay the first (1^st) monthly installment of Fixed Rent at least one (1) business day prior to the end of the First Rent Period.

 

(b)       Escalation of Fixed Rent. Commencing on January 1, 2021, and on each January 1 during the Initial Term, annual Fixed Rent shall increase by [***]. If applicable, on each January 1 during the Extension Term (as defined below), annual Fixed Rent shall increase by the greater of [***] or [***], not to exceed [***] in any single year, between (a) the first month and (b) the eleventh month, during the previous year. The “CPI” shall be defined as the Index, for Consumer Price Index for All Urban Consumers (CPI-U) for the South, issued by the Bureau of Labor Statistics for the U.S. Department of Labor; or if the index is no longer published, the index for consumer prices in such city most closely comparable to said index. The annual adjustment to Fixed Rent is self-operative, but Landlord will annually notify Tenant of the escalated Fixed Rent for each new year, and the applicable monthly installments for payment of the escalated Fixed Rent.

 

(c)       Additional Rent. Additional rent consists of all other sums of money as shall be required to be paid by Tenant to Landlord pursuant to this Lease (whether or not designated as “additional rent”), all to be paid to Landlord at Landlord’s office, or such other place, or to such agent and at such place, as Landlord may designate by notice to Tenant, in lawful money of the United States of America. Such payment of rent shall be in cash or by check (drawn upon a bank whose principal office is located within the continental United States of America), subject to collection. Landlord shall have the same remedies for any default in the payment of additional rent as for a default in the payment of Fixed Rent.

 

1.07.       Tenant shall pay the Fixed Rent and additional rent herein reserved promptly as and when the same shall become due and payable, without demand therefor and without any abatement, deduction or set-off whatsoever except as expressly provided in this Lease. Tenant’s obligation to pay Fixed Rent and additional rent under this Lease shall not be affected by, nor shall the rent abate or be diminished, reduced, rebated or refunded on account of any, want of repair, destruction or damage to the Premises or the Improvements, regardless of the cause or extent of them, or for any inconvenience, discomfort, interruption of business, or otherwise, arising from the making of alterations, changes, additions or repairs to the Premises or the Improvements, or because of any present or future governmental laws, ordinances, requirements, orders, directives, rules or regulations, or for any other cause or reason.

 

 

1.08.       If Tenant shall fail to pay all or any part of any installment of Fixed Rent or additional rent for more than five (5) business days after written notice that the same has not been paid, Tenant shall pay as additional rent hereunder to Landlord a late charge of [***] which shall not have been paid to Landlord within such five (5) business day period.

 

1.09.       In every case in which Tenant is required by the terms of this Lease to pay to Landlord a sum of money (other than a late charge) and payment is not made within ten (10) days after written notice that the sum has not been paid, Tenant shall pay, as additional rent hereunder, interest on such sum or so much thereof as shall be unpaid from the date it becomes due until it is paid. Such interest shall be computed at a rate which shall be [***]; provided, however, that in no event shall such interest be in excess of the highest rate of interest which shall from time to time be permitted under the laws of the State of Texas to be charged on late payments of sums of money due pursuant to the terms of a lease.

 

1.10.       The late charge and the interest payable pursuant to this Article shall be (i) payable within ten (10) days of Tenant’s receipt of Landlord’s bill therefor and (ii) without prejudice to any of Landlord’s rights and remedies hereunder at law or in equity for nonpayment or late payment of rent or other sum and in addition to any such rights and remedies.

 

1.11.       If all or any part of the Fixed Rent or additional rent shall at any time become uncollectible, reduced or required to be refunded by virtue of any rules, regulations, orders, laws or ordinances, then for the period prescribed thereby Tenant shall pay to Landlord the maximum amounts permitted pursuant thereto. Upon the expiration of the applicable period of time during which such amounts shall be uncollectible, reduced or refunded, Tenant shall pay to Landlord as additional rent, within fifteen (15) days after demand, all such uncollected, reduced or refunded amounts that would have been payable for the period absent such rules, regulations, orders, laws or ordinances; provided, however, that the retroactive collection thereof shall then be lawful.

 

1.12.       Reserved.

 

 

1.13       Tenant shall provide to Landlord a clean, irrevocable stand-by letter of credit as security for the performance of the obligations of Tenant hereunder (together with any renewal or replacement thereof in accordance herewith, the “Letter of Credit”). Tenant shall provide the Letter of Credit, prior to occupying the Premises, in the amount of [***]. Any Letter of Credit delivered hereunder shall comply with the following requirements:

 

(a)       The Letter of Credit (i) shall be irrevocable and shall be issued by a commercial bank reasonably acceptable to Landlord that has an office in Texas that accepts requests for draws on the Letter of Credit, (ii) shall require only the presentation to the issuer of a certificate of the holder of the Letter of Credit stating that Landlord is entitled to draw on the Letter of Credit pursuant to the terms of the Lease, (iii) shall be payable to Landlord or its successors in interest as the Landlord and shall be freely transferable without cost to any such successor or any lender holding a collateral assignment of Landlord’s interest in the Lease, (iv) shall be for an initial term of not less than one year and contain a provision that such term shall be automatically renewed for successive one-year periods unless the issuer shall, at least ninety (90) days prior to the scheduled expiration date, give Landlord notice of such nonrenewal, and (v) shall otherwise be in form and substance reasonably acceptable to Landlord. Notwithstanding the foregoing, the term of the Letter of Credit for the final period shall be for a term ending not earlier than the date thirty (30) days after the last day of the Term (as defined herein). In the event that the issuer ceases to be reasonably acceptable to Landlord, due to a deterioration in its financial condition or change in status that threatens to compromise Landlord’s ability to draw on the Letter of Credit as determined in good faith by Landlord, then Tenant shall provide a replacement Letter of Credit from an issuer satisfying the terms of this Exhibit within thirty (30) days after Landlord’s notice of such event.

 

(b)       Landlord shall be entitled to draw upon the Letter of Credit for its full amount or any portion thereof if (a) Tenant shall fail to perform any of its obligations under the Lease after the expiration of any applicable notice and cure period, or fail to perform any of its obligations under the Lease and transmittal of a default notice or the running of any cure period is barred or tolled by applicable law, or fail to perform any of its obligations under the Lease and any applicable notice and cure period would expire after the expiration of the Letter of Credit, or (b) not less than thirty (30) days before the scheduled expiration of the Letter of Credit, Tenant has not delivered to Landlord a new Letter of Credit in accordance with this Section 1.13. Without limiting the generality of the foregoing, Landlord may, but shall not be obligated to, draw on the Letter of Credit from time to time in the event of a bankruptcy filing by or against Tenant and/or to compensate Landlord, in such order as Landlord may determine, for all or any part of any unpaid rent, any damages arising from any termination of the Lease in accordance with the terms of the Lease, and/or any damages arising from any rejection of the Lease in a bankruptcy proceeding commenced by or against Tenant. Landlord may, but shall not be obligated to, apply the amount so drawn to the extent necessary to cure Tenant’s failure.

 

(c)       Any amount of the Letter of Credit drawn in excess of the amount applied by Landlord to cure any such failure shall be held by Landlord as a cash security deposit for the performance by Tenant of its obligations under the Lease. Any cash security deposit may be mingled with other funds of Landlord and no fiduciary relationship shall be created with respect to such deposit, nor shall Landlord be liable to pay Tenant interest thereon. If Tenant shall fail to perform any of its obligations under the Lease, Landlord may, but shall not be obliged to, apply the cash security deposit to the extent necessary to cure Tenant’s failure. After any such application by Landlord of the Letter of Credit or cash security deposit, as the case may be, Tenant shall reinstate the Letter of Credit to the amount originally required to be maintained under the Lease, upon demand. Provided that Tenant is not then in default under the Lease, and no condition exists or event has occurred which after the expiration of any applicable notice or cure period would constitute such a default, within thirty (30) days after the expiration or sooner termination of the Term the Letter of Credit and any cash security deposit, to the extent not applied, shall be returned to the Tenant, without interest.

 

 

(d)       In the event of a sale of the Buildings or lease, conveyance or transfer of the Buildings, Landlord shall transfer the Letter of Credit or cash security deposit to the transferee. Upon such transfer, the transferring Landlord shall be released by Tenant from all liability for the return of such security, and Tenant agrees to look to the transferee solely for the return of said security. The provisions hereof shall apply to every transfer or assignment made of the security to such a transferee. Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the Letter of Credit or the monies deposited herein as security, and that neither Landlord nor its successors or assigns shall be bound by any assignment, encumbrance, attempted assignment or attempted encumbrance.

 

1.14       The Tenant is hereby granted the option, to be exercised as hereinafter provided, to extend the term of this Lease for two (2) successive periods of five (5) years each following the Initial Term set forth in Article 1 (each such period being herein referred to as an "Extension Term") upon condition that at the date of exercise with respect to, and at the date or commencement of each, such Extension Term there is no default by Tenant in the performance of any of its obligations under this Lease. Such periods shall be consecutively successive (Initial Term and Extension Term, collectively referred to as “Term”).

 

1.15       Each Extension Term shall be upon the same terms and conditions as provided in this Lease for the Initial Term, unless specifically provided otherwise, except there shall be no privilege to extend the term of this Lease for any period or time beyond the expiration of the last Extension Term above specified, and noting, for the avoidance of doubt, that the Fixed Rent during each year shall continue to adjust as set forth in Section 1.06.

 

1.16       The Tenant, if it elects to exercise its option to renew, shall do so by written notice delivered to Landlord at least nine (9) months prior to the date or expiration of the then current term. Upon such exercise this Lease shall be deemed to be extended without the execution or any further lease or other instrument.

 

 

ARTICLE 2

 

Use

 

2.01.       The Premises shall be used for the following, but for no other purpose: operation of a blockchain data processing software and hardware center (“Data Center”), office use related to the Data Center, and a technology repair facility related to the Data Center, all strictly in accordance with current governmental laws and regulations as of the date hereof and throughout the Term of the Lease (hereinafter “Use”).

 

2.02.       The Premises shall be used and occupied for the sole purpose of the Use. If Tenant maintains the same Use, but desires to change its operations in a manner that could impact the environment or any discharge or emission therefrom, or require an environmental permit or approval, the Tenant shall obtain Landlord’s advance written consent to any such proposed change prior to implementation which consent shall not be unreasonably withheld or delayed. The Tenant will cooperate with Landlord, at no material cost to Tenant, with respect to Tenant’s power consumption at the facility and the potential expansion, maintenance, replacement or reorganization of the PUN or Landlord’s PUN Equipment. For the avoidance of doubt, any downtime of Tenant’s operations incurred by Tenant during the work as described in this Section 2.02 shall not be considered a cost to the Tenant for the purposes of this section. Landlord will provide Tenant reasonable notice of any potential expansion, maintenance, replacement or reorganization of the PUN or Landlord’s PUN Equipment and the parties will work together to seek to reasonably minimize the disruption of the delivery of electricity during such work. Tenant shall not do or permit anything to be done in or about the Premises which will cause the Premises to be used for any unlawful purpose. Tenant shall not do, permit or suffer in, on, or about the Premises, the commission of any waste or nuisance in any material respect. Tenant shall not in the reasonable judgment of Landlord impair, interfere with or otherwise diminish the quality of the Premises. During the Term of this Lease, Tenant shall at all times comply with the Excavation Restriction defined below, and shall be responsible for any costs, fees or damage incurred by Landlord in breach of such restriction. For purposes of the Lease, “Excavation Restriction” means Tenant shall not construct, drill, core, excavate, or disturb the subsurface of the Premises, including without limitation any buildings within the Premises, without the prior written consent of Landlord.

 

2.03.       Tenant shall not use or permit the use of the Premises or any part thereof in any way which would violate any of the covenants, agreements, terms, provisions and conditions of this Lease or of any current applicable restrictions of record recorded against the Land in Milam County, Texas, or for any unlawful purposes, or in any unlawful manner or in violation of governmental regulations for the Premises.

 

 

ARTICLE 3

 

Condition of the Premises

 

3.01.       (a)       Subject to Section 1.05, Tenant may immediately occupy the Buildings set forth in Paragraph 1 of Exhibit C attached to this Lease. Landlord will, at Landlord’s cost and sole discretion, complete certain work at the Premises in accordance with Paragraphs 2 and 3 of Exhibit C prior to the time the Tenant may occupy the remaining Buildings (collectively “Landlord’s Work”). Except as set forth in Exhibit C and this Lease, Landlord shall not be obligated or required to do any additional modification or maintenance to the Premises during the Term of this Lease. Except as provided for herein, Landlord shall not be responsible for any delays in completing Landlord’s Work and Tenant hereby releases Landlord from any Losses resulting from such delays including direct, indirect, punitive, consequential, special or incidental damages. Prior to the Commencement Date, upon prior written approval of Landlord, such consent not to be unreasonably withheld, delayed or conditioned, Tenant may access certain areas of the Premises to begin staging, prepping and planning activities related to Tenant’s Use.

 

(b)       In the event Landlord is delayed or unable to complete Landlord’s Work in accordance with Article 3.01(a), and Exhibit C prior to the end of the First Rent Period, Tenant shall continue paying Fixed Rent at the Initial Rent rate until such time as Landlord’s Work is complete.

 

3.02.       In accordance with Article 12, all installations, facilities, materials and work which may be undertaken by or for the account of Tenant to prepare, equip, decorate and furnish the Premises for Tenant’s occupancy and Use, shall be completed by Tenant at Tenant’s expense (“Tenant’s Work”). Tenant may complete Tenant’s Work, at Tenant’s sole cost and expense; however, Tenant’s Work must be coordinated in advance and approved by Landlord in writing. Tenant will submit written plans and specifications thirty (30) days in advance of such activity to Landlord. Such notice will contain sufficient detail of Tenant’s Work. Tenant will be responsible for all permits and approvals related to Tenant’s Work. Notwithstanding the above, Tenant’s Work described on Exhibit D is hereby approved. This Lease is contingent on Tenant obtaining, at its own cost and expense, all permits, licenses and consents necessary for its Use of the Premises. Provided it is at no cost or expense to Landlord, Landlord shall assist Tenant in obtaining all required permits, licenses and consents by providing information, documents and assistance as necessary in order for Tenant to obtain such permits. It is Tenant’s responsibility to determine what permits are necessary for its Use and operations at the site.

 

 

3.03.       No Representation or Warranties. TENANT SPECIFICALLY ACKNOWLEDGES THAT TENANT IS LEASING THE PROPERTY ON AN "AS IS, WITH ALL FAULTS" BASIS AND THAT TENANT WILL HAVE AN OPPORTUNITY TO INSPECT THE PREMISES PRIOR TO THE COMMENCEMENT DATE AND THAT TENANT IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM LANDLORD, ITS AGENTS, OR REPRESENTATIVES AS TO ANY MATTERS CONCERNING THE PREMISES, INCLUDING WITHOUT LIMITATION: (i) the quality, nature, adequacy and physical condition of the Premises and any improvements thereon, including, but not limited to, the structural elements, foundations, roofs, floors, appurtenances, access, landscaping, parking facilities, and the electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances; (ii) the quality, nature, adequacy, and physical condition of soils, geology and any groundwater; (iii) the existence, quality, nature and adequacy of any utilities available to the Premises; (iv) the Premises’ use, habitability, merchantability, or fitness, suitability, value, or adequacy for any particular purpose; (v) the zoning or other legal status of the Premises or any other public or private restrictions on use of the Premises; (vi) the compliance of the Premises or its operation with any applicable codes, laws, permits, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity; (vii) the presence or removal of Hazardous Substances in, on, under, or about the Premises or the adjoining or neighboring properties; (viii) the quality of any labor and materials used in any improvements on the Premises; (ix) the condition of title to the Premises; (x) the leases, service contracts, or other agreements affecting the Premises; and (xi) the economics of the operation of the Premises for any purpose.

 

LANDLORD HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED REGARDING THE PREMISES.

 

ARTICLE 4

 

When Premises Ready for Occupancy

 

4.01       Each Building will be ready for occupancy by Tenant in accordance with Exhibit C, or as otherwise agreed by the Parties, including partial occupancies.

 

4.02.       If the occurrence of the conditions set forth in Section 4.01 hereof, and thereby the making of the Premises ready for occupancy, shall be delayed due to any act or omission of Tenant or any of its employees, agents or contractors; (each, a “Tenant Delay”), and such delay shall have been unavoidable by Landlord in the exercise of reasonable diligence and prudence, the Premises shall be deemed ready for occupancy on the date when they would have been ready but for such delay.

 

4.03.       If and when Tenant shall take actual possession of the Buildings, it shall be conclusively presumed that the same were in satisfactory condition as of the date of such taking of possession.

 

 

ARTICLE 5

 

Taxes

 

5.01.       Tenant shall, as additional rent, pay and discharge punctually when billed and before any fine, penalty, interest or cost may be added, 100% percent (“Tenant’s Share”), of all taxes, assessments, payments in lieu of tax, water and sewer rents, rates and charges, occupancy or rent tax, levies, license and permit fees and all other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, foreseen and unforeseen, which shall be charged, levied, laid, assessed, imposed upon, become due and payable out of or in respect of, or become liens upon the whole or any part of the Premises designated for Tenant’s exclusive use, including the Land, Buildings, improvements or Tenant’s personal property, together with all interest and penalties, under all present or future laws, ordinances, requirements, orders, directives, rules or regulations or the federal, state, county, and city governments and of all other governmental authorities whatsoever (the “Taxes”). Tenant shall not directly contact the local, or state taxing authority without the prior consent of Landlord. Tenant shall not be responsible for any item that would otherwise be “Taxes” hereunder, but that is being assessed for items occurring outside the lease Term; it being the intent of the parties that the phrase “Taxes” which are payable by Tenant should be directly tied to Tenant’s lease of the Premises and the time periods applicable thereto.

 

5.02       If, for purposes of ad valorem tax purposes, the Premises are rendered by applicable taxing authority in connection with, or as part of, other real property owned by Landlord, Tenant’s Share of Taxes shall be reasonably apportioned by Landlord so that all Taxes related to the Premises are paid by Tenant. Landlord may, at Landlord’s discretion, request that applicable taxing authority render the Premises separately from the balance of the Alcoa Property as a means of determining Taxes attributable to the Premises and payable by Tenant.

 

5.03       Nothing in this Lease otherwise contained shall require Tenant to pay any of the following taxes or governmental impositions which shall be imposed against Landlord by any governmental authority, whether federal, state, county, city, municipal, or otherwise, to wit: (i) any estate, inheritance, devolution, succession, transfer, legacy or gift tax, which may be imposed upon or with respect to any transfer of any interest of Landlord in the Premises; (ii) any capital stock tax or other tax imposed against Landlord for the privilege of franchise of doing business as a corporation or for the transfer of any stock in such corporation or as a partnership, general or limited, or any other entity; (iii) any income tax levied upon or against the income of Landlord, including any rental income derived by Landlord from the Premises; (iv) in the event that Landlord or any agent of Landlord shall occupy space in the Premises for the conduct of Landlord’s business, any occupational, license, or other tax imposed with respect to such occupancy or the conduct of Landlord’s business in such space; (v) any gross receipts tax levied against rent or other income of Landlord.

 

5.04.       Tenant shall be deemed to have complied with the covenants of this Article if the Taxes are paid before any fine, penalty, interest or cost may be added to them. Upon payment, Tenant shall produce and exhibit to Landlord satisfactory evidence of payment without Landlord’s request.

 

 

ARTICLE 6

 

Services or Utilities 

 

6.01.       Tenant shall pay and discharge punctually all charges for water and any and all other services or utilities furnished to the Premises, the improvements, or the occupants of them, including but not limited to: (i) construction and capital improvements of any additional infrastructure or utilities; (ii) Buildings repairs; (iii) installation of additional equipment; (iv) any permitting required by law with respect to the Use of the Premises by Tenant; (v) contracting with power supplier(s); or (vi) Use of the Premises by Tenant.

 

6.02.       (a)       Except during the Preliminary Period as provided for in Section 6.11 of this Lease, Tenant shall arrange for and pay for all electricity and natural gas consumed at the Premises and Tenant will open an account with the provider and pay bills for usage on the Premises directly.

 

(b)       In the event that the Expiration Date or other termination of this Lease shall be a day other than the last day of a year used for calculations hereunder, then in such event, in applying the provisions of this Article with respect to any year in which such event shall have occurred, appropriate adjustments shall be made to reflect the occurrence of such event on a basis consistent with the principles underlying the provisions of this Article taking into consideration the portion of such year which shall have elapsed prior to the date of such event.

 

(c)       Payments shall be made pursuant to this Article notwithstanding the fact that a utility statement is furnished to Tenant after the expiration of the Term of this Lease.

 

6.03.       Landlord shall not be liable in any way (other than the willful misconduct or gross negligence of Landlord, its employees or agents) to Tenant for any failure or defect in supply or character of electric current or natural gas furnished to the Premises.

 

 

6.04.       Except during the Preliminary Period as provided for in Section 6.11 of this Lease, Landlord will reserve for Tenant, and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, potable water and sanitary waste capacity (including the water itself) based upon the number of Tenant’s employees as shown in Table 6.04 below:

 

Table 6.04

 

Total Number of Employees	Potable Water and Sanitary Waste
	Capacity Reservation Rent
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
Each additional increment of [***]	[***] increase

 

Potable Water and Sanitary Waste Reservation Rent will increase annually by CPI as defined in Section 1.06(b). Potable water and sanitary wastes capacity supplied under this Section 6.04 shall be explicitly for domestic uses only and may not be used for any process purpose or process consumption. Tenant shall have access to potable water and sanitary waste capacity on the Land or in the Buildings on an “as is, where is” basis. Reservation Rent will be based upon the maximum number of Tenant’s employees at the beginning of each month.

 

6.05.       Except during the Preliminary Period, and as provided for in Section 6.11 of this Lease, Landlord will reserve for Tenant, and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, non-potable treated water, untreated groundwater, or untreated surface water for process purposes or process consumption (including the water itself) based upon reserved capacity as defined in Table 6.05 below:

 

 

Table 6.05

 

Reserved Capacity	Non-Potable Treated Water,
	Untreated Groundwater, and
	Untreated Surface Water
	Reservation Rent
Non-Potable Treated Water	$[***]
Untreated Groundwater	$[***]
Untreated Surface Water	$[***]

 

Non-Potable Treated Water, Untreated Groundwater, and Untreated Surface Water Reservation Rent will increase annually by CPI as defined in Section 1.06(b). Tenant shall have access to Non-Potable Treated Water, Untreated Groundwater, and Untreated Surface Water on the Land or in the Buildings on an “as is, where is” basis only. Tenant will be responsible for any additional treatment or delivery to Tenant’s facilities. Delivery of Non-Potable Treated Water, Untreated Groundwater, and Untreated Surface Water Reservation Rent will be based upon the Tenant’s declaration of use at the beginning of each calendar month. In the event that the Tenant desires additional reservation more than the monthly declared amount, Landlord will determine at it sole discretion if the utility is available. Any amount in excess of the declared utility amount will be billed at ten times the reserved rate. The Parties agree that the additional amount charged for the excess usage is not a penalty but liquidated damages for the unanticipated costs and adverse conditions imposed upon Landlord by the excess demand placed by the excess usage upon the facilities of Landlord, short-term and long-term, including physical, inchoate, administrative, operational, and transactional costs or other adverse impacts on Landlord. Tenant may not discharge or blowdown Non-Potable Treated Water, Untreated Groundwater or Untreated Surface Water from Tenant’s facilities at any time.

 

6.06       Except during the Preliminary Period as provided for in Section 6.11 of this Lease, Landlord will reserve for Tenant, and Tenant shall pay for as part of the Fixed Rent payment, as a condition and incident of tenancy, Tenant’s Share of the Total Electric Capacity utilizing the Landlord’s PUN Equipment electric delivery facilities which are interconnected to the local electric transmission and distribution service provider (but not including the electricity itself, which Tenant shall separately purchase as provided in Section 6.02(a)). Tenant shall have access to the Premises and Tenant’s Share of the Total Electric Capacity on the Land or in the Buildings on an “as is, where is” basis only. Tenant will be responsible for any additional electric delivery capacity necessary to deliver electricity to Tenant’s facilities in excess of the Tenant’s Share of Total Electric Capacity over the Landlord’s PUN Equipment. As set forth in Section 6.12 of this Lease, Tenant shall be responsible for the operation, maintenance, repair, and replacement of the PUN electric delivery facilities set forth in Exhibit A-3. Tenant acknowledges and agrees that: the Fixed Rent would be significantly higher but for Section 6.12; the electric power consumption associated with Tenant’s operations involves unusual circumstances, usage, or load characteristics; and it is prudent for the Parties to have Tenant accept such responsibility under Section 6.12 because of Tenant’s specialized knowledge of the power consumption associated with Tenant’s operations.

 

 

6.07       (a)       Landlord and Tenant, on or before November 1, 2018, shall agree on the capacity to be provided as contemplated by Sections 6.04, 6.05, and 6.06 (“Landlord Capacity”) but Landlord does not guarantee or warrant that Landlord Capacity will not fail or be interrupted or that the quality of same will not vary or fluctuate. Tenant is responsible for installing and maintaining such devices and equipment as may be necessary or reasonable to protect Tenant’s equipment or processes during abnormal events regarding Landlord Capacity.

 

(b)       Landlord shall make reasonable efforts to re-establish Landlord Capacity with minimum of delay when failures, interruptions, or quality variations or fluctuations occur. However, Landlord shall not be liable for direct or consequential damages resulting from failures, interruptions, or quality variations or fluctuations occasioned by causes reasonably beyond the control of Landlord, including, but not limited to, acts of God or public enemy, sabotage and/or vandalism, accidents, fire, explosion, labor troubles, strikes, order of any court or judge granted in any bona fide adverse legal proceedings or action, or any order of any commission, tribunal or governmental authority having jurisdiction or, without limitation by the preceding enumeration, any other act or thing due to causes beyond Landlord’s reasonable control, or to the negligence of Landlord, its employees, or contractors, whether sole or joint and concurrent with the negligence of Tenant or third parties, except to the extent the damages are occasioned by the gross negligence or willful misconduct of Landlord.

 

(c)       For claims resulting from failures, interruptions or quality variations or fluctuations occasioned in whole or in part by gross negligence or willful misconduct of Landlord or it agents, Landlord shall be liable only for that portion of the damages arising from personal injury, death of persons, or costs of necessary repairs to or replacement of equipment proximately caused by the grossly negligent acts of Landlord or it agents. Landlord shall not be liable in any event for consequential damage.

 

(d)       Landlord may, without notice (however, Landlord will attempt to provide as much notice as reasonably practical in the circumstances to Tenant) and without liability to Tenant, interrupt Landlord Capacity to Tenant when in Landlord’s sole judgement such interruption: (i) will prevent or alleviate an emergency threatening to disrupt the operation of Landlord’s facilities that are utilized in the provision of the Landlord Capacity; or (ii) will lessen or remove possible danger to life or property; or (iii) will aid in the restoration of Landlord Capacity; or (iv) it is required to make necessary repairs to or changes in Landlord’s facilities that are utilized in the provision of the Landlord Capacity. In the event of a nonemergency situation, Landlord will provide Tenant with at least 5 calendar days notice prior to interrupting Landlord Capacity to Tenant if such disturbance is within Landlord’s control.

 

 

(e)       Tenant shall install, operate, and maintain such protective equipment and devices, and implement such procedures and practices, as may be reasonable or necessary to protect Tenant’s property, equipment, processes, or activities during occurrences of abnormal Landlord Capacity. Tenant shall maintain such equipment and devices in good operating condition, and otherwise install, operate, and maintain Tenant’s property and equipment in an entirely safe and reasonably efficient manner and in full compliance with applicable law. Landlord neither assumes nor accepts any duty or responsibility for the inspection of the Tenant’s apparatus, machinery, equipment, or operations and shall not be responsible therefor, nor does Landlord accept any liability due to the initiation or continuation of Landlord Capacity to Tenant.

 

(f)       Tenant assumes full responsibility for the Landlord Capacity received and used by Tenant upon the Premises, and will protect, indemnify, and save Landlord harmless from all claims for injury, including death, or damage to persons or property occurring upon the Premises, even if due to Landlord’s negligence, whether sole or joint and concurrent with the negligence of Tenant or third parties, occasioned by such Landlord Capacity, except to the extent of (x) claims resulting from the gross negligence or willful misconduct of Landlord or (y) claims caused by another tenant of Landlord or any persons under the control of such tenant.

 

(g)       When an interruption in Landlord Capacity occurs, it shall be the responsibility of the Tenant to determine that the interruption is not caused by a fault or defect in Tenant’s property, equipment, processes, or activities before notifying Landlord of the interruption.

 

(h)       Landlord Capacity will be measured as necessary by meters or monitoring equipment selected, installed, tested, owned, operated, and maintained by Landlord. Tenant shall not take any actions that affect the accuracy of such equipment during the Term of this Lease. Landlord will give reasonable advance notice of all tests, inspections, maintenance, or alteration of any metering and monitoring equipment to Tenant so that representatives of Tenant may be present. Meter and monitoring records will be provided to Tenant upon its reasonable request. Tenant may install check meters with regard to the Landlord Capacity as long as such check meter installation and operation does not interfere with or affect the accuracy of Landlord’s metering or monitoring equipment. Tenant will give reasonable advance notice of all tests, inspections, maintenance, or alteration of any check metering equipment to Landlord so that representatives of Landlord may be present. Check meter records will be provided to Landlord upon its reasonable request.

 

 

6.08       Landlord or its successor(s) reserves the right to establish a Municipal Utility District (“MUD”), Municipal Management District (“MMD”), or equivalent which would include the facilities and capacity subject to this Lease, provided that such MUD, MMD, or its equivalent: (i) will not relieve Landlord from its obligation to provide the services under Sections 6.04, 6.05, and/or 6.06 unless the facilities and capacity therefor are owned and operated by such MUD, MMD, or its equivalent; (ii) is not expected to materially increase Tenant’s overall costs for the type of services under Sections 6.04, 6.05, and/or 6.06 except to the extent allowed or required by applicable law; or (iii) is not expected to materially affect the nature, quality, or reliability of the types of services under Sections 6.04, 6.05, and/or 6.06 except to the extent allowed or required by applicable law. Tenant agrees that, if such a MUD, MMD, or equivalent is created Tenant hereby agrees to take service from such MUD, MMD, or equivalent. Tenant hereby represents, warrants, covenants, and agrees it will exercise any election, vote, or other consent, and will take all actions necessary or appropriate, for the establishment of such a MUD, MMD, or equivalent. The Parties recognize and agree that such a MUD, MMD, or equivalent, is allowed to and may charge rates, fares, tolls, charges, rents, or other fees or compensation for the facilities and capacity and the Parties’ use of the facilities and capacity that are different in structure or design from the costs incurred by Tenant under this Agreement. Sections 6.04, 6.05, 6.06, and/or 6.07 of this Lease will terminate on the date of termination specified in notice by Landlord to Tenant after the establishment of such a MUD, MMD, or equivalent. Notwithstanding the foregoing, and without otherwise limiting the foregoing with respect to services under Sections 6.04 and 6.05, the Parties do not expect electric delivery capacity under Section 6.06 to be included as part of the MUD, MMD, or equivalent but the Parties recognize and agree that it may be appropriate or advantageous to do so, and therefore inclusion of said electric delivery capacity as part of the MUD, MMD, or equivalent may occur subject to the consent of Tenant, after review of all applicable documentation delivered by Landlord, such consent not to be unreasonably withheld.

 

6.09       In the event that regulatory requirements become applicable to the Landlord Capacity which, in the sole discretion of Landlord, require an amendment or amendments to this Lease in order to conform the terms and conditions of this Lease to such regulatory requirements (including but not limited to those necessary such that Landlord will not become regulated as an public utility), Landlord shall provide to Tenant an amendment or amendments limited to that which is reasonably necessary to conform the terms and conditions of this Lease to such regulatory requirements, and Tenant hereby represents, warrants, covenants, and agrees it will promptly execute and deliver to Landlord such amendment or amendments when so requested by Landlord. The Parties will cooperate and work together to seek to reasonably minimize the impact of the regulatory requirements with respect to the Parties’ operations if an amendment is required in accordance with this section. Nothing in this Section 6.09 shall be construed to limit or prevent the Parties from mutually agreeing to include in such amendment or amendments terms and conditions that are in addition to that which is necessary to conform the terms and conditions of this Lease to such regulatory requirements.

 

6.10       Tenant understands that Landlord is not a public utility, that Landlord does not provide utilities to the public, and that Landlord is legally allowed to provide certain utilities to its tenants but only in connection with and incidental to the lease of the Premises, as long as such services are not resold to or used by others. Both Parties agree that as a result of this Lease Landlord does not provide utilities to the public, and Landlord Capacity is only being made available pursuant to this Lease as an incident thereof. The Landlord Capacity may not be resold to or used by others, and Tenant hereby represents, warrants, covenants, and agrees it will not resell the Landlord Capacity or allow use of Landlord Capacity by others. Tenant further represents, warrants, covenants, and agrees that the reservation rents for the Landlord Capacity provided under Section 6.04 is included in the total rent payable based upon the capacity provided, and are not separate or additional service fees for that which is actually used by Tenant.

 

 

6.11       During the Preliminary Period, which shall run from the Commencement Date until December 31, 2018 unless Tenant provides Landlord with ninety (90) days written notice that Tenant elects to shorten the Preliminary Period to a date earlier than December 31, 2018, the following provisions will apply with regard to electricity, potable water, sanitary waste, and non-potable treated water:

 

(a)       Landlord will supply to Tenant, and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, electricity for use in Tenant’s operations on the Premises in an amount not to exceed 1.0 mega-Watts at any time. Landlord will charge Tenant and Tenant will pay to Landlord an amount for the electricity equal to 110% of the costs to Landlord for its purchase of the electricity used by Tenant (the “Preliminary Period Electricity Charges”). The Preliminary Period Electricity Charges shall encompass all charges, fees, or rates, however denominated, to Landlord for electricity usage and delivery, whether charged on a per kilo-Watt (or mega-Watt), kilo-Var (or mega-Var), kilo-Watt-hour (or mega-Watt-hour), meter, time period, or other basis, attributable on a cost-causation basis to the electricity used by Tenant, including, without limitation, the costs to Landlord from the entity selling and supplying electric energy to Landlord and from the transmission and distribution service provider or providers delivering electric energy to Landlord, which shall further include the allocable cost associated with transmission and/or distribution demand ratchets that are caused by Tenant’s load, including those ratchets which continue beyond the Preliminary Period for the effective billing periods of the established ratchets. Landlord will invoice Tenant for such Preliminary Period Electricity Charges within a reasonable time after Landlord incurs such costs, and Tenant shall pay Landlord within ten (10) days of the date of said invoice. Tenant hereby represents, warrants, covenants, and agrees it will not resell the electricity or allow use of the electricity by others. The Preliminary Period Electricity Charge shall be considered additional rent, and the billing, payment, and other terms and conditions set forth in Section 1.06(c) and Sections 1.07 through 1.13 shall apply to the Preliminary Period Electricity Charge.

 

(b)       Landlord will reserve for Tenant, and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, potable water and sanitary waste capacity (including the water itself), and non-potable treated water, on the same terms, conditions, and limitations as in Section 6.04 and Section 6.05, except that the quantity of potable water and non-potable treated water shall not to exceed [***] gallons per day, and in lieu of the Potable Water and Sanitary Waste Reservation Rent and the Non-Potable Treated Water, Untreated Groundwater, and Untreated Surface Water Reservation Rent, for a fixed fee of $[***] per month (the “Preliminary Period Water Rent”). Tenant hereby represents, warrants, covenants, and agrees it will not resell or allow use by others of the potable water and sanitary waste capacity (including the water itself) and non-potable treated water provided to Tenant during the Preliminary Period. The Preliminary Period Water Rent shall be considered additional rent, and the billing, payment, and other terms and conditions set forth in Section 1.06(c) and Sections 1.07 through 1.13 shall apply to the Preliminary Period Water Rent.

 

 

6.12       Subsequent to the Preliminary Period, Tenant will be responsible for operating, maintaining, repairing, and replacing any of the electric delivery facilities designated for Tenant’s exclusive use as set forth in Exhibit A-3, including the cost thereof, on the following terms and conditions:

 

(a)       Tenant shall perform such operations, maintenance, repairs, and replacements, including preventative maintenance, in a safe, prudent, professional, and workmanlike manner, and will maintain such electric delivery facilities in a safe, adequate, efficient, and reasonable condition, in accordance with any applicable safety codes and with “Good Electric Utility Practice.” Good Electric Utility Practice shall mean, for purposes of this Section 6.12(a), any of the practices, methods, and acts engaged in or approved by a significant portion of the electric utility industry in the United States of America during the relevant time period, or any of the practices, methods, and acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety, and expedition. Good Electric Utility Practice is not intended to be limited to the optimum practice, method, or act, to the exclusion of all others, but rather is intended to include acceptable practices, methods, and acts generally accepted in the region. Tenant shall only utilize employees or outside contractors with demonstrable experience operating, maintaining, repairing, and replacing electric delivery facilities. In connection with such employees or outside contractors, Tenant agrees to comply with all federal, state and local laws, ordinances, resolutions, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability or age.

 

(b)       Tenant shall bear in full the cost of such operations, maintenance, repairs, and replacements, including but not limited to preventative maintenance, rental of equipment, insurance, taxes, personnel or contractors required to supervise, implement, and accomplish all of the foregoing. Such operations, maintenance, repairs, and replacements shall not give rise to any ownership rights by Tenant in the electric delivery facilities, and Tenant hereby expressly assigns to Landlord any and all right, title and interest of Tenant now or hereafter arising in or to any material, supplies, and equipment utilized in operating, maintaining, repairing, and replacing any of such electric delivery facilities. Tenant will indemnify, hold harmless and defend Landlord, its affiliates, directors, officers, partners, agents, and employees from and against any and all loss, liability, damage, cost or expense, including damage and liability for bodily injury to or death of persons or damage to property of persons caused by Tenant, an affiliate of Tenant, or any representative of Tenant during its operating, maintaining, repairing, and replacing any of such electric delivery facilities. Tenant shall maintain and preserve during the Term of this Lease all material documentation regarding its operating, maintaining, repairing, and replacing any of such electric delivery facilities, and make that documentation available for Landlord’s inspection upon Landlord’s request.

 

 

6.13       Landlord’s Step-In-Rights. Tenant acknowledges and recognizes that its failure to comply with the provisions of Section 6.12 can have significant adverse effects on Landlord and other tenants of Landlord. In addition to any remedies provided in this Lease, including but not limited to Article 25, or other remedies provided in law or equity or by statute, the following provisions shall apply with regard to any failure of Tenant to comply with the provisions of Section 6.12:

 

(a)       Upon the occurrence of a failure of Tenant to comply with the provisions in Section 6.12 (such failure being a “Section 6.12 Breach”), then immediately upon Tenant becoming or being made aware of the occurrence of a Section 6.12 Breach ( if Landlord is aware of such breach, Landlord will attempt to provide as much notice as reasonably practical in the circumstances to Tenant), Tenant shall attempt in good faith to cure such failure immediately if necessary to allow continued delivery of electricity by the electric delivery facilities set forth in Exhibit A-3 and as promptly as possible in all other circumstances.

 

(b)       Notwithstanding anything to the contrary contained in this Lease, (i) if an emergency situation occurs Landlord shall have the right, but not the obligation, to immediately take any action or actions that Landlord, in its sole and absolute discretion, believes is necessary as a result of Tenant’s failure relating to operating, maintaining, repairing, and replacing any of the electric delivery facilities set forth in Exhibit A-3, or (ii) in a nonemergency situation, if Tenant ceases exercising good faith efforts to cure such failure or, in any event fails to cure such failure promptly (not to exceed thirty (30) days), Landlord, in its sole and absolute discretion, may take any action that Landlord believes is necessary as a result of Tenant’s failure (such rights, the “Step-In Rights”).

 

(c)       Upon exercise of the Step-In Rights, Tenant will be responsible for the costs of the action or actions taken by Landlord. Tenant shall reimburse Landlord for such costs within fourteen (14) days after receiving an invoice from Landlord the amount of such costs along with reasonably detailed supporting documentation with respect to such costs. The Parties agree that the costs for which Tenant shall reimburse Landlord include all materials, supplies, equipment (including but not limited to switches, circuit control devices, wires, transformers, meters and metering equipment, protective equipment, distribution lines, and distribution poles), contractor’s fees and charges, and other outside services incurred by Landlord in taking such action or actions, with all of the foregoing multiplied by [***] to compensate Landlord, as liquidated damages and not as a penalty, for Landlord’s payroll and payroll related expenses, overhead, engineering, administrative, and other internal costs incurred by Landlord in association with the action or actions taken in the exercise of the Step-In Rights.

 

 

(d)       Upon exercise of the Step-In Rights, Tenant will remain be responsible for, and will not be relieved of its obligation for, operating, maintaining, repairing, and replacing any of the electric delivery facilities set forth in Exhibit A-3, including the cost thereof.

 

(e)       No Party may enter any agreement that alters, affects or limits the Step-In Rights.

 

(f)       In the event that Landlord exercises its Step-In Rights as a result of the occurrence of a default, any such Step-In Rights will expire only upon the sole discretion of Landlord.

 

(g)       During non-emergency situations, the parties will work together to seek to reasonably minimize the dispute and disruption of the Landlord’s and Tenant’s operations during such step-in rights as described herein.

 

ARTICLE 7

 

Net Lease

 

7.01.       Tenant shall pay all costs, charges, taxes assessments, and other expenses of every character, foreseen or unforeseen, ordinary or extraordinary, for the payment of which Landlord or Tenant is or shall become liable by reason of its respective estate, right, title or interest in the Premises or any part thereof, or which are connected with or arise out of the possession, use, occupancy, maintenance, addition to, repair construction or any party thereof, including without limitation those specifically referred to in this Lease. All sums payable by Tenant hereunder shall be paid without counterclaim, setoff, deduction, or defense and without abatement, suspension, deferment, diminution or reduction, except as expressly provided herein.

 

ARTICLE 8

 

Repairs and Maintenance

 

8.01.       During the Term of the Lease, Tenant, at its expense, shall maintain the Premises in good condition and promptly make such repairs and replacements, ordinary or extraordinary, interior or exterior, structural, mechanical, or otherwise, in and about the Premises and the Buildings. Except for the utility infrastructure included as part of the Landlord Capacity, Tenant shall be responsible (and Landlord shall not be responsible) for the maintenance, repair and replacement of (i) all plumbing, pipes and related equipment to the extent that such equipment is serving the Premises; (ii) all electrical facilities, fixtures, wiring, and other related equipment serving the Premises; and (iii) the Systems (as defined in Section 8.02). Tenant shall keep and maintain all of the structural portions of the Buildings, its common areas, and its fixtures, appurtenances, systems and facilities serving the Premises in clean, safe and working order, condition and repair, structural and otherwise, interior and exterior, as and when needed in or about the Premises. Tenant shall also be responsible for the installation, maintenance, replacement and repair of any fire protection systems installed by or required by Tenant because of Tenant’s specific Use or unique equipment. Except for the utility infrastructure included as Landlord Capacity, Tenant shall also maintain all utility infrastructure included within the Premises in good condition. In accordance with Article 3.03, Landlord is providing the Premises on an AS IS WHERE IS BASIS. Landlord will not be responsible to provide any capital improvements necessary due to any Tenant specific business and Tenant’s occupancy and use of the Premises not outlined in Article 2, in which case Tenant shall pay for the same.

 

 

8.02.       The Premises contains heating, ventilating and air-conditioning systems (the “Systems”) which shall be maintained by Tenant. The Systems operation will be controlled by Tenant and Landlord shall have no responsibility therefor. In furtherance of Article 6.02 hereof, all electric power and natural gas for the operation of the Systems shall be provided by, and at the expense of, Tenant.

 

8.03.       Use of the Premises, or any part thereof, in a manner exceeding the design conditions thereof (including occupancy and connected electrical load) or rearrangement of partitioning which interferes with normal operation of services in the Premises, or the use of computer or data processing machines, may require changes in the infrastructure servicing the Premises. Such changes so occasioned shall be made by

Tenant, at its expense, as Tenant’s Work pursuant to Article 12.

 

8.04.       Landlord shall have no liability to Tenant by reason of any inconvenience, annoyance, interruption or injury to business arising from Landlord’s making any repairs or changes which Landlord is required or permitted by this Lease, or required by law, to make in or to any portion of the Buildings or the Premises, or in or to the fixtures, equipment or appurtenances of the Buildings or the Premises, except to the extent of gross negligence or willful misconduct by the Landlord. The Tenant shall be responsible for any damage to or loss of Landlord’s property located on the Premises, caused by or rising out of the acts, omissions, or negligence of the Tenant, or the misuse or unauthorized use of Landlord’s property by the Tenant. The cost of making good such loss and/or repairing of such damage shall be paid for by the Tenant.

 

8.05.       Tenant hereby acknowledges that Landlord shall have no obligation whatsoever to provide guard service or other security measures for the benefit of the Premises. Tenant assumes all responsibility for the protection of Tenant, its agents, and invitees and the property of Tenant and of Tenant’s agents and invitees from acts of third parties and shall provide for guard service or other security measures for the Premises. Landlord currently provides security at the front gate and Tenant will reimburse Landlord for these services in accordance with Article 39.

