株探米国株
日本語 英語
エドガーで原本を確認する
0001375365false00013753652024-06-142024-06-14


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
  
__________________________________________________________________________

FORM 8-K
 
__________________________________________________________________________

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 14, 2024
 

SUPER MICRO COMPUTER, INC.
(Exact name of registrant as specified in its charter)
 

Delaware 001-33383 77-0353939
(State or other jurisdiction
of incorporation)
(Commission File Number) (I.R.S. Employer
Identification No.)
980 Rock Avenue, San Jose, California 95131
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (408) 503-8000
Not Applicable
(Former name or former address, if changed since last report)
 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class   Trading
Symbol(s)
  Name of each exchange
on which registered
Common Stock, $0.001 par value   SMCI   The NASDAQ Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨





Item 1.01 Entry into a Material Definitive Agreement

On June 14, 2024, Super Micro Computer, Inc. (the “Company”) entered into a Master Colocation Services Agreement (the “MCSA”) with 4701 Santa Fe, LLC (the “Supplier”) to lease certain data center space owned by the Supplier. The MCSA is a master agreement containing general terms and conditions with the Supplier for any data center space that may be occupied by the Company, with each individual data center space to be documented under an individual service order that will have the property and space specifications.

Concurrent with the execution of the MCSA, the Company entered into that certain Service Order MCSA-001 (the “Service Order”) with the Supplier to lease data center space located in Vernon, California (the “Data Center Space”), which Service Order is governed by the MCSA. Pursuant to the Service Order, the Company has agreed to lease 21 MW of a multi-tenanted facility from the Supplier for a term of 10 years. The Company’s aggregate financial obligation for the term of the Service Order is estimated to be $600.0 million, which amount includes the monthly recurring charges, power charges and other anticipated costs.

Concurrent with the execution of the MCSA and the Service Order, the Company entered into that certain Sublicense (the “Sublicense”) with Lambda, Inc. (the “Sublicensee”) to sublicense all of the Company’s rights and obligations with respect to the Data Center Space. Pursuant to the Sublicense, the Sublicensee agreed to assume and perform all of the Company’s obligations, covenants, representations and terms under the MCSA and Service Order. The Sublicensee is obligated to pay to the Company the monthly recurring charges due from the Company under the Service Order plus an additional monthly charge. The Sublicensee is obligated pay all other charges due from the Company under the MCSA and Service Order directly to the Supplier.

The payments owed by the Company under the Service Order (as governed by the MCSA) may be accelerated by the Supplier in the event of a default under the MCSA and/or the Service Order and the exercise of remedies by the Supplier in connection therewith. Upon such acceleration, the Company has a right to seek reimbursement for such accelerated payments from Sublicensee pursuant to the terms of the Sublicense.

The foregoing description of the MCSA, Service Order and Sublicense is qualified in its entirety by reference to the text of the MCSA, Service Order and Sublicense, copies of which are attached as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information set forth in Item 1.01 above is incorporated herein by reference into this Item 2.03.

Item 9.01 Financial Statements and Exhibits

Exhibit
Number
Description
10.1†
10.2†
10.3†
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)

† Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(b)(10).





SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
SUPER MICRO COMPUTER, INC.
Date: June 21, 2024
By: /s/ Charles Liang
President, Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)


EX-10.1 2 prime-supermicroxmcsaxco.htm EX-10.1 prime-supermicroxmcsaxco
1 Certain identified information has been omitted from this document because it is not material and is the type that the registrant treats as private and has been marked with "[ ]" to indicate where omissions have been made. MASTER COLOCATION SERVICES AGREEMENT This Master Colocation Services Agreement (“MCSA”) is entered into by and between Super Micro Computer, Inc., a Delaware corporation with offices at 980 Rock Avenue, San Jose, California 95131 (“Customer”) and 4701 SANTA FE, LLC, a Delaware limited liability (“Supplier”) effective as of the latest of the Parties’ respective dates of execution set forth on the signature page below (the “MCSA Effective Date”) and governs Supplier’s performance, and Customer’s purchase, of Services at the Facility. 1. THE SERVICES 1.1 Authorization of Services. The “Services” are the following, as they may be supplemented, modified or replaced during the Term by mutually executed Service Orders: (a) the functions described in an Agreement as functions for which Supplier is responsible; and (b) any functions related to the foregoing that are not specifically described in an Agreement but are required for the provision of the Services thereunder (except Supplier shall not be obligated to provide Cross Connections (defined below) and remote hands and eyes services except as specified in any Service Order executed by Supplier and Customer). Supplier shall provide, and Customer may purchase, Services pursuant to a Service Order executed by Supplier and Customer using the mutually agreed upon Service Order form. Upon the mutual execution and delivery of a Service Order, the terms of the applicable Service Order, together with the terms of this MCSA, will become a separate binding agreement (an “Agreement”) between Supplier and Customer. 1.2 Obligation to Provide Services, Generally. Starting on the Service Effective Date for any applicable Agreement, or any later date that may be specified in writing in such Agreement for any specific Services, and continuing during the applicable Service Term, Supplier will perform the Services described in the applicable Service Order, and Customer will pay all Charges and perform its other obligations in accordance with the terms of such Service Order and the applicable Agreement. 1.3 Services Not Exclusive. Supplier is a non-exclusive provider of Services. Customer and its Affiliates have no obligation to order or purchase any Services, and Supplier has no obligation to provide any Services, except as expressly set forth in any Service Order that is mutually executed and delivered by Supplier and Customer. The extent and quantity of all Services purchased shall be set forth in mutually executed Service Orders. Customer may purchase from any third party services that are identical or similar to the Services described in any Agreement. 1.4 Relationship of the Parties. Supplier is an independent contractor and is not an agent, servant, employee, legal representative, partner or joint venturer of Customer. Nothing in this MCSA or any Agreement shall be deemed to create a joint venture or partnership between Supplier and Customer. Supplier has the sole right and obligation to supervise, manage, and direct all work to be performed by Supplier Personnel under each Agreement. Supplier has no authority to represent or bind Customer, and Customer has no authority to represent or bind Supplier. 2. PERFORMANCE 2.1 Colocation Space. (a) Generally. Starting on the applicable Service Commencement Date specified in any Service Order, Customer (or its sublicensee) shall have the right to install and operate, maintain and access Customer Equipment within the Colocation Space specified in such Service Order (the “Permitted Use”). Customer shall not, at any time, use or allow any person to use the Colocation Space or do or permit anything to be done or kept in or about the Colocation Space for activities other than the Permitted Use in compliance with all Laws and the Data Center Rules and Regulations. (b) Installation and Management. Unless otherwise agreed by the Parties in writing, Customer (or its sublicensee) will be responsible for the removal from the Colocation Space (and any other applicable portions of the Facility) of all packaging materials (including, but not limited to, all flammable materials) associated with the Customer Equipment or otherwise placed in the Colocation Space, will maintain the Colocation Space in good condition and in a clean, safe and orderly fashion and will comply with all of the Data Center Rules and Regulations. Customer (or its sublicensee) shall ensure that cables are properly installed and either enclosed in cable management trays or in clean bundles for proper presentation and identification. (c) Access. Subject to the terms and conditions of this Section 2(c), Customer (or its sublicensee) will have access to the Colocation Space twenty-four (24) hours a day, seven (7) days a week. All access to the Colocation Space shall be in strict


 
2 accordance with the Data Center Rules and Regulations and Supplier's security and access procedures which procedures may be amended by Supplier from time to time upon written notice to Customer, provided however, that in the event of any such amendment, Customer (or its sublicensee) shall have five (5) business days after receipt of notice to comply with such amendments. Except as otherwise set forth in Section 5.3(b) below, under no circumstances will Supplier allow any third parties to access the Colocation Space without the express approval of Customer (or its sublicensee). Customer (or its sublicensee) is responsible for any and all actions of Customer Personnel while on the Supplier’s premises. Supplier may only temporarily suspend access by any Customer Personnel to the Facility (including the Colocation Space) (a) in the event of an emergency, and any such suspension will be removed immediately after any such emergency subsides or (b) in the event of a material violation by such Customer Personnel of the Data Center Rules and Regulations or Supplier's security and access procedures. Supplier shall promptly notify Customer (to the extent practicable under the circumstances) in the event any such suspension is required. Customer (or its sublicensee) shall receive the required access badges (and other access credentials) at no charge to Customer (or its sublicensee) for initial issuance. (i) Customer (or its sublicensee) shall provide an access list (as updated and/or modified from time to time, the “Customer’s Access List”) designating employees and vendors of Customer (including but not limited to, any sublicensee) that are permitted to enter the Customer Space. Each employee and vendor designated on the Customer’s Access List shall receive a security authorization (an “Access Authorization”). Supplier will document (via information to be provided by Customer (or its sublicensee) through Supplier’s ticketing system) the name, company, and purpose of any visitor that is escorted through the space with Customer Personnel. Supplier will log all access to the Colocation Space. Customer (or its sublicensee) may request copies of access control data and access control devices for Customer Space. (ii) Customer (or its sublicensee) shall be solely responsible for updating the Customer’s Access List and providing any changes to Supplier. Any such update shall become effective 24 hours after the same is delivered to Supplier. Customer (or its sublicensee) shall notify Supplier of any updates to Customer’s Access List via Supplier’s ticketing system. Supplier shall not be responsible for any losses, costs or damages in the event that unauthorized parties gain access to the Facility or the Customer Space through access cards, keys or other access devices or credentials provided by Supplier to or on behalf of Customer (or its sublicensee), unless Customer (or its sublicensee) instructed Supplier to remove such person from Customer’s Access List at least two (2) business days prior to such access by such person. (d) Remote-Hands Services. If and to the extent agreed in mutually executed and delivered Service Order(s), Supplier will assist Customer (or its sublicensee) in performing light duties or correcting minor problems with respect to the Customer Equipment. Customer agrees to pay Supplier's fees for such services, as further described in the applicable Service Order(s). (e) Removal of Customer Equipment. Customer (or its sublicensee) will provide Supplier with notice at least five (5) days’ notice before Customer (or its sublicensee) desires to remove a piece of Customer Equipment that is larger than 3 pallets from the Colocation Space so logistics may be arranged within the Facility. (f) Vacating the Customer Space. (i) Upon the expiration or earlier termination of any Service Term, Customer (or its sublicensee) shall remove all Customer Equipment and any other improvements made by Customer (or its sublicensee) to the applicable Customer Space, and return the applicable Customer Space to Supplier in the same such Customer Space was in as of the applicable Service Commencement Date, ordinary wear and tear excepted. Customer (or its sublicensee) shall, at its sole cost and expense, repair any damage caused by the removal of its Customer Equipment and any other improvements made by Customer (or its sublicensee) to the Customer Space. (ii) If Customer continues occupying any Customer Space after the expiration of the applicable Service Term, such occupancy shall be at sufferance, subject to all the terms and provisions of the applicable Agreement, except as to the Service Term and the Charges. Customer shall pay Charges: (a) during the first two (2) months of such holdover period at one hundred fifty percent (150%) of the rate applicable to the last month of the expired Service Term, and (b) thereafter, at a rate of two hundred percent (200%) of the rate applicable to the last month of the expired Service Term. (iii) Neither any provision hereof nor acceptance by Supplier of any Charges after any such expiration or earlier termination of any Service Term shall be deemed a consent to any holdover hereunder or result in a renewal of the applicable Agreement or an extension of the Service Term, or any waiver of Supplier’s rights or remedies at law and in equity with respect to such holdover. (g) Cross Connections; Carrier Services. (i) Upon request, Supplier will provide Customer (or its sublicensee) with a list of approved Carriers.


 
3 (ii) If and to the extent agreed in mutually executed and delivered Service Order(s), Supplier shall provide Cross-Connections for Customer (in which case, the applicable Cross-Connections shall be installed as agreed in the applicable Service Order). (iii) Any and all Cross-Connections made by or for Customer (or its sublicensee) shall be subject to Supplier's processes and procedures set forth in the applicable Service Order, which processes and procedures may be amended by Supplier from time to time upon written notice to Customer, provided however, that in the event of any such amendment, Customer shall: (A) have five (5) business days after receipt of notice to comply with such amendments, and (B) if upon Customer’s (or its sublicensee’s) review of such amendments, Customer reasonably determines that such amendments will result in more than a de minimis increase in Customer’s internal costs or otherwise cause Customer hardship to implement, Customer (or its sublicensee) shall comply with the prior agreed upon version of such document(s) and the Parties shall engage in good faith discussions to find a mutually agreeable solution. Notwithstanding the foregoing, if such amendments were made by Supplier as a result of any requirements of Customer (or its sublicensee) (including updates to Customer Policies) or this Agreement, then such amendments shall be deemed to be approved by Customer and may not be objected to by Customer. (iv) Customer (or its sublicensee) will notify the applicable Carrier and Supplier when Customer (or its sublicensee) desires to terminate or modify any cross-connections. Customer (or its sublicensee) will be responsible for all payments due to Carriers. 2.2 Time of Performance. Supplier will complete all Services diligently, in a timely manner, and in accordance with the time schedules set forth in each applicable Agreement, subject to the extension of such time schedules for any delays caused by acts or omissions of Customer or any Customer personnel, and subject to Section 15.6(b) (Force Majeure). Supplier will promptly notify Customer in writing upon becoming aware of any circumstances that may reasonably be expected to jeopardize the timely completion of any Services. Supplier will use commercially reasonable efforts to mitigate any delays in performance and will inform Customer of: (a) the steps Supplier is taking or will take to do so; and (b) the projected completion time. 2.3 Manner of Performance. Supplier will manage and perform, complete and deliver the Services in accordance with each applicable Agreement. Supplier will render the Services in accordance with Supplier’s prevailing practices, which will not be less favorable to Customer than the established practices followed by providers of similar services in similar facilities. 2.4 Responsibility for Supplying Certain Resources. Each Agreement will define each Party’s responsibility (including financial responsibility) for providing equipment, facilities, third-party services and other resources expected to be required for the Services described such Agreement. If Supplier agrees to perform any customer fit-out for Customer (or its sublicensee), the terms of such fit-out, including the costs, design, and other relevant details, shall be set forth in a Service Order that is mutually executed and delivered by Supplier and Customer. 2.5 Performance Criteria. Supplier’s performance of the Services will be measured as specified in the applicable Agreement. 2.6 Acceptance Tests. If and to the extent set forth in an Agreement, the Services will be subject to “Acceptance Tests” which are mutually agreed in writing by the Parties in the applicable Service Order, in which event: (a) Supplier will notify Customer in writing when it believes any Services are ready for acceptance testing (the “Delivery Notice”) and shall assist Customer in performing such tests. (b) Within ten (10) business days after delivery of such notice, or such longer period as the Parties may agree in the applicable Service Order (such period being the “Acceptance Period”), Customer (or its sublicensee) shall determine whether the Services have passed the applicable Acceptance Tests and notify Supplier of its determination. (c) If, within ten (10) business days after Customer’s receipt of the Delivery Notice, Customer (or its sublicensee) has not notified Supplier of its determination, Supplier shall send Customer a second notice via e-mail reminding Customer that if it does not respond within the Acceptance Period, Customer will be deemed to have accepted the Services unless Customer (or its sublicensee) notifies Supplier of its determination within five (5) business days after delivery of such second notice (and if Customer does not so notify Supplier of its determination within such five (5) business day period, Customer shall be deemed to have accepted the applicable Services). (d) If Customer (or its sublicensee) determines and notifies Supplier that the Services have not passed the applicable Acceptance Tests, Supplier shall have fifteen (15) days (or such longer period as the Parties may agree) to resubmit such Services for acceptance testing.


 
4 (e) Notwithstanding anything to the contrary in any Agreement, if Customer (or its sublicensee) commences using any Services that are subject to Acceptance Tests, those Services shall be deemed accepted by Customer on the date that Customer (or its sublicensee) commences using such Services. (f) Customer shall not be liable, and Supplier shall not invoice Customer, for any Services that are subject to Acceptance Tests in accordance with the applicable Service Order until such Services have been accepted (or deemed accepted) by Customer pursuant to this Section 2.6. 2.7 Reporting. If and to the extent required by any Service Order, on or before the fifteenth (15 th) day of each month during the Term, Supplier shall provide a written progress report to Customer (and any sublicensee) detailing: (a) progress towards any delivery milestone(s); (b) any actual or anticipated delays that might affect completion of Services in accordance with the applicable project plan or timeline under the applicable Service Order, and/or (c) Supplier’s activities and performance against any applicable Service Levels in the preceding month. 2.8 Compliance with Laws and Customer Policies. (a) Supplier will, at its cost and expense (A) obtain all necessary regulatory approvals, licenses, and permits (collectively, “Permits”) applicable to the performance of its obligations under each Agreement, as such Laws may be revised from time to time and (B) perform the Services in compliance with, all applicable Laws. To the extent not prohibited by Law, Supplier will promptly notify Customer in writing of any investigation or inquiry into whether Supplier (or any of its subcontractors) is charged with failing to comply with any Laws in connection with the Services that will adversely affect Supplier’s performance under an Agreement. (b) Supplier will comply with the Customer (or its sublicensee) policies, standards, rules, and procedures (collectively, “Customer Policies”) applicable to performance of the Services or access to the Colocation Space, as set forth in or attached to the applicable Service Order, which policies, standards, rules, and procedures may be amended by Customer (or its sublicensee) from time to time upon written notice to Supplier; provided however, that: (a) in the event of any such amendment, Supplier shall have five (5) business days after receipt of notice to comply with such amendments, and (ii) no such amendment shall unreasonably interfere with Supplier’s ability to perform, or increase the cost to Supplier to perform, Supplier’s obligations under any Agreement. (c) To the extent Supplier (or any of its subcontractors) makes payments to any government official or any other person under an Agreement on behalf of Customer (or its sublicensee), Supplier will maintain true, accurate and complete books and records concerning any such payments, including the purpose of each transaction. 2.9 Corrective Action. With reference to Section 2.5 (Performance Criteria), if Supplier fails to meet one or more performance criteria with respect to the Services, Supplier will: (a) promptly, as reasonably practical, investigate and report on the root cause of the problem; (b) remedy the cause of the failure and resume meeting the affected performance criteria, unless Customer or any of Customer’s transferees (including but not limited to, its sublicensee) or any of their respective employees, vendors, agents, or subcontractors or invitees (collectively, “Customer Personnel”) caused such failure; (c) excluding any failures caused by Customer or any Customer Personnel, implement and notify Customer of measures taken by Supplier to prevent recurrences if the failure is otherwise likely to recur; and (d) make written recommendations to Customer for improvements in procedures. 3. SUPPLIER PERSONNEL AND SUBCONTRACTING; TRANSFER BY SUPPLIER 3.1 General Requirements for Supplier Personnel. (a) Supplier will assign an adequate number of Supplier Personnel to perform the Services who are properly trained and familiar with and qualified for the Services they are assigned to perform. Supplier will manage, supervise and provide direction to Supplier Personnel and cause them to comply with the obligations and restrictions applicable to Supplier under the Agreement. Supplier is responsible for the acts and omissions of Supplier Personnel under or relating to each Agreement, excepting any subcontractors or vendors that Customer (or its sublicensee) specifically requires Supplier to engage (“Required Contractors”). Supplier shall ensure that, or will require its contractors to ensure that, as applicable, Supplier Personnel assigned to perform Services: (i) have the legal right to work in the country(ies) in which they are assigned to work, and (ii) conform to all applicable Supplier policies with respect to personal and professional conduct (including the wearing of an identification badge and adhering to general safety, dress, behavior, and security practices). (b) Prior to assigning any Supplier Personnel to perform any Services within any Colocation Space, Supplier shall perform or will require its contractors to perform customary background checks of the personnel. Such background checks may have been performed as part of Supplier’s or its contractor’s, as applicable, standard pre-employment screening process. Customer (or its sublicensee) may require Supplier to provide written evidence of successful background checks on Supplier Personnel at any time. Notwithstanding anything to the contrary herein, the Parties hereby agree and acknowledge that the requirements set forth in this Section 3.1(b) shall not apply to any contractors or subcontractors performing construction services at the Facility prior to any Service Commencement Date.


