FOURTH AMENDMENT TO PURCHASE AGREEMENT
Execution
Copy
FOURTH AMENDMENT TO PURCHASE
AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE
AGREEMENT (the "Amendment")
is made as of December 3, 2008, by and between (i) DTC PARTNERS, LLC, a Virginia
limited liability company (“Seller”),
and (ii) NATIONAL RURAL
UTILITIES COOPERATIVE FINANCE CORPORATION, a District of Columbia
cooperative association (“Purchaser”).
RECITALS:
A. Seller
and Purchaser entered into that certain Purchase Agreement dated May 2, 2008
(the “Original Agreement”), as amended by that certain First Amendment to
Purchase Agreement dated June 30, 2008, as further amended by that certain
Second Amendment to Purchase Agreement dated July 29, 2008, and as further
amended by a Third Amendment to Purchase Agreement dated August 25, 2008 (the
“Third
Amendment”, and collectively, the “Purchase
Agreement”), by which Seller agreed to sell and Purchaser agreed to
purchase either the Option 1 Parcel (as defined in the Agreement) or the Option
2 Parcel (as defined in the Agreement), constituting a part of approximately
189.51 acres of unimproved land owned by Seller located near the intersection of
▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ comprising a portion of the
"Dulles Town Center Project" and known as Tax Map 80-102A (GPIN No.
###-##-####), all as more particularly described in the Agreement.
B. Seller
and Purchaser desire to amend the Agreement to reflect their agreement modifying
the terms of and the corresponding form of the Repurchase Option Agreement,
among other things, as more fully set forth in this Amendment.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual rights and obligations hereunder,
Seller and Purchaser hereby agree as follows:
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1.
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Purchase
Agreement. The parties agree that the Purchase
Agreement is in full force and effect, unamended except as expressly set
forth in this Amendment. All capitalized terms used in, and not
otherwise defined in, this Amendment shall have the meanings given them in
the Purchase Agreement.
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2.
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Repurchase Option
Agreement. Seller and Purchaser agree that the
Repurchase Option Agreement shall be substantially in the form of the
Repurchase Option Agreement attached to this Amendment, (the “Repurchase
Option Agreement”) and that this form shall supersede the
Repurchase Option Agreement attached as Exhibit D to the Original
Agreement.
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3.
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Preparation of
Building Plans. The
timeframes for (i) the preparation of Building Plans in Section 8(f) of
the Purchase Agreement; (ii) the filing for the Building Permit
in
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Section 8(h) of the Purchase Agreement and (iii)
for the issuance of the Notice to Proceed for the construction of the
office building in Section 10(b) are hereby
deleted.
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4.
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Construction
Covenant. If Seller timely delivers the Second Exercise
Notice pursuant to Section 4(a) of the Repurchase Option Agreement and if
Purchaser nullifies Seller’s exercise of the Second Option by causing the
Construction Condition to be satisfied, as permitted by Section 4(b) of
the Repurchase Option Agreement, Purchaser covenants and agrees with
Seller that Purchaser shall prosecute to substantial completion (as
defined below) the work of constructing the Century Boulevard Extension
(as defined in the Purchase Agreement) and constructing an office building
containing at least 120,000 square feet of gross floor area on the
Property (as defined in the Purchase Agreement) in good faith, with
diligence and continuity, subject to delays incurred by Purchaser that
have the effect of delaying the performance of the construction work
(other than an obligation to pay a sum of money), but only to the extent
that such delays are caused by Force Majeure Events. For
purposes of this Amendment, the term “Force
Majeure Event” means any of the following events, regardless of
where they occur or their duration: acts of nature (including
hurricanes, typhoons, tornadoes, cyclones, other severe storms, winds,
lightning, floods, earthquakes, volcanic eruptions, fires, explosions,
disease, or epidemics); fires and explosions caused wholly or in part by
human agency; acts of war or armed conflict; riots or other civil
commotion; terrorism (including hijacking, sabotage, chemical or
biological events, nuclear events, disease-related events, bombing,
murder, assault and kidnapping), or the threat thereof; strikes or similar
labor disturbances; embargoes or blockades; shortage of critical materials
or supplies; action or inaction of governmental authorities which have an
impact upon the performance of the construction work (including the
revocation or refusal to grant licenses or permits, where such revocation
or refusal is not due to Purchaser’s actions or inaction); and any other
event beyond Purchaser’s reasonable control, excluding, however, general
economic and/or market conditions not caused by any of the events
described above. All capitalized terms used in this Section
that are not otherwise defined in this Section shall have the meanings
assigned to those terms in the Repurchase Option
Agreement. Purchaser’s obligations under this Section shall
survive the Closing under the Purchase Agreement and the termination of
the Repurchase Option Agreement. Substantial completion of the Century
Boulevard Extension means the road is open to traffic and any associated
landscaping is installed. Substantial completion of the office
building means the exterior of the building is completed and all parking
areas, travelways and landscaping has been installed, but does not require
the completion of interior
build-out.
