EQUIPMENT PURCHASE AND SALE AGREEMENT

Exhibit 10.4

THIS EQUIPMENT PURCHASE AND SALE AGREEMENT (together with all Schedules and Exhibits hereto which are incorporated herein by reference, this “Agreement”), dated as of August 5, 2022 (the “Effective Date”), is entered into by and between CleanSpark DW, LLC, a Georgia Limited Liability Company, with its mailing address at 0000 Xxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxx 00000 (“Buyer”), and WAHA TECHNOLOGIES, INC., a Georgia corporation, with its corporate address at 0000 Xxxxxxx Xxxx #000-000, Xxxxxxxx, Xxxxxxx 00000 (“Seller”).

RECITALS:

WHEREAS, CSRE Properties Washington, LLC, a Georgia limited liability company, an affiliate of Buyer, and SPRE Commercial Group, Inc. f/k/a WAHA, INC, a Georgia corporation, an affiliate of Seller, have entered into a Purchase and Sale Agreement (“Land Purchase Agreement”) on August 5, 2022; and

WHEREAS, as part of the Land Purchase Agreement, it is contemplated that Buyer shall purchase certain of Seller’s Bitcoin mining equipment and other assets in addition to the Land Purchase Agreement on the terms and conditions of this Agreement; and

WHEREAS, Seller desires to sell such assets to Buyer on the terms and conditions of this Agreement.

NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Article I

description AND delivery OF ASSETS

1.1 Purchased Assets. Subject to the terms of this Agreement, Buyer agrees to purchase the assets from Seller that are listed on listed on Schedule 1.1 (“Purchased Assets”):

I.1

Delivery of Purchased Assets. Buyer shall take possession of the Purchased Assets at 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 upon the Closing (as defined in Section 3.2 below).

1.3 Land Purchase Agreement. The consummation of this Agreement is subject to the execution, delivery and consummation of the transactions contemplated by the Land Purchase Agreement. If the Land Purchase Agreement is not consummated for any reason, either party hereto, in its sole discretion, may terminate this Agreement without further liability to the other party.

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Article II

PURCHASE AND SALE OF ASSETS

2.1 Purchase and Sale of Assets. Subject to the terms of this Agreement, Seller agrees to sell, assign, transfer and deliver to Buyer, and Buyer agrees to purchase and accept from Seller, at the Closing (as defined in Section 3.2 below), all of Seller’s right, title and interest to the Purchased Assets listed on Schedule 1.1.

II.1

Liabilities. The Purchased Assets shall be sold and conveyed to Buyer free and clear of all liens, charges, claims, counterclaims, rights of set off, rights of recoupment and similar rights, encumbrances, security interests, mortgages, pledges or other claims or interests of any nature (collectively, “Liens”), unless otherwise expressly agreed upon in writing by the parties hereto.

II.2

Conveyance of Purchased Assets. The Buyer and Seller shall enter into a xxxx of sale or other instruments of conveyance as shall be reasonably requested by Buyer for the transfer by Seller to Buyer of all of Seller’s right, title and interest in and to the Purchased Assets. The xxxx of sale to be signed by the Buyer and Seller shall be in the form as attached hereto as Exhibit “A” (the “Xxxx of Sale”).

2.4 Warranty. Seller hereby transfers and assigns to Buyer any and all warranties with respect to the Purchased Assets provided by the manufacturers to Seller in connection with its original purchase of the Purchased Assets, and Seller provides the Buyer with full benefit of the warranty over the assets provided by the manufacturers. Seller is the true and lawful owner, and has good title to, all of the Assets, free and clear of all encumbrances. As of the Closing, there will be no restrictions on the Buyer’s right or ability to modify, relocate, or dispose of the Purchased Assets as the Buyer sees fit.

Article III

CONSIDERATION; Closing

3.1 Purchase Price. The purchase price (the “Purchase Price”) for the Purchase Assets shall be Eight Million, Eight Hundred Ninety-One Thousand, Six Hundred Ten and No/Dollars ($8,891,610.00).

III.1

Closing. The consummation of the transactions contemplated by this Agreement shall occur contemporaneously with the consummation of the transactions contemplated by the Land Purchase Agreement. Upon closing, Buyer and Seller shall execute and delivery the Xxxx of Sale and Buyer shall pay the Seller the Purchase Price via wire transfer to an account designated in writing by Seller.

Article IV

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer as follows:

4.1 Organization and Good Standing. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Georgia. Seller has all requisite power and

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authority to own, occupy and operate the Purchased Assets. Seller is duly qualified to do business and is in good standing in all other jurisdictions in which the ownership of the Purchased Assets make such qualification necessary.

IV.1

Authority. Seller has all requisite power and authority to execute and deliver this Agreement and all agreements contemplated hereunder and to consummate the transactions contemplated hereunder. The execution, delivery and performance of the Agreement and all agreements contemplated hereunder, and the consummation of the transactions contemplated hereunder, have been duly and validly authorized by all necessary action on the part of Seller. The Agreement and all agreements contemplated hereunder have been duly executed and delivered by Seller and constitute or will constitute when executed and delivered the valid and binding obligations of Seller, enforceable against Seller in accordance with their terms, except that enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditor’s rights generally and by principles of equity.