 
5 3.2 Removal of Supplier Personnel. Customer (or its sublicensee) may request Supplier to replace any Supplier Personnel whose performance, in Customer’s (or its sublicensee’s) reasonable judgment, has been unsatisfactory; provided Supplier Personnel selection and retention shall ultimately be controlled by Supplier. Supplier will be liable for any expenses associated with the replacement of any Supplier Personnel under this Section 3.2 (Removal of Supplier Personnel). 3.3 Subcontracting. (a) Subject to this Section 3.3 (Subcontracting), Supplier may subcontract or delegate the performance of any part of the Services to be provided by such Supplier under any Service Order; provided that no such subcontracting will release Supplier from its responsibility for its obligations under any Agreement. Supplier agrees, within ten (10) business days after receipt of a request for same (but no more than once per annum) from Customer (or its sublicensee), to provide Customer (or its sublicensee) with a list of all such subcontractors engaged by Supplier to perform services within the Customer Space. Each Service Order may contain a list of Supplier’s subcontractors that are pre-approved by Customer (or its sublicensee) (the “Pre-Approved Contractors”). For any subcontractors that Supplier desires to use during the Term that are not Pre-Approved Contractors, Supplier shall reasonably consult with Customer (or its sublicensee) with respect to retention of the applicable subcontractors. (b) In accordance with Section 3.2 (Removal of Supplier Personnel), Customer (or its sublicensee) may require Supplier to replace any existing subcontractor whose performance, in the reasonable judgment of Customer (or its sublicensee), has been unacceptable, provided Supplier subcontractor selection and retention shall ultimately be controlled by Supplier. (c) Supplier is responsible for managing all subcontractors and is responsible for all subcontractors to the same extent as if the subcontracted Services were performed by Supplier. Supplier will be Customer’s sole point of contact regard ing the Services (including \ all subcontracted Services), including for payment. (d) Supplier shall use commercially reasonable efforts to include in subcontracts any provisions of the Agreement that may be applicable to performance of the subcontract and all other provisions intended for the protection of Customer (or its sublicensee). 3.4 Transfer by Supplier. (a) Supplier shall deliver written notice (an “Operations Transfer Notice”) at least thirty (30) days prior to any transfer of the full responsibility for operation and management of the Facility (in connection with a sale or otherwise) (an “Operations Transfer”), together with relevant information and documentation regarding the person or entity to which responsibility for operation and management of the Facility is being transferred in connection with such Operations Transfer. During the Term, Supplier agrees not to transfer responsibility for operation and management of the Facility (in connection with a sale or otherwise) to any person or entity that is not a Qualified Datacenter Operator (defined below). A “Qualified Data Center Operator” means a person or entity that, together with its Affiliates: (i) has been engaged in, or is managed by persons that have been engaged in the business of operating multi-megawatt data center facilities for the preceding three (3) year period, (ii) operates three (3) or more similarly-designed data center facilities with Critical Load Power capacity of 6.0 MW or more, (iii) is a nationally-recognized operator of data center facilities, (iv) will maintain an operations management team at the Facility experienced in the operation of multi-megawatt data center facilities, for the preceding three (3) year period or (v) is otherwise approved in writing by Customer, which approval will not be unreasonably withheld, conditioned or delayed. (b) After a transfer by Supplier of its entire interest in the Facility and under each and every Agreement, Supplier shall have no further obligations under any Agreement and Customer shall look solely to the successor in interest of Supplier in and to each such Agreement for all obligations and liabilities accruing on or after the date of such transfer of Supplier’s entire interest in the Facility and all Agreements to a third party. If any security has been given by Customer to secure the faithful performance of any of the covenants under any Agreement, Supplier shall transfer or deliver said security, as such, to Supplier’s successor in interest, and thereupon Supplier shall be discharged from liability with regard to said security with respect to the successor’s disposition of the security. 4. CHARGES 4.1 Charges. (a) Generally. Each Agreement sets forth (or will set forth) the unit rates and charges payable by Customer to Supplier for performing the Services and the associated invoicing and payment procedures and terms thereunder (collectively, the “Charges”). Except as otherwise set forth in any Agreement, Customer will not be required to pay Supplier any amounts under an Agreement other than the Charges payable to Supplier under, and calculated in accordance with, each Service Order. (b) Recurring MRC. Customer agrees to pay the minimum Monthly Recurring Charges indicated on each Service Order (including, but not limited to all power utilization charges) and all other monthly recurring amounts indicated in the


 
6 applicable Agreement (collectively, the “MRC”) in the manner described in Section 4.2 (Payment and Invoicing). The payment instructions and calculation method for actual power utilization charges shall be included in each Service Order. (c) Non-Recurring Charges. Customer agrees to pay Supplier the Non-Recurring Charges indicated on a Service Order (“NRC”) in the manner described in Section 4.2 (Payment and Invoicing). 4.2 Payment and Invoicing. (a) All Recurring MRC (defined below) shall be due and payable on the first (1st) day of each calendar month, whether or not Supplier delivers any invoice, notice or demand therefor. If the Service Commencement Date or the expiration of the Service Term (or the date of any earlier termination of any Agreement) falls on a date other than the first or last day of a calendar month, respectively, then the Recurring MRC payable for such partial calendar month shall be prorated on a per diem basis. (b) Supplier shall issue invoices to Customer with a copy to its sublicensee on a monthly basis for Charges (other than Recurring MRC) due under each Agreement, and except as otherwise expressly stated in any Service Order to the contrary, each such payment of Charges shall be due and payable on the date that is thirty (30) days after Supplier’s delivery of each invoice. All such invoices must reference the Agreement, contain an itemization of Charges for Services rendered during the applicable invoice, and must otherwise comply with any additional requirements of the applicable Agreement. If and to the extent specified in any Service Order, Supplier shall submit invoices to Customer and its sublicensee in accordance with the method of electronic communication specified in such Service Order; provided that Supplier shall not be required to incur any cost in utilizing any such specified method and in the event that Supplier is unable to access any such system or encounters technical difficulties in submitting invoices using such method, Supplier may submit invoices to Customer and its sublicensee by email or in any other reasonable manner. (c) Customer shall have the right, in good faith, to dispute the amount of any Charges that are billed to Customer in accordance with Section 4.2(b) above by delivery of written notice of such dispute together with supporting documentation (a “Good Faith Dispute Notice”) to Supplier no later than thirty (30) days after Customer’s receipt of the applicable invoice; provided that notwithstanding the foregoing, Customer shall have no right to so dispute the amount of any Stipulated Charges (defined below), or to withhold timely payment of any Stipulated Charges under this Section 4.2(c) (provided that to the extent any Charges are determined by multiplying any Stipulated Charges that specify a rate at which Services are billed by a quantity of Services provided, this Section 4.2(c) shall apply to a dispute with respect to the amount of such Charges that is based on a dispute with respect to the quantity of Services that were provided (as opposed to a dispute based on the stipulated rate at which such Services are billed)). On the condition that Customer so delivers a Good Faith Dispute Notice within the time period specified above (time being of the essence), as and to the extent provided in this Section 4.2(c), Customer may withhold from payment (in accordance with Section 4.2(b) above) the amount of Charges so disputed (which, as provided above, shall not include any portion of any Stipulated Charges, other than as set forth above with respect to quantities of applicable Services) in such Good Faith Dispute Notice (“Disputed Charges”). Customer (and any sublicensee) and Supplier shall thereafter investigate in good faith the Disputed Charges, and shall endeavor to resolve the dispute regarding such Disputed Charges during the thirty (30) day period following the date of Customer’s delivery of such Good Faith Dispute Notice. If Customer does not demonstrate, to the reasonable satisfaction of Supplier, during such thirty (30) day period, that such Disputed Charges were erroneously charged to Customer and are not payable by Customer under the applicable Agreement, then Customer shall pay such Disputed Charges to Supplier within five (5) business days after expiration of such thirty (30) day period. If Customer so delivers Good Faith Dispute Notice: (i) Customer will not be responsible for any late fees accruing on any such Disputed Charge and Customer’s failure to pay any Disputed Charges shall not provide the basis for a Customer Default, in each case, prior to the date that all or any portion of such Disputed Charges become payable under this Section 4.2(c), and (ii) Customer shall have no obligation to pay any interest on any such Disputed Charge to the extent that such amounts were erroneously charged to, and were not payable by Customer under the applicable Agreement. “Stipulated Charges” are any Charges for which a specific amount is expressly set out in the Agreement, including in this MCSA or in any Service Order. For the avoidance of doubt, Customer shall have no right to dispute under Section 4.2(c) or withhold payment of any Recurring MRC. (d) If Supplier owes Customer a credit or other amount under any Agreement, Supplier will pay that amount by check or wire transfer within thirty (30) days from claim notice. 4.3 Incidental and Out-of-Pocket Expenses. (a) Unless specifically confirmed in writing or expressly provided otherwise in an Agreement, Customer is not responsible for any additional costs or expenses of any nature incurred by Supplier in connection with the provisions of the Services, including travel expenses, clerical or administrative personnel, long distance telephone charges, etc. (“Incidental Expenses”); provided however, that the foregoing conditions shall not apply to any Incidental Expenses included in a third party invoice that Customer has agreed will be passed through from Supplier to Customer. (b) Customer shall be responsible for any Out-of-Pocket Expenses that are specified as being reimbursable by Customer in an Agreement, together with the administrative fee thereon (if any) that is specified in the applicable Service Order. “Out-


 
7 of-Pocket Supply Expenses” are the actual out-of-pocket expenses incurred by Supplier for equipment, materials, or supplies required for performance of the Services and specified in the applicable Service Order as reimbursable, and “Out-of-Pocket Service Expenses” are the reasonable, demonstrable and actual out-of-pocket expenses incurred by Supplier for services (such as with tier 2 service providers) required for performance of the Services and specified in the applicable Service Order as reimbursable. “Out-of-Pocket Expenses” refers collectively to Out-of-Pocket Supply Expenses and Out-of-Pocket Service Expenses. Out-of-Pocket Expenses are to be determined net of all rebates, discounts and allowances received by Supplier. 4.4 Taxes. (a) This Section 4.4 (Taxes) sets forth the allocation of responsibility between the Parties for taxes arising out of or in relation to an Agreement. Except as otherwise expressly provided in this Section 4.4 (Taxes) or as set forth in any Service Order, each Party remains solely responsible for taxes imposed or assessed on such Party and its Affiliates (or their activities), including taxes assessed on such Party’s and its Affiliates’: (i) property, franchise, income, and business and occupational taxes (or similar in nature) on its business activities; and (ii) for employer-related taxes with respect to its personnel (e.g. employee taxes, workers compensation and unemployment insurance). Each Party agrees to reasonably cooperate with the other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. (b) Customer will be responsible for paying Supplier all Service-Related Taxes applicable to the Services to be provided under an Agreement and any other taxes specified in any Service Order. Any Service-Related Tax will be paid by Customer on a pass-through expense basis (i.e., at Supplier’s actual direct cost, without any uplift or other mark-up). If Customer is exempt from any Service-Related Tax, it will provide Supplier with a copy of the applicable tax exemption certificate and all other documentation reasonably required by Supplier, and, so long as such tax exemption certificate is valid, Supplier will not bill, charge, or credit Customer for the applicable tax. (c) Supplier’s invoices with respect to amounts that are payable or reimbursable under this Section 4.4 shall: (i) include any Service-Related Taxes; (ii) include a breakout between taxable and non-taxable Charges; (iii) show the tax rate, the value against which the tax rate is applied, and the total amount of tax due; and (d) otherwise comply with any additional requirements specified in the applicable Service Order. (d) Withholding Taxes. If Laws require the withholding of income taxes or other taxes imposed upon payments under this Section 4 (Charges), Customer shall make such withholding payments as required by Laws. Customer shall submit appropriate proof of payment of the withholding taxes to Supplier within five (5) days after such withholding (or such shorter period of time as required by Laws). At the request of Supplier, Customer shall immediately give Supplier such reasonable assistance, which shall include the provision of appropriate certificates of such deductions made, together with other supporting documentation as may be required by the relevant tax authority, to enable Supplier to claim exemption from such withholding or other tax imposed or obtain a repayment thereof or reduction thereof or as otherwise required by Laws, and shall upon request provide such additional documentation from time to time as is reasonably required to confirm the payment of any withholding tax. 4.5 Customer shall pay all Charges and other amounts that are payable or reimbursable by Customer under this Section 4 (Charges) (collectively, “Fees & Charges”) in U.S. dollars to the address or in the manner designated in the applicable Service Order on or before the date that same are due as specified in this Section 4 or in the applicable Service Order (or if not so specified, within thirty (30) days following Supplier’s delivery of the applicable invoice therefor). Fees & Charges are due in full as provided in the foregoing sentence, without rights of setoff. If Customer disputes an invoice in accordance with Section 4.2(c) below, it shall and shall pay all undisputed Fees & Charges on or before the date due. Fees & Charges not received when due bear interest at the lesser of the maximum amount allowable by law or 1.5% per month commencing with the payment due date and assessed until the date paid. 5. CUSTOMER RESPONSIBILITIES 5.1 Customer Responsibilities, Generally. To facilitate Supplier’s performance of the Services, Customer (or its sublicensee) will, at its own cost and expense, perform those tasks and fulfill those responsibilities of Customer as set forth in the Agreement (“Customer Responsibilities”). Supplier’s performance of the Services may be conditioned in some circumstances on Customer’s (or its sublicensee’s) timely and effective performance of the Customer Responsibilities and timely decisions and approvals by Customer (or its sublicensee), and the applicable Agreement will specify where that performance is conditional. 5.2 Savings Clause. Customer’s (or its sublicensee’s) failure to perform any of the Customer Responsibilities (or cause them to be performed) will not constitute grounds for termination of the Agreement by Supplier except as provided in Section 8.4 (Termination by Supplier); provided, however, that Supplier’s nonperformance of its obligations under an Agreement will be excused if and to the extent (a) such performance by Supplier is conditioned upon Customer’s (or its sublicensee’s) performance of the applicable Customer Responsibilities or (b) otherwise if: (i) such nonperformance results from Customer’s failure to perform any Customer Responsibilities; and (ii) Supplier provides Customer with reasonable notice of such nonperformance and, if requested by Customer, uses commercially reasonable efforts to perform notwithstanding Customer’s failure to perform. If Supplier’s use of commercially


 
8 reasonable efforts to perform in such a circumstance would cause Supplier to incur any out of pocket expenses, such expenses shall constitute Out-of Pocket Expenses that shall be reimbursable by Customer (together with a 10% administrative fee thereon) in accordance with Section 4.2 above. 5.3 Access. (a) Supplier’s Access to Customer Space. (i) Subject to the terms of this Section 5.3(a)(i) and Section 5.3(a)(ii) below, Supplier and other Supplier Personnel may enter upon any and all parts of a Customer Space: (A) to perform Supplier’s obligations (including, but not limited, to maintenance and repair and security rounds) under an Agreement, (B) to exercise any of Supplier’s rights or remedies under an Agreement, (C) for good cause, to determine whether Customer (or its sublicensee) is complying with its obligations under an Agreement, and (D) upon reasonable prior notice, to show the Customer Space to prospective purchasers of the applicable Facility or of Supplier, or to prospective or current mortgage lenders and during the last twelve (12) months of any applicable Service Term, (or at any time that Customer (or its sublicensee) has vacated or abandoned, or otherwise is not operating in) a Customer Space) to prospective customers or tenants). In connection with Supplier’s rights hereunder, Supplier shall at all times have and retain keys, pass keys and/or other access devices or credentials with which to unlock all of the doors in, on or about the Customer Space, and Supplier shall have the right to use any and all means by which Supplier may deem proper to open such doors to obtain entry to the Customer Space in an emergency. Notwithstanding anything herein to the contrary, except for emergencies, Supplier shall use reasonable efforts to minimize disruption of Customer’s (or its sublicensee’s) business or occupancy during such entries, and may not circumvent, compromise or disrupt the use or security of any Customer Equipment. (ii) Supplier agrees that (except in the case of an emergency) Supplier shall comply with Customer’s Security Procedures in connection with any access by Supplier to the Customer Space; provided that: (A) Supplier has received written notice of Customer’s Security Procedures, and (B) Customer’s Security Procedures do not unreasonably interfere with Supplier’s ability to perform, or increase the cost to Supplier to perform, Supplier’s obligations under any Agreement. “Customer’s Security Procedures” means Customer’s (or its sublicensee’s) reasonable security procedures as they may be updated from time to time by Customer by deliver thereof to Supplier at least five (5) business days prior to the date that the same shall take effect. (b) Customer (or its sublicensee) will provide to Supplier and Supplier Personnel assigned to work at a Customer Facility reasonable access to the Customer Facility upon twenty-four (24) hours’ advance notice (or notice as soon as reasonably practicable in the event of an emergency, which may, in some events, be after access has occurred). Supplier will access the Customer Facility for the sole purpose of providing the Services and to perform its obligations under the Agreement. 5.4 Additional Responsibilities. (a) Customer Equipment. Customer (or its sublicensee) has control and responsibility over the Customer Equipment, including among others for maintenance, installation, testing and operation (b) Compliance with Laws. (i) Customer (or its sublicensee) will, at its cost and expense: (A) secure any and all Permits that are required: (x) for its conduct of its business at, from and within the Customer Space (except for any Permits that Supplier is expressly required to obtain pursuant to Section 2.8(a)(i) above) and (y) for installation of all of its Customer Equipment in the Customer Space, (B) maintain in good standing and effect all necessary and proper business licenses and other licenses and permits relating to its business operations and the Customer Equipment, and (C) comply with all Laws applicable to its use of the Customer Space and its conduct of its business at and from the Customer Space. To the extent not prohibited by Law, Customer (or its sublicensee) will promptly notify Supplier in writing of any investigation or inquiry into whether Customer (or any Customer Personnel) is charged with failing to comply with any Laws applicable to its use of the Customer Space and its conduct of its business at and from the Customer Space. (ii) Customer’s Permitted Use shall be subject to, and Customer and all Customer Personnel shall comply fully with all requirements of the Data Center Rules and Regulations; provided that in the event of any conflict between the Data Center Rules and Regulations and any other provision of any Agreement, the latter shall control. Customer (or its sublicensee) shall abide by and faithfully and strictly observe and comply with the Data Center Rules and Regulations, and shall further be responsible for the compliance by all Customer Personnel with the Data Center Rules and Regulations. Supplier shall not enforce the Data Center Rules and Regulations against Customer (or its sublicensee) in a discriminatory manner, but Supplier shall not be liable for any violation of such rules and regulations by any other tenant or occupant of the Facility. (c) Installation Documentation. Customer (or its sublicensee) will provide Supplier with all required installation documentation for any Customer Equipment, as further described in the applicable Service Order.


 
9 (d) Hazardous Materials. No Customer Personnel shall, without Supplier’s prior written consent, Handle any Hazardous Materials upon, about, in, at, above or beneath the Customer Space or any portion of the Facility; provided that, Customer (or its sublicensee) may, without Supplier’s consent, Handle Hazardous Materials that are customarily stored and used in the conduct of the Permitted Use (“Customary Hazardous Materials”) at the Customer Space, but only in compliance with all applicable Laws and only in a manner consistent with prevailing industry standards. If any Hazardous Materials become present in, on, under or about (or to be released from) the Customer Space or the Facility as a result of ant acts or omissions of ant Customer Personnel, Customer (or its sublicensee) shall take all actions (or at Supplier’s election, reimburse Supplier for taking all actions) necessary to restore the Facility to the condition existing prior to the introduction of such Hazardous Materials (notwithstanding any less stringent standards or remediation allowable under applicable Laws). (e) Overages in Critical Power. Customer’s (or its sublicensee’s) use of Critical Load Power in each Colocation Space shall not at any time exceed the Electrical Power Threshold for the applicable Colocation Space (as stated in the applicable Service Order). All equipment (belonging to Customer or otherwise) located within a Colocation Space shall be included in the calculation of Customer’s (or its sublicensee’s) use of Critical Load Power in such Colocation Space. Customer shall, upon receipt of written notice, promptly cease the use of any Customer Equipment or other personal property of Customer and its transferees that Supplier reasonably believes will cause (or is causing) Customer’s (or its sublicensee’s) use of Critical Load Power in any portion of the Colocation Space to exceed the Electrical Power Threshold for such portion of the Colocation Space If Customer (or its sublicensee) shall fail to reduce its use of Critical Load Power in any portion of the Colocation Space to a level that complies with the terms of this Section 5.4(e) within twenty-four (24) hours after receiving such a notice from Supplier, Supplier shall have the right to disconnect power to the applicable circuit or circuits as required to reduce use of Critical Load Power in the applicable portion of the Colocation Space below the Electrical Power Threshold for such portion of the Colocation Space. (f) Maintenance. Customer (or its sublicensee) shall, at Customer’s sole cost and expense: (i) maintain the Customer Space and all Customer Equipment in a clean, sightly, safe and good order and clean condition (and in at least as good order and clean condition as when Customer took possession), ordinary wear and tear excepted and (i) regularly remove all trash from the Customer Space. Customer (or its sublicensee) shall be responsible, for the maintenance and repair (and when necessary, replacement) of all portions of the electrical systems and infrastructure serving the Colocation Space “downstream” of the output circuit breakers for the Supplier provided PDUs serving the Colocation Space (including, without limitation, all RPPs, power distribution whips, receptacles and other installations), whether provided as of the applicable Service Commencement Date by Supplier or otherwise. (g) Alterations. Customer (or its sublicensee) shall not make or cause to be made any Alterations without the prior written consent and approval of Supplier, which consent and approval shall not be unreasonably withheld; provided that: (i) Customer (or its sublicensee) may make Permitted Alterations without Supplier’s consent (such that, by way of example only, Supplier’s consent would be required for the installation of overhead ladder racks that are attached to the ceiling, but Supplier’s consent would not be required for the installation of equipment which does not involve drilling into the floor or ceiling), and (ii) Customer (or its sublicensee) shall have the right, at its sole cost and expense and subject to Supplier's approval of the plans and specifications therefor and the contractors who shall perform such work, to install its own security system (“Customer’s Security System”) within the Colocation Space. Supplier shall: (1) notify Customer within fifteen (15) business days whether Supplier approves (or approves subject to conditions) or does not approve any proposed Alterations that require Supplier’s consent and Supplier’s failure to respond within the 15 business day timeframe to such proposed Alterations shall be considered a deemed approval by Supplier, and (2) at Customer’s request made upon request for Supplier’s approval of any Alterations, notify Customer whether it will require removal of such Alterations at the end of the applicable Service Term. Customer (or its sublicensee) shall give Supplier not less than seven (7) business days’ prior written notice before commencing any Alterations (including, but not limited to, any Permitted Alterations) so as to permit Supplier to post appropriate notices of non-responsibility. If reasonably required by Supplier, Customer (or its sublicensee) shall also secure, prior to commencing any Alterations, at Customer’s sole expense, a completion and lien indemnity bond satisfactory to Supplier for such work. (h) Customer’s Vendors. Supplier agrees that Customer (or its sublicensee) may contract with: (i) any licensed third party electrical contractor for the installation and maintenance of electrical interconnections specific to Customer’s Equipment located within a Colocation Space, (ii) any licensed third party contractor for the installation of cabinets, racks and low voltage copper and fiber optic communications infrastructure within a Colocation Space, and (iii) any reputable vendor to provide remote-hands and other technical contract services at a Colocation Space in connection with the day-to-day operation of Customer’s (or its sublicensee’s) business; provided that: (A) Supplier must approve in writing any third party vendor that provides electrical, construction, and other technical contract services to Customer (or its sublicensee) at the Facility before any such vendor may enter the Facility (provided that any such approval of any such vendor shall not to be unreasonably withheld) and (B) all third party vendors must agree to and follow all of Suppliers rules, policies and procedures that are established for like services, including strict adherence to any local seismic and ADA regulations and the Datacenter Rules and Regulations. (i) Encumbrances. Customer (or its sublicensee) shall keep Supplier, the Customer Space, the Facility and the Customer’s interest under each Agreement free from Encumbrances (and it is understood and agreed that Customer has no right under any Agreement to create or permit any Encumbrance to be established). Customer (or its sublicensee) shall satisfy, bond or otherwise


 
10 discharge all Encumbrances within thirty (30) business days after Supplier notifies Customer that any such Encumbrance has been filed or exists. (j) Transfers. (i) Customer shall not make any Transfer without first obtaining Supplier’s express prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No Transfer, whether voluntary, involuntary or by operation of law, shall be valid or effective without Supplier’s prior written consent. If Customer desires to make any Transfer, then at least twenty (20) business days prior to the proposed effective date of the proposed Transfer, Customer shall submit to Supplier: (A) a Transfer Request and such other information and materials as Supplier may reasonably request (and if Supplier requests such additional information or materials within five (5) business days after Supplier’s receipt of a Transfer Request, the Transfer Request shall not be deemed to have been received until Supplier receives such additional information or materials so requested within five (5) business days after Supplier’s receipt of such Transfer Request) and (B) two (2) originals of the proposed Transfer documentation executed by Customer and the proposed transferee. If Customer modifies any of the terms and conditions relevant to a proposed Transfer specified in the Transfer Request, Customer shall re-submit such Transfer Request to Supplier for its consent pursuant to all of the terms and conditions of this Section 5.4(k). (ii) No Transfer shall release Customer from its obligations under any Agreement or alter the primary liability of Customer to pay all Charges and to perform all of the other obligations that are to be performed by the “Customer” under any Agreement. In no event shall the acceptance of any payment by Supplier from any other person be deemed a waiver by Supplier of any provision of any Agreement. Consent by Supplier to one Transfer shall not be deemed consent to any subsequent Transfer. In the event of breach by any transferee or any successor of Customer in the performance of any of the terms of any Agreement, Supplier may proceed directly against Customer without the necessity of exhausting remedies against such transferee or successor. Notwithstanding the foregoing, Supplier acknowledges and agrees that it has agreed to allow Customer to sublicense all obligations under this Agreement and any Service Order in connection therewith to Lambda, Inc. pursuant to that certain Consent to Sublicense dated as the same date herewith. (k) Subordination and Attornment; Estoppel Certificates; Financial Statements. (i) Subordination and Attornment. Each Agreement and the rights of Customer thereunder, are and shall be subordinate to all Security Instruments. Such subordination shall be effective without the necessity of the execution by Customer of any additional document for the purpose of evidencing or effecting such subordination. Supplier shall have the right to subordinate or cause to be subordinated any such Security Instruments to any Agreement and in such case, in the event of the termination or transfer of Supplier’s estate or interest in the Facility by reason of any termination or foreclosure of any such Security Instrument, Customer shall, notwithstanding such subordination, attorn to and become the Customer of the successor in interest to Supplier at the option of such successor in interest. Furthermore, Customer shall within fifteen (15) business days after demand therefor execute any instruments or other documents in a commercially reasonable form which may be reasonably required by Supplier or the Holder of any Security Instrument and specifically shall execute, acknowledge and deliver within fifteen (15) business days of demand therefor a subordination, non-disturbance and attornment agreement, in the commercially reasonable form required by the Holder of the Security Instrument requesting the document. If requested to do so, Customer shall attorn to and recognize as the Supplier under any Agreement any superior lessor, superior mortgagee or other purchaser or person taking title to the Facility by reason of the termination of any superior lease or the foreclosure of any superior mortgage or deed of trust, and Customer shall, within fifteen (15) business days of demand therefor execute any commercially reasonable instruments or other documents which may be reasonably required by Supplier or the Holder of any such Security Instrument to evidence the attornment described in this Section 5.4(f)(i). (ii) Estoppel Certificates. At any time and from time to time, within ten (10) business days after written request by Supplier, Customer shall execute, acknowledge and deliver to Supplier a statement in writing certifying all matters reasonably requested by Supplier or any current or prospective purchaser or Holder of any Security Document. Customer acknowledges and agrees that it understands that any statement delivered (or to be delivered) pursuant to this Section 5.4(j)(ii) may be relied upon by any prospective purchaser of the Facility (or the Suppler) or by any prospective mortgagee, ground lessor or other like encumbrancer thereof or any assignee of any such encumbrance upon the Facility. (iii) Financial Statements. Unless Customer is a publicly traded company and its financial statements are available to the public, then no more than two (2) times in any twelve (12) month period during any Service Term, Customer shall, upon ten (10) business days’ prior notice from Supplier, provide Supplier with then current financial statements and financial statements for each of the two (2) years prior to the then current calendar year for Customer. Such statements shall be prepared in accordance with generally accepted accounting principles, consistently applied, and, if audited in the ordinary course of Customer’s business, shall be audited by an independent certified public accountant (and if not so audited, shall be certified as true and correct by the appropriate officer of Customer).


