Exhibit 10.9
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CIT Commercial Services T: 212 382-7000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
CIT [GRAPHIC OMITTED] May 13, 2003
WESTWATER INDUSTRIES, LLC
0 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Financing Agreement between us dated January 24, 2002,
together with any and all amendments, supplements, documents and instruments
executed in conjunction therewith (herein the "Financing Agreement").
Capitalized terms used herein and defined in the Financing Agreement shall have
the meanings specified therein unless otherwise specifically defined herein.
You have advised us you are, or may be, in violation of the covenant set forth
in Section IV, Paragraph 4.13 of the Financing Agreement for the fiscal period
ending December 31, 2002 by declaring and paying dividends in excess of
$300,000.
This letter is to confirm our agreement that, solely with respect to said fiscal
period the foregoing violation and/or breach of the Financing Agreement shall
not be deemed to be Default and/or Event of Default under the Financing
Agreement. On and after the date hereof you shall be in compliance with all of
the terms and provisions of the Financing Agreement (including, without
limitation, the financial covenants referred to above) as amended hereby.
In addition, effective immediately, Section IV, Paragraph 4.13 of the Financing
Agreement shall be, and hereby is, deleted in its entirety and replaced by the
following:
"4.13 You shall not make any distribution of any kind on, or purchase,
acquire, redeem or retire, any of your capital stock or equity interest, of
any class whatsoever, whether now or hereafter outstanding, except that (a)
you and your affiliates, Xxxxxxxxxx/Lansing Company LLC and Levcor
International, Inc., may, on an aggregate basis, declare and pay dividends
in an amount not to exceed $300,000 in the aggregate during any fiscal
year, and (b) you may make loans, in the ordinary course of your business
and subsequent to the date of this Agreement, to your affiliate Levcor
International, Inc., in an amount not to exceed $1,000,000 in the aggregate
at any time outstanding, provided further that, you hereby agree that any
notes which may be issued to you therefor are hereby pledged to us as
collateral security for your Obligations hereunder, and provided further
that in any such instance, prior to making any such dividend or loan no
Default or Event of Default has occurred hereunder or will arise after
giving effect thereto.
In consideration of the preparation of this agreement by our in-house legal
department you agree to pay us a Documentation Fee of $135.00. Such fee shall be
due and payable in full on the date hereof and may, at our option, be charged to
your revolving loan account on the due date thereof. You further agree to pay
all Out-of-Pocket Expenses incurred in connection with this Waiver and Amendment
Agreement and the transactions contemplated hereby, all of which may (at our
option) be charged to your revolving loan account.
Except to the extent set forth herein, no other waiver of, or change in any of
the terms, provisions or conditions of the Financing Agreement is intended or
implied. This agreement shall not constitute a waiver of any other existing
Defaults or Events of Default under the Financing Agreement (whether or not we
have knowledge thereof), and shall not constitute a waiver of any future
Defaults or Events of Default whatsoever.
If the foregoing is in accordance with your understanding of our agreement,
kindly so indicate by signing and returning the enclosed copy of this letter. In
addition, we have asked Levcor International, Inc., Button Fashion, BV,
Westwater Industries, LLC and Xxxxxx Xxxxxxxx (the "Guarantors") to sign below
to confirm that the foregoing waiver shall not affect, modify or diminish the
Guarantors obligations under any instruments of Guaranty and/or any related
pledge or security agreements executed in our favor.
Very truly yours,
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ XXXXXXX XXXXXXXXXXX
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Title: Vice President
Read and Agreed to:
WESTWATER INDUSTRIES, LLC
By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
Confirmed:
XXXXXXXXXX/LANSING COMPANY LLC
By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
LEVCOR INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman, Pres., CEO
BUTTON FASHIONS, BV
By: /s/ XXXXXX X. XXXXXXXX
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Title: Chairman
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx, an individual
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