 

 

ARTICLE 9

 

Compliance with Laws

 

9.01.       Tenant, at Tenant’s expense, shall comply with all laws and ordinances, and all rules, orders and regulations of all governmental authorities and of all insurance bodies, at any time duly issued or in force, applicable to the Premises or any part thereof or to Tenant’s use thereof.

 

9.02.       Tenant shall comply with all governmental laws, ordinances and regulations applicable to the use of the Premises and its occupancy and shall promptly comply with all governmental orders and directions for the correction, prevention and abatement of any violations in or upon, or in connection with, the Premises, all at Tenant’s sole expense. Tenant shall pay and be responsible for any capital costs in order to bring the Premises into compliance with any applicable statutes, ordinances, rules, regulations, orders, covenants or restrictions of record. Landlord shall not be required to pay for any capital improvements in order to comply with the law or other legal requirements.

 

9.03.       Tenant, at its sole cost and expense, shall promptly comply with all present and future laws, ordinances, requirements, orders, directives, rules and regulations of all federal, state, county, city, and town governments and of all other governmental authorities, departments, boards and officers, and all orders, rules and regulations of the National Board of Fire Underwriters, the Texas State Fire Marshall, or any other body or bodies which may exercise similar functions, foreseen and unforeseen, ordinary and extraordinary; applicable to the Premises, Buildings or the improvements or any part of them or to their use, whether in force at the commencement of the Term of this Lease or passed, enacted or directed in the future, whether or not such requirements are actually imposed upon Landlord, and whether or not compliance shall require structural changes (collectively in this article “the requirements”). Tenant shall pay all costs, expenses; liabilities, losses, damages, fines, penalties, claims and demands, including reasonable counsel fees (collectively “the costs”), that may in any manner arise from or be imposed because of the failure of Tenant to comply with this Article and shall indemnify, hold harmless and defend Landlord of and from the costs. Tenant shall comply with the requirements of all policies of commercial general liability, casualty and all other policies of insurance in force with respect to the Premises and the Improvements. Tenant shall take immediate steps to remedy or prevent any violation or attempted violation of the provisions of this Section by any subtenant of the Premises or the Improvements.

 

9.04.       If any governmental license, approval or permit shall be required for the proper and lawful conduct of Tenant’s business or other activity carried on in the Premises, including, without limitation, Tenant’s Work, Tenant, at Tenant’s expense, shall duly procure and thereafter maintain such license, approval or permit and submit the same for inspection by Landlord.

 

 

9.05.       Each party shall take any actions that may be required to comply with the terms of the USA Patriot Act of 2001, as amended, any regulations promulgated under the foregoing law, Executive Order No. 13224 on Terrorist Financing, any sanctions program administrated by the U.S. Department of Treasury’s Office of Foreign Asset Control or Financial Crimes Enforcement Network, or any other laws, regulations, executive orders or government programs designed to combat terrorism or money laundering, if applicable, on this Lease. Each party represents and warrants to the other party that it is not an entity named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Department of Treasury, as last updated prior to the date of this Lease.

 

9.06       Tenant agrees to comply with the U.S. Foreign Corrupt Practices Act and all other applicable anti-corruption laws and regulations and any applicable import/export laws and regulations.

 

9.07       Reserved.

 

ARTICLE 10

 

Insurance

 

10.01.     (a)       Tenant shall, at Tenant’s sole cost and expense, obtain and keep in force during the Term of this Lease such policy or policies of all risk, special form, and where applicable builder’s risk, fire, casualty and extended coverage insurance in the name of Landlord insuring against loss or damage to the Premises, contents, equipment and the Buildings and policies of commercial general liability.

 

(b)       Without the prior written consent of Landlord (such consent not to be unreasonably withheld, conditioned or delayed), Tenant shall not violate, or permit the violation of, any condition imposed by the standard fire and extended coverage insurance policy then issued for the Buildings, and shall not do, or permit anything to be done, or keep or permit anything to be kept in the Premises, which would subject Landlord to any liability or responsibility for personal injury or death or property damage, or which would increase the fire or other casualty insurance rate on the Buildings or the property therein over the rate which would otherwise then be in effect.

 

 

10.02.       Tenant covenants and agrees to provide on or before the occupying any portion of the Premises and to keep in force during the Term hereof for the benefit of Landlord and Tenant, and any managing agent of the Buildings, as additional insureds:

 

(i)       a commercial general liability insurance policy (including contractual indemnity coverage) protecting Landlord, and Tenant against any liability whatsoever occasioned by any occurrence on or about the Premises. Such policy is to be written by good and solvent insurance companies satisfactory to Landlord, and shall be in such limits as Landlord may require. As of the date of this Lease, Landlord requires combined single limit coverage of not less than $[***]. Such insurance may be carried under a blanket policy covering the Premises and other locations of Tenant, if any;

 

(ii)       Worker’s Compensation Insurance or qualification as a self-insurer to satisfy the laws of the states which have jurisdiction over Tenant’s employees. To the extent permitted by law, Seller’s Worker’s Compensation Insurer or Tenant, if self-insured, agrees to waive rights of subrogation against Landlord;

 

(iii)       Employers’ Liability Insurance for Bodily Injury per accident with limits of not less than $[***] and Bodily Injury by Disease with limits of not less than $[***] per policy;

 

(iv)       As set forth in Section 10.02(i), Commercial General Liability Insurance for bodily injury, personal injury and property damage, including coverage for products/completed operations and contractual liability, with combined limits of not less than $[***] per occurrence;

 

(v)       Automobile Liability Insurance covering use of all owned, non-owned and hired vehicles with minimum combined single limits of liability for bodily injury and property damage of not less than $[***] per occurrence;

 

(vi)       All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant’s alterations, additions, improvements, fixtures, inventory, equipment and other business personal property situated in or about the Premises as well as the Landlord’s Buildings, structure and real property known as the Premises to the full replacement value. The Landlord and the Tenant shall each be named as the loss payees as their interests apply. The Tenant is responsible for payment of the premium; and

 

(vii)       Environmental Liability insurance coverage with limits of not less than $[***] per claim and a $[***] annual aggregate for: (1) bodily injury, sickness, disease, mental anguish, or shock sustained by any person including death; (2) property damage including physical injury to or destruction of tangible property including the resulting loss thereof, clean-up costs, and the loss of tangible property that has not been physically injured or destroyed; and (3) defense including costs, expenses incurred in the investigation, adjustment or defense of claims for such compensatory damage; for losses caused by pollution conditions that arise from the operations of the Tenant. Tenant shall maintain the insurance for an additional period of five (5) years following the termination of this Lease and any other form or forms of insurance as Tenant or Landlord or any mortgagees of Landlord may reasonably require from time to time, in form, in amounts and for insurance risks against which a prudent Tenant would protect itself. All insurance coverage required under the policies set forth above shall apply to the Premises as well as any entryways, sidewalks, driveways and parking areas used by the Tenant in accordance with the terms of this Lease.

 

 

10.03.       If, by reason of any failure of Tenant to comply with the provisions of Article 10, the rate of fire insurance with extended coverage on the Buildings or equipment or other property of Landlord shall be higher than it otherwise would be, Tenant shall reimburse Landlord, within thirty (30) days, for that part of the premiums for fire insurance and extended coverage paid by Landlord because of such failure on the part of Tenant.

 

10.04.       (a)       Tenant agrees that during the Lease, Landlord will be named as an additional insured via endorsement on Tenant’s Commercial General Liability, Pollution/Environmental Liability and Automobile Liability policies and that all Tenant’s insurance identified in Article 10 will specifically indicate that coverage with respect to Landlord will be primary without right of contribution of any other insurance carried by or on behalf of Landlord. The intent is to exhaust all of the Tenant’s available and applicable coverage before the Landlord’s coverage is called upon to protect the Landlord. Except for the Pollution/Environmental Liability Insurance described in Section 10.02(vii) all of the above mentioned Tenant insurance will be occurrence-based coverages. The Pollution/Environmental Liability Insurance shall be claims-made based coverage. Tenant may satisfy the limits of insurance required herein with any combination of primary and umbrella/excess insurance policies.

 

  (b)       Within seven (7) days after the Commencement Date of this Lease or when Tenant or Tenant’s representatives, contractors, or employees requires access to the Premises to install furniture, equipment, systems, or other similar activities in order to prepare for the occupancy of the Premises, upon renewal of insurance policies or upon Landlord’s request during the Lease, Tenant will provide Landlord with written certification, reasonably acceptable to Landlord, certifying that (a) the required insurance coverages are in effect and will not be cancelled or materially changed until thirty (30) days after prior written notice has been delivered to Landlord, (b) Landlord is designated as an additional insured on Tenant’s Commercial General Liability policy and, if applicable, Tenant’s Automobile Liability policy and (c) all of Tenant’s insurance identified herein will be primary and not contributory or excess of any other insurance carried by or on behalf of Landlord.

 

 

(c)       The requirements in this Article 10 are separate and distinct from any other obligations of Tenant under this Lease.

 

(d)       Landlord and Tenant hereby each release the other, its officers, directors, employees and agents, from any and all liability or responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage to property covered by insurance which either party is required to maintain under this Lease, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible. However, this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor’s insurance policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Landlord and Tenant each agree that any fire and extended coverage insurance policies will include such a clause or endorsement as long as the same shall be obtainable without extra cost, or, if extra cost shall be charged therefor, so long as the other party pays such extra cost. If extra cost shall be chargeable therefor, each party shall advise the other party of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so.

 

(e)       Reserved

 

(f)       All insurance coverages are to be placed with insurers with an AM Best Rating of A- or better.

 

10.05.       Prior to the time such insurance is first required to be carried by Tenant and thereafter, at least twenty (20) days prior to the effective date of any such policy, Tenant agrees to deliver to Landlord either a duplicate original of the aforesaid policy or a certificate satisfactory to Landlord evidencing such insurance. The certificate shall contain an endorsement that such insurance may not be canceled except upon not less than twenty (20) days’ prior written notice to Landlord.

 

 

ARTICLE 11

 

Subordination, Notice to Ground Landlords and Mortgagees

 

11.01.       This Lease, and all rights of Tenant hereunder, are and shall be subject and subordinate in all respects to all ground leases, overriding leases and underlying leases of the Land and/or the Buildings now or hereafter existing and to all mortgages which may now or hereafter affect the Land and/or the Buildings and/or any of such leases, whether or not such mortgages shall also cover other lands and/or buildings, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such leases and such mortgages and spreaders and consolidations of such mortgages, however, that the foregoing subordination to the lien of any leases and mortgages is conditioned upon Landlord providing Tenant with a subordination, non-disturbance and attornment agreement in favor of Tenant that provides, without limitation, that this Lease and the rights of Tenant hereunder shall survive any foreclosure proceeding brought under such lease or mortgage. This Section shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute and deliver within fifteen (15) days of Tenant’s receipt of written request therefor any instrument that Landlord, the Landlord of any such lease or the holder of any such mortgage or any of their respective successors in interest may reasonably request to evidence such subordination, provided such document does not further reduce Tenant’s rights or increase Tenant’s obligations hereunder.

 

11.02.       In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right (i) until it has given written notice of such act or omission to the holder of each mortgage and the Landlord of each lease whose name and address shall previously have been furnished to Tenant in writing, and (ii) (unless such act or omission shall be one which is not capable of being remedied by Landlord or such holder or Landlord within a reasonable period of time), until a reasonable period for remedying such act or omission shall have elapsed following the giving of such notice (which reasonable period shall in no event be less than the period to which Landlord would be entitled under this Lease or otherwise, after similar notice, to effect such remedy and shall be extended for such period of time as Landlord is diligently prosecuting a cure).

 

11.03.       If the Landlord of a lease or the holder of a mortgage shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or delivery of a new lease or deed, then at the request of such party so succeeding to Landlord’s rights (herein sometimes called “successor landlord”) and upon such successor landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize such successor landlord as Tenant’s landlord under this Lease, and shall execute and deliver within fifteen (15) days of Tenant’s receipt of written request therefor any instrument that such successor landlord may reasonably request to evidence such attornment. Upon such attornment this Lease shall continue in full force and effect as, or as if it were, a direct lease between the successor landlord and Tenant upon all of the terms, covenants, conditions, agreements and provisions, as are set forth in this Lease except that the successor landlord shall not: (a) be liable for any previous act or omission of Landlord under this Lease; (b) be subject to any offset, not expressly provided for in this Lease, which shall have theretofore accrued to Tenant against Landlord; or (c) be bound by any previous modification of this Lease, not expressly provided for in this Lease, or by any previous prepayment of more than one month’s Fixed Rent, unless such modification or prepayment shall have been expressly approved in writing by the Landlord of the superior lease or the holder of the superior mortgage through or by reason of which the successor landlord shall have succeeded to the rights of Landlord under this Lease.

 

 

11.04.       If, in connection with obtaining financing for the Premises, an institutional lender shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not increase the obligations (monetary or otherwise) of Tenant hereunder. Tenant agrees, however, that the obligation to give notice to a ground Landlord or mortgage holder shall not be deemed an increase in Tenant’s obligations as contemplated in the immediately preceding sentence.

 

ARTICLE 12

 

Tenant’s Work

 

12.01.       Tenant may from time to time, at its sole expense, make such alterations, additions, installations, repairs, substitutions and improvements (hereinafter collectively called “Tenant’s Work”) in and to the Premises in accordance with this Article. Certain work completed by Tenant is considered “Immaterial Changes”, which is excluded from Tenant’s Work and may be completed by Tenant at its sole cost and expense without Landlord’s consent on the following conditions: (a) neither the outside appearance of the Buildings nor any of its structural parts shall be affected; (b) no material change or impact to the mechanical, electrical, sanitary and other systems of the Buildings, and the usage of such systems by Tenant shall not be materially increased; (c) ingress or egress to the Premises shall not be affected in any material respect; (d) normal maintenance and repairs in the ordinary course of operation; and (e) in performing the work involved in making such changes, Tenant shall be bound by and observe all of the conditions and covenants contained in this Lease. Tenant’s Work, other than Immaterial Changes, shall be done only upon prior written consent of Landlord, and at such times and in such manner as Landlord may from time to time reasonably designate. Prior to the commencement of any Tenant’s Work, Tenant shall submit to Landlord, for Landlord’s written approval, plans and specifications (to be prepared by and at the expense of Tenant) of such proposed Tenant’s Work in detail satisfactory to Landlord (such plans and specifications as approved by Landlord, the “Plans and Specifications”) at least 30 days prior to such work. Any mechanic’s lien filed against the Premises for work done or claimed to have been done for, or materials furnished or claimed to have been furnished to, Tenant shall be discharged by Tenant within thirty (30) days thereafter, by filing the bond required by law or otherwise. Tenant’s Work shall at all times comply with (1) laws, rules, orders and regulations of governmental authorities having jurisdiction thereof, (2) plans and specifications prepared by and at the expense of Tenant theretofore submitted to Landlord for Landlord’s prior written approval. No Tenant’s Work shall be begun until Landlord has approved such Plans and Specifications, and no amendments or additions to such Plans and Specifications shall be made without the prior written consent of Landlord, except as set forth in items (a) through (e) above regarding Immaterial Changes.

 

 

 

12.02.       Prior to Tenant’s undertaking Tenant’s Work and together with Tenant’s request for permission to perform such Tenant’s Work (and as a condition precedent to the effectiveness of any such request) there shall be delivered to Landlord: (i) a performance bond naming Landlord as a co-obligee, and (ii) a labor and material payment bond, both of which shall be in form and substance satisfactory to Landlord in all respects. Each such bond shall be in an amount equal to the cost of all of the work desired to be performed for which approval is being sought and shall guaranty the full completion of and total payment for all of such work, free and clear of all liens, encumbrances, chattel mortgages and conditional bills of sale. Tenant shall also cause all contractors, subcontractors, materialmen and/or suppliers engaged by or on behalf of Tenant in connection therewith to be notified in writing that a consent by Landlord to the making of any such Tenant’s Work shall not be or be deemed to be a consent by Landlord to the filing of any mechanic’s lien against the interest of Landlord in the Premises.

 

12.03.       Nothing contained in this Lease shall be construed to give Tenant any right, power or authority to contract for or permit the rendering of any work or the furnishing of any material which might give rise to the filing of any mechanic’s or other lien against the Premises, or the interest of Landlord therein.

 

ARTICLE 13

 

Tenant’s Property

 

13.01.       All fixtures, improvements, installations and appurtenances attached to or built into the Premises at the commencement or during the Term of this Lease, whether by Landlord at its own expense or at the expense of Tenant, shall be and remain a part of the Premises, shall be deemed the property of Landlord, and shall not be removed by Tenant, except as hereinafter in this Article expressly provided. Tenant acknowledges that as of the Commencement Date certain areas of the Premises will contain scrap material which is owned, and will remain owned, by Landlord, and Tenant will not move or otherwise disturb such material. In addition, Landlord reserves the right to remove any assets within the Premises as of the Commencement Date, which are not included as part of this Lease.

 

13.02.       All business and trade fixtures, machinery and equipment, communications equipment and office equipment, whether or not attached to or built into the Premises, which are installed in the Premises by or for the account of Tenant, without expense to Landlord, and can be removed without permanent structural damage to the Buildings, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (all of which are sometimes called “Tenant’s Property”), shall be and shall remain the property of Tenant and may be removed by it at any time during the Term of this Lease; provided, however, that if any of Tenant’s Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Premises or to the Buildings resulting from such removal. Any improvement for which Landlord shall have granted any allowance or credit to Tenant shall not be deemed to have been installed by or for the account of Tenant, without expense to Landlord, and shall not be considered

Tenant’s Property.

 

 

13.03.       At or before the Expiration Date, or the date of any earlier termination of this Lease, or as promptly as practicable after such an earlier termination date, Tenant at its expense, shall remove from the Premises all of Tenant’s Property except such items thereof as Tenant shall have expressly agreed in writing with Landlord were to remain and to become the property of Landlord, and shall repair any damage to the Premises or the Buildings resulting from such removal.

 

13.04.       Any other items of Tenant’s Property (except money, securities and other like valuables) which shall remain in the Premises after the Expiration Date or after a period of fifteen (15) days following an earlier termination date, may thereafter, at the option of the Landlord, and upon not less than three (3) days’ notice to Tenant allowing Tenant to retrieve such items, be deemed to have been abandoned, and in such case either may be retained by Landlord as its property or may be disposed of, without accountability in such manner as Landlord may see fit at Tenant’s expense.

 

ARTICLE 14

 

Right of Inspection

 

14.01.       During the six (6) months prior to the expiration of the Term of this Lease or any Extension Term, Landlord may exhibit the premises to prospective tenants or purchasers and place upon the premises the usual notices "For Rent" or "For Sale", which notices Tenant shall permit to remain without molestation. If Tenant shall not be personally present to open and permit an entry into said premises at any time when for any reason an entry therein shall be reasonably necessary or permissible, Landlord or Landlord's agents may enter the same by a master key or may forcibly enter the same, without rendering Landlord or such agents liable therefore and without, in any manner, affecting the obligations and covenants of this lease. Nothing herein contained, however, shall be deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the Buildings or any part thereof, except as otherwise herein specifically provided.

 

14.02.       If an excavation shall be made or authorized to be made upon land adjacent to the Premises, Tenant shall afford to the person causing or authorized to cause such excavation license to enter upon the Premises for the purpose of doing such work as Landlord shall deem necessary to preserve the wall or the Buildings of which the Premises form a part from injury or damage and to support the same by proper foundations, without any claim for damages or indemnification against Landlord or diminution or abatement of rent.

 

 

14.03.       Without incurring any liability to Tenant, Landlord may permit access to the Premises and open the same, whether or not Tenant shall be present, upon demand of any receiver, trustee, assignee for the benefit of creditors, sheriff, marshal or court officer entitled, or reasonably purporting to be entitled, for any lawful purpose or upon demand of any representative of the fire, police, Buildings, sanitation or other department of the city, state or federal governments.

 

14.04.       Upon reasonable notice to Tenant (which shall generally be at least twenty-four hours’ notice unless emergency circumstances otherwise warrant a shorter time period), Landlord or Landlord’s agent shall have the right to enter and/or pass through the Premises at reasonable times during reasonable hours (i) to examine the Premises and to show them, holders of mortgages, or prospective purchasers, mortgagees, or insurers, , (ii) for the purpose of making such repairs or changes in or to the Premises or in or to the Buildings or its facilities as may be provided for by this Lease or as it may be required to make by law or in order to repair and maintain the Buildings or its fixtures or facilities, and (iii) for the purpose of conducting such work as may be reasonably required in connection with work being performed to the Buildings by Landlord. Landlord shall be allowed to take all materials into and upon the Premises that may be required for such repairs, changes, and maintenance, without liability to Tenant, except to the extent that Landlord acts unreasonably in connection therewith.

 

14.05.       During the period of six (6) months prior to the Expiration Date Landlord may exhibit the Premises to prospective tenants on reasonable notice to Tenant. If Tenant shall timely exercise a right to extension of the Term, then this right to exhibit shall cease until nine (9) months prior to the new Expiration Date at the end of the Extension Term.

 

ARTICLE 15

 

Indemnity

 

15.01.       Tenant shall indemnify, release, defend and hold harmless Landlord , its agents, representatives, officers, shareholders, affiliates, directors and employees, and its successors and assigns (individually “Landlord Indemnitee” and collectively, “Landlord Indemnitees”), from and against any and all losses, liabilities, costs, claims, injuries, damages, penalties, forfeitures, causes of action, suits and the costs and expenses incident thereto including costs of defense, settlement, and reasonable attorneys' fees (“Losses”) to the extent arising from or in connection with Tenant’s Use of the Premises, or from the conduct of Tenant’s business or from any activity, work or things done, permitted or suffered by Tenant in or about the Premises or elsewhere and shall further indemnify and hold harmless Landlord Indemnities from and against any and all losses to the extent arising from any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease, or arising from any act or omission of Tenant, or any of Tenant’s agents, contractors, or employees, and from and against Losses incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against any Landlord Indemnitee by reason of any such claim, Tenant upon notice from Landlord Indemnitee, shall defend the same at Tenant’s expense by counsel reasonably satisfactory to Landlord Indemnitee and Landlord Indemnitee shall cooperate with Tenant in such defense. Tenant, as a material part of the consideration to Landlord Indemnitee, hereby assumes all risk of damage to property of Tenant or injury to persons, in, upon or about the Premises arising from any cause. The obligations of Tenant under this Section shall survive the termination of this Lease as to any right of indemnity which shall have accrued prior to such termination.

 

 

15.02       Landlord shall indemnify and save harmless Tenant and its agents, representatives, officers, shareholders, affiliates, directors and employees and its successors and assigns, against and from any and all Losses to the extent arising from a) Hazardous Substances existing at the Premises prior to the Commencement Date or brought on the Premises by Landlord after the Commencement Date; however, this indemnification expressly excludes Losses to the extent arising from the exacerbation by Tenant as contemplated under Article 16.03, and asbestosis material as contemplated by Article 16.01(b), b) noncompliance with Applicable Environmental Law by Landlord, unless otherwise caused by or contributed to by Tenant (either during the Term or prior to it), and c) Landlord’s gross negligence or willful misconduct. In case any action or proceeding be brought against Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall resist and defend such action or proceeding with counsel of Landlord’s choice, reasonably acceptable to Tenant.

 

ARTICLE 16

 

Non-Liability; Environmental and Indemnification

 

16.01.       (a)       Neither Landlord nor any agent or employee of Landlord shall be liable to Tenant for any injury or damage to Tenant or to any other person or for any damage to, or loss (by theft or otherwise) of, any property of Tenant or of any other person, irrespective of the cause of such injury, damage or loss, unless caused by or due to the gross negligence or willful misconduct of Landlord, its agents or employees.

 

(b)       Given the age of the facility, Tenant hereby acknowledges that the Buildings and Premises may contain asbestosis material. Prior to start of Tenant’s Work or completion of any Immaterial Changes, Tenant will perform the appropriate testing to determine if any asbestosis material exists, and would be disturbed. In the event asbestosis material is discovered, Tenant will be responsible, at Tenant’s sole cost and expense, to engage properly licensed contractor for the removal of such material in accordance with Applicable Environmental Law, and will abide by Landlord’s safety and environmental policies and procedures.

 

 

16.02.       Tenant shall not cause or permit any Hazardous Substances or toxic material to be brought upon, kept, or used on the Premises by Tenant or by any other person. In the event Tenant is in breach of this provision, or (whether or not such a breach has occurred) if the presence of Hazardous Substance or toxic materials on the Premises results in contamination of the said Premises or any other area in the Buildings, then Tenant shall indemnify, defend, and hold Landlord harmless from any and all Losses that arise during or after the lease Term as a result of such contamination. This indemnification includes costs incurred in connection with any investigation of the site conditions or any cleanup, remedial, removal, or restoration work required by any governmental agency. The foregoing indemnity shall survive the expiration or earlier termination of this lease.

 

16.03.       Without limiting the foregoing, Tenant agrees to defend, indemnify, and hold Landlord Indemnitees, harmless against any and all Losses, foreseeable and unforeseeable, consultant fees and expert fees and other expenses of any nature whatsoever which any Landlord Indemnitee may sustain, suffer or incur or which may be claimed or asserted against the Landlord Indemnitee, to the extent arising out of the spillage, release, discharge, disposal, or placement of any Hazardous Substance, at, in, on, under upon, or about the Premises by Tenant, or any of its agents, invitees, affiliates, representatives, contractors, consultants or employees. Except as otherwise provided in Article 16.01(b), Tenant will not be liable for Hazardous Substances existing at the Premises prior to the Commencement Date; however, Tenant’s Indemnity includes Tenant’s negligent exacerbation of Hazardous Substances existing at the Premises prior to Tenant’s possession thereof including the breach of the Excavation Restriction. The obligations of Tenant under this Section shall survive the termination of this Lease as to any right of indemnity which shall have accrued prior to such termination.

 

16.04.       Tenant represents and warrants to Landlord that, during the Term of this Lease, no Hazardous Substance will be spilled, released, discharged, disposed of, placed or otherwise caused to be located in the soil or water in, on, under or about the Premises.

 

16.05.       (a)       Hazardous Substance means any substance, chemical, contaminant or waste that is listed or defined as hazardous, toxic, or dangerous under Applicable Environmental Law, and any asbestos containing materials, radioactive materials or petroleum products.

 

 

(b)       Applicable Environmental Law shall mean the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the Clean Air Act, 42 U.S.C. §§ 7401, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1471 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; and the Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. §§ 11001 et seq., each, as amended from time to time, or any successor laws thereto, together with the rules and regulations promulgated thereunder, and any and all formal or informal orders, permits, decrees or requests from the United States Environmental Protection Agency, the appropriate Texas state governmental and regulatory bodies, or any other governmental agency, authority or instrumentality having jurisdiction and any similar state and local laws and ordinances and the regulations implementing such statutes; together with any and all other federal, state, and local environmental or land use laws, rules, ordinances, or regulations.

 

ARTICLE 17

 

Bankruptcy/Insolvency

 

17.01.       If at any time and for so long as Tenant shall be subjected to the provisions of the United States Bankruptcy Code or other law of the United States or any state thereof for the protection of debtors as in effect at such time (each a “Debtor’s Law”), Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant’s assets (each a “Tenant’s Representative”) shall have no greater right to assume or assign this Lease or any interest in this Lease, or to sublease any of the Premises then accorded to Tenant in Section 35, except to the extent Landlord shall be required to permit such assumption, assignment or sublease by the provisions of such Debtor’s Law. Without limitation of the generality of the foregoing, any right of any Tenant’s Representative to assume or assign this Lease or to sublease any of the Premises shall be subject to the conditions that:

 

(a)        Such Debtor’s Law shall provide to Tenant’s Representative a right of assumption of this Lease which Tenant’s Representative shall have timely exercised and Tenant’s Representative shall have fully cured any default of Tenant under this Lease.

 

(b)        Tenant’s Representative or the proposed assignee, as the case shall be, shall have deposited with Landlord as security for the timely payment of Rent an amount equal to any sum specified in Section 37.01, and shall have provided Landlord with adequate other assurance of the future performance of the obligations of the Tenant under this Lease. Without limitation, such assurances shall include, at least, in the case of assumption of this Lease, demonstration to the satisfaction of the Landlord that Tenant’s Representative has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that Tenant’s Representative will have sufficient funds to fulfill the obligations of Tenant under this Lease; and, in the case of assignment, submission of current financial statements of the proposed assignee, audited by an independent certified public accountant reasonably acceptable to Landlord and showing a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by such assignee of all of the Tenant’s obligations under this Lease.

 

 

(c)        The assumption or any contemplated assignment of this Lease or subleasing any part of the Premises, as shall be the case, will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound.

 

ARTICLE 18

 

Changes in Building Facilities

 

18.01.       Landlord reserves the right to make such changes, alterations, additions, improvements, repairs or replacements in or to the Premises and the fixtures and equipment thereof, as well as in or to the street entrances and other parts thereof, and to erect, maintain and use pipes, ducts and conduits in and through the Premises, all as Landlord may deem necessary or desirable; provided, however, that there be no unreasonable obstruction of the means of access to the Premises or unreasonable interference with the Use of the Premises by Tenant. Nothing contained in this Article shall relieve Tenant of any duty, obligation or liability of Tenant with respect to making any repair, replacement or improvement, or complying with any law, order or requirement of any governmental or other authority.

 

18.02.       There shall be no allowance to Tenant for a diminution of rental value and no liability on the part of Landlord by reason of inconvenience, annoyance or injury to business arising from Landlord, Tenant or others making any changes, alterations, additions, improvements, repairs or replacements in or to any portion of the Buildings or the Premises, or in or to fixtures, appurtenances or equipment thereof and no liability upon Landlord for failure of Landlord or others to make any changes, alterations, additions, improvements, repairs or replacements in or to any portion of the Buildings or the Premises, or in or to the fixtures, appurtenances of equipment thereof.

 

ARTICLE 19

 

Notice of Accidents

 

19.01.       Tenant shall give notice to Landlord, within three (3) hours of first becoming aware, of (i) any accident in or about the Premises, (ii) all fires, burglaries, and any issue involving emergency services in the Premises, (iii) all damages to or defects in the Premises, including the fixtures, equipment and appurtenances, and (iv) all damage to or defects in any parts of appurtenances of the Buildings sanitary, electrical, heating, ventilating, air-conditioning, elevator and other systems located in or passing through the Premises or any part thereof.

 

 

ARTICLE 20

 

Destruction or Damage

 

20.01.       If the Buildings or the Premises shall be partially or totally damaged or destroyed by fire or other cause, then whether or not the damage or destruction shall have resulted from the fault or neglect of Tenant, or its employees, agents or visitors (and if this Lease shall not have been terminated as in this Article hereinafter provided), Tenant shall promptly and with reasonable diligence repair the damage and restore and rebuild the Buildings and/or the Premises to the same or better condition as existed prior to such casualty, at its expense, with reasonable dispatch after notice to it of the damage or destruction. Landlord shall not be required to repair or replace any of Tenant’s Property. Notwithstanding anything contained herein to the contrary, in no event shall either party be relieved of liability or responsibility for damage or destruction resulting from the fault or neglect of the other if the insurance policies carried by the party at fault or negligent on the Buildings do not contain a waiver of the right of subrogation.

 

20.02.       If any Buildings or the Premises shall be totally damaged or destroyed by fire or other cause, or if the Buildings shall be so damaged or destroyed by fire or other cause as to require a reasonably estimated expenditure of more than 50% of the full insurable value of the Buildings immediately prior to the casualty, then in either such case Landlord may terminate this Lease by giving Tenant notice to such effect within the earlier of (a) one hundred fifty (150) days after the date of the casualty, or (b) forty-five (45) days after Landlord’s settlement of any insurance claim.

 

In case of any damage or destruction mentioned in this Article, and where the Landlord has not theretofore terminated this Lease, Tenant may terminate this Lease by notice to Landlord, if there are two (2) years or less remaining on Tenant’s Initial Term at the time of the damage or destruction; and such termination shall be effective upon the expiration of thirty (30) days after the date of such notice.

 

20.03.       No damages, compensation or claim shall be payable by Landlord for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises or of the Buildings pursuant to this Article.

 

 

20.04.       Notwithstanding any of the foregoing provisions of this Article, if Landlord or the Landlord of any lease or the holder of any mortgage superior to this Lease shall be unable to collect all of the insurance proceeds (including rent insurance proceeds) applicable to the damage or destruction of the Premises or the Buildings by fire or other cause that occurs by reason of some negligence or willful misconduct on the part of Tenant or any of its employees, agents or contractors, then, without prejudice to any other remedies which may be available against Tenant, there shall be no abatement of Tenant’s rents until the total amount of such rents not abated which would otherwise have been abated equals the amount of uncollected insurance proceeds.

 

20.05.       Landlord shall not be obligated to repair any damage of any kind to Tenant’s Property or replace the same.

 

20.06.       In the event of the termination of this Lease pursuant to any of the provisions of this Article, this Lease and the Term and estate hereby granted shall expire as of the date of such termination with the same effect as if that were the Expiration Date, and the Fixed Rent and additional rent payable hereunder shall be apportioned as of such date.

 

20.07.       The provisions of this Article shall be considered an express agreement governing any case of damage or destruction of the Premises by fire or other casualty, and Section 227 of the Real Property Law of the State of Texas, providing for a contingency in the absence of an express agreement, and any other law of like import, now or hereafter in force, shall have no application to the Premises and this Lease.

 

ARTICLE 21

 

Condemnation 

 

21.01.       In the event that the whole of the Premises shall be lawfully condemned or otherwise taken in any manner for any public use, this Lease and the Term and estate hereby granted shall forthwith cease and terminate as of the earlier of the date of vesting of title or the taking of possession by the condemnor. In the event that only a part of the Premises shall be so condemned or taken, then, effective as of the date of vesting of title, the Fixed Rent and additional rent hereunder shall be abated in an amount proportionate to the area of the Premises so condemned or taken; provided, however, that in the event Tenant is not in default and Tenant determines that the portion of the Premises is material to Tenant’s continued operation of its business on the Premises, Tenant may, at Tenant’s option, terminate this Lease and the Term and the estate hereby granted as of the date of such vesting or taking of title by notifying Landlord in writing of such termination within thirty (30) days following the date on which Tenant shall have received notice of vesting of title or the taking of possession. In the event that only a material part of the Buildings shall be so condemned or taken, then Landlord (whether or not the Premises be affected) may, at Landlord’s option, terminate this Lease and the Term and estate hereby granted as of the date of such vesting of title by notifying Tenant in writing of such termination within thirty (30) days following the date on which Landlord shall have received notice of vesting of title or the taking of possession. If Landlord does not elect to terminate this Lease, as aforesaid, this Lease shall be and remain unaffected by such condemnation or taking, except that the Fixed Rent and additional rents payable hereunder shall be abated to the extent hereinbefore provided in this Article.

 

21.02.       In the event of its termination pursuant to this Article, this Lease and the Term and estate hereby granted shall expire as of the date of such termination with the same effect as if that were the Expiration Date, and the Fixed Rent and additional rent payable hereunder shall be apportioned as of such date.

 

 

21.03.       In the event of any condemnation or taking hereinbefore mentioned of all or a part of the Buildings, Landlord shall be entitled to receive the entire award for the Land and the Buildings in the condemnation proceeding, including any award made for the value of the estate vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title and interest of Tenant now or hereafter arising in or to any such award or any part thereof, and Tenant shall be entitled to receive no part of such award. Nothing contained in this Article shall prevent Tenant from bringing a separate action or proceeding for compensation for any of Tenant’s Property, loss of goodwill or moving expenses, provided that the same shall not reduce Landlord’s award.

 

21.04.       It is expressly understood and agreed that the provisions of this Article shall not be applicable to any condemnation or taking for governmental occupancy of the Premises for a limited period not to exceed six (6) months.

 

21.05.       In the event any part of the Premises be taken to effect compliance with any law or requirement of public authority other than in the manner hereinabove provided in this Article, then (i) if such compliance is the obligation of Tenant under this Lease, Tenant shall not be entitled to any diminution or abatement of rent or other compensation from Landlord therefor, but (ii) if such compliance is the obligation of Landlord under this Lease, the fixed rent and additional rents due hereunder shall be adjusted in the same manner as is provided in Section 21.01 according to the reduction in rentable area of the Premises resulting from such taking.

 

 

ARTICLE 22

 

Surrender

 

22.01.       On the Expiration Date, or upon any earlier termination of this Lease, Tenant shall quit and surrender the Premises to Landlord broom clean and in good order, condition and repair, except for ordinary wear and tear and such damage or destruction as Tenant is not required to repair or restore under this Lease, and Tenant shall remove all of Tenant’s Property therefrom except as otherwise expressly provided in this Lease.

 

22.02.       Tenant agrees that it shall indemnify and save Landlord harmless against all actual and reasonable costs, actual and reasonable claims, actual and reasonable loss or liability resulting from delay by Tenant in surrendering the Premises, including, without limitation, any claims made by any succeeding tenant founded on such delay. The Parties recognize and agree that the damage to Landlord resulting from any failure by Tenant timely to surrender the Premises will be substantial, will exceed the amount of monthly rent theretofore payable hereunder, and will be impossible of accurate measurement. Tenant therefore agrees that if possession of the Premises is not surrendered to Landlord within two (2) days after the date of the expiration or sooner termination of the Term of this Lease (unless Tenant is remaining in occupancy of the Premises with the express written consent of Landlord), then Tenant will pay Landlord as liquidated damages for each month and for each portion of any month during which Tenant holds over in the Premises after expiration or termination of the Term of this Lease, a sum equal to 1.5 times both the additional rent and the Fixed Rent which was payable under this Lease during the last month of the Term hereof. The aforesaid obligations shall survive the expiration or sooner termination of the Term of this Lease.

 

ARTICLE 23

 

Reserved

 

 

ARTICLE 24

 

Conditions of Limitation

 

24.01.       This Lease and the Term and estate hereby granted are subject to the limitation that whenever Tenant shall make an assignment of the property of Tenant for the benefit of creditors, or shall file a voluntary petition under any bankruptcy or insolvency law or any involuntary petition alleging an act of bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or insolvency law, or whenever a petition shall be filed by or against Tenant under the reorganization provisions of the United States Bankruptcy Act or under the provisions of any law of like import, or whenever a petition shall be filed by Tenant under the arrangement provisions of the United States Bankruptcy Act or under the provisions of any law of like import, or whenever a permanent receiver of Tenant of or for the property of Tenant as the case may be, shall be appointed, then, Landlord may, (a) at any time after receipt of notice of the occurrence of any such event, or (b) if such event occurs without the acquiescence of Tenant, at any time after the event continues for thirty (30) days, give Tenant a notice of intention to end the Term of this Lease at the expiration of thirty (30) days from the date of service of such notice of intention, and upon the expiration of said thirty (30) day period this Lease and the Term and estate hereby granted, whether or not the Term shall theretofore have commenced, shall terminate with the same effect as if that day were the Expiration Date, but Tenant shall remain liable for damages as provided in Article 26.

 

24.02.       This Lease and the Term and estate hereby granted are subject to further limitation as follows: (a) whenever Tenant shall default in the payment of any installment of Fixed Rent, or in the payment of any additional rent or any other charge payable by Tenant to Landlord, for more than ten (10) days after the first day upon which the respective item of Fixed Rent, additional rent or other change, is due under this Lease; (b)  whenever Tenant shall do or permit anything to be done, whether by action or inaction, contrary to any of Tenant’s obligations hereunder, and if such situation shall continue and shall not be remedied by Tenant within thirty (30) days after Landlord shall have given to Tenant a notice specifying the same; provided, however, that if the nature of the default is such that more than thirty (30) days are reasonably required for its cure, then it shall not be deemed to be a default if Tenant commences such cure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion within a period not to exceed ninety (90) days; (c)  whenever any event shall occur or any contingency shall arise whereby this Lease or the estate hereby granted or the unexpired balance of the Term hereof would, by operation of law or otherwise, devolve upon or pass to any person, firm or corporation other than Tenant; (d) whenever Tenant shall vacate or abandon the Premises (unless as a result of a casualty); or (e) whenever Tenant shall default in the due observance and/or performance of any covenant, agreement, provision or condition of Article 2 hereof on the part of Tenant to be kept, observed or performed and if such default shall continue and shall not be remedied by Tenant within three (3) business days after Landlord shall have given to Tenant a notice specifying the same, then, in any of said cases set forth in the foregoing Subsections, Landlord may give to Tenant a notice of intention to end the Term of this Lease at the expiration of three (3) business days from the date of the service of such notice of intention, and upon the expiration of said three (3) days this Lease and the Term and estate hereby granted, whether or not the Term shall theretofore have commenced, shall terminate with the same effect as if that day were the Expiration Date, but Tenant shall remain liable for damages as provided herein.

 

24.03       If an order for relief is entered in any case which is commenced by or against Tenant under the present or any future federal bankruptcy code, Landlord shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy code or this Lease, including, without limitation, such rights and remedies as may be necessary to protect adequately Landlord’s right, title and interest in and to the Premises or any part thereof.

 

 

24.04.       If a default by the Tenant under any of the terms, conditions or covenants of this Lease requires the Landlord, in the exercise of its reasonable discretion, to use the services of an attorney (whether or not an employee of Landlord) to engage in litigation, or to attempt to, or successfully remedy such default, that Tenant will reimburse Landlord for any and all reasonable expenses incurred in its use of such attorney and in any action which said attorney may take. Such expenses shall include, but are not limited to legal fees for all services deemed necessary by Landlord, court costs, cost of filing and serving summons and/or complaint, etc.

 

ARTICLE 25

 

Re-Entry by Landlord

 

25.01.       If Tenant shall default in the payment of any installment of rent, on any date upon which the same ought to be paid, and if such default shall continue for ten (10) days after Landlord shall have given to Tenant a notice specifying such default, or if this Lease shall expire as in Article 24 provided, Landlord or Landlord’s agents and employees may re-enter the Premises, or any part thereof, immediately or at any time thereafter without being liable to indictment, prosecution or damages therefrom, to the end that Landlord may have, hold and enjoy the Premises again as and of its first estate and interest therein. In the event of any termination of this Lease under the provisions of Article 24 or if Landlord shall re-enter the Premises under the provisions of this Article or in the event of the termination of this Lease, or of re-entry, by or under any summary dispossess or other proceedings or action or any provision of law by reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Fixed Rent and additional rent payable by Tenant to Landlord up to the time of such termination of this Lease, or of such recovery of possession of the Premises by Landlord, as the case may be, and shall also pay to Landlord damages as provided in Article 26.

 

25.02.       In the event of a breach by Tenant of any of its obligations under this Lease, Landlord shall also have the right of injunction. The special remedies to which Landlord may resort hereunder are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may lawfully be entitled at any time and Landlord may invoke any remedy allowed at law or in equity as if specific remedies were not provided for herein.

 

25.03.       If this Lease shall terminate under the provisions of Article 24, or if Landlord shall re-enter the Premises under the provisions of this Article, or in the event of the termination of this Lease, or of reentry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, Landlord shall be entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as advance rent, security or otherwise, but such moneys shall be credited by Landlord against any Fixed Rent or additional rent due from Tenant at the time of such termination or re-entry or, at Landlord’s option, against any damages payable by Tenant under Article 26 or pursuant to law.

 

 

ARTICLE 26

 

Damages

 

26.01.       If this Lease is terminated under the provisions of Article 24, or if Landlord shall re-enter the Premises under the provisions of Article 25, or in the event of the termination of this Lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, Tenant shall, upon demand, pay to Landlord as damages a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord equals the aggregate (discounted at the rate of [***] to date of such termination or reentry) of the Fixed Rent and the additional rent payable hereunder which would have been payable by Tenant (conclusively presuming the additional rent to be the same as was payable for the year immediately preceding such termination) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the Expiration Date, had this Lease not so terminated or had Landlord not so re-entered the Premises; provided, however, that if Landlord shall re-let the Premises during said period, Landlord shall credit Tenant with the net rents received by Landlord from such reletting, which shall be equal to the gross rents as and when received (and if such rent is paid in advance, it will be discounted at [***] by Landlord from such re-letting, less the expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the expenses of re-letting, including altering and preparing the Premises for new tenants, brokers’ commissions, and all other expenses properly chargeable against the Premises and the rental thereof for the remaining portion of the Term of the Lease. Any such re-letting may be for a period shorter or longer than the remaining Term of this Lease but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder. If the Premises or any part thereof should be re-let in combination with other space, the rent received from such re-letting and the expenses of re-letting shall be apportioned on a square foot basis.

 

26.02.       Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the Term of this Lease would have expired if it had not been terminated, or had Landlord not re-entered the Premises. Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant for any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant.

 

 

 

ARTICLE 27

 

Waivers

 

27.01.       Tenant, on behalf of itself and any and all persons claiming through or under Tenant, including creditors of all kinds, does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law, to redeem the Premises or to have a continuance of this Lease for the Term hereby demised after being dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided.

