EXHIBIT 10.16
AMENDMENT TO PURCHASE AND SALE AGREEMENT
AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "AGREEMENT") made as
of the 19th day of October, 2001 between MSDW 745, LLC, a Delaware limited
liability company, having an address at 0000 Xxxxxxxx, Xxx Xxxx, X.X.
00000 ("SELLER") and LB 745 LLC, a Delaware limited liability company,
having an address at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000
("PURCHASER").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Purchaser and Seller entered into a Purchase and Sale Agreement
dated as of October 19, 2001(the "PSA"); and
WHEREAS, Purchaser and Seller desire to amend the PSA as set for herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, the parties hereto covenant and agree as
follows:
Section 4 of the PSA is deleted in its entirety and the following is
substituted in its place and stead:
"4. PURCHASE PRICE AND DEPOSIT.
The purchase price to be paid by Purchaser to Seller for the
Property (the "PURCHASE PRICE") is Seven Hundred Forty Eight Million
Dollars ($748,000,000). The Purchase Price shall be allocated between: (a)
Ground Leasehold - $458,852,685, (b) Building and Interior Improvements -
$153,947,315 and (c) FF&E - $135,200,000. The Purchase Price shall be
payable as follows:
(a) Simultaneously with the execution of this Agreement by
Purchaser, Purchaser is delivering directly to Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, as escrow agent ("ESCROW AGENT") by wire transfer the
amount of One Hundred Million Dollars ($100,000,000) (the "DEPOSIT"). The
Deposit shall be held in an interest bearing escrow account by Escrow
Agent in accordance with an escrow agreement between Seller, Purchaser and
Escrow Agent, executed simultaneously herewith. The Deposit shall be
delivered by Escrow Agent to Seller or Purchaser as hereinafter provided
in this Agreement and the Escrow Agreement. All references in this
Agreement to the Deposit shall mean the Deposit and all interest accrued
thereon.
(b) At the Closing, Escrow Agent shall deliver the Deposit to
Seller (it being understood that any interest on the Deposit shall not be
credited to the Purchase Price) and Purchaser shall deliver the balance of
the Purchase Price as follows:
(i) $619,500,000, subject to adjustment as provided in
ARTICLE 7 to Seller; and
(ii) $28,500,000 to Escrow Agent, or such other party
agreed to by the parties, as escrow agent, to be held and disbursed
pursuant to the Agreement as to Post Closing Obligations, attached hereto
as EXHIBIT 15 (the "POST CLOSING AGREEMENT").
(c) All monies payable by Purchaser under this Agreement,
unless otherwise specified in this Agreement, shall be paid by wire
transfer of immediately available federal funds for credit to such bank
account or accounts specified by Seller, and divided into such amounts as
may be required to consummate the transactions contemplated by this
Agreement.
As used in this Agreement, the term "BUSINESS DAY" shall mean
every day other than Saturdays, Sundays, all days observed by the federal
or New York State government as legal holidays and all days on which
commercial banks in New York State are required by law to be closed.
(d) Except as otherwise specified in Sections 6(b), 12(a)(ii),
13(a)(ii) and 20(b) of this Agreement, the Deposit shall be
non-refundable. The provisions of this Section 4(d) shall survive the
termination of this Agreement."
Except as herein modified, the PSA is in full force and effect.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the day and year first above written.
SELLER:
MSDW 745, LLC
By: MS Financing, Inc.
By: /s/ Xxx Xxxxxxxx
--------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
PURCHASER:
LB 745 LLC
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Authorized Signatory
