EXHIBIT 10.19
AMENDMENT NO. 1 TO
ACCOUNT RECEIVABLE FINANCE AGREEMENT
This AMENDMENT TO THE ACCOUNT RECEIVABLE FINANCE AGREEMENT (the
"Agreement"), dated as of June 30, 2005, amends the Account Receivable Finance
Agreement dated February 5, 2004 (the "2004 Agreement"), by and among WINDSWEPT
ENVIRONMENTAL GROUP, INC., a Delaware corporation ("Windswept"), TRADE WINDS
ENVIRONMENTAL RESTORATION, INC., a Delaware corporation ("Trade Winds"; and
together with Windswept hereinafter referred to as the "Seller") each with its
principal place of business at 000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxx Xxxx 00000
and SPOTLESS PLASTICS (USA) INC. (the "Purchaser"), a Delaware corporation, with
its principal place of business at 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx 00000.
WHEREAS, pursuant to the 2004 Agreement, Seller offered certain accounts,
invoices, book debts, notes, drafts, acceptances, contracts, choses in action
and other rights to payment arising in the ordinary course of Seller's business
(each individually an "Account" and collectively, "Accounts") for sale to
Purchaser by listing such Accounts on a schedule in a form approved by Purchaser
and delivering it to Purchaser; and
WHEREAS, Purchaser purchased all of Seller's right, title and interest in
and to those Accounts set forth on Schedule 1 hereto; and
WHEREAS, Purchaser paid to Seller at the time of purchase of such Accounts
funds pursuant to the terms and conditions of the 2004 Agreement (each such
payment, an "Advance" and, collectively, the "Advances"); and
WHEREAS, the parties have agreed that Seller shall not sell and Purchaser
shall not purchase any additional Accounts pursuant to the Accounts Receivable
Agreement dated February 5, 2004; and
WHEREAS, the parties have agreed that all of the obligations of Seller
pursuant to Section 2.1(a) and 2.2 of the 2004 Agreement shall remain in full
force and effect under this amended Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
premises, covenants, representations and warranties herein contained, the
parties hereby agree as follows:
Section 1. Termination of the Agreement.
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Effective as of the date hereof, the Agreement, except as hereafter
specified, shall be terminated in its entirety, including, without limitation,
Section 1.1, and shall be of no further force or effect. Notwithstanding the
foregoing, the following provisions of the Agreement shall survive and remain in
full force and effect and shall be enforceable in accordance with their terms by
the parties to this Agreement: Sections 1.3, 1.4, 2.1(a), 2.2, 3.1, 3.2, 3.5,
3.6, 5, 6.3, 7, 8 and 10.
Section 2. Amendments.
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Section 6.3 is hereby deleted in its entirety and replaced with the
following:
"Upon indefeasible payment or repayment in full of the Accounts set forth
in Schedule 1 hereto, this Agreement shall terminate in its entirety."
Section 5.5 is hereby deleted in its entirety and replaced with the
following:
"Each of Purchaser and Seller shall cooperate with, and take such action as
may be reasonably requested by, another party in order to carry out the
provisions and purposes of this Agreement, generally, and the transactions
contemplated hereunder."
Section 10.5 is hereby deleted in its entirety and replaced with the
following:
"Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
shall be validly given, made or served, if in writing and delivered personally
of or sent by registered of or certified mail (return receipt requested),
postage prepaid, or by nationally recognized overnight courier service or by
facsimile transmission electronically confirmed during normal business hours,
(i) if to the Seller at 000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxx Xxxx 00000, Fax
No.: (000) 000-0000, Attn: Xxxxxxx X'Xxxxxx, with a copy to Davidoff Xxxxxx &
Hutcher LLP, 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxx X. Xxxxxxx, Esq., Fax No.: (000) 000-0000; and (ii) if to the
Purchaser, at 000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Fax No.: (631)
000-0000, Attn: Xxxxxx Xxxxxx, or, in each case, at such other address as may be
specified in writing to the other party.
Section 10.5 is hereby deleted in its entirety and replaced with the
following:
"Miscellaneous. (a) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning of or
interpretation of this Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of which shall constitute one and the same instrument. This
Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the parties hereto. The rights and obligations contained in this
Agreement are solely for the benefit of the parties hereto and are not intended
to benefit of or be enforceable by any other party, under the third party
beneficiary doctrine of or otherwise.
(b) 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."
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
date first above written.
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
--------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: President
SPOTLESS PLASTICS (USA) INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President of Operations
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SCHEDULE I
Amount of Open
Customer Spotless
Cust ID Name Receivable
------- ---- ----------
NYC004* NYC DEP - Coney Island 189,196.82
NAS001 County of Nassau-Baxter Pond 84,754.20
GLO003 Global Link Systems 73,714.93
*Such account is subject to the terms and conditions of the Account Receivable
Sale Agreement.