IV.2

Effect of Agreement. The execution, delivery and performance of the Agreement and all agreements contemplated hereunder, and the consummation of the transactions contemplated hereunder, do not violate or result in a breach of the terms or provisions of, or constitute a default under, create a Lien under, or conflict with or result in the termination of, or require Seller to obtain any consent or approval under any agreements to which the Seller is bound, or the certificate of formation, governing documents or any documents comparable thereto or any amendments or modifications thereto of Seller.

IV.3

Consents. All consents, approvals, authorizations, and other requirements that must be obtained or satisfied by Seller that are necessary for the execution of this Agreement, the agreements contemplated hereunder, and the consummation of the transactions contemplated hereunder, have been obtained and satisfied.

IV.4

Title to Purchased Assets. Seller has good title to the Purchased Assets, and the right to transfer such title free and clear of all Liens.

IV.5

Taxes. All taxes owed by Seller in connection with the Purchased Assets have been paid and there are no Liens on the Purchased Assets in connection with, or otherwise related to, any failure to pay any tax.

IV.6

Brokers. No finder, broker, agent or other intermediary has acted for or on behalf of the Seller in connection with the negotiation or consummation of this Agreement, and there are no claims for any brokerage commission, finder’s fee or similar payment due from Seller.

IV.7

Warranty. The Seller expressly warrants that the Purchased Assets are (i) free of liens or encumbrances; (ii) merchantable and good for ordinary purpose for which they are used; and (iii) fit for the particular purpose for which they are intended.

4.8 Terahash Warranty. Seller warrants that the Purchased Assets consisting of Bitcoin miners will provide no less than 341,985 terahash of computing power (the "Guaranteed Hashrate"). Purchaser shall be satisfied in its sole discretion that Purchased Assets meet the Guaranteed Hashrate requirements as a condition to Closing.

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Article V

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as follows:

5.1 Organization and Good Standing. Buyer is a Limited Liability Company duly organized, validly existing and in good standing under the laws of the State of Georgia.

V.1

Authority. Buyer has all requisite power and authority to execute and deliver this Agreement and all agreements contemplated hereunder, and to consummate the transactions contemplated hereunder. The execution, delivery and performance of the Agreement and all agreements contemplated hereunder and the consummation of the transactions contemplated hereunder have been duly and validly authorized by all necessary action on the part of Buyer. The Agreement and all agreements contemplated hereunder have been duly executed and delivered by Buyer and constitute or will constitute when executed and delivered valid and binding obligations of Buyer enforceable against Buyer in accordance with their terms, except that enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally and by principles of equity.

V.2

V.3

Brokers. No finder, broker, agent or other intermediary has acted for or on behalf of Buyer in connection with the negotiation or consummation of this Agreement, and there are no claims for any brokerage commission, finder’s fee or similar payment due from Buyer.

Article VI

CERTAIN COVENANTS AND UNDERSTANDINGS

6.1 Transfer Taxes. Any and all Transfer Taxes (as defined below) shall be borne by Seller. Seller shall timely and accurately file all necessary tax returns and other documentation with respect to Transfer Taxes (the “Transfer Tax Returns”) and timely pay all such Transfer Taxes. If required by applicable law, Seller will join in the execution of any Transfer Tax Return. For purposes of this Agreement, “Transfer Taxes” means all sales (including bulk sales), use, transfer, recording, value added, ad valorem, privilege, documentary, gross receipts, registration, conveyance, excise, license, stamp or similar Taxes and fees arising out of, in connection with or attributable to the transactions effectuated pursuant to this Agreement.

VI.1

Title and Risk of Loss. Seller and Buyer understand and agree that title to the Purchased Assets and the risk of loss with respect to the Purchased Assets shall pass from Seller to Buyer upon Closing.

VI.2

Further Assurances. Seller shall, at any time on or after a Closing Date and at Seller’s expense, execute, acknowledge and deliver all such further acts, deeds and instruments as may be

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reasonably required for the effective transfer to and possession by Buyer, or its successors or assigns, of any of the respective Purchased Assets.

Article VII

INDEMNIFICATION

7.1 Survival of Representations and Warranties. All representations, warranties, covenants and agreements set forth in this Agreement or in any other certificate or document delivered pursuant to this Agreement shall survive the Closing and for a period of one year (1) year.

VII.1

Indemnification by Seller. Seller shall defend, indemnify, and hold harmless Buyer and its officers, agents, representatives, successors and assigns from and against any loss, damage, injury, settlement, judgment, award, fine, penalty, fee, charge, cost or expense (including interest, investigative expenses and costs of experts and other witnesses and reasonable attorneys’ fees), and any claims or other liabilities or obligations (collectively, “Losses”) arising from or related to (a) any misrepresentation or breach of any representation or warranty by Seller contained in this Agreement or any of the agreements contemplated hereunder; (b) the use, ownership, or operation by Seller of the Purchased Assets prior to the Closing; (c) Seller’s breach or failure to perform any covenant, undertaking or other agreement contained in this Agreement; (d) any and all Taxes and assessments related to the Purchased Assets for periods prior to the applicable Closing Date(s); and (e) any liabilities, debts or obligations of Seller.

