Exhibit 10.1
AMENDMENT NO. 2 TO STANDARD
FORM OF AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER
This Amendment No. 2
(“Amendment”) to Standard form of Agreement between
Owner and Construction Manager is entered into this 29th day of
May, 2009 by and between United Therapeutics Corporation
(“Owner”) and The Whiting-Turner Contracting Company
(“Construction Manager”).
WHEREAS , Owner and Construction Manager entered into a
Standard form of Agreement between Owner and Construction Manager
dated as of February 15, 2007 (together with all exhibits, the
“Contract”) pursuant to which the Construction Manager
agreed to provide certain construction services relating to
construction of a new Class A headquarters building for use as
office space and fill-finish facilities and ancillary facilities
located in Silver Spring, Maryland (the “Project”);
and
WHEREAS , pursuant to Amendment No. 1 dated as of
11/21/08, the Owner and the Construction Manager agreed upon the
Guaranteed Maximum Price and other terms and conditions associated
therewith as contemplated by Section 2.2.3 of the Agreement
portion of the Contract.
WHEREAS , Owner and Construction Manager desire to amend
the Contract to modify certain terms therein, specifically, among
other things, to convert the Guaranteed Maximum Price (as defined
in the Contract) into a Lump Sum, confirm the date of Substantial
Completion and modify the scope of Work.
NOW, THEREFORE , in consideration of the Recitals and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Conversion of Guaranteed Maximum Price into Lump
Sum
The Guaranteed Maximum Price currently in effect
under the Contact is hereby converted to the lump sum amount of
Sixty Six Million Dollars ($66,000,000.00) (the “Contract
Sum”), of which $33,361,617.00 has been previously invoiced
by the Construction Manager thru 4/30/09 by the Owner (the
“Contract Sum”). All references in the Contract to
“Guaranteed Maximum Price” or “Contract
Sum” shall hereinafter be deemed to refer to the lump sum
amount stated above, as such amount may be adjusted in the future
in accordance with the terms of the Contract Documents. The
Schedule of Values reflecting the new Contract Sum is attached
hereto as Exhibit A. Notwithstanding anything in the
Contract to the contrary, the Construction Manager shall continue
to be obligated to provide to the Owner and its accountants any and
all cost segregation data required for tax purposes.
2.
Substantial Completion Date
The date of Substantial Completion upon which
the Contract Sum stated in Section 1 and the scope of Work
stated in Section 3 are based is November 16, 2009; such
date may be adjusted in the future in accordance with the terms of
the Contract Documents. The Project Schedule reflecting this
date of Substantial Completion is attached hereto as
Exhibit B.
3.
Scope of Work
The scope of Work on which the Contract Sum set
forth in Section 1 and the date of Substantial Completion set
forth in Section 2 are based is the scope of Work as set forth
in Amendment No. 1, as modified by (a) the changes in
scope listed on Exhibit C attached hereto and (b) the
assumptions, qualifications and exclusions listed on
Exhibit D. The parties acknowledge and agree that all
time and compensation associated with the changes in scope listed
on Exhibit C have already been reflected in the Contract Sum
set forth in Section 1 and the date of Substantial Completion
set forth in Section 2, and the Construction Manager hereby
waives any additional compensation or extensions of time on account
of the items listed in Exhibit C.
4.
Modification of Certain Terms and Conditions of Agreement portion
of Contract
Attached hereto as Exhibit E are certain
provisions of the Agreement and General Conditions portions of the
Contract that are modified as a result of this
Amendment.
5.
Full Force and Effect
Except as amended hereby, the Contract shall
remain in full force and effect and unmodified.
IN WITNESS WHEREOF , the parties hereto have caused this Amendment
to be executed by their duly authorized representatives on the day
and year above written.
OWNER:
UNITED THERAPEUTICS CORPORATION
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By:
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/s/ John Ferrari
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Name:
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John M. Ferrari
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Title:
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Chief Financial Officer
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CONSTRUCTION MANAGER:
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THE WHITING-TURNER CONTRACTING
COMPANY
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By:
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/s/ Timothy Regan
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Name:
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Timothy J. Regan
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Title:
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Senior Vice Presdient
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Exhibit E
Specific Changes to
Contract
The following sections replace the corresponding
sections in the Agreement and General Conditions:
Agreement
§ 4.1.1 For the services described in Sections 2.1 and
2.2, the Construction Manager’s compensation shall be
calculated as follows:
See Exhibit G. In the event the
Contract is terminated prior to issuance of the Notice to Proceed,
the compensation set forth in Exhibit G for Preconstruction
Services shall be the total amount payable by the Owner to the
Construction Manager on account of Preconstruction Services
(excepting payment for construction services authorized in writing
prior to issuance of the Notice to Proceed). In the event the
Notice to Proceed is issued, all amounts paid for Preconstruction
Serv