LONGVIEW SPECIAL FINANCE INC. Trident Chambers Road Town, Tortola British Virgin Islands
Exhibit
10.48
LONGVIEW
SPECIAL FINANCE INC.
Trident
▇▇▇▇▇▇▇▇
P.O. Box
146
Road
Town, Tortola
British
Virgin Islands
VIA
FACSIMILE AND FIRST CLASS MAIL
Effective
May 20, 2009
Ladies
and Gentlemen:
Reference
is made to the $500,000 8% Senior Secured Promissory Note due March 6, 2009,
issued on or about March 6, 2007, the $20,000 8% Senior Secured Promissory Note
due March 6, 2009, issued on or about August 4, 2008, the $30,000 Senior Secured
Promissory Note due January 31, 2010, issued on or about September 29, 2008, and
the $25,500 Senior Secured Promissory Note due January 31, 2010, issued on or
about October 31, 2008 (together the "Notes") from NaturalNano, Inc. and
NaturalNano Research, Inc. (jointly and severally, the "Borrower") to Longview
Special Finance Inc. (the "Lender"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings given in the
Notes.
The
Borrower has requested that the Lender forbear from exercising its various
rights and remedies under the Notes and other related documents (collectively,
the "Loan Documents") that may otherwise be exercised by the Lender on the date
hereof, in order to provide the Borrower with additional time during which it
may resolve its current financial problems.
The
Lender is prepared to forbear from demanding payment of principal on the Notes
on the Maturity Date of the Notes, or taking any other action to collect the
principal amount of the Notes until the earlier of August 31, 2009 (unless
extended by the Lender in its discretion) or the termination of the Forbearance
Period pursuant to the terms of this Letter Agreement (such period, the
"Forbearance Period"), provided the Borrower accepts and agrees to the terms,
conditions and covenants set forth herein, and communicates such acceptance (by
delivering a signed copy of this Letter Agreement) to the Lender no later than
5:00 p.m. on May 20, 2009; provided further it is understood that ▇▇▇▇▇▇▇▇ is
obligated to make all interest payments required under the Notes during the
Forbearance Period.
Upon
execution by the Borrower, this letter shall be a binding agreement among the
respective parties hereto (referred to as the "Letter Agreement").
By its
execution, the Borrower represents, warrants and covenants as
follows:
Effective
May 20, 2009
Page
2
1. No
Duress. The Borrower has freely and voluntarily entered into
this LetterAgreement after an adequate opportunity to review and discuss the
terms and conditions and allfactual and legal matters relevant hereto with
counsel freely and independently chosen by it and this Letter Agreement is being
executed without fraud, duress, undue influence or coercion of any kind or
nature whatsoever having been exerted by or imposed upon any party.
2. Amount
Due. The Borrower does not contest the amounts outstanding under the
Notes as set forth in the Lender's books and records (the "Outstanding Amount").
The Borrower shall also be responsible for reimbursing the Lender for all costs
and expenses, including the fees and expenses of legal counsel that may be
incurred in connection with the enforcement of this Letter Agreement, which, if
incurred, shall be added to the Outstanding Amount. The Borrower acknowledges
and agrees that the Outstanding Amount, plus interest accrued thereon, shall be
due and owing upon termination of the Forbearance Period.
3. No
Defenses. The Borrower has no defenses, affirmative or otherwise, rights
of setoff, rights of recoupment, claims, counterclaims, or causes of action of
any kind or nature whatsoever against the Lender, its officers, directors,
employees, attorneys, legal representatives or affiliates (collectively, the
"Lender Group"), directly or indirectly, arising out of, based upon, or in any
manner connected with, any transaction, event, circumstance, action, failure to
act, or occurrence of any sort or type, whether known or unknown, which
occurred, existed, was taken, permitted, or began prior to the execution of this
Letter Agreement and accrued, existed, was taken, permitted or begun in
accordance with, pursuant to, or by virtue of the Notes or any of the terms or
conditions of the Loan Documents, or which directly or indirectly relate to or
arise out of or in any manner are connected with the Notes or any of the Loan
Documents; TO THE EXTENT ANY SUCH DEFENSES, AFFIRMATIVE OR OTHERWISE, RIGHTS OF
SETOFF, RIGHTS OF RECOUPMENT, CLAIMS, COUNTERCLAIMS, OR CAUSES OF ACTION EXIST,
SUCH DEFENSES, RIGHTS, CLAIMS, COUNTERCLAIMS, AND CAUSES OF ACTION ARE HEREBY
FOREVER WAIVED, DISCHARGED AND RELEASED.
