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


 


 


	
  By:

  	
  /s/ John Ferrari

  	
   

  
	
  Name:

  	
  John M. Ferrari

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  



 


	
  CONSTRUCTION MANAGER:

  
	
  THE WHITING-TURNER CONTRACTING
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Timothy Regan

  	
   

  
	
  Name:

  	
  Timothy J. Regan

  	
   

  
	
  Title:

  	
  Senior Vice Presdient

  	
   

  



 

















 


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 Services
shall be deemed to be part of the Contract Sum.


 


§ 5.1
COMPENSATION


§ 5.1.1 The Owner shall pay the Contractor the Contract Sum
in current funds for the Contractor’s performance of the Contract. The Contract
Sum shall be as set forth in Section 1 of Amendment No. 2, subject to
additions and deductions as provided in the Contract Documents.


 


§ 5.2  Paragraphs deleted


 


§ 5.3
CHANGES IN THE WORK


§ 5.3.1
Adjustments to the Contract Sum on account of changes in the Work may be
determined by the applicable methods listed in Section 7.3.3 of the
General Conditions.


 


§ 5.3.2
Adjustments to subcontracts awarded with the Owner’s prior written consent on
the basis of cost plus a fee shall be calculated in accordance with the terms
of those subcontracts.  The Construction
Manager hereby agrees that for changes in the Work performed by a subcontractor,
(A) the payment to the subcontractor shall be equal to (i) the actual
cost incurred in performing such changed work; (ii) a markup of 10% of
such actual cost for overhead; and (iii) fee of 5% of actual cost.  Notwithstanding the foregoing, the total
amount payable to subcontractors of every tier on account of overhead and fee
for a change to the Work shall not exceed 25%. 
In addition, the Construction Manager shall be entitled to Construction
Manager’s Fee equal to the percentage stated in Exhibit G, based on the
total amount payable to the subcontractor; provided, however, that the
Construction Manager shall not be entitled to Construction Manager’s Fee on the
first $500,000 of Change Orders.  There
shall be no reduction in Construction Manager’s Fee for deductive Change
Orders.  See Annex 2 to Exhibit G
for examples of how markups and fees are calculated.


 


§ 5.3.3
Paragraphs deleted


 


ARTICLE 6   Paragraphs
deleted


 


ARTICLE 7   CONSTRUCTION PHASE


§ 7.1
PROGRESS PAYMENTS


§ 7.1.1
Based upon Applications for Payment submitted to the Project Manager by the
Construction Manager and approved by the Owner and the Project Manager, the
Owner shall make progress payments on account of the Contract Sum to the
Construction Manager as provided below and elsewhere in the Contract Documents.


 

















 


§ 7.1.2
The period covered by each Application for Payment shall be one calendar month
ending on the last day of the month.


 


On or before the 25th
calendar day of each month (or in the event such day is a holiday or weekend
day, the preceding business day) the Owner, the Project Manager and the
Construction Manager (and the Architect and/or Fill/Finish A/E, if requested by
the Owner) shall meet to review a preliminary draft of such Application for
Payment (a “Pencil Draw”), prepared by the Construction Manager.  Within three (3) days after the meeting
described in the previous sentence, the Construction Manager shall (a) revise
the Pencil Draw in accordance with any objection or recommendations of either
Owner, or Project Manager that is consistent with the requirements for the
Contract Documents, and (b) re-submit the revised Pencil Draw to the Owner
and the Project Manager as the final Application for Payment.  Such Pencil Draw and subsequent Application
for Payment shall include a projection of the Cost of the Work through the
then-current month.


 


§ 7.1.3
Provided an Application for Payment is received by the Owner and Project
Manager not later than the last business day of a month, the Owner shall make
payment to the Construction Manager not later than the last day of the
following month. If an Application for Payment is received by the Owner and
Project Manager after the application date fixed above, payment shall be made
by the Owner not later than the next scheduled progress payment, as described
in the previous sentence.  The
Construction Manager shall make payment to its subcontractors within seven (7) business
days after receipt of payment from the Owner. If the Owner becomes aware that
any subcontractor is not being paid as required, the Owner may elect to issue
joint checks, payable to the Construction Manager and such subcontractor for
future payments due such subcontractor. 
In the event the Owner elects to issue joint checks as described above,
the Owner shall not be required to pay Construction Manager’s Fee on account of
the amount set forth in such joint check(s), and the Contract Sum shall be
reduced by amount equal to one and one half percent (1.5%) of the aggregate
amount of joint checks issued.


