EXHIBIT 10.1


 


AMENDED AND RESTATED AGREEMENT


 


This Agreement (the
“Agreement”) is made as of March 10, 2014 by and among Black Diamond Financial Group LLC, a limited liability company
(“BDFG”), Navesink RACK, LLC, a Delaware limited liability corporation (“NAVRACK”), and Rackwise,
Inc., a Nevada corporation (“RACK”). BDFG, NAVRACK and RACK are hereinafter referred to singly as a “Party”
and collectively as the “Parties”. Capitalized terms not defined herein shall have the meaning given to them in the
Term Sheet referenced below.


 


WHEREAS, the
Parties agreed to the non-binding term sheet (the “Term Sheet”) dated May 2013, a copy of which was attached
as Exhibit A to the Original Agreement (as defined below), which summarized the terms of a proposed investment by NAVRACK and BDFG
in RACK;


 


WHEREAS, the
Conversion Price section of the Term Sheet and corresponding Transaction Documents (as defined in the Subscription Agreements),
including a series of Subscription Agreements (the “Subscription Agreements”) entered into by and among the
Parties during the nine months ended September 30, 2013, provided that NAVRACK and BDFG have the right to convert all of their
12% secured convertible promissory notes issued by RACK (the “Notes”), including all accrued interest thereon,
on a one-time basis at any time during their remaining term into shares of RACK common stock, $0.0001 par value per share (the
“Common Stock”), which, upon issuance, would represent 85% of RACK’s issued and outstanding shares on
a fully diluted basis;


 


WHEREAS, the
Parties believed the Conversion Price provision was ambiguous and inconsistent with their joint understandings and intentions regarding
same and in order to clarify and revise the Conversion Price provision, the Parties entered into an Agreement, dated as of August
9, 2013 (the “Original Agreement”), which also provided for the issuance of the Original Shares (as defined
below) to BDFG and NAVRAK; and


 


WHEREAS, the
Parties now wish to further amend and restate the Original Agreement to provide that in consideration of BDFG and NAVRACK agreeing
to fully convert all of their Notes as of the date of this Agreement, RACK will issue to each of BDFG and NAVRACK 1,500,000 shares
of Common Stock (the “Additional Shares”) in addition to the Original Shares.


 


NOW THEREFORE,
in consideration of the premises recited above which form part of this Agreement, the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each
of the Parties, the Parties mutually agree as follows:


 






    	 



    	 



    

 


1.            The Parties agree
that the Threshold Amount condition of the Term Sheet has been satisfied and that NAVRACK and BDFG are entitled to convert the
Notes at any time during the term thereof, on a one-time basis, on the terms provided herein. The Parties further agree that as
of August 2, 2013, the Notes, including all accrued interest due thereon, were convertible, on a not fully diluted basis, into
an aggregate number of RACK shares which, upon issuance, would have equaled 85% of the number of RACK shares issued and outstanding
had they elected to convert immediately following RACK’s August 2, 2013 1:300 reverse stock split. Immediately prior to the
reverse stock split RACK had 135,065,034 shares issued and outstanding and immediately after the reverse split had approximately
450,218 shares outstanding. Based upon the foregoing, the Notes were convertible at such time, during their remaining term, into
approximately 2,551,236 RACK shares which is approximately 85% of the sum of 450,218 and 2,551,236 (85% of 3,001,454) (on a not
fully diluted basis). The 2,551,236 number of shares (the “Original Shares”) was not exact and was an approximation
due to then undetermined rounding in the reverse split which was expected to result in a slightly higher number of shares being
issuable to NAVRACK and BDFG. NAVRACK and BDFG further agreed that each of them may convert their respective Notes, on a one-time
basis, independent of one another, into their respective 42.5% portions of the Original Shares amount (approximately 1,275,618
Original Shares each).


 


2.            The Parties hereby
further agree to clarify that irrespective of whether the Notes were convertible on a non-diluted or fully diluted basis, irrespective
of any accrued interest due thereon and irrespective of the fact that the Notes could be converted by BDFG and/or NAVRACK at any
time during their term, on the date of this Agreement both BDFG and NAVRACK hereby agree to fully convert all of their Notes in
consideration of RACK issuing to each of BDFG and NAVRACK the Additional Shares, in addition to the Original Shares. For the avoidance
of doubt, upon the execution of this Agreement, RACK shall issue to each of BDFG and NAVRACK 2,775,618 shares of Common Stock,
for an aggregate total of 5,551,236 shares, and the Notes shall be immediately canceled, void and of no further effect or existence.


 


3.             Each of BDFG
and NAVRACK (collectively, the “Lenders”) shall release and terminate any and all of their security interests
in and other liens or security interests on any property, interests or accounts, or proceeds thereof or distributions therefrom,
of RACK or any of its subsidiaries or affiliates (the “Collateral”), and in conjunction therewith, and each Lender
hereby authorizes RACK to file a UCC-3 termination statement in any and all jurisdictions in which the Collateral Agent (as defined
in the Transaction Documents) filed a UCC-1 financing statement to perfect its security interest in the Collateral.


 


4.            Each Lender and
each of its heirs, executors, administrators, predecessors, successors, assigns, affiliates, parents, subsidiaries, officers, directors,
representatives, employees, associated persons, agents, contractors, stockholders and attorneys (collectively, the “Lender
Parties”) hereby release, discharge and acquit RACK, its subsidiaries and each of their heirs, executors, administrators,
predecessors, successors, assigns, affiliates, parents, subsidiaries, officers, directors, representatives, employees, associated
persons, agents, contractors, stockholders and attorneys (collectively, the “Borrower Parties”), from all obligations
to the Lender Parties under the Transaction Documents, Term Sheet, the Original Agreement and related documents and from any and
all claims, demands, debts, accounts, contracts, liabilities, actions and causes of actions, whether in law or in equity, that
the any of the Lender Parties at any time had or has, or that they or their successors and assigns hereafter can or may have against
the Borrower Parties; provided that nothing contained in this Agreement shall be deemed to effect a release of any obligation undertaken
by any of the Parties pursuant to this Agreement.


 






    	 



    	 



    

 


5.            This Agreement
constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements,
negotiations, discussions and understandings, written or oral, among the Parties (including, without limitation, the Term Sheet,
the Subscription Agreement, the Notes, the other Transaction Documents and the Original Agreement).


 


6.             This letter
agreement shall be governed by and construed in accordance with the laws of the State of New York.


 


7.            This Agreement
shall inure to the benefit of and shall be binding on and shall be enforceable by the Parties and their respective, successors
and permitted assigns.


 


8.             This Agreement
may be executed in one or more counterparts and by the Parties in separate counterparts, each of which when executed shall be deemed
to be an original, but all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.


 


[Signature Page Follows]


 






    	 



    	 



    

 


IN WITNESS WHEREOF,
the undersigned have executed this Agreement as of the date first above written.


 


 


	 	BLACK DIAMOND FINANCIAL GROUP LLC
	 	 
	 	 
	 	By: 	/s/ Patrick Imeson
	 	Name:
Title:	Patrick Imeson
 Managing Director



 


 


	 	NAVESINK RACK, LLC
	 	 
	 	 
	 	By: 	/s/ Alan D. Goddard
	 	Name:
Title:	Alan D. Goddard
 Managing Director



 


 


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