 

27.02.       In the event that Tenant is in arrears in payment of rent hereunder, Tenant agrees that Landlord may apply any payments made by Tenant to any items it sees fit, irrespective of and notwithstanding any designation or request by Tenant as the items against which any such payments shall be credited.

 

27.03.       Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim brought by either against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of landlord and tenant, Tenant’s use or occupancy of the Premises, including any claim of injury or damage, or any emergency or other statutory remedy with respect thereto. Tenant also waives the provisions of any law relating to notice and/or delay in levy of execution in case of an eviction or dispossess, and of any other law of like import now or hereafter in effect. If Landlord commences any summary proceeding, Tenant agrees that Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding.

 

27.04.       The provisions of this Lease shall be considered express agreements governing the services to be furnished by Landlord, and Tenant agrees that any laws and/or requirements of public authorities, now or hereafter in force, shall have no application in connection with any enlargement of Landlord’s obligations with respect to such services.

 

ARTICLE 28

 

No Other Waivers or Modifications

 

28.01.       The failure of either party to insist in any one or more instances upon the strict performance of any one or more of the obligations of this Lease, or to exercise any election herein contained, shall not be construed as a waiver or relinquishment for the future of the performance of such one or more obligations of this Lease or of the right to exercise such election, but the same shall continue and remain in full force and effect with respect to any subsequent breach, act or omission. No executory agreement hereafter made between Landlord and Tenant shall be effective to change, modify, waive, release, discharge, terminate in whole or in part, unless such executory agreement is in writing, refers expressly to this Lease and is signed by the party against whom enforcement of the change, modification, waiver, release, discharge or termination is sought.

 

 

28.02.       The following specific provisions of this Section shall not be deemed to limit the generality of Section 28.01: (a) No agreement to accept a surrender of all or any part of the Premises shall be valid unless in writing and signed by Landlord; (b) The receipt by Landlord of rent with knowledge of breach of any obligation of this Lease shall not be deemed a waiver of such breach; and (c) No payment by Tenant or receipt by Landlord of a lesser amount than the correct fixed rent or additional rent due hereunder shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance or pursue any other remedy in this Lease or at law provided.

 

ARTICLE 29

 

Curing Tenant’s Defaults, Additional Rent

 

29.01.       If Tenant shall default in the performance of any of Tenant’s obligations under this Lease, Landlord, without thereby waiving such default, may (but shall not be obligated to) perform the same for the account and at the expense of Tenant, (a) without notice, in a case of emergency, and (b) in any other case, only if such default continues after the expiration of (i) thirty (30) days from the date Landlord gives Tenant notice of intention so to do, or (ii) the applicable grace period provided in this Lease for cure of such default, whichever occurs later.

 

29.02.       Bills for expenses incurred by Landlord in connection with any such performance by it for the account of Tenant, and bills for all actual and reasonable costs, actual and reasonable expenses and actual and reasonable disbursements of every kind and nature whatsoever, including reasonable counsel fees, involved in collecting or endeavoring to collect the Fixed Rent, additional rent or any part thereof or enforcing or endeavoring to enforce any rights against Tenant, under or in connection with this Lease, or pursuant to law, including any such actual and reasonable cost, actual and reasonable expense and actual and reasonable disbursement involved in instituting and prosecuting summary proceedings, as well as bills for any property, material, labor or services provided, furnished or rendered, by Landlord or at its instance to Tenant, may be sent by Landlord to Tenant monthly, or immediately, at Landlord’s option, and shall be due and payable with the next monthly installment of rent in accordance with the terms of such bills 

 

 

ARTICLE 30

 

Parties Bound

 

30.01.       The obligations of this Lease shall bind and benefit the successors and assigns of the Parties with the same effect as if mentioned in each instance where a party is named or referred to, except that no violation of the provisions of Article 35 shall operate to vest any rights in any successor or assignee of Tenant and that the provisions of this Article shall not be construed as modifying the conditions of limitation contained herein. However, the obligations of Landlord under this Lease shall not be binding upon Landlord herein named with respect to any period subsequent to the transfer of its interest in the Buildings as owner or Tenant thereof and delivery of written notice of such transfer to Tenant and in the event of such transfer and notice said obligations shall thereafter be binding upon each transferee of the interest of Landlord herein named as such owner or Tenant of the Buildings, but only with respect to the period ending with a subsequent transfer within the meaning of this Article.

 

30.02.       Tenant shall look only to Landlord’s estate and interest in the Premises, for the satisfaction of Tenant’s remedies or the collection of a judgment (or other judicial process) requiring the payment of money by Landlord hereunder, and no other property or assets of such Landlord shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to this Lease, the relationship of landlord and tenant hereunder or Tenant’s use or occupancy of the Premises. In no event, and under no circumstances, shall Landlord or any officer, employee, agent or principal (disclosed or undisclosed) of Landlord have any personal liability or monetary obligation of any kind under or pursuant to this Lease.

 

ARTICLE 31

 

Notices

 

31.01.       Except as otherwise provided in this Lease, a notice or communication which Landlord may desire or be required to give to Tenant, shall be deemed sufficiently given or rendered if in writing, sent by registered or certified mail or overnight courier addressed to Tenant at Tenant’s address stated on the first page of this Lease and the time of the giving of such notice or communication shall be deemed to be upon receipt if personally delivered, two (2) business days after mailing if mailed and on the next business day if sent by overnight courier. Any notice by Tenant to Landlord must be served by registered or certified mail or overnight courier addressed to Landlord at the address first hereinabove given, Attention: Director, Global Real Estate or at such other address as Landlord shall designate by written notice. Either party hereto may change its mailing address by giving notice to the other pursuant to the provisions of this Article.

 

 

31.02       Tenant shall promptly notify Landlord in writing of any change in the ownership of Tenant, any appointment or removal of directors of Tenant or any material change in the immigration status of the shareholders, officers or directors of Tenant.

 

ARTICLE 32

 

Estoppel Certificate, Memorandum

 

32.01.       Tenant agrees, at any time and from time to time, as requested by Landlord, upon not less than fifteen (15) days’ prior written notice, to execute and deliver to Landlord a statement certifying that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force as modified and stating the modifications), certifying the dates to which the fixed rent and additional rent have been paid, and stating whether or not, to the best knowledge of Tenant, the other party is in default in performance of any of his obligations under this Lease, and, if so, specifying each such default of which the signer may have knowledge, it being intended that any such statement delivered pursuant hereto may be relied upon by others with whom the party requesting such certificate may be dealing.

 

ARTICLE 33

 

Quiet Enjoyment

 

33.01.       So long as Tenant pays all of the Fixed Rent and additional rent due hereunder and performs all of Tenant’s other obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Premises during the Term of this Lease, subject nevertheless to its performance of its obligations under this Lease.

 

 

ARTICLE 34

 

No Other Representations, Construction, Governing Law, Inability to Perform

 

34.01.       Tenant expressly acknowledges and agrees that Landlord has not made and is not making, and Tenant, in executing and delivering this Lease, is not relying upon, any warranties, representations, promises or statements, except to the extent that the same are expressly set forth in this Lease or in any other written agreement which may be made between the Parties concurrently with the execution and delivery of this Lease and shall expressly refer to this Lease. This Lease and said other written agreement(s) made concurrently herewith, if any, are hereinafter referred to as the “Lease Documents.” It is understood and agreed that all understandings and agreements heretofore had between the Parties are merged in the Lease Documents, which alone fully and completely express their agreement and that the same are entered into after full investigation, neither party relying upon any statement or representation made by the other and not embodied in the Lease Documents.

 

34.02.       If any of the provisions of this Lease, or the application thereof to any person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of said provision or provisions to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.

 

34.03.       This Lease shall be governed in all respects by the laws of the State of Texas.

 

34.04.       This Lease and the obligation of Tenant to pay rent hereunder and perform all of the other covenants and agreements hereunder on the part of Tenant to be performed shall in no way be affected, impaired or excused because Landlord is unable to fulfill any of its obligations under this Lease or to supply or is delayed in supplying any service expressly or impliedly to be supplied or is unable to make or is delayed in making any repair, additions, alterations or decorations or is unable to supply or is delayed in supplying any equipment or fixtures if Landlord is prevented or delayed from so doing by reason of strike or labor troubles or any outside cause whatsoever, including but not limited to governmental preemption in connection with a national emergency or by reason of any rule, order or regulation of any department or subdivision thereof of any government agency or by reason of the conditions of supply and demand which have been or are affected by war or other emergency or other like cause beyond Landlord’s reasonable control.

 

 

ARTICLE 35

 

Assignment, Mortgaging, Subletting

 

35.01.      (a) Tenant covenants and agrees for Tenant and its successors, assigns and legal representatives, that neither this Lease nor the Term and estate hereby granted, nor any part hereof or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily, involuntarily, by operation of law or otherwise), and that neither the Premises, nor any part thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant, or will be used or occupied, or permitted to be used or occupied, other than as hereinbefore set forth, or will be sublet, without the prior written consent of Landlord in every case. A transfer of fifty percent (50%) or greater interest (whether stock, partnership interest or otherwise) of Tenant shall be deemed to an assignment of this Lease, whether such transfer occurs in one transaction or in any series of transactions within a fourteen-month period. Landlord may assign this Lease, or any part thereof, at its sole discretion without the consent of Tenant. Upon such assignment, Landlord will be released from any and all obligations and liabilities contained herein other than its environmental indemnity and other indemnity obligations to Tenant set forth in this Lease.

 

(b) Notwithstanding the foregoing provisions of this Article 35 to the contrary, Tenant may, without Landlord's approval or consent (i) assign this Lease in its entirety to any Affiliate of Tenant (as defined below), subject to the following conditions: (A) such assignment is not a subterfuge by Tenant to avoid its obligations under this Lease, (B) the Affiliate shall continue to use the Premises for the Use set forth in this Lease; (C) Tenant gives Landlord prior notice of any such assignment or other transaction, (D) any such assignment shall be subject and subordinate to all of the terms and provisions of this Lease, and any assignee under an assignment of this Lease shall assume, in a written document reasonably satisfactory to Landlord and delivered to Landlord prior to the effective date of such assignment, all the obligations of Tenant under this Lease; and (E) such assignment shall not relieve Tenant from any of its obligations under this Lease. As used herein: (x) an "Affiliate" shall mean (I) a parent or subsidiary of Tenant, (II) any person or entity which controls, is controlled by or is under common control with Tenant, (III) any entity which purchases all or substantially all of the assets and/or stock or ownership interests of Tenant, or (IV) any entity into which Tenant is merged or consolidated; and (y) "control" shall mean the possession, direct or indirect, of the power to cause the direction of the management and policies of a person or entity, or ownership of any sort, whether through the ownership of voting securities, by contract or otherwise.

 

35.02.       Each subletting pursuant to this Article 35 shall be subject to all the covenants, agreements, terms, provisions and conditions contained in this Lease. Tenant shall promptly furnish to Landlord a copy of each such sublease. Tenant covenants and agrees that, notwithstanding such assignment or any such subletting to any subtenant and/or acceptance of rent or additional rent by Landlord from any subtenant, Tenant shall and will remain fully liable for the payment of the Fixed Rent and additional rent due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be performed. Tenant further covenants and agrees that notwithstanding any such assignment or subletting, no other and further assignment, underletting or subletting of the Premises or any part thereof shall or will be made except upon compliance with and subject to the provisions of this Article 35.

 

 

 

35.03.       If this Lease is assigned, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver by Landlord of any of Tenant’s covenants contained in this Article 35 or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained.

 

35.04        Regardless of Landlord’s consent, the following terms and conditions shall apply to any subletting by Tenant of all or any part of the Premises and shall be included in subleases:

 

(a)           Tenant hereby assigns and transfers to Landlord as security all of Tenant’s interest in all rentals and income arising from any sublease heretofore or hereafter made by Tenant, and Landlord may collect such Rent and income and apply same toward Tenant’s obligations under this Lease; provided, however, that until a default shall occur in the performance of Tenant’s obligations under this Lease, Tenant may receive, collect and enjoy the Rents accruing under such sublease. Landlord shall not, by reason of this or any other assignment of such sublease to Landlord or by reason of the collection of the Rents from a subtenant, be deemed liable to the subtenant for any failure of Tenant to perform and comply with any of Tenant’s obligations to such subtenant under such sublease. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that a default exists in the performance of Tenant’s obligations under this Lease, to pay to Landlord the Rents due and to become due under the sublease. Tenant agrees that such subtenant shall have the right to rely upon any such statement and request from Landlord, and that such subtenant shall pay such Rents to Landlord without any obligation or right to inquire as to whether such default exists and notwithstanding any notice from or claim from Tenant to the contrary. Tenant shall have no right or claim against such subtenant or Landlord for any such Rents so paid by said subtenant to Landlord except to the extent the payments exceed Tenant’s obligations to Landlord under this Lease.

 

(b)            No sublease entered into by Tenant shall be effective unless and until it has been approved in writing by Landlord. In entering into any sublease, Tenant shall use only such form of sublease as is satisfactory to Landlord, and once approved by Landlord, such sublease shall not be changed or modified without Landlord’s prior written consent and an executed copy of such sublease shall be provided to Landlord upon execution. Any subtenant shall, by reason of entering into a sublease under this Lease, be deemed, for the benefit of Landlord, to have assumed and agreed to conform and comply with each and every obligation herein to be performed by Tenant other than such obligations as are contrary to or inconsistent with provisions contained in a sublease to which Landlord has expressly consented in writing.

 

 

(c)            If Tenant’s obligations under this Lease have been guaranteed by third parties, then a sublease and Landlord’s consent thereto, shall not be effective unless said guarantors give their written consent to such sublease and the terms thereof.

 

35.05.       The consent by Landlord to any subletting shall not release Tenant from its obligations or alter the primary liability of Tenant to pay the Rent and perform and comply with all of the obligations of Tenant to be performed under this Lease.

 

35.06.       The consent by Landlord to any subletting shall not constitute consent to any subsequent subletting by Tenant or to any assignment or subletting by the subtenant. However, Landlord may consent to subsequent sublettings and assignments of the sublease or any amendments or modifications thereto without notifying Tenant or anyone else liable on the Lease or sublease and without obtaining their consent and such action shall not relieve such persons from liability.

 

35.07.       In the event of any default under this Lease, Landlord may proceed directly against Tenant, any guarantors or anyone else responsible for the performance of this Lease, including the subtenant, without first exhausting Landlord’s remedies against any other person or entity responsible therefor to Landlord, or any security held by Landlord or Tenant.

 

35.09        In the event Tenant shall default in the performance of its obligations under this Lease, Landlord, at its option and without any obligation to do so, may require any subtenant to attorn to Landlord, in which event Landlord shall undertake the obligations of Tenant under such sublease from the time of the exercise of said option to the termination of such sublease; provided, however, Landlord shall not be liable for any prepaid Rents or Security Deposit paid by such subtenant to Tenant or for any other prior defaults of Tenant under such sublease.

 

35.10.       Each and every consent required of Tenant under a sublease shall also require the consent of Landlord.

 

 

35.11.       No subtenant shall further assign or sublet all or any part of the Premises without Landlord’s prior written consent.

 

35.12.       Landlord’s written consent to any subletting of the Premises by Tenant shall not constitute an acknowledgment that no default then exists under this Lease of the obligations to be performed by Tenant nor shall such consent be deemed a waiver of any then existing default, except as may be otherwise stated by Landlord at the time.

 

35.13.       With respect to any subletting to which Landlord has consented, Landlord agrees to deliver a copy of any notice of default by Tenant to the subtenant. Such subtenant shall have the right to cure a default of Tenant within ten (10) days after service of said notice of default upon such subtenant, and the subtenant shall have a right of reimbursement and offset from and against Tenant for any such defaults cured by the subtenant.

 

35.14.       Attorney’s Fees. In the event Tenant shall assign or sublet the Premises or request the consent of Landlord to any assignment or subletting or if Tenant shall request the consent of Landlord for any act Tenant proposes to do then Tenant shall pay Landlord’s reasonable attorneys’ fees incurred in connection therewith.

 

ARTICLE 36

 

Signage

 

36.01.       Tenant may have signage on the Buildings and monument signage. The size, placement and location of the signage shall be subject to the Landlord’s approval, which shall not be unreasonably withheld.

 

ARTICLE 37

 

Reserved

 

 

ARTICLE 38

 

Reserved

 

ARTICLE 39

 

Common Areas

 

39.01.       All parking areas, roads, truck ways and driveways, entrances and exits thereto, signs, shipping and other areas, improvements, utility infrastructure, and other facilities designated as shared facilities as outlined in Exhibit A-3 (herein sometimes referred to as "Common Areas") will be available for Tenant’s non-exclusive use for ingress and egress, as well as parking and other approved and/or reasonable uses, in a manner compatible with use by other tenants of Landlord. Except for temporary interruptions, Landlord shall not materially diminish, reconfigure or otherwise deprive Tenant from use of the Common Areas necessary for its Use of the Premises.

 

39.02.       Tenant agrees to pay to Landlord, in each Landlord fiscal year and as additional rent throughout the Term hereof, Tenant's Pro-Rata Share (as such term is reasonably determined by Landlord), of the "Annual Common Area Operating Cost" (as hereafter defined). As used in this Lease, the term "Annual Common Area Operating Cost" shall mean the total of all reasonable costs and expenses of every kind and nature incurred in each fiscal year by Landlord, with respect to assets shared by the Parties and not otherwise maintained by Tenant in a manner determined by Landlord, in its sole discretion, to be reasonable and appropriate.

 

ARTICLE 40

 

Miscellaneous

 

40.01.       Notwithstanding anything contained in this Lease to the contrary, Tenant covenants and agrees that Tenant will not use the Premises or any part thereof, or permit the Premises or any part thereof to be used, for any purpose other than the specific Use permitted under Article 2 herein.

 

 

40.02.       Each of Landlord and Tenant represents and warrants to the other that the representing party has had no dealings or negotiations with any broker or agent in connection with the consummation of this Lease. Tenant shall pay, hold harmless and indemnify the Landlord from and against any and all cost, expense (including reasonable attorneys’ fees) or liability for any compensation, commissions or charges claimed by any broker or agent claiming that it has been engaged by the Tenant with respect to this Lease or the alleged negotiation thereof.

 

40.03.       At Landlord’s request, Tenant shall deliver to Landlord a copy, certified by an officer of Tenant as being a true and correct copy, of Tenant’s most recent audited financial statement, or, if unaudited, certified by Tenant’s chief financial officer as being true, complete and correct in all material respects. Tenant hereby authorizes Landlord to obtain one or more credit reports on Tenant at any time, and shall execute such further authorizations as Landlord may reasonably require in order to obtain a credit report.

 

40.04.       The Article headings of this Lease are for convenience only and are not to be given any effect whatsoever in construing this Lease.

 

40.05.       This Lease shall not be binding upon Landlord or Tenant unless and until it is signed by Landlord and Tenant and a fully signed copy thereof is delivered by Landlord to Tenant.

 

40.06.       Any words, phrases, clauses and the like which have been deleted from this Lease prior to execution (including, but not limited to, altering or crossing out, obliterating words by “white out” or otherwise) shall be of no force or effect, unless such deletion has been initialed by both Parties. In this regard, deleted Lease language shall not be used to interpret the intent of the Parties with respect to any obligation arising out of the landlord-tenant relationship even if the rest of this Lease is silent or ambiguous about a particular obligation; for all intents and purposes, the deleted Lease language shall be ignored.

 

40.07.       The submission of this lease for examination does not constitute a reservation of or option for the Premises and this Lease becomes effective as a lease only upon execution and delivery thereof by Landlord and Tenant.

 

40.08.       Tenant shall not record this Lease without the written consent of Landlord. If requested by Landlord or Tenant, a memorandum or short form Lease mutually acceptable to both parties shall be executed and recorded at the expense of the party so desiring said recording.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the date first above written.

 

 

	LANDLORD
	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Name:	Mark A. Stiffler
	Title:	Vice President

 

	TENANT
	Dory Creek, LLC
	By:	/s/ Xiaojing Guo
	Name:	Xiaojing Guo
	Title:	General Manager

 

 

EXHIBIT  A-1

 

Description  of  the  Land

 

[***]

 

 

EXHIBIT  A-2

 

Description  of  the  Buildings

 

[***]

 

 

EXHIBIT  A-3

 

Private  User  Network

 

[***]

 

 

EXHIBIT  A-4

 

Common  Areas

 

[***]

 

 

EXHIBIT  B

 

Tenant's  Documentation

 

[***]

 

 

EXHIBIT  C

 

Landlord's  Work

 

[***]

 

 

 

EXHIBIT  D

 

Approved  Tenant  Work

 

[***]

 

 

GUARANTY

 

[***]

 

 

Exhibit 10.6

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

FIRST AMENDMENT TO LEASE

 

THIS FIRST AMENDMENT TO LEASE (“First Amendment”), is made and entered into this 18th day of October, 2018 by and between Alcoa USA Corp. (“Alcoa”), and Bitmain Inc. (“Bitmain”).

 

WHEREAS, Alcoa and Bitmain are parties to that certain Lease Agreement (“Lease”) dated June 6, 2018, whereby the Bitmain leased certain real estate and associated facilities owned by Alcoa;

 

WHEREAS, Alcoa and Bitmain wish to amend certain terms of the Lease.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree to modify the Lease as follows:

 

1.

Exhibit A-1 is hereby deleted in its entirety and is replaced with Attachment 1 hereto.

 

2.

Exhibit A-2 is hereby deleted in its entirety and is replaced with Attachment 2 hereto.

 

3.

Building 44D is hereby added as part of the Premises (as defined in the Lease) until December 31, 2018. As of January 1, 2019, either party may terminate the use of Building 44D by Bitmain, upon 30 days written notice to the other party. The removal of Building 44D will have no effect on any other portion or part of the Premises.

 

4.

Except as specifically amended herein, all other terms and conditions of the Lease shall remain in full force and effect. This First Amendment shall be binding upon the successors and assigns of the respective parties.

 

5.

This First Amendment may be executed in counterparts, each of which shall be deemed to be an original, but which together shall be deemed to constitute a single document.

 

Signature page to follow.

 

 

IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed by their duly authorized officers, effective as of the date and year first above written.

 

	Alcoa:
	Alcoa USA Corp.

 

By:

/s/ Mark A. Stiffler

Its:

Vice President

	Date:	10/22/2018
	Bitmain:
	Bitmain Inc.

 

By:

/s/ Xiaojing Guo

Its:

General Manager

Date:

10/18/2018

 

 

Attachment 1

 

 

EXHIBIT A-1 (Amendment 1)

 

Description  of  the  Land

 

[***]

 

 

EXHIBIT A-2

 

Description  of  the  Buildings

 

[***]

 

 

Exhibit 10.7

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

  

SECOND AMENDMENT TO LEASE

 

THIS SECOND AMENDMENT TO LEASE (“Second Amendment”), is made and entered into effective May 1, 2019 (the “Effective Date”) by and between Alcoa USA Corp. (“Landlord”), and Dory Creek, LLC, a wholly-owned subsidiary of Bitmain Inc. (“Tenant”).

 

WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated June 6, 2018, as amended by the First Amendment of Lease dated October 18, 2018 (together called the “Lease”), whereby Tenant leased certain real estate and associated facilities owned by Landlord;

 

WHEREAS, Landlord and Tenant wish to amend certain terms of the Lease.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree to modify the Lease as follows:

 

1.

Subject to Landlord’s right of revision stated below, Landlord hereby sells and conveys to Tenant a one hundred percent (100%) ownership interest in its 1470 Private User Network (“PUN”) power circuit and the associated downstream components, for the sole purpose of power delivery of [***] megawatts to Potroom 12, [***] megawatts to Potroom 14, [***] megawatts to Potroom 16, and up to [***] mw of auxiliary service load (limited to a total of no more than 80 megawatts). Upon termination of the Lease, for any reason at any time, Tenant’s interest and ownership in the PUN will revert to Landlord. Tenant may not assign its ownership of the PUN at any time to any other entity. All improvements or replacements in any PUN components identified in this Section 1 by Tenant and funded by Tenant, will be owned by Tenant during the term of the Lease and will be owned exclusively by Landlord upon termination of the Lease. Upon execution of this Second Amendment, Landlord and Tenant will execute a Bill of Sale in substantially in the form as shown in Attachment A, conveying to Tenant the ownership interest in the PUN stated above. Tenant’s ownership is based upon ONCOR’s service delivery capacity of [***] MVA to circuits [***] and [***] combined. Any de-rating of the [***] MVA service by ONCOR, will result in a corresponding percentage reduction in Tenant’s and Landlord’s delivery capacities respectively.

 

2.

Tenant is solely responsible for obtaining electrical power through a Retail Electric Provider (“REP”) to be supplied by ONCOR for Tenant’s sole benefit and cost at the 1470 metering location.

 

3.

Landlord will grant to Tenant, at no cost to Tenant, the Non-Exclusive use of Landlord’s Rectifier Station Building 1 and Building 2 for installation of power switching, distribution and control equipment. Tenant’s use of these buildings is subordinate to Landlord’s.

Tenant is responsible for supplying power for lighting in these buildings.

 

4.

Landlord will grant to Tenant, at no cost to Tenant, Exclusive use of the interconnecting corridor between Buildings 1 & 2; any modifications to building need to be approved by Landlord in advance.

 

5.

Exhibit A-1 (Description of the Land) is hereby deleted in its entirety and is replaced with Attachment A-1 hereto.

 

6.

Exhibit A-3 (Private User Network) is hereby deleted in its entirety and is replaced with Attachment A-3 hereto.

 

7.

Effective on the Effective Date and continuing until such time as Tenant commences delivery of its own electrical power to each of the Buildings and Potrooms covered in this Section 7 (through 1470 via its own REP) Landowner will provide Temporary Construction Power to Tenant through Landlord’s 1480 circuit for a fixed daily fee of [***]. Tenant will provide on a weekly basis, daily log sheets that are agreed upon and signed off by local Landlord personnel. The Buildings and Potrooms covered under this Section 7 include portable offices, trailers Rectifier Buildings 1 and 2 along with Potrooms 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24 and 26. Alcoa will invoice Tenant monthly, based on approved log sheets, (prorated for number of days of use in the prior month) for suppling Temporary Construction Power.

 

 

8.

Section 31.01 is hereby deleted in its entirety and is replaced with the following:

 

31.01. Any notice or communication required by this Lease shall be made in writing and properly addressed and mailed, emailed or delivered to the parties as set forth below:

 

TO LESSOR:	Alcoa USA Corp.	TO LESSEE:	Dory Creek, LLC
	[***]		[***]
	[***]		[***]
	[***]		[***]
	[***]@alcoa.com		[***]@bitmain.com
with a copy to:	Alcoa Real Estate	with a copy to:	Bitmain Inc.
	[***]		[***]
	[***]		[***]
	[***]		[***]
	[***]@alcoa.com		[***]@bitmain.com

  

9.

Landlord and Tenant acknowledge that the First Amendment of Lease dated October 18, 2018, was executed on behalf of Tenant by Bitmain Inc., and that Tenant is a wholly-owned subsidiary of Bitmain Inc. Landlord and Tenant hereby ratify the First Amendment of Lease as originally executed and as amended by this Second Amendment.

 

10.

Except as specifically amended herein, all other terms and conditions of the Lease remain in full force and effect. This Second Amendment is binding upon the successors and assigns of the respective parties.

 

11.

This Second Amendment may be executed in counterparts, each of which shall be deemed to be an original, but which together shall be deemed to constitute a single document.

    

Signature page to follow.

 

 

IN WITNESS WHEREOF, the parties have caused this Second Amendment to be executed by their duly authorized officers, effective as of the Effective Date.

 

	Landlord:
	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Its:	Mark A. Stiffler
	Date:	6/20/2019
	Tenant:
	Dory Creek, LLC
	By:	/s/ Wenguang Wang
	Its:
	Date:	6-13-2019

  

  

Attachment A

 

 

Attachment A to Bill of Sale PUN Assets

 

[***]

 

 

Attachment A-1

  

  

Attachment A-1 (Second Amendment) Description of the Land

 

[***]

  

 

Attachment A-3 (Second Amendment)

 

Private User Network

 

[***]

 

 

Exhibit 10.8

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

THIRD AMENDMENT TO LEASE

 

THIS THIRD AMENDMENT TO LEASE (“Third Amendment”), is made and entered into this 11th day of May, 2021 (“Effective Date”) by and between Alcoa USA Corp. (“Landlord”), and Dory Creek LLC a wholly-owned subsidiary of Bitmain Inc. (“Tenant”), each a “Party” and collectively “Parties”.

 

WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated June 6, 2018, as amended by the First Amendment of Lease dated October 18, 2018 and by the Second Amendment of Lease dated May 1, 2019 (together called the “Lease”), whereby Tenant leased certain real estate and associated facilities owned by Landlord;

 

WHEREAS, Oncor Electric Delivery Company LLC (“Oncor”) is interconnected with and provides electric delivery service to the ONCOR Number 3 138kV Switchyard Feed and Meter;

 

WHEREAS, Landlord and Tenant wish to amend certain terms of the Lease.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree to modify the Lease as follows:

 

1.

Section 1.02 is hereby deleted in its entirety and is replaced with:

 

1.02. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the real property and personal property more particularly described in Exhibit A-1 attached hereto (the “Land”), certain existing buildings and improvements located on the Land (the “Buildings”) as more particularly described in Exhibit A-2 and a certain portion of Landlord’s existing electric power delivery network (the “Private User Network” or “PUN” as more particularly described in Exhibit A-3 (excluding, however, certain electric power delivery facilities and equipment retained by Landlord “Landlord’s PUN Equipment” and underground rights or air rights except as expressly set forth herein. The Land, the Buildings and the PUN are sometimes referred to collectively herein as the “Premises”. The Tenant’s use of the Premises as exclusive or non-exclusive is more specifically designated and detailed in Exhibits attached hereto. Tenant is further granted the non-exclusive right to use certain common areas (the “Common Areas”) as more particularly described on Exhibit A-4 attached hereto, and as further referenced in Article 39 hereof and certain portions of Landlord’s PUN Equipment. The Common Areas which are to be maintained by Tenant, and the usage fees to be paid for use by Tenant as additional rent, are stated in Exhibit A-4 and Section 39.02.

 

2.

The Parties have agreed to add the Non-Exclusive right to use the Travis/Reagan Access Road including the LBJ Gate, Milam St. East and Milam St. West, and to remove Buildings 27J and 27K from the Leased Premises, as shown on the attached Exhibits A-1, A-2 and A-4.

 

 

3.

Article 6 of the Lease is hereby deleted and replaced with the following:

 

ARTICLE 6

 

Services or Utilities

 

6.01. Tenant shall pay and discharge punctually all charges for water and any and all other services or utilities furnished to the Premises, the improvements, or the occupants of them, including but not limited to: (i) construction and capital improvements of any additional infrastructure or utilities; (ii) Buildings repairs; (iii) installation of additional equipment; (iv) any permitting required by law with respect to the Use of the Premises by Tenant; (v) contracting with power supplier(s); or (vi) Use of the Premises by Tenant.

 

6.02. (a) Tenant shall arrange for and pay for all electricity and natural gas consumed at the Premises and Tenant will open an account with the provider and pay bills for usage on the Premises directly.

 

(b) In the event that the Expiration Date or other termination of this Lease shall be a day other than the last day of a year used for calculations hereunder, then in such event, in applying the provisions of this Article with respect to any year in which such event shall have occurred, appropriate adjustments shall be made to reflect the occurrence of such event on a basis consistent with the principles underlying the provisions of this Article taking into consideration the portion of such year which shall have elapsed prior to the date of such event.

 

(c) Payments shall be made pursuant to this Article notwithstanding the fact that a utility statement is furnished to Tenant after the expiration of the Term of this Lease.

 

6.03. Landlord shall not be liable in any way (other than the willful misconduct or gross negligence of Landlord, its employees or agents) to Tenant for any failure or defect in supply or character of electric current or natural gas furnished to the Premises.

 

6.04. Landlord will reserve for Tenant potable water for [***] employees, and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, potable water and sanitary waste capacity (including the water itself) based upon [***] employees (whether contract employees or direct hires) at a rate of [***].

 

In the event that the Tenant desires additional potable water reservation for more than [***] employees, Landlord will determine at its sole discretion if the utility is available.

 

Landlord reserves the right to audit, at any time, the number of employees employed onsite by Tenant as well as the use of all potable water used by the Tenant to ensure usage is for potable purposes only. If Tenant has more than [***] employees, or uses the water for any other use, Tenant will be in material breach of the lease. Tenant may not discharge or blowdown any Water from Tenant’s facilities at any time.

 

Potable Water and Sanitary Waste Reservation Rent will increase annually by CPI as defined in Section 1.06(b). Potable water and sanitary wastes capacity supplied under this Section 6.04 shall be explicitly for domestic uses only and may not be used for any process purpose or process consumption. Tenant shall have access to potable water and sanitary waste capacity on the Land or in the Buildings on an “as is, where is” basis.

 

 

6.05. Landlord will reserve for Tenant untreated surface water of 100 Gallons Per Minute at a rate of [***] and Tenant shall pay for as part of the rental payment, as a condition and incident of tenancy, based upon reserved capacity as defined in this section 6.05.

 

Reservation Rent will increase annually by CPI as defined in Section 1.06(b). Tenant shall have access to Untreated Surface Water on the Land or in the Buildings on an “as is, where is” basis only. Tenant will be responsible for any additional treatment or delivery to Tenant’s facilities. Any usage in excess of the reserved amount on a monthly basis will be billed at ten times the reserved rate. The Parties agree that the additional amount charged for the excess usage is not a penalty but liquidated damages for the unanticipated costs and adverse conditions imposed upon Landlord by the excess demand placed by the excess usage upon the facilities of Landlord, short-term and long-term, including physical, inchoate, administrative, operational, and transactional costs or other adverse impacts on Landlord. Tenant may not discharge or blowdown any Water from Tenant’s facilities at any time.

 

6.06. Landlord will reserve for Tenant, and Tenant shall pay for as part of the Fixed Rent payment, as a condition and incident of tenancy, Tenant’s Share of the Total Electric Capacity utilizing the Landlord’s PUN Equipment electric delivery facilities which are interconnected to the local electric transmission and distribution service provider (but not including the electricity itself, which Tenant shall separately purchase as provided in Section 6.02(a)). Tenant shall have access to the Premises and Tenant’s Share of the Total Electric Capacity on the Land or in the Buildings on an “as is, where is” basis only. Tenant will be responsible for any additional electric delivery capacity necessary to deliver electricity to Tenant’s facilities in excess of the Tenant’s Share of Total Electric Capacity over the Landlord’s PUN Equipment. As set forth in Section 6.12 of this Lease, Tenant shall be responsible for the operation, maintenance, repair, and replacement of the PUN electric delivery facilities set forth in Exhibit A-3. Tenant acknowledges and agrees that: the Fixed Rent would be significantly higher but for Section 6.12; the electric power consumption associated with Tenant’s operations involves unusual circumstances, usage, or load characteristics; and it is prudent for the Parties to have Tenant accept such responsibility under Section 6.12 because of Tenant’s specialized knowledge of the power consumption associated with Tenant’s operations.

 

6.07. (a) Landlord does not guarantee or warrant that Landlord Capacity will not fail or be interrupted or that the quality of same will not vary or fluctuate. Tenant is responsible for installing and maintaining such devices and equipment as may be necessary or reasonable to protect Tenant’s equipment or processes during abnormal events regarding Landlord Capacity.

 

(b) Landlord shall make reasonable efforts to re-establish Landlord Capacity with minimum of delay when failures, interruptions, or quality variations or fluctuations occur. However, Landlord shall not be liable for direct or consequential damages resulting from failures, interruptions, or quality variations or fluctuations occasioned by causes reasonably beyond the control of Landlord, including, but not limited to, acts of God or public enemy, sabotage and/or vandalism, accidents, fire, explosion, labor troubles, strikes, order of any court or judge granted in any bona fide adverse legal proceedings or action, or any order of any commission, tribunal or governmental authority having jurisdiction or, without limitation by the preceding enumeration, any other act or thing due to causes beyond Landlord’s reasonable control, or to the negligence of Landlord, its employees, or contractors, whether sole or joint and concurrent with the negligence of Tenant or third parties, except to the extent the damages are occasioned by the gross negligence or willful misconduct of Landlord.

 

 

(c) For claims resulting from failures, interruptions or quality variations or fluctuations occasioned in whole or in part by gross negligence or willful misconduct of Landlord or it agents, Landlord shall be liable only for that portion of the damages arising from personal injury, death of persons, or costs of necessary repairs to or replacement of equipment proximately caused by the grossly negligent acts of Landlord or it agents. Landlord shall not be liable in any event for consequential damage.

 

(d) Landlord may, without notice (however, Landlord will attempt to provide as much notice as reasonably practical in the circumstances to Tenant) and without liability to Tenant, interrupt Landlord Capacity to Tenant when in Landlord’s sole judgement such interruption: (i) will prevent or alleviate an emergency threatening to disrupt the operation of Landlord’s facilities that are utilized in the provision of the Landlord Capacity; or (ii) will lessen or remove possible danger to life or property; or (iii) will aid in the restoration of Landlord Capacity; or (iv) it is required to make necessary repairs to or changes in Landlord’s facilities that are utilized in the provision of the Landlord Capacity. In the event of a nonemergency situation, Landlord will provide Tenant with at least 5 calendar days’ notice prior to interrupting Landlord Capacity to Tenant if such disturbance is within Landlord’s control.

 

(e) Tenant shall install, operate, and maintain such protective equipment and devices, and implement such procedures and practices, as may be reasonable or necessary to protect Tenant’s property, equipment, processes, or activities during occurrences of abnormal Landlord Capacity. Tenant shall maintain such equipment and devices in good operating condition, and otherwise install, operate, and maintain Tenant’s property and equipment in an entirely safe and reasonably efficient manner and in full compliance with applicable law. Landlord neither assumes nor accepts any duty or responsibility for the inspection of the Tenant’s apparatus, machinery, equipment, or operations and shall not be responsible therefor, nor does Landlord accept any liability due to the initiation or continuation of Landlord Capacity to Tenant.

 

(f) Tenant assumes full responsibility for the Landlord Capacity received and used by Tenant upon the Premises, and will protect, indemnify, and save Landlord harmless from all claims for injury, including death, or damage to persons or property occurring upon the Premises, even if due to Landlord’s negligence, whether sole or joint and concurrent with the negligence of Tenant or third parties, occasioned by such Landlord Capacity, except to the extent of (x) claims resulting from the gross negligence or willful misconduct of Landlord or (y) claims caused by another tenant of Landlord or any persons under the control of such tenant.

 

 

(g) When an interruption in Landlord Capacity occurs, it shall be the responsibility of the Tenant to determine that the interruption is not caused by a fault or defect in Tenant’s property, equipment, processes, or activities before notifying Landlord of the interruption.

 

(h) Landlord Capacity will be measured as necessary by meters or monitoring equipment selected, installed, tested, owned, operated, and maintained by Landlord. Tenant shall not take any actions that affect the accuracy of such equipment during the Term of this Lease. Landlord will give reasonable advance notice of all tests, inspections, maintenance, or alteration of any metering and monitoring equipment to Tenant so that representatives of Tenant may be present. Meter and monitoring records will be provided to Tenant upon its reasonable request. Tenant may install check meters with regard to the Landlord Capacity as long as such check meter installation and operation does not interfere with or affect the accuracy of Landlord’s metering or monitoring equipment. Tenant will give reasonable advance notice of all tests, inspections, maintenance, or alteration of any check metering equipment to Landlord so that representatives of Landlord may be present. Check meter records will be provided to Landlord upon its reasonable request.

 

6.08. Landlord or its successor(s) reserves the right to establish a Municipal Utility District (“MUD”), Municipal Management District (“MMD”), or equivalent which would include the facilities and capacity subject to this Lease, provided that such MUD, MMD, or its equivalent: (i) will not relieve Landlord from its obligation to provide the services under Sections 6.04, 6.05, and/or 6.06 unless the facilities and capacity therefor are owned and operated by such MUD, MMD, or its equivalent; (ii) is not expected to materially increase Tenant’s overall costs for the type of services under Sections 6.04, 6.05, and/or 6.06 except to the extent allowed or required by applicable law; or (iii) is not expected to materially affect the nature, quality, or reliability of the types of services under Sections 6.04, 6.05, and/or 6.06 except to the extent allowed or required by applicable law. Tenant agrees that, if such a MUD, MMD, or equivalent is created Tenant hereby agrees to take service from such MUD, MMD, or equivalent. Tenant hereby represents, warrants, covenants, and agrees it will exercise any election, vote, or other consent, and will take all actions necessary or appropriate, for the establishment of such a MUD, MMD, or equivalent. The Parties recognize and agree that such a MUD, MMD, or equivalent, is allowed to and may charge rates, fares, tolls, charges, rents, or other fees or compensation for the facilities and capacity and the Parties’ use of the facilities and capacity that are different in structure or design from the costs incurred by Tenant under this Agreement. Sections 6.04, 6.05, 6.06, and/or 6.07 of this Lease will terminate on the date of termination specified in notice by Landlord to Tenant after the establishment of such a MUD, MMD, or equivalent. Notwithstanding the foregoing, and without otherwise limiting the foregoing with respect to services under Sections 6.04 and 6.05, the Parties do not expect electric delivery capacity under Section 6.06 to be included as part of the MUD, MMD, or equivalent but the Parties recognize and agree that it may be appropriate or advantageous to do so, and therefore inclusion of said electric delivery capacity as part of the MUD, MMD, or equivalent may occur subject to the consent of Tenant, after review of all applicable documentation delivered by Landlord, such consent not to be unreasonably withheld.

 

 

6.09. In the event that regulatory requirements become applicable to the Landlord Capacity which, in the sole discretion of Landlord, require an amendment or amendments to this Lease in order to conform the terms and conditions of this Lease to such regulatory requirements (including but not limited to those necessary such that Landlord will not become regulated as an public utility), Landlord shall provide to Tenant an amendment or amendments limited to that which is reasonably necessary to conform the terms and conditions of this Lease to such regulatory requirements, and Tenant hereby represents, warrants, covenants, and agrees it will promptly execute and deliver to Landlord such amendment or amendments when so requested by Landlord. The Parties will cooperate and work together to seek to reasonably minimize the impact of the regulatory requirements with respect to the Parties’ operations if an amendment is required in accordance with this section. Nothing in this Section 6.09 shall be construed to limit or prevent the Parties from mutually agreeing to include in such amendment or amendments terms and conditions that are in addition to that which is necessary to conform the terms and conditions of this Lease to such regulatory requirements.

 

6.10. Tenant understands that Landlord is not a public utility, that Landlord does not provide utilities to the public, and that Landlord is legally allowed to provide certain utilities to its tenants but only in connection with and incidental to the lease of the Premises, as long as such services are not resold to or used by others. Both Parties agree that as a result of this Lease Landlord does not provide utilities to the public, and Landlord Capacity is only being made available pursuant to this Lease as an incident thereof. The Landlord Capacity may not be resold to or used by others, and Tenant hereby represents, warrants, covenants, and agrees it will not resell the Landlord Capacity or allow use of Landlord Capacity by others. Tenant further represents, warrants, covenants, and agrees that the reservation rents for the Landlord Capacity provided under Section 6.04 is included in the total rent payable based upon the capacity provided, and are not separate or additional service fees for that which is actually used by Tenant.

 

6.11. RESERVED

 

6.12. Subsequent to the Preliminary Period, Tenant will be responsible for operating, maintaining, repairing, and replacing any of the electric delivery facilities designated for Tenant’s exclusive use as set forth in Exhibit A-3, including the cost thereof, on the following terms and conditions:

 

(a) Tenant shall perform such operations, maintenance, repairs, and replacements, including preventative maintenance, in a safe, prudent, professional, and workmanlike manner, and will maintain such electric delivery facilities in a safe, adequate, efficient, and reasonable condition, in accordance with any applicable safety codes and with “Good Electric Utility Practice.” Good Electric Utility Practice shall mean, for purposes of this Section 6.12(a), any of the practices, methods, and acts engaged in or approved by a significant portion of the electric utility industry in the United States of America during the relevant time period, or any of the practices, methods, and acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety, and expedition. Good Electric Utility Practice is not intended to be limited to the optimum practice, method, or act, to the exclusion of all others, but rather is intended to include acceptable practices, methods, and acts generally accepted in the region. Tenant shall only utilize employees or outside contractors with demonstrable experience operating, maintaining, repairing, and replacing electric delivery facilities. In connection with such employees or outside contractors, Tenant agrees to comply with all federal, state and local laws, ordinances, resolutions, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability or age.

 

 

(b) Tenant shall bear in full the cost of such operations, maintenance, repairs, and replacements, including but not limited to preventative maintenance, rental of equipment, insurance, taxes, personnel or contractors required to supervise, implement, and accomplish all of the foregoing. Such operations, maintenance, repairs, and replacements shall not give rise to any ownership rights by Tenant in the electric delivery facilities, and Tenant hereby expressly assigns to Landlord any and all right, title and interest of Tenant now or hereafter arising in or to any material, supplies, and equipment utilized in operating, maintaining, repairing, and replacing any of such electric delivery facilities. Tenant will indemnify, hold harmless and defend Landlord, its affiliates, directors, officers, partners, agents, and employees from and against any and all loss, liability, damage, cost or expense, including damage and liability for bodily injury to or death of persons or damage to property of persons caused by Tenant, an affiliate of Tenant, or any representative of Tenant during its operating, maintaining, repairing, and replacing any of such electric delivery facilities. Tenant shall maintain and preserve during the Term of this Lease all material documentation regarding its operating, maintaining, repairing, and replacing any of such electric delivery facilities, and make that documentation available for Landlord’s inspection upon Landlord’s request.

