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Exhbit 10.74
FIRST AMENDMENT TO
AGREEMENT WITH RESPECT TO STANDBY LETTER OF CREDIT FACILITY
THIS FIRST AMENDMENT TO AGREEMENT WITH RESPECT TO STANDBY LETTER OF
CREDIT FACILITY ("Amendment"), dated March 30, 2001 (the "Effective Date"), is
by and among XXXXXXXXX INDUSTRIES, INC., a Delaware corporation (the
"Borrower"), and each of XXXXX VENTURES, L.P., a Texas limited partnership,
XXXXXX XXXXXX, an individual residing in New York, New York, LJH, LTD., a Texas
limited partnership, and XXX X. XXXXXXX, an individual residing in Houston,
Texas (individually, a "Lender" and collectively, the "Lenders").
W I T N E S S E T H:
BACKGROUND. Borrower and the Lenders entered into that certain
Agreement with Respect to Standby Letter of Credit Facility ("Agreement") as of
December 1, 2000, and have agreed to amend the Agreement pursuant to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises herein contained, and
each intending to be legally bound hereby, the parties agree as follows:
SECTION I. AMENDED DRAW CERTIFICATE FOR LETTERS OF CREDIT. Simultaneous
with execution of this Amendment, the Lenders will cause to be delivered to the
Beneficiary a letter signed by each of the banks that have issued the Letters of
Credit which reflects an amended draw certificate for the period from the date
of this Amendment through April 30, 2001 in the form of EXHIBIT "I" attached
hereto. After April 30, 2001 the form of draw certificate shall revert back to
the form originally approved in the Agreement.
SECTION II. REFERENCES TO LJH CORPORATION. LJH, Ltd. hereby represents
and warrants to each of the other parties hereto that on August 1, 2000, LJH
Corporation converted its entity structure to a limited partnership and changed
its name in connection therewith to LJH, Ltd. Accordingly, references in the
Agreement to LJH Corporation were in error and actually meant its successor
organization, LJH, Ltd. By execution of this Amendment, LJH, Ltd. hereby agrees
to be bound by the Agreement as if it was an original signatory thereto. In
connection with the foregoing, the Borrower will promptly replace the Note
issued to LJH Corporation and all Warrants issued to LJH Corporation with
otherwise identical documents issued to LJH, Ltd.
SECTION III. MISCELLANEOUS.
3.01 DEFINITIONS. Except as otherwise set forth herein, capitalized
terms used herein and not otherwise defined shall have the meaning ascribed
thereto in the Agreement.
3.02 CONTINUED EFFECTIVENESS. Except as expressly modified by the terms
and provisions hereof, each of the terms and provisions of the Agreement are
hereby ratified and confirmed, and shall remain in full force and effect.
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3.03 GOVERNING LAW. This Agreement is to be governed by and construed
in accordance with the laws of the State of New York.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
BORROWER:
XXXXXXXXX INDUSTRIES, INC.
By:
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D. Xxxxx Xxxxxxxx, Chief Operating Officer
LENDERS:
Xxxxx Ventures, L.P.
By: Danro Corporation, Managing General Partner
By:
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Xxxxxx Xxxxxx, President
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Xxxxxx Xxxxxx
LJH, Ltd.
By: DLH Management, L.L.C., a Texas limited
liability Company, its general partner
By:
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Xxxx X. Xxxxxx, President
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Xxx X. Xxxxxxx
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