Exhibit 10.22
April 15,
2008
Silicon
Mountain Holdings, Inc.
4755 Walnut Street
Boulder, Colorado 80301
Attention: Rudolph (Tré) A. Cates III
|
|
|
|
Re: |
|
Amended and Restated Overadvance Side Letter |
Reference is hereby made to that
certain Security and Purchase Agreement dated as of September 25,
2006 by and among SILICON MOUNTAIN HOLDINGS, INC., a Colorado
corporation (“ Parent ”), SILICON MOUNTAIN
MEMORY, INCORPORATED, a Colorado corporation (“ SMM
”), VCI SYSTEMS, INC., a Colorado corporation (
“VCI” , and together with Parent and SMM, the
“ Companies ” and, each a “ Company
”) and Laurus Master Fund, Ltd. (“ Laurus
”) (as amended, modified and/or supplemented from time to
time, the “ Security Agreement ”). This Amended
and Restated Overadvance Side Letter amends and restates in its
entirety (and is given in substitution for and not in satisfaction
of) that certain Overadvance Side Letter dated as of March 14,
2008 by and among each Company and Laurus (the “ Original
Overadvance Side Letter ”). On September 28, 2007,
Laurus, together with other affiliates of Laurus appointed LV
Administrative Services, Inc. as administrative and collateral
agent for Laurus and such affiliates (the “ Agent
” and together with Laurus and certain of its affiliates, the
“ Creditors ”). Capitalized terms used but not
defined herein shall have the meanings ascribed them in the
Security Agreement. Subject to satisfaction of the Overadvance
Conditions (as defined below), Laurus is hereby notifying the
Companies of its decision to exercise the discretion granted to it
pursuant to Section 2(a)(ii) of the Security Agreement to make
Loans to the Companies during the Period (as defined below) in
excess of the Formula Amount on the date hereof (the “
Overadvance ”). Subject to satisfaction of the
Overadvance Conditions, the aggregate principal amount of the
Overadvance as of the date hereof shall be up to $1,050,000 (the
“ Initial Overadvance Amount ”). The outstanding
Overadvance shall at no time exceed the lesser of (x) the
Applicable Overadvance Amount (as defined below) and (y) the
remainder of the Capital Availability Amount less the Formula
Amount as of the date of determination (the lesser of clauses
(x) and (y) above, the “ Maximum Overadvance
Amount ”). The “ Applicable Overadvance
Amount ” shall mean on any date of determination such
amount set forth on Annex A hereto opposite the period
during which such determination is made.
In connection with making the
Overadvance, from the date of the Original Overadvance Side Letter
through and including September 25, 2009 (the “
Period ”), the Creditors hereby waive compliance with
Section 3 of the Security Agreement, but solely as such
provision relates to the immediate repayment requirement for
Overadvances. The Creditors further agree that
solely
for such Period (but not thereafter), (i) the incurrence and
existence of the Overadvance shall not trigger an Event of Default
under Section 19(a) of the Security Agreement and (ii) during
the Period, the rate of interest applicable to such Overadvances
shall be as set forth in Section 5(b)(ii) of the Security
Agreement (collectively, the “ Overadvance Rate
”). Interest shall be (i) calculated on the basis of a
360 day year and shall accrue beginning on the date hereof,
and (ii) payable monthly, in arrears, commencing on
April 1, 2008 and on the first business day of each
consecutive calendar month thereafter through and including the
expiration of the Period, whether by acceleration or otherwise. All
other terms and provisions of the Security Agreement and the
Ancillary Agreements shall remain in full force and effect. For the
avoidance of doubt, all proceeds applied by any Company in
repayment of its obligations to the Creditors hereunder and under
the Security Agreement and the Ancillary Agreements shall be first
applied as a repayment of the Overadvance unless otherwise agreed
by the Creditors. Once repaid, the Overadvance may be reborrowed
during the Period provided that the maximum amount of the
Overadvance outstanding shall not at any time exceed the Maximum
Overadvance Amount.
Each Company hereby acknowledges and
agrees that Laurus’ obligation to fund the Initia
