Exhibit 10.5
PHOENIX ENTERPRISES LLC
000 XXXX 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
June 15, 2001
JLM Industries, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Re: Purchase Agreement
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Gentlemen:
Reference is hereby made to that certain Purchase Agreement (the
"Purchase Agreement"), dated June 7, 2001, between JLMI Industries, Inc., a
Delaware corporation (the "Company"), and the investors listed on Schedule 1
attached to the Purchase Agreement (each individual, an "Investor" and
collectively, the "Investors"). All capitalized terms used which are not
otherwise defined herein shall have the meanings given to such terms in the
Purchase Agreement.
The parties hereby agree as follows:
1. Section 6.2(d) of the Purchase Agreement shall be amended
and restated in its entirety as follows:
"(d) By the Company or Phoenix if the Closing shall not have
occurred on or prior to June 29, 2001; PROVIDED, HOWEVER, that the right
to terminate under this subsection (d) shall not be available to a party
if such party's failure to satisfy any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Closing to occur on
or prior to such date (unless such date is extended by mutual agreement of
the parties)."
2. The last sentence of Section 8.3 of the Purchase Agreement
shall be amended and restated in its entirety as follows:
"Notwithstanding the foregoing, the Investors acknowledge and agree
that the Company and Phoenix, without the consent of the Investors, may
amend or supplement this Agreement, the Registration Rights Agreement or
any other agreement in connection with the transactions contemplated
hereby, to (i) cure any ambiguity, defect or inconsistency, or (ii) make
any change that would provide any additional rights or benefits to the
Investors or that would not materially and adversely affect the legal
rights of the Investors hereunder."
3. Except as expressly set forth herein, all of the terms and
provisions of the Purchase Agreement shall remain unchanged and shall continue
to be in full force and effect.
Please confirm that the foregoing correctly sets forth our agreement
by signing and returning to Phoenix the duplicate copy of this letter enclosed
herewith.
Very truly yours,
PHOENIX ENTERPRISES LLC
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
Accepted and agreed to as of
the date first above written:
JLM INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
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