EXHIBIT 10.27
ACCOUNT RECEIVABLE SALE AGREEMENT
THIS SALE OF ACCOUNT RECEIVABLE AGREEMENT (this "Agreement"), dated as of
June 30, 2005, is made by and among Windswept Environmental Group, Inc., a
Delaware corporation ("WEGI") and Trade-Winds Environmental Restoration Inc., a
New York corporation, ("Trade-Winds") each with an office at 000 Xxxxxxxxxxx
Xxxxxx, Xxx Xxxxx, Xxx Xxxx 00000 and Spotless Plastics (USA), Inc., a Delaware
corporation with an office at 000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
("Spotless" or the "Assignor").
W I T N E S S E T H:
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WHEREAS, WEGI, Trade-Winds and Spotless entered into an Account Receivable
Finance Agreement dated as of February 5, 2004 (the "Finance Agreement"),
pursuant to which WEGI and Trade-Winds sold certain accounts receivable to
Spotless; and
WHEREAS, Spotless, WEGI and Trade-Winds have agreed that Spotless shall
sell an account receivable to Trade-Winds pursuant to the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is HEREBY AGREED:
1. Sale and Purchase. As of the date hereof, and subject to the terms and
conditions set forth herein, Spotless sells, assigns, delivers and transfers to
WEGI and Trade-Winds (collectively, the "Purchaser" or the "Assignee"), and the
Purchaser purchases, assumes, receives and accepts, all right, title and
interest in and to the account in the currently outstanding amount of
$189,196.82, bearing the Purchaser identification number NYC004, due from the
New York City Department of Environmental Protection (the "Account"), including,
without limitation, all of Assignor's rights, title and interest to all
agreements, instruments, invoices, and other documents evidencing, or relating
to the Account and any actions, claims, lawsuits or rights of any nature
whatsoever, whether against the debtor or any other party, arising out of or in
connection with the Account, including, without limitation, Assignor's rights to
receive any cash, securities, instruments and/or other property issued in
respect of the Account to Assignor (all of the foregoing, the "Assets").
2. Payment of the Purchase Price. On or before June 30, 2006, the Purchaser
shall pay to Spotless the amount of the purchase price of the Assets, in
immediately available funds, $189,196.82 (the "Purchase Price"). Each of WEGI
and Trade-Winds shall be jointly and severally liable for the entirety of the
Purchase Price, without any defense, counterclaim or requirement of notice, all
of which are expressly waived by the Purchaser.
3. Liabilities. The Purchaser shall assume and agree to pay, perform and
discharge when due all obligations and liabilities arising out of, in connection
with or related to the Assets from and after the date hereof, and Spotless shall
have no such obligations and liabilities.
SPOTLESS AND ITS AFFILIATES MAKE NO WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED WITH RESPECT TO THE ASSETS. IN PARTICULAR, BUT WITHOUT LIMITATION,
SPOTLESS MAKES NO REPRESENTATION OR WARRANTY AS TO THE ENFORCEABILITY OR
COLLECTIBILITY OF THE ASSET OR ANY DOCUMENTATION PERTAINING THERETO.
4. Costs and Fees. All costs and fees relating to the assignment,
registration, licensing or transfer of any of the Assets to the Purchaser under
this Agreement shall be borne by the Purchaser.
5. Representations and Warranties of the Purchaser. Each of the Purchaser
hereby represents and warrants as follows: (a) the execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate action on the part of the Purchaser; (b) this agreement constitutes
the legal, valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, subject only to laws affecting the rights of
creditors generally and limitation on equitable enforcement; (c) the obligations
of the Purchaser hereunder are not subject to any prior rights of any creditors
of the Purchaser, including without limitation any rights under the Master
Security Agreement, dated the date hereof, by and among WEGI, certain of WEGI's
subsidiaries and Laurus Master Fund, Ltd.
6. Amendment in Writing. The provisions of this Agreement may be waived,
altered, amended or supplemented, in whole or in part, only by an instrument in
writing signed by both of the parties hereto.
7. Governing Law; Jurisdiction. This Agreement shall be construed and the
obligations of the parties hereunder shall be determined in accordance with the
laws of the State of New York without reference to any conflicts of law
provisions (except for N.Y. GEN. OBLIG. LAW ss. 5-1401 and ss. 5-1402). Each
party hereto irrevocably and unconditionally consents to the jurisdiction of the
courts of the United States and of the state of New York located in the County
and State of New York in any action to enforce, interpret or construe any
provision of this Agreement.
8. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
9. Agreement Binding. All the terms of this Agreement shall be binding upon
the respective successors and assigns of the parties hereto and shall inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SPOTLESS PLASTICS (U.S.A.), INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President of Operations
WINDSWEPT ENVIRONMENTAL GROUP, INC.
By: /s/ Xxxxxxx X'Xxxxxx
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Name: Xxxxxxx X'Xxxxxx
Title: President
TRADE-WINDS ENVIRONMENTAL RESTORATION, INC.
By: /s/ Xxxxxxx X'Xxxxxx
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Name: Xxxxxxx X'Xxxxxx
Title: President