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5.
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Joinder of
Mortgagee. Paragraph 4 of the Third Amendment to
Purchase Agreement dated August 25, 2008, shall not apply if the Wachovia
loan secured by the deed of trust encumbering the Overall Property is paid
off and released in connection with the Closing under the Purchase
Agreement.
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6.
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Ratification. Except
as specifically modified herein, all terms and conditions of the Purchase
Agreement are hereby ratified by the parties hereto and shall remain in
full force and effect. In the event that any terms of this
Amendment shall conflict with the terms of the Purchase Agreement, the
terms of this Amendment shall prevail. All references herein to
the “Purchase Agreement” shall mean the Purchase Agreement as amended by
this Amendment. This Amendment may be executed in counterparts
and/or with counterpart signature pages, all of which together shall
constitute a single agreement.
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IN WITNESS WHEREOF, the
undersigned parties have executed this Amendment as of the day and year first
above stated.
SELLER
DTC
PARTNERS, LLC
By:
▇▇▇▇▇▇ Enterprises, LLC, its
Authorized
Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
Date of
Signing: December 4, 2008
PURCHASER
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice
President
Date of
Signing: December 3, 2008
-3-
EXHIBIT
[Form of
Repurchase Option Agreement]
-4-
DTC
Draft 12/2/2008(version 4)
REPURCHASE
OPTION AGREEMENT
THIS AGREEMENT is made and entered into
as of December ____, 2008 (the “Effective
Date”) between (i) NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (“CFC”), a
District of Columbia cooperative association, and (ii) DTC PARTNERS, LLC (“DTC”), a
Virginia limited liability company.
R
E C I T A L S
A. Contemporaneously
herewith CFC has purchased from DTC that certain parcel of land (the “CFC
Tract”) described in Exhibit A attached
hereto, pursuant to a Purchase Agreement dated as of May 2, 2008, as amended,
between DTC, as Seller, and CFC, as Purchaser (the “Purchase
Agreement”). All capitalized terms used in this Agreement that
are not specifically defined in this Agreement have the meanings assigned to
those terms in the Purchase Agreement.
B. CFC
has agreed to grant to DTC an option to purchase the CFC Tract and all
improvements and appurtenances thereon but exclusive of movable equipment and
fixtures, inventory, signs and other personal property (the “Property”)
upon certain conditions.