 
11 6. CONFIDENTIALITY, SECURITY AND AUDITS 6.1 Confidentiality. (a) The parties each agrees that: (a) all of the Supplier Confidential Information and Customer Confidential Information is confidential and constitutes proprietary information of Supplier or Customer (or its sublicensee), as applicable and (b) it shall not disclose, and it shall cause its partners, officers, directors, shareholders, employees, brokers and attorneys not to disclose (unless required by Law and/or a court of competent jurisdiction) any Confidential Information of the other party to any other person or Entity (except its attorneys and other agents that have agreed to treat such information as confidential and not to disclose it to third parties) without first obtaining the prior written consent of the disclosing party, which may be withheld in the disclosing party’s sole discretion. Notwithstanding anything to the contrary in this MCSA or any Agreement, information shall not be deemed Confidential Information hereunder if Supplier or Customer (or its sublicensee), as applicable, did not use reasonable efforts, under the circumstances, to keep such information confidential, or if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of any Agreement by the receiving party; or (iii) was independently developed by the receiving party prior to disclosure to such party. (b) Each party may disclose the other party’s Confidential Information where: (i) the disclosure is required by Law or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other party with adequate time for such other party to seek a protective order or (ii) the disclosure is reasonably necessary and is to that party’s or its Affiliates’ employees, officers, directors, attorneys, accountants, consultants and other advisors, or to Supplier’s existing or prospective mortgage lender and its counsel, or to a prospective purchase of the Facility (or the Supplier) and its counsel, or the disclosure is otherwise necessary for a party to exercise its rights and perform its obligations under any Agreement, so long as in all cases the disclosure is no broader than necessary and the party who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential. In addition, if any Agreement, or portions thereof, are required under applicable Laws to be disclosed as part of an exhibit to a party’s required public disclosure documents, the affected party shall notify the other party in advance and in writing (and such other party shall have the right to object or otherwise seek confidential treatment of this this MCSA and each Agreement). Each party is responsible for ensuring that any Confidential Information of the other party that it discloses pursuant to this Section 6.1 is kept confidential by the person or entity receiving the disclosure, and to the extent practical, shall cause any party to which it discloses the other party’s Confidential Information to execute a commercially reasonable non-disclosure agreement. Supplier acknowledges and agrees that Customer is a publicly traded company, and in connection with the transactions contemplated by this Agreement, Customer will be required to file a form 8-K with the United States Securities and Exchange Commission and Supplier agrees to such public disclosure statement to be filed by Customer. (c) Upon termination or expiration of this MCSA, each Party will deliver to the other Party any remaining Confidential Information of the other Party in such Party’s possession, including reports, data, work product (alternatively, as requested by the disclosing Party, the receiving Party will destroy such property), and, subject to the provisions of this Section 6.1(c), shall certify that all such Confidential Information has been removed from the applicable Party’s systems, and control and either returned or destroyed; provided however, that the receiving Party may retain a copy of the disclosing Party’s Confidential Information for legal archival purposes, which copy shall be maintained in accordance with the provisions of the Agreement. Receiving Party shall also not be required to return or destroy and may retain a copy of the disclosing Party’s Confidential Information on any computer records or files containing the Confidential Information which have been created pursuant to automatic archiving or back-up procedures on secured central storage servers and which cannot reasonably be deleted, provided that all such archived or backed-up records shall continue to be treated as Confidential Information and shall be maintained in accordance with the provisions of the Agreement. All materials in electronic form shall be delivered to the disclosing Party on such media and in such file format as the providing Party may reasonably direct. 6.2 Security. (a) Security Practices. Supplier will establish, implement and maintain the Supplier’s Access Control Systems and if applicable, other physical security measures and systems consistent with Comparable Owner Practices to protect against the unauthorized access to Customer Equipment in the Colocation Space. The specific physical security measures and systems with respect to the Facility in addition to the Supplier’s Access Control Systems that are described herein will be described in the applicable Service Order, and Supplier shall not be responsible for providing security services within the Customer Space (including, but not limited to, protecting Customer Equipment), except as expressly specified in an Agreement. Neither Supplier nor any of its Affiliates shall have access to or control over any data stored, process, transmitted through or otherwise residing on Customer Equipment, and Supplier shall have no liability to Customer for loss or damage to any such data except for liability for any loss or damage caused by Supplier’s breach of an Agreement. (b) Security Assessments. Upon Customer's (or its sublicensee’s) written request, Supplier shall grant Customer (or its sublicensee) access to the Facility and the Supplier related Building Systems sufficient to permit Customer (or its sublicensee) to


 
12 conduct physical security assessments; provided that Customer (or its sublicensee) shall not have the right to access any portions of the Facility occupied by other customers of the Facility or any systems or support areas serving other customers of the Facility. Customer (or its sublicensee) may conduct a security assessment before Customer Equipment is delivered to the Facility. Supplier shall consult with Customer (or its sublicensee) and consider in good faith the implementation of appropriate physical security practice improvements with respect to the Colocation Space in response to all security threats identified by any source, including Supplier’s and Customer's (or its sublicensee’s) security assessments. The timeline and terms for completing any such improvements shall be mutually agreed by Supplier and Customer in a Service Order. (c) Security Incidents. Supplier shall promptly inform Customer in writing of any Security Incident of which Supplier has knowledge within 24 hours of which Supplier becomes aware of such Security Incident. Such notice shall be sent via email to: [ ] with a copy to [ ] and [ ] and [ ]. The notice shall summarize in reasonable detail the effect of the Security Incident on Customer (or its sublicensee), or any Customer Equipment (if known) and the corrective action taken or to be taken by Supplier. Supplier shall provide to Customer all relevant information relating to the Security Incident reasonably requested by Customer (or its sublicensee), including log data relating to the Security Incident and information about each vulnerability used or discovered in connection with the Security Incident, but may redact or exclude any information that Supplier is not permitted to disclose pursuant to Supplier’s confidentiality obligations to third parties or other customers or pursuant to Law. To the extent such Security Incident relates to Supplier’s obligations under the Agreement, Supplier shall promptly take all necessary and advisable corrective actions, and shall cooperate with Customer (or its sublicensee) in all reasonable and lawful efforts to prevent, mitigate, or rectify a Security Incident. 6.3 Audits. (a) Records and Security Audits During the Term, Supplier shall: (i) maintain complete and accurate records relating to the physical security of and access to the Facility, including any backup, disaster recovery or other policies, practices or procedures relating to the Services; and (ii) upon Customer's (or its sublicensee’s) reasonable request, make all such records, appropriate personnel and relevant materials available during normal business hours for inspection and audit by Customer (or its sublicensee) and its auditors; provided, that Customer (or its sublicensee) shall: (A) give Supplier at least ten (10) business days' prior notice of any such audit; (B) undertake audits no more than once per calendar quarter (or more frequently for good cause shown); and (C) conduct audits in a manner designed to minimize disruption of Supplier's normal business operations (and Supplier shall have the right to redact or exclude any information that Supplier is not permitted to disclose pursuant to Supplier’s confidentiality obligations to third parties or other customers or pursuant to Law). (b) Regulatory Audits. Any authorized representative of any regulatory agency, taxing authority or private entity that functions in a quasi-regulatory manner that has jurisdiction over Customer (or its sublicensee) in connection with its regulatory functions (each, a “Regulator”) shall, upon request, have the same audit rights as those set forth in clause (ii) of Section 6.3(a). Supplier shall reasonably cooperate with all individuals conducting such audits and consider in good faith all recommendations that result from inspections, tests, and audits as soon as reasonably possible. 6.4 Supplier Assessments and Certifications. Supplier shall conduct its own internal audits pertaining to the Colocation Space and the Services consistent with the audit practices of well managed companies that provide similar products and perform similar services. Except as otherwise set forth in a Service Order, Supplier agrees to maintain, the following industry-standard information assessments and certifications or the industry standard equivalent for the Facility: (a) AT 101/SOC 2 Type II or equivalent reports; and (b) ISO 27001 certification or its equivalent. Supplier will provide Customer (and its sublicensee) and its independent auditors with a summary of the relevant audit findings and certifications within five (5) business days after Customer’s (or its sublicensee’s) request thereof, in each case, to the extent such findings and certifications are within Supplier’s possession and control; provided Supplier shall have the right to redact or exclude any information that Supplier is not permitted to disclose pursuant to Supplier’s confidentiality obligations to third parties or other customers or pursuant to Law. To the extent the resulting audit report and/or certification reveals an actual or imminent material adverse effect on Customer (or its sublicensee) or Customer Equipment, Supplier will consult with Customer (or its sublicensee) and consider in good faith any recommended action to correct any errors or problems identified in the audit report as soon as reasonably possible. 7. INTELLECTUAL PROPERTY RIGHTS 7.1 Customer Material. “Customer Material” means all Customer Equipment, information systems and technology, software, documentation, prototypes, tools, methods, forms, processes, workflows, data, compilations, designs, manuals, specifications and other material owned, licensed to, or developed by Customer (or its sublicensee) (or their Affiliates) that is made available to Supplier Personnel for use in rendering the Services (if any). Customer grants Supplier a limited, nonexclusive, non-transferable, no- charge license during the Term to Use the Customer Material for the sole purpose of providing the Services. Customer will not incorporate any third party proprietary materials, information or intellectual property (“Third Party Material”) into Customer Material, unless Customer has obtained a royalty-free, non-exclusive license permitting Supplier and its Affiliates to use and sublicense such Third Party Material in connection with rendering the Services.


 
13 7.2 Supplier Material. “Supplier Material” means all equipment, information systems and technology, software, documentation, prototypes, tools, methods, forms, processes, workflows, data, compilations, designs, manuals, specifications and other material owned, licensed to, or developed by Supplier (or its Affiliates) that is made available to Customer Personnel for use in connection with use of the Services (if any). Supplier grants Customer a limited, nonexclusive, non-transferable, no-charge license during the Term to Use the Supplier Material solely in connection with its use of the Services. Supplier will not incorporate any Third Party Material into Supplier Material, unless Supplier has obtained a fully paid-up, royalty-free, non-exclusive license permitting Customer and its Affiliates to use and sublicense such Third Party Material in connection with use of the Services. 7.3 No Interference. Nothing in this MCSA or any Agreement will be deemed to prevent Supplier from carrying on its business or developing for itself or others, materials that are similar to or competitive with those produced as a result of the Services provided, they do not contain or disclose any Confidential Information or proprietary information of Customer or otherwise infringe or constitute a misappropriation of Intellectual Property Rights of Customer. 8. TERM AND TERMINATION 8.1 Duration. This MCSA will come into effect when signed by both Parties and shall remain in effect until the later of: (a) December 31, 2027 and (ii) the date of termination or expiration of the last Service Order that is entered into prior to the date specified in clause (a) (the “Term”). 8.2 Termination, Generally. This MCSA and each Agreement may only be terminated as provided in this Section 8 (Term and Termination). Termination by a Party will be without prejudice to any other rights and remedies available to a Party. Except as expressly set forth in this MCSA or the applicable Service Order, Customer will not be obliged to pay any termination charges or demobilization fees in connection with the termination of any Agreement as a result of a Supplier Default. 8.3 Termination by Customer. Customer may terminate an Agreement as follows: (a) for Supplier Default by delivery of written notice thereof at any time prior to the date on which such Supplier Default is cured or remedied (any termination under this clause (a) shall be effective as of the date of delivery of notice of termination); (b) pursuant to Section 10 (Casualty and Taking) below, or (c) for convenience (i.e., without cause), if and to the extent expressly permitted in, and subject to all terms and conditions specified in the applicable Service Order, if any. A “Supplier Default” shall occur if: (i) if Supplier breaches (A) Section 6,1 (Confidentiality); or Section 9.3 (Debarment); or; (ii) if Supplier fails to perform any of its other material obligations under the applicable Agreement and (x) does not cure such failure within thirty (30) days after receiving notice of the same (describing such failure in reasonable detail) from Customer, or (y) if Supplier’s failure to perform is curable within 60 days but cannot reasonably be cured within thirty (30) days following written notice, no Supplier Default shall occur if Supplier commences to cure the breach within such thirty (30) day period and thereafter diligently prosecutes such cure to completion, or (z) if Supplier’s failure to perform cannot reasonably be cured within 60 days, the Agreement may be terminated immediately. 8.4 Termination by Supplier. Supplier may terminate an Agreement as follows: (a) for Customer Default by delivery of written notice thereof at any time prior to the date on which such Supplier Default is cured or remedied (any termination under this clause (a) shall be effective as of the date of delivery of notice of termination); or (b) pursuant to Section 10 (Casualty and Taking) below. A “Customer Default” shall exist if: (i) if Customer breaches (A) Section 6,1 (Confidentiality); or Section 9.3 (Debarment); (ii) subject to Section 4.2(c) above, if Customer fails to pay any Charges when due, and such failure continues for five (5) business days after Supplier’s delivery of notice thereof; or (iii) if Customer fails to perform any of its other material obligations under the applicable Agreement and (x) does not cure such failure within thirty (30) days after receiving notice of the same (describing such failure in reasonable detail) from Supplier, or (y) if Customer’s failure to perform is curable within 60 days but cannot reasonably be cured within thirty (30) days following written notice, no Customer Default shall occur if Customer commences to cure the breach within such thirty (30) day period and thereafter diligently prosecutes such cure to completion, or (z) if Supplier’s failure to perform cannot reasonably be cured within 60 days, the Agreement may be terminated immediately. 8.5 Effect of Termination. Upon the effective date of termination of an applicable Agreement (the “Date of Termination”): (i) Supplier will immediately cease providing the terminated Services; (ii) Customer will pay for all Charges accrued through the date of termination; (iii) if the termination was made by Customer for convenience pursuant to any Service Order, Customer will be responsible for and shall pay the early termination fees specified in the applicable Service Order (and payment of such early termination fees shall be a condition to the effectiveness of any such termination for convenience), and (iv) Customer shall vacate the applicable Customer Space and remove any Customer Equipment remaining in the Facility and surrender the applicable Customer Space to Supplier in accordance with Section 2.1(f) above. If either Party terminates any Agreement due to the default of the other Party, subject to the terms and conditions of the applicable Agreement, the non-defaulting Party shall also have all rights and remedies available to such Party under law or at equity as a result of such default.


 
14 9. COVENANTS; REPRESENTATIONS AND WARRANTIES 9.1 Performance of Services. Supplier covenants that it will perform all Services in accordance with the applicable Agreement and with the Service Level Agreement attached to the applicable Service Order. Customer (or its sublicensee) covenants that it will or cause to be performed all of it obligations under and in accordance with each Agreement. 9.2 Non-Infringement. Supplier warrants and covenants that the Services will not infringe or misappropriate any Intellectual Property Rights of any third party. Customer warrants and covenants that its use of the Services will not infringe or misappropriate any Intellectual Property Rights of any third party. 9.3 Debarment. As of the date of this MCSA, each Party represents and warrants that it is not: (a) debarred, suspended, excluded or disqualified from doing business with the United States Government; or (b) listed on the Excluded Parties List System maintained by the General Services Administration of the United States Government (found at www.epls.gov); or (c) an entity with which U.S. entities are prohibited from transacting business of the type contemplated by the Agreement or with which U.S. entities must limit their interactions to types approved by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”), such as by Law, executive order, trade embargo, economic sanction, or lists published by OFAC. Each Party agrees to immediately notify the other Party in writing in the event either Party breaches any of its representations and warranties or has reason to believe that it will become in breach of any of such representations and warranties. 9.4 Representations and Warranties. Supplier and Customer each represent, warrant and covenant to the other that: (a) it is qualified and registered to transact business in all locations where the performance of its obligations hereunder would require such qualification; (b) the individual person(s) signing the MCSA (and each Service Order) has and will have all right, power and authority to sign them on behalf of Supplier or Customer, as applicable; and (c) the execution of the Agreement by Supplier or Customer, as applicable, shall not conflict with or violate, and shall not breach, any agreement, covenant, court order, judgment or decree to which Supplier or Customer, as applicable, is a party or by which it is bound. 9.5 Consent to Sublicense. Supplier acknowledges and agrees that this MCSA and the Service Order are expressly conditioned upon the simultaneous execution by all parties to that certain Consent to Sublicense dated as of the date herein and that this MCSA and the respective Service Order will only be effective upon the full execution of such Consent to Sublicense. 9.6 DISCLAIMER. EXCEPT AS SET FORTH IN THIS MCSA OR ANY SERVICE ORDER, EACH PARTY DISCLAIMS ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY. 10. CASUALTY AND CONDEMNATION 10.1 Casualty. (a) Each Party shall promptly notify the other Party in writing (a “Damage Notice”) of any fire or other casualty event, damage or condition to which this Section 10.1 is or may be applicable (a “Casualty”). (b) Supplier’s Termination Rights. If any damage caused by a Casualty (“Casualty Damage”)) substantially interferes with Supplier’s operation of the Facility and Supplier reasonably and in good faith determines that more than one hundred eighty (180) days will be required to complete the Restoration (defined below) of such Casualty Damage, then Supplier shall have the right to elect to terminate, in Supplier’s sole and absolute discretion, all applicable Agreements (that are affected by such Casualty) by delivery of written notice thereof to Customer within ninety (90) days following Supplier’s discovery of such Casualty Damage or (b) to continue any or all applicable Agreements in effect (subject to Customer’s rights under Section 10.1(c) below). (c) Customer’s Termination Rights. (i) If Customer (or its sublicensee) notifies Supplier that it is prevented from using any Colocation Space for the Permitted Use as a result of any Casualty Damage, then Supplier shall promptly thereafter provide written notice (the “Restoration Notice”) to Customer setting forth the period of time (the “Estimated Restoration Period”) that Supplier reasonably and in good faith believes shall be required to complete the Restoration (defined below) with respect to the applicable Colocation Space(s) to the extent necessary to allow Customers (or its sublicensees) use of the applicable Colocation Space(s) for the Permitted Use (the “Customer Space Restoration”). If the Estimated Restoration Period is more than one hundred eighty (180) days, Customer shall have the right to terminate the applicable Agreement or Agreements (that are affected by such Casualty), but only on the condition that Customer delivers written notice of termination to Supplier on or before the day that is ten (10) business days after Supplier’s delivery of the Restoration Notice.


 
15 (ii) In addition, if Supplier shall fail to complete the Customer Space Restoration, on or before the date that is sixty (60) days after the last of the Estimated Restoration Period, Customer shall have the right to terminate the applicable Agreement or Agreements (that are affected by the applicable Casualty), but only on the condition that Customer delivers written notice of termination to Supplier on or before the day that is ten (10) business days after the date that is sixty (60) days after the last day of the Estimated Restoration Period and before the Customer Space Restoration is completed. (d) Unless an Agreement is terminated in accordance with Section 10.1(a) or Section 10.1(b) above, Supplier shall begin to repair the Casualty Damage to the Facility and the applicable Customer Space promptly after its discovery of any Casualty Damage (subject to reasonable delays for insurance adjustment or other matters beyond Supplier’s reasonable control, and subject to all other terms of this Section 10.1), and shall proceed with reasonable diligence to restore (the “Restoration”) the Facility and the applicable Customer Space(s) to substantially the same condition as it existed before such Casualty, except for modifications required by applicable Laws and modifications that are deemed desirable by Supplier and that are consistent with Comparable Owner Practices (and Customer Equipment Personal Property or any Alterations made by or for Customer (or its sublicensee), all of which shall be promptly repaired, restored and/or replaced by Customer (or its sublicensee)). Supplier shall have no liability for any inconvenience or annoyance to Customer (or its sublicensee) for Charges (with respect to the applicable Customer Space(s) that is (or are) affected by a Casualty) shall abate proportionally if and to the extent Customer (or its sublicensee) ceases the Permitted Use of portions of the Customer Space that was (or were) damaged by a Casualty and rendered unfit for use for the Permitted Use as a result thereof, for the period of time commencing on the date Customer (or its sublicensee) stops using such damaged portion of the applicable Customer Space(s) for the Permitted Use and continuing until the Customer Space Restoration is substantially complete. (e) Supplier and Customer agree that the provisions of this Section 10.1 and the remaining provisions of each Agreement shall exclusively govern the rights and obligations of the Parties with respect to any and all damage to, or destruction of, all or any portion of the Facility, and Supplier and Customer hereby waive and release each and all of their respective common law and statutory rights inconsistent herewith, whether now or hereinafter in effect. 10.2 Taking. (a) If the whole or a material portion of the Facility or any Colocation Space is taken under the power of eminent domain, or sold to a governmental authority to prevent the exercise thereof (collectively, a “Taking”), the applicable Agreement or Agreements (that are affected by such Taking) shall automatically terminate as of the earlier of the date of transfer of title resulting from such Taking or the date of transfer of possession resulting from such Taking (the “Taking Date”). (b) In the event of a Taking of: (i) such portion of the Facility as shall, in the opinion of Supplier, substantially interfere with Supplier’s operation thereof for a period of time in excess of one hundred eighty (180) days, Supplier may terminate the applicable Agreement or Agreements (that are affected by such Taking) upon the Taking Date by delivery of written notice to Customer given at any time prior to the Taking Date or (ii) such portion of the Facility or any Colocation Space as shall prevent Customer (or its sublicensee) from conducting Customer’s (or its sublicensee’s) business in any portion of a Colocation Space, for a period of time in excess of one hundred eighty (180) days. Customer shall have the option to terminate the applicable Agreement or Agreements (that are affected by such Taking) upon the Taking Date by delivery of written notice to Supplier given at any time prior to the Taking Date. (c) If a portion of a Colocation Space is so taken and the applicable Agreement is not terminated: (i) Supplier shall, with reasonable diligence and at Supplier’s cost (to the extent of the condemnation award received by Supplier), proceed to restore (to the extent permitted by applicable Laws) the applicable Colocation Space and the Facility (other than Customer Equipment) to a complete, functioning unit and (ii) the Charges payable hereunder shall be equitable reduced based on the portion of the Colocation Space that Customer is prevented from using for the Permitted Use as a result of such Taking. (d) Except as expressly provided otherwise in this Section 10.2, the entire award for any Taking shall belong to Supplier (without deduction for any estate or interest of Customer), except that Customer shall be entitled to independently pursue a separate award for the loss of, or damage to, Customer Equipment and Customer’s relocation costs directly associated with the Taking (but Customer shall not otherwise assert any claim against Supplier or the condemning authority). No temporary Taking (for less than one hundred eighty (180) days days) of the Facility of any Customer (or any portion thereof) shall terminate any Agreement or entitle Customer to any abatement or reduction of the Charges payable by Customer hereunder; provided that any award for any such temporary Taking shall belong to Customer, but only to the extent that the award applies to any time period during the Term of the applicable Agreement. (e) This Section 10.2 shall be Customer’s sole and exclusive remedy in the event of a Taking, and each of Supplier and Customer hereby waives the provisions of any Laws to the contrary. 11. WAIVER; INDEMNIFICATION; INSURANCE 11.1 Indemnification.


