Exhibit
10.1
LETTER AGREEMENT
February 18,
2009
Pervasip
Corp.
75 South
Broadway, Suite 302
White Plains,
NY 10601
Attention: CEO
Ladies and
Gentlemen:
Reference is made to (i) the
Securities Purchase Agreement dated as of May 28, 2008 between
Pervasip Corp. (the “ Company ”), LV
Administrative Services, Inc. (the “ Agent ”),
and the Purchasers from time to time party thereto, including
Valens Offshore SPV I, Ltd. (“ Valens Offshore I
”), Valens Offshore SPV II, Corp. (“ Valens Offshore
II ”) and Valens U.S. SPV I, LLC (“ Valens
US ”) (collectively, the “ Purchasers
” and together with the Agent, the “ Creditor
Parties ”) (as amended, restated, modified and/or
supplemented from time to time, the “ Purchase
Agreement ”), (ii) the Master Security Agreement dated as
of May 28, 2008 from the Company, certain Subsidiaries of the
Company in favor of the Agent (as amended, restated, modified
and/or supplemented from time to time, the “ Master
Security Agreement ”), (iii) the Stock Pledge Agreement
dated May 28, 2008 by and among the Company, certain Subsidiaries
of the Company and Agent (as amended, restated, modified and/or
supplemented from time to time, the “ Stock Pledge
Agreement ”), and (iv) the Subsidiary Guaranty dated May
28, 2008 by certain Subsidiaries in favor of the Company (as
amended, restated, modified and/or supplemented from time to time,
the “ Subsidiary Guaranty ” and together with
the Purchase Agreement, the Master Security Agreement, the Stock
Pledge Agreement, and the Notes and Related Agreements referred to
in the Purchase Agreement, the “ Existing Agreements
”). Capitalized terms used herein that are not
defined shall have the meanings given to them in the Existing
Agreements, as applicable.
The Company and the Creditor Parties have agreed
to make certain changes to the Purchase Agreement.
In consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
(a) Subject
to satisfaction of the conditions precedent set forth below, the
Purchase Agreement is hereby amended as follows:
(i) Section
1 of the Purchase Agreement is hereby deleted and replaced in its
entirety with the following:
“1.
Agreement to Sell and Purchase .
(a) Pursuant
to the terms and conditions set forth in this Agreement, on the
Closing Date (as defined in Section 3), the Company shall sell to
each Purchaser, and each Purchaser shall Purchase from the Company,
the Closing Date Term Note in the principal amount set forth
opposite such Purchaser’s name on Schedule 1 hereto
. The sale of the Closing Date Term Note on the Closing
Date shall be known as the “Closing Date
Offering.” The Closing Date Term Note will mature
on the Maturity Date (as defined in the Closing Date Term
Note).
(b) Pursuant
to the terms and conditions set forth in this Agreement and the
Related Agreements, on October 15, 2008, the Company shall sell to
Valens Offshore SPV I, Ltd. (“Valens Offshore I”), and
Valens Offshore I shall purchase from the Company, a Secured Term
Note in the aggregate principal amount of ONE MILLION ONE HUNDRED
THOUSAND DOLLARS ($1,100,000) (as amended, modified and/or
supplemented from time to time, the “Second Term
Note”). The sale of the Second Term Note shall be
known as the “Second Offering”. The Second
Term Note will mature on the Maturity Date (as defined in the
Second Term Note).
(c) Pursuant
to the terms and conditions set forth in this Agreement and the
Related Agreements, on February 18, 2009, the Company shall sell to
Valens Offshore SPV II, Corp. (“Valens Offshore II”),
and Valens Offshore II shall purchase from the Company, a Secured
Term Note in the aggregate principal amount of TWO HUNDRED
FIFTY-TWO THOUSAND DOLLARS ($252,000) (as amended, modified and/or
supplemented from time to time, the “Third Term
Note”). The sale of the Third Term Note shall be
known as the “Third Offering”. The Third
Term Note will mature on the Maturity Date (as defined in the Third
Term Note).
(d) Pursuant
to the terms and conditions set forth in this Agreement and the
Related Agreements, on February 18, 2009, the Company shall sell to
Valens U.S. SPV I, LLC (“Valens US”), and Valens US
shall purchase from the Company, a Secured Term Note in the
aggregate principal amount of THREE HUNDRED FORTY-EIGHT THOUSAND
DOLLARS ($348,000) (as amended, modified and/or supplemented from
time to time, the “Fourth Term Note”). The
sale of the Fourth Term Note shall be known as the “Fourth
Offering”. The Closing Date Offering, together
with the Second Offering, Third Offering and Fourth Offering shall
be known collectively as the “Offering”. The Fourth
Term Note will mature on the Maturity Date (as defined in the
Fourth Term Note). The Closing Date Term Note, together
with the Second Term Note, Third Term Note and Fourth Term Note (as
amended, restated, modified and/or supplemented from time to time)
are referred to collectively herein as the
“Notes”.
(ii) All
references to the term “Note” set forth in Section 3.2
and 3.3 of the Purchase Agreement shall hereafter be deemed to
refer to the Closing Date Term Note.
(b) The
Company hereby agrees to enter into a Restricted Account Side
Letter in the form attached hereto as Exhibit A (the “
February 2009 Side Letter ”).
(c) To
induce the Creditor Parties to, among other things, agree to the
amendments set forth above and for Valens Offshore II and Valens US
to provide additional financial accommodations to the Company as
evidenced by the Third Term Note and the Fourth Term Note
(collectively, the “ New Notes ”), each of the
undersigned (other than the Creditor Parties):
(i)
acknowledges, ratifies and confirms that all of the terms,
conditions, representations and covenants contained in the Existing
Agreements to which it is a party are in full force and effect and
shall remain in full force and effect after giving effect to the
execution and effectiveness of this letter agreement and all of the
instruments, documents and agreements contemplated hereby,
including without limitation, the Third Term Note, the Fourth Term
Note, and the February 20