NOW THEREFORE, in consideration of the
premises, and good and valuable consideration given and the receipt of which is
hereby acknowledged, the parties agree as follows:
1. OPTION
EVENT
DTC shall have the option (the “First
Option”) to purchase the Property for the purchase price provided in
Section 2
during the time period provided in Section 3(a) and
otherwise on the terms of this Agreement, if the Construction Condition (defined
below) does not occur on or before November 30, 2010. If (i) DTC does
not timely exercise the First Option, or (ii) DTC timely exercises the First
Option, but CFC timely nullifies DTC’s exercise of the First Option by paying
the Extension Payment pursuant to Section 3(b), then,
in either such event, DTC shall have the option (the “Second
Option” to purchase the Property for the purchase price provided in Section 2 during the
time period provided in Section 4(a) and
otherwise on the terms of this Agreement, if the Construction Condition does not
occur on or before November 30, 2014. For purposes of this Agreement,
the term “Construction
Condition ” means that CFC has commenced the construction of an office
building on the CFC Tract that will contain at least 120,000 square feet of
gross floor area, as evidenced by (i) the issuance by CFC to its general
contractor of a notice to proceed authorizing such general contractor to
commence construction of such office building, (ii) the delivery by CFC to DTC
of a copy of the notice to proceed referred to in clause (i),(iii) the posting
of all required bonds with Loudoun County, and (iv) the site contractor’s good
faith commencement of the work of grading and excavation for the site work
commencing at the terminus of the Century Boulevard Extension (as defined in the
Purchase Agreement), including sequentially the site work for the office
building and including sequentially the construction of such office
building. For all purposes of this Agreement, the term “Option”
means the First Option or the Second Option.
2. PURCHASE
PRICE
The
purchase price of the Property pursuant to the Option shall be an amount equal
to the sum of the Purchase Price of the Property paid by CFC to DTC pursuant to
the Purchase Agreement, reduced by (i) the Virginia grantor’s tax paid by DTC,
as Seller, in connection with the original sale of the Property to CFC pursuant
to the Purchase Agreement, and (ii) the Adjustment Amount (defined
below). For purposes of this Section 2, the term
“Adjustment
Amount” means the excess of (i) $3,500,000, over (ii) the Extension
Payment, if any, paid by CFC to DTC pursuant to Section 3(b)
below.
3. EXERCISE
OF THE FIRST OPTION
(a) DTC
may exercise the First Option by delivering written notice of the exercise of
the First Option (the “First
Exercise
Notice”) to CFC at any during the period beginning on December 1, 2010
and ending on December 15, 2010. The First Exercise Notice must
include an ▇▇▇▇▇▇▇ money deposit of $250,000 in cash or a certified check made
payable to CFC. CFC’s receipt of the First Exercise Notice and the
▇▇▇▇▇▇▇ money deposit shall immediately create an effective and binding contract
by CFC to sell to DTC, and by DTC to purchase from CFC, the Property on the
terms and conditions set forth herein. If DTC does not exercise the
First Option within the time or in the manner specified in this Section, the
First Option shall lapse and shall be of no further force or
effect. If, after delivery of the First Exercise Notice, DTC does not
close the transaction in accordance with the terms hereof, the $250,000 ▇▇▇▇▇▇▇
money deposit shall be retained by CFC, as consideration for the grant of the
First Option and for withholding the Property from the marketplace, and the
First Option shall terminate.
(b) If
DTC timely delivers the First Exercise Notice, CFC shall have the right, within
five (5) Business Days after receipt of the First Exercise Notice, to nullify
DTC’s exercise of the First Option by paying to DTC, within the period of five
(5) Business Days, an amount equal to $2,500,000 (the “Extension
Payment”).
(c) If
CFC timely pays the Extension Payment, (i) DTC’s exercise of the First Option
shall be deemed to have been rescinded, (ii) CFC shall return to DTC,
concurrently with the payment of the Extension Payment, the $250,000 ▇▇▇▇▇▇▇
money deposit paid by DTC at the time it delivered the First Exercise Notice,
which is deemed rescinded pursuant to clause (i), and (iii) DTC shall have the
right to exercise the Second Option in accordance with the provisions of Section
4.