 
16 (a) Indemnification By Customer. Customer will: (i) defend Supplier, its Affiliates and their respective officers, directors, employees, agents and representatives (collectively, “Supplier Indemnitees”) from and against any and all Customer Indemnified Claims and (iii) indemnify and hold Supplier and the other Supplier Indemnitees harmless from and against (and to reimburse Supplier and the other Supplier Indemnitees for) any and all Losses incurred in connection with any such Customer Indemnified Claims. “Customer Indemnified Claims” means all Claims arising out of or in connection with: (A) Customer’s or Customer Personnel’s gross negligence, willful misconduct, or fraud; (B) any Hazardous Materials that are released from or that become present in, on, under or about the Facility as a result of any acts or omissions of Customer or any Customer Personnel; (C) the failure by Customer to timely surrender any Customer Space upon expiration or termination of the applicable Agreement; (D) any Encumbrances arising out of acts or omissions of Customer or any Customer Personnel; (E) fees or wages due to personnel of Customer or Customer’s contractors; (F) any breach of Customer under: (1) Section 6.1 (Confidentiality), (2) Section 9.2 (Non-Infringement), or (3) Section 9.3 (Debarment); (G) the content of any communications transmitted (directly or indirectly) to, through or by Customer or any other Customer Personnel or any of its (or their) Customer Equipment and (H) death or bodily injury, caused by the negligence of Customer, any personnel of Customer, or any of Customer’s contractors or third-party suppliers. (b) Indemnification by Supplier. Supplier will (i) defend Customer, its Affiliates and their respective officers, directors, employees, agents and representatives (collectively, “Customer Indemnitees”) from and against any and all Supplier Indemnified Claims, and (iii) indemnify and hold Customer and the other Customer Indemnitees harmless from and against (and to reimburse Customer and the other Customer Indemnitees for) any and all Losses incurred in connection with any such Supplier Indemnified Claims. “Supplier Indemnified Claims” means arising from, or in connection with any of the following: (A) fees or wages due to Supplier Personnel or Supplier’s contractors; (B) any breach of Supplier’s obligations under” (1) Section 6.1 (Confidentiality), (2) Section 9.2 (Non-Infringement), or (3) Section 9.3 (Debarment); (C) death or bodily injury, caused by the negligence of Supplier, any Supplier Personnel, or any of Supplier’s contractors or third-party suppliers, (D) Supplier’s or Supplier Personnel’s gross negligence, willful misconduct, or fraud and (E) any Hazardous Materials that are released from or that become present in, on, under or about the Facility as a result of any acts or omissions of Supplier or any Supplier Personnel. (c) Indemnification Procedures. The indemnified Party will give the indemnifying Party prompt written notice of any Claim for which defense is sought under this Section 11.1 (Indemnification). Failure to give notice will not diminish the indemnifying Party’s obligation under this Section 11.1 (Indemnification) if the indemnifying Party has or receives knowledge of the existence of such Claim by any other means or if the failure does not materially prejudice the indemnifying Party's ability to defend the Claim. The indemnifying Party may select legal counsel to represent the indemnified Party (said counsel to be reasonably satisfactory to the indemnified Party) and otherwise control the defense of such Claim. If the indemnifying Party elects to control the defense of such Claim, the indemnified Party may participate in the defense at its own expense. If the indemnifying Party, within a reasonable time after receipt of such notice, fails to defend the indemnified Party, the indemnified Party may undertake the defense of, and compromise or settle, the Claim on behalf and at the risk of the indemnifying Party. If the Claim is one that cannot by its nature be defended solely by the indemnifying Party, the indemnified Party will make available information and assistance as the indemnifying Party may reasonably request at the indemnifying Party’s expense. The indemnifying Party may not, without the prior written consent of the indemnified Party: (a) consent to the entry of any judgment or enter into any settlement that provides for injunctive or other non- monetary relief affecting any Customer Indemnitee or Supplier Indemnitee, as applicable, or (b) consent to the entry of any judgment or enter into any settlement unless such judgment or settlement provides for an unconditional and full release of the Customer Indemnitees or the Supplier Indemnitees, as applicable, and does not diminish any of the indemnified Party’s rights under the Agreement or result in additional fees or charges to the indemnified Party. (d) This Section 11.1 shall survive expiration or termination of this MCSA and all applicable Agreements. 11.2 Customer’s Insurance; Customer’s Waiver of Subrogation. (a) Customer (or its sublicensee) shall, at Customer’s (or its sublicensee’s) expense, procure and maintain throughout the Term a policy or policies of insurance in accordance with the terms and requirements set forth in Exhibit “1” to this MCSA. (b) Customer hereby waives its rights against the Supplier Indemnitees with respect to any claims, damages or losses (including any claims for bodily injury to persons and/or damage to property) which are caused by or result from: (a) risks insured against under any insurance policy carried by Customer (or its sublicensee) at the time of such claim, damage, loss or injury, or (b) risks which would have been covered under any insurance required to be obtained and maintained by Customer (or its sublicensee) under this MCSA had such insurance been obtained and maintained as required, including all such claims that are caused by or result from the negligence of any Supplier Indemnitees. The foregoing waivers shall be in addition to, and not a limitation of, any other waivers or releases contained in this MCSA or any Agreement. Customer hereby waives all rights of subrogation, including those of its property insurers, against the Supplier Indemnitees, and shall procure, if necessary, all such endorsements to any such property insurance carried by it as will fully protect the Supplier Indemnitees from any right of subrogation and liability in the event of such loss.


 
17 11.3 Supplier’s Insurance; Supplier’s Waiver of Subrogation. (a) During the Term, Supplier agrees to carry and maintain “all risk” property insurance (with full replacement cost coverage) covering the Facility and Supplier’s property therein. For the avoidance of doubt, Supplier shall not be obligated to carry insurance on any Customer Equipment. (b) Supplier hereby waives its rights against the Customer Indemnitees with respect to any claims for loss or damage to the Facility and/or Supplier’s personal property, equipment and fixtures, which are caused by or result from: (a) risks insured against under any property insurance policies which are required to be obtained and maintained by Supplier under this MCSA, and were, in fact, carried by Supplier at the time of such claim, damage, loss or injury, or (b) risks which would have been covered under any property insurance required to be obtained and maintained by Supplier under this MCSA and such insurance been obtained and maintained as required, including all such claims that are caused by or result from the negligence of any Customer Indemnitees. Supplier hereby waives all rights of subrogation, including those of its property insurers, against the Customer Indemnitees, and shall procure, if necessary, all such endorsements to any such property insurance carried by it as will fully protect the Supplier Indemnitees from any right of subrogation and liability in the event of such loss 12. LIABILITY 12.1 Liability Cap. Except as provided in Section 12.3 (Exceptions) below, each Party’s total liability to the other Party in connection with any Agreement, whether in contract or in tort (including for breach of warranty, negligence and strict liability in tort) shall not exceed an amount equal to the Charges paid or payable to Supplier pursuant to the applicable Service Order for proper the performance of the Services for the twenty-four (24) months prior to the month in which the most recent event giving rise to liability occurred. 12.2 Disclaimer of Certain Damages. Except as provided in Section 12.3 (Exceptions) below, neither Party will be liable to the other for any consequential, incidental, indirect or punitive damages, or any loss of revenue, business, savings or goodwill, regardless of the form of action or the theory of recovery, even if it has been advised of the possibility of such damages. 12.3 Exceptions. The limitations and exclusions set forth in Section 12.1 (Liability Cap) and Section 12.2 (Disclaimer of Certain Damages) will not apply with respect to: (a) damages attributable to fraud or willful misconduct of the Party at fault; (b) Claims that are the subject of indemnification pursuant to Section 11 (Indemnification); (c) intentional misappropriation or intentional infringement of a Party‘s Intellectual Property Rights; or (d) Customer’s obligation to pay Charges under the terms of the Agreements. 12.4 Classification of Damages. The Parties agree that the following will be considered direct damages: (a) damages suffered by any Customer Affiliate (or Customer’s sublicensee or its Affiliate) or Supplier Affiliate, as applicable, that would be direct damages if they had instead been suffered by Customer, its sublicensee or Supplier, as applicable; and (b) payments, fines, penalties or interest imposed by a governmental body or regulatory entity to the extent caused by Supplier, Customer’s sublicensee or Customer. 13. DISASTER PLAN; DISASTER RECOVERY 13.1 Disaster Plan. Supplier shall maintain and implement a written disaster avoidance and recovery plan in accordance with established industry standards of similarly situated data center developers or operators designed to safeguard and to recover after Casualty Damage (a) access to the Colocation Space and (b) Supplier’s ability to perform the Services (the “Disaster Plan”). Supplier shall provide Customer (and its sublicensee) a copy of the Disaster Plan upon request. Supplier shall regularly review and update the Disaster Plan as reasonably determined by Supplier. 13.2 Disaster Recovery. Supplier shall perform its own disaster recovery testing at least once every calendar quarter and provide to Customer copies of such test results upon request. If a Casualty occurs, Supplier shall follow its Disaster Plan and shall use commercially reasonable efforts to promptly restore the Services. 14. GOVERNING LAW; ATTORNEYS’ FEES; DISPUTES AND REMEDIES 14.1 Governing Law. This MCSA and each Agreement will be interpreted and construed in accordance with the substantive laws of the state or commonwealth in which the Facility is located, without regard to any provisions of its choice of law rules that would result in a different outcome. 14.2 Intentionally Omitted. 14.3 Dispute Resolution.


 
18 (a) Informal Dispute Resolution. In the event any disputes, differences or controversies arise between the Parties, out of or in relation to or in connection with the provisions of this MCSA or any Agreement, the Parties shall endeavor in good faith to reach an amicable settlement. (b) Each Party hereby submits to local jurisdiction in the state or commonwealth in which the Facility is located and agrees: (i) that any action by one Party against the other shall be instituted in the state or commonwealth in which the Facility is located and (b) that each Party shall have personal jurisdiction over the other for any action brought by such Party against the other in the state or commonwealth in which the Facility is located. 14.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY TRIAL HELD AS A RESULT OF A CLAIM ARISING OUT OF, IN CONNECTION WITH, OR IN ANY MANNER RELATED TO THIS MCSA OR ANY AGREEMENT IN WHICH THE PARTIES ARE ADVERSE PARTIES. THE FILING OF A CROSS-COMPLAINT BY ONE PARTY AGAINST THE OTHER IS SUFFICIENT TO MAKE THE PARTIES “ADVERSE.” 14.5 Cumulative Remedies; Equitable Relief. Except as provided in the MCSA or in any Agreement (including, with respect to Service Level Defaults), the specific remedies to which either Party may resort under the provisions of this this MCSA or any Agreement are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by the other party of any provisions of this MCSA or any Agreement. In addition to the other remedies provided in this MCSA and each Agreement, subject to Laws, each Party shall be entitled to a restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this MCSA or any Agreement or to a decree compelling specific performance of any such covenants, conditions or provisions. 14.6 No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by an authorized representative of the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy that Party may have. 15. MISCELLANEOUS 15.1 Notices; Critical Response Notifications. (a) All formal notices, requests, demands, approvals and communications under this MCSA and each Agreement (other than notices to be provided under Section 15.1(b) below and routine operational communications which may be transmitted via e-mail as specified in any Agreement) (collectively, “Notices”) will be in writing and may be served either: (a) by reputable overnight courier service (such as Federal Express or UPS) with proof of delivery or (b) by e-mail, so long as: (i) receipt of the applicable email transmission is confirmed by the recipient (such as by a responsive email) or (ii) a copy of such notice is also delivered via the method listed in clause (a) above within one business day after the applicable e-mail transmission, in each case addressed to the Party at the addresses specified in the applicable Service Order. Notices given as described in the preceding sentence will be considered received on the day of actual delivery. A Party may change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee in the manner provided above. (b) Notwithstanding anything to the contrary contained herein, if: (i) any breach of security in any Colocation Space shall occur, or any service interruption shall occur (a “Critical Response Notice Event”), then: (A) Customer (or its sublicensee) shall immediately provide notice to Supplier: (x) via telephone to Supplier’s facility manager at the number specified in specified in the applicable Service Order and (y) via email to the e mail address specified in specified the applicable Service Order or such other number and/or email address as Supplier shall from time to time notify Customer in writing (“Supplier’s Emergency Contacts”) and (ii) unless Customer (or its sublicensee) shall have previously received notice of such Critical Response Notice Event, Supplier shall immediately provide notice to Customer: (A) via telephone at the number provided in the applicable Service Order and (B) via email to the email address specified in the applicable Service Order, or such other number(s) and/or email address(es) as Customer shall from time to time notify Supplier in writing (“Customer’s Emergency Contacts”). 15.2 Order of Precedence; Interpretation. (a) Order of Precedence. In the event of a conflict between or among the documents comprising an Agreement, the following order of precedence will apply (documents listed in descending order of priority): the Service Order this MCSA; NDA; and other schedules and supplementary agreements entered into by both Parties. A Service Order may amend or override this MCSA if and to the extent that the Service Order specifically identifies the affected provision(s) of the MCSA and expressly states that the Parties intend to amend or override such provision(s) for purposes of that Agreement.


 
19 (b) Interpretation. Section references are to sections of the document in which the reference is contained and will be deemed to refer to and include all subsections of the referenced section. The section headings in this MCSA are for reference purposes only and may not be construed to modify or restrict any of the terms of the Agreement. This MCSA and each Agreement will be deemed to have been written by both Parties. This MCSA is written in the English language, and the English text of this MCSA and of each Agreement shall prevail over any translation hereof. Unless the context requires otherwise: (a) ”including” (and any of its derivative forms) means including but not limited to, (b) ”may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something, and (c) ”will” and “shall” are expressions of command, not merely expressions of future intent or expectation. 15.3 Severability. If any provision of an Agreement Document is held invalid by a court with jurisdiction over the Parties, such provision will be severed, and the remainder of the Agreement Documents will remain in full force and effect. 15.4 Third Party Beneficiaries. This MCSA and each Agreement is entered into solely between Supplier and Customer and, except for the Parties’ waiver and indemnification obligations under Section 11.1 (Waiver and Indemnification), will not be deemed to create any rights in, or any obligations to, any third parties. 15.5 Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to termination or expiration thereof will survive the expiration or termination thereof for any reason, including the following: Section 2.1(f) (Vacating the Customer Space), Section 6.1 (Confidentiality), Section 7 (Intellectual Property Rights), Section 8.5 (Effect of Termination), Section 9 (Covenants Representations and Warranties), excepting Section 9.1 thereof, Section 11.1 (Waiver and Indemnification), Section 12 (Liability), and Section 14 (Governing Law; Attorneys’ Fees; Disputes and Remedies) and Section 15 (Miscellaneous). 15.6 Time is of the Essence; Force Majeure. (a) Subject to Section 15.2(b), time is of the essence of this MCSA and each Agreement and the performance of all obligations of each Party hereunder and thereunder. (b) A Party shall incur no liability to the other party with respect to, and shall not be responsible for any failure to perform, any of its obligations hereunder (other than (i) payment obligations or obligations that may be cured by the payment of money (e.g., maintaining insurance)) and (ii) and Supplier’s obligations to activate Supplier’s Disaster Plan) if such failure is caused by a Force Majeure Event. A Party affected by a Force Majeure Event shall promptly notify the other Party of the Force Majeure Event and of its plans and efforts to implement a work-around. For as long as the Force Majeure Event continues, the affected Party shall use commercially reasonable efforts to recommence performance as soon as reasonably possible. 15.7 Entire Agreement. Each Agreement constitutes the entire agreement between the Parties with respect to its subject matter and merges, integrates and supersedes all prior and contemporaneous agreements and understandings between the Parties, whether written or oral, concerning its subject matter. Any terms and conditions on any order or written notification from either Party that purport to vary or supplement any Agreement shall not be effective or binding on the other Party. Each Agreement may be amended or modified solely in a writing signed by a duly authorized representative of both Parties. 15.8 No Brokers. Each party hereto represents to the other that it has not engaged, dealt with or been represented by any broker or finder in connection with this MCSA (or any Agreement). Supplier and Customer shall each indemnify, defend (with legal counsel reasonably acceptable to the other) and hold harmless the other party from and against all Claims and Losses (related to any claim made by any person or entity for any commission or other compensation in connection with the execution of this MCSA (or any Agreement) based on an allegation that claimant dealt through the indemnifying party. 15.9 Examination and Execution. Neither this MCSA nor any Service Order shall have any force and effect until it is executed and delivered by both of Supplier and Customer. This MCSA and each Service Order may be executed in one or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Each of the Parties hereto agree that the delivery of an executed copy of this MCSA or any Service Order by facsimile, email, or electronic signature technology (such as “DocuSign”) shall be legal and binding and shall have the same full force and effect as if an original executed copy of this MCSA or the applicable Service Order had been delivered. Neither Supplier nor Customer will have the right to object to the manner (e.g., facsimile, email, or electronic signature technology) in which the MCSA or any Service Order was executed as a defense to the enforcement of this MCSA or any Agreement. 16. DEFINED TERMS. Terms used in this MCSA or in an Agreement with initial capitalization have the meanings specified where used or in this Section 16 (Defined Terms) “Affiliate” means with respect to an entity, any other entity or person controlling, controlled by, or under common control with, such entity. For purposes of this definition, “control” means possessing, directly or indirectly, the power to direct or cause the direction of


 
20 the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise. “Alterations” means any alterations, additions, improvements or replacements to the Customer Space or any other portion of the Facility. “Anti-Bribery Laws” means the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (in each case, as amended from time to time) and all other applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit the bribery of, or the providing of unlawful gratuities, facilitation payments or other benefits to, any government official or any other person. “Building Systems” means, collectively, the Facility’s collectively, primary systems and equipment, including, without limitation, all fire/life safety, electrical, HVAC, plumbing or sprinkler, access control, security, and systems and equipment. For the avoidance of doubt, the electrical Building Systems end at the PDUs serving each Colocation Space and do not include electrical systems and infrastructure “downstream” of the output circuit breakers for such PDUs (including, without limitation, all RPPs, power distribution whips, receptacles and other installations). “Claims” means any demands or any civil, criminal, administrative or investigative claims, actions or proceedings (include arbitration) asserted, commenced or threatened against an entity or person by an unaffiliated third party. For the purposes of this definition, an employee of either Party is considered an unaffiliated third party. “Carrier Services” means a collective reference to internet, transport and other services provided by one or more third-party telecommunications carriers (each a “Carrier”) that are procured directly by Customer, or to the extent agreed in a Service Order, provided through Supplier. “Colocation Space” means a collective reference to the colocation space to be licensed by Supplier to Customer described on a Service Order together with associated power, cooling and other services to be provided by Supplier pursuant to a Service Order (provided that if any Service Order identifies a Colocation Space that consists of more than one increment of Colocation Space (such as spaces that are located in two different Data Halls), then references herein to Colocation Space may refer to either all such increments of space collectively, or each such increment of space, individually, as the context may require. “Comparable Owner Practices” means practices that are consistent with the prevailing practices of owners of first-class mission critical data center projects in the United States of America, “Critical Load Power” means, with respect to any particular Colocation Space, the total electrical power connected to and available for utilization by Customer in such space as measured at the applicable demarcation point as defined in the applicable Service Order. “Confidential Information” means Customer Confidential Information and Supplier Confidential Information. “Containment”“ means and refers to a hot or cold aisle containment solution for a Colocation Space (i.e., the installation of certain equipment, barriers and materials throughout the Colocation Space for the purpose of keeping hot aisle air segregated from cold aisle air in such Colocation Space), including “door open” and “door closed” sensors that record the time of such openings and closings, in accordance with plans that have been reviewed and reasonably approved by Supplier. “Cross Connections” means interconnections between Customer’s Equipment and the systems or equipment of other occupants of the Facility and any telecommunications carriers present at the Facility. “Customer Confidential Information” means: (a) the terms and provisions of this MCSA and each Service Order and of any term sheet, letter of intent or discussions on which this MCSA of any Service Order is based and the content of any discussions between Customer and Supplier regarding the same, (b) the contents of any documents disclosed to Supplier under Section 5.4(k)(iii) below, (c) the fact that Customer and Supplier have entered into this MCSA or any Service Order and that Customer occupies space in the Facility, (d) Customer Data; and (e) any other information that is disclosed by Customer to Supplier in connection with this this MCSA or any Service Order (i) is marked as confidential, proprietary, or with a similar legend or (ii) that the party receiving the information otherwise should reasonably know to be confidential based upon its content. “Customer Data” means all personal or confidential proprietary data and information regarding Customer, its customers and suppliers that is either: (i) required to be furnished, disclosed or otherwise made available to Supplier Personnel by or on behalf of Customer pursuant to an Agreement; or (ii) collected by Supplier Personnel on behalf of Customer in the course of performing the Services. “Customer Equipment” means the computer equipment, software, hardware and other materials and personal property provided for, placed by or owned by Customer (or any Customer Personnel) in the Colocation Space or other portions of the Customer Space (other than equipment owned by Supplier).