VII.2

Indemnification by Buyer. Buyer shall defend, indemnify, and hold harmless Seller, its officers, agents, representatives, successors and assigns from and against any Losses arising from or related to (a) any misrepresentation or breach of any representation or warranty by Buyer contained in this Agreement or any of the agreements contemplated hereunder; (b) the use, ownership, or operation of the Purchased Assets by Buyer after the Closing Date; (c) Buyer’s breach or failure to perform any covenant, undertaking or other agreement contained in this Agreement; and (d) any and all Taxes and assessments of Buyer on the Purchased Assets related to periods after the Closing Date applicable thereto.

VII.3

Limitation on Liability. The maximum aggregate amount of all Losses for which Seller or Buyer shall be liable under this Agreement shall not exceed the Purchase Price.

VII.4

No Consequential Damages. Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other person for any consequential, incidental, indirect, special or punitive damages of such other person, including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof.

VII.5

Fraud or Intentional Representation. Nothing in this Article VII shall be deemed to limit any claim(s) based upon fraud or intentional misrepresentation (but not, for the avoidance of doubt, claims for negligent misrepresentation).

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Article VIII

MISCELLANEOUS

I.1

Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); or (b) when received by the addressee if sent by a nationally recognized overnight courier, for delivery the next day (receipt requested). Such communications must be sent to the respective parties at the following addresses:

If to Seller: WAHA Technologies, Inc.

0000 Xxxxxxx Xxxx, #000-000

Xxxxxxxx, XX 00000

If to Buyer: CleanSpark, Inc.

0000 Xxxxxxxxx Xxxxxx, Xxxxx 000

Xxxxxxxxx, XX 00000

Attn: Legal Department

With a copy to: Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC, 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000,

Xxxxxxx, XX 00000,

Attn: Xxxxxx Xxxxxxx, Esq.

Email: xxxxxxxx@xxxxxxxxxxxxx.xxx.

The above addresses may be changed by written notice to the other party in the manner provided above; however, that no notice of a change of address shall be effective until actual receipt of such notice.

VIII.1

Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule of such jurisdiction.

VIII.2

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon any may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. Counterparts hereof which are transmitted by facsimile or electronic transmission shall be given identical legal effect as an original.

VIII.3

Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interest or obligations hereunder shall be assigned by Seller or Buyer without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void.

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VIII.4

Third Party Beneficiaries. None of the provisions of this Agreement or any document contemplated hereby is intended to grant any right or benefit to any person or entity which is not a party to this Agreement.

VIII.5

Headings. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of this Agreement and shall not in any way affect the meaning or interpretation of this Agreement.

VIII.6

Amendments; Waivers. This Agreement may not be amended, changed, supplemented or otherwise modified except by an instrument in writing signed on behalf of all of the parties hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

VIII.7

Confidentiality. The parties shall hold in strictest confidence any information and material which is related to either Buyer or Seller’s business or is designated by either Buyer or Seller as proprietary and confidential, herein or otherwise. Seller further covenants not to disclose or otherwise make known to any individual or entity nor to issue or release for publication any articles or advertising or publicity matter relating to this Agreement in which the name of Buyer or any of its affiliates is mentioned or used, directly or indirectly, unless prior written consent is granted by the other party; provided, however, that the Buyer shall be entitled to make any disclosures required by it as a public company under applicable law, regulation or stock exchange rule without any consent of Seller, including the filing of this Agreement as an exhibit thereto.

VIII.8

Severability. In the event that any provision in this Agreement shall be determined to be invalid, illegal or unenforceable, in any respect, the remaining provisions of this Agreement shall not be in any way impaired, and the illegal, invalid or unenforceable provision shall be fully severed from this Agreement and there shall be automatically added in lieu thereof a provision as similar in terms and intent to such severed provision as may be legal, valid and enforceable.

VIII.9

Entire Agreement. This Agreement and the Schedules and Exhibits hereto constitute the entire contract between the parties hereto pertaining to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings between the parties with respect to such subject.

VIII.10

Fees and Expenses. Each party shall bear his or its own commissions, expenses and legal fees incurred on his or its behalf with respect to this Agreement and the closing of the transactions contemplated hereby.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its duly authorized officer as of the date first above written.

SELLER: WAHA TECHNOLOGIES, INC, a Georgia corporation

/Xxxxxx X. Xxxxxxx/

By: Xxxxxx X. Xxxxxxx

Its: Director & C.E.O.

Counterpart Signature Page to

Equipment Purchase and Sale Agreement

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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its duly authorized officer as of the date first above written.

BUYER: CleanSpark DW, LLC, a Georgia limited liability company

By: CSRE Property Management Company, LLC, a Georgia limited liability company, its Manager

By: CleanSpark, Inc., a Nevada corporation, its Manager

By: /Xxxxxxx X. Xxxxxxxx/
Xxxxxxx X. Xxxxxxxx, its President

Counterpart Signature Page to

Equipment Purchase and Sale Agreement

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EQUIPMENT PURCHASE AND SALE AGREEMENT

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