 


§ 7.1.4
With each Application for Payment, the Construction Manager shall submit (i) its
Waiver and Release of Liens and Claims, in the forms set forth in Exhibit H
hereto, covering all Work performed through the date of the current Application
for Payment, and conditioned only on payment; and (ii) Waivers and
Releases of Liens and Claims from each subcontractor and supplier in the forms
set forth in Exhibit H, covering all Work performed through the date of
the prior month’s Application for Payment.


 


§ 7.1.5
Each Application for Payment shall be based upon the most recent schedule of
values submitted by the Construction Manager in accordance with the Contract
Documents and approved in writing by the Owner. The schedule of values shall
allocate the entire Contract Sum among the various portions of the Work, except
that the Construction Manager’s Fee shall be shown as a separate line item. The
schedule of values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Owner and Project Manager may require. This
schedule, unless objected to by the Owner, shall be used as a basis for
reviewing the Construction Manager’s Applications for Payment.


 


§ 7.1.6
Applications for Payment shall show the percentage completion of each portion
of the Work as of the end of the period covered by the Application for Payment.


 


§ 7.1.7
Subject to other provisions of the Contract Documents, the amount of each
progress payment shall be computed as follows:


 


.1                     Take that
portion of the Contract Sum properly allocable to completed Work as determined
by multiplying the percentage completion of each portion of the Work by the
share of the Contract Sum allocated to that portion of the Work in the schedule
of values, less retainage of ten percent (10%). Pending final determination of
cost to the Owner of changes in the Work, amounts not in dispute shall be
included as provided in Section 7.3.7 of the General Conditions even
though the Contract Sum has not yet been adjusted by Change Order;


.2                     Add that
portion of the Contract Sum properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the
Work or, if 


 

















 


approved
in advance by the Owner, suitably stored off the site at a location agreed upon
in writing), less retainage of ten percent (10%);


.3                     Subtract the
aggregate of previous payments made by the Owner; and


.4                     Subtract
amounts, if any, for which the Architect has withheld or nullified a
Certificate for Payment as provided in Section 9.5 of the General
Conditions.


 


§ 7.1.8 When the Work is 50% complete, no
further retainage shall be withheld. 
Notwithstanding the foregoing, if at any time the Owner reasonably
believes that the Work is not progressing satisfactorily, the Owner retains the
right to reinstate the above-mentioned retainage in whole or in part.  Retainage withheld shall be paid as part of
the Application for Payment immediately following Substantial Completion of the
Work, less 200% of the value of punch list items and other items of incomplete
work.  The Owner and the Construction
Manager shall agree upon a mutually acceptable procedure for review and
approval of payments and retention for subcontracts in writing.  If a subcontractor has completed its portion
of the Work (including all punch list items and delivery of all items required
under the Contract Documents to close-out its subcontract) pursuant to any
given subcontract, the Construction Manager may request the Owner to disburse
the retainage being held by the Owner in respect of such Subcontractor, after
delivering to the Owner any necessary consent to such disbursement from any
sureties in form reasonably satisfactory to the Owner.  If the Owner is reasonably satisfied the
Subcontractor’s work has been completed in accordance with the Contract
Documents and the Owner has received satisfactory final waivers of liens and
claims with respect to the Subcontractor’s work, the Owner shall disburse said
retainage.  Regardless of whether the
Owner has disbursed said retainage to any Subcontractor, the warranty period
referred to in the General Conditions or the other Contract Documents shall not
begin with respect to the portion of the Work performed by such Subcontractor
until the Date of Substantial Completion of the entire Work.


 


§ 7.1.9
Except with the Owner’s prior written approval, the Construction Manager shall
not make advance payments to suppliers for materials or equipment which have
not been delivered and stored at the site, unless Owner is reasonably satisfied
that the materials or equipment have been procured and are suitably and safely
stored, insured and protected so as adequately to protect Owner’s title thereto
and/or interest therein.


 


§ 7.2
FINAL PAYMENT


§ 7.2.1
Final payment shall be made by the Owner to the Construction Manager when (1) the
Contract has been fully performed by the Construction Manager except for the
Construction Manager’s responsibility to correct nonconforming Work, as
provided in Section 12.2.2 of the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final
Application for Payment has been submitted by the Construction Manager; (3) the
Owner and the Project Manager have approved the final Application for Payment;
and (4) final waivers and releases of liens and claims from the
Construction Manager and all subcontractors and suppliers (contingent only upon
final payment) have been received by the Owner; such final payment shall be
made by the Owner not more than 30 days after the issuance of the Architect’s
final Certificate for Payment. If the aggregate of previous payments made by
the Owner exceeds the amount due the Construction Manager, the Construction
Manager shall reimburse the difference to the Owner.