 
21 “Customer Space” means, collectively, the space licensed by Customer pursuant to any Service Order, including any Colocation Space and any Support Space. “Data Center Rules and Regulations” means Supplier’s Data Center Rules and Regulations as attached in Exhibit 3 (which are hereby incorporated herein and made a part hereof)), and any non-discriminatory amendments, modifications, and/or additions thereto as may hereafter be adopted and published by written notice by Supplier and (a) are reasonably necessary for the safety, care, security, good order and/or cleanliness of the Facility and (b) are consistent with Comparable Owner Practices . “Electrical Power Threshold” means, with respect to any particular Colocation Space (or any portion of any Colocation Space), the maximum number of kilowatts of Critical Load Power that Supplier is required to provide to (and that is available for utilization by Customer) in such Colocation Space (or such portion of such Colocation Space) as specified in the applicable Service Order (and as measured at the applicable demarcation point at which Critical Load Power is to be delivered to the applicable Colocation Space (or the applicable portion of the applicable Colocation Space) as specified in the applicable Service Order). “Encumbrances” means liens, claims, stop notices and violation notices, including, without limitation, any of the same relating to any of the Customer’s Equipment, any Alterations or any other work performed for, materials furnished to, or obligations incurred by Customer. “Facility” means the data center facility located at [ ], Vernon, California. “Force Majeure Event” means and refers to any cause or reason beyond the reasonable control of the Party obligated to perform hereunder, including, without limitation, strike, labor trouble, governmental rule, regulations, ordinance or statute, or by fire, earthquake, or civil commotion. “Handle,” “Handled,” or “Handling” means any installation, handling, generation, storage, treatment, use, disposal, discharge, release, manufacture, refinement, presence, migration, emission, abatement, removal, transportation, or any other activity of any type in connection with or involving Hazardous Materials. “Hazardous Materials” means and includes (a) any material or substance: (i) which is defined or becomes defined as a “hazardous substance,” “hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under Environmental Laws; (ii) containing petroleum, crude oil or any fraction thereof; (iii) containing polychlorinated biphenyls (PCB’s); (iv) asbestos, asbestos- containing materials or presumed asbestos-containing materials (collectively, “ACM”); (v) which is radioactive; (vi) which is infectious; or (b) any other material or substance displaying toxic, reactive, ignitable or corrosive characteristics and that present a risk to public health and safety or the environment. “Holder” means the holder of any Security Instrument. “Intellectual Property Rights” means all: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration for any of them, together with all goodwill associated with any of them, (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration, (d) trade secrets and know- how, (e) waivable or assignable rights of publicity, and waivable or assignable moral rights, (f) unregistered and registered design rights and any applications for registration, and (g) all other forms of intellectual property. “Law(s)” means any statute, regulation, ordinance, rule, order, decree or governmental requirement enacted, promulgated or imposed by any governmental authority at any level (e.g., municipal, county, province, state or national). For clarity, “Law(s)” includes all Anti- Bribery Laws. “Losses” means, collectively, losses, damages, obligations, liabilities, penalties, fines, costs and expenses (including, without limitation, attorneys’ fees, legal costs, and other costs and expenses of defending against any Claims). “Party” means either Customer or Supplier, as required by the context (and “Parties” means Customer and Supplier, collectively). “Permitted Alterations” means only usual and customary installations, repairs, maintenance, and removals of equipment and telecommunication cables within the Customer Space if and to the extent that such installations, repairs, maintenance, and removals: (a) are usual and customary within the industry, (b) are of a type and extent which are customarily permitted to be made without consent in accordance with Comparable Owner Practices, (c) are in compliance with applicable Laws and the Datacenter Rules and Regulations, and (d) do not affect the Facility’s structure, the provision of services to other Facility Customers, or any Building Systems. “Recurring MRC” is MRC that is payable each month during the Service Term in an amount that is specified in the applicable Service Order.


 
22 “Security Incident” means any actual or suspected unauthorized or accidental processing, loss, destruction, use, disclosure, acquisition of, or access to Customer Equipment or Customer Data. . “Security Instruments” means, collectively: (a) all present and future ground leases and master leases of all or any part of Facility; (b) present and future mortgages and deeds of trust encumbering all or any part of the Facility; (c) all past and future advances made under any such mortgages or deeds of trust; and (d) all renewals, modifications, replacements and extensions of any such ground leases, master leases, mortgages and deeds of trust, which now or hereafter constitute a lien upon or affect the Facility. “Service Commencement Date” means, with respect to any Service Order (and the Services described therein), the date(s) specified as such in such Service Order. “Service Level Agreement” means a standard of performance with respect to the Services as set forth in each applicable Service Order. “Service Level Credit” means a monetary credit potentially payable to Customer in respect of a Service Level Default. “Service Level Default” means a failure of Supplier to meet a Service Level during the applicable measurement period, provided that the failure is not excused pursuant to Section 5.2 (Savings Clause), Section 15.6(a) (Force Majeure) or any provision of the applicable Service Level Agreement hereof or the terms of the Service Level Agreement. Service Level Credits will constitute Customer’s sole and exclusive remedy for any damages caused by a Service Level Default, except as otherwise set forth in the Service Level Agreement. “Service Levels” means, with respect to any Services, the standard of performance with respect to the Services as set forth in the applicable Service Level Agreement. “Service Effective Date” means, with respect to any Service Order, the date specified as such in such Service Order. “Service Order” means an order, change order, exhibit, and statement of work or other document, executed by both Parties that identifies Services to be provided by Supplier to Customer. “Service Term” means, with respect to any Agreement, the term of such Agreement as specified in the applicable Service Order. “Service-Related Taxes” means, with respect to each Agreement, all current or future sales, use, transfer, privilege, excise, consumption, value added, and transactional taxes and any “Goods and Services Tax”, and all other similar taxes, assessments and duties, in respect of the Services that Supplier is legally responsible to collect and remit to the applicable taxing authorities, and does not include any taxes that are assessed on Supplier’s net income or any property taxes related to the Facility. “Supplier Confidential Information” means: (a) the terms and provisions of this MCSA and each Service Order and of any term sheet, letter of intent or discussions on which this MCSA of any Service Order is based and the content of any discussions between Customer and Supplier regarding the same, (b) the fact that Customer and Supplier have entered into this MCSA or any Service Orde and (c) any other information that is disclosed by Supplier to Customer in connection with this this MCSA or any Agreement that: (i) is marked as confidential, proprietary, or with a similar legend or (ii) that the party receiving the information otherwise should reasonably know to be confidential based upon its content. “Supplier Personnel” means any personnel furnished by Supplier to perform any part of the Services, including employees and independent contractors of Supplier, its Affiliates and contractors. “Supplier’s Access Control Systems” means and refers to access control systems and measures consistent with Comparable Owner Practices, including, but not limited to, the implementation and operation of the systems and procedures described in Exhibit “2” attached hereto. “Support Space” means and any supplementary office or storage space that Customer has the right to use and occupy pursuant to any Service Order. “Transfer” means and includes any of the following: (a) an assignment of any Agreement, (b) any other agreement (i) that permits a third party to occupy or use any portion of any Customer Space or (ii) otherwise assigns, transfers, mortgages, pledges, hypothecates, encumbers or permits a lien to attach to Customer’s interest under any Agreement or ant Customer Space or (c) a direct or ind irect transfer, assignment, pledge, or hypothecation of a controlling interest in Customer. “Transfer Request” means a written request for Supplier’s consent to a proposed Transfer, which includes a statement containing: (a) the name and address of the proposed transferee; (b) current, certified financial statements of the proposed transferee, and any other information and materials (including, without limitation, credit reports, business plans, operating history, bank and character references) required by Supplier to assist Supplier in reviewing the financial responsibility, character, and reputation of the proposed transferee; and (c) all of the principal terms of the proposed Transfer.


 
23 “Use” means the right to use, execute, display, copy, perform, distribute copies of, maintain, modify, enhance, and create derivative works of software or other copyrighted or copyrightable works. [Signatures Appear on Next Page]


 
24 Intending to be legally bound, each of the undersigned Parties has caused its duly authorized representative to execute this MCSA as of the MCSA Effective Date. SUPPLIER: CUSTOMER: 4701 Santa Fe, LLC a Delaware limited liability company Super Micro Computer, Inc. a Delaware corporation By: _/s/ Nicholas Laag____________ Name: _Nicholas Laag_____________ Its: __Authorized Signatory________ By: _/s/ Charles Liang________________ Name: _Charles Liang________________ Its: __Chief Executive Officer__________ Effective Date: June 15, 2024


 
25 EXHIBIT “1” CUSTOMER’S INSURANCE REQUIREMENTS 1. “Special Peril Form” property insurance: Full replacement value of all Customer Equipment and other personal property in the Customer Space. 2. Business interruption insurance: In such amount as will reimburse Customer for direct or indirect loss of earnings attributable to all perils insured against by the property insurance described above for a period of not less than twelve (12) months. 3. Commercial General Liability Insurance: $7,000,000 single limit; $8,000,000 aggregate limit.* 4. Automobile Liability Insurance: Primary auto liability insurance with limits of not less than $1,000,000 per occurrence covering hired and non- owned vehicles used by Customer or any other Customer Indemnitees. 5. Workers’ Compensation Insurance and Employers Liability Insurance: Workers’ Compensation Insurance in accordance with the laws of the state in which the Facility is located, and Employer’s Liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident; $1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury By Disease - Policy Limit. *Some or all of which may be provided by umbrella coverage. Requirements: All insurance required of Customer under this MCSA shall be issued by insurers with a “General Policyholders Rating” of at least A:X, as set forth in “Best’s Insurance Guide.” Such insurers shall be authorized to do business in the state or commonwealth in which the Facility is located. Customer’s commercial general liability policy shall be written to apply to bodily injury (including death) and property damage losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses, and shall name Landlord and the other Supplier Indemnitees as additional insureds (pursuant to a customary ISO CG 20 10 04 07 additional insured endorsement, or the equivalent thereof). All such insurance policies shall be written as primary policies, not excess or contributing with or secondary to any other insurance as may be available to Supplier or to the additional insureds. A certificate of insurance evidencing the insurance required under this Exhibit “1” shall be delivered to Customer prior to the first Service Commencement Date. Customer shall furnish Supplier with evidence of renewal (or replacement)( of any policy prior to expiration of such policy and shall provide Supplier with a copy of a replacement certificate with respect to any insurance as soon as possible after the expiration of the current policy.


 
26 EXHIBIT “2” SUPPLIER’S ACCESS CONTROL SYSTEMS 1. The building’s main entrance monitored by Supplier twenty-four (24) hours per day, seven (7) days per week, fifty-two (52) weeks per year. 2. A video surveillance system in the building, and regular patrols by building security personnel at minimum of four (4) hour intervals within the building. 3. Physical barrier controls including locked doors and gates. 8' Impasse steel security fencing. 4. Four-layer security design. 5. Card reader access (biometric and iClass). a. Biometric card readers on all data hall entrances and mantrap access to interior of facility. 6. Logs of all card reader scans will be kept on at least a rolling 12 month period. Customer may request logs of scans (which may be anonymized by Supplier) as part of a Security Incident. 26 bit iClass ISOProx II access cards utilized. 7. Multiple checkpoints: mantraps, dual authentication (biometrics and RFID badge readers). 8. Event-driven IP video surveillance and visual light-based alerts. 9. Pan Tilt Zoom (PTZ) cameras and facility domed fixed cameras onsite to sufficiently monitor the perimeter, entry and exit points for all critical infrastructure spaces. 10. Minimum 90 day video footage saved. 11. Live alarm monitoring via Genetec 5.7 SR3 with video/image evidence at alarm activation point. 12. Supplier’s security surveillance system may be directed to the perimeter of the Customer Areas, but may not be directed into Customer Areas. Supplier may not take photographs or video recordings in Customer Areas.


 
27 EXHIBIT “3” DATA CENTER RULES AND REGULATIONS


 
EX-10.2 3 pdcvernon-supermicrolamb.htm EX-10.2 pdcvernon-supermicrolamb
Certain identified information has been omitted from this document because it is not material and is the type that the registrant treats as private and has been marked with "[ ]" to indicate where omissions have been made. Master Colocation Services Agreement Service Order MCSA-001 1 SERVICE ORDER MCSA-001 1. Service Effective Date: The date indicated beneath Supplier’s signature below 2. Facility [ ], Vernon, California 3. Standard Services: The “Customer Space” hereunder consists of the Colocation Space described below, the Pathway described below, and the Support Space described below. (a) Customer Space: (i) Colocation Space: The “Colocation Space” under this Service Order consists of the 2nd Floor Colocation Space (defined below) together with the 1st Floor Colocation Space (defined below), each of which may also be individually referred to as a “Colocation Space”. The “ 2nd Floor Colocation Space” includes all colocation space (approximately 39,916 sq. ft) located on the second (2nd) floor of the Building, configured as a single data hall (the“2nd Floor Data Hall” as described in Schedule “A-1” attached hereto; provided that prior to the Service Commencement Date (defined below) with respect to the 2nd Floor Tranche 2 Colocation Space, the 2nd Floor Colocation Space shall include only the2nd Floor Tranche 1 Colocation Space. • The “2nd Floor Tranche 1 Colocation Space” consists of approximately 50% of the area within the 2nd Floor Colocation Space, to which Critical Load Power (defined below) will be provided by the Supplier’s 2nd Floor Tranche 1 Installations (defined below). • The “2nd Floor Tranche 2 Colocation Space” consists of all of the area within the 2nd Floor Colocation Space that is not included in the 2nd Floor Tranche 1 Colocation Space, to which Critical Load Power will be provided by the Supplier’s 2nd Floor Tranche 2 Installations. The “1st Floor Colocation Space” includes all colocation space (approximately 32,452 sq. ft) located on the first (1st) floor of the Building, configured as a single data hall (the“1st Floor Data Hall” as described in Schedule “A-1” attached hereto; provided that: (a) prior to the Service Commencement Date with respect to 1st Floor Tranche 2 Colocation Space (defined below), the 1st Floor Colocation Space shall include only the 1st Floor Tranche 1 Colocation Space, and (b) prior to the Service Commencement Date with respect to 1st Floor Tranche 3 Colocation Space, the 1st Floor Colocation Space shall include only the 1st Floor Tranche 1 Colocation Space and 1st Floor Tranche 1 Colocation Space together with the1st Floor Tranche 2 Colocation Space • The “1st Floor Tranche 1 Colocation Space” consists of approximately 33.33% of the area within the 1st Floor Colocation Space, to which Critical Load Power (defined below) will be provided by the Supplier’s 1st Floor Tranche 1 Installations (defined below). • The “1st Floor Tranche 2 Colocation Space” consists of approximately 33.33% of the area within the 1st Floor Colocation Space, to which Critical Load Power (defined below) will be provided by the Supplier’s 1st Floor Tranche 2 Installations (defined below). • The “1st Floor Tranche 3 Colocation Space” consists of all of the area within the 1st Floor Colocation Space that is not included in the 1st Floor Tranche 1 Colocation Space and the 1st


 
2 Floor Tranche 2 Colocation Space, to which Critical Load Power will be provided by the Supplier’s 1st Floor Tranche 3 Installations. (ii) Pathway: The “Pathway” under this Service Order consists of the 1st Floor Pathway (defined below).together with the 2nd Floor Pathway (defined below).. The “2nd Floor Pathway” is described in Schedule “A-2” attached hereto. The “1st Floor Pathway” is described in Schedule “A-2” attached hereto. (iii) Support Space: The “Support Space” under this Service Order consists of the unfinished flexible office/storage space described in Schedule “A-3” attached hereto. Customer may elect to configure and improve such Support Space as office or storage space (or in part as office space and in part as storage space). (b) Electrical Power: (i) Critical Load Power: Supplier shall furnish electricity as Critical Load Power to the UPS/s and PDUs serving each applicable portion of the Colocation Space up to the “Electrical Power Threshold” specified in and otherwise in accordance with the specifications set forth in Paragraph 1 of Part I of Schedule “D”. The obligation of Supplier to so provide electricity shall be subject to the rules and regulations of the supplier of such electricity and of any governmental authorities regulating providers of electricity and shall be limited to providing the Electrical Power Threshold (for each applicable portion of the Collocation Space) specified in Paragraph 1 of Part I of Schedule “D”. (ii) Back Up Power: Supplier shall use commercially reasonable efforts to maintain battery capacity in the UPS plant for Customer UPS power as specified in Paragraph 2 of Part I of Schedule “D”, and in the event of an interruption of electrical service to the Colocation Space, Supplier shall reasonably promptly thereafter contract with a third party vendor to provide fuel to the fuel tanks of the back up power systems described in Paragraph 3 of Part I of Schedule “D” (the “Back Up Power Systems”) for the duration of such interruption. Unless any such interruption in electrical service was caused by any act or omission of Supplier or any of Supplier’s employees, agents, or contractors, Customer shall reimburse Supplier for all costs incurred by Supplier in causing the Back Up Power Systems to provide electricity to the Building (including, without limitation, the cost of fuel). Except as expressly set forth in Paragraph 2 and Paragraph 3 Part I of Schedule “D”, Customer shall be solely responsible for all emergency, supplemental or back-up power systems (“Back-Up Power”) for use in the Customer Space. (c) Colocation Space Environment: Supplier shall use commercially reasonable efforts to: (a) maintain temperature in the Colocation Space within the range specified in Paragraph 4(a) of Part I of Schedule “D”, (b) maintain relative humidity in the Colocation Space within the range specified in Paragraph 4(b) of Part I of Schedule “D”, and (c) maintain the dew point in the Colocation Space below the Maximum Dew Point specified in Paragraph 4(c) of Part I of Schedule “D”. (d) Security: Supplier shall provide physical security measures and systems in accordance with the MCSA. (e) Other Services: During the Service Term, Supplier shall provide access to the Building’s loading dock facilities twenty-four (24) hours a day, seven (7) days a week, subject to prior coordination with Supplier and Suppliers’s reasonable rules and regulations for access to the Building’s loading dock facilities (f) Meet Me Room; Customer MMR Space; Cross Connections: (i) Meet Me Room The portions of the Building designated as the “Meet Me Rooms” on Schedule “A-4” attached hereto serves as the common interconnection area within the Building. The Meet Me Room may also be referred to herein as the “MMR”. All interconnections between the systems of Customer (or its sublicensee) and those of telecommunications carriers must be made in the Meet Me Room. Customer (or its sublicensee) is responsible for the costs and installations of all cable(s) and/or fiber: (a) between the Colocation Space and the Meet Me Room are made and (b) within the Pathway. Customer (or its sublicensee) acknowledges that the Meet Me Room (and the Customer MMR Space) is not part of the Customer Space, the Meet Me Room is operated by the MMR Operator (defined below), and that all operations in the Meet Me Room, and all Customer (or its sublicensee) presence in the Meet Me Room, including, but not limited to, Cross Connections, are governed and controlled by the MMR Operator; each and all of which is subject to such agreements and costs as are required, from time


 
3 to time, by the MMR Operator. The “MMR Operator” is the person or entity appointed by Supplier as such (which, as of the date hereof, is Prime DC Asset Management LLC. (ii) Customer MMR Space The “Customer MMR Space” shall consist of all of the space in the cabinets described in Schedule “A-4” in the Meet Me Rooms, in a location or locations to be mutually agreed upon by Supplier and Customer. (iii) Cross Connections: All interconnections between the systems of Customer (or its sublicensee) and those of telecommunications carriers (“Cross Connections”) must be made in the Customer MMR Space in the Meet Me Room. Customer (or its sublicensee) is responsible for the costs and installations of all cable(s) and/or fiber: (a) between the Colocation Space and the Meet Me Room are made and (b) within the Pathway. Customer (or its sublicensee) acknowledges that the Meet Me Room (and the Customer MMR Space) is not part of the Customer Space, the Meet Me Room is operated by the MMR Operator, and that all operations in the Meet Me Room, and all Customer (or its sublicensee) presence in the Meet Me Room, including, but not limited to, Cross Connections, are governed and controlled by the MMR Operator; each and all of which is subject to such agreements and costs as are required, from time to time, by the MMR Operator. Customer (or its sublicensee) may request that Supplier cause the MMR Operator (at Customer’s expense) to make such Cross Connections on behalf of Customer (or its sublicensee) in accordance with standard practices which shall be consistent with Comparable Owner Practices. (g) Other Warm Hands Services: None (h) Interruption of Services: Supplier acknowledges that Customer’s (or its sublicensee’s) business operations require the continuous provision of electrical power and HVAC to the Colocation Space in accordance with the standards, and in the amounts, specified to be provided by Supplier to each of the Colocation Spaces in the table included in Part I of Schedule “D” attached hereto (collectively, the “Critical Services”). In the event of any interruption of Critical Services, Supplier shall use commercially reasonable efforts to restore such service or cause the same to be restored as soon as reasonably possible, and as Customer’s sole and exclusive remedy for such interruption, Customer shall be entitled to the remedies therefor specified in Part II of the Schedule “D” attached hereto (the “Service Level Agreement”). Except as expressly provided in the Service Level Agreement, no interruption, failure or malfunction of any electrical or other service (including, without limitation, HVAC service) to the Customer Space (or to any other portion of Facility) shall, in any event: (a) constitute an eviction or disturbance of Customer’s use and possession of the Customer Space, (b) constitute a Supplier Default, (c) render Supplier liable for damages of any type or entitle Customer to be relieved from any of its obligations under this Agreement (including the obligation to pay Charges), (d) grant Customer any right of setoff or recoupment, (e) provide Customer with any right to terminate this Agreement, or (f) make Supplier liable for any injury to or interference with Customer’s business or any punitive, incidental or consequential damages (of any type), whether foreseeable or not. 4. Installations: (a) Supplier’s Installations: “Supplier’s Installations” means all of the following: (a) With respect to the 2nd Floor Colocation Space, all of the items and installations described in Schedule “B-1” attached hereto (the “Supplier’s 2nd Floor Installations”), consisting of: (i) all of the items and installations of electrical infrastructure described as such in Schedule “B-1” attached hereto, together with the portion(s) of the items and installations of mechanical infrastructure described as such in Schedule “B-1” attached hereto that are required to cause the 2nd Floor Tranche 1 Colocation Space to pass the Acceptance Tests with respect thereto designated in Schedule “E” attached hereto (the “Supplier’s 2nd Floor Tranche 1 Installations”), and (ii) all of the items and installations described in Schedule “B-1” attached hereto in addition to the Supplier’s 2nd Floor Tranche 1 Installations (the “Supplier’s 2nd Floor Tranche 2 Installations”); and (b) With respect to the 1st Floor Colocation Space, all of the items and installations described in Schedule “B-2” attached hereto (the “Supplier’s 1st Floor Installations”), consisting of: (i) all of the items and installations of electrical infrastructure described as such in Schedule “B-2” attached hereto, together with the portion(s) of the items and installations of mechanical infrastructure described as such in Schedule “B-2” attached hereto that are required to cause the 1st Floor Tranche 1 Colocation Space to pass the Acceptance Tests


