EXHIBIT 10.44
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT (the "Amendment") to the Purchase and Sale
Agreement (the "Agreement"), dated as of July 26, 2002, is made as of this 15th
day of October, 2002, by and among Leucadia National Corporation, a New York
corporation ("Purchaser"), and The Xxxxxxxx Companies, Inc., a Delaware
corporation ("Seller"). All capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Agreement.
FOR good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. (a) The following definitions are hereby added, in alphabetical
order to Section 1.01 of the Agreement:
"Escrow Agreement" means that certain escrow agreement,
entered into as of October 15, 2002 among Purchaser, Seller, WilTel
Communications Group, Inc., a Nevada corporation, and the Escrow Agent.
"Escrow Agent" means The Bank of New York, a New York banking
institution.
(b) The definition of "Building Purchase" in Section 1.01 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"Building Purchase" means the purchase by WTC of all of the
Property for an aggregate purchase price of One Hundred Fifty Million
Dollars ($150,000,000) payable to Xxxxxxxx Headquarters Building
Company as follows: (i) the issuance of a promissory note made by WTC
and WCL, as co-issuers, and guaranteed by Reorganized Communications in
the stated face amount of Seventy-Four Million Three Hundred Sixty
Thousand Two Hundred Ninety-Five Dollars and Thirty Cents
($74,360,295.30), which amount is payable in full on December 29, 2006
and represents the original principal amount of Forty Four Million
Eight Hundred Thousand Dollars ($44,800,000) (which sum reflects a
$50,000,000 portion of the purchase price reduced by $5,200,000
relating to the certain credits as set forth in the agreements and
documents evidencing the Building Purchase) and accreted interest on
the outstanding principal commencing at the rate of 10% per annum
through December 31, 2003, and increasing each calendar year thereafter
by 2% per annum until the maturity date of December 29, 2006, and (ii)
the issuance of a promissory note made by WTC and WCL, as co-issuers,
and guaranteed by Reorganized Communications, in the amount of One
Hundred Million Dollars ($100,000,000) with interest at the rate of 7%
per annum, and principal to be amortized until maturity on the basis of
a 30-year schedule, with the entire outstanding principal balance and
accrued but unpaid interest thereon due and payable in full on the date
which is seven and one half (7 1/2) years from the date of Closing. The
payment of each promissory note referred to in clauses (i) and (ii)
above, is secured by a first lien mortgage and security interest in and
to the Property and a second lien on certain pledged collateral subject
to Permitted Encumbrances as defined in the Mortgage with Power of
Sale, Security Agreement, Assignment of Leases, Rents and Profits,
Financing Statement and Fixture Filing date as of October 15, 2002 made
by Xxxxxxxx Technology Center, LLC to Xxxxxxxx Headquarters Building
Company.
3. Closing Payment. Section 2.03 is hereby amended and restated in its entirety
to read as follows:
In consideration for the purchase by Purchaser of the Claims
and the WCG Note, on the Closing Date Purchaser shall pay to Seller (or
such persons as Seller shall direct) One Hundred Eighty Million Dollars
($180,000,000) in the aggregate (the "Purchase Price"), by depositing
the TWC Letter of Credit (as defined in the Escrow Agreement) into
escrow pursuant to the terms of the Escrow Agreement.
4. Make-Whole Provision. Section 4.11 is hereby amended by including the
following subsection (c):
(c) Notwithstanding anything to the contrary in the foregoing
Sections 4.11(a) and (1), Sections 4.11(a) and (b) shall not be
applicable, and shall have no further force and effect in connection
with, and upon the release or cancellation of, the TWC Stock
Certificate (as defined in the Escrow Agreement) pursuant to Section 5
of the Escrow Agreement.
5. Conditions to Seller's Obligations to Effect the Closing. The parties hereby
agree that:
(a) Section 5.02(d) of the Agreement is hereby amended and restated in
its entirety to read as follows:
Purchaser shall have consummated the Communications Investment
by depositing the Company Letter of Credit (as defined in the Escrow
Agreement) into escrow pursuant to the terms of the Escrow Agreement
concurrently with the Closing.
(b) Section 5.02(g) of the Agreement shall be amended and restated in
its entirety to read as follows:
Concurrently with the Closing, the agreements, instruments,
instructions and other documents relating to the Building Purchase
shall have been deposited into escrow pursuant to the terms of the
Escrow Agreement.
(c) Section 5.02(h) of the Agreement is hereby amended and restated in
its entirety to read as follows:
The TWC Settlement Order shall have become a Final Order and
all of the transactions contemplated thereby shall have been
consummated, subject to the terms and conditions set forth in the
Escrow Agreement.
6. General Provisions. This Amendment shall be deemed to be a part of the
Agreement, to the same extent as set forth therein in its entirety, and all
other terms and provisions of the Agreement shall continue in full force and
effect.
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[Signature Page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the date and year first
written above.
THE XXXXXXXX COMPANIES, INC.
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Its: Senior Vice President and Chief
Financial Officer
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
--------------------------------
Its: Vice President & Chief
Finance Officer