4. EXERCISE
OF SECOND OPTION
(a) If
DTC has the right to exercise the Second Option pursuant to Section 3(c), DTC may
exercise the Second Option by delivering written notice of the exercise of the
Second Option (the “Second Exercise
Notice”) to CFC at any time during the period beginning on December 1,
2011 and ending on December 15, 2014. The Second Exercise Notice must
include an ▇▇▇▇▇▇▇ money deposit of $250,000 in cash or a certified check made
payable to CFC. CFC’s receipt of the Second Exercise Notice and the
▇▇▇▇▇▇▇ money
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deposit
shall immediately create an effective and binding contract by CFC to sell to
DTC, and by DTC to purchase from CFC, the Property on the terms and conditions
set forth herein. If DTC does not exercise the Second Option within
the time or in the manner specified in this Section, the Second Option shall
lapse and shall be of no further force or effect. If, after delivery
of the Second Exercise Notice, DTC does not close the transaction in accordance
with the terms hereof, the $250,000 ▇▇▇▇▇▇▇ money deposit shall be retained by
CFC, as consideration for the grant of the Second Option and for withholding the
Property from the marketplace, and the Second Option shall
terminate.
(b) If
DTC timely delivers the Second Exercise Notice, CFC shall have the right, within
ninety (90) days after receipt of the Second Exercise Notice, to nullify DTC’s
exercise of the Second Option by causing the Construction Condition to be
satisfied.
(c) If
the Construction Condition is satisfied, (i) DTC’s exercise of the Second Option
shall be deemed to have been rescinded, (ii) CFC shall return to DTC, within
five (5) Business Days after the Construction Condition is satisfied, the
$250,000 ▇▇▇▇▇▇▇ money deposit paid by DTC at the time it delivered the Second
Exercise Notice, which is deemed rescinded pursuant to clause (i), and (iii) the
Second Option shall lapse.
5. CLOSING
If DTC timely delivers the First
Exercise Notice and pays the deposit to CFC pursuant to Section 3(a), DTC’s
purchase of the Property shall be consummated within thirty (30) days after
delivery of the First Exercise Notice. If DTC’s exercise of the First
Option is deemed rescinded pursuant to Section 3(c), and if
DTC timely delivers the Second Exercise Notice and pays the deposit to CFC
pursuant to Section
4(a), DTC’s purchase of the Property shall be consummated within thirty
(30) days after the expiration of the 90-day period referred to in Section
4(b). The closing shall be conducted through an escrow
established at Commercial Title Group, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Escrow
Agent”). The purchase price shall be payable in immediately
available funds at the closing. The Property shall be conveyed in its
"as is" condition. Title to the Property shall be conveyed by CFC to
DTC by special warranty deed, subject only to (i) the lien of current real
estate taxes not yet due and payable, (ii) the Permitted Exceptions (as defined
in the Purchase Agreement), (iii) the exceptions to title created by the Lot
Creation Document and the documents signed and delivered in connection with the
Closing under the Purchase Agreement, and (iv) the matters shown by the survey,
if any, of the Property obtained by CFC in connection with its original purchase
of the Property. Any mortgage or liens securing obligations for the
payment of money encumbering the Property shall be discharged from the purchase
price proceeds payable by DTC hereunder. Current real property taxes
and installments of special assessments shall be prorated as of the date of
closing. CFC shall bear the cost of the Virginia grantor’s tax on the
deed and all other State and County transfer and recordation taxes, and all
other closing costs, including escrow fees.
6. NOTICES.
Each
notice, request, demand, consent, approval or other communication (hereafter in
this Section referred to collectively as “notices” and referred to singly as a
“notice”) which DTC
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or CFC is
required or permitted to give to the other party pursuant to this Agreement
shall be in writing and shall be delivered personally, by facsimile transmission
or by recognized overnight national courier service (such as Federal Express)
(i) if to DTC to the attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Enterprises,
LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FAX:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FAX: (▇▇▇) ▇▇▇-▇▇▇▇, or (ii) if to CFC, to the
attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, National Rural Utilities Cooperative Finance
Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FAX: (▇▇▇) ▇▇▇-▇▇▇▇,
with copies to General Counsel, National Rural Utilities Cooperative Finance
Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FAX: (▇▇▇) ▇▇▇-▇▇▇▇,
and to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FAX: (▇▇▇) ▇▇▇-▇▇▇▇ or at any other address
designated by either party by notice to the other party pursuant to this
Section. Any notice delivered to a party’s designated address by (a)
personal delivery, (b) facsimile or (c) recognized overnight national
courier service shall be deemed to have been received by such party at the time
the notice is delivered to such party’s designated address.