4. Interest
Continues to Accrue. During the Forbearance Period, the Outstanding
Amount shall bear interest at the interest rate set forth under the Notes (8%);
it being understood that the default rate shall apply upon the occurrence of any
Event of Default (other than Existing Defaults) thereunder or upon termination
of the Forbearance Period.
5. Other
Notes. The Borrower agrees that it shall not provide any holder of the
Notes issued on or about March 6, 2007, August 5, 2008, September 29, 2008 or
October 31, 2008 (the "Other Notes") any concession or payment with respect to
such Other Notes without first offering the Lender the opportunity to receive
such payment or concession with respect to the Notes.
6. Forbearance.
During the Forbearance Period, the Lender agrees that it will not take any
further action against the Borrower or exercise or move to enforce any other
rights or remedies provided for in the Loan Documents or otherwise available to
it, at law or in equity, by virtue of the occurrence and/or continuation of any
default or Event of Default under the Notes existing on the date hereof,
including any default relating to the Borrower's failure to maintain the
effectiveness of any registration statement (the "Existing Defaults"), or take
any action against any property in which the Borrower has any
interest.
Effective
May 20, 2009
Page
3
7. Lender to Retain all
Rights. It is understood and agreed that this Letter Agreement
does not waive or evidence consent to any default or Event of Default (including
the Existing Defaults) under the Notes or the Loan Documents. The parties hereto
acknowledge and agree that the Lender (i) shall retain all rights and remedies
it may now have with respect to the Notes and the Borrower's obligations under
the Loan Documents ("Default Rights"), and (ii) shall have the right to exercise
and enforce such Default Rights upon termination of the Forbearance Period. The
parties further agree that the exercise of any Default Rights by the Lender upon
termination of the Forbearance Period shall not be affected by reason of this
Letter Agreement, and the parties hereto shall not assert as a defense thereto
the passage of time, estoppel, laches or any statute of limitations to the
extent that the exercise of any Default Rights was precluded by this Letter
Agreement.
8. Termination of Forbearance
Period. The Forbearance Period shall terminate upon the
earlier to occur of: (1) 5:00 pm (New York City Time) on August 31, 2009; (2)
the Borrower shall fail to observe, perform, or comply with any of the terms,
conditions or provisions of this Letter Agreement as and when required and/or
any other Event of Default (other than the Existing Defaults occurring prior to
the date hereof) shall occur under the Notes or any of the Loan Documents or any
other agreement between the Borrower and the Lender (or its affiliates) or any
other indebtedness issued by the Borrower to the Lender or its affiliates; (3)
any representation or warranty made herein, in any document executed and
delivered in connection herewith, or in any report, certificate, financial
statement or other instrument or document now or hereafter furnished by or on
behalf of the Borrower in connection with this Letter Agreement, shall prove to
have been false, incomplete or misleading in any material respect on the date as
of which it was made; (4) any suit preceding or other action is commenced by any
other creditor against the Company; or (5) a court of competent jurisdiction
shall enter an order for relief or take any similar action in respect of the
Borrower in an involuntary case under any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law now or hereafter in effect or a
petition for relief under any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar law shall be filed by or against the
Borrower.
Upon
termination of the Forbearance Period, should the Notes or any of the Borrower's
obligations under the Loan Documents not be satisfied in full, the Lender shall
be entitled to pursue immediately its various rights and remedies, including its
Default Rights, against the Borrower, all collateral given by the Borrower to
secure the Loan and the obligations under the Loan Documents, without regard to
notice and cure periods, all of which are hereby waived by the Borrower. Without
limiting the generality of the foregoing, upon termination of the Forbearance
Period, the Lender shall be permitted to immediately exercise its rights to
demand and collect on the Outstanding Amount.
Effective
May 20, 2009
Page 4
If the
foregoing is acceptable to you, please sign in the space provided
below.
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Sincerely,
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LONGVIEW
SPECIAL FINANCE INC.
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By:
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/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
.
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Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
Director
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Accepted
and Agreed as of this 20th day of
May, 2009
NATURALNANO,
INC.
By:/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Acting President and CEO
NATURALNANO
RESEARCH, INC.
By:/s/
▇▇▇▇▇
▇▇▇▇▇▇ .
Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title: Acting President and CEO