 

6.13. Landlord’s Step-In-Rights. Tenant acknowledges and recognizes that its failure to comply with the provisions of Section 6.12 can have significant adverse effects on Landlord and other tenants of Landlord. In addition to any remedies provided in this Lease, including but not limited to Article 25, or other remedies provided in law or equity or by statute, the following provisions shall apply with regard to any failure of Tenant to comply with the provisions of Section 6.12:

 

(a) Upon the occurrence of a failure of Tenant to comply with the provisions in Section 6.12 (such failure being a “Section 6.12 Breach”), then immediately upon Tenant becoming or being made aware of the occurrence of a Section 6.12 Breach ( if Landlord is aware of such breach, Landlord will attempt to provide as much notice as reasonably practical in the circumstances to Tenant), Tenant shall attempt in good faith to cure such failure immediately if necessary to allow continued delivery of electricity by the electric delivery facilities set forth in Exhibit A-3 and as promptly as possible in all other circumstances.

 

(b) Notwithstanding anything to the contrary contained in this Lease, (i) if an emergency situation occurs Landlord shall have the right, but not the obligation, to immediately take any action or actions that Landlord, in its sole and absolute discretion, believes is necessary as a result of Tenant’s failure relating to operating, maintaining, repairing, and replacing any of the electric delivery facilities set forth in Exhibit A-3, or (ii) in a nonemergency situation, if Tenant ceases exercising good faith efforts to cure such failure or, in any event fails to cure such failure promptly (not to exceed thirty (30) days), Landlord, in its sole and absolute discretion, may take any action that Landlord believes is necessary as a result of Tenant’s failure (such rights, the “Step-In Rights”).

 

 

(c) Upon exercise of the Step-In Rights, Tenant will be responsible for the costs of the action or actions taken by Landlord. Tenant shall reimburse Landlord for such costs within fourteen (14) days after receiving an invoice from Landlord the amount of such costs along with reasonably detailed supporting documentation with respect to such costs. The Parties agree that the costs for which Tenant shall reimburse Landlord include all materials, supplies, equipment (including but not limited to switches, circuit control devices, wires, transformers, meters and metering equipment, protective equipment, distribution lines, and distribution poles), contractor’s fees and charges, and other outside services incurred by Landlord in taking such action or actions, with all of the foregoing multiplied by 115% to compensate Landlord, as liquidated damages and not as a penalty, for Landlord’s payroll and payroll related expenses, overhead, engineering, administrative, and other internal costs incurred by Landlord in association with the action or actions taken in the exercise of the Step-In Rights.

 

(d) Upon exercise of the Step-In Rights, Tenant will remain be responsible for, and will not be relieved of its obligation for, operating, maintaining, repairing, and replacing any of the electric delivery facilities set forth in Exhibit A-3, including the cost thereof.

 

(e) No Party may enter any agreement that alters, affects or limits the Step-In Rights.

 

(f) In the event that Landlord exercises its Step-In Rights as a result of the occurrence of a default, any such Step-In Rights will expire only upon the sole discretion of Landlord.

 

(g) During non-emergency situations, the parties will work together to seek to reasonably minimize the dispute and disruption of the Landlord’s and Tenant’s operations during such step-in rights as described herein.

 

6.

Article 10.02 (vi) is hereby deleted and replaced with the following:

 

All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant’s alterations, additions, improvements, fixtures, inventory, equipment and other business personal property situated in or about the Premises as well as the Buildings, structure and real property known as the Premises, including but not limited to the items included in Attachment 1, which are leased to Tenant and included in the PUN, to the functional value. The Landlord and the Tenant shall each be named as the loss payees as their interests apply. The Tenant is responsible for payment of the premium.

 

7.

Exhibit A-1 (Description of the Land) is hereby deleted in its entirety and is replaced with Exhibit A-1 hereto.

 

8.

Exhibit A-2 (Description of Buildings) is hereby deleted in its entirety and is replaced with Exhibit A-2 hereto.

 

 

9.

Exhibit A-3 (Private User Network) is hereby deleted in its entirety and is replaced with Exhibit A-3 hereto.

 

10.

Exhibit A-4 (Common Areas) is hereby deleted in its entirety and is replaced with Exhibit A-4 hereto.

 

11.

Exhibit A-5 (the “Private User Network Single Line Diagram”) is hereby added to the Premises Lease.

 

12.

Landlord agrees to transfer to Tenant and make a part of this Lease the control of the ONCOR Number 3 138kV Switchyard Feed and Meter effective on the later of 2021 May 01 or the date ONCOR transfers registration of the Number 3 Switchyard Feed Metering to Tenant, subject to the conditions and requirements provided in this Third Amendment. Notwithstanding any other provision in the Lease, Tenant cannot assign or transfer the ONCOR Number 3 138kV Switchyard Feed and Meter or any of its rights under this Lease regarding the ONCOR Number 3 138kV Switchyard Feed and Meter to any other person for any reason, and any such assignment or transfer will be void. The transfer of such control is subject to the Landlord’s right of reversion and other rights in this Third Amendment as stated below.

 

13.

Subject to Landlord’s right of reversion stated below, Landlord hereby leases Tenant its Private User Network (“PUN”) power circuit and the associated downstream components as more particularly described in Exhibit A-3 .. Upon termination of the Lease, for any reason at any time, Tenant’s interest and ownership in the PUN will revert to Landlord. Tenant may not assign its ownership of the PUN at any time to any other entity. All improvements or replacements in any PUN components identified in this Section 13 by Tenant and funded by Tenant, will be owned by Tenant during the term of the Lease and will be owned exclusively by Landlord upon termination of the Lease.

 

14.

The Tenant’s use of the Premises entitles Tenant to a prorated share of electric energy service from the Landlord’s PUN delivery capacity (the “Tenant’s Share of Total Electric Capacity”) of not to exceed [***] on the 1470 FEED and not to exceed [***] through the ONCOR Number 3 138kV Switchyard Feed and Meter. Any service reduction by Oncor, will result in a corresponding percentage reduction in Tenant’s delivery capacities.

 

15.

Tenant is solely responsible for obtaining electrical power through a Retail Electric Provider (“REP”) for the ONCOR Number 3 138kV Switchyard Feed and Meter.

 

16.

Tenant is not an electric utility and is not a REP. Landlord has certain electricity consuming facilities on the portion of the PUN interconnected to ONCOR Number 3 138kV Switchyard Feed and Meter. The Landlord consuming facilities will be operated using a limited portion of the electricity delivered to ONCOR Number 3 138kV Switchyard Feed and Meter, which is [***] megawatt hours of electrical power per year consumed on an average of approximately 2 megawatts per hour. Tenant will allow such Landlord consuming facilities to utilize the electricity which Tenant purchases from a REP through ONCOR Number 3 138kV Switchyard Feed and Meter. Tenant acknowledges that this power will be used by Landlord through Landlord’s 3850 Breaker circuit during the entire term of the Lease, including all Lease term extensions. Landlord shall release Tenant from any issues to the extent arising out of the Landlord’s ultimate use of the power.

 

 

17.

Tenant will not sell such electricity to Landlord, and Tenant will not charge Landlord anything for such electricity. Landlord will not purchase such electricity from Tenant, and will not pay any compensation or provide any other consideration to Tenant for such electricity. Tenant represents, warrants, acknowledges, and agrees: that it is allowing the free use of such electricity by Landlord in order for Tenant to not be an electric utility or an REP; that it has not received and will not receive any compensation or consideration for the free use of such electricity by Landlord; that the free use of such electricity by Landlord is compensation or other consideration which Tenant is and will be providing to Landlord in lieu of additional rent; and that the Fixed Rent would be higher but for this Third Amendment.

 

18.

To the extent that Tenant for accounting and/or reporting purposes must separately account for the amount of such electricity utilized by Landlord, it will treat it as rental expense or lease expense. Landlord or Landlord’s designee will measure the amount of such electricity utilized by Landlord by meters or monitoring equipment selected, installed, tested, owned, operated, and maintained by Landlord or Landlord’s designee. Tenant shall not take any actions that affect the accuracy of such equipment during the Term of this Lease. Landlord will give reasonable advance notice of all tests, inspections, maintenance, or alteration of any metering and monitoring equipment to Tenant so that representatives of Tenant may be present. Meter and monitoring records will be provided to Tenant upon its reasonable request.

 

19.

In connection with this Third Amendment, Tenant will comply with the following terms and conditions: (i) with regard to the executed and effective agreement or contract, including any amendments or modifications, for the purchase by Tenant of electricity from a REP through ONCOR Number 3 138kV Switchyard Feed and Meter, Tenant will provide immediately to Landlord, by email to the Director of Asset Management [***] and to the Director of Global Real Estate [***] a copy of any notices or other communications Tenant receives from that REP regarding past due amounts, defaults, events of default, termination or suspension or discontinuance of the agreement or contract, termination or suspension or discontinuance or disconnection of service, or any other matter that would adversely affect the ability of such Landlord consuming facilities to utilize electricity which Tenant purchases from that REP; (ii) if there is or will be a termination or suspension or discontinuance or disconnection of service without termination or suspension or discontinuance of that REP agreement or contract, Tenant will promptly and expeditiously surrender or abandon that REP agreement or contract so that Landlord can arrange with a REP to take service at ONCOR Number 3 138kV Switchyard Feed and Meter, and to the extent necessary Tenant hereby consents in advance to any transfer of retail electric service at ONCOR Number 3 138kV Switchyard Feed and Meter from Tenant to Landlord if such transfer is requested by Landlord to a REP and the REP requires evidence of Tenant’s consent thereto; (iii) Tenant will use commercially reasonable efforts to have in that REP agreement or contract the right to assign it to any landlord for its premises served under that REP agreement or contract (including by amendment to an existing REP agreement or contract and with regard to any new or renewed REP agreement or contract); (iv) Tenant will use commercially reasonable efforts to have in that REP agreement or contract the right to provide a copy of it to any landlord for its premises served under that REP agreement or contract (including by amendment to an existing REP agreement or contract and with regard to any new or renewed REP agreement or contract), and if allowed by such REP contract or agreement Tenant will provide to Landlord a copy of it including any amendments or modifications thereto; and (v) Tenant will cooperate as expeditiously as possible with Landlord, and to the extent necessary with that REP and/or Oncor, to prevent any interruption of the ability of such Landlord consuming facilities to utilize the electricity which Tenant purchases from that REP ONCOR Number 3 138kV Switchyard Feed and Meter or is otherwise delivered to ONCOR Number 3 138kV Switchyard Feed and Meter.

 

 

20.

Article 39.01 of the Lease will be revised to delete reference to Exhibit A-3 and replace with Exhibit A-4 (herein sometimes referred to as “Common Areas.”)

 

21.

Except as specifically amended herein, all other terms and conditions of the Lease remain in full force and effect. This Third Amendment is binding upon the successors and assigns of the respective parties.

 

22.

This Third Amendment may be executed in counterparts, each of which shall be deemed to be an original, but which together shall be deemed to constitute a single document.

 

Signature page to follow.

 

 

IN WITNESS WHEREOF, the parties have caused this Third Amendment to be executed by their duly authorized officers, effective as of the date and year first above written.

 

 

Landlord:

 

	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Title:	Vice President
	Date:	May 11th 2021

 

Tenant:

 

	Dory Creek LLC
	By:	/s/ Wenguang Wang
	Title:
	Date:	2021/5/7

 

 

Exhibit A-1-Description of the Land

 

[***]

 

 

Exhibit A-2-Description of the Buiildings

 

[***]

 

 

EXHIBIT A-3

 

[***]

 

 

EXHIBIT A-4-Common Areas

 

[***]

  

 

Exhibit A-5-Private User Network Single Line Diagram

 

[***]

 

 

Exhibit 10.9

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

FOURTH AMENDMENT TO LEASE

 

THIS FOURTH AMENDMENT TO LEASE (“Fourth Amendment”), is effective on May 11, 2021 (“Effective Date”) by and between Alcoa USA Corp. (“Landlord”), and Dory Creek LLC a wholly-owned subsidiary of Bitmain Inc. (“Tenant”), each a “Party” and collectively “Parties”.

 

WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated June 6, 2018, as amended by the First Amendment of Lease dated October 18, 2018, by the Second Amendment of Lease dated May 1, 2019 and the Third Amendment of Lease dated May 11, 2021 (together called the “Lease”), whereby Tenant leased certain real estate and associated facilities owned by Landlord;

 

WHEREAS, Oncor Electric Delivery Company LLC (“Oncor”) is interconnected with and provides electric delivery service to the ONCOR Number 3 138kV Switchyard Feed and Meter;

 

WHEREAS, Landlord and Tenant wish to amend certain terms of the Lease.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree to modify the Lease as follows:

 

1.

Exhibit A-2 (Description of Buildings) is hereby deleted in its entirety and is replaced with Exhibit A-2 hereto.

 

2.

Exhibit A-3 (Private User Network) is hereby deleted in its entirety and is replaced with Exhibit A-3 hereto.

 

3.

Except as specifically amended herein, all other terms and conditions of the Lease remain in full force and effect. This Fourth Amendment is binding upon the successors and assigns of the respective parties.

 

4.

This Fourth Amendment may be executed in counterparts, each of which shall be deemed to be an original, but which together shall be deemed to constitute a single document.

 

Signature page to follow.

 

 

IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be executed by their duly authorized officers, effective as of the date and year first above written.

 

Landlord:

 

	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Title:	Vice President
	Date:	6/16/2021

 

Tenant:

 

	Dory Creek LLC
	By:	/s/ Wenguang Wang
	Title:	Head of Global Mining Farms
	Date:	06/11/2021

 

 

EXHIBIT  A-2

 

Description  of  the  Buildings

 

[***]

 

 

EXHIBIT  A-3

 

PRIVATE  USER  NETWORK

 

[***]

 

 

Illustration  F

 

[***]

 

 

Exhibit 10.10

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

FIFTH AMENDMENT TO LEASE

 

THIS FIFTH AMENDMENT TO LEASE (“Fifth Amendment”) is effective on August 30, 2021 (“Effective Date”) by and between Alcoa USA Corp. (“Landlord”), and Dory Creek LLC a wholly-owned subsidiary of Bitdeer Inc. (formerly known as Bitmain Inc) (“Tenant”), each a “Party” and collectively “Parties”.

 

WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated June 6, 2018, as amended by the First Amendment of Lease dated October 18, 2018, by the Second Amendment of Lease dated May 1, 2019, by the Third Amendment of Lease dated May 11, 2021, and by the Fourth Amendment of Lease dated effective May 11, 2021 (together called the “Lease”), whereby Tenant leased certain real estate and associated facilities owned by Landlord;

 

WHEREAS, Oncor Electric Delivery Company LLC (“Oncor”) is interconnected with and provides electric delivery service for use by Tenant;

 

WHEREAS, based upon recent Public Utility Commission and ERCOT guidelines, Oncor has imposed electric load limitations on the Sandow Substations located on Landlord’s property, resulting in a reduction of electric service that can be delivered by Oncor to Tenant through existing Oncor equipment, which electric load limitations will continue until new equipment is installed by Oncor, including capacitor banks, reactor banks, a new 345/138 Super Substation, and other equipment, or alternate equipment, as deemed necessary by Oncor (the “New Equipment”);

 

WHEREAS, in order to install the New Equipment, Oncor requires Landlord, as the landowner and owner of the Private User Network (“PUN”), and as landlord under the Lease, to execute a Facilities Expansion Agreement (“FEA”), which agreement requires the electric user to post a refundable security deposit;

 

WHEREAS, Section 14 of the May 11, 2021, Third Amendment of the Lease provides as follows:

 

The Tenant’s use of the Premises entitles Tenant to a prorated share of electric energy service from the Landord’s PUN delivery capacity (the “Tenant’s Share of Total Electric Capacity”) of not to exceed [***] on the 1470 FEED and not to exceed [***] through the Oncor Number 3 138kV Switchyard Feed and Meter. Any service reduction by Oncor will result in a corresponding percentage reduction in Tenant’s delivery capacities. (Emphasis added.)

 

WHEREAS, Landlord and Tenant have determined that it is mutually beneficial for Landlord to execute the FEA as proposed by Oncor in order to mitigate the reductions in the electric service provided to Tenant by Oncor and to set out the target dates relating to the construction of Oncor’s Required Level of Operation Facilities (as defined in the FEA) and the target dates for the Required Level of Operation (as defined in the FEA);

 

 

WHEREAS, Tenant has agreed to fund the refundable security deposit required by Oncor under the FEA so that Landlord may enter into the FEA, and Landlord has agreed that Tenant will be entitled to the refund of the security deposit if, as or when the conditions for refund are satisfied in accordance with the provisions of the FEA.

 

WHEREAS, Landlord and Tenant wish to enter into this Fifth Amendment of the Lease in order to address the matters stated above.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.

Funding of the Refundable Security Deposit required under the FEA. Tenant will provide the funds required under the FEA as a refundable security deposit, in the amount of $[***] Such funds will be paid by wire transfer to Landlord to be paid to Oncor under the FEA, or may be paid directly by Tenant to Oncor by wire transfer, if agreed upon by Oncor and Landlord.

 

2.

Refund of the Security Deposit. The FEA provides a mechanism for a refund of the security deposit upon the satisfaction of certain requirements provided under the FEA. Tenant, and not Landlord, will be entitled to any refund of the security deposit paid under the FEA. Landlord and Tenant agree that, while Landlord will cooperate reasonably to facilitate the refund of the security deposit, Tenant shall be responsible for satisfaction of the requirements under the FEA necessary for the refund of all or part of the security deposit. If agreed upon by Oncor and Landlord, any refund of the security deposit will be paid directly to Tenant. If the refund of the security deposit is paid to Landlord, Landlord will in turn pay the amount of the refund to Tenant as promptly as possible, but no later than 30 days after receipt of the refund by Landlord.

 

3.

Specific Conditions. The following conditions are acknowledged and agreed by the Parties:

 

a.

As of the Effective Date, Tenant’s capacity is limited to [***] on circuit 1470.

 

b.

As of the Effective Date, Tenant’s capacity is limited to [***] on the Oncor Number Three Tie Circuit.

 

c.

At such time that Oncor provides Landlord with official notification that the Required Level of Operation No. 1 Facilities (as defined in the FEA) have been constructed in accordance with the FEA, and provided that such construction of the Required Level of Operation No. 1 Facilities (as defined in the FEA) is completed by June 1, 2022, Tenant’s load capacity limit will be increased to no more than [***] by June 30, 2022 on the Oncor Number Three Tie Circuit until such time as the Required Level of Operation No. 2 Facilities (as defined in the FEA) are installed.

 

 

d.

At such time that Oncor provides Landlord with official notification that the Required Level of Operation No. 2 Facilities (as defined in the FEA) have been constructed in accordance with the FEA, and provided that such construction of the Required Level of Operation No. 2 Facilities (as defined in the FEA) is completed by December 31, 2022, Tenant may pursue a load ramp above [***] in accordance with the five-year load forecast provided by Tenant to Landlord in May 2021 to ramp up the load capacity on the Oncor Number Three Tie Circuit to [***].

 

e.

At such time that Oncor provides Landlord with official notification that the aggregated load from all users on the Sandow Switch Substation has reached [***] Landlord will be entitled to seek on behalf of Tenant, a refund from Oncor of $[***] of the security deposit funds.

 

f.

At such time that Oncor gives Landlord official notification that the aggregated load from all users on Sandow Switch Substation has reached [***] Landlord will be entitled to seek on behalf of Tenant, a refund from Oncor of $[***] in security deposit funds.

 

g.

Effective September 3, 2021, and continuing until a new Oncor Substation is commissioned, Tenant must report to Landlord in writing on a weekly basis: (1) Tenant’s average weekly load on circuit 1470, (2) Tenant’s average weekly load on the Oncor Number Three Tie Circuit, (3) Tenant’s forecasted average weekly load on circuit 1470 for the upcoming 14 day period, and (4) Tenant’s forecasted average weekly load on the Oncor Number Three Tie Circuit for the upcoming 14 day period.

 

4.

Accommodation by Landlord; No Representations by Landlord. The FEA and Fifth Amendment are being executed by Landlord strictly as an accommodation to Tenant to assist in mitigating the reductions in the electric service provided to Tenant by Oncor. Tenant agrees to reimburse Landlord for any costs incurred by Landlord arising out of the FEA. The execution of the FEA is not a contractual obligation of Landlord pursuant to the Lease or otherwise. Landlord makes no representations or warranties of any kind concerning the (i) New Equipment to be installed by Oncor, (ii) the increase in the availability of electric service capacity to Tenant as a result of the New Equipment or the FEA, (iii) the timing of the installation by Oncor of the New Equipment, or (iv) the ability of Tenant to meet the criteria under the FEA for a refund of all or any portion of the security deposit funded by Tenant. Tenant agrees to indemnify and hold Landlord harmless from any costs or damages incurred by Landlord as a result of or related to this Fifth Amendment and the execution and implementation of the FEA (including, but not limited to, the failure of Tenant to meet the Required Level of Operation (as defined in the FEA) by the Required Level of Operation Dates (as defined in the FEA) on behalf of the Landlord).

 

Signature page to follow

 

 

IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to be executed by their duly authorized officers, effective as of the date and year first above written.

 

Landlord:
	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Title:	Vice President
	Date:	9/15/2021
Tenant:
	Dory Creek LLC
	By:	/s/ Wenguang Wang
	Title:	Head of Global Mining Datacenter
	Date:	2021/9/15

 

 

 

Exhibit 10.11

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

SIXTH AMENDMENT TO LEASE

 

THIS SIXTH AMENDMENT TO LEASE (“Sixth Amendment”), is effective on October 25, 2021 (“Effective Date”) by and between Alcoa USA Corp. (“Landlord”), and Dory Creek LLC a wholly-owned subsidiary of Bitdeer Inc. (formerly known as Bitmain Inc) (“Tenant”), each a “Party” and collectively “Parties.”

 

WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement dated June 6, 2018, as amended by the First Amendment of Lease dated October 18, 2018, by the Second Amendment of Lease dated May 1, 2019, by the Third Amendment of Lease dated May 11, 2021, by the Fourth Amendment to the Lease dated May 11, 2021, and by the Fifth Amendment to Lease dated September 15, 2021 (together called the “Lease”), whereby Tenant leased certain real estate and associated facilities owned by Landlord;

 

WHEREAS, Oncor Electric Delivery Company LLC (“Oncor”) is interconnected with and provides electric delivery service to the ONCOR Number 3 138kV Switchyard Feed and Meter;

 

WHEREAS, Landlord and Tenant wish to amend certain terms of the Lease.

 

NOW THEREFORE, in consideration of the mutual promises herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree to modify the Lease as follows:

 

	1.	The Parties agree to add to the leased Premises: Buildings 27, 27F, 46, 145, and 145A, and the parking lot as shown on the attached Exhibit A-1. Landlord will have access to all land and buildings being added to the Premises in accordance with this Section to finalize the demolition project, including but not limited to removing any and all equipment, fixtures and appurtenances, attached and not attached to the buildings. Tenant will cooperate with Landlord with respect to Landlord’s access and Landlord’s demolition activities.

2.

The Parties agree to amend Section 1.06 (a) as follows: The Fixed Rent will increase by $[***] per month for a new monthly Fixed Rent total of $[***] and an annual Fixed Rent of $[***] beginning on the Effective Date. The Fixed Rent is subject to the escalation provided in Section 1.06 (b) of the Lease.

 

3.

The Parties agree to remove from the leased Premises: the South Truck Parking and Weight Scale Area, the South Parking Lot, the South Access Walkway and Internal Road, and the Tenant Office Trailer Parking.

 

 

4.

The Tenant must complete the upgrade as depicted in their artist rendering as shown on the attached Exhibit E within 18 months from the Effective Date of this Sixth Amendment.

 

	5.	Tenant acknowledges the two sanitary sewage lift stations servicing Buildings 145 and Building 145A, and the “72 Lift Station” near the intersection of Travis Street and Milam Street are not in working order and not electrically powered. Tenant agrees to complete all necessary work to return all three lift stations and conveyance pipes to service to effectively capture, contain, and transport all generated sanitary wastewater generated to the head of the sanitary wastewater treatment facility. The Tenant shall not place said equipment in service until the Landlord inspects and provides written approval to do so. Once in service, the Tenant will operate and maintain the equipment at their own cost and expense.

6.

The Parties agree to delete Number 2 on Exhibit D attached to the original lease and replace it with the following: Exterior Skin/Side Panel Removal: Removal of wall panels up to existing eaves. Includes all equipment to access both walls and roof hoods. All siding removed from the buildings will be disposed of by Tenant and replaced by siding of the same composition and aesthetics at the end of the lease.

 

	7.	Exhibit A-1 (Description of Premises) is hereby deleted in its entirety and is replaced with Exhibit A-1 attached hereto.

	8.	Exhibit A-2 (Description of Buildings) is hereby deleted in its entirety and is replaced with Exhibit A-2 attached hereto.

	9.	Except as specifically amended herein, all other terms and conditions of the Lease remain in full force and effect. This Sixth Amendment is binding upon the successors and assigns of the respective parties.

10.

This Sixth Amendment may be executed in counterparts, each of which shall be deemed to be an original, but which together shall be deemed to constitute a single document.

 

Signature page to follow.

 

 

IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to be executed by their duly authorized officers, effective as of the date and year first above written.

 

Landlord:
	Alcoa USA Corp.
	By:	/s/ Mark A. Stiffler
	Title:	Vice President
	Date:	10/27/2021
Tenant:
	Dory Creek LLC
	By:	/s/ Wenguang Wang
	Title:	Head of Mining Datacenter
	Date:	2021/10/26

 

 

EXHIBIT A-1

 

[***]

 

 

EXHIBIT  A-2

 

Description  of  the  Buildings

 

[***]

 

 

EXHIBIT  E

 

ARTIST’S DEPICTION OF BUILDING UPGRADE

 

[***]

 

 

Exhibit 10.12

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential. 

 

Land Lease Agreement

 

This Land Lease Agreement (“Agreement”), dated November 15^th, 2019 (“Agreement Date”), is entered between Norway Hash Technologies AS (“Customer”) , a company existing under the laws of Norway with registration number 921254075 and Troll Housing AS (“Troll”) a Norwegian corporation with registration number [***]. Collectively, Customer and Troll may be referred to herein as the “Parties” and each individually as a “Party.”

 

Background

 

Customer has contracted Troll to build a 6MW data center in Frӕna municipality in Norway and want Troll to provide land for the datacenter.

 

THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, the Parties agree as follows:

 

Purpose

 

Troll hereby agrees to lease to Customer land for the Datacenter installation at Klempertåsen in Frӕna municipality for the Customer’s data center of 6MW capacity (“Land”) and Customer agrees pay land rent during the Term of the Agreement. The government permission including verification of Troll’s rightfully disposal of the land covered by the lease is attached as Annex A.

 

Location and specification of Land

 

Location of the Land is at address Klempertåsvegen 1, 6440 Elnesvågen, Norway and is located in two separate areas adjacent to eachother, one datacenter area which contains space for 12 Antbox containers (11 is installed) and two transformer stations with a total capacity of [***], and another area which contains an office space with fiber patch facilities, rack for management servers and network equipment, water, sewage etc, and both spaces are enclosed by fence and gate. The area contains an access road from a public road and parking space.

 

Land Rent

 

The land rent is calculated based on the installed capacity (number of miners installed multiplied with their power consumption) of the datacenter. The unit price of rent is NOK [***]. Example: If miners with a total power consumption are installed in the datacenter with [***], Troll will invoice a land lease of [***] / month (calculated as [***].

 

 

Payment

 

Invoice shall be produced by Troll Housing monthly, the invoice of the first month shall be produced no later than 14 days prior to starting of the period, and payment should be made within 7 days after receipt of the invoice.

 

Payment shall be made in NOK to the following account:

 

Bank Name:	[***]
Bank address:	[***]
Recipient company name:	[***]
Recipient company address:	[***]
IBAN number:	[***]
Swift Code:	[***]

 

Warranties and Representations

 

Troll undertakes that Customer shall lawfully, peacefully and freely hold, occupy, use, operate, and enjoy the Land without disturbance, nuisance, or interference. Troll undertakes that no third party shall have a right or claim to the Land during the Term of this Agreement.

 

Troll warrants and represents that it has obtained all approvals from the government, the provincial/municipal authorities and all other applicable government agencies or bodies, needed for Customer to lawfully enter into this Agreement and to use the Land for the purposes described in this Agreement at all times during the Term of this Agreement.

 

Troll warrants and represents that it is the lawful and sole user of Land during the Term of this Agreement and that there are no encumbrances, mortgages, liens or security interests on the Land other than those created pursuant to this Agreement.

 

Troll warrants and represents that the Site is free from pollution, unexploded ordinances and environmental damage.

 

Signs

 

Customer shall have the right to erect any sign related to its business on the condition that such signs comply with local law.

 

Term

 

Term start December 1^st 2019 and last until December 31^st 2029. The agreement can be renewed within this period.

 

Termination

 

Both parties may terminate this Agreement at any time upon mutual agreement.

 

Customer has the right to terminate this Agreement, upon written notice to Troll, without penalty, under the following circumstances: If Troll has failed to keep the power supply as defined in the Electric Power Supply Agreement between the Parties.

 

Except as aforesaid, the agreement can be terminated by the Customer with one year notice for termination between 2019-2023, starting from the beginning of each month. In case of termination in this period, 12 months of land lease corresponding to the maximum installed capacity at any time (number of miners multiplied with their power consumption) at the time of termination, will be invoiced. If the agreement is terminated between 2024-2029, notice of termination is one month starting from the beginning of each month, and 1 month of land lease will be invoiced.

 

Upon termination, Customer will remove miners. Troll has the first right of refusal to buy the transformers at current market price at the time of termination.

 

Taxes

 

Customer will bear the applicable Value Added Tax (VAT) in connection with the provision of services by Troll under this agreement, computed in accordance with the Norwegian Tax Act. Troll will produce VAT compliant invoices and supporting documents when necessary for the purpose of claiming VAT tax refund by Customer.

 

Troll shall help Customer to apply for VAT refund by providing advice on how to apply for the refund on a bi-monthly or yearly VAT refund program but takes no formal responsibility in the application process and its outcome as this will be governed between Customer and Norwegian tax authority (Skatteetaten). If Customer need external advice such as Auditor or Lawyer assistance, Customer will cover fees for such advice.

 

Any changes in Government fees related to energy delivery, VAT or similar after signature of the contract will lead to an exact similar adjustment of price invoiced to Customer.

 

Confidentiality.

 

The Receiving Party shall: (a) hold the Disclosing Party’s Confidential Information in strict confidence and avoid the disclosure thereof to any third party by using the same degree of care as it uses to avoid the unauthorized use or disclosure of its own Confidential Information of a similar nature, but not less than reasonable care; and (b) not use the Disclosing Party’s Confidential Information for any purpose except as contemplated under this Agreement. The Receiving Party shall restrict the possession and use of the Disclosing Party’s Confidential Information to its personnel who have a need to know, and are bound by confidentiality obligations no less stringent than those contained herein. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required by applicable law, provided the Receiving Party discloses only such information as is required by applicable law and, if permitted by applicable law, uses reasonable efforts to notify the Disclosing Party of such disclosure in sufficient time to allow the Disclosing Party to seek a protective order or similar confidential treatment. The Receiving Party shall promptly notify the Disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of Confidential Information. Each Party acknowledges that its breach of the obligations set forth in this Section may cause irreparable harm for which the other Party shall be entitled to seek injunctive or other equitable relief. All Confidential Information of the Disclosing Party shall remain the exclusive property of the Disclosing Party. No Party shall disclose the terms of this Agreement without the prior written consent of the other Parties, except that each Party may make such disclosures as are necessary to enforce this Agreement or comply with applicable law.

 

 

Notice

 

For the purposes of all written communications and notices between the Parties, their addresses shall be:

 

Norway Hash Technologies AS

[***]

[***]

Att: [***]

 

Troll Housing AS

[***]

[***]

[***]

Att: [***]

 

or any other addresses of which either Party shall notify the other Party in writing.

 

Governing Law and Dispute Resolution

 

This Agreement is governed by and shall construed in accordance with the laws of Norway. Any dispute, claim, question or difference arising out of or with respect to this Agreement or its performance, enforcement, breach, termination or validity, will be amicably resolved by both Parties. Both parties agree to submit the dispute which cannot be amicably settled to arbitration.

 

The Magistrate of the Romsdal District Court shall, in the event of arbitration, appoint the chairman of the arbitration tribunal. In addition, the parties, in consultation with the appointed chairman, agree on the composition and proceedings of the arbitral tribunal in accordance with the provisions of the Arbitration Act.

 

Force Majeure

 

The occurrence of an event which materially interferes with the ability of a Party to perform its obligations or duties hereunder which is not within the reasonable control of the Party affected or any of its Affiliates, and which could not with the exercise of Diligent Efforts have been avoided (“Force Majeure Event”), including, but not limited to, war, rebellion, earthquake, fire, accident, strike, riot, civil commotion, act of God, inability to obtain raw materials, delay or errors by shipping companies or change in Law, shall not excuse such Party from the performance of its obligations or duties under this Agreement, but shall merely suspend such performance during the Force Majeure Event. The Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and with notice of the termination thereof. The Party so affected shall use Diligent Efforts to avoid or remove such causes of non-performance as soon as is reasonably practicable. Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall without delay recommence. The Party subject to the Force Majeure Event shall not be liable to the other Party for any damages arising out of or relating to the suspension or termination of any of its obligations or duties under this Agreement by reason of the occurrence of a Force Majeure Event, provided such Party complies in all material respects with its obligations.

 

 

Default

 

If Customer default on the payments set out in this agreement, the Customer’s infrastructure equipment (transformers, general computers, network, Antboxes etc) can be used as collateral for payment, limited to the value of the outstanding payment. Miners can not be used as collateral for payment.

 

The above-mentioned provision shall not limit or preclude any remedies for breach of contract that the Parties may otherwise have.

 

Counterparts

 

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute but one Agreement. Any executed counterpart of this Agreement delivered by facsimile or other electronic transmission to a Party hereto shall constitute an original counterpart of this Agreement.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their respective authorized representatives as of the Agreement Date stated in the first paragraph.

 

For and on behalf of Customer		For and on behalf of Troll Housing AS
/s/ Wang Wenguang		/s/ Haakon Bryhni
Authorized Signature		Authorized Signature
Print Name: Wang Wenguang		Print Name: Haakon Bryhni
Title:		Title: Board member
Date: November 15th, 2019		Date: November 15th, 2019

 

 

Annex A

 

[***]

 

 

 

Exhibit 10.13

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

Addendum 1 to Land Lease Agreement

 

This addendum dated December 6th, 2020 ("Addendum Date") to Land Lease Agreement (“Agreement”) between Norway Hash Technologies AS（“Customer”）, a company existing under the laws of Norway with registration number 921254075 and Troll Housing AS ("Troll") a Norwegian corporation with registration number [***] dated November 15th, 2019.

 

Background

 

Customer has contracted Troll to increase the capacity of a data center in Fræna municipality in Norway from [***] to [***] and want Troll to provide required land for the datacenter. THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, the Parties agree this addendum as follows:

 

Purpose

 

Troll hereby agrees to lease to Customer land for the Datacenter installation at Klempertåsen in Fræna municipality for the Customer´s data center of 30MW capacity (“Land”) and Customer agrees pay land rent during the Term of the Agreement.

 

Location and specification of Land

 

Location of the Land is at address Klempertåsvegen 1, 6440 Elnesvågen, Norway and is located in two separate [***] areas located adjacent to each other separated by a road for transport, with a total of 54 Antbox containers and 13 transformer stations with a total capacity of [***], and an adjacent area which contains an office space with workspace for Data center engineers, fiber patch facilities, rack for management servers, redundant power and network equipment, water, sewage etc. The datacenter is enclosed by fence and gates. The area contains an access road from a public road and parking space.

 

Land Rent

 

Price of the land rent is adjusted from [***] to [***] adjusted from January 1st 2021.

 

Miscellaneous

 

This Addendum 1 shall be deemed to form part of the Agreement. Subject to the provisions of this Addendum, the Agreement shall remain in full force and effect.

 

IN WITNESS WHEREOF, the Parties have caused this Addendum to be duly executed and delivered by their respective authorized representatives as of the Addendum Date stated in the first paragraph.

 

For and on behalf of Customer		For and on behalf of Troll Housing AS
/s/ Wang Wenguang		/s/ Haakon Bryhni
Authorized Signature		Authorized Signature
Print Name: Wang Wenguang		Print Name: Haakon Bryhni
Date: December 6th, 2020		Date: December 6th, 2020

 

 

Exhibit 10.14

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

Addendum 2 to Land Lease Agreement

 

This addendum dated March 22nd, 2021 ("Addendum Date") to Land Lease Agreement (“Agreement”) dated November 15th, 2019 between Norway Hash Technologies AS (“Customer”), a company existing under the laws of Norway with registration number [***] and Troll Housing AS ("Troll") a Norwegian corporation with registration number 911678608.

 

Background

 

Customer has contracted Troll to increase the capacity of a data center in Fræna municipality in Norway from 30MW to 67 MW and want Troll to provide required land for the 37MW expansion of the datacenter. THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, the Parties agree this addendum as follows:

 

Purpose

 

Troll hereby agrees to lease to Customer land for the Datacenter installation at Klempertåsen in Hustadvika municipality for the Customer´s data center expansion called Molde-3 ([***]), Molde-4 ([***]) and Molde-5 ([***]) in total [***] additional capacity (“Land for Molde-3-4-5”) and Customer agrees pay land rent during the Term of the Agreement.

 

Location and specification of Land

 

Location of the Land for Molde-3-4-5 is Klempertåsvegen 1, 6440 Elnesvågen, Norway and is located adjacent to the existing 30MW datacenter (called Molde-1 and Molde-2), with power and cooling infrastructure for Antbox containers and corresponding 22kV-400V transformer stations. The datacenter is enclosed by fence and gates. The area contains an access road from a public road.

 

Land Rent

 

Price of the Land for Molde-3-4-5 rent is invoiced monthly and split in two factors:

 

Monthly Rent 1: Land lease based on datacenter capacity.

[***] of monthly datacenter capacity (example: when [***] capacity is built, corresponding to [***] capacity in a 30-day month, [***] is invoiced for this month), plus

 

Monthly Rent 2: Land lease dependent on energy use

[***] per monthly amount of energy measured in kWh is used (example: when [***] is built, corresponding to [***] for a 30-day month, [***] is invoiced),

 

Note that this rent is in addition to the land lease for Molde-1 and Molde-2 as specified in Addendum 1.

 

Example: If power is turned off for Molde-3, Molde-4 and Molde-5 so no energy is consumed in a 30-day month, [***] is invoiced for land rent for this month. If power is turned on and [***] is used for the entire 30-day month, [***] is invoiced for Molde-5-6-7 for this month.

 

 

Starting time of new land rent

 

When the construction of the Data Center expansions (first Molde-3, then Molde-4 and Molde-5) is finished and delivered to Customer, and the expansion step pass the inspection before power-on, and the power grid company completes the corresponding 132-22kV transformer upgrade, Troll will start to invoice the land lease for the corresponding expansion.

 

Miscellaneous

 

This Addendum 2 shall be deemed to form part of the Agreement. Subject to the provisions of this Addendum, the Agreement shall remain in full force and effect.

 

IN WITNESS WHEREOF, the Parties have caused this Addendum to be duly executed and delivered by their respective authorized representatives as of the Addendum Date stated in the first paragraph.

 

 

For and on behalf of Customer		For and on behalf of Troll Housing AS
/s/ Wang Wenguang		/s/ Haakon Bryhni
Authorized Signature		Authorized Signature
Print Name: Wang Wenguang		Print Name: Haakon Bryhni
Date: March 22nd, 2021		Date: March 22nd, 2021

 

 

 

 

Exhibit 10.15

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

Addendum 3 to Land Lease Agreement

 

This addendum dated March 22nd, 2021 ("Addendum Date") to Land Lease Agreement (“Agreement”) dated November 15th, 2019 between Norway Hash Technologies AS (“Customer”), a company existing under the laws of Norway with registration number 921254075 and Troll Housing AS ("Troll") a Norwegian corporation with registration number [***].

 

Background

 

Customer considers to increase capacity of their datacenters in Norway, operated by Troll Housing AS and sister company Tydal Data Center AS, with a total capacity (“Total Load”). Customer expects a reduction in Land lease as a function of Total Load and the Parties have agreed that this price reduction applies to expansion and not to the existing 30MW datacenter called Molde-1 and Molde-2. The Land Lease for Molde-3, 4 and 5 is constructed by two factors, Monthly Rent 1 and Monthly Rent 2. A similar Land Lease structure will be used for further capacity expansion as defined in this Addendum.

 

THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, the Parties agree this addendum as follows:

 

Purpose

 

This agreement specifies a fixed Monthly Rent 1 (Land lease based on datacenter capacity) and a rebate structure for Monthly Rent 2 (Land Lease dependent on energy use) as a function of Total Load in combination of datacenter capacity in Troll Housing AS and sister company Tydal Data Center.

 

Land Rent volume rebate

 

Land Rent volume rebate for datacenter capacity more than 30MW (called New Load, defined as sum of Datacenter capacity Molde-3, 4, 5 etc in Molde and datacenters in Tydal such as Tydal-1,2, 3 etc) is agreed as specified in Table 1.

 

Molde 1-5 & Tydal 1-3

Example

Energy volume (kWh) 30-day month

Land Lease (NOK/kWh)

Sum invoiced

Unit price adjustment range Based on capacity

Capacity (MW)

Total load (Y)

New Load

Total (Y)

Fix Unit Price Based on capacity

Monthly Rent 1 (NOK)

Floating Unit Price Based on use

Monthly Rent 2 (NOK)

Monthly Rent (NOK)

Fix

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

Floating

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

Table 1: Definition of Monthly Rent 1 and Monthly Rent 2 as function of Total Load

 

In Table 1, some examples of New Load are provided and Monthly Rent 1 and 2 is calculated for this additional capacity. The corresponding Total Load (Y) is defined as the current load in Molde-1-2, called X, plus New Load. The sum invoiced from the combination of Land Lease in both datacenters in Molde and Tydal is provided in the last column called “Monthly Rent”. This rent includes both existing Molde-1-2 (X) and the agreed expansion (New Load). Note that rent for capacity in Molde is invoiced from Troll Housing AS, while capacity in Tydal is invoiced from sister company Tydal Data Center AS. 

 

 

Use of land

 

If Customer is no longer using the allocated energy and want to keep the power allocation from the local grid company to the datacenter, the grid company may require that the connection fee (currently NOK [***] / kWh installed capacity) is paid to keep the allocation. If and when such requirement is received from local grid company, Troll will invoice and Customer will pay the connection fee similar to normal operation to keep the allocation, except the purchase of energy and green certificates.

 

If Customer reduces the use of energy, the connection fee for the mandatory price increase by the grid company will be borne by Customer.

 

If Customer stops using the load for more than two years, Troll has the right to terminate the land lease Land Lease Agreement. If Troll terminates the Land Lease Agreement using this clause, Customer does not need to pay the Land Lease fee after termination date.

 

Miscellaneous

 

This Addendum 3 shall be deemed to form part of the Agreement. Subject to the provisions of this Addendum, the Agreement shall remain in full force and effect.

 

IN WITNESS WHEREOF, the Parties have caused this Addendum to be duly executed and delivered by their respective authorized representatives as of the Addendum Date stated in the first paragraph.

 

For and on behalf of Customer		For and on behalf of Troll Housing AS
/s/ Wang Wenguang		/s/ Haakon Bryhni
Authorized Signature		Authorized Signature
Print Name: Wang Wenguang		Print Name: Haakon Bryhni
Date: March 22nd, 2021		Date: March 22nd, 2021

 

 

 

 

 

 

Exhibit 10.16

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

Land Lease Agreement

 

This Land Lease Agreement (“Agreement”), dated April 8th, 2021 ("Agreement Date"), is entered between Norway Hash Technologies AS (“Customer”), a company existing under the laws of Norway with address c/o Javelin Corporate Services AS, Fridtjof Nansens plass 7, 0160 OSLO, Norway and Tydal Data Center AS ("Tydal Data Center") a Norwegian corporation under establishment with address Sponglia 12, 7590 Tydal, Norway. Collectively, Customer and Tydal Data Center may be referred to herein as the “Parties” and each individually as a “Party”.

 

Background

 

Customer has contracted Tydal Data Center to build a 40MW data center in Tydal municipality in Norway called “Tydal-1” and want Tydal Data Center to provide land for the datacenter. Later expansions called “Tydal-2”, “Tydal-3”, etc. are planned.