 
4 with respect thereto designated in Schedule “E” attached hereto (the “Supplier’s 1st Floor Tranche 1 Installations”), (ii) all of the items and installations of electrical infrastructure described as such in Schedule “B-2” attached hereto, together with the portion(s) of the items and installations of mechanical infrastructure described as such in Schedule “B-2” attached hereto that are required to cause the 1st Floor Tranche 2 Colocation Space( together with the 2nd Floor Tranche 1 Colocation Space) to pass the Acceptance Tests with respect thereto designated in Schedule “E” attached hereto (the “Supplier’s 2nd Floor Tranche 2 Installations”), and (iii) all of the items and installations described in Schedule “B-2” attached hereto in addition to the Supplier’s 1st Floor Tranche 1 Installations and 1st Floor Tranche 2 Installations (the “Supplier’s 2nd Floor Tranche 3 Installations”). (b) Customer’s Installations: Customer (or its sublicensee) will provide all Customer Equipment. Customer (or its sublicensee) is responsible for the selection, use, compatibility, monitoring and support of all Customer Equipment. Except as expressly provided in the MCSA, shall have no liability: (a) for the installation, operation, management or maintenance of any Customer Equipment; (b) if any change in the Services renders any Customer Equipment obsolete or requires modification to any Customer Equipment; (c) if any modification or configuration performed by Customer (or its sublicensee) of any Customer Equipment impairs the performance of the Services. Customer (or its sublicensee) shall promptly remove any Customer Equipment that Supplier advises is causing, or is likely to cause, a hazard to, interference with or obstruction of the Services. If and to the extent that any modifications to the Building systems are required to accommodate any nonlinear loads imposed by any Customer Equipment (or to eliminate or remediate any problems caused by any such nonlinear loads), Supplier shall make such modifications and all costs incurred by Supplier in making such modifications shall be Out-of-Pocket Expenses and shall be reimbursed by Customer in accordance with Section 4.3 of the MCSA. Except as expressly provided otherwise herein or in any other Service Order, Customer (or its sublicensee) shall, at its sole cost and expense, be responsible for the installation of: (a) all power circuits and rack grounding to the base Building grounding grid system required to distribute in the Colocation Space the electrical power delivered by Supplier from the Power Distribution Units (“PDUs”) serving the Colocation Space (including, without limitation, all Remote Power Panels/Panelboards (“RPPs”), power distribution whips, receptacles and other electrical installations), (b) a cold/hot aisle containment system with respect to the entire Colocation Space, (c) any and all installations and or equipment that are required to transform the electrical power delivered by Supplier to the RPP/PDUs serving the Colocation Space in any manner required by Customer’s Customer Equipment, and (d) for all cabinets, ladder rack, cable management, racks, other containment solutions and other installations that are required for use of the Colocation Space and Customer (or its sublicensee) shall use a licensed electrical contractor reasonably approved by Supplier to perform any tap-in or connection to the Building’s electrical system located at the RPP/PDUs that are required to distribute electrical power in the Colocation Space. 5. Services Commencement Date; Service Term; Extension Option(s); Early Termination Option(s): (a) Service Commencement Date: (i) 2nd Floor Colocation Space The “Service Commencement Date”: (a) With respect to the 2nd Floor Tranche 1 Colocation Space means (and shall occur on) the date on which all of the Commencement Date Conditions (defined below) are satisfied with respect to the 2nd Floor Tranche 1 Colocation Space; and (b) With respect to the 2nd Floor Tranche 2 Colocation Space means (and shall occur on) the date on which all of the Commencement Date Conditions are satisfied with respect to the 2nd Floor Tranche 2 Colocation Space. The “Commencement Date Conditions” (i) With respect to the 2nd Floor Tranche 1 Colocation Space will be satisfied upon Supplier’s tender to Customer of delivery of possession of the 2nd Floor Tranche 1 Colocation Space and the 2nd Floor Pathway with all of the Supplier’s 2nd Floor Tranche 1 Installations


 
5 substantially completed, and upon passage of the Acceptance Tests (if any) that are specified in Schedule “E” attached hereto with respect to the 2nd Floor Tranche 1Colocation Space.; and (ii) With respect to the 2nd Floor Tranche 2 Colocation Space will be satisfied upon Supplier’s tender to Customer of delivery of possession of the 2nd Floor Tranche 2 Colocation Space with all of the Supplier’s 2nd Floor Tranche 2 Installations substantially completed, and upon passage of the Acceptance Tests (if any) that are specified in Schedule “E” attached hereto with respect to the 2nd Floor Tranche 2 Colocation Space (ii) 1st Floor Colocation Space The “Service Commencement Date”: (a) With respect to the 1st Floor Tranche 1 Colocation Space means (and shall occur on) the date on which all of the Commencement Date Conditions are satisfied with respect to the 1st Floor Tranche 1 Colocation Space; (b) With respect to the 1st Floor Tranche 2 Colocation Space means (and shall occur on) the date on which all of the Commencement Date Conditions are satisfied with respect to the 1st Floor Tranche 2 Colocation Space; and (c) With respect to the 1st Floor Tranche 3 Colocation Space means (and shall occur on) the date on which all of the Commencement Date Conditions are satisfied with respect to the 1st Floor Tranche 3 Colocation Space. The “Commencement Date Conditions”: (j) With respect to the 1st Floor Tranche 1 Colocation Space will be satisfied upon Supplier’s tender to Customer of delivery of possession of the 1st Floor Tranche 1 Colocation Space and the 1st Floor Pathway with all of the Supplier’s 1st Floor Tranche 1 Installations substantially completed, and upon passage of the Acceptance Tests (if any) that are specified in Schedule “E” attached hereto with respect to the 1st Floor Tranche 1 Colocation Space; (ii) With respect to the 1st Floor Tranche 2 Colocation Space will be satisfied upon Supplier’s tender to Customer of delivery of possession of the 1st Floor Tranche 2 Colocation Space with all of the Supplier’s 1st Floor Tranche 2 Installations substantially completed, and upon passage of the Acceptance Tests (if any) that are specified in Schedule “E” attached hereto with respect to the 1st Floor Tranche 2 Colocation Space; and (iii) With respect to the 1st Floor Tranche 3 Colocation Space will be satisfied upon Supplier’s tender to Customer of delivery of possession of the 1st Floor Tranche 3 Colocation Space with all of the Supplier’s 1st Floor Tranche 3 Installations substantially completed, and upon passage of the Acceptance Tests (if any) that are specified in Schedule “E” attached hereto with respect to the 1st Floor Tranche 3 Colocation Space. (b) Initial Service Term; Service Term: The “Initial Service Term” hereunder is approximately 120 months, commencing on the earlier of the Service Commencement Date with respect to the 2nd Floor Colocation Space and the Service Commencement Date with respect to the 1st Floor Colocation Space and expiring on the Initial Service Term Expiration Date. The “Initial Service Term Expiration Date” is the last day of the calendar month in which the date that is 120 months after the later of the Service Commencement Date for the 2nd Floor Tranche 2 Colocation Space and Service Commencement Date for the 1st Floor Tranche 3 Colocation Space. The “Service Term” hereunder refers to the Initial Service Term hereunder as it may be terminated earlier that the date set forth above or extended beyond the date set forth above. Following the occurrence of the later of the Service Commencement Date for the 2nd Floor Tranche 2 Colocation Space and Service Commencement Date for the 1st Floor Tranche 3 Colocation Space, Supplier and Customer shall execute a writing confirming the Initial Service Term Expiration Date and the Base MRC payable under the Agreement with respect to all of the Customer Space during each month of the Initial Service Term. (c) Option Term(s): None


 
6 (d) Early Termination Option(s): None 6. Charges (a) Monthly Recurring Charges (MRC): (i) Base MRC: (A) 2nd Floor Tranche 1 Colocation Space Subject to the limitations set forth in Section 6(i)(F) below, commencing on the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space and continuing through the Initial Service Term, Customer shall pay Base MRC with respect to the 2nd Floor Tranche 1 Colocation Space at the following rates: Months of Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC ($/mo.) SCD – 12* 6,000 [ ] [ ] 13 – 24 6,000 [ ] [ ] 25 – 36 6,000 [ ] [ ] 37 – 48 6,000 [ ] [ ] 49 – 60 6,000 [ ] [ ] 61 – 72 6,000 [ ] [ ] 73 – 84 6,000 [ ] [ ] 85 - 96 6,000 [ ] [ ] 97 – 108 6,000 [ ] [ ] 109 - 120 6,000 [ ] [ ] 121 – ISTED** 6,000 [ ] [ ] * “SCD” refers to the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space (targeted for February 1, 2025), and if the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space occurs on any other than the first day of a calendar month, “Month 12” will be the twelfth (12th) full calendar month after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space. ** “ISTED” refers to the Initial Service Term Expiration Date. (B) 2nd Floor Tranche 2 Colocation Space Subject to the limitations set forth in Section 6(i)(F) below, commencing on the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space and continuing through the Initial Service Term, Customer shall pay Base MRC with respect to the 2nd Floor Tranche 2 Colocation Space at the following rates: Months of Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC ($/mo.) SCD – 12* 6,000 [ ] [ ] 13 – 24 6,000 [ ] [ ] 25 – 36 6,000 [ ] [ ] 37 – 48 6,000 [ ] [ ] 49 – 60 6,000 [ ] [ ] 61 – 72 6,000 [ ] [ ] 73 – 84 6,000 [ ] [ ] 85 - 96 6,000 [ ] [ ] 97 – 108 6,000 [ ] [ ] 109 - 120 6,000 [ ] [ ] 121 – ISTED 6,000 [ ] [ ] * “SCD” refers to the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space (targeted for June 1, 2025), and “Month 12” is the twelfth (12th) full calendar month after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space (and because the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space will occur after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space, this period (“SCD – Month 12”) will include less than twelve (12) months).


 
7 (C) 1st Floor Tranche 1 Colocation Space: Subject to the limitations set forth in Section 6(i)(F) below, commencing on the Service Commencement Date with respect to the 1st Floor Tranche 1 Colocation Space and continuing through the Initial Service Term, Customer shall pay Base MRC with respect to the 1st Floor Tranche 1 Colocation Space at the following rates: Months of Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC ($/mo.) SCD – 12*,** 3,000 [ ] [ ] 13 – 24 3,000 [ ] [ ] 25 – 36 3,000 [ ] [ ] 37 – 48 3,000 [ ] [ ] 49 – 60 3,000 [ ] [ ] 61 – 72 3,000 [ ] [ ] 73 – 84 3,000 [ ] [ ] 85 - 96 3,000 [ ] [ ] 97 – 108 3,000 [ ] [ ] 109 - 120 3,000 [ ] [ ] 121 – ISTED 3,000 [ ] [ ] * “SCD” refers to the Service Commencement Date with respect to the 1st Floor Tranche 1 Colocation Space (targeted for June 1, 2025), and “Month 12” is the twelfth (12th) full calendar month after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space (and because the Service Commencement Date with respect to the 1st Floor Tranche 1 Colocation Space will occur after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space, this period (“SCD – Month 12”) will include less than twelve (12) months). (D) 1st Floor Tranche 2 Colocation Space Subject to the limitations set forth in Section 6(i)(F) below, commencing on the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space and continuing through the Initial Service Term, Customer shall pay Base MRC with respect to the 1st Floor Tranche 2 Colocation Space at the following rates: Months of Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC ($/mo.) SCD – 12* 3,000 [ ] [ ] 13 – 24 3,000 [ ] [ ] 25 – 36 3,000 [ ] [ ] 37 – 48 3,000 [ ] [ ] 49 – 60 3,000 [ ] [ ] 61 – 72 3,000 [ ] [ ] 73 – 84 3,000 [ ] [ ] 85 - 96 3,000 [ ] [ ] 97 – 108 3,000 [ ] [ ] 109 - 120 3,000 [ ] [ ] 121 – ISTED 3,000 [ ] [ ] * “SCD” refers to the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space (targeted for September 1, 2025), and “Month 12” is the twelfth (12th) full calendar month after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space (and because the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space will occur after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space, this period (“SCD – Month 12”) will include less than twelve (12) months).


 
8 (E) 1st Floor Tranche 3 Colocation Space Subject to the limitations set forth in Section 6(i)(F) below, commencing on the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space and continuing through the Initial Service Term, Customer shall pay Base MRC with respect to the 1st Floor Tranche 3 Colocation Space at the following rates: Months of Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC ($/mo.) SCD – 12* 3,000 [ ] [ ] 13 – 24 3,000 [ ] [ ] 25 – 36 3,000 [ ] [ ] 37 – 48 3,000 [ ] [ ] 49 – 60 3,000 [ ] [ ] 61 – 72 3,000 [ ] [ ] 73 – 84 3,000 [ ] [ ] 85 - 96 3,000 [ ] [ ] 97 – 108 3,000 [ ] [ ] 109 - 120 3,000 [ ] [ ] 121 – ISTED** 3,000 [ ] [ ] * “SCD” refers to the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space (targeted for September 1, 2025), and “Month 12” is the twelfth (12th) full calendar month after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space (and because the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space will occur after the Service Commencement Date with respect to the 2nd Floor Tranche 1 Colocation Space, this period (“SCD – Month 12”) will include less than twelve (12) months). ** If applicable. (F) Ramp Period Limitation: Notwithstanding anything to the contrary in this Section 6(i), during each of the first twelve (12) months of the Initial Service Term and if applicable, any partial calendar month in which the Service Commencement Date for the 2nd Floor Tranche 1 Colocation Space occurs (the “Ramp Period”), Customer shall have no obligation to pay Base MRC under Sections 6(i)(A), 6(i)(B), 6(i)(C), 6(i)(D), and 6(i)(E) above in an aggregate amount in excess of the amount specified in this Section 6(i)(F) as the “Base MRC Ramp Max Amount” for such calendar month (or partial month), and any amount that would otherwise (but for this Section (i)(F) be payable for any month in excess of the Base MRC Ram Max Amount for such month shall be abated.: Month of Initial Service Term Critical Load Power (kW) Base MRC Rate ($/kW/mo.) Base MRC Ramp Max Amount ($/mo.) 1* 3,000 [ ] [ ] 2 6,000 [ ] [ ] 3 6,000 [ ] [ ] 4 6,000 [ ] [ ] 5 9,000 [ ] [ ] 6 12.000 [ ] [ ] 7 15.000 [ ] [ ] 8 16,500 [ ] [ ] 9 18,000 [ ] [ ] 10 18,000 [ ] [ ] 11 19,500 [ ] [ ] 12 21,000 [ ] [ ] * If the Service Commencement Date for the 2nd Floor Tranche 2 Colocation Space occurs on any day other than the first day of a calendar month, “Month 1” will include the partial calendar month in which such Service Commencement date occurs and the full calendar month which follows such calendar month and the Base MRC Ramp Max Amount for such partial calendar month shall be prorated based on the days in the applicable calendar month and the number of days remaining in such calendar month after the Service Commencement date, and the Base MRC Ramp Max Amount Base MRC Ramp Max Amount for the following full calendar month will be the amount specified above.


 
9 (ii) Electrical Power Charges: With respect to each Colocation Space (i.e., each of the 2nd Floor Colocation Space and the 1st Floor Colocation Space), Customer shall pay Electrical Power Charges (as defined in Schedule “C”) to Supplier in accordance with Schedule “C”. (iii) Increases in Property Taxes With respect to each Tax Year (defined below) after the Base Tax Year (defined below), Customer shall also pay to Supplier upon demand, Customer’s Tax Share (defined below) of the positive excess, if any, of the Property Taxes (defined below) allocable hereunder to such Tax Year, over the Base Property Taxes (defined below); provided that for purposes of determining the amount payable under this Section 6(a)(iii), the Property Taxes allocable hereunder to any Tax Year after the Base Tax Year shall only amount to that excess amount that exceeds the Property Taxes of the previous year inflated at a rate of 3.5% per annum. “Tax Year” means each 12 month period beginning on July 1 of a calendar year and ending on June 30 of the following calendar year which occurs all or in part during the Term. “Base Property Taxes” means the Property Taxes allocable hereunder to the Base Tax Year, which if applicable (i.e., if the Facility is not completed and fully assessed during the Base Tax Year), shall be adjusted to reflect the assessed value of the completed and fully assessed Facility. “Base Tax Year” means the Tax Year in which first day of the Initial Service Term occurs. “Property Taxes” means all real property taxes, assessments, fees, charges, or impositions and other similar governmental or quasi-governmental ad valorem or other similar charges levied on or attributable to the Facility or its ownership, operation, transfers or leasing of any and every type, kind, category or nature, whether direct or indirect, general or special, ordinary or extraordinary and all taxes, assessments, fees, charges or similar impositions imposed in lieu or substitution (partially or totally) of the same. “Customer’s Tax Share” means a fraction, expressed as a percentage, having as its numerator, the number of square feet of Colocation Space, and having as its denominator, the total number of square feet of colocation space in the Facility. (iv) Increases in Operating Costs None. (v) Cross Connections: None (b) Non-Recurring Charges (NRC) (i) Installation Fee: None (ii) Cross Connections: Prevailing charges for Cross Connections. (vi) Other NRC: None 7. Reimbursement of Out-of-Pocket Expenses: Customer shall reimburse Supplier in accordance with Section 4.3(b) of the MCSA, for the Out-of- Pocket Expenses (i.e., Out-of-Pocket Supply Expenses and Out-of-Pocket Service Expenses) described in Schedule “E” attached hereto, plus a ten percent (10%) administrative fee thereon. 8. Security a. Security Deposit: None b. Letter of Credit: None. c. Guaranty: None 9. Notice Addresses: See Schedule “F” attached hereto. 10. Payment Addresses/Instructions: See Schedule “G” attached hereto 11. Supplier’s Pre-Approved Contractors: See Schedule “H” attached hereto. ] 12. Customer (or its Sublicensee) Policies: See Schedule “I” attached hereto. 13. Other Terms: Supplier has consented to a sublicense (the “Initial Sublicense”) by Customer to Lambda, Inc., a Delaware corporation (“Customer’s Sublicensee”) of all of its rights under this Service Order (and


 
10 the corresponding Agreement) pursuant to a Consent to Sublicense dated on or about the date hereof between Supplier, Customer and Customer’s Sublicensee. Notwithstanding anything to the contrary in the MCSA (defined below), including Section 5.4(j) thereof, if the Initial Sublicense terminates prior to expiration of the Service Term, provided that the entity designated as the “Customer” herein, or its Successor (defined below), shall continue to be the Customer under this Service Order (and the corresponding Agreement) Supplier shall not withhold its consent to any proposed sublicense by Customer of all of its rights under this Service Order (and the corresponding Agreement) to a third party unless: (a) the proposed transferee is of a character or demonstrated reputation or engaged in a business which is materially inconsistent with the quality of the Facility, (b) the proposed transferee intends to use the Customer Space for purposes which are not permitted under the Agreement, (c) the proposed transferee has the power of eminent domain, is a governmental agency or an agency or subdivision of a foreign government, (d) the proposed transferee (or any affiliate of the proposed transferee) is a tenant or occupant of the Facility or a party with which Supplier has been negotiating for a lease or license of space (and critical power) in or at the Facility in the prior six (6) months, (e) if there has been a material decline in Customer’s financial strength and/or credit the proposed transferee does not, in Supplier’s reasonable determination, have the financial strength (taking into account all of the proposed transferee’s other obligations and liabilities) to perform its obligations with respect to the proposed transfer, (f) the proposed transferee: (i) has been debarred, suspended, excluded or disqualified from doing business with the United States Government; or (ii) is listed on the Excluded Parties List System maintained by the General Services Administration of the United States Government (found at www.epls.gov); or (iii) is an entity with which U.S. entities are prohibited from transacting business of the type contemplated by the Agreement or with which U.S. entities must limit their interactions to types approved by the OFAC, such as by Law, executive order, trade embargo, economic sanction, or lists published by OFAC, (g) any ground lessor or mortgagee whose consent to such transfer is required fails or refuses to consent thereto, (h) the proposed transfer would cause a violation of another lease or license for space in the Facility, or would give an occupant of the Facility a right to cancel its lease or other occupancy agreement, or (i) an uncured Customer Default exists at the time Customer requests consent to the proposed transfer. “Successor” means, with respect to any entity: (x) an entity which is the result of a conversion of such entity from one form of entity to a different form of entity recognized by, and qualified to do business in, the State of California (such as, by way of example only, a conversion from a corporation to a limited liability company), (y) any successor corporation or other entity resulting from a merger, consolidation, acquisition or other action with respect to such entity, or (z) another entity that purchases all or substantially all of the assets of such entity or of the parent company of such entity.


 
11 All of the terms and conditions of that certain Master Colocation Services Agreement (“MCSA”) dated on or about the date hereof between Supplier and Customer (as the same may have been amended prior to the date hereof) are hereby incorporated herein by this reference. PROVIDER: CUSTOMER: 4701 SANTA FE, LLC, a Delaware limited liability company SUPER MICRO COMPUTER, INC. a Delaware corporation By: /s/ Nicholas Laag Name: Nicholas Laag Title: Authorized Signatory By: /s/ Charles Liang Name: Charles Liang Title: President and Chief Executive Officer Service Effective Date: June 15, 2024


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “A-1” Colocation Space [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “A-2” Pathway [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “A-3” Support Space [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “A-4” Meet Me Rooms [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “B-1” Supplier’s Installations – 2nd Floor Colocation Space [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “B-2” Supplier’s Installations – 1st Floor Colocation Space [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “C: Electrical Power Charges 1. Definitions “Electrical Metering Equipment” means an electrical metering device (or electrical metering devices) for monitoring the electricity delivered as Critical Load Power to each applicable portion of the Colocation Space at the applicable Electrical Delivery Point specified in Paragraph 1 of Part I of Schedule “D” (and to each that is compatible with Supplier’s energy management system), and to all other colocation space in the Building, at the same point. “Electrical Billing Period” means the period to which any bill for electrical power and electrical energy that is delivered by the electrical utility that provide electrical power to the Facility applies. "Customer’s Electrical Share” means, for any Electrical Billing Period, a fraction, (a) having as its numerator, the number of kWh of electrical energy delivered as Critical Load Power to the Colocation Space during such Electrical Billing Period, and (b) having as its denominator, the number of kWh of electrical energy delivered as Critical Load Power to all colocation space (including the Colocation Space) during such Electrical Billing Period, in each case, as determined by the Electrical Metering Equipment. “Electrical Power Charge” means, for each Electrical Billing Period, the product of: (a) Customer’s Electrical Share for such Electrical Billing Period and (b) the total amount payable by Supplier to the electrical utility for all electrical power and energy delivered to the Facility during such Electrical Billing Period (as indicated on the applicable bill or bills from such utility for such period). 2. Payment. Except to the extent the same is to be installed as part of Supplier’s Installations (or presently exists) the Electrical Metering Equipment shall be installed by Supplier at Customer’s cost (and Customer shall reimburse Supplier for the cost of installing the same (as Out-of- Pocket Expenses) in accordance with Section 4.3 of the MCSA), and Supplier shall bill Customer periodically for the Electrical Power Charges. Customer shall pay the Electrical Power Charges to Supplier within thirty (30) days of Supplier’s delivery of an invoice with respect to each such Electrical Power Charges. Supplier and Customer acknowledge that the Electrical Power Charges are intended to reimburse Supplier for costs associated with the operation of the mechanical equipment serving the applicable Data Hall and that it is the intent of the parties that this Schedule “C” represents a mechanism only for Supplier’s cost recovery with regard to electricity provided to and/or used in or with respect to the Collocation Space, and that there is no intent for the Electrical Power Charges to include any element of profit to the Supplier in connection therewith.


