PLATINUM LONG TERM GROWTH IV, LLC NEW YORK, NEW YORK 10019
Exhibit
10.46
PLATINUM
LONG TERM GROWTH IV, LLC
000 XXXX
00XX
XXXXXX, 54TH
FLOOR
NEW YORK,
NEW YORK 10019
VIA
FACSIMILE AND FIRST CLASS MAIL
Effective
May 20, 2009
Ladies
and Gentlemen:
Reference
is made to the $2,750,000 8% Senior Secured Promissory Note due March 6, 2009,
issued on or about March 6, 2007, the $150,000 8% Senior Secured Promissory Note
due March 6, 2009, issued on or about August 4, 2008, the $190,000 Senior
Secured Promissory Note due January 31, 2010, issued on or about September 29,
2008, the $59,500 Senior Secured Promissory Note due January 31, 2010, issued on
or about October 31, 2008 and the $14,941.34 8% Senior Secured Promissory Note,
issued on or about February 20, 2009 (together the "Notes") from NaturalNano,
Inc. and NaturalNano Research, Inc. (jointly and severally, the "Borrower") to
Platinum Long Term Growth IV, LLC (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 Xxxxxxxx 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 Letter
Agreement after an adequate opportunity to review and discuss the terms and
conditions and all factual 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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PLATINUM
LONG TERM GROWTH IV,
LLC
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By:
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/s/Xxxx
Xxxxxxxxx
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Name:
Xxxx Xxxxxxxxx Title:
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| Fund Manager |
Accepted
and Agreed as of this 20th day of
May, 2009
NATURALNANO,
INC.
By: /s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Acting President and CEO
NATURALNANO
RESEARCH, INC.
By: /s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Acting President and CEO