 

THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, the Parties agree as follows:

 

Purpose

 

Tydal Data Center hereby agrees to lease to Customer land for the Datacenter installation at Kirkvollen Industrial Area in Tydal municipality for the Customer´s data center of 40MW capacity (“Land for Tydal-1”) and Customer agrees pay land rent during the Term of the Agreement.

 

This agreement specifies a fixed Monthly Rent 1 (Land lease based on datacenter capacity) and Monthly Rent 2 (Land Lease dependent on energy use), and a rebate structure for Monthly Rent 2 as a function of Total Load in combination of capacity in Tydal Data Center and sister company Troll Housing AS.

 

Location and specification of Land

 

Location of the Land for Tydal-1 is at Kirkvollen Industriområde, 7590 Tydal, Norway and is located at Lot #2a as specified by the zoning regulation number [***] and shall have sufficient space for installation of Antbox and corresponding 22kV-400V transformers with a total capacity of [***], including an area which contains office space for Data center engineers, fiber patch facilities, rack for management servers, redundant power and network equipment, water, sewage etc. The datacenter is enclosed by fence and gates. The area contains an access road from a public road and parking space.

 

Land Rent

 

Land Rent for Tydal-1 is invoiced monthly and split in two factors:

 

Monthly Rent 1: Land lease based on datacenter capacity.

 

 

[***] of monthly datacenter capacity (example: when [***] capacity is built, corresponding to [***] capacity in a 30-day month, [***] is invoiced for this month), plus

 

Monthly Rent 2: Land lease dependent on energy use [***] per monthly amount of energy measured in kWh (example: when [***] is built, corresponding to 28 [***] for a 30-day month, [***] is invoiced),

 

Example: If power is turned off for Tydal-1 so no energy is consumed in a 30-day month, [***] is invoiced for land rent for this month. If power is turned on and [***] is used for the entire 30-day month, [***] is invoiced for Tydal-1 for this month.

 

Note that this rent is in addition to the land lease for datacenter Molde-1-5 as specified in a separate agreement with sister company Troll Housing AS and potential expansion such as Tydal-2, Tydal-3 etc in Tydal Data Center.

 

Starting time of new land rent

 

When the construction of the Data Center expansion (for example Tydal-1) is finished and delivered to Customer, and the expansion pass the inspection before power-on, and the power grid company completes the corresponding 132kV-22kV transformer upgrade, Tydal Data Center will start to invoice the land lease for the corresponding expansion.

 

Land Rent volume rebate

 

Customer considers increasing capacity of their datacenters in Norway, operated by Tydal Data Centre and sister company Troll Housing AS with a total capacity (“Total Load”). Customer expects a reduction in Land lease as a function of Total Load and the Parties have agreed that this price reduction applies to expansion and not to the existing 30MW datacenter called Molde-1 and Molde-2. The Land Lease for expansion such as Tydal-1 is constructed by two factors, Monthly Rent 1 and Monthly Rent 2. A similar Land Lease structure will be used for further capacity expansion as defined in Table 1.

 

Land Rent volume rebate for datacenter capacity more than [***] (called New Load, is defined as sum of Datacenter capacity Molde-3, 4, 5 etc in Molde and datacenters in Tydal such as Tydal-1,2, 3 etc) is agreed as shown in Table 1.

 

Molde 1-5 & Tydal 1-3

Example

Energy volume (kWh) 30-day month

Land Lease (NOK/kWh)

Sum invoiced

Unit price adjustment range Based on capacity

Capacity (MW)

Total load (Y)

New Load

Total (Y)

Fix Unit Price Based on capacity

Monthly Rent 1 (NOK)

Floating Unit Price Based on use

Monthly Rent 2 (NOK)

Monthly Rent (NOK)

Fix

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

Floating

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

Table 1: Definition of Monthly Rent 1 and Monthly Rent 2 as function of Total Load

 

In Table 1, some examples of New Load are provided and Monthly Rent 1 and 2 is calculated for this additional capacity. The corresponding Total Load (Y) is calculated as the current load in Molde-1-2, called X, plus New Load. The sum invoiced from the combination of Land Lease in both datacenters in Molde and Tydal is provided in the last column called “Monthly Rent”. This rent includes both existing Molde-1-2 (X) and the agreed expansion (New Load). Note that rent for capacity in Tydal is invoiced from Tydal Data Center AS, while rent for capacity in Molde is invoiced from sister company Troll Housing AS.

 

 

Use of land

 

If Customer is no longer using the allocated energy and want to keep the power allocation from the local grid company to the datacenter, the grid company may require that the connection fee (currently [***] installed capacity) is paid to keep the allocation. If and when such requirement is received from local grid company, Troll will invoice and Customer will pay the connection fee similar to normal operation to keep the allocation, except the purchase of energy and green certificates.

 

If Customer reduces the use of energy, the connection fee for the mandatory price increase by the grid company will be borne by Customer.

 

If Customer stops using the load for more than two years, Tydal Data Center has the right to terminate the Land Lease Agreement. If Tydal Data Center terminates the Land Lease Agreement using this clause, Customer does not need to pay the Land Lease fee after termination date.

 

If the full area available for datacenter at Tydal Data Center is not built and there is no active development project with order for capacity expansion for Customer, Tydal Data Center AS has the right to use remaining land not used by Customer for other use.

 

Payment

 

Invoice shall be produced by Tydal Data Center monthly, the invoice of the first month shall be produced no later than 14 days prior to starting of the period, and payment should be made within 7 days after receipt of the invoice.

 

Payment shall be made in NOK to the following account:

 

Bank Name:	[***]
Bank address:	[***]
Recipient company name:	[***]
Recipient company address:	[***]
IBAN number:	[***]
Swift Code:	[***]

 

 

Warranties and Representations

 

Tydal Data Center undertakes that Customer shall lawfully, peacefully and freely hold, occupy, use, operate, and enjoy the Land without disturbance, nuisance, or interference. Tydal Data Center undertakes that no third party shall have a right or claim to the Land during the Term of this Agreement.

 

Tydal Data Center warrants and represents that it has obtained all approvals from the government, the provincial/municipal authorities and all other applicable government agencies or bodies, needed for Customer to lawfully enter into this Agreement and to use the Land for the purposes described in this Agreement at all times during the Term of this Agreement.

 

Tydal Data Center warrants and represents that it is the lawful and sole user of Land during the Term of this Agreement and that there are no encumbrances, mortgages, liens or security interests on the Land other than those created pursuant to this Agreement.

 

Tydal Data Center warrants and represents that the Site is free from pollution, unexploded ordinances and environmental damage.

 

Signs

 

Customer shall have the right to erect any sign related to its business on the condition that such signs comply with local law.

 

Term

 

Term starts April 1st 2021 and last until March 31st 2031. The agreement can be renewed within this period.

 

Termination

 

Both parties may terminate this Agreement at any time upon mutual agreement.

 

Customer has the right to terminate this Agreement, upon written notice to Tydal Data Center, without penalty, under the following circumstances: If Tydal Data Center has failed to keep the power supply as defined in the Electric Power Supply Agreement between the Parties (except for interruptions caused by temporary substation failure/upgrade/ maintenance by local grid company).

 

Except as aforesaid, the agreement can be terminated on one year notice by the Customer by paying the remaining Land Lease every month of the remaining Term, based on datacenter capacity for the number of remaining years of the agreement and installed capacity at the time of termination, multiplied with Monthly Rent 1. Example: If the Land Lease agreement is terminated on March 31, 2027, termination takes effect on March 31, 2028 and [***] will be paid monthly by Customer for the remaining 36 months of the Term .

 

 

Upon termination, Customer will remove miners. Tydal Data Center has the first right of refusal to buy the transformers at current market price at the time of termination.

 

Taxes

 

Customer will bear the applicable Value Added Tax (VAT) in connection with the provision of services by Tydal Data Center under this agreement, computed in accordance with the Norwegian Tax Act. Tydal Data Center will produce VAT compliant invoices and supporting documents when necessary for the purpose of claiming VAT tax refund by Customer.

 

Tydal Data Center shall help Customer to apply for VAT refund by providing advice on how to apply for the refund on a bi-monthly or yearly VAT refund program but takes no formal responsibility in the application process and its outcome as this will be governed between Customer and Norwegian tax authority (Skatteetaten). If Customer need external advice such as Auditor or Lawyer assistance, Customer will cover fees for such advice.

 

Any changes in Government fees related to energy delivery, VAT or similar after signature of the contract will lead to an exact similar adjustment of price invoiced to Customer.

 

Confidentiality.

 

The Receiving Party shall: (a) hold the Disclosing Party’s Confidential Information in strict confidence and avoid the disclosure thereof to any third party by using the same degree of care as it uses to avoid the unauthorized use or disclosure of its own Confidential Information of a similar nature, but not less than reasonable care; and (b) not use the Disclosing Party’s Confidential Information for any purpose except as contemplated under this Agreement. The Receiving Party shall restrict the possession and use of the Disclosing Party’s Confidential Information to its personnel who have a need to know, and are bound by confidentiality obligations no less stringent than those contained herein. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required by applicable law, provided the Receiving Party discloses only such information as is required by applicable law and, if permitted by applicable law, uses reasonable efforts to notify the Disclosing Party of such disclosure in sufficient time to allow the Disclosing Party to seek a protective order or similar confidential treatment. The Receiving Party shall promptly notify the Disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of Confidential Information. Each Party acknowledges that its breach of the obligations set forth in this Section may cause irreparable harm for which the other Party shall be entitled to seek injunctive or other equitable relief. All Confidential Information of the Disclosing Party shall remain the exclusive property of the Disclosing Party. No Party shall disclose the terms of this Agreement without the prior written consent of the other Parties, except that each Party may make such disclosures as are necessary to enforce this Agreement or comply with applicable law.

 

 

Notice

 

For the purposes of all written communications and notices between the Parties, their addresses shall be:

 

[***]

 

[***]

 

or any other addresses of which either Party shall notify the other Party in writing.

 

Governing Law and Dispute Resolution

 

This Agreement is governed by and shall construed in accordance with the laws of Norway. Any dispute, claim, question or difference arising out of or with respect to this Agreement or its performance, enforcement, breach, termination or validity, will be amicably resolved by both Parties. Both parties agree to submit the dispute which cannot be amicably settled to arbitration.

 

The Magistrate of the Sør-Trøndelag District Court shall, in the event of arbitration, appoint the chairman of the arbitration tribunal. In addition, the parties, in consultation with the appointed chairman, agree on the composition and proceedings of the arbitral tribunal in accordance with the provisions of the Arbitration Act.

 

Force Majeure

 

The occurrence of an event which materially interferes with the ability of a Party to perform its obligations or duties hereunder which is not within the reasonable control of the Party affected or any of its Affiliates, and which could not with the exercise of Diligent Efforts have been avoided (“Force Majeure Event”), including, but not limited to, war, rebellion, earthquake, fire, pandemic, accident, strike, riot, civil commotion, act of God, inability to obtain raw materials, delay or errors by shipping companies or change in Law, shall not excuse such Party from the performance of its obligations or duties under this Agreement, but shall merely suspend such performance during the Force Majeure Event. The Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and with notice of the termination thereof. The Party so affected shall use Diligent Efforts to avoid or remove such causes of non-performance as soon as is reasonably practicable. Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall without delay recommence. The Party subject to the Force Majeure Event shall not be liable to the other Party for any damages arising out of or relating to the suspension or termination of any of its obligations or duties under this Agreement by reason of the occurrence of a Force Majeure Event, provided such Party complies in all material respects with its obligations.

 

 

Default

 

If Customer default on the payments set out in this agreement, the Customer´s infrastructure equipment (transformers, general computers, network, Antboxes etc) can be used as collateral for payment, limited to the value of the outstanding payment. Miners can not be used as collateral for payment.

 

The above-mentioned provision shall not limit or preclude any remedies for breach of contract that the Parties may otherwise have.

 

Counterparts

 

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute but one Agreement. Any executed counterpart of this Agreement delivered by facsimile or other electronic transmission to a Party hereto shall constitute an original counterpart of this Agreement.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their respective authorized representatives as of the Agreement Date stated in the first paragraph.

 

For and on behalf of Customer		For and on behalf of Tydal Data Center AS
/s/ Wang Wenguang		/s/ Haakon Bryhni
Authorized Signature		Authorized Signature
Print Name: Wang Wenguang		Print Name: Haakon Bryhni
Date: April 8th, 2021		Date: March 8th, 2021

 

 

 

 

 

Exhibit 10.17 

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential. 

 

COMMERCIAL PURCHASE AND SALE AGREEMENT

 

1.

Purchase and Sale. For and in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned buyer Bitmain Inc. or Assigns (“Buyer”) agrees to buy and the undersigned seller KEMET Foil Manufacturing LLC (FKA Cornell Dublilier, Foil, LLC) (“Seller”) agrees to sell all that tract or parcel of land, with such improvements as are located thereon, described as follows: All that tract of land known as: 5101 S. National Drive (Address) Knoxville (City), Tennessee, 37914 (Zip), as recorded in Knox County Register of Deeds Office,                 deed book(s),                   page(s), and/or                  instrument no. and as further described as: approximately 9.88 acres improved with a 77,678 square foot industrial building together with all fixtures, landscaping, improvements, and appurtenances, all being hereinafter collectively referred to as the “Property”, as more particularly described in Exhibit “A” or if Exhibit A is not attached as is recorded with the Register of Deeds of the county in which the Property is located and is made a part of this Commercial Purchase and Sale Agreement (“Purchase and Sale Agreement” or “Agreement”) by reference.

 

2.	Purchase Price. The total purchase price for the Property shall be [***] (“Purchase Price”), and is subject to all prorations and adjustments and shall be paid by Buyer at the Closing by cash, a Federal Reserve Bank wire transfer of immediately available funds, cashier’s check or certified check.

 

3.

Earnest Money/Trust Money. Buyer has paid or will pay within 5 business days after the Binding Agreement Date, the sum of [***] with Tennessee Valley Title (“Holder”) located at 800 S Gay St #1700, Knoxville, TN 37929 (Address of Holder). Additional Earnest Money/Trust Money, if any, to be tendered and applied as follows:

 

This sum (“Earnest Money/Trust Money”) is to be applied as part of the Purchase Price at Closing.

 

A. Failure to Receive Earnest Money/Trust Money. In the event Earnest Money/Trust Money is not timely received by Holder or Earnest Money/Trust Money check or other instrument is not honored for any reason by the financial institution from which it is drawn, Holder shall promptly notify Buyer and Seller. Buyer shall have three (3) business days after notice to deliver good funds to Holder. In the event Buyer does not timely deliver good funds to Holder, this Agreement shall automatically terminate and Holder shall notify the parties of the same. Holder shall disburse Earnest Money/Trust Money only as follows:

 

(a)       at Closing to be applied as a credit toward Buyer’s Purchase Price;

 

(b)       upon a subsequent written agreement signed by Buyer and Seller; or

 

(c)       as set forth below in the event of a dispute regarding Earnest Money/Trust Money.

 

No party shall seek damages from Holder, nor shall Holder be liable for any such damages, and all parties agree to defend and hold harmless Holder for any matter arising out of or related to the performance of Holder’s duties hereunder.

 

B. Disputes Regarding Earnest Money/Trust Money. In the event Buyer or Seller notifies Holder of a dispute regarding disposition of Earnest Money/Trust Money that Holder cannot resolve, Buyer and Seller agree to interplead Earnest Money/Trust Money into a court of competent jurisdiction. Holder shall be reimbursed for, and may deduct from any funds interpleaded, its costs and expenses, including reasonable attorney’s fees. The prevailing party in the interpleader action shall be entitled to collect from the other party the costs and expenses reimbursed to Holder, and upon payment of such funds into the court clerk’s office, Holder shall be released from all further liability in connection with the funds delivered.

 

 

4.

Inspection.

 

 

 

5.

Title.

 

A.

Warranties of Seller. Seller warrants that at Closing Seller shall convey good and marketable, fee simple title to the Property to Buyer, subject only to the following exceptions (“Permitted Exceptions”):

 

(1)

Liens for ad valorem taxes not yet due and payable.

 

(2)

Those exceptions to which Buyer does not object or which Buyer waives in accordance with the Title Issues and Objections paragraph below. “Good and marketable, fee simple title” with respect to the Property shall be such title:

 

(a)

as is classified as “marketable” under the laws of Tennessee; and

 

(b)

as is acceptable to and insurable by a title company doing business in Tennessee (“Title Company”), at standard rates on an American Land Title Association Owner’s Policy (“Title Policy”).

 

B.

Title Issues and Objections. Buyer shall have 5 days after the Binding Agreement Date to furnish Seller with a written statement of any title objections, UCC-1 or UCC-2 Financing Statements, and encroachments, and other facts affecting the marketability of the Property as revealed by a current title examination. Seller shall have 5 days after the receipt of such objections (the “Title Cure Period”) to cure all valid title objections. Seller shall satisfy any existing liens or monetary encumbrances identified by Buyer as title objections which may be satisfied by the payment of a sum certain prior to or at Closing. Except for Seller’s obligations in the preceding sentence, if Seller fails to cure any other valid title objections of Buyer within the Title Cure Period (and fails to provide Buyer with evidence of Seller’s cure satisfactory to Buyer and to Title Company), then within five (5) days after the expiration of the Title Cure Period, Buyer may as Buyer’s sole remedies: (1) rescind the transaction contemplated hereby, in which case Buyer shall be entitled to the return of Buyer’s Earnest Money/Trust Money; (2) waive any such objections and elect to Close the transaction contemplated hereby irrespective of such title objections and without reduction of the Purchase Price; or (3) extend the Closing Date period for a period of up to fifteen (15) days to allow Seller further time to cure such valid title objections. Failure to act in a timely manner under this paragraph shall constitute a waiver of Buyer’s rights hereunder. Buyer shall have the right to reexamine title prior to Closing and notify Seller at Closing of any title objections which appear of record after the date of Buyer’s initial title examination and before Closing.

 

6.

Closing.

 

A.

Closing Date. This transaction shall be consummated at the office of Tennessee Valley Title on March 12th, 2018, (the “Closing Date”) or at such other time and place(s) the parties may agree upon in writing.

 

B.

Possession. Seller shall deliver possession and occupancy of the Property to Buyer at Closing, subject only to the rights of tenants in possession and the Permitted Exceptions.

 

7.

Seller’s Obligations at Closing. At Closing, Seller shall deliver to Buyer:

 

(a)

a Closing Statement;

 

  

(b)

deed (mark the appropriate deed below)

 

x General Warranty Deed

¨ Special Warranty Deed

¨ Quit Claim Deed

¨ Other: ______________________________________

 

(c)

all documents which Seller must execute under the terms of this Agreement to cause the Title Company to deliver to Buyer the Title Policy including, without limitation, a title affidavit from Seller to Buyer and to the Title Company in the form customarily used in Tennessee commercial real estate transactions so as to enable the Title Company to issue Buyer the Title Policy with all standard exceptions deleted and subject only to Permitted Exceptions; and

 

(d)

evidence reasonably satisfactory to Buyer at Closing of all documents/items indicated in Exhibit “C”, if any (all documents to be delivered by Seller under this paragraph, including all documents/items indicated in Exhibit “C” are collectively “Seller’s Closing Documents”).

 

8.

Conditions to Closing.

 

 

 

9.

Costs.

 

A.

Seller’s Costs. Seller shall pay all existing loans and/or liens affecting the Property; the cost of recording any title curative documents, including without limitation, satisfactions of deeds to secure debt, quitclaim deeds and financing statement termination; any accrued and/or outstanding association dues or fees; fee (if any) to obtain lien payoff/estoppel letters/statement of accounts from any and all associations, property management companies, mortgage holders or other liens affecting the Property; all deed recording fees; the fees of Seller’s counsel and, if checked, ¨ all transfer taxes, otherwise Buyer is responsible for transfer taxes.

 

In the event Seller is subject to Tax Withholding as required by the Foreign Investment in Real Property Tax Act, (hereinafter “FIRPTA”), Seller additionally agrees that such Tax Withholding must be collected from Seller by Buyer’s Closing Agent at the time of Closing. In the event Seller is not subject to FIRPTA, Seller shall be required as a condition of Closing to sign appropriate affidavits certifying that Seller is not subject to FIRPTA. It is Seller’s responsibility to seek independent tax advice or counsel prior to the Closing Date regarding such tax matters.

 

B.

Buyer’s Costs. Buyer shall pay the cost of Buye’s counsel and consultants; any costs in connection with Buyer’s inspection of the Property and any costs associated with obtaining financing for the acquisition of the Property (including any intangibles tax, all deed recording fees and the cost of recording Buyer’s loan documents.)

 

C.

Additional Costs. In addition to the costs identified above, the following costs shall be paid by the parties hereto as indicated below:

 

Item to be Paid	Paid by Seller	Paid by Buyer
Survey	¨	x
Title Examination	¨	x
Premium for Standard Owner’s Title Insurance Policy	¨	x
Other: ___________________________________	¨	¨
Other: ___________________________________	¨	¨
Other: ___________________________________	¨	¨

 

10.

Taxes and Prorations. Real estate taxes on the Property for the calendar year in which the Closing takes place shall be prorated as of 12:01 a.m. local time on the Closing Date. Seller shall be responsible (even after Closing) for paying all taxes (including previous reassessments) on the Property for the time period during which Seller owned the Property and shall indemnify the Buyer therefore. In addition, the following items shall also be prorated as of 12:01 a.m. local time on the Closing Date [Select only those that apply to this transaction; the items not checked do not apply to this Agreement]:

 

x    Utilities	x     Service Contracts	¨     Tenant Improvement Costs
¨     Rents	¨      Leasing Commissions	¨     Other: _______________________________________
¨    Other: _______________________________________		¨     Other: _______________________________________

 

 

11.

Representations and Warranties.

 

A.

Seller’s Representations and Warranties. As of the Binding Agreement Date and the Closing Date, Seller represents and warrants to Buyer that Seller has the right, power, and authority to enter into this Agreement and to convey the Property in accordance with the terms and conditions of this Agreement. The persons executing this Agreement on behalf of Seller have been duly and validly authorized by Seller to execute and deliver this Agreement and shall have the right, power, and authority to enter into this Agreement and to bind Seller. Seller also makes the additional representations and warranties to Buyer, if any, as indicated on Exhibit “D”.

 

B.

Buyer’s Representations and Warranties. As of the Binding Agreement Date and the Closing Date, Buyer represents and warrants to Seller that Buyer has the right, power, and authority to enter into this Agreement and to consummate the transaction contemplated by the terms and conditions of this Agreement. The persons executing this Agreement on behalf of Buyer have been duly and validly authorized by Buyer to execute and deliver this Agreement and shall have the right, power, and authority to enter into this Agreement and bind Buyer. Upon Seller’s request, Buyer shall furnish such documentation evidencing signor’s authority to bind Buyer.

 

12.

Agency and Brokerage.

 

A.

Agency.

 

(1)

In this Agreement, the term “Broker” shall mean a licensed Tennessee real estate broker or brokerage firm and, where the context would indicate, the Broker’s affiliated licensees. No Broker in this transaction shall owe any duty to Buyer or Seller greater that what is set forth in their brokerage engagements, the Tennessee Real Estate Broker License Act of 1973, as amended, and the Tennessee Real Estate Commission rules and regulations.

 

(2)

A Designated Agent is one who has been assigned by his/her Managing Broker and is working as an agent for the Seller or Buyer in a prospective transaction, to the exclusion of all other licensees in his/her company.

 

(3)

An Agent for the Seller or Buyer is a type of agency in which the licensee’s company is working as an agent for the Seller or Buyer and owes primary loyalty to that Seller or Buyer.

 

(4)

A Facilitator relationship occurs when the licensee is not working as an agent for either party in this consumer’s prospective transaction. A Facilitator may advise either or both of the parties to a transaction but cannot be considered a representative or advocate for either party. “Transaction Broker” may be used synonymously with, or in lieu of, “Facilitator” as used in any disclosures, forms or agreements. [By law, any licensee or company who has not entered into a written agency agreement with either party in the transaction is considered a Facilitator or Transaction Broker until such time as an agency agreement is established.]

 

(5)

A dual agency situation arises when an agent (in the case of designated agency) or a real estate firm (wherein the entire real estate firm represents the client) represents both the Buyer and Seller.

 

(6)

If one of the parties is not represented by a Broker, that party is solely responsible for their own interests, and that Broker’s role is limited to performing ministerial acts for the unrepresented party.

 

B.

Agency Disclosure.

 

(1)

The Broker, if any, working with the Seller is identified on the signature page as the “Listing Company”; and said Broker is (Select One. The items not selected are not part of this Agreement):

 

x

the Designated Agent for the Seller,

 

¨

the agent for the Seller,

 

	¨	a Facilitator for the Seller, OR

¨

a dual agent.

 

(2)

The Broker, if any, working with the Buyer is identified on the signature page as the “Selling Company”, and said Broker is (Select One. The items not selected are not part of this Agreement):

 

x

the Designated Agent for the Buyer,

 

	¨	the agent for the Buyer,
	¨	a Facilitator for the Buyer, OR
	¨	a dual agent.

 

 

(3)

Dual Agency Disclosure. [Applicable only if dual agency has been selected above] Seller and Buyer are aware that Broker is acting as a dual agent in this transaction and consent to the same. Seller and Buyer have been advised that:

 

	1.	In serving as a dual agent the Broker is representing two clients whose interests are, or at times could be, different or even adverse.

	2.	The Broker will disclose all adverse, material facts relevant to the transaction, and actually known to the dual agent, to all parties in the transaction except for information made confidential by request or instructions from another client which is not otherwise required to be disclosed by law.

	3.	The Buyer and Seller do not have to consent to dual agency, and

	4.	The consent of the Buyer and Seller to dual agency has been given voluntarily and the parties have read and understand their brokerage engagement agreements.

5.

Notwithstanding any provision to the contrary contained herein, Seller and Buyer each hereby direct Broker, if acting as a dual agent, to keep confidential and not reveal to the other party any information which could materially and adversely affect their negotiating position unless otherwise prohibited by law.

 

(4)

Material Relationship Disclosure. [Required with dual Agency] The Broker and/or affiliated licensees have no material relationship with either client except as follows: _________________________________. A material relationship means one of a personal, familial or business nature between the Broker and affiliate licensees and a client which would impair their ability to exercise fair judgment relative to another client.

 

Seller Initials _______________                        Buyer Initials                         

 

C.

Brokerage. Seller agrees to pay Listing Broker at Closing the compensation specified by separate agreement. The Listing Broker will direct the closing agency/attorney to pay the Selling Broker, from the commission received, an amount, if any, in accordance with the terms and provisions specified by separate agreement. The parties agree and acknowledge that the Brokers involved in this transaction may receive compensation from more than one party. All parties to this Agreement agree and acknowledge that any real estate firm involved in this transaction shall be deemed a third party beneficiary only for the purposes of enforcing their commission rights, and as such, shall have the right to maintain an action on this Agreement for any and all compensations due and any reasonable attorney’s fees and court costs.

 

13. Disclaimer. It is understood and agreed that the real estate firms and real estate licensee(s) representing or assisting Seller or Buyer and their brokers (collectively referred to as “Brokers”) are not parties to this Agreement and do not have or assume liability for the performance or nonperformance of Seller or Buyer. Buyer and Seller agree that Brokers shall not be responsible for any of the following, including but not limited to, those matters which could have been revealed through a survey, title search or inspection of the Property; the insurability of the Property or cost to insure the Property; for the condition of the Property, any portion thereof, or any item therein; for any geological issues present on the Property; for any issues arising out of Buyer’s failure to physically inspect the Property prior to entering into this Agreement and/or Closing; for building products and construction techniques; for the necessity or cost of any repairs to the Property; for hazardous or toxic materials; for the tax or legal consequences of this transaction; for the availability, capability, and/or cost of utility, sewer, septic, or community amenities; for proposed or pending condemnation actions involving the Property; for applicable boundaries of school districts or other school information; for the appraised or future value of the Property; for any condition(s) existing off the Property which may affect the Property; for the terms, conditions and availability of financing; and for the uses and zoning of the Property whether permitted or proposed. Buyer and Seller acknowledge that Brokers are not experts with respect to the above matters and that they have not relied upon any advice, representations or statements of Brokers (including their firms and affiliated licensees) and waive and shall not assert any claims against Brokers (including their firms and affiliated licensees) involving same. Buyer and Seller understand that it has been strongly recommended that if any of these or any other matters concerning the Property are of concern to them, that they secure the services of appropriately credentialed experts and professionals of Buyer’s or Seller’s choice for the independent expert advice and counsel relative thereto.

 

14. Destruction of Property Prior to Closing. If the Property is destroyed or substantially destroyed prior to Closing, Seller shall give Buyer prompt notice thereof, which notice shall include Seller’s reasonable estimate of: (1) the cost to restore and repair the damage; (2) the amount of insurance proceeds, if any, available for the same; and (3) whether the damage will be repaired prior to Closing. Upon notice to Seller, Buyer may terminate this Agreement within seven (7) days after receiving such notice from Seller. If Buyer does not terminate this Agreement, Buyer shall be deemed to have accepted the Property with the damage and shall receive at Closing (1) any insurance proceeds which have been paid to Seller but not yet spent to repair the damage and (2) an assignment of all unpaid insurance proceeds on the claim. Buyer may request in writing, and Seller shall provide within five (5) business days, all documentation necessary to confirm insurance coverage and/or payment or assignment of insurance proceeds.

 

 

15. Other Provisions.

 

	A.	Exhibits, Binding Effect, Entire Agreement, Modification, Assignment, and Binding Agreement Date. This Agreement shall be for the benefit of, and be binding upon, the parties hereto, their heirs, successors, legal representatives and assigns. This Agreement constitutes the sole and entire agreement between the parties hereto and no modification of this Agreement shall be binding unless signed by all parties or assigns to this Agreement. No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto. Any assignee shall fulfill all the terms and conditions of this Agreement. It is hereby agreed by both Buyer and Seller that any real estate agent working with or representing either party shall not have the authority to bind the Buyer, Seller or any assignee to any contractual agreement unless specifically authorized in writing within this Agreement. The parties hereby authorize either licensee to insert the time and date of the receipt of notice of acceptance of the final offer and further agree to be bound by such as the Binding Agreement Date following the signatory section of this Agreement, or Counter Offer, if applicable.
	B.	Survival Clause.

 

	C.	Governing Law and Venue. This Agreement is intended as a contract for the purchase and sale of real property and shall be interpreted in accordance with the laws and in the courts of the State of Tennessee.

	D.	Time of Essence. Time is of the essence in this Agreement.

	E.	Terminology. As the context may require in this Agreement: (1) the singular shall mean the plural and vice versa; (2) all pronouns shall mean and include the person, entity, firm, or corporation to which they relate; (3) the feminine shall mean the masculine and vice versa; and (4) the term day(s) used throughout this Agreement shall be deemed to be calendar day(s) ending at 11:59 p.m. local time unless otherwise specified in this Agreement. Local time is to be determined by the location of the Property. All references to time are deemed to be local time. In the event a performance deadline, other than the Closing Date (as defined in paragraph six (6) herein), Day of Possession (as defined in paragraph six (6) herein), and Offer Expiration date (as defined in paragraph nineteen (19) herein), occurs on a Saturday, Sunday or legal holiday, the performance deadline shall be extended to the next following business day. Holidays as used herein are those days deemed federal holidays pursuant to 5 U.S.C. § 6103. In calculating any time period under this Agreement, the commencement day shall be the day following the initial date (e.g. Binding Agreement Date).

	F.	Responsibility to cooperate. Buyer and Seller agree to timely take such actions and produce, execute, and/or deliver such information and documentation as is reasonably necessary to carry out the responsibilities and obligations of this Agreement. Except as to matters which are occasioned by clerical errors or omissions or erroneous information, the approval of the Closing documents by the parties shall constitute their approval of any differences between this Agreement and the Closing. The Buyer and Seller agree that if requested after Closing they will correct any documents and pay any amounts due where such corrections or payments are appropriate by reason of mistake, clerical errors or omissions, or the result of erroneous information.

G.

Notices. Except as otherwise provided herein, all notices and demands required or permitted hereunder shall be in writing and delivered either (1) in person, (2) by a prepaid overnight delivery service, (3) by facsimile transmission (FAX), (4) by the United States Postal Service, postage prepaid, registered or certified return receipt requested or (5) Email. NOTICE shall be deemed to have been given as of the date and time it is actually received. Receipt of notice by the real estate licensee or their Broker assisting a party as a client or customer shall be deemed to be notice to that party for all purposes under this Agreement as may be amended, unless otherwise provided in writing.

 

H.

Remedies. In the event of a breach of this Agreement, the non-breaching party may pursue all remedies available at law or in equity except where the parties have agreed to arbitrate. Notwithstanding the above, if Buyer breaches Buyer’s obligations or warranties herein Seller shall have the option to request that Holder pay the Earnest Money/Trust Money to Seller, which if disbursed to Seller by Holder shall constitute liquidated damages in full settlement of all claims by Seller. Such liquidated damages are agreed to by the parties not to be a penalty and to be a good faith estimate of Seller’s actual damages, which damages are difficult to ascertain. In the event that any party hereto shall file suit for breach or enforcement of this Agreement (including suits filed after Closing which are based on or related to the Agreement), the prevailing party shall be entitled to recover all costs of such enforcement, including reasonable attorney’s fees. The parties hereby agree that all remedies are fair and equitable and neither party will assert the lack of mutuality of remedies as a defense in the event of a dispute.

 

 

I.

Equal Opportunity. This Property is being sold without regard to race, color, sex, religion, handicap, familial status, or national origin.

	J.	Termination by Buyer. In the event that Buyer legally and properly invokes his right to terminate this Agreement under any of the provisions contained herein, Buyer shall pay the sum of one hundred dollars ($100.00) to Seller as consideration for Buyer’s said right to terminate, the sufficiency and adequacy of which is hereby acknowledged. Earnest Money/Trust Money shall be disbursed according to the terms stated herein.
	K.	Severability. If any portion or provision of this Agreement is held or adjudicated to be invalid or unenforceable for any reason, each such portion or provision shall be severed from the remaining portions or provisions of this Agreement, and the remaining portions or provisions shall be unaffected and remain in full force and effect.
	L.	Construction. This Agreement or any uncertainty or ambiguity herein shall not be construed against any party but shall be construed as if all parties to this Agreement jointly prepared this Agreement.

 

16.

Exhibited and Addenda. All exhibits and/or addenda attached hereto, listed below, or referenced herein are made a part of this Agreement. If any such exhibit or addendum conflicts with any preceding paragraph, said exhibit or addendum shall control:

 

	x	Exhibit “A” Legal Description
	¨	Exhibit “B” Due Diligence Documents
	¨	Exhibit “C” Addition to Seller’s Closing Documents
	¨	Exhibit “D” Seller’s Warranties and Representations

Exhibit “A-2” Property Condition Survey  

 

17.

Special Stipulations. The following Special Stipulations, if conflicting with any preceding paragraph, shall control:

Remove entire “Inspection” paragraph, lines 46 - 60.

Remove entire “Survival Clause” paragraph, lines 263 - 266.

 

Buyer expressly acknowledges that, except as expressly provided herein, the Property is being sold and accepted AS IS, WHERE-IS, WITH ALL FAULTS, and Seller makes no representations or warranties, express or implied, with respect to the physical condition or any other aspect of the Real Property.

  

¨

(Mark box if additional pages are attached.)

 

18.

Method of Execution. The parties agree that signatures and initials transmitted by a facsimile, other photocopy transmittal, or by transmittal of digital signature as defined by the applicable State or Federal Law will be acceptable and may be treated as originals and that the final Commercial Purchase and Sale Agreement containing all signatures and initials may be executed partially by original signature and partially on facsimile, other photocopy documents, or by digital signature as defined by the applicable State or Federal Law.

 

  

19.

Time Limit of Offer. This Offer may be withdrawn at any time before acceptance with Notice. Offer terminates if not countered or accepted by 5:00 o’clock ¨ a.m./ x p.m. local time on the 26th day of February, 2018.

 

LEGAL DOCUMENTS: This is an important legal document creating valuable rights and obligations. If you have any questions about it, you should review it with your attorney. Neither the Broker nor any Agent or Facilitator is authorized or qualified to give you any advice about the advisability or legal effect of its provisions.

 

NOTE: Any provisions of this Agreement which are preceded by a box “¨” must be marked to be a part of this Agreement. By affixing your sigature below, you also acknowledge that you have reviewed each page and have received a copy of this Agreement.

 

 

  

Binding Agreement Date. This instrument shall become a “Binding Agreement” on the date (“Binding Agreement Date”) the last offeror, or licensee of offeror, receives notice of offeree’s acceptance. Notice of acceptance of the final offer was received on the _________ day of February, 2018 at ___________ o’clock by _______________________________ (Name).

 

For Information Purposes Only:
Baker Realty Company		Avison Young
Listing Company		Selling Company
[***]		[***]
Independent Licensee		Independent Licensee
[***]@bakerrealtycompany.com		[***]@avisonyoung.com
Licensee Email		Licensee Email

  

NOTE: This form is provided by TAR to its members for their use in real estate transactions and is to be used as is. By downloading and/or using this form, you agree and covenant not to alter, amend, or edit said form or its contents except as where provided in the blank fields, and agree and acknowledge that any such alteration, amendment or edit of said form is done at your own risk. Use of the TAR logo in conjunction with any form other than standardized forms created by TAR is strictly prohibited. This form is subject to periodic revision and it is the responsibility of the member to use the most recent available form.

 

 

KGIS - Property Map and Details Report

 

[***]

 

 

Property Condition Survey for: 5101 S National Drive

 

[***]

 

 

 

Exhibit 10.18

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

QUITCLAIM DEED

 

THIS INDENTURE made as of this 20th day of March, 2018, between BITMAIN, INC., a Delaware corporation, First Party, and CARPENTER CREEK, LLC, a Tennessee limited liability company, Second Party:

 

WITNE SSETH:

 

THAT SAID FIRST PARTY, for and in consideration of the sum of ONE AND NO/100 ($1.00) DOLLAR, and other good and valuable consideration, to it in hand paid by said Second Party, the receipt of which is hereby acknowledged, has bargained, sold, remised, released and QUITCLAIMED, and does by these presents bargain, sell, remise, release and QUITCLAIM unto Second Party all of First Party's right, title and interest in and to the following described premises, to-wit:

 

SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF

 

With the hereditaments and appurtenances thereto appertaining, hereby releasing all claims therein to the said Second Party, its successors and assigns forever.

 

Whenever in this instrument a pronoun is used it shall be construed to represent either singular or plural, as the case may demand.

 

IN WITNESS WHEREOF, the said First Party has caused this instrument to be executed as of the day and year first above written.

 

	BITMAIN, INC., a Delaware corporation
	By:	/s/ Xiaojing Guo
	Title:	General Manager
	COUNTERSIGNED
	KNOX COUNTY PROPERTY ACCESSOR
	MAR 22 2018
	BY	/s/ JOHN R. WHITEHEAD

 

 

EXHIBIT A

 

[***]

 

 

Exhibit 10.19

  

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

VACANT LAND PURCHASE AND SALE AGREEMENT SPECIFIC TERMS

 

1.

Date:

August 3, 2017

MLS No.:

NA

Offer Expiration Date:

August 4, 2017

 

2.

Buyer:

ANTCREEK, LLC

NA

 

3.	Seller:	BLACKHAWK DEVELOPMENT INC

4.

Property: Legal Description attached as Exhibit A. Tax Parcel No(s).:

PP 93700000002

,

,

,

 

	BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802
	Address                            City                     State                          ZIP
	See counter offer addendum

 

5.

Purchase Price:

$

XXXXXXXXXX

Dollars

 

6.

Earnest Money:

$

[***]

¨

Check;

x

Note;

¨

Other

(held by

¨

Selling Firm;

x

Closing Agent)

 

7.

Default: (check only one) ¨ Forfeiture of Earnest Money; x Seller’s Election of Remedies

 

8.

Title Insurance Company:

First American Title

 

9.

Closing Agent:

First American Title

[***]

 

10.

Closing Date:

October  2, 2017

;

Possession Date: x

on Closing; ¨

Other

 

11.  Services of Closing Agent for Payment of Utilities: ¨ Requested (attach NWMLS Form 22K); x Waived

 

12.	Charges/Assessments Levied Before but Due After Closing: ¨ assumed by Buyer; x prepaid in full by Seller at Closing

 

13.	Seller Citizenship (FIRPTA): Seller ¨ is; x is not a foreign person for purposes of U.S. income taxation

 

14.	Subdivision: The Property x must be subdivided before      September 22, 2017       ; ¨ is not required to be subdivided

 

15.

Feasibility Contingency Expiration Date: x

30

days after mutual acceptance; ¨

Other

 

16.	Agency Disclosure:	Selling Broker represents:	x Buyer;	¨ Seller;	¨ both parties;	¨ neither party
		Listing Broker represents:	¨  Seller;	¨ both parties

 

 

17.	Addenda: 22ef, 23t, 31, 89, Form 17/Sellers Disclosure, Proposed Plat Map Exhibit A by Blackhawk Development Inc.

 

/s/ Xiaojing Guo		8/3/2017			/s/ Ryan Vickery		8/4/2017
ANTCREEK, LLC			Date		BLACKHAWK DEVELOPMENT INC		Date
Buyer's Signature 251 High Street Suite B			Date		Seller's Signature 1300 S Webb Pl		Date
Buyer's Address Palo Alto, CA 94301					Seller's Address East Wenatchee, WA 98802-9396
City, State, Zip [***]					City, State, Zip [***]
Phone No. [***]			Fax No.		Phone No. [***]		Fax No.
Buyer's E-mail Address [***]			[***]		Seller's E-mail Address NA
Selling Firm			MLS Office No.		Listing Firm		MLS Office No.
[***]		[***]			NA
Selling Broker (Print) [***]	[***]	MLS LAG No. [***]			Listing Broker (Print)		MLS LAG No.
Firm Phone No.	Broker Phone No.		Firm Fax No.		Firm Phone No.	Broker Phone No.	Firm Fax No.
[***]
Selling Firm Document E-mail Address [***]					Listing Firm Document E-mail Address
Selling Broker's E-mail Address [***]			[***]		Listing Broker's E-mail Address
Selling Broker DOL License No.		Selling Firm DOL License No.			Listing Broker DOL License No.	Listing Firm DOL License No.

 

  

VACANT LAND PURCHASE AND SALE AGREEMENT 

GENERAL TERMS 

Continued

 

a.

Purchase Price. Buyer shall pay to Seller the Purchase Price, including the Earnest Money, in cash at Closing, unless otherwise specified in this Agreement. Buyer represents that Buyer has sufficient funds to close this sale in accordance with this Agreement and is not relying on any contingent source of funds, including funds from loans, the sale of other property, gifts, retirement, or future earnings, except to the extent otherwise specified in this Agreement.

 

b.

Earnest Money. Buyer shall deliver the Earnest Money within 2 days after mutual acceptance to Selling Broker or to Closing Agent. If Buyer delivers the Earnest Money to Selling Broker, Selling Broker will deposit any check to be held by Selling Firm, or deliver any Earnest Money to be held by Closing Agent, within 3 days of receipt or mutual acceptance, whichever occurs later. If the Earnest Money is held by Selling Firm and is over $10,000.00 it shall be deposited into an interest bearing trust account in Selling Firm’s name provided that Buyer completes an IRS Form W-9. Interest, if any, after deduction of bank charges and fees, will be paid to Buyer. Buyer shall reimburse Selling Firm for bank charges and fees in excess of the interest earned, if any. If the Earnest Money held by Selling Firm is over $10,000.00 Buyer has the option to require Selling Firm to deposit the Earnest Money into the Housing Trust Fund Account, with the interest paid to the State Treasurer, if both Seller and Buyer so agree in writing. If the Buyer does not complete an IRS Form W-9 before Selling Firm must deposit the Earnest Money or the Earnest Money is $10,000.00 or less, the Earnest Money shall be deposited into the Housing Trust Fund Account. Selling Firm may transfer the Earnest Money to Closing Agent at Closing. If all or part of the Earnest Money is to be refunded to Buyer and any such costs remain unpaid, the Selling Firm or Closing Agent may deduct and pay them therefrom. The parties instruct Closing Agent to provide written verification of receipt of the Earnest Money and notice of dishonor of any check to the parties and Brokers at the addresses and/or fax numbers provided herein.

 

Upon termination of this Agreement, a party or the Closing Agent may deliver a form authorizing the release of Earnest Money to the other party or the parties. The party(s) shall execute such form and deliver the same to the Closing Agent. If either party fails to execute the release form, a party may make a written demand to the Closing Agent for the Earnest Money. Pursuant to RCW 64.04, Closing Agent shall deliver notice of the demand to the other party within 15 days. If the other party does not object to the demand within 20 days of Closing Agent’s notice, Closing Agent shall disburse the Earnest Money to the party making the demand within 10 days of the expiration of the 20 day period. If Closing Agent timely receives an objection or an inconsistent demand from the other party, Closing Agent shall commence an interpleader action within 60 days of such objection or inconsistent demand, unless the parties provide subsequent consistent instructions to Closing Agent to disburse the earnest money or refrain from commencing an interpleader action for a specified period of time. Pursuant to RCW 4.28.080, the parties consent to service of the summons and complaint for an interpleader action by first class mail, postage prepaid at the party’s usual mailing address or the address identified in this Agreement. If the Closing Agent complies with the preceding process, each party shall be deemed to have released Closing Agent from any and all claims or liability related to the disbursal of the Earnest Money. If either party fails to authorize the release of the Earnest Money to the other party when required to do so under this Agreement, that party shall be in breach of this Agreement. For the purposes of this section, the term Closing Agent includes a Selling Firm holding the Earnest Money. The parties authorize the party commencing an interpleader action to deduct up to $500.00 for the costs thereof.

