OMNIBUS AMENDMENT
EXHIBIT
10.1
OMNIBUS
AMENDMENT
This
Omnibus Amendment (this “Amendment”),
dated
as of September 2, 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 and Holders, as applicable, agree that since the issuance of
the
September 2006 Convertible Note, the Company is past due on the following:
(i)
the principal portion of certain Monthly Amounts occurring prior to the
Amendment Effective Date (the aggregate of all such unpaid principal, the
“Pastdue
Principal”),
and
(ii) certain regularly scheduled payments of interest on the Principal Amount
(the aggregate of all such unpaid interest, the “Pastdue
Interest”,
and
together with the Pastdue Principal, “Pastdue
Amounts”);
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 the
Monthly
Amount (i.e. $100,000.00) under the September 2006 Convertible Note otherwise
due on September 2, 2008 (the “Deferred
Amount”)
on the
terms, and subject to the conditions, set forth herein.
2. The
Company hereby covenants and agrees that the Deferred Amount and the Pastdue
Amounts equaling $19,041.83 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 October 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 $35,000.00 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 ($5,179.62
to
VOFSPVI, $1,365.43 to VUSSPVI, $28,454.96 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
Company hereby further consents and agrees to provide the Agent, no later
than
September 15, 2008, with written documentation indicating the hiring of an
advisor to help the Company pursue strategic alternatives, including but
not
limited to, a potential sale of the Company.
6. 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.
7. 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.
8. 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.
2
9. 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]
3
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.
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COMPANY:
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HOLDERS:
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|||
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Windswept
Environmental Group, Inc.
|
Valens
Offshore SPV I, Ltd.
By:
Valens Capital Management, LLC,
its
investment manager
|
|||
|
By:
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/s/ Xxxxxxx X’Xxxxxx
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By:
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/s/ Xxxxx Xxxxxxxxx
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|
|
Name:
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Xxxxxxx X’Xxxxxx
|
Name:
|
Xxxxx Xxxxxxxxx
|
|
|
Title:
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President
|
Title:
|
Authorized Signatory
|
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|
Valens
U.S. SPV I, LLC
By:
Valens Capital Management, LLC,
its
investment manager
|
|
|
By:
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/s/ Xxxxx Xxxxxxxxx
|
|
Name:
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Xxxxx Xxxxxxxxx
|
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Title:
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Authorized Signatory
|
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PSOURCE
STRUCTURED DEBT LIMITED
|
|
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By:
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/s/ Soondra Appavoo
|
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Name:
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Soondra Appavoo
|
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Title:
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Managing Director, PSource Capital
Limited,
its Investment Consultant
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| AGENT: | |
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LV
Administrative Service, Inc. as Agent
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|
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By:
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/s/ Xxxxx Xxxxxxxxx
|
|
Name:
|
Xxxxx Xxxxxxxxx
|
|
Title:
|
Authorized Signatory
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4
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AGREED
AND ACKNOWLEDGED:
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|
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TRADE-WINDS
ENVIRONMENTAL
RESTORATION
INC.
|
|
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By:
|
/s/ Xxxxxxx X’Xxxxxx
|
|
Name:
|
Xxxxxxx X’Xxxxxx
|
|
Title:
|
President
|
|
NORTH
ATLANTIC LABORATORIES, INC.
|
|
|
By:
|
/s/ Xxxxxxx X’Xxxxxx
|
|
Name:
|
Xxxxxxx X’Xxxxxx
|
|
Title:
|
President
|
|
ENVIRONMENTAL
RESTORATION, INC.
|
|
|
By:
|
/s/ Xxxxxxx X’Xxxxxx
|
|
Name:
|
Xxxxxxx X’Xxxxxx
|
|
Title:
|
President
|
|
RESTORENET,
INC.
|
|
|
By:
|
/s/ Xxxxxxx X’Xxxxxx
|
|
Name:
|
Xxxxxxx X’Xxxxxx
|
|
Title:
|
President
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