EXHIBIT 4.1


 


THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE SECURITIES
MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144 OR 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR (E) IN A TRANSACTION THAT DOES NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE,
FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY.
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.


 


12% SECURED CONVERTIBLE PROMISSORY NOTE


 


RACKWISE, INC.


 


Due:  May __, 2017


 





	Original Issue Date:  __________, 2014	US$__________










 


This Secured Convertible Promissory Note
is one of a series of duly authorized and issued convertible promissory notes of Rackwise, Inc., a Nevada corporation (the “Company”),
designated its 12% Secured Convertible Promissory Notes (the “Note”), issued to RACKWISE FUNDING II, LLC
(together with its permitted successors and assigns, the “Holder”) in accordance with exemptions from registration
under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the Subscription Agreement,
dated as of May __, 2014 (the “Subscription Agreement”), entered into between the Company and the Holder. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in the Subscription Agreement.


 


ARTICLE I


 


Section 1.01       
Principal and Interest.  (a)   For value received, the Company hereby promises to pay to
the order of the Holder, in lawful money of the United States of America and in immediately available funds the principal sum of
                         Dollars ($__________) on May __, 2017 (the “Maturity Date”).


 






    	 



    	 



    

 


(b)        The Company further promises to pay interest on the unpaid principal amount of this Note at a rate per annum equal to twelve
percent (12%), commencing to accrue on the date hereof and payable quarterly in arrears. Interest will be computed on the basis
of a 360-day year of twelve 30-day months for the actual number of days elapsed. During the term of the Note, until such time,
if ever, that the Company reaches positive cash flow for a minimum of two successive fiscal quarters, interest may be paid-in-kind,
at the option of the Company; provided that such option shall be limited to one year worth of payments. Under all other circumstances,
interest will be paid in cash.


 


(c)        From and after
the occurrence of an Event of Default (as defined in Section 3.01), the interest rate shall be increased to eighteen percent (18%)
per annum. Interest due and payable at the default rate shall not be payable in kind. In the event that an Event of Default is
subsequently cured, the adjustment referred to in the preceding sentence shall cease to be effective as of the date of such cure;
provided that the interest as calculated at such increased rate during the continuance of such Event of Default shall continue
to apply to the extent relating to the days after the occurrence of such Event of Default through and including the date of cure
of such Event of Default.


 


(d)        The Company
may prepay any portion of the principal amount of this Note without penalty upon twenty days prior written notice to Holder.


 


Section 1.02       
Conversion.  The Note is convertible at any time prior to maturity, in whole or in part, at the Purchaser’s
sole option, into units of the Company’s securities (the “Units”) at a conversion price of $0.50 (the “Conversion
Price”) per Unit. Each Unit shall consist of one share (the “Unit Shares”) of the Company’s common stock,
$0.001 par value per share (the “Common Stock”), and one five year common stock purchase warrant with an exercise price
of $0.625 per share (the “Unit Warrants”). The shares underlying the Unit Warrants are hereinafter referred to as the
“Unit Warrant Shares” or the “Warrant Shares”).


 


Section 1.03       
Absolute Obligation/Ranking.  Except as expressly provided herein, no provision of this Note shall alter
or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and liquidated damages (if
any) on, this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation
of the Company. This Note ranks pari passu with all other Notes issued pursuant to the Subscription Agreement and senior to all
obligations of the Company except for the Permitted Liens.


 


Section 1.04       
Paying Agent and Registrar.  Initially, the Company will act as paying agent and registrar. The Company
may change any paying agent or registrar, by giving the Holder not less than five (5) business days’ written notice
of its election to do so, specifying the name, address, telephone number and facsimile number of the paying agent or registrar.
Upon an assignment of the Note to the Company, the Company may act as paying agent and registrar without regard to the notice provision
provided above.


 






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Section 1.05       
Different Denominations; Transfer.  This Note is exchangeable for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be made for
such registration of transfer or exchange. This Note and any shares of Common Stock issued upon conversion of this Note may only
be offered, sold, assigned or transferred by the Holder without the consent of the Company, provided that the provisions of the
Subscription Agreement are complied with in all respects.


 


Section 1.06       
Investment Representations.  This Note has been issued subject to certain investment representations of
the original Holder set forth in the Subscription Agreement and may be transferred or exchanged only in compliance with the Subscription
Agreement and applicable federal and state securities laws and regulations.


 


Section 1.07       
Reliance on Note Register.  Prior to due presentment to the Company for transfer or conversion of this
Note, the Company and any agent of the Company may treat the person in whose name this Note is duly registered on the Note Register
as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note
is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.


