OMNIBUS AMENDMENT
This
Omnibus Amendment (this “Amendment”),
dated
as of July 31, 2008, by and between Windswept Environmental Group, Inc., a
Delaware corporation (the “Company”),
Valens Offshore SPV I, Ltd., a Cayman Islands company (“VOFSPVI”),
PSource Structured Debt Limited, a Guernsey company (“PSource”),
Valens U.S. SPV I, LLC, a Delaware limited liability company (“VUSSPVI”
and
together with PSource and VOFSPVI, the “Holders”
and
each, a “Holder”)
and LV
Administrative Services, Inc. as agent (the “Agent”)
for
the benefit of each of the Holders, amends that certain Amended and Restated
Secured Convertible Term Note, dated as of September 29, 2006, issued by the
Company to Laurus Master Fund, Ltd., a Cayman Islands company (“Laurus”),
and
subsequently assigned in full by Laurus to VOFSPVI, PSource and VUSSPVI (as
previously, and as maybe, amended, modified, or supplemented from time to time,
the “September
2006 Convertible Note”).
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the September 2006 Convertible Note. Reference is also made
to
the Securities Purchase Agreement, dated as of June 30, 2005, by and between
the
Company and Laurus (as amended, modified or supplemented from time to time,
the
“Purchase
Agreement”
and
together with the September 2006 Convertible Note and the Related Agreements
as
defined in the Purchase Agreement, the “Loan
Documents”).
PREAMBLE
WHEREAS,
the
Company and Holders, as applicable, have agreed to make certain changes to
the
September 2006 Convertible Note as set forth herein; and
WHEREAS,
the
Company has agreed to make certain payments as set forth herein.
NOW,
THEREFORE,
in
consideration of the above, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Each
of
VOFSPVI, PSource, VUSSPVI and the Company consent to the deferral of payment
of
ninety percent (90%) of the Monthly Amount (i.e. $90,000.00) under the September
2006 Convertible Note otherwise due on August 1, 2008 (the “Deferred
Amount”)
on the
terms, and subject to the conditions, set forth herein. Notwithstanding, the
terms of the September 2006 Convertible Note, the remaining ten percent (10%)
of
the Monthly Amount (i.e. $10,000.00) due on August 1, 2008 shall be applied
to
the repayment of the Principal Amount.
2. The
Company hereby covenants and agrees that the Deferred Amount shall be payable
in
full on the earlier of (i) the date that the Company receives any payment
resulting from or pertaining to any past or current litigation involving the
Company or (ii) November 1, 2008.
3. From
and
after September 1, 2008, regularly scheduled amortizing Monthly Amounts required
pursuant to the terms of the September 2006 Convertible Note will be due and
payable per the terms and on the date set forth in the September 2006
Convertible Note.
4. In
consideration of the Holders agreement to the transactions contemplated hereby,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company hereby agrees to pay to the Holders
the aggregate sum of $30,000.00 as additional interest (“Additional
Interest”)
with
respect to the outstanding principal amount evidenced by the September 2006
Convertible Note. The
Additional Interest shall be deemed fully earned on the date hereof and shall
be
paid ratably to the Holders of the September 2006 Convertible Note ($1,758.53
to
VOFSPVI, $1,293.13 to VUSSPVI, $26,948.34 to PSource), at such time as the
Company is required to repay all of the outstanding principal balance evidenced
by the September 2006 Convertible Note, whether at the Maturity Date, upon
acceleration, prepayment or otherwise. The
parties hereby agree that the fair market value of the Additional Interest
(as
reasonably determined by the parties) received by the Holders in consideration
of the amendments herein made by the Holders hereunder is hereby designated
as
additional interest. The parties hereto further agree to file all applicable
tax
returns in accordance with such characterizations set forth above, treating
each
obligation to each Holder as a separate obligation, and shall not take a
position on any tax return or in any judicial or administrative proceeding
that
is inconsistent with such characterization. Notwithstanding the foregoing,
nothing contained in this paragraph shall, or shall be deemed to, modify or
impair in any manner whatsoever the Company’s obligations from time to time
owing to the Holders under the Loan Documents.
5. The
amendments set forth above shall be effective as of the date first above written
(the “Amendment
Effective Date”)
if
each of the Company, the Holders and the Agent shall have duly executed this
Amendment and the Company shall have delivered to the Agent its respective
counterpart to this Amendment.
6. Except
as
specifically set forth in this Amendment or as previously agreed to in writing
by the appropriate parties, there are no other amendments, modifications or
waivers to the Loan Documents, and all other forms, terms and provisions of
the
Loan Documents remain in full force and effect.
7. The
Company hereby represents and warrants to the Holders that (i) after giving
effect to this Amendment, no Event of Default (as defined in the Loan Documents)
exists on the date hereof, (ii) on the date hereof, after giving effect to
this
Amendment, all representations and warranties made by the Company in connection
with the Loan Documents, as amended, modified or supplemented continues to
be
true, correct and complete as of the first date given and (iii) on the date
hereof, after giving effect to this Amendment, all of the Company’s and its
Subsidiaries’ covenant requirements have been met.
8. This
Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and their respective successors and
permitted assigns. THIS
AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE
LAW OF THE STATE OF NEW YORK.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one instrument.
[signature
page follows]
IN
WITNESS WHEREOF,
each of
the parties hereto has executed this Amendment or has caused this Amendment
to
be executed on its behalf by a representative duly authorized, all as of the
date first above set forth.
COMPANY:
Windswept
Environmental Group, Inc.
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HOLDERS:
Valens
Offshore SPV I, Ltd.
By:
Valens Capital Management, LLC, its
investment
manager
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By:
/s/ Xxxxxxx
X’Xxxxxx
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By:
/s/ Xxxxx
Xxxxxxxxx
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||
Name:
Xxxxxxx
X’Xxxxxx
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Name:
Xxxxx
Xxxxxxxxx
|
||
Title:
President/CEO
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Title:
Authorized
Signatory
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Valens
U.S. SPV I, LLC
By:
Valens Capital Management, LLC, its
investment
manager
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||
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By: /s/ Xxxxx Xxxxxxxxx | ||
Name:
Xxxxx
Xxxxxxxxx
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||
Title:
Authorized
Signatory
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PSOURCE
STRUCTURED DEBT LIMITED
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By: /s/ Soondra Appavoo | ||
Name:
Soondra
Appavoo
|
||
Title:
Managing
Director
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AGENT:
LV
Administrative Service, Inc. as Agent
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By: /s/ Xxxxx Xxxxxxxxx | ||
Name:
Xxxxx
Xxxxxxxxx
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||
Title:
Authorized
Signatory
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AGREED
AND ACKNOWLEDGED:
TRADE-WINDS
ENVIRONMENTAL
RESTORATION
INC.
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By:
/s/ Xxxxxxx
X’Xxxxxx
|
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Name:
Xxxxxxx
X’Xxxxxx
|
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Title:
President/CEO
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NORTH
ATLANTIC LABORATORIES,
INC.
|
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By:
/s/ Xxxxxxx
X’Xxxxxx
|
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Name:
Xxxxxxx
X’Xxxxxx
|
|||
Title:
President/CEO
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ENVIRONMENTAL
RESTORATION, INC.
|
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By:
/s/ Xxxxxxx
X’Xxxxxx
|
|||
Name:
Xxxxxxx
X’Xxxxxx
|
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Title:
President/CEO
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RESTORENET,
INC.
|
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By:
/s/ Xxxxxxx
X’Xxxxxx
|
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Name:
Xxxxxxx
X’Xxxxxx
|
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Title:
President/CEO
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