FIRST AMENDMENT TO ASSETS PURCHASE AGREEMENT
Exhibit 10.1
FIRST
AMENDMENT
TO
THIS
IS A FIRST AMENDMENT dated August 31st, 2007 to an ASSETS PURCHASE
AGREEMENT dated as of the 17th day of April, 2007 by and among:
HOST
AMERICA CORPORATE DINING,
INC.
a
Connecticut corporation
with
a place of business
at
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("Buyer")
and
HOST
AMERICA
CORPORATION
a Colorado
corporation
with
a place of business
at
▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Seller")
and
▇▇▇▇▇▇▇
▇▇▇▇▇
of
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”)
WHEREAS,
on the 17th day of April,
2007,
the parties hereto entered into the Assets Purchase Agreement described above
(the “Original Agreement”); and
WHEREAS,
the parties wish to amend the
Original Agreement to provide that certain sums out of the Purchase Price shall
be held in escrow, and to make other technical corrections, as more particularly
described herein (capitalized terms used herein shall have the meanings set
forth in the Original Agreement unless otherwise specifically defined
herein);
NOW,
THEREFORE, for One Dollar ($1.00) and other good and valuable considerations,
the receipt of which is hereby acknowledged by the parties hereto, the parties
do hereby agree as follows:
1
A. Amendment
to the Original Agreement.
1. Paragraph
2 of the Original Agreement is hereby amended by the addition of an additional
subsection (d) as follows:
(d) Escrow. Out
of the Purchase Price the sum of $196,097 (the “Escrow”) is being paid to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. (“Escrow Agent”) to be held in escrow for a period of 120
calendar days (the “Escrow Period”) after the Closing Date. The
purpose of the Escrow is to allow the determination by Pitney ▇▇▇▇▇ Corporation
(“PB”) as to whether or not it will terminate one or more of the Purchased
Contracts referred to on Schedule 2(d) attached hereto (each a “PB
Contract”). Provided the Business is operated by the Buyer after the
Closing in a manner consistent with the operation of the Business by Seller
prior to the Closing, in the event PB provides written notice of termination
(a
“Termination Notice”) to Buyer within the Escrow Period with respect to any one
or more PB Contracts, the amount of the Adjustment shown on Schedule 2(d)
with respect to the PB Contracts so terminated shall be paid by Escrow Agent
to
Buyer at the conclusion of the Escrow Period. Any sums not so paid
and remaining in the Escrow shall be paid by Escrow Agent to Seller at the
conclusion of the Escrow Period. In the event Buyer shall receive
such a Termination Notice from PB, and as a condition precedent to any
distribution of the Escrow by Escrow Agent to Buyer, Buyer shall, within two
(2)
business days of receipt, provide an exact copy of such Termination Notice
to
Seller. Seller may, but shall not be obligated to, contact the
responsible person at PB to determine the cause for termination and whether
such
termination is final. In the event such termination is rescinded by
PB prior to the conclusion of the Escrow Period, such Termination Notice shall
be deemed never to have been given for purposes of this paragraph.
2. Section
3(a) of the Original Agreement is hereby deleted and the following is hereby
inserted in its place and stead:
(a) Deliveries
by Buyer at the Closing:
1. The
Purchase Price in U.S. Dollars, less the Escrow, wired to the Seller in
accordance with the Seller’s instructions.
2. The
Escrow is U.S. Dollars wired to the Escrow Agent in accordance with the Escrow
Agent’s instructions.
3. A
Good Standing Certificate of the Buyer.
4. A
Certificate of the Buyer, dated as of the Closing Date, certifying in such
detail as Seller may reasonably request to the fulfillment of the conditions
set
forth in Section 9.
3. Schedule
5 is hereby amended by the substitution of Schedule 5 attached hereto for
Schedule 5 attached to the Original Agreement.
2
B. Ratification
of Agreement. Each party hereto hereby restates each and every
representation, warranty and covenant contained in the Original Agreement as
though made on and as of the date hereof and as though each such representation,
warranty and covenant were fully set forth herein, but with such changes thereto
as relate to any particular date or time and such other changes as shall have
occurred in the ordinary course of business which shall not have constituted
a
default under the Original Agreement. In extension of the foregoing,
the parties hereto each hereby ratifies and confirms the Original Agreement
as
being its valid and binding obligation, enforceable against it in accordance
with all of its terms as amended hereby. In addition, the parties
hereto each hereby confirms that it has no defenses to the performance of any
or
all of its obligations under the Original Agreement as amended
hereby.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date
first above written.
BUYER
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name:
Title:
SELLER
HOST
AMERICA
CORPORATION
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title:
CEO
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
3
Schedule
2(d)
Pitney
▇▇▇▇▇ Contracts
Unit
Name/Manager Adjustment
Address
Pitney
▇▇▇▇▇
27
Waterview
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $41,399
Pitney
▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $30,457
Pitney
▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇ $5,908
Pitney
▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $25,832
Pitney
▇▇▇▇▇ ▇▇▇▇. ▇▇
▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇ $10,131
PB
Cafeteria ▇▇▇▇▇ Place
▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $20,397
Host
America Cafeteria
c/o
Pitney ▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $4,686
PB
World HQ
Host
America Cafeteria
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ $57,287
4
Schedule
5
None
other than those listed on
Schedules 1(d) and 1(f).
5