 


Section 1.08       
Other Rights.  In addition to the rights and remedies given it by this Note and the Subscription Agreement,
the Holder shall have all those rights and remedies allowed by applicable laws. The rights and remedies of the Holder are cumulative
and recourse to one or more right or remedy shall not constitute a waiver of the others.


 


ARTICLE II


 


Section 2.01        Certain Adjustments.


 


(a)        Stock Dividends and Splits.  If the Company, at any time while this Note is outstanding: (i) pays a stock
dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued
by the Company upon conversion of this Note), (ii) subdivides outstanding shares of Common Stock into a larger number of shares,
(iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or
(iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the
Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event, and the number of shares issuable upon conversion of this Note shall be
proportionately adjusted such that the aggregate Conversion Price of this Note shall remain unchanged. Any adjustment made pursuant
to this Section 2.01(a) shall become effective immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.


 






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(b)        Subsequent Rights Offerings.  In addition to any adjustments pursuant to Section 2.01(a) above, if at any
time the Company grants, issues or sells any common stock equivalents or rights to purchase stock, Notes, securities or other property
pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without
regard to any limitations on conversion hereof) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock
are to be determined for the grant, issue or sale of such Purchase Rights.


 


(c)        Pro Rata Distributions.  If the Company, at any time while this Note is outstanding, shall distribute to
all holders of Common Stock (and not to the Holder) evidences of its indebtedness or assets (including cash and cash dividends)
or rights or Notes to subscribe for or purchase any security, then in each such case the Conversion Price shall be adjusted by
multiplying the Conversion Price in effect immediately prior to the record date fixed for determination of stockholders entitled
to receive such distribution by a fraction of which the denominator shall be the VWAP determined as of the record date mentioned
above, and of which the numerator shall be such VWAP on such record date less the then per share fair market value at such record
date of the portion of such assets or evidence of indebtedness or rights or Notes so distributed applicable to one outstanding
share of the Common Stock as determined by the Company’s board of directors in good faith. In either case the adjustments
shall be described in a statement provided to the Holder of the portion of assets or evidences of indebtedness so distributed or
such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution
is made and shall become effective immediately after the record date mentioned above.


 






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(d)        Subsequent Equity Sales.  (i)   If the Company or any subsidiary thereof, as applicable,
at any time while this Note is outstanding, shall sell or grant any option to purchase, or sell or grant any right to reprice,
or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common
Stock or Common Stock Equivalents, at an effective price per share less than the Conversion Price then in effect (such lower price,
the “New Issuance Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and
agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of
purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to Notes, options
or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective
price per share that is less than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion
Price on such date of the Dilutive Issuance at such effective price), then simultaneously with the consummation of each Dilutive
Issuance the Conversion Price shall be reduced and only reduced by multiplying the Conversion Price by a fraction, the numerator
of which is the number of shares of Common Stock issued and outstanding immediately prior to the Dilutive Issuance plus the number
of shares of Common Stock which the offering price for such Dilutive Issuance would purchase at the then Conversion Price, and
the denominator of which shall be the sum of the number of shares of Common Stock issued and outstanding immediately prior to the
Dilutive Issuance plus the number of shares of Common Stock so issued or issuable in connection with the Dilutive Issuance (the
“Adjusted Price”) (subject to adjustment for stock splits, reverse splits and similar capital adjustments). Such adjustment
shall be made whenever such Common Stock or Common Stock Equivalents are issued. Notwithstanding the foregoing, no adjustments
shall be made, paid or issued under this Section 2.01(d) in respect of an Exempt Issuance. “Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. “Exempt Issuance”
means the issuance of (a) shares of Common Stock or options under any of the Company’s equity incentive plans or to employees,
officers, directors or consultants of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority
of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established
for such purpose, (b) securities upon the conversion, exercise or exchange of or conversion of any Securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the
date of this Note, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested
directors of the Company, (d) shares of Common Stock or options issued pursuant to Form S-8 or (e) securities issued pursuant to
Form S-4.


 


(ii)        The Company shall
promptly notify the Holder, in writing, following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents
subject to this Section 2.01(d), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether
or not the Company provides a Dilutive Issuance Notice pursuant to this Section 2.01(d), upon the occurrence of any Dilutive Issuance,
the Holder is entitled to convert the Note at the Adjusted Price regardless of whether the Holder accurately refers to the Adjusted
Price in the Conversion Notice.