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “D” Service Level Agreement Part I - Specifications 1. Electricity Consumption, Threshold/Specifications: (a) 2nd Floor Colocation Space: Prior to the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space:: Six (6) MW (measured at the supply side of the UPS for Floor 2 Data Hall) in a block redundant configuration; and From and after the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space:: Twelve (12) MW (measured at the supply side of the UPS for Floor 2 Data Hall) in a block redundant configuration (b) 1st Floor Colocation Space: Prior to the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space:: Three (3) MW (measured at the supply side of the UPS for Floor 2 Data Hall) in a block redundant configuration From and after the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space and prior to the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space: Six (6) MW (measured at the supply side of the UPS for Floor 2 Data Hall) in a block redundant configuration From and after the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space: Nine (9) MW (measured at the supply side of the UPS for Data Hall 2) in a block redundant configuration. 2. Target Battery Capacity: (a) 2nd Floor Colocation Space: Prior to the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space:: 4 minutes EOL at 6 MW From and after the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space:: 4 minutes EOL at 12 MW. (b) 1st Floor Colocation Space: Prior to the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space:: 4 minutes EOL and 3 MW From and after the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space and prior to the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space: 4 minutes EOL at 6 MW From and after the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space: 4 minutes EOL at 9 MW. 3. Back-up Generators: Building generators are maintained annually by Supplier’s engineering staff. Back-up Power is included in all AC amperage usage. 4. HVAC Specs: 3,412 total tons delivered to the 2nd Floor Data Hall (approximately 1,706 total tons prior to the Service Commencement Date with respect to the 2nd Floor Tranche 2 Colocation Space), and 2,559 total tons delivered to the 1st Floor Data Hall (approximately 853 total tons prior to the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space, and approximately 1,706 total tons from and after the Service Commencement Date with respect to the 1st Floor Tranche 2 Colocation Space and prior to the Service Commencement Date with respect to the 1st Floor Tranche 3 Colocation Space). Such systems are dedicated to the applicable Data Halls, and are maintained by Supplier’s engineering staff. (a) Target Temperature: Within the “Allowable” range for a Data Hall Environment as defined by ASHRAE TC 9.9 “Thermal Guidelines for Data Processing Environments,” Recommended Class A2, as issued in 2021, as measured between two (2) and five (5) feet above the floor in the cold aisles within the Data Hall. *


 
2 (b) Target Relative Humidity: Within the “Allowable” range for a Data Hall Environment as defined by ASHRAE TC 9.9 “Thermal Guidelines for Data Processing Environments,” Allowable Class A2, as issued in 2021, as measured between two (2) and five (5) feet above the floor in the cold aisles within the Data Hall. * (c) Maximum Dew Point: 69.8 degrees Fahrenheit 5. Maximum Structural Load: 425 pounds of live load per square foot. Any cabinets, cages or partitions installed in the Colocation Space (whether installed by Supplier or Customer) shall be included in the calculation of the live load. Any single cabinet/equipment over 3500 lbs to be installed by customer or customers contractor needs to be reviewed and approved by supplier. PART II – REMEDY FOR CRITICAL INTERRUPTIONS 1. Definitions. (a) “Access Critical Interruption” means Customer’s (or its sublicensee’s) inability to access a material portion of the Colocation Space during the Service Term, for a period in excess of the Eligibility Period, for any reason as a direct result of Supplier’s actions or inactions (excluding Force Majeure and Casualty), such that the operation of Customer’s (or its sublicensee’s) business in the applicable portion of the Colocation Space are materially and adversely impacted, and provided that Customer (or its sublicensee) has immediately provided notice Supplier’s Emergency Contacts in accordance with the MCSA of any perceived Access Critical Interruption. Notwithstanding the foregoing, no Access Critical Interruption shall be deemed to have occurred if Customer’s (or its sublicensee’s) inability to access a portion of the Colocation Space is the result of (i) Supplier’s non-discriminatory and reasonable enforcement of those rules specifically concerning security or (ii) operation or enforcement of any of the terms and conditions of the Agreement. (b) “Chronic Interruption” means the occurrence of three (3) or more separate Critical Interruptions within any four (4) month period during the Service Term, regardless of duration. (c) “Chronic Interruption Termination Notice” means written notice from Customer to Supplier, delivered within thirty (30) days after the occurrence of a Chronic Interruption, that Customer is terminating this Agreement as a result of a Chronic Interruption. (d) “Critical Interruption” means any Access Critical Interruption, any Electrical Critical Interruption or any Mechanical Critical Interruption. Notwithstanding anything to the contrary set forth herein, Critical Interruptions occur within a twenty-four (24) hour period and that are connected to the same root cause shall be treated as a single Critical Interruption. (e) “Electrical Critical Interruption” means any interruption during the Term, for a period in excess of the Eligibility Period, of the electrical service to both the A-side and the B-side of PDUs supplying electrical power to the Customer Equipment within a portion of the Colocation Space, provided that such interruption is not caused by: (i) any Casualty or Force Majeure event, (ii) the consumption of Critical Load Power in excess of the Electrical Power Threshold with respect to the applicable portion of the Colocation Space, (iii) any failure or malfunction of any Customer Equipment or other personal property, (iv) any failure of Customer to cause all Customer Equipment and other personal property within the Colocation Space to be dual-corded, or (v) any other act or omission of Customer. (f) “Eligibility Period” means: (i) with respect to an Electrical Critical Interruption, any interruption for any duration; (ii) with respect to an Access Critical Interruption, sixty (60) consecutive minutes; and (iii) with respect to a Mechanical Critical Interruption sixty (60) consecutive minutes. (g) “Mechanical Critical Interruption” means any failure during the Service Term, for a period in excess of the Eligibility Period, of the HVAC service to a portion of the Colocation Space to be within the parameters identified in Items 4(a) and 4(b) of Part I above, provided that such interruption is not caused by: (i) any Casualty or Force Majeure event, (ii) the consumption of Critical Load Power in excess of the Electrical Power Threshold with respect to the applicable portion of the Colocation Space, (iii) any failure or malfunction of any Customer Equipment or other personal property, or (iv) any other act or omission of Customer (including a failure of Customer to provide proper containment). (h) “Outage Credit” means the quotient achieved by dividing: (i) the monthly Base MRC attributable to the portion of the Colocation Space affected by the applicable Critical Interruption for the calendar month in which the applicable Critical Interruption occurred by (ii) the actual number of days in such calendar month. (i) “Sustained Interruption” means any Critical Interruption that continues for ten (10) consecutive days. (j) “Sustained Interruption Termination Notice” means written notice from Customer to Supplier, delivered within thirty (30) days after the occurrence of a Sustained Interruption, that Customer is terminating this Agreement as a result of a Sustained Interruption. 2. Remedies. (a) Outage Credits. If a Critical Interruption occurs, Customer (or its sublicensee) shall be entitled to Outage Credit(s) in the amount(s) set forth opposite the duration of each such Critical Interruption in the applicable table set forth below. The maximum Outage Credits to which Customer (or its sublicensee) may become entitled in any calendar month hereunder shall not exceed Customer’s total monthly Base MRC


 
3 hereunder for the affected portion of the Colocation Space for such calendar month (at the time of the event). Outage Credits will be pro-actively issued by Supplier. Supplier shall provide notice when the Critical Interruption begins and when it ends for purposes of calculating the applicable Outage Credit, which calculation may be disputed by Customer by deliver of notice thereof within 30 days after receipt of Supplier’s calculation (and in the event of any such dispute, Supplier and Customer (or its sublicensee) shall endeavor in good faith to reach agreement on the correct calculation of the applicable Service Level Credit. Supplier will provide Customer (and its sublicensee) with a monthly “Service Level Report”, and to the extent that a Service Level Report indicates that Customer (or its sublicensee) is entitled to an Outage Credit, the Outage Credit shall be applied as a credit towards Customer’s monthly Base MRC due hereunder in the immediately following month of the Service Term; provided that in the event that an Outage Credit accrues during the final month of the Service Term, Supplier shall pay to Customer the amount of the Outage Credit within sixty (60) days following the expiration of the Service Term. (i) Access Critical Interruption. If an Access Critical Interruption occurs, Customer shall be entitled to the Outage Credits set forth in Table A below. TABLE A Access Critical Interruption Duration: Outage Credits: 0 – 8 consecutive hours One (1) Outage Credit 8+ – 24 consecutive hours One (1) additional Outage Credit Each 24 hour period thereafter during which such Access Critical Interruption occurs or continues One and one-half (1½) additional Outage Credits (ii) Electrical Critical Interruption. If an Electrical Critical Interruption occurs, Customer shall be entitled to the Outage Credits set forth in Table B below. TABLE B Electrical Critical Interruption Duration: Outage Credits: > 0.001 Min – 30 min. One (1) Outage Credit > 30 min – 1 hour. One (1) additional Outage Credits > 1 hour – 4 consecutive hours Two (2) additional Outage Credits > 4 consecutive hours– 24 consecutive hours Four (4) additional Outage Credits Each 24 hour period (or portion thereof) thereafter during which such Electrical Critical Interruption continues. Two (2) additional Outage Credits (iii) Mechanical Critical Interruption. If a Mechanical Critical Interruption occurs, Customer shall be entitled to the Outage Credits set forth in Table C below. TABLE C Mechanical Critical Interruption Duration: Outage Credits: < 30 min. One (1) Outage Credit > 30 min. – 4 consecutive hours One (1) additional Outage Credit > 4 consecutive hours– 24 consecutive hours Four (4) additional Outage Credits Each 24 hour period (or portion thereof) thereafter during which such Electrical Critical Interruption continues. Two (2) additional Outage Credits (b) Termination Rights. (i) Chronic Interruption Termination Right. If a Chronic Interruption occurs, Customer may terminate this Agreement by delivery of a Chronic Interruption Termination Notice to Supplier within thirty (30) days after the occurrence of such Chronic Interruption (time being of the essence), time being of the essence, which termination shall be effective thirty (30) days following Customer’s delivery of such Chronic Interruption Termination Notice. Customer’s failure to deliver a Chronic Interruption Termination Notice within thirty (30) days after the occurrence


 
4 of any Chronic Interruption shall act as a waiver of Customer’s termination right hereunder with respect to such Chronic Interruption, but not with respect to any future Chronic Interruptions that may occur (and that may include one or more of the Critical Interruptions that provided the basis for such Chronic Interruption with respect to which such termination right was deemed waived). (ii) Sustained Interruption Termination Right. If a Sustained Interruption occurs, Customer may terminate this Agreement only by timely delivery of a Sustained Interruption Termination Notice to Supplier within thirty (30) days after a Sustained Interruption ends (time being of the essence), which termination shall be effective immediately following Customer’s delivery of such Sustained Interruption Termination Notice. Customer’s failure to deliver a Sustained Interruption Termination Notice within thirty (30) days after a Sustained Interruption ends shall act as a waiver of Customer’s termination right hereunder with respect to such Sustained Interruption, but not with respect to any future Sustained Interruptions that may occur. (c) This Part II of this Schedule “D” provides Customer’s sole and exclusive remedies for Critical Interruptions..


 
Master Colocation Services Agreement Service Order MCSA-001 -1- Schedule “E” Acceptance Tests With respect to each of the 2nd Floor Tranche 1 Colocation Space, the 2nd Floor Tranche 2 Colocation Space, the 1st Floor Tranche 1 Colocation Space, the 1st Floor Tranche 2 Colocation Space, and the 1st Floor Tranche 3 Colocation Space (each a “Colocation Space Increment”), the act of causing the commissioning/turn up of each of the applicable Colocation Space Increments infrastructure pursuant to the Commissioning Criteria, so that such infrastructure has passed Level 5 of such Commissioning Criteria (defined below). “Commissioning Criteria” means and refers to, for any Colocation Space Increment, the commissioning criteria established for such Colocation Space Increment by Supplier and the properly qualified third party engineering firm that will perform the Commissioning with respect to such Colocation Space Increment (the “Commissioning Agent”), subject to this Schedule ”E” . Commissioning consists of five general levels of activities summarized as follows: Level 1 – Factory Testing Manufacturers’ standard test reports will be reviewed prior to shipment of equipment to the site. Level 2 – Component Verification Individual system components are verified at the site upon delivery for compliance with the design specifications, drawings, and approved submittals or shop drawings. Level 3 – System Construction Verification As the components are assembled into individual systems, the construction or installation of the overall system is verified. This includes an evaluation of interconnection between components, physical arrangement, support and anchoring, and access and clearance. Level 4 – Individual System and Major Equipment Operation Verification Subsequent to the completion of construction and assembly of each individual system or major equipment element, it is started-up and tested for proper functional operation and performance. Level 5 – Integrated Systems Operation Verification The test procedures that comprise Level 5 commissioning are designed to simulate the operation of the Premises’ infrastructure during a full range of operational situations, including loss of utility services, single and multiple equipment failure, normal sequential changes to the equipment operation, and planned maintenance operations. This effort is dependent upon the successful completion of all prior levels of commissioning. The assembly of appropriate documentation and certifications for the completion of Level Four commissioning will be a prerequisite. Level 5 commissioning will typically be completed in four basic steps: ▪ Initial planning ▪ Preparation of test procedures ▪ Implementation of tests ▪ Issuance by Commissioning Agent of a “Commissioning Complete Letter”. Customer (or its sublicensee) will have the option of providing representation to participate in each Commissioning activity. Representative(s) of Customer (or its sublicensee) may: (a) participate in the development of the Commissioning plan; (b) receive advance materials, including, but not limited to, equipment documentation and test scripts; (b) witness each test activity and participate in acceptance decisions; and (d) receive follow-up materials, including but not limited to revised documentation and test results.


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “F” Notice Addresses; Emergency Contacts NOTICE ADDRESSES: [ ] And with copies of any legal notices to: Zuber Lawler LLP Attn: David B. Lambert, Esq. 350 South Grand Ave, 32nd Floor Los Angeles, CA 90071 Fax: (213) 596-5621 email: dlambert@zuberlaw.com And with copies of any notices to: Jones Day Attn: Ankush R. Israni, Esq. 555 South Flower Street, 50th Floor Los Angeles, CA 90071 email: aisrani@jonesday.com Lambda, Inc. 2510 Zanker Rd. San Jose, CA 95131 Email: legal@lambdal.com EMERGENCY CONTACTS: [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “G” Payment Addresses/Instructions Customer’s Address(es) for Invoices: [ ] Address for Payment of Charges: [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “H” Supplier’s Pre-Approved Contractors [ ]


 
Master Colocation Services Agreement Service Order MCSA-001 1 Schedule “I” Customer (or its Sublicensee) Policies [ ]


 
EX-10.3 4 sublicense-supermicroxla.htm EX-10.3 sublicense-supermicroxla
NAI-1540218613v3 Certain identified information has been omitted from this document because it is not material and is the type that the registrant treats as private and has been marked with "[ ]" to indicate where omissions have been made. SUBLICENSE THIS SUBLICENSE (this “Sublicense”) is entered into this 14th day of June 2024 by and between SUPER MICRO COMPUTER, INC., a Delaware corporation (“Sublicensor”) and LAMBDA, INC., a Delaware corporation (“Sublicensee”). Background A. Sublicensor, as customer, and 4701 Santa Fe, LLC, a Delaware limited liability company, as supplier (the “Supplier”) entered into that certain Master Colocation Services Agreement dated as of the date hereof (the “MCSA”) and that certain Service Order MCSA-001 dated as of the date hereof (the “Service Order”, collectively with the MCSA, the “Master Agreement”), a copy of which has been provided to Sublicensee is attached hereto as Exhibit A. B. Pursuant to the Master Agreement, Sublicensor licenses from Supplier the Customer Space (as defined in the Service Order) (the “Premises”), located on the 1st and 2nd floor of the building located at 4701 Santa Fe Avenue, Vernon, California (the “Building”). The Premises are more particularly described in the Master Agreement. C. Sublicensor desires to sublicense to Sublicensee the entire Premises. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Terms 1. Sublicense. Sublicensor hereby Sublicenses the Premises to Sublicensee, and Sublicensee hereby Sublicenses the Premises from Sublicensor, for the term, at the rental, and upon all of the other terms and conditions set forth herein. 2. Term. This Sublicense shall be for a term of ten years (the “Term”) commencing on the Service Commencement Date as set forth in the Service Order (the “Commencement Date”), and ending on the Initial Service Term Expiration Date as set forth in the Service Order (the “Expiration Date”), unless sooner terminated pursuant to any provision hereof or pursuant to the conditions or covenants of the Master Agreement or applicable law.


 
NAI-1540218613v3 2 3. Rent. 3.1 Sublicense Base Rent. Sublicensee shall pay to Sublicensor base rent for the Premises (“Sublicense Base Rent”), in the amount of [ ] percent ([ ]%) above and beyond the then applicable Monthly Recurring Charge as set forth in the Service Order for the entirety of the term. If the Commencement Date is other than the first day of a calendar month, Month 12 as set forth above shall be deemed to be the twelfth full month after the Commencement Date, and the Sublicense Base Rent for the first partial month shall be prorated. 3.2 Payment of Rent. Sublicensee shall pay the monthly Sublicense Base Rent on or before the 1st day of each calendar month, in each case, from the Commencement Date through the Expiration Date. Sublicense Base Rent, Sublicense Additional Rent (as hereinafter defined), and the payment of any other sums due under this Sublicense shall be collectively referred to herein as “Rent”. Rent shall be paid in the lawful money of the United States to Sublicensor or to such other persons or at such other places as Sublicensor may designate in writing. If either the Commencement Date or the Expiration Date falls on a date other than the first day or the last day of a calendar month, respectively, the Rent due for such fractional month shall be prorated on a per diem basis between Sublicensor and Sublicensee. All Rent shall be paid without set off, abatement or deduction. In addition to the other remedies available to Sublicensor hereunder, if any payment of Rent required to be paid by Sublicensee hereunder shall become overdue, such unpaid amount shall bear interest from the due date thereof to the date of payment at the prime rate of interest, as reported in the Wall Street Journal plus six percent (6%) per annum (“Default Rate”). Furthermore, if Sublicensee shall fail to pay any Rent or any other amount when due, Sublicensee shall pay Sublicensor a late charge of five percent (5%) of the outstanding balances then due and owing. 3.3 Sublicense Additional Rent. (a) Sublicensee shall pay Sublicensor, along with monthly installments of Sublicense Base Rent, all Electrical Power Charges, Customer’s Tax Share, and any Non- Recurring Charges (including Cross Connection charges) (each as defined in the Master Agreement) (“Sublicense Additional Rent”). (b) Sublicensor shall deliver to Sublicensee any supporting documentation relating to Sublicense Additional Rent received by Sublicensor from Supplier (to the extent not provided by Supplier to Sublicensee directly). If the sum of any installment or estimated payments made by Sublicensee on account of any or all of the items set forth in this Section exceed the actual amounts paid therefor, Sublicensor shall refund the excess to Sublicensee within thirty (30) days after the amount of the excess is refunded to Sublicensor by Supplier. If


 
NAI-1540218613v3 3 the sum of any installment or estimated payments made by Sublicensee on account of any or all of the items set forth in this section are less than Sublicensor’s proportionate share of such items with respect to the Premises under the Master Agreement for any year, Sublicensee shall pay the amount or such deficiency to Sublicensor within ten (10) days after demand therefor by Sublicensor. 3.4 Additional Charges. As to any additional charges under this Sublicense or the Master Agreement, such as, for example and without limitation, charges under this Sublicense or the Master Agreement for services furnished pursuant to the Sublicense or the Master Agreement or for repair of damage to the Premises, Sublicensee shall pay to Sublicensor, as additional rent under this Sublicense, within ten (10) days after receipt by Sublicensee of the relevant statement, an amount equal to all such charges. Sublicensor shall provide Sublicensee with copies of statements received from Supplier evidencing such additional charges. 4. Master Agreement. 4.1 Subordinate to Master Agreement. This Sublicense is and shall be at all times subject and subordinate to the Master Agreement. 4.2 Conflicts with Master Agreement. 4.3 The terms, conditions and respective obligations of Sublicensor and Sublicensee to each other under this Sublicense shall be the terms and conditions of the Master Agreement (including, without limitation, the indemnity provisions of the Master Agreement) except for those provisions of the Master Agreement which are directly contradicted by this Sublicense, in which event the terms of this Sublicense shall control over the Master Agreement. (a) Subject to the foregoing, for the purposes of this Sublicense, wherever in the Master Agreement the word “Supplier” is used, it shall be deemed to mean Sublicensor, and wherever in the Master Agreement the word “Customer” is used, it shall be deemed to mean Sublicensee; wherever in the Master Agreement the word “Customer Space or Colocation Space” is used, it shall be deemed to mean “Sublicensed Premises”; and wherever the word “Agreement or Service Order” is used in the Master Agreement, it shall be deemed to mean this Sublicense. Notwithstanding the foregoing, Sublicensee acknowledges and agrees that Sublicensor shall not be deemed a guarantor of the performance by Supplier of Supplier’s obligations under the Master Agreement, and that Sublicensee shall look solely to Supplier for the performance of Supplier’s obligations and Sublicensor’s sole obligation with respect thereto shall be to use commercially reasonable efforts to cause Supplier to perform its obligations under the Master Agreement. Sublicensee acknowledges and agrees that Sublicensee’s rights under this Sublicense are as a Sublicensee only and that, notwithstanding anything contained in this Sublicense to the contrary, Sublicensee shall not enjoy or be entitled to exercise any of the following rights which are afforded to Sublicensor as the “Customer” under the Master Agreement: (a) any right which is contradicted or limited by this Sublicense; (b) any right of extension; (c) any right of first refusal or first offer; (d) and right of self-help or set-off; (e) any right to receive condemnation proceeds; (f) any right to abate rent; and (g) any right to terminate this Sublicense by virtue of any provision of the Master Agreement that may give Sublicensor the right to terminate the Master Agreement. Any condition resulting from such default or delay


