EXHIBIT 2.3
AMENDMENT NO. 1 TO
JOINT VENTURE PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO JOINT VENTURE PURCHASE AGREEMENT (this "Amendment")
dated as of November ___, 2005 amends that certain Joint Venture Purchase
Agreement dated as of November 9, 2005 (the "Agreement"), by and among Arlington
Hospitality Development, Inc., an Illinois corporation ("AHD"), Arlington Inns
of America, Inc., a Delaware corporation ("AIA" and together with AHD, the
"Sellers"), SJB Equities, Inc., an Ohio corporation ("SJBE"), SJB Development,
Inc., an Ohio corporation ("SJBD"), and SJB Properties, Inc., an Ohio
corporation ("SJBP" and together with SJBE and SJBD, the "Buyers").
WHEREAS, the Parties desire to enter into this Amendment so as to make
certain modifications to the Agreement, as set forth below.
WHEREAS, SECTION 9.5 of the Agreement permits the Sellers and the Buyers to
amend the Agreement only by a written instrument executed and delivered by the
Sellers and the Buyers.
NOW, THEREFORE, for good and valuable consideration and in consideration of
the respective representations, warranties, covenants and agreements set forth
in the Agreement, the Parties hereby agree as follows:
ARTICLE I
AMENDMENT
Section 1.1 Purchase Price. SECTION 3.2 of the Agreement is hereby amended
and replaced in its entirety, with the following corresponding sections:
(a) Subject to SECTION 3.2(B) below, on the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Buyers will pay and
deliver to the Sellers the sum of One Hundred Fifty Thousand Dollars
($150,000.00) in cash by wire transfer of immediately available funds to an
account or accounts designated by the Sellers (the "Purchase Price").
(b) Notwithstanding SECTION 3.2(A) above, the Purchase Price shall be
increased to an amount equal to Two Hundred Fifty Thousand Dollars ($250,000.00)
if, at or prior to Closing, Sellers provide to Buyers evidence that the economic
terms of the Cendant Franchise Agreements will be unchanged and unaffected by
virtue of this Agreement and the transactions contemplated hereby (including,
the sale and purchase of the membership interests in Maumee, Rickenbacker,
Airpointe, and Weirton); provided that such evidence, in the form of a final
order of the Bankruptcy Court or other court of competent jurisdiction or an
amendment, modification or supplement to the Cendant Franchise Agreements, or
otherwise, must be acceptable to the Buyers in their reasonable discretion.
Section 1.2. Break-Up Fee. SECTION 8.3(A) of the Agreement is hereby
amended and replaced in its entirety, with the following corresponding section:
(a) In the event (i) this Agreement is terminated by the Sellers at a
time when the Buyers are not in breach of this Agreement and (ii) the Sellers
within one year thereafter
consummate an Alternative Transaction with an unaffiliated third party, the
Sellers shall reimburse the Buyers an amount equal to Buyers' actual, documented
out-of-pocket expenses incurred in connection with the preparation of this
Agreement and participation in the auction and sale hearing up to the sum of
Thirty Thousand Dollars ($30,000.00) (the "Break-Up Fee").
ARTICLE II
MISCELLANEOUS
Section 2.1 Definitions. Capitalized terms used but not otherwise defined
herein will have the meanings ascribed to them in the Agreement.
Section 2.2 No Further Amendments. Except as expressly amended hereby, the
provisions of the Agreement are and will remain unmodified and in full force and
effect. Each reference to "hereof," "herein," "hereunder," "hereby" and "this
Agreement" will hereafter refer to the Agreement as amended by this Amendment.
Notwithstanding the foregoing, unless the context requires otherwise, references
in the Agreement to "the date hereof," "the date of this Agreement" or similar
references will continue to refer to November 9, 2005.
Section 2.3 Counterparts. This Amendment may be executed in two or more
counterparts, each of which will be deemed an original, but all such
counterparts taken together will constitute one and the same Agreement.
Section 2.4 Governing Law Section. THIS AMENDMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING
EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF ILLINOIS TO BE APPLIED.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement on the date first written above.
THE SELLERS:
ARLINGTON HOSPITALITY DEVELOPMENT, INC.
By: /s/ Stephen K. Miller
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Name: Stephen K. Miller
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Title: Acting President and CEO
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ARLINGTON INNS OF AMERICA, INC.
By: /s/ Stephen K. Miller
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Name: Stephen K. Miller
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Title: Acting President and CEO
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THE BUYERS:
SJB EQUITIES, INC.
By: /s/ Jack A. Bortle
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Jack A. Bortle
President
SJB DEVELOPMENT, INC.
By: /s/ Jack A. Bortle
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Jack A. Bortle
President
SJB PROPERTIES, INC.
By: /s/ Jack A. Bortle
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Jack A. Bortle
President