 


§ 7.2.2  Paragraphs deleted


 


§ 7.2.3  Paragraphs deleted


 


§ 7.2.4  Paragraphs deleted


 


General
Conditions


 


§ 1.1.9   Paragraphs deleted


 

















 


§ 3.6
TAXES


§ 3.6.1
The Contractor shall pay sales, consumer, use and similar taxes for the Work
provided by the Contractor.  To the
extent the Contractor is required to pay sales, consumer, use and similar taxes
(other than taxes on the income of the Contractor or its Subcontractors) that
were not legally enacted as of the date of the Agreement (whether or not yet
effective or merely scheduled to go into effect), the Contractor shall be
entitled to an increase in the Contract Sum equal to the amount of such
additional taxes (without markup for overhead or profit).  The Contractor acknowledges that certain tax
exemptions are available to the Owner. 
The Contractor shall take such steps as are necessary for such tax
exemptions to be available. If the Contractor fails to take such actions and
taxes are due, such taxes shall be borne by the Contractor.


 


§ 9.2
SCHEDULE OF VALUES


§ 9.2.1
Before the first Application for Payment, the Contractor shall submit to the
Owner and the Project Manager a schedule of values allocated to various
portions of the Work, prepared in such form and supported by such data to
substantiate its accuracy as the Owner may require. This schedule, unless
objected to by the Owner or the Project Manager, shall be used only as a basis
for reviewing the Contractor’s Applications for Payment where appropriate under
the Contract Documents.  The Owner shall
have the authority to adjust the schedule of values from time to time on the
basis of modifications of subcontracts and allocations of estimates to actual
costs.  The schedule of values and each
Application for Payment shall list separately all Change Orders issued by the
Owner prior to the date of the particular Application for Payment (including as
a single line item all of the costs of such Change Order).  The schedule of values shall be prepared in
such a manner that each item of Work and each subcontracted item of Work is
shown as a single line item on AIA Documents G702/703, Application and
Certificate for Payment, and Continuation Sheet.


 


§ 9.3.6
The Contractor warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which payments have been received from the Owner shall, to the
best of the Contractor’s knowledge, information and belief, be free and clear
of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials and equipment relating to the
Work.


 


.1 
The Contractor further expressly undertakes to defend the Owner
Indemnitees, at the Contractor’ sole expense, against any actions, lawsuits or
proceedings brought against the Owner Indemnitees as a result of liens filed
against the Work, the Project site, the site of any of the Work, payments due
the Contractor or any portion of the property of any of the Owner Indemnitees
(referred to collectively as “Liens”). 
The Contractor hereby agrees to indemnify and hold the Owner Indemnitees
harmless against any damages, costs, expenses (including, without limitation,
reasonable attorneys’ fees), losses, claims and liabilities arising out of or
in connection with Liens or claims of Lien, unless such Lien is due solely to a
failure by the Owner to pay the Contractor amounts properly due and owing.  The Contractor hereby agrees that Liens filed
on account of amounts which are subject to a good faith dispute between the
Owner and the Contractor shall nevertheless be required to be bonded off by the
Contractor, but in the event the Contractor prevails on account of such claim,
the premiums associated with providing such bond shall be reimbursable pursuant
to Change Order, without markup.


 


.2             The
Contractor shall discharge all Liens within five (5) days after written
notice by the Owner, and may contest a Lien only if the Contractor furnishes
the Owner with security acceptable to the Owner or procures a lien release bond
that complies with the requirements of the lien laws of the State of Maryland
and those set forth below in this subsection .2.  The Owner shall release any payments withheld
due to a Lien or claim of Lien if the Contractor obtains security acceptable to
the Owner or a lien release bond which is: (i) issued by a surety
acceptable to the Owner, ii) in form and substance satisfactory to the Owner
and (iii) in an amount not less than one hundred twenty five percent
(125%) of such Lien.  By posting a lien
release bond or other acceptable security, however, the Contractor shall not be
relieved of any responsibilities or obligations under this Section 9.3,
including, without limitation, the duty to defend and indemnify the Owner
Indemnitees.


 

















 


.3             Notwithstanding
anything to the contrary in the Contract Document, if the Contractor fails to
post a bond or other security acceptable to the Owner in connection with any
Lien or claim of Lien, the Owner may discharge such Lien or Lien claim by
payments to the lien claimant or by such other means as the Owner, in the Owner’s
sole discretion, determines is the most economical or advantageous method of
settling the dispute.  The Contractor
shall promptly reimburse the Owner, upon demand, for any payments so made.  In such case, the Contractor shall have no
claim against the Owner relating to the appropriateness or propriety of payment
so made