 
NAI-1540218613v3 4 by Sublicensor and Supplier shall not constitute an eviction, actual or constructive, of Sublicensee by Sublicensor. No such default or delay shall excuse Sublicensee from the performance or observance of any of its obligations to be performed or observed under this Sublicense or shall entitle Sublicensee to terminate this Sublicense or to any reduction in or abatement of the rent or other charges provided for in this Sublicense. In furtherance of the foregoing, Sublicensee does, to the extent permitted by law, and except for the willful misconduct or gross negligence of Sublicensor or breach of its obligations hereunder, hereby waive any cause of action and any right to bring an action against Sublicensor by reason of any act or omission of Supplier under the Master Agreement. Whenever the approval or consent of Sublicensor is required under any provision of the Master Agreement or this Sublicense, Sublicensee shall also be required to obtain and furnish to Sublicensor the written approval or consent of Supplier (to the extent required under the Master Agreement). Notwithstanding the foregoing, Sublicensee shall not be entitled to exercise any renewal, extension, termination, first offer, first refusal or expansion rights of Sublicensor, if any under the Master Agreement. 4.4 Assumption of Obligations. During the Term, Sublicensee does hereby expressly assume and agree to perform and comply with, for the benefit of Sublicensor and Supplier, the obligations of Sublicensor as “Customer” under the Master Agreement. Notwithstanding the foregoing, the obligation to pay rent to the Supplier shall be considered performed by Sublicensee to the extent and in the amount rent is paid to Sublicensor in accordance with Section 3 of this Sublicense. 4.5 Termination of Master Agreement. If the Master Agreement terminates through any event that is not caused by a default of Sublicensee or Sublicensor under this Sublicense, this Sublicense shall terminate and the parties hereto shall be relieved of any further liability or obligation under this Sublicense, except that (i) any Additional Charges or other additional rent or other charges provided for under the Master Agreement which shall have become due and payable prior to such termination shall remain payable and (ii) any prepaid portion of Sublicense Base Rent and Sublicense Additional Rent not yet earned by Sublicensor shall be promptly returned to Sublicensee. If the Master Agreement terminates, in no event shall Sublicensor be required to act beyond its obligations as customer in the Master Agreement or as provided in this Sublicense. 4.6 No Liability by Sublicensor. Notwithstanding anything contained in this Sublicense to the contrary, Sublicensee acknowledges and agrees that: (x) Sublicensor shall not be responsible for or deemed a guarantor with respect to any representations, warranties, covenants or other obligations or liabilities of the Supplier under the Master Agreement, and Sublicensee agrees to look solely to the Supplier for the performance of the Supplier’s obligations, (y) Sublicensor’s sole obligation to Sublicensee under the Master Agreement shall be, at Sublicensee’s request and on Sublicensee’s behalf, to use commercially reasonable efforts to require the Supplier to perform specific obligations of the Supplier under the Master Agreement if necessary, and (z) Sublicensor shall have no liability to Sublicensee for any misrepresentation, warranty, default or other act or omission of the Supplier under the Master Agreement and Sublicensor shall not be obligated to provide any services to Sublicensee or otherwise to perform any obligations in connection with this Sublicense except as expressly set forth herein as the separate obligations of Sublicensor. Sublicensee shall reimburse Sublicensor for any reasonable costs incurred by Sublicensor in connection with Sublicensor’s commercially


 
NAI-1540218613v3 5 reasonable efforts to require the Supplier to perform specific obligations of the Supplier under the Master Agreement (to the extent such efforts are intended primarily to benefit Sublicensee or the Premises). Sublicensee shall reimburse Sublicensor within thirty (30) days after Sublicensee’s receipt of reasonable supporting documentation relating to such costs. 5. Condition of Premises. 5.1 “AS IS” Condition. Sublicensee shall accept possession of the Premises on the Commencement Date, subject to restrictions of all applicable covenants of record, the Master Agreement and the applicable laws regulating the use of the Premises. Sublicensee acknowledges and agrees that it shall take possession of the Premises and the personal property and fixtures contained therein (if any) on the Commencement Date in an “AS IS” condition, including all existing furniture, fixtures and equipment therein as of the date hereof (the “FF&E”). Sublicensee agrees and acknowledges that neither Sublicensor nor any agent, attorney, employee or representative of Sublicensor has made any representation respecting or has made any warranty whatsoever, express or implied, regarding the Premises or personal property (if any). Without limiting the generality of the foregoing, Sublicensor shall have no obligation to make, supply or perform any alterations, services, material, fixtures, equipment, or decorations to the Premises. 5.2 FF&E. Any warranty of quality, fitness, or merchantability with respect to the FF&E is hereby excluded and Sublicensor shall not be liable to Sublicensee for any defect thereof. Sublicensee agrees and acknowledges that neither Sublicensor nor any agent, attorney, employee or representative of Sublicensor has made any representation respective or has made any warranty whatsoever, express or implied, regarding the Premises or property except as may be expressly set forth herein. Sublicensee shall be required to remove the FF&E upon the expiration or earlier termination of this Sublicense in accordance with the terms of the Master Agreement. 5.3 Alterations. Sublicensee shall not at any time during the Term make any alterations (including re-painting and re-carpeting) to the Premises without obtaining Sublicensor’s prior written consent, which consent shall not be unreasonably withheld. Sublicensee acknowledges that any such consent shall also be contingent upon receiving Supplier’s consent pursuant to the Master Agreement (to the extent such consent is required) and any alterations, if approved, must be performed in accordance with the requirements of the Master Agreement for any alterations. 5.4 Utilities. Sublicensee shall, subject to the terms and conditions of the Master Agreement, make arrangements directly with the appropriate service providers to supply the Premises with such utilities as Sublicensee may desire. Sublicensee shall promptly pay and be solely responsible for the cost of such services. 5.5 Use of Premises. Sublicensee may use the Premises only for the Permitted Use (as defined in the Master Agreement) and for no other purpose. Sublicensee shall not occupy or use the Premises (or permit the use or occupancy of the Premises) for any purpose or in any manner which: (a) is unlawful or in violation of any applicable legal, governmental or quasi-governmental requirement, ordinance or rule; (b) may be dangerous to persons or property;


 
NAI-1540218613v3 6 (c) may invalidate or increase the amount of premiums for any policy of insurance affecting the Premises or the Building; (d) creates a nuisance, disturbs any other tenant or customer of the Building or the occupants of neighboring property or injures the reputation of the Building; or (e) is in violation of the Master Agreement. Sublicensee shall be solely responsible for procuring and maintaining in effect any licenses or permits required for the operation of the Sublicensee’s business activities in the Premises during the Term. 5.6 Surrender. Upon the expiration or earlier termination of this Sublicense, Sublicensee agrees to surrender the Premises to Sublicensor, broom clean in as good or better condition as when Sublicensee took possession of the Premises, normal wear and tear alone excepted, and otherwise in accordance with the terms of the Master Agreement. 5.7 Liens. Sublicensee shall keep the Premises and the Building free from any and all liens arising out of any alterations, work performed, materials furnished, or obligations incurred by or for Sublicensee. In the event that Sublicensee shall not, within ten (10) days following the imposition of any such lien, cause the same to be released of record by payment or posting of a bond in a form and issued by a surety acceptable to Sublicensor and Supplier, either shall have the right, but not the obligation, to cause such lien to be released by such means as it shall deem proper (including payment of or defense against the claim giving rise to such lien); in such case, Sublicensee shall reimburse the party that caused such release for all amounts so paid in connection therewith, together with all costs and expenses, with interest thereon at the Default Rate and Sublicensee shall indemnify and defend each and all of Sublicensor, Sublicensor’s Indemnitees and Supplier and its respective officers, agents, directors, representatives, shareholders, members, subsidiaries, affiliates, related entities, partners, employees and lenders against any damages, losses or costs arising out of any such claim. Sublicensee’s indemnification contained in this Section 5.7 shall survive the expiration or earlier termination of this Sublicense. Such rights of Supplier and Sublicensor shall be in addition to all other remedies provided herein or by law. 6. Compliance with Laws. 6.1 Generally. Sublicensee shall comply with all governmental laws, ordinances and regulations applicable to the use of the Premises and its occupancy thereof, and shall promptly comply with all governmental orders and directives for the correction, prevention and abatement of any violations or nuisances in or upon, or connected with, the Premises, all at Sublicensee’s sole expense. 6.2 Americans with Disabilities Act. Sublicensor and Sublicensee hereby agree and acknowledge that the Premises and the Building may be subject to, among other laws, the requirements of the Americans with Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III thereof, and all regulations and guidelines related thereto, as may be hereafter modified, amended or supplemented (collectively, the “ADA”). Sublicensee acknowledges that the Premises, Building and/or common areas of the Building (“Common Areas”) may not currently be in compliance with the ADA. Sublicensee agrees to hold Sublicensor harmless and indemnify Sublicensor for any losses, costs, claims or expenses arising out of failure of the Premises, Building and/or Common Areas to comply with


 
NAI-1540218613v3 7 the ADA as a result of Sublicensee’s use of the Premises, or as a result of any work or alteration or leasehold improvements made to the Premises or Building by or on behalf of Sublicensee. 7. Insurance. Sublicensee, at its sole expense, shall obtain and keep in force the insurance required to be obtained by Sublicensor as “Customer” under the Master Agreement. Such policies shall name as additional insureds Sublicensor and Supplier and any other party specified by Supplier. 8. Waiver of Subrogation. Without limiting any release or waiver of liability or recovery in any other Section of this Sublicense, but rather in confirmation and furtherance thereof, Sublicensor and Sublicensee agree that, in the event the Building or the Premises, or the fixtures or property therein, are damaged or destroyed by fire or other casualty, regardless of the cause thereof, the rights, if any, of any party against the other, or against the employees, agents or licensees of any party with respect to such damage or destruction and with respect to any loss resulting therefrom, including the interruption of the business of any of the parties, are hereby waived to the extent provided in Section 9 hereof. Sublicensor and Sublicensee agree, further, that all policies of fire, extended coverage, business interruption or other insurance (other than public liability insurance) maintained by Sublicensor or Sublicensee, including any covering and insuring the Building and the Premises, or the contents, fixtures, and improvements therein shall contain a clause or endorsement providing in substance that the insurance shall not be prejudiced if the insureds have waived right of recovery from any person or persons prior to the date and time of loss or damage, if any. 9. Waiver of Claims. To the extent not prohibited by law or caused by the gross negligence or willful misconduct of Sublicensor or Sublicensor’s Indemnitees (as defined herein), and except as provided below, Sublicensee hereby expressly releases Sublicensor, and its respective officers, agents, directors, representatives, shareholders, members, subsidiaries, affiliates, related entities, partners, employees and lenders (collectively, “Sublicensor’s Indemnitees”) from, and waives all claims for, damage or injury to person, theft, loss of use of or damage to property and loss of business sustained by Sublicensee and resulting from the Building or the Premises or any part thereof or any equipment therein or appurtenances thereto being or becoming in disrepair, or resulting from any damage, accident or event in or about the Building or any willful, intentional or negligent act or omission of any person (except for the gross negligence or willful misconduct of Sublicensor and Sublicensor’s Indemnitees). Without limiting the generality of the foregoing, this Section 9 shall apply particularly, but not exclusively, to flooding, damage caused by Building equipment and apparatus, water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration, death, loss, conversion, theft, robbery, assault, battery, murder, or the bursting or leaking of pipes, plumbing fixtures or sprinkler devices. In addition, Sublicensee waives all claims and rights of recovery against Sublicensor and Sublicensor’s Indemnitees for any loss or damage to any property of Sublicensee, which loss or damage is insured against, or required to be insured against, by Sublicensee pursuant to Section 7 of this Sublicense, whether or not such loss or damage is due to the fault or negligence of Sublicensor, or Sublicensor’s Indemnitees, and regardless of the amount of insurance proceeds collected or collectible under any insurance policies in effect, and Sublicensee further agrees that all such property of Sublicensee shall be at the risk of Sublicensee only and Sublicensor and Sublicensor’s Indemnitees shall not be liable


 
NAI-1540218613v3 8 for any loss or damage thereto and Sublicensee completely releases and exculpates Sublicensor and Sublicensor’s Indemnitees therefrom. 10. Holdover. In the event that Sublicensee retains possession of the Premises or any part thereof after the termination of the Term by lapse of time or otherwise, Sublicensee shall pay Sublicensor the monthly Sublicense Base Rent at 200% of the rate payable for the month immediately preceding said holding over (the “Base Holdover Rent”), computed on a per- month basis, for each month or part thereof (without reduction for any such partial month) that the Sublicensee thus remains in possession, and in addition thereto, Sublicensee shall pay Sublicensor all damages sustained by reason of Sublicensee’s retention of possession, including, but not limited to, any amount that Sublicensor is responsible to pay for the Premises to Supplier under the Master Agreement in excess of the Base Holdover Rent and any other liability of Sublicensor to Supplier sustained as a result thereof. The foregoing shall be in addition to, and shall in no way limit, any other right Sublicensor may have under this Sublicense, at law, or in equity and Sublicensor’s acceptance of the Base Holdover Rent shall in no way be a consent to Sublicensee’s continued occupancy of the Premises. 11. Assignment and Subletting. Sublicensee shall not, under any circumstances, assign this Sublicense, sublicense the Premises or permit the use of the Premises by any person other than Sublicensee and its employees without obtaining Sublicensor’s prior written consent which consent may be withheld in Sublicensor’s sole and absolute discretion. Sublicensee acknowledges that any such consent shall also be contingent upon receiving Supplier’s consent pursuant to the Master Agreement. In the event Sublicensor consents to an assignment of this Sublicense or a Sublicense of the Premises, Sublicensee shall pay to Sublicensor 100% of all rent and other consideration received by Sublicensee (“Transfer Rent”) in excess of the rent paid by Sublicensee hereunder for the portion of the Premises so transferred. Sublicensor’s portion of the Transfer Rent shall be paid as and when received by Sublicensee or Sublicensee’s affiliates. Transfer Rent shall include any other amount received by Sublicensee from or in connection with any assignment or subletting (including, but not limited to sums paid for the sale or rental, or consideration received on account of any contribution, of Sublicensee’s personal property or sums paid in connection with the supply of electricity or HVAC or use of any services, equipment or facilities located within the Premises or any other area of the Building). Sublicensee shall reimburse Sublicensor for any and all expenses (including attorneys’ fees) incurred by Sublicensor in connection with any proposed assignment or Sublicense, whether or not Sublicensor consents to such assignment or subletting. 12. Sublicensee Default. 12.1 The occurrence of any of the following is an “Event of Default”: (a) Any act or omission by Sublicensee that would constitute a default under the Master Agreement, subject to the same notice and cure provisions provided therein, less three (3) days (if more than a three day cure period is provided), provided Sublicensor shall promptly deliver any default notices received by it under the Master Agreement (only to the extent the same was not sent by Supplier to Sublicensee).


 
NAI-1540218613v3 9 (b) Sublicensee’s failure to perform any monetary obligation under this Sublicense, if such failure continues for more than five (5) days after Sublicensor provides notice to Sublicensee of its failure to perform such monetary obligation. (c) Sublicensee’s failure to perform any obligations required under this Sublicense, but not covered under Section 12(a) or 12(b) hereof, if such failure continues for more than thirty (30) days after written notice of such failure to perform, or, if such condition of nonperformance is not reasonably capable of being remedied within thirty (30) days, such additional time as may be reasonably necessary in order to correct such condition provided that Sublicensee commences to correct such condition within such thirty (30) day period and thereafter diligently pursues the correction of such condition. 12.2 Sublicensee agrees to do nothing which will subject the Master Agreement to termination by Supplier under the provisions of the Master Agreement. It is also agreed that if Sublicensee is in default of the provisions of the Master Agreement, Sublicensor may, but need not, cure said default specifically on behalf of and for the account of Sublicensee, in which case all costs, damages and expenses incurred by Sublicensor in connection therewith shall be paid to Sublicensor immediately upon its demand as additional rent hereunder. In so curing Sublicensee’s default, Sublicensor shall not be deemed to have waived any of its rights, nor to have released Sublicensee from any of its obligations under this Sublicense. 12.3 It is further agreed that Sublicensor may cure Sublicensee’s default under the Master Agreement or this Sublicense on and for Sublicensor’s own account to preserve its interest in the Master Agreement, and may terminate this Sublicense by reason of said default pursuant to the terms hereof, if Sublicensee does not pay as additional rent to Sublicensor all costs, damages and expenses incurred by it in connection with such cure within the applicable grace period provided for in the Master Agreement. 12.4 In the event of a default hereunder beyond any applicable notice and cure periods, Sublicensor shall be entitled to all remedies and damages provided for Supplier in the Master Agreement, or as otherwise provided by law or equity. 13. Covenant of Sublicensor. Subject to the provisions of this Sublicense, Sublicensor shall use reasonable efforts to obtain for Sublicensee the benefit of all rights granted to Sublicensor, as customer under the Master Agreement, with respect to the Premises in order to effectuate the intent of the parties and the purpose of this Sublicense; provided that nothing contained in this Sublicense shall be construed as requiring Sublicensor to perform any obligation or discharge any duty which Supplier is required to perform or discharge under the Master Agreement. Sublicensee shall not receive any abatement of rent under this Sublicense because of the Sublicensor or Supplier’s failure to perform any of their obligations under the Master Agreement, except that if Sublicensor receives an abatement of rent from the Supplier relating to the Sublicensed Premises, Sublicensee shall receive a corresponding proportional abatement of rent hereunder 14. Notice of Default. Sublicensor and Sublicensee shall, respectively and promptly, give written notice to the other of any notice of default they may receive from Supplier under the Master Agreement.


 
NAI-1540218613v3 10 15. Consent and Approval of Supplier. Neither Sublicensor nor Sublicensee shall take or omit to take any action requiring the Supplier’s consent under the Master Agreement without first obtaining such consent in accordance with the terms of the Master Agreement. Whenever the consent of the Supplier is required under the Master Agreement, Sublicensor and Sublicensee shall use reasonable diligence to obtain such consent from the Supplier. 16. Additional Covenants of Sublicensee. 16.1 Sublicensee hereby assumes and agrees to perform and comply with all of the terms, covenants and conditions of the Master Agreement on the part of the customer thereunder to be performed and observed with respect to the Premises, other than as expressly set forth in this Sublicense. 16.2 Sublicensee will not do or cause to be done or suffer or permit any act or thing to be done or suffered which would or might constitute a default under the Master Agreement or cause the Master Agreement or the rights of Sublicensor, as customer thereunder, to be terminated or which would or might cause Sublicensor to become liable for any damages, costs, claims or penalties or would or might increase the rent or other charges or obligations of Sublicensor, as customer under the Master Agreement, or would or might adversely affect or reduce any of Sublicensor’s rights or benefits under the Master Agreement. 16.3 Sublicensee shall defend, indemnify and hold Sublicensor harmless from and against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) arising from the use or occupancy by Sublicensee of the Premises or the Building or from any work or thing done or any condition created by or any other act or omission of Sublicensee or its employees, agents, contractors, visitors or licensees, in or about the Premises or any other part of the Building, or from any breach of its obligations under this Sublicense. Sublicensor shall defend, indemnify and hold Sublicensee harmless from and against any and all claims, actions, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) arising from the willful misconduct or gross negligence of Sublicensor or its employees, agents, contractors, visitors or licensees. The provisions of this Section 16.3 shall survive the expiration or earlier termination of this Sublicense. 17. Notices. Whenever a provision is made under this Sublicense for any demand, notice or declaration of any kind, or where it is deemed desirable or necessary by either party to give or serve any such notice, demand or declaration to the other party, it shall be in writing and served either personally or sent by United States mail, certified, postage prepaid, or by pre-paid nationally recognized overnight courier service, addressed at the addresses set forth below or at such address as either party may advise the other from time to time. If to Sublicensor: Super Micro Computer, Inc. [ ] and


 
NAI-1540218613v3 11 Super Micro Computer, Inc. [ ] with a copy to: Jones Day [ ] If to Sublicensee: Lambda, Inc. [ ] or at such other address as Sublicensor or Sublicensee may theretofore by written notice to the other have designated for the service of such notice. Notices given hereunder shall be deemed to have been given on the date of personal delivery (or the first business day thereafter if delivered on a non-business day) or three (3) days after the date of certified mailing or the next business day after being sent by overnight courier, provided that the sender can evidence proof of receipt of such notice. If the sender is unable to provide such proof, notices given hereunder shall be effective upon actual receipt only. 18. Damage and Destruction; Condemnation. This Sublicense shall terminate if and when the Master Agreement is terminated as a result of any fire or other casualty or eminent domain. In no event shall Sublicensor have any obligation to repair or restore the Premises, any personal property located in the Premises, or any other portion of the Building. 19. Governing Law. This Sublicense shall be governed and construed in accordance with the laws of the State in which the Premises is located, notwithstanding any conflicts-of-laws doctrines of such state or other jurisdiction to the contrary. 20. Sublicensor’s Right to Perform Sublicensee’s Duties. If Sublicensee fails timely to perform any of its duties under this Sublicense, Sublicensor shall have the right (but not the obligation), after the expiration of any grace or notice and cure period elsewhere under this Sublicense expressly granted to Sublicensee for the performance of such duty or upon ten (10) days’ notice, whichever is less, to perform such duty on behalf and at the expense of Sublicensee without further prior notice to Sublicensee, and all sums expended or expenses incurred by Sublicensor in performing such duty shall be deemed to be additional Rent under this Sublicense and shall be due and payable upon demand by Sublicensor. 21. Due Authority. The individuals executing this Sublicense for Sublicensee represent and warrant to Sublicensor that they have full right, power and authority to execute this Sublicense on behalf of Sublicensee. 22. Binding Effect. The covenants and agreements herein contained shall bind and inure to the benefit of Sublicensor and Sublicensee and their respective successors and assigns. 23. Counterparts. This Sublicense may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, constitute one and the same instrument.


 
NAI-1540218613v3 12 24. Specific Performance and Injunctive Relief. Each party hereto recognizes that, if it fails to perform, observe, or discharge any of its obligations under this Sublicense, no remedy at law will provide adequate relief to the other party hereto. Therefore, each party to this Sublicense is hereby authorized to demand specific performance of this Sublicense, and is entitled to seek temporary and permanent injunctive relief in a court of competent jurisdiction, at any time when the other party fails to comply with any of the provisions of this Sublicense applicable to it. To the extent permitted by law, each party hereto irrevocably waives any defense that it might have based on the adequacy of a remedy at law which might be asserted as a bar to such remedy of specific performance or injunctive relief. 25. Terms. All capitalized terms used in this Sublicense, but not defined herein, shall have the same meaning as ascribed to such terms in the Master Agreement. 26. Construction. Each party acknowledges that such party and its counsel, after negotiation and consultation, have reviewed and revised this Sublicense. As such, the terms of this Sublicense shall be fairly construed and the usual rule of construction, to wit, that ambiguities in this Sublicense should be resolved against the drafting party, shall not be employed in the interpretation of this Sublicense or any amendments, modifications or exhibits hereto or thereto. 27. Execution and Delivery. The submission to Sublicensee of this Sublicense shall not constitute an option or offer for the subleasing of the Sublicensed Premises, and the execution and/or delivery of this Sublicense by Sublicensee shall have no binding force or effect on Sublicensor unless and until Sublicensor and Sublicensee shall have (i) executed this Sublicense and (ii) delivered a fully-executed counterpart to each other. [balance of page intentionally blank]


 
NAI-1540218613v3 13 IN WITNESS WHEREOF, the parties have executed this Sublicense as of the day and year first above written. SUBLICENSOR: SUPER MICRO COMPUTER, INC. By: /s/ Charles Liang ____________________ Name: Charles Liang _____________________ Title: ___ President and Chief Executive Officer SUBLICENSEE: LAMBDA, INC. By: /s/ Peter Seibold _____________________ Name: Peter Seibold _____________________ Its: CFO ________________________________


 
NAI-1540218613v3 EXHIBIT A COPY OF THE MASTER AGREEMENT