 

c.

Condition of Title. Unless otherwise specified in this Agreement, title to the Property shall be marketable at Closing. The following shall not cause the title to be unmarketable: rights, reservations, covenants, conditions and restrictions, presently of record and general to the area; easements and encroachments, not materially affecting the value of or unduly interfering with Buyer’s reasonable use of the Property; and reserved oil and/or mining rights. Monetary encumbrances or liens not assumed by Buyer, shall be paid or discharged by Seller on or before Closing. Title shall be conveyed by a Statutory Warranty Deed. If this Agreement is for conveyance of a buyer’s interest in a Real Estate Contract, the Statutory Warranty Deed shall include a buyer’s assignment of the contract sufficient to convey after acquired title. If the Property has been short platted, the Short Plat number is in the Legal Description.

 

d.

Title Insurance. Seller authorizes Buyer’s lender or Closing Agent, at Seller’s expense, to apply for the then-current ALTA form of standard form owner’s policy of title insurance from the Title Insurance Company. If Seller previously received a preliminary commitment from a Title Insurance Company that Buyer declines to use, Buyer shall pay any cancellation fees owing to the original Title Insurance Company. Otherwise, the party applying for title insurance shall pay any title cancellation fee, in the event such a fee is assessed. The Title Insurance Company shall send a copy of the preliminary commitment to Seller, Listing Broker, Buyer and Selling Broker. The preliminary commitment, and the title policy to be issued, shall contain no exceptions other than the General Exclusions and Exceptions in said standard form and Special Exceptions consistent with the Condition of Title herein provided. If title cannot be made so insurable prior to the Closing Date, then as Buyer’s sole and exclusive remedy, the Earnest Money shall, unless Buyer elects to waive such defects or encumbrances, be refunded to the Buyer, less any unpaid costs described in the Agreement, and this Agreement shall thereupon be terminated. Buyer shall have no right to specific performance or damages as a consequence of Seller’s inability to provide insurable title.

 

e.

Closing and Possession. This sale shall be closed by the Closing Agent on the Closing Date. “Closing” means the date on which all documents are recorded and the sale proceeds are available to Seller. If the Closing Date falls on a Saturday, Sunday, legal holiday as defined in RCW 1.16.050, or day when the county recording office is closed, the Closing Agent shall close the transaction on the next day that is not a Saturday, Sunday, legal holiday, or day when the county recording office is closed. Buyer shall be entitled to possession at 9:00 p.m. on the Possession Date. Seller shall maintain the Property in its present condition, normal wear and tear excepted, until the Buyer is entitled to possession. Buyer reserves the right to walk through the Property within 5 days of Closing to verify that Seller has maintained the Property as required by this paragraph. Seller shall not enter into or modify existing leases or rental agreements, service contracts, or other agreements affecting the Property which have terms extending beyond Closing without first obtaining Buyer’s consent, which shall not be unreasonably withheld.

 

 

GENERAL TERMS 

Continued

 

f.

Section 1031 Like-Kind Exchange. If either Buyer or Seller intends for this transaction to be a part of a Section 1031 like-kind exchange, then the other party shall cooperate in the completion of the like-kind exchange so long as the cooperating party incurs no additional liability in doing so, and so long as any expenses (including attorneys' fees and costs) incurred by the cooperating party that are related only to the exchange are paid or reimbursed to the cooperating party at or prior to Closing. Notwithstanding the Assignment paragraph of this Agreement, any party completing a Section 1031 like-kind exchange may assign this Agreement to its qualified intermediary or any entity set up for the purposes of completing a reverse exchange.

 

g.

Closing Costs and Prorations and Charges and Assessments. Seller and Buyer shall each pay one-half of the escrow fee unless otherwise required by applicable FHA or VA regulations. Taxes for the current year, rent, interest, and lienable homeowner’s association dues shall be prorated as of Closing. Buyer shall pay Buyer’s loan costs, including credit report, appraisal charge and lender’s title insurance, unless provided otherwise in this Agreement. If any payments are delinquent on encumbrances which will remain after Closing, Closing Agent is instructed to pay such delinquencies at Closing from money due, or to be paid by, Seller. Buyer shall pay for remaining fuel in the fuel tank if, prior to Closing, Seller obtains a written statement from the supplier as to the quantity and current price and provides such statement to the Closing Agent. Seller shall pay all utility charges, including unbilled charges. Unless waived in Specific Term No. 11, Seller and Buyer request the services of Closing Agent in disbursing funds necessary to satisfy unpaid utility charges in accordance with RCW 60.80 and Seller shall provide the names and addresses of all utilities providing service to the Property and having lien rights (attach NWMLS Form 22K Identification of Utilities or equivalent).

 

Buyer is advised to verify the existence and amount of any local improvement district, capacity or impact charges or other assessments that may be charged against the Property before or after Closing. Seller will pay such charges that are or become due on or before Closing. Charges levied before Closing, but becoming due after Closing shall be paid as agreed in Specific Term No.12.

 

h.

Sale Information. Listing Broker and Selling Broker are authorized to report this Agreement (including price and all terms) to the Multiple Listing Service that published it and to its members, financing institutions, appraisers, and anyone else related to this sale. Buyer and Seller expressly authorize all Closing Agents, appraisers, title insurance companies, and others related to this Sale, to furnish the Listing Broker and/or Selling Broker, on request, any and all information and copies of documents concerning this sale.

 

i.

Seller Citizenship and FIRPTA. Seller warrants that the identification of Seller’s citizenship status for purposes of U.S. income taxation in Specific Term No. 13 is correct. Seller shall execute a certification (NWMLS Form 22E or equivalent) under the Foreign Investment In Real Property Tax Act (“FIRPTA”) at Closing and provide the certification to the Closing Agent. If Seller is a foreign person for purposes of U.S. income taxation, and this transaction is not otherwise exempt from FIRPTA, Closing Agent is instructed to withhold and pay the required amount to the Internal Revenue Service.

 

j.

Notices and Delivery of Documents. Any notice related to this Agreement (including revocations of offers or counteroffers) must be in writing. Notices to Seller must be signed by at least one Buyer and shall be deemed delivered only when the notice is received by Seller, by Listing Broker, or at the licensed office of Listing Broker. Notices to Buyer must be signed by at least one Seller and shall be deemed delivered only when the notice is received by Buyer, by Selling Broker, or at the licensed office of Selling Broker. Documents related to this Agreement, such as NWMLS Form 17C, Information on Lead-Based Paint and Lead-Based Paint Hazards, Public Offering Statement or Resale Certificate, and all other documents shall be delivered pursuant to this paragraph. Buyer and Seller must keep Selling Broker and Listing Broker advised of their whereabouts in order to receive prompt notification of receipt of a notice.

 

Facsimile transmission of any notice or document shall constitute delivery. E-mail transmission of any notice or document (or a direct link to such notice or document) shall constitute delivery when: (i) the e-mail is sent to both Selling Broker and Selling Firm or both Listing Broker and Listing Firm at the e-mail addresses specified on page one of this Agreement; or (ii) Selling Broker or Listing Broker provide written acknowledgment of receipt of the e-mail (an automatic e-mail reply does not constitute written acknowledgment). At the request of either party, or the Closing Agent, the parties will confirm facsimile or e-mail transmitted signatures by signing an original document.

 

k.

Computation of Time. Unless otherwise specified in this Agreement, any period of time measured in days and stated in this Agreement shall start on the day following the event commencing the period and shall expire at 9:00 p.m. of the last calendar day of the specified period of time. Except for the Possession Date, if the last day is a Saturday, Sunday or legal holiday as defined in RCW 1.16.050, the specified period of time shall expire on the next day that is not a Saturday, Sunday or legal holiday. Any specified period of 5 days or less, except for any time period relating to the Possesion Date, shall not include Saturdays, Sundays or legal holidays. If the parties agree that an event will occur on a specific calendar date, the event shall occur on that date, except for the Closing Date, which, if it falls on a Saturday, Sunday, legal holiday as defined in RCW 1.16.050, or day when the county recording office is closed, shall occur on the next day that is not a Saturday, Sunday, legal holiday, or day when the county recording office is closed. If the parties agree upon and attach a legal description after this Agreement is signed by the offeree and delivered to the offeror, then for the purposes of computing time, mutual acceptance shall be deemed to be on the date of delivery of an accepted offer or counteroffer to the offeror, rather than on the date the legal description is attached. Time is of the essence of this Agreement.

 

 

VACANT LAND PURCHASE AND SALE AGREEMENT 

GENERAL TERMS

Continued

 

l.

Integration and Electronic Signatures. This Agreement constitutes the entire understanding between the parties and supersedes all prior or contemporaneous understandings and representations. No modification of this Agreement shall be effective unless agreed in writing and signed by Buyer and Seller. The parties acknowledge that a signature in electronic form has the same legal effect and validity as a handwritten signature.

 

m.

Assignment. Buyer may not assign this Agreement, or Buyer’s rights hereunder, without Seller’s prior written consent, unless the parties indicate that assignment is permitted by the addition of “and/or assigns” on the line identifying the Buyer on the first page of this Agreement.

 

n.

Default. In the event Buyer fails, without legal excuse, to complete the purchase of the Property, then the following provision, as identified in Specific Term No. 7, shall apply:

 

i.

Forfeiture of Earnest Money. That portion of the Earnest Money that does not exceed five percent (5%) of the Purchase Price shall be forfeited to the Seller as the sole and exclusive remedy available to Seller for such failure.

 

ii.

Seller’s Election of Remedies. Seller may, at Seller’s option, (a) keep the Earnest Money as liquidated damages as the sole and exclusive remedy available to Seller for such failure, (b) bring suit against Buyer for Seller’s actual damages, (c) bring suit to specifically enforce this Agreement and recover any incidental damages, or (d) pursue any other rights or remedies available at law or equity.

 

o.

Professional Advice and Attorneys' Fees. Buyer and Seller are advised to seek the counsel of an attorney and a certified public accountant to review the terms of this Agreement. Buyer and Seller shall pay their own fees incurred for such review. However, if Buyer or Seller institutes suit against the other concerning this Agreement the prevailing party is entitled to reasonable attorneys’ fees and expenses.

 

p.

Offer. Buyer shall purchase the Property under the terms and conditions of this Agreement. Seller shall have until 9:00 p.m. on the Offer Expiration Date to accept this offer, unless sooner withdrawn. Acceptance shall not be effective until a signed copy is received by Buyer, by Selling Broker or at the licensed office of Selling Broker. If this offer is not so accepted, it shall lapse and any Earnest Money shall be refunded to Buyer.

 

q.

Counteroffer. Any change in the terms presented in an offer or counteroffer, other than the insertion of or change to Seller’s name and Seller’s warranty of citizenship status, shall be considered a counteroffer. If a party makes a counteroffer, then the other party shall have until 9:00 p.m. on the counteroffer expiration date to accept that counteroffer, unless sooner withdrawn. Acceptance shall not be effective until a signed copy is received by the other party, the other party’s broker, or at the licensed office of the other party’s broker. If the counteroffer is not so accepted, it shall lapse and any Earnest Money shall be refunded to Buyer.

 

r.

Offer and Counteroffer Expiration Date. If no expiration date is specified for an offer/counteroffer, the offer/counteroffer shall expire 2 days after the offer/counteroffer is delivered by the party making the offer/counteroffer, unless sooner withdrawn.

 

s.

Agency Disclosure. Selling Firm, Selling Firm’s Designated Broker, Selling Broker’s Branch Manager (if any) and Selling Broker’s Managing Broker (if any) represent the same party that Selling Broker represents. Listing Firm, Listing Firm’s Designated Broker, Listing Broker’s Branch Manager (if any), and Listing Broker’s Managing Broker (if any) represent the same party that the Listing Broker represents. If Selling Broker and Listing Broker are different persons affiliated with the same Firm, then both Buyer and Seller confirm their consent to Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing both parties as dual agents. If Selling Broker and Listing Broker are the same person representing both parties then both Buyer and Seller confirm their consent to that person and his/her Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing both parties as dual agents. All parties acknowledge receipt of the pamphlet entitled “The Law of Real Estate Agency.”

 

t.

Commission. Seller and Buyer shall pay a commission in accordance with any listing or commission agreement to 168 which they are a party. The Listing Firm’s commission shall be apportioned between Listing Firm and Selling Firm as 169 specified in the listing. Seller and Buyer hereby consent to Listing Firm or Selling Firm receiving compensation from more than one party. Seller and Buyer hereby assign to Listing Firm and Selling Firm, as applicable, a portion of their funds in escrow equal to such commission(s) and irrevocably instruct the Closing Agent to disburse the commission(s) directly to the Firm(s). In any action by Listing or Selling Firm to enforce this paragraph, the prevailing party is entitled to court costs and reasonable attorneys’ fees. Seller and Buyer agree that the Firms are intended third party beneficiaries under this Agreement.

 

		Buyer's Initials	Date	Buyer's Initials	Date	Seller's Initials	Date	Seller's Initials	Date
		/s/ JG	8/3/2017			/s/ RV	8/4/2017

Jeff Stearns - Land

 

 

VACANT LAND PURCHASE AND SALE AGREEMENT 

GENERAL TERMS

Continued

 

	u.	Feasibility Contingency. It is the Buyer’s responsibility to verify before the Feasibility Contingency Expiration Date identified in Specific Term No.15 whether or not the Property can be platted, developed and/or built on (now or in the future) and what it will cost to do this. Buyer should not rely on any oral statements concerning this made by the Seller, Listing Broker or Selling Broker. Buyer should inquire at the city or county, and water, sewer or other special districts in which the Property is located. Buyer’s inquiry should include, but not be limited to: building or development moratoriums applicable to or being considered for the Property; any special building requirements, including setbacks, height limits or restrictions on where buildings may be constructed on the Property; whether the Property is affected by a flood zone, wetlands, shorelands or other environmentally sensitive area; road, school, fire and any other growth mitigation or impact fees that must be paid; the procedure and length of time necessary to obtain plat approval and/or a building permit; sufficient water, sewer and utility and any service connection charges; and all other charges that must be paid. Buyer and Buyer’s agents, representatives, consultants, architects and engineers shall have the right, from time to time during and after the feasibility contingency, to enter onto the Property and to conduct any tests or studies that Buyer may need to ascertain the condition and suitability of the Property for Buyer’s intended purpose. Buyer shall restore the Property and all improvements on the Property to the same condition they were in prior to the inspection. Buyer shall be responsible for all damages resulting from any inspection of the Property performed on Buyer’s behalf. If the Buyer does not give notice to the contrary on or before the Feasibility Contingency Expiration Date identified in Specific Term No. 15, it shall be conclusively deemed that Buyer is satisfied as to development and/or construction feasibility and cost. If Buyer gives notice this Agreement shall terminate and the Earnest Money shall be refunded to Buyer, less any unpaid costs.
		Seller shall cooperate with Buyer in obtaining permits or other approvals Buyer may reasonably require for Buyer’s intended use of the Property; provided that Seller shall not be required to incur any liability or expenses in doing so.

 

v.

Subdivision. If the Property must be subdivided, Seller represents that there has been preliminary plat approval for the Property and this Agreement is conditioned on the recording of the final plat containing the Property on or before the date specified in Specific Term No. 14. If the final plat is not recorded by such date, this Agreement shall terminate and the Earnest Money shall be refunded to Buyer.

 

w.

Information Verification Period. Buyer shall have 10 days after mutual acceptance to verify all information provided from Seller or Listing Firm related to the Property. This contingency shall be deemed satisfied unless Buyer gives notice identifying the materially inaccurate information within 10 days of mutual acceptance. If Buyer gives timely notice under this section, then this Agreement shall terminate and the Earnest Money shall be refunded to Buyer.

 

x.

Property Condition Disclaimer. Buyer and Seller agree, that except as provided in this Agreement, all representations and information regarding the Property and the transaction are solely from the Seller or Buyer, and not from any Broker. The parties acknowledge that the Brokers are not responsible for assuring that the parties perform their obligations under this Agreement and that none of the Brokers has agreed to independently investigate or confirm any matter related to this transaction except as stated in this Agreement, or in a separate writing signed by such Broker. In addition, Brokers do not guarantee the value, quality or condition of the Property and some properties may contain building materials, including siding, roofing, ceiling, insulation, electrical, and plumbing, that have been the subject of lawsuits and/or governmental inquiry because of possible defects or health hazards. Some properties may have other defects arising after construction, such as drainage, leakage, pest, rot and mold problems. Brokers do not have the expertise to identify or assess defective products, materials, or conditions. Buyer is urged to use due diligence to inspect the Property to Buyer’s satisfaction and to retain inspectors qualified to identify the presence of defective materials and evaluate the condition of the Property as there may be defects that may only be revealed by careful inspection. Buyer is advised to investigate whether there is a sufficient water supply to meet Buyer’s needs. Buyer is advised to investigate the cost of insurance for the Property, including, but not limited to homeowner’s, flood, earthquake, landslide, and other available coverage. Brokers may assist the parties with locating and selecting third party service providers, such as inspectors or contractors, but Brokers cannot guarantee or be responsible for the services provided by those third parties. The parties shall exercise their own judgment and due diligence regarding third-party service providers.

 

		Buyer's Initials	Date	Buyer's Initials	Date	Seller's Initials	Date	Seller's Initials	Date
		/s/ JG	8/3/2017			/s/ RV	8/4/2017

 

Jeff Stearns - Land

 

 

ADDENDUM/AMENDMENT TO PURCHASE AND SALE AGREEMENT

 

The following is part of the Purchase and Sale Agreement dated                          August 3, 2017                          between                                        ANTCREEK, LLC                                        ("Buyer") and                                     BLACKHAWK DEVELOPMENT INC                                     ("Seller") concerning      BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802      (the "Property").

 

IT IS AGREED BETWEEN THE SELLER AND BUYER AS FOLLOWS:

 

Closing subject to Boundary Line Adjustment of parent parcel. Buyer to agree to layout of boundary line adjustment during feasibility addendum period.

 

Seller to install vault and conduit enabling power infrastructure to the site prior to closing.

 

Reference Exhibit "A" attached site map sent by Jeff Moser to buyer. The subject property shall measure 3 acres in size upon closing. 3 acres at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

Refer to counter offer addendum.

 

Buyer shall option for XXXXXXX days from mutual acceptance for an additional adjoining 2 acres at $XXXXXX per foot, rounded up to $XXXXXXXXXX price for the 2 acres. Closing shall be the same as 3 acres as part of this purchase and sale agreement.

  

Closing to be on or before October 2nd, 2017.

 

Seller to fill out "Form 17 Sellers Disclosure" within 2 days of mutual acceptance.

 

Seller to pay Selling Brokerage, Homes and Equity R.E. Group a sales commission of 2% of total land sale at closing.

 

ALL OTHER TERMS AND CONDITIONS of said Agreement remain unchanged.

 

Initials: BUYER:

/s/ JG

Date:

8/3/2017

SELLER:

/s/ RV

Date:

8/4/2017

 

 

BUYER:

Date:

SELLER:

Date:

 

 

FEASIBILITY CONTINGENCY ADDENDUM

 

The following is part of the Purchase and Sale Agreement dated                          August 3, 2017                          between                                        ANTCREEK, LLC                                        ("Buyer") and                                     BLACKHAWK DEVELOPMENT INC                                     ("Seller") concerning      BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802      (the "Property").

 

Feasibility Contingency. Buyer shall verify within      30      days (10 days, if not filled in) after mutual acceptance (the “Feasibility Contingency Expiration Date”) the suitability of the Property for Buyer's intended purpose including, but not limited to, whether the Property can be platted, developed and/or built on (now or in the future) and what it will cost to do this. This Feasibility Contingency SHALL CONCLUSIVELY BE DEEMED WAIVED unless Buyer gives notice of disapproval on or before the Feasibility Contingency Expiration Date. If Buyer gives a timely notice of disapproval, then this Agreement shall terminate and the Earnest Money shall be refunded to Buyer. Buyer should not rely on any oral statements concerning feasibility made by the Seller, Listing Broker or Selling Broker. Buyer should inquire at the city or county, and water, sewer or other special districts in which the Property is located. Buyer’s inquiry shall include, but not be limited to: building or development moratoria applicable to or being considered for the Property; any special building requirements, including setbacks, height limits or restrictions on where buildings may be constructed on the Property; whether the Property is affected by a flood zone, wetlands, shorelands or other environmentally sensitive area; road, school, fire and any other growth mitigation or impact fees that must be paid; the procedure and length of time necessary to obtain plat approval and/or a building permit; sufficient water, sewer and utility and any services connection charges; and all other charges that must be paid.

 

Buyer and Buyer’s agents, representatives, consultants, architects and engineers shall have the right, from time to time during the feasibility contingency, to enter onto the Property and to conduct any tests or studies that Buyer may need to ascertain the condition and suitability of the Property for Buyer’s intended purpose. Buyer shall restore the Property and all improvements on the Property to the same condition they were in prior to the inspection. Buyer shall be responsible for all damages resulting from any inspection of the Property performed on Buyer’s behalf.

 

¨ AGREEMENT TERMINATED IF NOTICE OF SATISFACTION NOT TIMELY PROVIDED. If checked, this Agreement shall terminate and Buyer shall receive a refund of the Earnest Money unless Buyer gives notice to Seller on or before the Feasibility Contingency Expiration Date that the Property is suitable for Buyer’s intended purpose.

 

Initials: BUYER:

/s/ JG

Date:

8/3/2017

SELLER:

/s/ RV

Date:

8/4/2017

 

BUYER:

Date:

SELLER:

Date:

 

 

EARNEST MONEY PROMISSORY NOTE

 

$ [***]                             BLA of Parent Parcel 93700000002 East Wenatchee                  , Washington

 

FOR VALUE RECEIVED,          ANTCREEK, LLC           ("Buyer") agree(s) to pay to the order of      First American Title      (Selling Firm or Closing Agent) the sum of                         [***]                         Dollars ($ [***]                            ), as follows:

 

x

within 3 days following mutual acceptance of the Purchase and Sale Agreement.

 

¨ *

.

 

This Note is evidence of the obligation to pay Earnest Money under a real estate Purchase and Sale Agreement between the Buyer and           BLACKHAWK DEVELOPMENT INC           ("Seller") dated           August 3, 2017          . Buyer's failure to pay the Earnest Money strictly as above shall constitute default on said Purchase and Sale Agreement as well as on this Note.

 

If this Note shall be placed in the hands of an attorney for collection, or if suit shall be brought to collect any of the balance due on this Note, the Buyer promises to pay reasonable attorneys’ fees, and all court and collection costs.

 

Date: July 31, 2017                    

 

	BUYER	/s/ Xiaojing Guo
		ANTCREEK, LLC
	BUYER

 

* "On closing" or similar language is not recommended. Use a definite date.

 

 

RECEIPT FOR EARNEST MONEY

 

This Receipt is for Earnest Money received as part of the Purchase and Sale Agreement dated	08/03/2017

between	ANTCREEK, LLC	("Buyer")

and	BLACKHAWK DEVELOPMENT INC	("Seller")

concerning

BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802

(the "Property").

 

On                XXXXXXXXXXXXX                 , the undersigned received earnest money from Buyer in the amount of $ 10,000.00                     by x personal check  ¨ cashier's check  ¨ promissory note  ¨ cash other (                                                                             ).

 

	Jeff Hallman
	Print Name
	Agent509 | Homes & Equity RE Group
	Firm (Company)
	/s/ Jeff Hallman
	Signature Jeff Hallman
	x	Selling Broker
	¨	Closing Agent
	¨	Other

 

NOTE: If the Earnest Money is cash, you must deposit it or deliver it not later than the first banking day following receipt, regardless of the terms of the Purchase and Sale Agreement.

 

 

EVIDENCE OF FUNDS ADDENDUM

 

TO PURCHASE & SALE AGREEMENT

 

The following is part of the Purchase and Sale agreement dated                          August 3, 2017                          between                                        ANTCREEK, LLC                                        ("Buyer") and                                     BLACKHAWK DEVELOPMENT INC                                     ("Seller") concerning      BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802      ("the Property").

 

1.

DEFINITIONS.

 

a.

"Evidence" means document(s) from a financial institution(s) in the United States showing that Buyer has sufficient cash or cash equivalent in United States funds.

 

b.

"Non-Contingent Funds" means funds that Buyer currently has in its possession and for which there is no contingency, such as financing (NWMLS Form 22A or equivalent), sale of Buyer's property (NWMLS Form 22B or equivalent), or pending sale of Buyer’s property (NWMLS Form 22Q or equivalent).

 

c.

“Contingent Funds” means funds that Buyer does not currently have and expects to receive from another source prior to Closing, such as a loan, proceeds from the sale of other property or stock, retirement funds, foreign funds, a gift, or future earnings.

 

2.

x

EVIDENCE OF NON-CONTINGENT FUNDS. Buyer is relying on Non-Contingent Funds for payment of the Purchase Price. Buyer shall provide Evidence to Seller of such funds within 7 days (3 days if not filled in) of mutual acceptance. Unless Buyer discloses other sources of funds for the payment of the Purchase Price, Buyer represents that the Non-Contingent Funds are sufficient to pay the Purchase Price. Buyer shall not use such Non-Contingent Funds for any purpose other than the purchase of the Property without Seller’s prior written consent. If Buyer fails to timely provide such Evidence, Seller may give notice terminating this Agreement any time before such Evidence is provided. Upon Seller’s notice of termination under this Addendum, the Earnest Money shall be refunded to Buyer.

 

3.

¨

DISCLOSURE OF SOURCES OF CONTINGENT FUNDS. Buyer is relying on the following Contingent Funds for the Purchase Price:

  

¨

Sale of the following property owned by Buyer

 

¨

Gift of $                                 from

 

¨

Funds not readily convertible to liquid United States funds (describe):

 

¨

Other (describe):

 

Buyer shall provide Evidence to Seller                  days (10 days if not filled in) prior to Closing that the funds relied upon in Section 3 have been received or are immediately available to Buyer. If Buyer fails to timely provide such Evidence, Seller may give notice terminating this Agreement any time before such Evidence is provided. Buyer shall provide Seller with additional information about such funds as may be reasonably requested by Seller from time to time. Upon Seller’s notice of termination under this Addendum, the Earnest Money shall be refunded to Buyer.

 

4.

BUYER DEFAULT. If Buyer fails to timely close because the Contingent Funds identified in Paragraph 3 are not available by Closing, Buyer shall be in default and Seller shall be entitled to remedies as provided for in the Agreement.

 

 

Initials: BUYER:

/s/ JG

DATE:

8/3/2017

SELLER:

/s/ RV

DATE:

8/4/2017

 

BUYER:

DATE:

SELLER:

DATE:

 

 

TITLE CONTINGENCY ADDENDUM TO
PURCHASE & SALE AGREEMENT

 

The following is part of the Purchase and Sale Agreement dated	August 3, 2017

between	ANTCREEK, LLC	("Buyer")
	Buyer                                                                                                  Buyer

and	BLACKHAWK DEVELOPMENT INC	("Seller")
	Seller                                                                                                                 Seller

concerning	BLA of Parent Parcel 93700000002, East Wenatchee, WA 98802	(the "Property").
	Address                         City                    State             Zip

 

1.

Title Contingency. This Agreement is subject to Buyer's review of a preliminary commitment for title insurance, together with any easements, covenants, conditions and restrictions of record. Buyer shall have                      days (5 days if not filled in) from ¨ the date of Buyer’s receipt of the preliminary commitment for title insurance; or ¨ mutual acceptance (from the date of Buyer’s receipt, if neither box checked) to give notice of Buyer's disapproval of exceptions contained in the preliminary commitment.

 

Seller shall have                      days (5 days if not filled in) after Buyer's notice of disapproval to give Buyer notice that Seller will clear all disapproved exceptions. Seller shall have until the Closing Date to clear all disapproved exceptions.

 

If Seller does not give timely notice that Seller will clear all disapproved exceptions, Buyer may terminate this Agreement within 3 days after the deadline for Seller's notice. In the event Buyer elects to terminate the Agreement, the Earnest Money shall be returned to Buyer. If Buyer does not timely terminate the Agreement, Buyer shall be deemed to have waived all objections to title, which Seller did not agree to clear.

 

2.

Supplemental Title Reports. If supplemental title reports disclose new exception(s) to the title commitment, then the above time periods and procedures for notice, correction, and termination for those new exceptions shall apply to the date of Buyer's receipt of the supplemental title report. The Closing date shall be extended as necessary to accommodate the foregoing times for notices.

 

3.

Marketable Title. This Addendum does not relieve Seller of the obligation to provide marketable title at Closing as provided for in the Agreement.

 

/s/ JG	8/3/2017			/s/ RV	8/4/2017
Buyer's Initials	Date	Buyer's Initials	Date	Seller's Initials	Date	Seller's Initials	Date

 

 

 

SELLER DISCLOSURE STATEMENT
UNIMPROVED PROPERTY

 

 

SELLER:

BLACKHAWK DEVELOPMENT INC

 

To be used in transfers of unimproved residential real property, including property zoned for residential use that is not improved by one or more residential dwelling units, a residential condominium, a residential timeshare or a mobile or manufactured home. Unimproved residential real property does not include commercial real estate as defined in RCW 60.42.005 or property defined as "timber land" under RCW 84.34.020. See RCW Chapter 64.06 for further information.

 

INSTRUCTIONS TO THE SELLER

Please complete the following form. Do not leave any spaces blank. If the question clearly does not apply to the property check “NA.” If the answer is “yes” to any asterisked (*) item(s), please explain on attached sheets. Please refer to the line number(s) of the question(s) when you provide your explanation(s). For your protection you must date and initial each page of this disclosure statement and each attachment. Delivery of the disclosure statement must occur not later than five (5) business days, unless otherwise agreed, after mutual acceptance of a written purchase and sale agreement between Buyer and Seller.

 

NOTICE TO THE BUYER

THE FOLLOWING DISCLOSURES ARE MADE BY THE SELLER ABOUT THE CONDITION OF THE PROPERTY LOCATED AT                            BLA of Parent Parcel 93700000002                           , CITY                  East Wenatchee                 , STATE           WA          , ZIP           98802          , COUNTY                                                   (“THE PROPERTY”) OR AS  LEGALLY DESCRIBED ON THE ATTACHED EXHIBIT A.

 

SELLER MAKES THE FOLLOWING DISCLOSURES OF EXISTING MATERIAL FACTS OR MATERIAL DEFECTS TO BUYER BASED ON SELLER’S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME SELLER COMPLETES THIS DISCLOSURE STATEMENT. UNLESS YOU AND SELLER OTHERWISE AGREE IN WRITING, YOU HAVE THREE (3) BUSINESS DAYS FROM THE DAY SELLER OR SELLER’S AGENT DELIVERS THIS DISCLOSURE STATEMENT TO YOU TO RESCIND THE AGREEMENT BY DELIVERING A SEPARATELY SIGNED WRITTEN STATEMENT OF RESCISSION TO SELLER OR SELLER’S AGENT. IF THE SELLER DOES NOT GIVE YOU A COMPLETED DISCLOSURE STATEMENT, THEN YOU MAY WAIVE THE RIGHT TO RESCIND PRIOR TO OR AFTER THE TIME YOU ENTER INTO A PURCHASE AND SALE AGREEMENT.

 

THE FOLLOWING ARE DISCLOSURES MADE BY SELLER AND ARE NOT THE REPRESENTATIONS OF ANY REAL ESTATE LICENSEE OR OTHER PARTY. THIS INFORMATION IS FOR DISCLOSURE ONLY AND IS NOT INTENDED TO BE A PARTOFANY WRITTEN AGREEMENT BETWEEN BUYER AND SELLER.

 

FOR A MORE COMPREHENSIVE EXAMINATION OF THE SPECIFIC CONDITION OF THIS PROPERTY YOU ARE ADVISED TO OBTAIN AND PAY FOR THE SERVICES OF QUALIFIED EXPERTS TO INSPECT THE PROPERTY, WHICH MAY INCLUDE, WITHOUT LIMITATION, ARCHITECTS, ENGINEERS, LAND SURVEYORS, PLUMBERS, ELECTRICIANS, ROOFERS, BUILDING INSPECTORS, ON-SITE WASTEWATER TREATMENT INSPECTORS, OR STRUCTURAL PEST INSPECTORS. THE PROSPECTIVE BUYER AND SELLER MAY WISH TO OBTAIN PROFESSIONAL ADVICE OR INSPECTIONS OF THE PROPERTY OR TO PROVIDE APPROPRIATE PROVISIONS IN A CONTRACT BETWEEN THEM WITH RESPECT TO ANY ADVICE, INSPECTION, DEFECTS OR WARRANTIES.

 

SELLER ¨ IS/ ¨ IS NOT OCCUPYING THE PROPERTY.

 

 

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

I.	SELLER’S DISCLOSURES:

 

*If you answer “Yes” to a question with an asterisk (*), please explain your answer and attach documents, if available and not otherwise publicly recorded. If necessary, use an attached sheet.

 

	1.	TITLE		YES	NO	DON'T KNOW	N/A
		A.	Do you have legal authority to sell the property? If no, please explain.	¨	¨	¨	¨
		*B.	Is title to the property subject to any of the following?	¨	¨	¨	¨
			(1) First right of refusal	¨	¨	¨	¨
			(2) Option	¨	¨	¨	¨
			(3) Lease or rental agreement	¨	¨	¨	¨
			(4) Life estate?	¨	¨	¨	¨
		*C.	Are there any encroachments, boundary agreements, or boundary disputes?	¨	¨	¨	¨
		*D.	Is there a private road or easement agreement for access to the property?	¨	¨	¨	¨
		*E.	Are there any rights-of-way, easements or access limitations that may affect the Buyer’s use of the property?	¨	¨	¨	¨

 

  

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

				YES	NO	DON'T KNOW	N/A
		*F.	Are there any written agreements for joint maintenance of an easement or right-of-way?	¨	¨	¨	¨
		*G.	Is there any study, survey project, or notice that would adversely affect the property?	¨	¨	¨	¨
		*H.	Are there any pending or existing assessments against the property?	¨	¨	¨	¨
		*I.	Are there any zoning violations, nonconforming uses, or any unusual restrictions on the property that would affect future construction or remodeling?	¨	¨	¨	¨
		*J.	Is there a boundary survey for the property?	¨	¨	¨	¨
		*K.	Are there any covenants, conditions, or restrictions recorded against the property?	¨	¨	¨	¨
			PLEASE NOTE: Covenants, conditions, and restrictions which purport to forbid or restrict the conveyance, encumbrance, occupancy, or lease of real property to individuals based on race, creed, color, sex, national origin, familial status, or disability are void, unenforceable, and illegal. RCW 49.60.224.

 

2.	WATER
	A.	Household Water
		(1)	Does the property have potable water supply?		¨	¨	¨	¨
		(2)	If yes, the source of water for the property is:    ¨   Private or publicly owned water system
			¨   Private well serving only the property    * ¨   Other water system
			*If shared, are there any written agreements?		¨	¨	¨	¨
		*(3)	Is there an easement (recorded or unrecorded) for access to and/or maintenance of the water source?		¨	¨	¨	¨
		*(4)	Are there any problems or repairs needed?		¨	¨	¨	¨
		(5)	Is there a connection or hook-up charge payable before the property can be connected to the water main?		¨	¨	¨	¨
		(6)	Have you obtained a certificate of water availability from the water purveyor serving the property? (If yes, please attach a copy.)		¨	¨	¨	¨
		(7)	Is there a water right permit, certificate, or claim associated with household water supply for the property? (If yes, please attach a copy.)		¨	¨	¨	¨
			(a)	If yes, has the water right permit, certificate, or claim been assigned, transferred, or changed?	¨	¨	¨	¨
			*(b)	If yes, has all or any portion of the water right not been used for five or more successive years?	¨	¨	¨	¨
			(c)	If no or don’t know, is the water withdrawn from the water source less than 5,000 gallons a day?	¨	¨	¨	¨
		*(8)	Are there any defects in the operation of the water system (e.g. pipes, tank, pump, etc.)?		¨	¨	¨	¨
B.	Irrigation Water
		(1)	Are there any irrigation water rights for the property, such as a water right permit, certificate, or claim? (If yes, please attach a copy.)		¨	¨	¨	¨
			(a)	If yes, has all or any portion of the water right not been used for five or more successive years?	¨	¨	¨	¨
			(b)	If yes, has the water right permit, certificate, or claim been assigned, transferred, or changed?	¨	¨	¨	¨

 

 

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

YES

NO

DON'T KNOW

N/A

 

*(2)

Does the property receive irrigation water from a ditch company, irrigation district, or other entity?

¨

¨

¨

¨

 

If so, please identify the entity that supplies water to the property:

 

                                                                                                                                                                                        

 

	C.	Outdoor Sprinkler System

	(1)	Is there an outdoor sprinkler system for the property?	¨	¨	¨	¨
	*(2)	If yes, are there any defects in the system?	¨	¨	¨	¨
	*(3)	If yes, is the sprinkler system connected to irrigation water?	¨	¨	¨	¨

 

3.	SEWER/SEPTIC SYSTEM

	A.	The property is served by:

	¨	Public sewer system
	¨	On-site sewage system (including pipes, tanks, drainfields, and all other component parts)
	¨	Other disposal system

    Please describe:                                                                                                                                                                 

 

B.

Is the property subject to any sewage system fees or charges in addition to those covered in your regularly billed sewer or on-site sewage system maintenance service?

¨

¨

¨

¨

 

C.

If the property is connected to an on-site sewage system:

¨

¨

¨

¨

	*(1)	Was a permit issued for its construction?	¨	¨	¨	¨
	*(2)	Was it approved by the local health department or district following its construction?	¨	¨	¨	¨
	(3)	Is the septic system a pressurized system?	¨	¨	¨	¨

	(4)	Is the septic system a gravity system?	¨	¨	¨	¨
	*(5)	Have there been any changes or repairs to the on-site sewage system?	¨	¨	¨	¨
	(6)	Is the on-site sewage system, including the drainfield, located entirely within the boundaries of the property?	¨	¨	¨	¨

    If no, please explain:                                                                                                                                                         

 

*(7)

Does the on-site sewage system require monitoring and maintenance services more frequently than once a year?

¨

¨

¨

¨

 

4.	ELECTRICAL/GAS

	A.	Is the property served by natural gas?	¨	¨	¨	¨
	B.	Is there a connection charge for gas?	¨	¨	¨	¨
	C.	Is the property served by electricity?	¨	¨	¨	¨
	D.	Is there a connection charge for electricity?	¨	¨	¨	¨
	*E.	Are there any electrical problems on the property?	¨	¨	¨	¨

 

5.	FLOODING

A.

Is the property located in a government designated flood zone or floodplain?

¨

¨

¨

¨

 

 

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

YES

NO

DON'T KNOW

N/A

 

6.	SOIL STABILITY

 

*A.

Are there any settlement, earth movement, slides, or similar soil problems on the property?

¨

¨

¨

¨

 

7.	ENVIRONMENTAL

 

	*A.	Have there been any flooding, standing water, or drainage problems on the property that affect the property or access to the property?	¨	¨	¨	¨
	*B.	Does any part of the property contain fill dirt, waste, or other fill material?	¨	¨	¨	¨
	*C.	Is there any material damage to the property from fire, wind, floods, beach movements, earthquake, expansive soils, or landslides?	¨	¨	¨	¨
	D.	Are there any shorelines, wetlands, floodplains, or critical areas on the property?	¨	¨	¨	¨
	*E.	Are there any substances, materials, or products in or on the property that may be environmental concerns, such as asbestos, formaldehyde, radon gas, lead-based paint, fuel or chemical storage tanks, or contaminated soil or water?	¨	¨	¨	¨
	*F.	Has the property been used for commercial or industrial purposes?	¨	¨	¨	¨
	*G.	Is there any soil or groundwater contamination?	¨	¨	¨	¨
	*H.	Are there transmission poles or other electrical utility equipment installed, maintained, or buried on the property that do not provide utility service to the structures on the property?	¨	¨	¨	¨
	*I.	Has the property been used as a legal or illegal dumping site?	¨	¨	¨	¨
	*J.	Has the property been used as an illegal drug manufacturing site?	¨	¨	¨	¨
	*K.	Are there any radio towers in the area that cause interference with cellular telephone reception?	¨	¨	¨	¨

 

as threatened or endangered by the government?

 

8.	HOMEOWNERS’ ASSOCIATION/COMMON INTERESTS

 

A.

Is there a homeowners’ association?

¨

¨

¨

¨

 

Name of Association and contact information for an officer, director, employee, or other authorized agent, if any, who may provide the association's financial statements, minutes, bylaws, fining policy, and other information that is not publicly available:                             

 

B.

Are there regular periodic assessments?

¨

¨

¨

¨

 

$                     per  ¨   month  ¨ year

 

¨ Other:                                                                                                                                                                           

 

*C.

Are there any pending special assessments?

¨

¨

¨

¨

 

*D.

Are there any shared “common areas” or any joint maintenance agreements (facilities such as walls, fences, landscaping, pools, tennis courts, walkways, or other areas co-owned in undivided interest with others)?

¨

¨

¨

¨

 

9.	OTHER FACTS

 

*A.

Are there any disagreements, disputes, encroachments, or legal actions concerning the property?

¨

¨

¨

¨

 

*B.

Does the property have any plants or wildlife that are designated as species of concern, or listed as threatened or endangered by the government?

¨

¨

¨

¨

 

 

 

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

				YES	NO	DON'T KNOW	N/A
		*C.	Is the property classified or designated as forest land or open space?	¨	¨	¨	¨
		D.	Do you have a forest management plan? If yes, attach.	¨	¨	¨	¨
		*E.	Have any development-related permit applications been submitted to any government agencies?	¨	¨	¨	¨
			If the answer to E is “yes,” what is the status or outcome of those applications?
		F	Is the property located within a city, county, or district or within a department of natural resources fire protection zone that provides fire protection services?	¨	¨	¨	¨
10.	FULL DISCLOSURE BY SELLERS
		A.	Other conditions or defects:
			*Are there any other existing material defects affecting the property that a prospective buyer should know about?	¨	¨	¨	¨
		B.	Verification
			The foregoing answers and attached explanations (if any) are complete and correct to the best of Seller’s knowledge and
			Seller has received a copy hereof. Seller agrees to defend, indemnify and hold real estate licensees harmless from and against any and all claims that the above information is inaccurate. Seller authorizes real estate licensees, if any, to deliver a copy of this disclosure statement to other real estate licensees and all prospective buyers of the property.
			BLACKHAWK DEVELOPMENT INC

 

If the answer is “Yes” to any asterisked (*) items, please explain below (use additional sheets if necessary). Please refer to the line number(s) of the question(s). 

 

 

 

SELLER DISCLOSURE STATEMENT

 

UNIMPROVED PROPERTY

 

(Continued)

 

II.	NOTICES TO THE BUYER
	1.	SEX OFFENDER REGISTRATION
		INFORMATION REGARDING REGISTERED SEX OFFENDERS MAY BE OBTAINED FROM LOCAL LAW ENFORCEMENT AGENCIES THIS NOTICE IS INTENDED ONLY TO INFORM YOU OF WHERE TO OBTAIN THIS INFORMATION AND IS NOT AN INDICATION OF THE PRESENCE OF REGISTERED SEX OFFENDERS.
	2.	PROXIMITY TO FARMING
		THIS NOTICE IS TO INFORM YOU THAT THE REAL PROPERTY YOU ARE CONSIDERING FOR PURCHASE MAY LIE IN CLOSE PROXIMITY TO A FARM. THE OPERATION OF A FARM INVOLVES USUAL AND CUSTOMARY AGRICULTURAL PRACTICES, WHICH ARE PROTECTED UNDER RCW 7.48.305, THE WASHINGTON RIGHT TO FARM ACT.
III.	BUYER’S ACKNOWLEDGEMENT
	1.	BUYER HEREBY ACKNOWLEDGES THAT:
		A.	Buyer has a duty to pay diligent attention to any material defects that are known to Buyer or can be known to Buyer by utilizing diligent attention and observation.
		B.	The disclosures set forth in this statement and in any amendments to this statement are made only by the Seller and not by any real estate licensee or other party.
		C.	Buyer acknowledges that, pursuant to RCW 64.06.050(2), real estate licensees are not liable for inaccurate information provided by Seller, except to the extent that real estate licensees know of such inaccurate information.
		D.	This information is for disclosure only and is not intended to be a part of the written agreement between the Buyer and Seller.
			Buyer (which term includes all persons signing the “Buyer’s acceptance” portion of this disclosure statement below) has received a copy of this Disclosure Statement (including attachments, if any) bearing Seller’s signature(s).
		DISCLOSURES CONTAINED IN THIS DISCLOSURE STATEMENT ARE PROVIDED BY SELLER BASED ON SELLER’S ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME SELLER COMPLETES THIS DISCLOSURE. UNLESS BUYER AND SELLER OTHERWISE AGREE IN WRITING, BUYER SHALL HAVE THREE (3) BUSINESS DAYS FROM THE DAY SELLER OR SELLER’S AGENT DELIVERS THIS DISCLOSURE STATEMENT TO RESCIND THE AGREEMENT BY DELIVERING A SEPARATELY SIGNED WRITTEN STATEMENTOFRESCISSION TO SELLER OR SELLER’S AGENT. YOU MAY WAIVE THE RIGHT TO RESCIND PRIOR TO OR AFTER THE TIME YOU ENTER INTO A SALE AGREEMENT.
		BUYER HEREBY ACKNOWLEDGES RECEIPT OF A COPY OF THIS DISCLOSURE STATEMENT AND ACKNOWLEDGES THAT THE DISCLOSURES MADE HEREIN ARE THOSE OF THE SELLER ONLY, AND NOT OF ANY REAL ESTATE LICENSEE OR OTHER PARTY.