7. MISCELLANEOUS
(a) Assignment. The
rights arising under this Agreement are personal to DTC only and may not be
assigned, whether collaterally or otherwise, in any manner.
(b) Termination. This
Agreement and the Option shall automatically terminate upon the earliest to
occur of (i) the satisfaction of the Construction Condition, or (ii) the lapse
of the Second Option accordance with Section
4(a). Upon termination of this Agreement, DTC agrees to
execute and deliver to CFC, without cost to CFC, a termination (properly
executed, acknowledged and in recordable form) of all option rights contained in
this Agreement and a release of any interest of DTC in the Property arising out
of this Agreement; provided however, that the absence of such an instrument
shall not affect the termination of such right.
(c) Binding
Effect. Subject to the provisions hereof regarding assignment,
this Agreement shall run with the land, shall bind the real estate described
herein and shall be binding upon and inure to the benefit of CFC and
DTC.
(d) Amendment and/or
Modification. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged, amended or modified orally, or in any
manner other than by an instrument in writing signed by all of the parties
hereto.
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(e)
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Costs and Attorneys’
Fees. If any party hereto shall bring any suit or other
action against another for relief, declaratory or otherwise, arising out
of this Agreement, the losing party shall pay the prevailing party’s
reasonable costs and expenses, including such sum as the Court may
determine to be a reasonable attorney’s
fee.
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(f)
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Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the state in which the Property is
located, without giving effect to principles and provisions thereof
relating to conflict or choice of
laws.
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(g)
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Documents. Each
party to this Agreement shall perform any and all acts and execute and
deliver any and all documents as may be necessary and proper under the
circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its
provisions.
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(h) Entire Agreement; No Strict
Construction. This Agreement (and any attached exhibits)
contains the entire agreement and understanding of the parties with respect to
the entire subject matter hereof, and there are no representations, inducements,
promises or agreements, oral or otherwise, not embodied herein. Any
and all prior discussions, negotiations, commitments and understandings relating
thereto are merged herein. There are no conditions precedent to the
effectiveness of this Agreement other than as stated herein, and there are no
related collateral agreements existing between the parties that are not
referenced herein. This Agreement shall not be construed strictly for
or against either DTC or CFC.
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(i)
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Counterparts. This
Agreement may be signed in counterparts, any one of which shall be deemed
to be an original and all of which, when taken together, shall constitute
one instrument.
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IN WITNESS WHEREOF, CFC and DTC have
caused this Agreement to be executed effective as of the day and year above
referenced.
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
By: _______________________________
Name: _____________________________
Title: ______________________________
COMMONWEALTH
OF
VIRGINIA )
) ss.
COUNTY
OF )
On this ______ day of ______________,
2008, before me, a Notary Public within and for said County, personally appeared
______________________________ to me personally known, being first by me duly
sworn, did say that (s)he is the __________________of NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION, and that said instrument was signed on behalf
of said corporation by authority of its Board of Directors and
________________________ acknowledged said instrument to be the free act and
deed of said corporation.
__________________________________
Notary Public
My
commission expires: ______________
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DTC
PARTNERS, LLC
By ▇▇▇▇▇▇
Enterprises, LLC, its
Authorized Manager
By: ___________________________
Name:
_________________________
Title: Manager
___________________
STATE OF
MARYLAND )
) ss.
COUNTY OF
▇▇▇▇▇▇▇▇▇▇
)
On this ______ day of ______________,
2008, before me, a Notary Public within and for said County, personally appeared
______________________________ to me personally known, being first by me duly
sworn, did say that (s)he is the Manager of ▇▇▇▇▇▇ Enterprises, LLC, the
Authorized Manager of DTC PARTNERS, LLC, and that said instrument was signed on
behalf of said DTC PARTNERS, LLC, and ________________________ acknowledged said
instrument to be the free act and deed of said limited liability
company.
____________________________________
Notary Public
My
commission expires: ______________
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EXHIBIT
A
Legal
Description of CFC Tract