AMENDMENT TO AGREEMENT
OF SALE AND PURCHASE
THIS AMENDMENT TO AGREEMENT OF SALE AND PURCHASE (this "Amendment") is
between INDIANAPOLIS WEST EQUITY PARTNERS, an Ohio general partnership
("Seller"), and HOST FUNDING, INC., a Maryland corporation or its permitted
assignee ("Purchaser"), and is dated effective as of June 19, 1997.
R E C I T A L S
A. Seller and Purchaser previously entered into that certain Agreement of
Sale and Purchase (the "Agreement") dated effective as of May 5, 1997, and
relating to the sale by Seller to Purchaser of real property located in Xxxxxx
County, Indiana, and more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference for all purposes (the "Property").
B. Seller and Purchaser desire to amend the Agreement in certain respects
as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree
as follows:
1. Section 3.1(b) of the Agreement is hereby amended by the deletion of
the last sentence thereof in its entirety and, in substitution therefor, the
following sentence added:
Notwithstanding the foregoing, Purchaser agrees that Seller may
distribute the Host Funding Stock to Seller's partners and to Seller's
Broker (and Seller's Broker may distribute same to its participating
brokers) without requirement of legal opinion; provided, however, that (i)
each recipient thereof shall have executed and delivered to Seller and
Purchaser an Investment Letter Agreement with respect thereto and (ii)
Purchaser shall determine within its sole discretion that such transfer
will not disqualify Purchaser as a Real Estate Investment Trust under the
Internal Revenue Code of 1986, as amended.
2. The Agreement is hereby amended by the deletion therefrom of Section
3.2(a) in its entirety and, in substitution therefor, the following Section
3.2(a) added:
Within three (3) business days following the mutual execution of this
Agreement by Seller and Purchaser, Purchaser shall initially deposit with
the Title Company the sum of EIGHT THOUSAND TWO HUNDRED TWENTY-FIVE AND
NO/100 DOLLARS ($8,225.00) (the "Initial Deposit"), which Initial Deposit
shall be increased to THIRTY-TWO THOUSAND NINE HUNDRED AND NO/100 DOLLARS
($32,900.00) in total value (the "Final Deposit", and, together with the
Initial Deposit, the "Deposit") on or before June 25, 1997, said Final
Deposit to be made by Purchaser depositing with the Title Company the
number of shares of the Class A Common Stock of Host Funding, Inc. having
an aggregate value equal to TWENTY-FOUR THOUSAND SIX HUNDRED SEVENTY-FIVE
AND NO/100 ($24,675.00).
3. Section 3.2(b) of the Agreement is hereby amended by the deletion of
the last sentence thereof in its entirety and, in substitution therefor, the
following section added:
At the Closing, the cash portion of the Deposit shall be paid and applied
against the Cash Portion of the Purchase Price, and the stock portion of
the Deposit shall be applied and used as a part of the Host Funding Stock.
4. The Agreement is hereby amended by the deletion therefrom of Section
6.1, except the last two (2) sentences thereof; and, provided, the Deposit will
be considered non-refundable, subject however, to the conditions and/or
provisions set forth in Paragraphs 8, 9 and 10 of this Amendment, the conditions
and/or provisions set forth in Sections 5.3(a), 5.3(b), 5.3(d), 9.1(e), 9.1(f),
9.1(g), 9.1(h), Article 14 and Article 17 of the Agreement, and so long as
Seller is not in default of its obligations or in breach of its representations
and warranties under the Agreement.
5. Section 7.4 of the Agreement is hereby amended to provide that only a
portion of the Host Funding Stock equal to the number of shares of Host Funding
Stock having an aggregate value equal to ONE HUNDRED SIXTY THOUSAND NINE HUNDRED
AND NO/100 ($160,900.00) (as determined by the Host Funding Stock Fair Market
Value) shall be held back in trust for Purchaser by Seller for a period of one
(1) year after the Closing.
6. Section 11.1 of the Agreement is hereby amended to provide that the
transaction contemplated by the Agreement will be closed on or before August 28,
1997.
7. The Agreement is hereby amended by the deletion therefrom of Section
12.1(n) in its entirety and, in substitution therefor, the following Section
12.1(n) added:
(n) An Investment Letter from each recipient of Host Funding Stock on the
Closing Date, including, without limitation, an Investment Letter from
Seller's Broker (or any of its applicable participating brokers).
8. The Agreement is hereby amended by the deletion therefrom of Section
19.1(l) in its entirety and, in substitution therefor, the following Section
19.1(l) added:
(l) Further Conditions to Closing. The obligations of Seller and
Purchaser to close the Agreement are conditioned upon the
simultaneous closings of the Auburn CHI Contract and the Findlay
Contract on or before July 28, 1987, and neither party shall be
obligated to close the purchase of the Property pursuant to this
Agreement if the
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closings of the Auburn CHI Contract and the Xxxxxxx XXX Contract do
not simultaneously occur on or before July 28, 1997.
9. The Agreement is hereby amended by the addition thereto of Section
19.3 as follows:
Notwithstanding anything contained in this Amendment or the
Agreement to the contrary, Purchaser's obligation to close hereunder
shall be subject to Purchaser obtaining financing to close the
transaction contemplated hereby on or before July 28, 1997, such
financing to be acceptable to Purchaser in its sole discretion, and
in the event such financing is not obtained on or before July 28,
1997, Purchaser may terminate the Agreement, and in such event, the
Deposit shall be returned to Purchaser by the Title Company, and the
parties hereto shall thereafter have no further obligations one to
the other hereunder, except as to Purchaser's obligations to return
due diligence materials pursuant to Section 5.4 hereof, and except
as to Purchaser's indemnification liabilities set forth in Section
6.1 and 19.1(d) hereof.
10. The Agreement is hereby amended by the addition thereto of Section
19.4 as follows:
Notwithstanding anything contained in this Amendment or the
Agreement to the contrary, if Seller has not, on or before July 28,
1997, received the approval of the transaction contemplated by this
Agreement from at least fifty-one percent (51%) of the partners of
Seller (or such larger percentage, if so required) entitled to vote
to approve the transaction contemplated hereby, either Seller or
Purchaser may terminate the Agreement, and, in such event, the
Deposit shall be returned to Purchaser by the Title Company, and the
parties hereto shall thereafter have no further obligations one to
the other hereunder, except as to Purchaser's obligations to return
to Seller due diligence materials pursuant to Section 5.4 hereof,
and except as to Purchaser's indemnification liabilities set forth
in Section 6.1 and 19.1(d) hereof.
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11. Except as expressly amended herein, the Agreement remains unchanged,
and the valid and binding obligation of Seller and Purchaser. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned thereto
in the Agreement. This Amendment shall be effective upon execution by facsimile
transmission by both parties.
SELLER:
INDIANAPOLIS WEST EQUITY PARTNERS,
an Ohio general partnership
By: Investment Resources Capital Corp., an Ohio
corporation, Managing Partner
By:
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Name:
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Title:
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PURCHASER:
HOST FUNDING, INC., a Maryland corporation
By:
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Xxxxxxx X. XxXxxxx, President
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