 

		8/3/2017
		/s/ ANTCREEK, LLC

 

	2.	BUYER’S WAIVER OF RIGHT TO REVOKE OFFER
		Buyer has read and reviewed the Seller’s responses to this Seller Disclosure Statement. Buyer approves this statement and waives Buyer’s right to revoke Buyer’s offer based on this disclosure.

 

		8/3/2017
		/s/ ANTCREEK, LLC

 

	3.	BUYER’S WAIVER OF RIGHT TO RECEIVE COMPLETED SELLER DISCLOSURE STATEMENT
		Buyer has been advised of Buyer's right to receive a completed Seller Disclosure Statement. Buyer waives that right. However, if the answer to any of the questions in the section entitled “Environmental” would be “yes,” Buyer may not waive the receipt of the “Environmental” section of the Seller Disclosure Statement.

 

		8/3/2017
		/s/ ANTCREEK, LLC

 

 

 

Exhibit 10.20 

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

 

Custody Agreement

 

Between

 

SHARPENING TECHNOLOGY LIMITED

BITMAIN SALES (USA) INC

CARPENTER CREEK LLC

(“Client”)

 

And

 

MATRIX GUARD LIMITED

(“Matrix”)

 

February 10, 2021

 

 

 

Custody Agreement

 

This custody agreement (the “Agreement”) is made and entered into on February 10, 2021 (“Signing Date”) by and between:

 

Matrix Guard Limited, having its registered office address at Room A1, 11/F, Success Commercial Building, 245-251 Hennessy Road, Hong Kong (“Matrix” or the “Company”); and

 

Sharpening Technology Limited (“Sharpening”), having its registered address at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands; Bitmain Sales (USA) Inc (“Bitmain Sales”), having its registered address at 850 New Burton Road, Suite 201, Dover, DE 19904; Carpenter Creek LLC (“Carpenter”), having its registered address at 992 Davidson Dr. Nashville, TN 37205.

 

(Sharpening, Bitmain Sales, and Carpenter are collectively referred to as “Client”, and the Client and the Company are referred to collectively as “Parties”, and individually as a “Party”).

 

RECITALS:

 

A.       WHEREAS the Company is a provider of custody services and desires to provide custody services to the Client (hereinafter referred to as the “Services”);

 

B.       WHEREAS the Client desires to receive the said custody services provided by the Company.

 

AGREEMENT:

 

In consideration of the mutual covenants, promises and conditions set forth below in the Agreement, the Parties hereto hereby agree as follows:

 

1.                Definitions

 

1.1.             Terms

 

In the Agreement, the following terms shall have the following meanings:

 

“Affiliate” means, with respect to any particular person, any company or other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such person.

 

“Assets” means any Backed Digital Assets delivered to the Company and held through a custody account opened by the Company on behalf of the Client until such assets are withdrawn or cease to be qualified as assets under the Agreement.

 

 

“Authorized Person” means the person authorized to sign the Agreement on behalf of the Client and / or the person designated by the Client to establish the Client’s custody account and to act as the “enterprise administrator” in the Custody System. The Client may amend the designation of the Authorized Person by giving the Company a written updated authorization.

 

“Blockchain Address” means the public address on the blockchain where the assets are owned.

 

Ownership of the Backed Digital Assets under such custody account shall always remain with the user.

 

“Custody System” means the Company’s proprietary digital asset storage system, both online and offline, used by the Company to hold the Client’s Assets under custody.

 

“delivery” (or “delivered” or “have/has been delivered”) means the transfer of the Backed Digital Assets to one or more Blockchain Addresses controlled by the receiving party and provided by the receiving party to the sending party for the purpose of such transfer. The Backed Digital Assets are deemed to have been delivered to the Company when the required number of blocks on the blockchain for such Backed Digital Assets are confirmed (as determined by the Company in its sole discretion).

 

“Digital Assets” means digital assets (also referred to as “cryptocurrencies”, “virtual currencies”, “digital currencies” or “virtual commodities”, such as Bitcoin, etc.) that are digital representations of value based on (or constructed on) a cryptographic computer network protocol.

 

“Digital Asset Network” means, as the Client hereby understands, the Company does not own or control the underlying software protocol of the Digital Asset Network that adjusts the operation of Digital Assets. In general, the underlying protocols are open source and may be used, copied, modified and transmitted by any person. The Client hereby agrees and understands that: (i) Matrix is not responsible for the operation of the underlying protocols; and (ii) Matrix cannot make any warranties as to the security, functionality or availability of the underlying software.

 

“Effective Date” means the date on which the Client first delivers the Backed Digital Assets to the Company.

 

“General Instruction” means any notice, direction or other communication that is not Proper Instruction. The Company may rely on General Instructions that the Company believes in good faith to be given by Authorized Persons of the Client.

 

“Proper Instruction” means an instruction sent to the Company from the user interface of the Custody System or an email address associated with Authorized Persons.

 

“Supported Networks”. The Client hereby agrees and understands that the Custody System of Matrix supports certain Digital Asset Networks (each a “Supported Network”). The Supported Networks are currently as follows: Bitcoin, Bitcoin Cash, Litecoin, Ethereum, Ethereum Classic, Desai Coin, Zcash, Bytom, and Ripple. The additional Supported Networks will be added from time to time in accordance with the Company’s development plan, and the latest Supported Networks will be updated on the Matrix website or in other official statements from Matrix.

 

 

“Backed Digital Assets”. The Client hereby agrees and understands that the Custody System of Matrix supports the Digital Assets of certain Supported Networks (each a “Backed Digital Asset”). The Backed Digital Assets are as follows: Bitcoin, Bitcoin Cash, Litecoin, Ethereum, Ethereum Classic, Desai Coin, Zcash, Bytom, Tether, USDC and Ripple. Additional Backed Digital Assets will be added from time to time in accordance with the Company’s development plan, and the latest Backed Digital Assets will be updated on the Matrix website or in other official statements from Matrix.

 

“Non-Backed Digital Assets” means Digital Assets of the Digital Asset Networks that are not supported.

 

“Withdrawal Request” means a request sent to the Company by Proper Instructions, which specifies the type and amount of assets to be withdrawn from the Client’s custody account and the destination Blockchain Address.

 

2.                Custody Services

 

2.1.             Appointment of Custodian. The Client hereby agrees to appoint the Company as custodian of the Assets held in the Client’s custody account under the Agreement, and the Company hereby accepts such appointment and assumes the obligations, duties and responsibilities set forth hereunder, with the first responsibility and obligation to safeguard the Client’s Assets in accordance with the Company’s actual management capabilities as announced on the Company’s website and advertised to the Client. By entering into the Agreement, the Client agrees that the Client wishes to create a legal relationship entrusting the Company with the management of its Assets and the Client agrees that the Client wishes the Company to be the trustee.

 

2.2.             Custody Account. The Client agrees and understands that the Company will establish a custody account in the name of the Client. The Client’s custody account will have one or more relevant Blockchain Addresses. The Client agrees and understands that, to the extent permitted by the applicable law, the Client’s Assets and the assets of other clients of Matrix may be located at the same Blockchain Address, but that the ownership of the Client’s Assets will be clearly documented in Matrix’s books as follows, i.e., the ownership of the Client’s Assets shall remain with the Client at all times when Matrix is acting as custodian of the Client’s Assets. Matrix’s records shall at all times clearly document the status of the Client’s Assets. Matrix shall not lend, pledge, charge or encumber any Assets in the Client’s custody account without the General Instructions from the Client. The Client hereby agrees that nothing in the Agreement shall prohibit Matrix from using the Custody System for the custody of Matrix’s own assets; however, in such cases, the Client’s Assets shall be segregated from Matrix’s own assets at all times.

 

 

2.3.             Delivery. The Client hereby agrees and understands that the Backed Digital Assets are considered to be the Assets under custody only upon delivery to the Blockchain Address provided by the Company to the Client. The Client hereby agrees and understands that the Company shall have no obligation with respect to any Backed Digital Assets unless they have been delivered to the Company. Further, the Client hereby agrees and understands that the Company shall not be required to accept delivery of the Backed Digital Assets and assume no liability for them where the Company believes that the acceptance of the Backed Digital Assets will or may result in any liability to the Company or any of its Affiliates (however, if delivery is made by the Client, the Company shall ensure that the Backed Digital Assets are returned to the Client).

 

3.                Storage and Withdrawal

 

3.1          Storage. The Client may store the Backed Digital Assets at the corresponding Blockchain Address of the Client’s custody account without any involvement of the Company. Upon delivery of the Backed Digital Assets, the said Backed Digital Assets will be credited to the Client’s custody account.

 

3.2	Withdrawal.

 

(i)

Withdrawal Request and Withdrawal Confirmation. Upon receipt of a submitted Withdrawal Request through the user interface of the Custody System and if the withdrawal amount is significant, the Company will initiate a verification process. During the verification process, the customer service officer of the Company will call the Authorized Persons specified in the Client’s account within 5 hours upon receiving the Withdrawal Request (unless such Withdrawal Request is made by the Authorized Persons; however, if only one Authorized Person is specified, the Company shall call such Authorized Person making the Withdrawal Request and follow such other reasonable agreement as the Company may determine in its sole discretion in order to confirm and verify such Withdrawal Request) in order to confirm such Withdrawal Request (“review”). The Company will process the Client’s Withdrawal Request provided that the Company can successfully conduct the review and the Customer can complete the additional authentication form requested by the Company (as determined by the Company in its sole discretion) (“withdrawal confirmation”).

 

(ii)

Processing of Withdrawal Request. After the withdrawal confirmation is made, the Withdrawal Request will be processed in real-time based on the confirmation time of the blockchain if the withdrawal is made from hot storage; if the withdrawal is made from cold storage, the processing time will be up to 48 hours from the time the Withdrawal Request is received and verified (if necessary). “Hot storage” means that the Backed Digital Assets are stored and transactions are signed in the hardware security module (HSM) online environment; “cold storage” means that the Backed Digital Assets are stored and transactions are signed in a completely offline environment.

 

 

(iii)

Authentication Not Possible. The Client further agrees and understands that, in the case of a review, the Company is unable to authenticate that it is speaking with the Authorized Persons in person and that the Company is entitled to rely on the presumption of certainty that it is speaking with the Authorized Persons in person.

 

(iv)

Right of Refusal. The Client hereby agrees and understands that the Company shall have the right to refuse to enforce any Withdrawal Request if the Company reasonably believes that such Withdrawal Request may violate any applicable laws and regulations.

 

(v)

Reliance. The Client hereby understands and agrees that the Company may rely on any action that the Company believes in good faith to have been taken by Authorized Persons.

 

4.

Fees

 

4.1.             Please refer to the provisions of Appendix I - Validity and Custody Fees (“Custody Fees Appendix”).

 

4.2.             The fees to be charged by the Company to the Client shall be limited to the items and rates set out in Appendix I - Validity and Custody Fees of the Agreement, and the Company and its employees and Affiliates shall not charge the Client any other fees for items not set out therein. Changes in the custody fees shall be notified to the Client in writing 15 working days in advance, and if the Client does not agree to the changes, the Client shall have the right to early terminate the Agreement, in which case the relevant Assets under custody shall, after deducting the fees for custody payable by the Client before the fees are changed, be refunded in full to the account designated by the Client.

 

5.                Suspension or Termination

 

5.1.             Right of Suspension or Termination. The Company reserves the right to temporarily suspend or terminate the Client’s access to or use of the Services in the following circumstances: (i) actual or suspected violations of the Agreement, applicable laws and / or regulations; (ii) use of the Services in a manner that may subject Matrix to legal liabilities or affect the use of the Services by others; and (iii) planned downtime and recurring downtime or unplanned technical upgrades and disruptions by Matrix or Matrix service providers.

 

6.                Representations, Warranties and Covenants

 

6.1.             The Client hereby represents and warrants (and such representations and warranties are continuing and shall be deemed to be reaffirmed upon a Withdrawal Request by the Client) that:

 

(i)

The Client is of or over the age of 18 years and has the legal capacity to enter into the Agreement with Matrix and agrees to be bound by all the terms and conditions of the Agreement;

 

 

(ii)

The Client is duly incorporated and validly existing under the laws of the jurisdiction in which it is organized or incorporated and, where relevant, the Client is in good standing under such law;

 

(iii)

The Client has the right to enter into the Agreement, to submit withdrawal applications and to perform its obligations hereunder;

 

(iv)

The Client’s performance of the Agreement will not result in a breach of, and will not result in a conflict with, any law, judgment, order, regulation or contractual obligation applicable to or binding on the Client or any of the Client’s Assets;

 

(v)

To the fullest extent known to the Client, all governmental and other consents required to be obtained by the Client in connection with the Agreement and any Withdrawal Request have been obtained, such consents are in full legal force and effect, and all conditions of such consents have been satisfied;

 

(vi)

The Client’s obligations hereunder shall constitute legal, valid and binding obligations of the Client, which are enforceable in accordance with their respective terms.

 

(vii)

The Client shall not use the Services provided by the Company in a manner that violates or results in a violation of any applicable laws and regulations.

 

(viii)

The Client is aware of, familiar with, and has been adequately informed of the risks associated with its making Proper Instructions, and the Client is willing to accept such risks; the Client shall (and shall procure that each Authorized Person shall) protect any credentials associated with Proper Instructions and exercise a high degree of care with respect to such credentials. The Client hereby understands that there exist more secure methods of making or delivering Proper Instructions than the method selected by the Company, and the Client hereby agrees that the security procedures to be followed (if any) provide commercially reasonable protection in light of the particular needs and circumstances. The Client hereby agrees and understands that a Withdrawal Request made under Proper Instructions may be inferred by the Company to have been made by Authorized Persons and that the Company may (after review) act upon such Withdrawal Request; and

 

(ix)

The Client hereby agrees and understands that the Backed Digital Assets are a new category of assets, that the laws relating to the ownership, custody and transfer of the Backed Digital Assets are evolving and subject to uncertainty, and that custody of such Assets will involve risks not present in traditional categories of assets; the Client hereby further agrees and understands that the Client shall bear such risks and the loss or dilution of the value of the Backed Digital Assets resulting from changes or developments in laws or in the conditions of existing laws (where the Client’s rights to the Backed Digital Assets are not adequately protected).

 

 

(x)

The Client is not, and the transferee of Assets resulting from any Withdrawal Request is not, (i) subject to any law administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or other governmental entity that imposes economic sanctions and trade embargoes (“Economic Sanctions Act”); (ii) located in, organized in, or a resident of, a country or region that is the subject of sanctions by OFAC or any other governmental entity (or a country or region whose government is the subject of such economic sanctions).

 

6.2.            The Company hereby represents and warrants (and such representations and warranties are continuing and shall be deemed to be reaffirmed and made upon processing of a Withdrawal Request by the Company) that:

 

(i)

The Company is duly incorporated and validly existing under the laws of the jurisdiction in which it is organized or incorporated and, where relevant, the Company is in good standing under such law;

 

(ii)

The Company has the right to enforce and deliver the Agreement to satisfy Withdrawal Requests initiated by the Client and perform its obligations hereunder, and the Company has taken all actions necessary to perform its obligations hereunder;

 

(iii)

The Company’s performance of the Agreement will not result in a breach of, and will not result in a conflict with, any law, judgment, order, regulation or contractual restrictions applicable to or binding on the Company;

 

(iv)

The Company’s obligations hereunder shall constitute legal, valid and binding obligations of the Company, which are enforceable in accordance with their respective terms.

 

(v)

The Company has established the client asset protection fund to safeguard the Client’s Assets under custody and to ensure that the Client’s Assets under custody will be compensated by the Company’s client asset protection fund promptly in case they are damaged due to the Company’s security incidents during the custody of the Client’s Assets. (See 11.2 for the compensation rules)

 

7.                Custodial Obligations

 

7.1              The Client hereby understands that the Company will take all steps and exercise reasonable care to maintain the Client’s custody account and hold the Client’s Assets under custody. The Company agrees to exercise reasonable care and take commercially reasonable steps to perform its duties to the Client in accordance with the provisions of the Agreement or to exercise greater care as required by law or the Agreement. The Client agrees that the Company shall not be liable for any failure or delay in the performance by the Company’s service providers (including the Company’s banks, data centers or any other participants as permitted by the terms and conditions of the Agreement or as required by law) where the Company has actively procured the Company’s service providers to continue and complete their performance and where such failure or delay has been caused by the fault of the Client. Where the Company is indolent in the performance of its contractual obligations and collateral obligations hereunder or fails to promptly procure its service providers (including the Company’s banks, data centers or any other participants as permitted by the terms and conditions of the Agreement or as required by law) to continue and complete their performance in case of their failure or delay in doing so, causing the Client suffering from loss of the Assets under custody or other losses, the Company shall be liable to compensate the Client for the losses caused thereby.

 

 

7.2              The Client hereby agrees and understands that forks may result in the creation of fork networks and that the Company holds an equal amount of Digital Assets in connection with each fork network. The Client further agrees and understands that in respect of any such forks, the Company shall act in accordance with Article 9.2 hereof.

 

7.3              The Company agrees and understands that in the event of market disruption, the Company may, in its sole discretion, take one or more of the following actions: (i) suspend access to the custody services of Matrix; or (ii) prohibit the Client from completing any action through the custody services of Matrix. The Company shall not be liable for any damages suffered by the Client as a result of such actions. Upon the conclusion of such events and resumption of the availability of the custody services, the Client agrees and understands that the prevailing market price may be different from the market price prior to such events.

 

7.4              The Client further agrees and understands that, with respect to the Digital Assets in connection with unsolicited transfers, the Company shall act in accordance with Article 9.1 hereof.

 

7.5              The Client further agrees and understands that, with respect to the air-drop assets, the Company shall act in accordance with Article 9.3 hereof.

 

7.6              The Client hereby understands that the Company will hold and maintain (or cause others to hold) accurate books and records relating to any custody account and the Assets, including books and records relating to the receipt, withdrawal and transfer of the Assets.

 

7.7              The Client agrees and understands that the Company shall have no duty or responsibility to inquire about, advise on, supervise, or determine the suitability of any transaction involving any Digital Assets, Backed Digital Assets or Assets (and no provision hereof shall be construed as such). No provision hereof shall require the Company to grant credit, provide financial accommodation or provide funds or assets to the Client or for the benefit of the Client in order to perform any obligation undertaken by the Client, except for those matters separately agreed in writing by the Client and the Company.

 

 

7.8              The Client hereby understands and agrees that if the Client fails to pay the Company the fees at the time and in the amount agreed hereunder, the Company shall be entitled to retain any Assets in the custody account held by the Company of the corresponding amount (or the relevant value as determined by the Company in its sole discretion) or use the corresponding Assets to offset the fees payable by the Client to the Company under this Agreement.

 

7.9              The Client hereby understands and agrees that the Company shall have the right to provide information relating to any custody accounts or Assets as required by any law, regulation or rule in effect currently or after the date of the Agreement or as required by law enforcement authorities. However, to the extent permitted by law, the Company shall inform the Client of such information request notice.

 

7.10            The Client hereby understands and agrees that the Company shall have no duties or responsibilities in respect of any custody accounts or Assets unless such duties or responsibilities are expressly set out in the Agreement and that no undertakings or obligations against the Company are implied under the Agreement.

 

7.11            The Client hereby understands and agrees that the Company will maintain commercially compliant systems in respect of the following items: (i) being able to recover all records relating to the Client’s custody account in the event of a disaster; and (ii) continuing to provide the Services under this Agreement in the event of any downtime and maintenance operations.

 

8                 Client’s Obligations

 

8.1              The Client agrees to be liable for and to pay all taxes, assessments, duties and other governmental charges in connection with any Assets or any transactions relating to Assets, including any rights or penalties to which the Client is legally entitled and subject in respect of such Assets or transactions.

 

8.2              The Client agrees and understands that the Client and all Authorized Persons shall successfully complete the account opening procedures with the Company in accordance with the Company’s “Know Your Customer” / “Anti-Money Laundering” policies, which may be amended from time to time.

 

8.3             The Client agrees to notify the Company immediately if: (i) the Client is or becomes subject to any law administered by OFAC or any other governmental entity that imposes economic sanctions and trade embargoes; (ii) the Client is or will be located in, or is or will be organized in, or is or will become a resident of, a country or region that is the subject of sanctions by OFCA or any other governmental entity (or a country or region whose government is the subject of such economic sanctions); or (iii) the Client becomes aware that the Client or its Assets or any transactions involving its Assets are or will be the subject of any investigative proceedings (including reasonably detailed information about such investigations).

 

 

9	Unsolicited Transfers, Forks and Airdrops

 

9.1	Unsolicited Transfers.

 

(i)

The Client agrees and understands that if the Client or a third party deposits Non-Backed Digital Assets to a digital asset address controlled by the Company, the Company shall enjoy the rights in and account for such Non-Backed Digital Assets as the Company’s property.

 

(ii)

The Client agrees and understands that if a third party deposits Backed Digital Assets at a digital asset address controlled by the Company, the Company shall enjoy the following rights in and account for such Backed Digital Assets: (a) as the property of the Client if sent to the Client’s escrow account; or (b) as the property of the Company which is exclusive to the Company if sent to any other digital asset address controlled by the Company.

 

The Client further agrees and understands that the type of transfer set forth in this Article 9.1 (“unsolicited transfer”) does not give rise to any relationship between the Company and the sender, nor does it represent any relationship between both parties, and it does not cause the Company to assume any obligation to the sender.

 

(iii)

The Client hereby further agrees and understands that the Company shall have no obligation or responsibility to return the Digital Assets in connection with any unsolicited transfer. The Company will, in its sole discretion, consider a request for return if: (a) at the time the unsolicited transfer was made, the unsolicited Digital Assets were Backed Digital Assets; (b) the unsolicited transfer has been proven to be unintentional at the Company’s request and according to the Company’s requirements decided in its sole discretion; (c) it can prove its control over the original digital asset address at the Company’s request and according to the Company’s requirements decided in its sole discretion; (d) its identity can be authenticated and verified at the Company’s request and according to the Company’s requirements decided in its sole discretion, and (e) the Company receives the return request within thirty (30) calendar days after the unsolicited transfer.

 

(iv)

If the Company plans to perform such a return request, the Company shall give written notice within thirty (30) days after receiving the return request and shall take all steps to advise of the expected time of service. If the Company fails to give such written notice within thirty (30) days after receiving the refund request, it is deemed that the Company has rejected the relevant refund request.

 

 

9.2

Forks.

 

(i)

The Client hereby agrees and understands that the underlying protocols of the Supported Networks are subject to the provisions of the operating procedures (“fork”) and may result in multiple versions (“fork network”) and that the Company will hold an equal number of Digital Assets in each fork network assets. The Client further agrees and understands that a fork may have a material impact on the value, functionality and / or name of the Client’s Digital Assets held in the Custody System of Matrix. Where a fork exists, the Client agrees and understands that the Company may temporarily suspend the operation of the Custody System (with or without prior notice to the Client) in the event that the Company chooses, in its sole discretion (other than as described herein), which fork network to support. The Client agrees and understands that, in its best judgment, the Company will not support the vast majority of fork networks and may not be able to provide the Client with Digital Assets for the vast majority of fork networks. Decisions and statements regarding support for particular fork networks will be posted on Matrix's website promptly.

 

(ii)

The Client hereby understands that the value of Digital Assets may fluctuate significantly, which may result in a total loss of value of Digital Assets held by the Company on behalf of the Client. The Digital Assets provided by the Company to the Client arising from fork networks, and the Company’s ability to deliver Digital Assets arising from fork networks, are dependent on third-party providers that are not under the Company’s control. The Company does not own or control any protocols used in connection with the Digital Assets and its associated Digital Asset Networks, including protocols arising from fork networks. Accordingly, the Company is not liable for any changes in the value of such protocols and any Digital Assets (whether they are part of a fork network or otherwise), and the Company makes no warranty as to the security, functionality or availability of such protocols or Digital Asset Networks.

 

(iii)

The Client agrees and understands that, unless otherwise provided in the Agreement, the Company may choose not to support any fork networks (“non-supported fork networks”) at its sole discretion, but regardless of whether a fork occurs and whether the Company supports or does not support any fork network, the Company agrees and understands that the Digital Assets deposited by the Client with the Company shall remain exclusively owned by the Client at all time; in the event that a fork occurs in the public chain to which the Client’s Digital Assets are deposited with the Company and which belongs to the non-supported fork network of the Company, the Client shall, through the Company’s one-time withdrawal mechanism, withdraw the full amount of the relevant Digital Assets of the non-supported fork network to the Client’s account other than those provided by the Company within 10 business days from the date of the Company’s written notice, and if the Client fails to withdraw and such Assets remain in the custody account of the Company after the Company’s written notice, the Company shall have the right to dispose of the same at its own discretion, unless otherwise agreed by the Parties. The Company shall only be required to give written notice and in such case, the Company shall give such notice within three (3) months after the occurrence of the fork.

 

 

(iv)

The Client agrees and understands that if the Client wishes to access Digital Assets associated with a non-supported fork network or airdrop (as defined herein), the Client shall withdraw the Client’s Digital Assets from the custody account of Matrix prior to the occurrence of such fork or airdrop.

 

9.3

Airdrops.

 

(i)

The Client agrees and understands that if a Digital Asset Network attempts or actually allocates its Digital Assets (also referred to as “airdrops” or “bootstrap”) to the digital asset addresses of Supported Networks, the Company shall treat such Digital Asset Network as a non-supported fork network.

 

(ii)

The Client further agrees and understands that airdrops of Digital Assets do not give rise to any relationship between the Company, the sender and / or the relevant Digital Asset Network, nor do they represent any relationship, and that said Digital Assets shall not give rise to any obligation on the part of the Company to the sender and / or the relevant Digital Asset Network.

 

10             Indemnity

 

10.1        The Client agrees to indemnify and hold harmless Matrix and its subsidiaries, Affiliates, officers, agents, employees, partners, suppliers and licensors from and against all liabilities, claims, judgments, losses, fines, penalties, expenses or any costs (including but not limited to court costs and reasonable attorneys’ fees) arising out of or related to the following circumstance, i.e., the Client using the Services in violation of the Agreement and the applicable laws and regulations to commit illegal and criminal acts that subject Matrix and its Affiliates, related persons to legal liabilities or / and financial losses.

 

11            Limitation of Liability

 

11.1       In no event shall each of the Parties and their respective subsidiaries, Affiliates, officers, agents, employees, representatives, partners, suppliers or licensors be liable for any indirect, incidental, special, punitive or consequential damages, however, caused and on any theory (including but not limited to contract, tort, warranty, negligence or otherwise), even if such person has been advised of the possibility of such damage.

 

 

11.2            In no event shall the maximum liability of Matrix and its subsidiaries, Affiliates, officers, agents, employees, representatives, partners, suppliers and licensors arising out of or in connection with these service terms exceed the greater of (1) the amount (if any) of Assets under custody paid by the Client to Matrix during the twelve (12) months preceding the date on which the Client makes a claim, or (2) the balance in the “client asset protection fund” established by Matrix, provided that the foregoing limitation shall not apply to any liability relating to willful or fraudulent breaches by Matrix.

 

12               Miscellaneous

 

12.1            Governing Law. The Agreement shall be governed by the laws of Hong Kong, without giving effect to any conflict of law provisions thereof. In case of any disputes or claims regarding the Agreement or the interpretation, description, completion, breach, termination, enforcement or validity of this Agreement (“Dispute”), the Party raising such Dispute shall notify the other Party within thirty (30) days from the date on which such Dispute is detected. Each party shall cooperate in good faith to resolve such Dispute without delay.

 

12.2            Dispute Resolution. If any Dispute cannot be resolved amicably, the Parties agree to submit such Dispute to arbitration for resolution. The Dispute shall be submitted to Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the arbitration rules of HKIAC then in effect (the “HKIAC Rules”). The prevailing Party shall be entitled, in addition to the relief to which it is entitled, to compensation for reasonable attorneys’ fees, costs and necessary expenses. Such arbitration proceedings shall be initiated within one (1) year after the dispute, claim or cause of action arises.

 

12.3            Neither Party may assign or transfer any of its rights, duties or obligations under the Agreement without the prior written consent of the other Party hereto.

 

12.4            Successor and Assigns. Except as expressly provided in the Agreement, the provisions of the Agreement shall inure to the benefit of and be binding upon the successors, permitted assigns, heirs, executors and administrators of the estate of each Party (whose rights or obligations under the Agreement are subject to relevant amendments hereto). Each Party may assign and delegate its rights and obligations to any of its Affiliates upon written notice to the other Party.

 

12.5            Waiver. No provision hereof shall be waived unless the waiver is made in writing and signed by the waiving party. The failure of any Party to require the other Party to perform any provision or obligation hereunder, or the waiver by any Party of a breach of the Agreement, shall not preclude such Party from any subsequent enforcement of such provision or obligation or be deemed a waiver by such Party of a breach occurring in the future.

 

 

12.6            Severability. The Client agrees and understands that if any provision of the Agreement (or its application) is held to be invalid or unenforceable under any rule, law, regulation or by any local, state or federal governmental agency, such provision will be varied and construed accordingly to achieve the original purpose of such provision to the maximum extent practicable under applicable law. The Client further agrees and understands that the validity or enforceability of any other provision of the Agreement (or its application of provisions that are not invalid or unenforceable) shall not be affected in any way.

 

12.7            Headings. The section headings in the Agreement are for convenience reference only and shall not be taken into account in the construction of the Agreement.

 

12.8            Survival. All provisions of the Agreement that are provided to survive the termination of the Agreement shall remain valid.

 

12.9            Notice. Any notice, consent or other communication required or permitted to be sent or given by any Party hereto shall be made in writing and shall be deemed to have been served according to law if it is (i) delivered personally, (ii) sent by a registered or guaranteed letter which shall be sent by regular mail, with postage prepaid and return receipt provided, (iii) delivered by a recognized overnight courier service, or (iv) sent by email. Also, when sent by the above means, it shall be sent to the address listed below or such other address as may be provided in writing by each Party hereto.

 

To the Company:

 

Address: Room 1703, 303 Hennessy Road, Wan Chai, Hong Kong

Attn: [***]

Email: [***]@matrixport.com

 

To the Client:

 

Address: 662, Block A, Office Building, No. 8 Xueyuan Road, Haidian District, Beijing, China

Attn: [***]

Email: [***]@bitdeer.com

 

The service date of the above notice shall be the following: (w) if delivered in person or sent by email, the date of serving or sending; (x) if sent by insured or registered mail, three (3) business days after the date of posting; or (y) if delivered by overnight courier, one (1) business day after the date of delivery to the overnight courier.

 

12.10          Amendments. The Agreement may be amended or modified only upon the prior written consent of the Parties hereto.

 

12.11          Copies and E-Signatures. The Agreement may be executed in multiple copies, each of which shall be deemed an original and shall together constitute one and the same agreement. The signatures of the Parties delivered by facsimile, email or other electronic means shall constitute the original signatures and the facsimile or electronic copy of the Agreement shall be deemed the original document.

 

 

IN WITNESS WHEREOF the Parties hereto have the Agreement duly executed by their respective authorized representatives as of the Effective Date.

 

Client:

 

SHARPENING TECHNOLOGY LIMITED

 

Signatory:

 

Name: Wu Jihan (吴忌寒) For and on behalf of

Title: Director                    Sharpening Technology Limited

Signature:	/s/ Wu Jihan
	Authorised Signature(s)

 

BITMAIN SALES (USA) INC

 

Signatory:

 

Name: Wu Jihan (吴忌寒)

 

Title: Director

Signature:

/s/ Wu Jihan

 

CARPENTER CREEK LLC

 

Signatory:

 

Name: Wu Jihan (吴忌寒)

 

Title: Director

Signature:

/s/ Wu Jihan

 

 

IN WITNESS WHEREOF the Parties hereto have the Agreement duly executed by their respective authorized representatives as of the Effective Date.

 

The Company：

 

Matrix Guard Limited

 

Signatory:

 

Name: Wu Mengxia (吴梦夏)

 

Title: Vice President, Custody Service Head

 

Signature:

/s/ Cynthia Wu

Cynthia Wu (Apr 23, 2021 21:35 GMT+8)

 

 

Appendix I – Validity and Custody Fees

 

[***]

 

 

 

Exhibit 10.21 

 

Certain confidential information contained in this document, marked by [***], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

CUSTODY AGREEMENT 

 

 

Published by Matrix Trust Company Limited

 

Room 1703 OFFICEPLUS

303 Hennessy Road

Wanchai, Hong Kong China

 

Email: custodysupport@matrixport.com

 

Website: https://www.mycactus.com

 

 

GENERAL

 

This CUSTODY AGREEMENT (this "Agreement"), is made and entered into on 10 Feburary, 2021 (the "Execution Date"), by and between Matrix Trust Company Limited, with the registered office at Room 1703, OFFICEPLUS, 303 Hennessy Road, Wanchai, Hong Kong ("Matrix" or 'We"), and Bitdeer Technologies Limited ("Bitdeer''), with the registered office at Unit A1 of Unit A 11/F Success COMM BLDG 245-251 HENNESSY RD, HONG KONG & Straitdeer Pte. Ltd.. ("Straitdeer''), with the registered office at #09-03/04, Aperia Tower 1, 8 Kallang Avenue, Singapore 339509, ("Biteer" together with "Straitdeer'', the "Client or ''You"; the "Client" together with "Matrix", the "Parties", and each a "Party".

 

AGREEMENT:

 

NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter set forth, the Parties hereto agree as follows:

 

1

DEFINITIONS

 

"Affiliate" means any corporation or other person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.

 

"AML/CTF" means anti-money laundering, counter-terrorist financing, Sanctions and non-proliferation of weapons of mass destruction.

 

"API" means the application programming interface that is made available by Matrix to the Client and that can be used to access the Service.

 

"Assets" means any assets, including Digital Assets that Matrix agrees to hold on trust for the Client pursuant to this Agreement.

 

"Authorized Person" means any person the Client authorizes (either alone or collectively) and Matrix approves to act on the Customer's behalf in giving instructions or to perform any other acts under this Agreement.

 

"Business Day" means a day that is not a (i) Saturday; (ii) Sunday; (iii) general holiday (as defined in the General Holidays Ordinance (Cap. 149 of the Laws of Hong Kong); or (iv) day on which a tropical cyclone No. 8 or above or a "black" rainstorm warning is hoisted in Hong Kong at any time between 9:00 am and 5:00 pm and, if hoisted before 11:59 am on that day, is not lifted before 12:00 pm on that day.

 

"Costs" includes costs, charges and expenses, including those incurred in connection with third parties and any legal costs on a full indemnity basis.

 

"Custody Account" means the record of the Assets that is accessible through our Custody System.

 

"Custody System" means Matrix's proprietary systems, methods, Software and hardware that are used by Matrix to custody Assets and deliver the Service.

 

"Digital Asset" means any asset that is (i) represented in digital form, and expressed as a unit; (ii) capable of being transferred, stored and traded on a peer-to-peer basis; and (iii) approved by Matrix from time to time on its Custody System. Digital Asset, as defined, does not include a Fiat Currency.

 

"Dispute" includes any dispute, controversy, difference or claim arising out of or in connection with this Agreement or the subject matter of this document.

 

"Fees" mean all sums (including fees, lump sum, rates and commission or otherwise), and whether denominated in Fiat Currency or Digital Assets, that are payable by the Client to Matrix in respect of the Service from time to time and as set out in the Fee Schedule.

 

"Fee Schedule" means Appendix I to this Agreement.

 

"Fiat Currency" means any asset that is (i) legal tender in a country or territory; and (ii) customarily used and accepted as a medium of exchange in its country or territory of issue.

 

"HKIAC" means the Hong Kong International Arbitration Centre.

 

"Hong Kong'' means the Hong Kong Special Administrative Region of the People's Republic of China.

 

"Instructions" means any notice, instruction, or other communication that Matrix believes in good faith has been given by the Client or the Client's Authorized Person, and "Instructs" is to be interpreted accordingly.

 

"Sanctions" means any economic sanctions laws, regulations, embargoes or restrictive measures imposed by the United Nations Security Council and/or Hong Kong.

 

"Service" means the custody service provided by Matrix in accordance with this agreement.

 

"Software" means the software (including the API as well as any files, images, tables and data incorporated in or generated by the software and data accompanying the software) used by Matrix in providing the Service.

 

"Taxes" means taxes, levies, imposts, charges and duties imposed by any authority (including stamp and transaction duties) together with any related interest, penalties, fines and expenses in connection with them, except if imposed on, or calculated having regard to, the overall net income of Matrix.

 

2

INTERPRETATION

 

2.1

Headings are for convenience only and do not affect interpretation. Unless the contrary intention appears, in this Agreement:

 

(i)

the singular includes the plural and vice versa;

 

(ii)

a reference to a document also includes any variation, replacement or novation of it;

 

(iii)

the meaning of general words is not limited by specific examples introduced by "including", "for example", "such as" or similar expressions;

 

(iv)

a reference to a particular person includes the person's executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

 

(v)

a reference to a time of day is a reference to Hong Kong time;

 

 

(vi)

a reference to dollars, $ or USD is a reference to United States dollars unless expressly dated otherwise;

 

(vii)

a reference to "law" includes common law, principles of equity and legislation (including regulations);

 

(viii)

a reference to any ordinance includes regulations under it and any consolidations, amendments, re-enactments or replacements of any of them;

 

(ix)

a reference to "regulations" includes instruments of a legislative character under legislation (such as regulations, rules, by-laws, ordinances and proclamations);

 

(x)

an agreement, representation or warranty in favour of 2 or more persons is for the benefit of them jointly and each of them individually;

 

(xi)

a reference to a group of persons is a reference to any 2 or more of them jointly and to each of them individually;

 

(xii)

a reference to anything (including an amount) is a reference to the whole and each part of it;

 

(xiii)

a period of time starting from a given day or the day of an act or event, is to be calculated exclusive of that day;

 

(xiv)

a reference to a time of day is a reference to Hong Kong time; and

 

(xv)

if the day on which a Party must do something under this document is not a Business Day, the Party must do it on the next Business Day.

 

3

TERM

 

This Agreement is effective from the Execution Date and continues in force until terminated under clause 7 or by operation of law.

 

4

FEES

 

In consideration for the Service, the Client agrees to pay the Fees as set out in the Fee Schedule.

 

5

CUSTOOY SERVICE

 

5.1	The Client hereby appoints Matrix to act as the custodian of the Assets and to hold the Assets on trust for the Client in accordance with this Agreement. Matrix accepts such appointment and the obligations, duties, and responsibilities set out in this Agreement.

 

5.2

Matrix has the sole discretion to accept to hold any Asset on trust for the purpose of providing the Services. Matrix reserves the right at any time to refuse, for whatever reason, to continue to accept any Asset. Any asset that ceases to be an Asset will be returned in accordance with the processes and procedures described on the Custody System.

 

5.3	The Client understands and agrees that Matrix (i) acts solely as custodian of the Assets; (ii) does not exercise any investment or tax planning discretion regarding the Assets, and (iii) does not act as advisor, broker or agent when executing Instructions.

5.4

Matrix is only responsible for safekeeping only the Assets which are delivered into its possession and control by the Client.

 

5.5	For any transfer of Assets in respect of the Custody Account, Matrix shall hold the proceeds of such transfer until receipt of written disbursement Instructions.

 

5.6	To the extent permitted by applicable laws and regulations and Matrix's internal policies and procedures, Matrix shall transfer Assets in accordance with Instructions, provided that sufficient Assets are available to effect the Instructions and for paying any outstanding amounts owing to Matrix.

 

5.7

The Client hereby understands and agrees that if at any time there are insufficient Assets in a Custody Account, Matrix may, in its absolute discretion and without any obligation to do so decline to execute the Instructions, force-sell any Asset and transfer Assets without Instruction, in addition to any other rights it may have under applicable law.

 

5.8

The Client hereby understands and agrees that the Custody Account is not a deposit account, therefore the Assets shall not accrue interest.

 

5.9

Where it is necessary to convert any Asset from one type to another, the relevant Asset will (unless otherwise provided in this Agreement or required by applicable law) be converted at such rate and using such method and as at such date as may be specified by Matrix. Any rate, method and date so specified will be binding on the Client.

 

5.10

The Client authorizes Matrix to accept Instructions on the Client's behalf from each Authorized Person and the Client confirms that each Authorized Person has the power to give Instructions on the Client's behalf.

 

5.11

The Client agrees that Matrix may assume the authenticity of any Instruction given or purportedly given by the Client or any Authorized Person.

 

5.12

The Client must obtain the consent of each Authorized Person to Matrix's collection, holding and use of their personal information.

 

6

CUSTODY ACCOUNT

 

6.1

Before issuing any Instructions, the Client must hold a Custody Account. To do so, the Client must follow the procedures specified by us in writing. We reserve the right to refuse any application for a Custody Account, or the designation of any person to act as an Authorized Person, and we may not give any reasons for that refusal Subject to our discretion and operational requirements, a Client may only hold one Custody Account.

 

6.2

The Client can view the Assets in the Custody Account and relevant transfers using the Custody System.

 

6.3

Statements of Assets, along with a ledger of receipts and disbursements of Assets will be available for the Client to check via our Custody System.

 

6.4

Matrix may issue the Client with a user name and password, and/or other appropriate verification methods including hardware tokens (i.e. Ubikey) for logging in the Custody Account. The Client is responsible for keeping their log-in details or access method confidential.

 

 

6.5

The Client must comply with any specifications that Matrix makes available its Custody System in relation to the use of the Custody Account. This includes with respect to any authentication and other security procedures.

 

6.6

When opening a Custody Account with Matrix, you recognize and accept that:

 

(i)

The value of the Assets will be solely dependent upon the market price (if any) of such Assets.

 

(ii)

Before sending any Instruction to Matrix, you should take your own independent review on whether the Instruction is suitable for you in light of your own financial situation, investment experience, investment objectives, willingness and ability to bear risks, and whether you understand the nature and risks of the transaction. lf in doubt, you should seek advice from independent financial advisers. Matrix does not act as advisor and shall have no duty or responsibility to make recommendation of any transaction when executing the Instruction sent by you. You will perform your own due diligence before sending any Instruction to Matrix and taking sole responsibility for all decisions made for your Account.

 

(iii)

Matrix does not provide the valuation or appraisals of any Assets, nor does it hire or seek valuations or appraisals on any Assets, provided, however, it may, at its option and with no obligation or liability, to the extent available for any particular Asset, include recent price quotes or value estimates from various third-party sources, including alternative trading systems and digital asset exchanges, on your statement for any such Assets. Matrix does not verify the validity, accuracy or reliability of any such third-party valuation or valuation estimates or prices and you agree that Matrix shall in no way be held liable for any such valuation estimates or price/quotations, and that such valuation estimates or price quotations are neither verified, substantiated nor to be relied upon in any way, for any purpose, including, without limitation, tax reporting purposes.

 

6.7

Matrix may decline to accept any verbal Instructions in its sole discretion and require the Client or an Authorized Person to submit a written Instruction in place of a verbal Instruction. The Client bears complete and absolute responsibility for any Instructions it or an Authorized Person sends to Matrix and should immediately notify Matrix of any suspected compromise of any Instruction or the Client's or an Authorized Person's means of accessing and using the Service.

 

6.8

You hereby agree to authorize Matrix to debit the Custody Account for any Fees or charges that arise in respect of an Instruction, and in the case of charges, remit those to the relevant third-party service provider, if necessary.

 

6.9

Matrix is authorized, in its sole discretion, to comply with orders issued or entered by any court with respect to the Assets, without determination by Matrix of such court's jurisdiction in the matter. If any portion of the Assets held hereunder is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such assets shall be stayed or enjoined by any court order, then Matrix is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree without the need for appeal or other action. If Matrix complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.

 

6.10

Matrix is authorized in its absolute discretion to appoint any service providers in connection with the provision of the Services provided that any such appointment shall not relieve Matrix of any of its responsibilities or liabilities hereunder.

 

7

SUSPENSION OR TERMINATION

 

7.1

Matrix may temporarily suspend or terminate the Client's access to or use of the Service at any time for: (i) Client's actual or suspected violation of this Agreement, applicable law and/or regulation; (ii) Client's use of the Service in a manner that may disrupt Matrix's normal operation and/or other clients' use of the Service; (iii) scheduled downtime and recurring downtime, or unplanned technical upgrading, Software maintenance, and outages that occur to Matrix or Matrix's service providers, and (v) any other event that Matrix considers requires suspension or termination of the Service.