 






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(iii)        If the purchase
or exercise price provided for in any Common Stock Equivalents, or the rate at which any Common Stock Equivalents are convertible
into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time, the Conversion Price in effect
at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time
had such Common Stock Equivalents provided for such increased or decreased purchase price, additional consideration or increased
or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 2.01(d)(iii),
if the terms of any Common Stock Equivalents that was outstanding as of the date of issuance of this Note are increased or decreased
in the manner described in the immediately preceding sentence, then such Common Stock Equivalents and the shares of Common Stock
deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase
or decrease.


 


(iv)        No adjustment
pursuant to this Section 2.01(d) shall be made if such adjustment would result in an increase of the Conversion Price then in effect.


 


(e)        Calculations.  All calculations under this Section 2.01 shall be made to the nearest cent or the nearest
1/100th of a share, as the case may be. For purposes of this Section 2.01, the number of shares of Common Stock deemed
to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares,
if any) issued and outstanding.


 


(f)        Adjustment to Conversion Price.  Whenever the Conversion Price is adjusted pursuant to any provision of
this Section 2.01, the Company shall promptly mail to the Holder a notice setting forth the Conversion Price after such adjustment
and any resulting adjustment to the number of shares underlying this Note and setting forth a brief statement of the facts requiring
such adjustment.


 


(g)        Authorized Shares.  Notwithstanding the provisions of Article I and II hereof, the Company shall not be
required to issue any shares upon conversion or make any adjustment if and to the extent that such issuance or adjustment would
require the Company to issue a number of Unit Shares or Warrant Shares in excess of its authorized but unissued shares of Common
Stock, less all amounts of Common Stock that have been reserved for issue upon the conversion of all outstanding securities convertible
into shares of Common Stock and the exercise of all outstanding options, warrants and other rights exercisable for shares of Common
Stock. If the Company does not have the requisite number of authorized but unissued shares of Common Stock to make any issuance
or adjustment, the Company shall use its commercially best efforts to obtain the necessary stockholder consent to increase the
authorized number of shares of Common Stock to make such issuance or adjustment.


 






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ARTICLE III


 


Section 3.01        Events of Default.  Each
of the following events shall constitute a default under this Note (each an “Event of Default”):


 


(a)        failure by the Company to pay the principal amount when due hereunder within seven (7) business days of receipt of written
notice thereof;


 


(b)        failure by the Company for seven (7) business days after notice to it to comply with any of its other agreements in this
Note;


 


(c)        the Company shall: (1) make a general assignment for the benefit of its creditors; (2) apply for or consent to
the appointment of a receiver, trustee, assignee, custodian, sequestrator, liquidator or similar official for itself or any of
its assets and properties; (3) commence a voluntary case for relief as a debtor under the United States Bankruptcy Code; (4) file
with or otherwise submit to any governmental authority any petition, answer or other document seeking: (A) reorganization,
(B) an arrangement with creditors or (C) to take advantage of any other present or future applicable law respecting bankruptcy,
reorganization, insolvency, readjustment of debts, relief of debtors, dissolution or liquidation; (5) file or otherwise submit
any answer or other document admitting or failing to contest the material allegations of a petition or other document filed or
otherwise submitted against it in any proceeding under any such applicable law, or (6) be adjudicated a bankrupt or insolvent
by a court of competent jurisdiction;


 


(d)        any case, proceeding or other action shall be commenced against the Company for the purpose of effecting, or an order, judgment
or decree shall be entered by any court of competent jurisdiction approving (in whole or in part) anything specified in Section 3.01(c)
hereof, or any receiver, trustee, assignee, custodian, sequestrator, liquidator or other official shall be appointed with respect
to the Company, or shall be appointed to take or shall otherwise acquire possession or control of all or a substantial part of
the assets and properties of the Company, and any of the foregoing shall continue unstayed and in effect for any period of sixty
(60) days;


 


(e)        except with respect to indebtedness which is outstanding as of the date of this Note, default shall occur with respect to
any indebtedness for borrowed money of the Company or under any agreement under which such indebtedness may be issued by the Company
and such default shall continue for more than the period of grace, if any, therein specified, if the aggregate amount of such indebtedness
for which such default shall have occurred exceeds $100,000;


 


(f)        except with respect to contractual obligations of the Company which are in default as of the date of this Note, default
shall occur with respect to any contractual obligation of the Company under or pursuant to any contract, lease, or other agreement
to which the Company is a party and such default shall continue for more than the period of grace, if any, therein specified, if
the aggregate amount of the Company’s contractual liability arising out of such default exceeds or is reasonably estimated
to exceed $100,000;


 






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(g)        except with respect to outstanding judgments against the Company as of the date of this Note, final judgment for the payment
of money in excess of $100,000 shall be rendered against the Company and the same shall remain undischarged for a period of thirty
(30) days during which execution shall not be effectively stayed;


 


(h)        except with respect to events of default by the Company with regard to Permitted Liens, as such term is defined in the Subscription
Agreement, any event of default of the Company under any agreement, note, mortgage, security agreement or other instrument evidencing
or securing indebtedness that ranks senior in priority to, or pari passu with, the obligations under this Note and the Subscription
Agreement;


 


(i)        any material breach by the Company of any of its representations or warranties under the Subscription Agreement; or


 


(j)        any material default, whether in whole or in part, shall occur in the due observance or performance of any obligations or
other covenants, terms or provisions to be performed under this Note or the Subscription Agreement which is not cured by the Company
within five (5) business days after receipt of written notice thereof.


 


Section 3.02        If any Event of
Default specified in clauses 3.01(c) or (d) occurs, then the full principal amount of this Note, together with any other amounts
owing in respect thereof, to the date of the Event of Default, shall become immediately due and payable without any action on the
part of the Holder, and if any other Event of Default occurs, the full principal amount of this Note, together with any other amounts
owing in respect thereof, to the date of acceleration shall become, at the Holder’s election, immediately due and payable
in cash. The Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind,
and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder
and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by the Holder at any
time prior to payment hereunder and the Holder shall have all rights as a Note holder until such time, if any, as the full payment
under this Section shall have been received by it. No such rescission or annulment shall affect any subsequent Event of Default
or impair any right consequent thereon.


 


ARTICLE IV


 


Section 4.01        Negative Covenants.  So
long as this Note shall remain in effect and until any outstanding principal and interest and all fees and all other expenses or
amounts payable under this Note and the Subscription Agreement have been paid in full, unless all Holders shall otherwise consent
in writing, the Company shall not:


 






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(a)        Senior or Pari Passu Indebtedness.  Incur, create, assume, guaranty or permit to exist any indebtedness
other than indebtedness to the Company’s present factor, that ranks senior in priority to, or pari passu with, the obligations
under this Note and the Subscription Agreement, except for (i) Permitted Liens and (ii) indebtedness created as a result of a subsequent
financing if the gross proceeds to the Company of such financing are equal to or greater than the aggregate principal amount of
the Notes and the Notes are repaid in full upon the closing of such financing.


 


(b)        Liens.  Create, incur, assume or permit to exist any lien on any property or assets (including stock or
other securities of the Company) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any
thereof, except:


 


(i)        liens on property or assets of the Company existing on the date hereof, provided that such liens shall secure only those
obligations which they secure on the date hereof;


 


(ii)        any lien created under this Note or the Subscription Agreement;


 


(iii)        any lien existing on any property or asset prior to the acquisition thereof by the Company, provided that


 


		1)	such lien is not created in contemplation of or in connection with such acquisition and



 


		2)	such lien does not apply to any other property or assets of the Company;



 


(iv)        liens for taxes, assessments and governmental charges;


 


(v)        carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other
like liens arising in the ordinary course of business and securing obligations that are not due and payable;


 


(vi)        pledges and deposits made in the ordinary course of business in compliance, with workmen’s compensation, unemployment
insurance and other social security laws or regulations;


 


(vii)        deposits to secure the performance of bids, trade contracts (other than for indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;


 


(viii)        zoning restrictions, easements, licenses, covenants, conditions, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business and minor irregularities of title that, in the aggregate,
are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company;


 






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(ix)        purchase money security interests in real property, improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Company, provided that


 


		1)	such security interests secure indebtedness permitted by this Note,



 


		2)	such security interests are incurred, and the indebtedness secured thereby is created, within 90
days after such acquisition (or construction),



 


		3)	the indebtedness secured thereby does not exceed 85% of the lesser of the cost or the fair market
value of such real property, improvements or equipment at the time of such acquisition (or construction) and



 


		4)	such security interests do not apply to any other property or assets of the Company;



 


(x)        liens arising out of judgments or awards (other than any judgment that constitutes an Event of Default hereunder) in respect
of which the Company shall in good faith be prosecuting an appeal or proceedings for review and in respect of which it shall have
secured a subsisting stay of execution pending such appeal or proceedings for review, provided the Company shall have set aside
on its books adequate reserves with respect to such judgment or award; and


 


(xi)        deposits, liens or pledges to secure payments of workmen’s compensation and other payments, public liability, unemployment
and other insurance, old-age pensions or other social security obligations, or the performance of bids, tenders, leases, contracts
(other than contracts for the payment of money), public or statutory obligations, surety, stay or appeal bonds, or other similar
obligations arising in the ordinary course of business.