 

7.2

This Agreement may be terminated by either Party by giving the other party at least 30 days' prior written notice. In such event, and subject to clause 5.6, the Assets shall be transferred to the Client or other third party designated by the Client in an Instruction; provided, however, that Matrix will not be required to make any transfer until full payment shall have been made to Matrix of all Fees, remuneration, Costs and expenses in connection with this Agreement.

 

8

REPRESENTATIONS, WARRANTIES, AND COVENANTS

 

8.1

Each Party respectively represents and warrants, on each day and on a continuing basis during the term of this Agreement that:

 

(i)

it is duly organized (as applicable) and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;

 

(ii)

it has the requisite power to execute and deliver this Agreement, and any other documentation relating to this Agreement to which it is a party, and to perform its obligations under this Agreement;

 

(iii)

the performance of the obligations under this Agreement does not violate or conflict with any existing law, judgment, order, regulation, or contractual restriction applicable to or binding on it of the Assets (as applicable); and

 

(iv)

its obligations under this Agreement constitute its legal, valid, and binding obligations, enforceable in accordance with their respective terms.

 

8.2

In addition to the representations and warranties in clause 8.1, the Client hereby represents and warrants, on each day and on a continuing basis during the term of this Agreement and each time the Client initiates an Instruction, that:

 

(i)

the Client has the requisite power to deliver any Instructions hereunder;

 

 

(ii)

to the best of the Client's knowledge, all required governmental and other consents that are required to have been obtained by the Client with respect to this Agreement have been obtained and are in full force and effect and al! conditions of any such consents have been complied with;

 

(iii)

the Client will not use the Services provided by Matrix hereunder in any manner that is, or would result in, a violation of any applicable laws and regulations;

 

(iv)

the Client is aware of and familiar with, and has been fully informed of, the risks associated with giving Instructions, and is willing to accept such risks, and the Client shall (and shall cause each Authorized Person to) safeguard and treat with extreme care any credentials related to the Custody Account. The Client agrees that the security procedures (if any) to be followed in connection therewith provide a commercially reasonable degree of protection in light of particular needs and circumstances. The Client agrees and understands that an Instruction given in the name of the Client by a designated Authorized Person may conclusively be presumed by Matrix to have been given by an Authorized Person; and

 

(v)

the Client undertakes that it is not, and no transfer of Assets pursuant to any Instruction hereunder is, (i) the target of any Sanctions, or (ii) located, organized, or resident in a country or territory that is, or whose government is, the target of Sanctions.

 

9

MATRIX'S OBLIGATIONS

 

9.1

Matrix uses its best efforts and exercises reasonable care in connection with the custody of the Assets and provision of Services. The Client agrees that Matrix is not responsible for any failure or delay to act by Matrix's service providers, including Matrix's banks, data centers, or any other participant that is within the terms and conditions permitted by this Agreement or prescribed by law, or that is caused by the Client's negligence. Notwithstanding the foregoing, no provision of this Agreement shall require Matrix to expend or risk Matrix's own Fiat Currency, property, or otherwise incur any financial liability, in the performance of any of Matrix's duties hereunder.

 

9.2

Matrix will keep and maintain, or cause to be kept, accurate books and records with respect to any Custody Account and Assets in accordance with applicable law.

 

9.3

Matrix is authorized to supply any information regarding any Custody Accounts or Assets that is required by any law, regulation, or rule now or hereafter in effect, or which may be requested by law enforcement.

 

10

CLIENT'S OBLIGATIONS

 

10.1

The Client and any and all Authorized Persons of the Client are required to successfully complete Matrix's account opening process pursuant to Matrix's internal AMUKYC policies and procedures, which may be amended by Matrix from time to time.

 

10.2

The Client shall promptly inform Matrix if (l) it is or becomes the target of any Sanctions and trade embargoes, (ii) it is or becomes located, organized, or resident in a country or territory that is, or whose government is, the target of Sanctions, or (iii) it becomes aware that it or any Asset, or any transaction involving an Asset, is or becomes the target of any investigation (including the reasonable details thereof).

 

10.3

The Client must promptly, upon the request of Matrix, supply such information, documentation and authorisation in order for Matrix to carry out all necessary ''know your customer'', AMUCTF requirements and comply with applicable !aw.

 

10.4

The Client must promptly notify Matrix in writing of any change in any information, documentation or authorization provided to Matrix, and submit evidence or supporting document of such change.

 

11

INDEMNIFICATION

 

11.1

The Client agrees to indemnify, and reimburse and compensate Matrix and its subsidiaries, Affiliates, officers, agents, employees, partners, suppliers, and licensors for any and all liabilities, claim, judgments, losses, fines, penalties, expenses and any Costs, in connection with this Agreement, including (i) any transaction, the use of the Service and/or Instructions; (ii) Client's violation of this Agreement, applicable laws and regulations, or any third party rights, or (iii) any statement, act, omission, fraud, negligence, default, failure or misconduct by the Client (or its officers, employees, partners or suppliers) in the course of its conduct of duties and obligations under this Agreement. This indemnity shall be a continuing obligation of the Client and the Client's successors and assigns, notwithstanding the termination of this Agreement.

 

12

LIMITATIONS OF LIABILITY

 

12.1

In no event will either Party, its subsidiaries, Affiliates, officers, agents, employees, representatives, partners, suppliers, or licensors be liable for any indirect, incidental, special, punitive, or consequential damages, however caused, under any theory of liability, including, without limitation contract, tort, warranty, negligence or otherwise, even if any of the foregoing parties have been advised as to the possibility of such damages.

 

12.2

Without limiting clause 12.1, in no event will the aggregate liability of Matrix, its subsidiaries, Affiliates, officers, agents, employees, representatives, partners, suppliers, and licensors liability arising from or relating to these terms of the Service exceed: (i) the amount paid, if any, by the Client to Matrix for the Service in the 12 months before the Client's claim arose or (ii) the residual value in a reserve fund set up by Matrix, whichever is higher, provided that the liability arises out of any fraud or wilful misconduct by Matrix or its abovementioned related persons described in this clause 12.2.

 

12.3

Matrix's liability to any person in connection with the Services is limited to the extent to which liability can be satisfied out of the Assets held by Matrix in custody.

 

12.4

The limitation and restriction under clause 12.3 does not apply to the situation where the liability is caused by Matrix's fraud, negligence or wilful default, or by operation of law.

 

12.5

Matrix is not obliged to do or not do any thing in connection with this Agreement (including accept any Instruction or incur any liability) unless Matrix's liability is limited in a manner which is consistent with this clause 12.

 

 

12.6

If Matrix incurs a liability as a result of a proper exercise of its powers in respect of this Agreement, Matrix may exercise any of its rights of indemnity or reimbursement out of the Assets to satisfy that liability. To the extent permitted by applicable law, this clause applies despite any reduction in value of, or other loss in connection with, the Assets as a result of any unrelated act or omission by Matrix or by any person acting on its behalf.

 

12.7

Client agrees to bear sole responsibility for the prosecution or defense, including the engagement of legal counsel, of any and all legal actions or suits involving the Custody Account, which may arise or become necessary for the protection of the Assets in that Custody Account, including any actions lodged against Matrix. Client also agrees to bear sole responsibility for enforcing any judgments rendered in favour of the Custody Account, including Judgments rendered in the name of Matrix as custodian of the Custody Account.

 

12.8

Without limiting the foregoing, Matrix shall not be under any obligation to defend any legal action or engage in any legal proceedings with respect to the Account or with respect to any Asset held in the Account unless Matrix is indemnified to Matrix's satisfaction. Whenever Matrix deems it reasonably necessary, Matrix is authorized and empowered to retain counsel and appear in any action, suit or proceeding affecting the Custody Account or any of the Assets of the Account. All Costs so incurred shall be charged to the Custody Account.

 

12.9

The Services and information provided in connection with them are provided on an "as is" and "as available" basis. Matrix does not provide any express or implied warranties (including warranties of merchantability or fitness for a particular use) and expressly excludes any implied terms.

 

12.10

Section 3A of the Trustee Ordinance (Cap. 29 of the Laws of Hong Kong) shall not apply to the duties of Matrix in connection with the provision of the Services. Where there are any inconsistencies between the Trustee Ordinance and the provisions of this Agreement, the latter prevails to the extent permitted by applicable law.

 

13

RISK FACTORS

 

13.1

The Client understands and acknowledges that the non-exhaustive risk factors published on Matrix's Custody Systems apply to the Services. The Client must seek independent professional advice on the risks arising in respect of the Service.

 

14

MISCELLANEOUS

 

14.1

Forks. Matrix may choose to follow one or more chains resulting from a fork in an Digital Asset. Matrix will notify the Client at least 3 Business Days before the occurrence of the fork, unless to do so is impossible or reasonably impracticable.

 

14.2

Set-off. Matrix may at any time and without notice to the Client set off any amount Matrix awes the Client against any amount that the Client owes Matrix or, where more than one person constitutes the Client, that any one or more of those persons singly or jointly owes Matrix (in either case, whether or not the obligation is matured or contingent).

 

	14.3	Licence. For the purpose of accessing and using the Service and only to the extent necessary to facilitate such access and use, Matrix grants to the Client a non-exclusive, non-transferable personal licence in relation to the Software. Matrix does not transfer title to nor grant any interest in the Software to the Client.

14.4

Governing Law. This Agreement is exclusively governed and construed by the laws of Hong Kong.

 

14.5

Dispute Resolution. The Parties must co-operate and act in good faith and without delay to seek to resolve any Dispute. lf the Dispute cannot resolved within 30 Business Days, the party claiming a Dispute has arisen may commence arbitration proceeding in accordance with clause 14.6.

 

14.6

Arbitration. Subject to clause 14.5, any Dispute must be referred to and finally resolved by arbitration administered by the HKIAC under the HKIAC Administered Arbitration Rules, as in force when the Notice of Arbitration is submitted in accordance with those Rules. The Parties agree that (I) the law of this arbitration clause is Hong Kong law; (ii) the arbitration proceedings will be conducted in English; (iii) the seat of arbitration will be Hong Kong; (iv) unless the Parties agree otherwise, the number of arbitrators will be 1 and that arbitrator must have relevant legal and technological expertise; and (v) if the Parties do not agree on the arbitrator to be appointed within 10 Business Days after the date the Respondent receives the Notice of Arbitration, the arbitrator is to be appointed by the HKIAC.

 

14.7

Successors and Assigns. the provisions hereof shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the Parties hereto whose rights or obligations hereunder are affected by such amendments. The Client may not assign or transfer any of rights, duties, and obligations contained in this Agreement without prior written consent of Matrix.

 

14.8

Waivers. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any Party to require the performance of any term or obligation of this Agreement, or the waiver by any Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

 

14.9

Severability. If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

 

14.10

Survival. All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so.

 

14.11

Notices. Any notices, consents or other communications required or permitted to be sent or given hereunder by either of the Parties (except for Instructions) shall in every case be in writing and shall be deemed properly served if (i) delivered personally, (ii) sent by registered or certified mail, in all such cases with first class postage prepaid, return receipt requested, (iii) delivered by a recognized overnight courier service or (iv) sent via email, ta the Parties, at the addresses as set forth below or at such other addresses as may be furnished in writing.

 

 

If to Matrix, to:

 

Address: RM1703, 303 Hennessy Road, 

Wanchai, Hong Kong

 

Attention: [***]

 

Email: [***]@matrixport.com

 

If to the Client, to:

Address:	662, block a, office building 8,
	Haidian District college, Beijing
Attention·:	[***]

 

Email: [***]@bitdeer.com

 

Date of service of such notice shall be (i) the date such notice is personally delivered or sent by email, (ii) three Business Days after the date of mailing if sent by certified or registered mail, or (iii) one Business Day after date of delivery to the overnight courier if sent by overnight courier.

 

14.12

Amendments. This Agreement may only be amended with the prior written consent of both Parties, save that Matrix may by notice to the Client amend the Fee Schedule or any information made available on the Custody System at any time in its sole discretion.

 

14.13

Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.

 

  

The Parties have caused this Agreement to be executed as an agreement as of the dale first above written.

 

THE CLIENT:		MATRIX;
SIGNED by Wu Jihan as director for BITDEER TECHNOLOGIES LIMITED:		SIGNED by MENGXIA WU as authorized representative for MATRIX TRUST LIMITED:
/s/ Jihan Wu		/s/ Cynthia Wu
By executing this document the signatory warrants that the signatory is duly authorized to execute this document on behalf of BITDEER TECHNOLOGIES LIMITED		By executing this document the signatory warrants that the signatory is duly authorized to execute this document on behalf of MATRIX TRUST LIMITED
SIGNED by Wu Jihan as director for Straitdeer Pte. Ltd
/s/ Jihan Wu
By executing this document the signatory warrants that the signatory is duly authorized to execute this document on behalf of BITMAINTECH PTE. LTD.

 

 

APPENDIX I - CUSTODY FEE SCHEDULE

 

[***] 

 

APPENDIX II - FIAT WITHDRAWAL 

 

 [***] 

 

 

 

Exhibit 21.1

 

Subsidiaries of Bitdeer Technologies Group*

 

The following list of subsidiaries applies after completion of the Business Combination:

 

Name	Jurisdiction
Bitdeer Technologies Holding Company	Cayman Islands
STRAITDEER PTE. LTD.	Singapore
Sharpening Technology Limited	British Virgin Islands
Bitdeer Technologies Limited	Hong Kong
Bitdeer Netherlands B.V.	Netherlands
Bitdeer Norway AS	Norway
Norway Hash Technologies AS	Norway
Bitdeer Inc.	United States of America
Bitdeer Equipment (Canada) Inc.	Canada
Carpenter Creek. LLC	United States of America
Ant Creek, LLC	United States of America
Dory Creek, LLC	United States of America
Z Engineers, LLC	United States of America
Bitdeer Sales (USA) Inc.	United States of America
Brock Creek LLC	United States of America

 

*

Other subsidiaries of Bitdeer Technologies Group have been omitted because, in the aggregate, they would not be a “significant subsidiary” as defined in rule 1-02(w) of Regulation S-X as of the completion of the Business Combination.

 

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the inclusion in this Registration Statement of Bitdeer Technologies Group on Form F-4 of our report dated March 3, 2023, which includes an explanatory paragraph as to Blue Safari Group Acquisition Corp.’s ability to continue as a going concern with respect to our audit of the financial statements of Blue Safari Group Acquisition Corp. as of December 31, 2022 and 2021 and for the year ended December 31, 2022 and the period from February 23, 2021 (inception) through December 31, 2021, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.

 

/s/ Marcum llp

 

Marcum llp

Houston, Texas

March 7, 2023

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the inclusion in this Registration Statement on Form F-4 of our report dated May 25, 2022, except as to the restatement on cash flow presentation described in Note 2(a), as to which the date is November 3, 2022, with respect to the audited combined and consolidated financial statements of Bitdeer technologies Holding Company as of December 31, 2021 and for each of the three years in the period ended December 31, 2021.

 

We also consent to the references to us under the heading “Experts” in such Registration Statement.

 

/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
March 8, 2023

 

 

 

Exhibit 23.3

 

March 8, 2023

Bitdeer Technologies Group (the “Company”)
08 Kallang Avenue

Aperia tower 1, #09-03/04

Singapore 339509

Telephone: +65 62828220

 

Re: Consent of Frost & Sullivan

 

Ladies and Gentlemen,

 

We, Frost & Sullivan Limited, understand that Bitdeer Technologies Group, an exempted company limited by shares incorporated under the laws of the Cayman Islands plans to file a registration statement on Form F-4 (the “Registration Statement”) with the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended, in connection with the proposed business combination among the Company, Blue Safari Group Acquisition Corp. and other parties (the “Proposed Business Combination”).

 

We hereby consent to the use of and references to our name and the inclusion of information, data and statements from our research reports and amendments thereto (collectively, the “Reports”), and any subsequent amendments to the Reports, as well as the citation of our research reports and amendments thereto, (i) in the Registration Statement and any amendments thereto, (ii) in any written correspondence with the SEC, (iii) in any other future filings with the SEC by the Company, including, without limitation, filings on Form 20-F, Form 6-K and other SEC filings (collectively, the “SEC Filings”), (iv) in institutional and retail roadshows and other activities in connection with the Proposed Business Combination, (v) on the websites of the Company and its subsidiaries and affiliates, and (vi) in other publicity materials in connection with the Proposed Business Combination.

 

We further hereby consent to the filing of this consent letter as an exhibit to the Registration Statement and any amendments thereto and as an exhibit to any other SEC Filings.

 

Yours faithfully,

For and on behalf of

Frost & Sullivan Limited

 

/s/ Tse Tsz Wing
Name: Tse Tsz Wing
Title: Consulting Director

 

 

  

Exhibit 23.7

 

CONSENT OF ROYSON VALUATION ADVISORY LIMITED

 

March 8, 2023

 

Board of Directors

Blue Safari Group Acquisition Corp.

Cheung Kong Center

58th Floor, Unit 5801

2 Queens Road Central

Central, Hong Kong

 

Members of the Board:

 

We hereby consent to the inclusion of our valuation reports, each dated November 17, 2021, December 14, 2021 and March 8, 2023 to the Board of Directors of Blue Safari Group Acquisition Corp. (“BSGA”) as Annex D to, and to the references thereto under the headings “Questions and Answers about the Proposals” and “The Business Combination Proposal” in, the proxy statement relating to the proposed business combination involving BSGA, Bitdeer Technologies Group and Bitdeer Technologies Holding Company, which proxy statement forms a part of the Registration Statement on Form F-4 of Bitdeer Technologies Group (the “Registration Statement”). Our valuation reports are not to be used, circulated, quoted or otherwise referred to for any other purpose, nor are they to be filed with, included in or referred to in whole or in part in any other registration statement, proxy statement or any other document, except in accordance with our prior written consent.

 

By giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under Section 7 of, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,

 

For and on behalf of,
Royson Valuation Advisory Limited
/s/ Amy W.S. Chan
Name: Amy W.S. Chan
Title: Director

 

 

 

Exhibit 23.8

 

CONSENT OF IJW & Co., Ltd.

 

March 8, 2023

 

Board of Directors

Blue Safari Group Acquisition Corp.

Cheung Kong Center

58th Floor, Unit 5801

2 Queens Road Central

Central, Hong Kong

 

Members of the Board:

 

We hereby consent to the inclusion of our opinion letter, dated March 8, 2023, to the Board of Directors of Blue Safari Group Acquisition Corp. (“BSGA”) as Annex E to, and to the references thereto under the headings “Questions and Answers about the Proposals” and “The Business Combination Proposal” in, the proxy statement relating to the proposed business combination involving BSGA, Bitdeer Technologies Group and Bitdeer Technologies Holding Company, which proxy statement forms a part of the Registration Statement on Form F-4 of Bitdeer Technologies Group (the “Registration Statement”). Our opinion is not to be used, circulated, quoted or otherwise referred to for any other purpose, nor are they to be filed with, included in or referred to in whole or in part in any other registration statement, proxy statement or any other document, except in accordance with our prior written consent.

 

By giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under Section 7 of, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,

 

For and on behalf of,
IJW & Co., Ltd.
/s/ Drew S. Dorweiler
Name: Drew S. Dorweiler, FRICS, FCBV, CPA (Illinois), CPA•ABV, ASA, CVA, CBA, CFE, MBA
Title: Managing Director — Valuation Practice Leader

 

 

 

Exhibit 99.2

 

BITDEER TECHNOLOGIES GROUP

 

Code of Business Conduct and Ethics

 

(Adopted by the Sole Director of Bitdeer Technologies Group on March 8, 2023, effective on the Acquisition Merger Effective Time as defined in the Amended and Restated Agreement and Plan of Merger, dated as of December 15, 2021, by and among Bitdeer Technologies Holding Company, Bitdeer Technologies Group, Blue Safari Group Acquisition Corp., and other parties thereto, as amended from time to time)

 

 

I.

PURPOSE

 

This Code of Business Conduct and Ethics (the “Code”) contains general guidelines for conducting the business of Bitdeer Technologies Group and its subsidiaries and affiliates (collectively, the “Company”) consistent with the highest standards of business ethics, and is intended to qualify as a “code of ethics” within the meaning of Section 406 of the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder. To the extent this Code requires a higher standard than required by commercial practice or applicable laws, rules or regulations, we adhere to these higher standards.

 

This Code is designed to deter wrongdoing and to promote:

 

·

honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;

 

·

full, fair, accurate, timely, and understandable disclosure in reports and documents that the Company files with, or submits to, the U.S. Securities and Exchange Commission (the “SEC”) and in other public communications made by the Company;

 

·

compliance with applicable laws, rules and regulations;

 

·

prompt internal reporting of violations of the Code; and

 

·

accountability for adherence to the Code.

 

II.

APPLICABILITY

 

This Code applies to all directors, officers and employees of the Company, whether they work for the Company on a full-time, part-time, consultative or temporary basis (each, an “employee” and collectively, the “employees”). Certain provisions of the Code apply specifically to our chief executive officer, chief financial officer, senior financial officer, controller, senior vice presidents, vice presidents and any other persons who perform similar functions for the Company (each, a “senior officer,” and collectively, the “senior officers”).

 

If you believe there is a conflict between this Code and a specific procedure, please consult the Chairman of the Board of the Director for guidance. If you have any questions regarding the Code or would like to report any violation of the Code, please email to the Head of Risk Management Department, at RiskManagement@bitdeer.com.

 

 

This Code has been adopted by the Board and shall become effective (the “Effective Time”) on the Acquisition Merger Effective Time as defined in the Amended and Restated Agreement and Plan of Merger, dated as of December 15, 2021, by and among the Company, Bitdeer Technologies Holding Company, Blue Safari Group Acquisition Corp., and other parties.

 

III.

CONFLICT OF INTEREST

 

A.

Identifying Conflicts of Interest

 

A conflict of interest occurs when an employee’s private interest interferes, or appears to interfere, in any way with the interests of the Company as a whole. An employee should actively avoid any private interest that may impact such employee’s ability to act in the interests of the Company or that may make it difficult to perform the employee’s work objectively and effectively. In general, conflicts of interest include, but are not limited to:

 

·

Competing Business. No employee may be employed by a business that competes with the Company or deprives or seeks to deprive it of any business.

 

·

Corporate Opportunity. No employee should use corporate property, information or his/her position with the Company to secure a business opportunity that would otherwise be available to the Company or would otherwise not be available to the employee. If an employee discovers a business opportunity that is in the Company’s line of business or through the use of the Company’s property, information or position, the employee must first present the business opportunity to the Company before pursuing the opportunity in his/her individual capacity.

 

·

Financial Interests.

 

1.            No employee may have any financial interest (ownership or otherwise), either directly or indirectly through a spouse or other family member, in any other business or entity if such interest adversely affects the employee’s performance of duties or responsibilities to the Company, or requires the employee to devote time to it during such employee’s working hours at the Company;

 

2.            No employee may hold any ownership interest in a privately held company that is in competition with the Company;

 

3.            An employee may hold up to 5% ownership interest in a publicly traded company that is in competition with the Company; provided that if the employee’s ownership interest in such publicly traded company increases to more than 5%, the employee must immediately report such ownership to the Head of Compliance Department;

 

4.            No employee may hold any ownership interest in a company that has a business relationship with the Company if such employee’s duties at the Company include managing or supervising or if such employee holds a role or position at the Company that provides substantial influence over managing or supervising the Company’s business relations with that company; and

 

 

5.            Notwithstanding the other provisions of this Code,

 

a.             a director or any family member of such director (collectively, “Director Affiliates”) or a senior officer or any family member of such senior officer (collectively, “Officer Affiliates”) may hold or continue to hold his/her investment or other financial interest in a business or entity (an “Interested Business”) that:

 

(i)               was made or obtained either (x) before the Company invested in or otherwise became interested in such business or entity; or (y) before the director or senior officer joined the Company (for the avoidance of doubt, regardless of whether the Company had or had not already invested in or otherwise become interested in such business or entity at the time the director or senior officer joined the Company); or

 

(ii)              may in the future be made or obtained by the director or senior officer, provided that at the time such investment or other financial interest is made or obtained, the Company has not yet invested in or otherwise become interested in such business or entity;

 

provided that such director or senior officer shall disclose such investment or other financial interest to the Board;

 

b.             an interested director or senior officer shall refrain from participating in any discussion among senior officers of the Company relating to Company decisions related to the Company’s business with an Interested Business and shall not be involved in any proposed transaction between the Company and an Interested Business; and

 

c.             before any Director Affiliate or Officer Affiliate invests, or otherwise acquires any equity or other financial interest, in a business or entity that (i) is in competition with the Company; or (ii) enters into any transaction with the Company, the related director or senior officer shall obtain prior approval from the Audit Committee of the Board.

 

·

Loans or Other Financial Transactions. No employee may obtain loans or guarantees of personal obligations from, or enter into any other personal financial transaction with the Company or any company that is a material customer, business partner or competitor of the Company. This guideline does not prohibit arms-length transactions with recognized banks or other financial institutions.

 

·

Service on Boards and Committees. No employee shall serve on a board of directors or trustees or on a committee of any entity (whether profit or not-for-profit) whose interests could reasonably be expected to conflict with those of the Company. Employees must obtain prior approval from the Board before accepting any such board or committee position. The Company may revisit its approval of any such position at any time to determine whether an employee’s service in such position is still appropriate.

 

The above is in no way a complete list of situations where conflicts of interest may arise. The following questions might serve as a useful guide in assessing a potential conflict of interest situation not specifically addressed above:

 

 

·

Is the action to be taken legal?

 

·

Is it in the best interests of the Company?

 

·

Is it honest and fair to the Company?

 

B.       Disclosure of Conflicts of Interest

 

The Company requires that employees fully disclose any situations that give rise to a conflict of interest, or could reasonably be expected to do so. If an employee suspects that he/she has a conflict of interest, or a situation that others could reasonably perceive as a conflict of interest, the employee must report it immediately to the Head of Compliance Department. Conflicts of interest affecting senior officers may only be waived by the Board, or the appropriate committee of the Board, and will be promptly disclosed to the public to the extent required by law and applicable rules of the applicable stock exchange. Conflicts of interest affecting employees who are not senior officers may only be waived by the Company following review by such employee’s supervisor and the Head of Compliance Department.

 

C.       Family Members and Work

 

The actions of family members outside the workplace may also give rise to conflicts of interest because they may influence an employee’s objectivity in making decisions on behalf of the Company. If a member of an employee’s family or a business they are associated with is interested in doing business with the Company, the criteria as to whether to enter into or continue the business relationship and the terms and conditions of the relationship must be based solely on the best interests of the Company and, at a minimum, must be no less favorable to the Company compared with those that would apply to an unrelated party seeking to do business with the Company under similar circumstances.

 

Employees should report any situation involving family members that could reasonably be expected to give rise to a conflict of interest to their supervisor or the Head of Compliance Department. For purposes of this Code, “family members” or “members of employee’s family” include an employee’s spouse, parents, children and siblings, whether by blood, marriage or adoption or anyone residing in such employee’s home.

 

IV.

GIFTS AND ENTERTAINMENT

 

The giving and receiving of appropriate gifts may be considered a common business practice. Appropriate business gifts and entertainment are welcome courtesies designed to build relationships and understanding among business partners. However, gifts and entertainment should never compromise, or appear to compromise, an employee’s ability to make objective and fair business decisions.

 

It is the responsibility of employees to use good judgment in this area. As a general rule, employees may give or receive gifts or entertainment to or from customers or business partners only if the gift or entertainment is in compliance with applicable law, insignificant in amount and not given in consideration or expectation of any action by the recipient. All gifts and entertainment expenses made on behalf of the Company must be properly accounted for on expense reports.

 

 

We encourage employees to report and submit gifts received to the Company. While it is not mandatory to submit small gifts, gifts of over US$150 must be submitted immediately to the compliance department of the Company.

 

Bribes and kickbacks are criminal acts, strictly prohibited by law. An employee must not offer, give, solicit or receive any form of bribe or kickback anywhere in the world.

 

V.

FCPA COMPIANCE

 

The U.S. Foreign Corrupt Practices Act (“FCPA”) prohibits giving anything of value, directly or indirectly, to officials of foreign governments or foreign political candidates in order to obtain or retain business. In many countries, healthcare professionals (i.e., physicians and hospital personnel) are frequently considered by local law to be civil servants and government employees.

 

A violation of FCPA does not only violate the Company’s policy but also constitutes a civil or criminal offense under FCPA which the Company is subject to after the Effective Time. No employee shall give or authorize directly or indirectly any illegal payments to government officials of any country. While the FCPA does, in certain limited circumstances, allow nominal “facilitating payments” to be made, any such payment must be subject to careful scrutiny and, at a minimum, be discussed with and approved by an employee’s supervisor in advance before it can be made. The Company will not tolerate attempts to improperly influence government personnel or private individuals to secure favorable regulatory treatment or improperly advance our commercial interests.

 

VI.

PROTECTION AND USE OF COMPANY ASSETS

 

Employees should protect the Company’s assets and ensure their efficient use for legitimate business purposes only. Theft, carelessness and waste have a direct impact on the Company’s profitability. Any use of the funds or assets of the Company, whether for personal gain or not, for any unlawful or improper purpose is strictly prohibited.

 

To ensure the protection and proper use of the Company’s assets, each employee should:

 

·

exercise reasonable care to prevent theft, damage or misuse of the Company’s assets;

 

·

promptly report any actual or suspected theft, damage or misuse of the Company’s assets;

 

·

safeguard all electronic programs, data, communications and written materials from unauthorized access; and

 

·

use the Company’s assets only for legitimate business purposes.

 

Except as approved in advance by the Chief Executive Officer or Chief Financial Officer of the Company, the Company prohibits political contributions (directly or through trade associations) by any employee on behalf of the Company. Prohibited political contributions include:

 

·

any contributions of the Company’s funds or other assets for political purposes;

 

 

·

encouraging individual employees to make any such contribution; and

 

·

reimbursing an employee for any political contribution.

 

VII.

INTELLECTUAL PROPERTY AND CONFIDENTIALITY

 

Employees should abide by the Company’s rules and policies in protecting the Company’s intellectual property and confidential information, including the following:

 

·

All right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks, or trade secrets, whether or not patentable or registrable under patent, copyright, or similar laws, which are solely or jointly conceived or developed or reduced to practice, or caused to be conceived or developed or reduced to practice by an employee while in the employ of the Company (including during off-duty hours), or with the use of Company’s equipment, supplies, facilities, resources, or Company’s confidential information shall be the property of the Company.

 

·

Employees should maintain the confidentiality of information entrusted to them by the Company or entities with which the Company has business relations, except when disclosure is authorized or legally mandated. Confidential information includes all non-public information that might be of use to competitors, or harmful to the company or its business associates, if disclosed, including but not limited to any non-public information that relates to the actual or anticipated business, research or development of the Company, or that relates to the Company technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which an employee calls or with which an employee may become acquainted during the term employment), software, developments, inventions, ideas, processes, formulas, technologies, designs, drawings, engineering, specifications, information regarding routes of synthesis, patent analyses relating to products, test results, reports, studies, analyses, hardware configuration information, marketing, distribution and sales, finances, projects, strategies, opportunities, and all other information which if disclosed would materially adversely affect the Company or would aid or benefit its competitors; provided, however, Company Confidential Information does not include any of the foregoing items to the extent the same have become publicly known and made generally available through no wrongful act.

 

·

The Company maintains a strict confidentiality policy. During an employee’s term of employment with the Company, the employee shall comply with any and all written or unwritten rules and policies concerning confidentiality and shall fulfill the duties and responsibilities concerning confidentiality applicable to the employee.

 

·

In addition to fulfilling the responsibilities associated with his/her position in the Company, an employee shall not, without obtaining prior approval from the Company, disclose, announce or publish trade secrets or other confidential business information of the Company, nor shall an employee use such confidential information outside the course of his/her duties to the Company.

 

 

·

Even outside the work environment, an employee must maintain vigilance and refrain from disclosing important information regarding the Company or its business, business associates or employees.

 

·

An employee’s duty of confidentiality with respect to the confidential information of the Company survives the termination of such employee’s employment with the Company for any reason until such time as the Company discloses such information publicly or the information otherwise becomes available in the public sphere through no fault of the employee.

 

·

Upon termination of employment, or at such time as the Company requests, an employee must return to the Company all of its property without exception, including all forms of media containing confidential information, and may not retain duplicate materials.

 

VIII.

ACCURACY OF FINANCIAL REPORTS AND OTHER PUBLIC COMMUNICATIONS

 

Upon the Effective Time, the Company will be legally required to report its financial results and other material information about its business to the public and the SEC. Accordingly, it is the Company’s policy to timely disclose accurate and complete information regarding its business, financial condition and results of operations. Employees must strictly comply with all applicable standards, laws, regulations and policies for accounting and financial reporting of transactions, estimates and forecasts. Inaccurate, incomplete or untimely reporting will not be tolerated and can severely damage the Company and its shareholders, and could result in legal liability.

 

Employees should be on guard for, and promptly report, any possibility of inaccurate or incomplete financial reporting. Particular attention should be paid to:

 

·

Financial results that seem inconsistent with the performance of the underlying business;

 

·

Transactions that do not seem to have an obvious business purpose; and

 

·

Requests to circumvent ordinary review and approval procedures.

 

The Company’s senior financial officers and other employees working in the finance department have a special responsibility to ensure that all of the Company’s financial disclosures are full, fair, accurate, timely and understandable. Any practice or situation that might undermine this objective should be reported to the Head of Compliance Department.

 

 

Employees are prohibited from directly or indirectly taking any action to coerce, manipulate, mislead or fraudulently influence the Company’s independent auditors for the purpose of rendering the financial statements of the Company materially misleading. Prohibited actions include but are not limited to:

 

·

issuing or reissuing a report on the Company’s financial statements that is not warranted in the circumstances (including due to material violations of International Financial Reporting Standards, U.S. GAAP, generally accepted auditing standards or other professional or regulatory standards);

 

·

not performing audit, review or other procedures required by generally accepted auditing standards or other professional standards;

 

·

not withdrawing an issued report when withdrawal is warranted under the circumstances; or

 

·

not communicating matters required to be communicated to the Company’s Disclosure Committee or Audit Committee.

 

IX.

COMPANY RECORDS

 

Accurate and reliable records are crucial to the Company’s business and form the basis of its earnings statements, financial reports and other disclosures to the public. The Company’s records are a source of essential data that guides business decision-making and strategic planning. Company records include, but are not limited to, booking information, payroll, timecards, travel and expense reports, e-mails, accounting and financial data, measurement and performance records, electronic data files and all other records maintained in the ordinary course of business.

 

All Company records must be complete, accurate and reliable in all material respects. There is never an acceptable reason to create false or misleading records, or false or misleading entries in records. Undisclosed or unrecorded funds, payments or receipts are strictly prohibited. An employee is responsible for understanding and complying with the Company’s recordkeeping policy. An employee should contact the Head of Compliance Department if he/she has any questions regarding the recordkeeping policy.

 

X.

COMPLIANCE WITH LAWS AND REGULATIONS

 

Each employee has an obligation to comply with the laws of the cities, provinces, regions and countries in which the Company operates. This includes, without limitation, laws covering commercial bribery and kickbacks, patent, copyrights, trademarks and trade secrets, information privacy, insider trading, offering or receiving gratuities, employment harassment, environmental protection, occupational health and safety, false or misleading financial information, misuse of corporate assets and foreign currency exchange activities. Employees are expected to understand and comply with all laws, rules and regulations that apply to their positions at the Company. If any doubt exists about whether a course of action is lawful, the employee should seek advice immediately from the Head of Compliance Department.

 

XI.

COMPUTER AND INFORMATION SYSTEMS

 

For business purposes, officers and employees are in some cases provided telephones and computer workstations and software, including network access to computing systems such as the Internet and e-mail, to improve personal productivity and to efficiently manage proprietary information in a secure and reliable manner. Each officer and employee must use good judgment when installing any software on any Company computer or connect any personal laptop to the Company network. As with other equipment and assets of the Company, we are each responsible for the appropriate use of these assets. Officers and employees should not expect a right to privacy of their e-mail or Internet use. All e-mails or Internet use on Company equipment is subject to monitoring by the Company.

 

 

XII.

DISCRIMINATION AND HARASSMENT

 

The Company is firmly committed to providing equal opportunity in all aspects of employment and will not tolerate any illegal discrimination or harassment based on race, ethnicity, religion, gender, age, national origin or any other protected class. For further information, employees should consult the Head of Compliance Department.

 

XIII.

FAIR DEALING

 

Each employee should endeavor to deal fairly with the Company’s customers, business partners, competitors and employees. None should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts, or any other unfair-dealing practice.

 

XIV.

HEALTH AND SAFETY

 

The Company strives to provide employees with a safe and healthy work environment. Each employee has responsibility for maintaining a safe and healthy workplace for other employees by following environmental, safety and health rules and practices and reporting accidents, injuries and unsafe equipment, practices or conditions. Violence or threats of violence are not permitted.

 

Each employee is expected to perform his/her duty to the Company in a safe manner, not under the influence of alcohol, illegal drugs or other controlled substances. The use of illegal drugs or other controlled substances in the workplace is prohibited.

 

XV.

VIOLATIONS OF THE CODE

 

All employees have a duty to report any known or suspected violation of this Code to the Head of Compliance Department, including any violation of laws, rules, regulations or policies that apply to the Company. Reporting a known or suspected violation of this Code by others will not be considered an act of disloyalty, but an action to safeguard the reputation and integrity of the Company and its employees.

 

If an employee knows of or suspects a violation of this Code, it is such employee’s responsibility to immediately report the violation to the Head of Compliance Department, who will work with the employee to investigate his/her concern. All questions and reports of known or suspected violations of this Code will be treated with sensitivity and discretion. The Head of Compliance Department and the Company will protect the employee’s confidentiality to the extent possible, consistent with the law and the Company’s need to investigate the employee’s concern.

 

 

It is the Company’s policy that any employee who violates this Code will be subject to appropriate discipline, including termination of employment, based upon the facts and circumstances of each particular situation. An employee’s conduct, if it does not comply with the law or with this Code, can result in serious consequences for both the employee and the Company.

 

The Company strictly prohibits retaliation against an employee who, in good faith, seeks help or reports known or suspected violations of this Code or the law. An employee inflicting reprisal or retaliation against another employee for reporting a known or suspected violation will be subject to disciplinary action, including termination of employment.

 

XVI.

WAIVERS OF THE CODE

 

Waivers of this Code may only be granted on a case-by-case basis and only in extraordinary circumstances. Waivers of this Code may be made only by the Board, or the appropriate committee of the Board, and may be promptly disclosed to the public if so required by applicable laws and regulations and rules of the applicable stock exchange.

 

XVII.

CONCLUSION

 

This Code contains general guidelines for conducting the business of the Company consistent with the highest standards of business ethics. If employees have any questions about these guidelines, they should contact the Head of Compliance Department. We expect all employees to adhere to these standards. Each employee is separately responsible for his/her actions. Conduct that violates the law or this Code cannot be justified by claiming that it was ordered by a supervisor or someone in higher management positions. If an employee engages in conduct prohibited by the law or this Code, such employee will be deemed to have acted outside the scope of his/her employment. Such conduct will subject the employee to disciplinary action, including termination of employment.

 

* * *

 

 

 

Exhibit 99.3

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023
	/s/ Jihan Wu
	Name: Jihan Wu

 

 

 

Exhibit 99.4

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023
	/s/ Linghui Kong
	Name: Linghui Kong

 

 

 

Exhibit 99.5

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023

 

	/s/ Xiaoni Meng
	Name: Xiaoni Meng

 

 

 

Exhibit 99.6

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023

 

	/s/ Jianchun Liu
	Name: Jianchun Liu

 

 

Exhibit 99.7

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023

 

	/s/ Naphat Sirimongkolkasem
	Name: Naphat Sirimongkolkasem

 

 

Exhibit 99.8

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023

 

	/s/ Sheldon Trainor-DeGirolamo
	Name: Sheldon Trainor-DeGirolamo

 

 

 

Exhibit 99.9

 

Consent to be Named as a Director

 

In connection with the filing by Bitdeer Technologies Group of the Registration Statement on Form F-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Bitdeer Technologies Group following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

Dated: March 8, 2023

 

	/s/ Guang Yang
	Name: Guang Yang

 

Exhibit 99.10

 

Bitdeer Technologies Group

08 Kallang Avenue

Aperia tower 1, #09-03/04

Singapore 339509

 

March 8, 2023

 

Re: Bitdeer Technologies Group — Registration Statement on Form F-4

Representation under Item 8.A.4 of Form 20-F (“Item 8.A.4”)

 

Bitdeer Technologies Group, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”), a foreign private issuer, is making this representation in connection with the Company’s filing on the date hereof of its registration statement on Form F-4 (the “Registration Statement”) relating to a proposed initial public offering in the United States of the Company’s ordinary shares to be represented by American depositary shares in connection with a business combination among the Company, Blue Safari Group Acquisition Corp., an exempted company limited by shares incorporated under the laws of the British Virgin Islands (“BSGA”), Bitdeer Technologies Holding Company, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Bitdeer”), and other parties, upon the consummation of which Bitdeer would become a wholly-owned subsidiary of the Company, pursuant to the amended and restated agreement and plan of merger dated December 15, 2021 (as amended and/or restated from time to time), by and among the Company, BSGA and Bitdeer, among others.

 

The Company has included in the Registration Statement audited consolidated financial statements for Bitdeer as of December 31, 2021.

 

Item 8.A.4 of Form 20-F states that in the case of a company’s initial public offering, the registration statement on Form F-4 must contain audited financial statements of a date not older than 12 months from the date of the offering unless a representation is made pursuant to Instruction 2 to Item 8.A.4. The Company is making this representation pursuant to Instruction 2 to Item 8.A.4, which provides that a company may instead comply with the 15-month requirement “if the company is able to represent that it is not required to comply with the 12-month requirement in any other jurisdiction outside the United States and that complying with the 12-month requirement is impracticable or involves undue hardship.”

 

The Company hereby represents that:

 

1. The Company and Bitdeer are not currently public reporting companies in any jurisdiction and are not required by any jurisdiction outside the United States to have audited financial statements as of a date not older than 12 months from the date of filing the Registration Statement.

 

2. Compliance with the requirement in Item 8.A.4 of Form 20-F at present is impracticable and involves undue hardship for the Company and Bitdeer.

 

3. At the time the Registration Statement is declared effective, the Company’s Registration Statement will have audited financial statements of Bitdeer not older than fifteen months.

 

The Company is filing this representation as an exhibit to the Registration Statement on Form F-4 pursuant to Instruction 2 to Item 8.A.4.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this representation as of the date first above written.

 

	BITDEER TECHNOLOGIES GROUP
	By:	/s/ Jihan Wu
		Name: Jihan Wu
		Title: Chairman of the Board

 

[Signature Page to Item 8.A.4 Representation]

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

FORM F-4

 

(Form Type)

 

Bitdeer Technologies Group 

 

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered and Carry Forward Securities⁽¹⁾

 

Security Type

Security Class Title

Fee Calculation Rule

Amount Registered

Proposed Maximum Offering Price Per Unit

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Fees To Be Paid

Equity

BTG Class A Ordinary Shares

Rule 457(f)(1)

71,458,985

(1)

US$

10.6

US$

757,465,241.00

(2)

0.00011020

US$

83,472.67

Fees Previously Paid

Equity

Total Offering Amounts

US$

757,465,241.00

US$

83,472.67

Total Fees Previously Paid

Net Fee Due

US$

83,472.67

 

(1)

Represents Class A ordinary shares, par value US$0.0000001 per share, of the registrant (the “BTG Class A Ordinary Shares”) to be issued upon completion of the business combination described in this registration statement and the proxy statement/prospectus included herein (the “Business Combination”), and includes (a) up to 4,110,138 BTG Class A Ordinary Shares to be issued to securityholders of BSGA (the “BSGA Ordinary Shares”), (b) 63,085,052 BTG Class A Ordinary Shares to be issued to the existing shareholders of Bitdeer Technologies Holding Company, a Cayman Islands exempted company (“Bitdeer”) (other than Mr. Jihan Wu, the founder of Bitdeer and the entity controlled by him), and (c) up to 4,263,795 BTG Class A Ordinary Shares that may be issued upon conversion of US$30,000,000 principle amount of the convertible notes issued pursuant to such subscription agreement dated July 23, 2021 between Bitdeer and VENTE Technology Growth Investments L.P.

 

(2)

Pursuant to Rule 457(c) and 457(f)(1) promulgated under the Securities Act of 1933, as amended, and solely for the purpose of calculating the registration fee, the proposed maximum offering price for the BTG Class A Ordinary Shares is the product of (i) US$10.6 (the implied price of BSGA Ordinary Shares based on the average of the high US$10.6 and low US$10.6 trading prices of BSGA Ordinary Shares on the Nasdaq on March 7, 2023, which is within five business days prior to the filing date of this registration statement on Form F-4), multiplied by (ii) 71,458,985 BTG Class A Ordinary Shares issuable in connection with the Business Combination.