 


(c)        Dividends and Distributions.  In the case of the Company, declare or pay, directly or indirectly, any dividend
or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or directly or indirectly redeem, purchase, retire or otherwise acquire for value
any shares of any class of its capital stock or set aside any amount for any such purpose.


 


(d)        Limitation on Certain Payments and Prepayments.


 


(i)        Except pursuant to the Transaction Documents, pay in cash any amount in respect of any indebtedness or preferred stock that
may at the obligor’s option be paid in kind or in other securities; or


 






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(ii)        Optionally prepay, repurchase or redeem or otherwise defease or segregate funds with respect to any indebtedness of the
Company, other than for indebtedness evidenced by Permitted Liens, indebtedness under this Note or the Subscription Agreement.


 


ARTICLE V


 


Section 5.01        Security; Other
Rights.  The obligations of the Company to the Holder under this Note are secured pursuant to the Subscription Agreement
and the Security Agreement. In addition to the rights and remedies given it by the Subscription Agreement, the Note and the Security
Agreement, the Holder shall have all those rights and remedies allowed by applicable laws. The rights and remedies of the Holder
are cumulative and recourse to one or more right or remedy shall not constitute a waiver of the others.


 


ARTICLE VI


 


Section 6.01        Notice.  Notices
regarding this Note shall be sent to the parties at the following addresses, unless a party notifies the other parties, in writing,
of a change of address:


 


	If to the Company, to:	Rackwise, Inc.
	 	
        2365 Iron Point Road, Suite 190

        Folsom, CA 95630

	 	Attention:  Guy A. Archbold, Chairman and CEO
	 	Facsimile:  415-358-4665
	 	 
	With a copy to:	Gottbetter & Partners, LLP
	 	488 Madison Avenue, 12th Floor
	 	New York, NY 10022
	 	Attention:  Adam S. Gottbetter, Esq.
	 	Facsimile:  212-400-6901
	 	 
	If to the Holder:	At the address set forth in the Subscription Agreement


 


Section 6.02        Governing Law.  All
questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed
and enforced in accordance with the internal laws of the State of Colorado, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of Denver,
Colorado (the “Colorado Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the
Colorado Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, or such Colorado Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If either party shall commence
an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.


 






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Section 6.03        Severability.  The
invalidity of any of the provisions of this Note shall not invalidate or otherwise affect any of the other provisions of this Note,
which shall remain in full force and effect.


 


Section 6.04        Entire Agreement
and Amendments.  This Note, together with the Subscription Agreement, represents the entire agreement between the
parties hereto with respect to the subject matter hereof and there are no representations, warranties or commitments, except as
set forth herein. This Note may be amended only by an instrument in writing executed by the parties hereto.


 


Section 6.05        Cancellation.  After
all Principal, accrued Interest and other amounts at any time owed on this Note has been paid in full, this Note shall automatically
be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.


 


Section 6.06         Construction;
Headings.  This Note shall be deemed to be jointly drafted by the Company and all the Purchasers and shall not be
construed against any person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form
part of, or affect the interpretation of, this Note.


 


Section 6.07        Payment of Collection,
Enforcement and Other Costs.  If (a) this Note is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this
Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company
or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay
the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization,
receivership or other proceeding, including, but not limited to, attorneys’ fees and disbursements.


 






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Section 6.08        Noncircumvention.  The
Company hereby covenants and agrees that the Company will not, by amendment of its Articles of Incorporation, Bylaws or through
any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities,
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will
at all times in good faith carry out all of the provisions of this Note and take all action as may be required to protect the rights
of the Holder of this Note. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value
of any shares of Common Stock receivable upon conversion of this Note above the Conversion Price then in effect, (ii) shall take
all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the conversion of this Note, and (iii) shall, so long as any of the Notes are outstanding, take all
action necessary to reserve and keep available out of its authorized and unissued shares of Common Stock, solely for the purpose
of effecting the conversion of the Notes, the maximum number of shares of Common Stock as shall from time to time be necessary
to effect the conversion of the Notes then outstanding (without regard to any limitations on conversion).


 


Section 6.09        Amendments and
Waiver of Default.  The Note may not be amended without the consent of the Holder.


 


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IN WITNESS WHEREOF,
with the intent to be legally bound hereby, the Company as executed this Note as of the date first written above.


 


 


	 	RACKWISE, INC.
	 	 
	 	 
	 	By: 	 
	 	 	Name: Guy A. Archbold
Title: Chief Executive Officer and President



 



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