SECOND AMENDMENT TO | ||
THIS SECOND AMENDMENT TO SALE AND PURCHASE AGREEMENT ("Amendment") is made as of July 18, 2005 ("Amendment Date"), between PEPCO HOLDINGS, INC., a Delaware corporation ("Holdings"), THE JOHN AKRIDGE DEVELOPMENT COMPANY, a Virginia corporation ("Buyer"), acknowledged by TRI-STATE COMMERCIAL CLOSINGS, INC. ("Escrow Agent"), and joined by POTOMAC ELECTRIC POWER COMPANY,a District of Columbia and Virginia corporation ("PEPCO"). | ||
Holdings and Buyer entered into a Sale and Purchase Agreement with an Effective Date of June 3, 2005, which was amended by that certain First Amendment to Sale and Purchase Agreement, with an effective date of June 3, 2005 (as amended, the "Agreement"). Holdings and Buyer desire to amend the Agreement as set forth in this Amendment. Each capitalized term used but not defined in this Amendment has the meaning assigned to it in the Agreement. | ||
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: | ||
1. | Substitution and Assignment.The designation of Holdings as "Seller" under the Agreement was a mutual mistake and, in fact, title to the Property is vested in PEPCO, which is a wholly owned subsidiary of Holdings. It is the intention of the parties that PEPCO be the "Seller" under the Agreement; and, therefore, PEPCO is hereby substituted as "Seller" under the Agreement as if initially named as "Seller" therein. Holdings hereby assigns to PEPCO all of Holdings's rights under the Agreement and PEPCO hereby assumes all obligations of Holdings under the Agreement and from this point forward, all references to "Seller" in the Agreement shall mean PEPCO. Holdings is hereby released from all liabilities and obligations under the Agreement. | |
2. | Approval by Holdings. Section 9.16 is hereby amended by inserting "and by the Board of Directors of PEPCO Holdings, Inc." immediately after "Seller's Board of Directors"; it being the parties' intent that the approval of the Board of Directors of both Holdings and PEPCO is a condition to Buyer's and Seller's obligation to proceed to closing. | |
3. | Second Deposit. Notwithstanding the second sentence of Section 1.02(a) or anything else in the Agreement to the contrary, (a) the Study Period shall expire upon execution and delivery of this Amendment, (b) the amount of the Second Deposit shall be $4,500,000 and not $1,500,000, and (c) Buyer shall deposit the Second Deposit with Escrow Agent by wire transfer of immediately available funds not later than 5 pm Eastern Standard time on Tuesday, July 19, 2005. | |
_______________________________________________________________________________________ | ||
4. | Assignment by Buyer. Notwithstanding Section 9.01 or any other provision of the Agreement to the contrary, Seller hereby consents to Buyer's assignment of the Agreement to a limited liability company ("Assignee") prior to the closing under the Agreement,provided that (i) The John Akridge Development Company, or an entity controlled by, controlling or under common control with The John Akridge Development Company, is the managing member of Assignee, (ii) Buyer gives at least five (5) business days advance written notice to Seller of such assignment, and (iii) upon any such assignment, Assignee shall be substituted as Buyer under the Agreement, but the original named Buyer in the Agreement shall not be released but shall remain jointly and severally liable with such Assignee for all duties, obligations and liabilities of Buyer under the Agreement. In addition, Buyer shall have the right to designate a separate entity as nominee to receive title to the Property by deed at c losing, subject to all of the conditions and obligations of Buyer in the Agreement and provided that Buyer shall remain jointly and severally liable with such nominee for all of Buyer's obligations and liabilities under this Agreement. | |
5. | Section 1031 Exchange. Notwithstanding anything contained in the Agreement to the contrary, Seller acknowledges that Buyer may designate the Property as replacement property to consummate a like-kind exchange under Section 1031 of the Internal Revenue Code (an "Exchange") through the use of a qualified intermediary. In the event that Buyer designates the Property as replacement property to consummate an Exchange through the use of a qualified intermediary, Seller shall at Buyer's sole cost and expense (and with no cost, expense or liability to Seller) cooperate in structuring the transaction as an Exchange for the benefit of Buyer and Seller agrees to render all required performance under this Agreement to such qualified intermediary to the extent reasonably directed by Buyer and to accept performance of all of Buyer's obligations by the qualified intermediary provided nothing herein shall release or relieve Buyer of any of its obligations or liabilities under this Agreement as provided in Section 4 above. Seller agrees that performance by the qualified intermediary will be treated as performance by Buyer, and Buyer agrees that Seller's performance to the qualified intermediary will be treated as performance to Buyer. Seller consents to an assignment of the Agreement by Buyer to such qualified intermediary, and upon any such assignment, the original named Buyer in the Agreement shall not be released but shall remain primarily responsible for all duties, obligations and liabilities of Buyer under the Agreement. | |
6. | Third Party Reports. Upon receipt of any environmental and acoustical reports from investigations at the Property, Buyer shall immediately remit to Seller copies of all reports. If the transaction contemplated by the Agreement fails to close for any reason, Buyer shall immediately remit to Seller all existing copies and originals of all such reports. | |
7. | Closing Date. Section 5.01 is hereby amended by designating August 25, 2005 as the date of closing under the Agreement; provided, however, that Buyer may elect in its sole discretion to accelerate the date of closing to any earlier date on or | |
2 | ||
after August 8, 2005 by giving written notice to Seller at least five (5) business days prior to such accelerated date of closing. | ||
8. | Additional Payment. Section 1.01 is hereby amended by adding the following at the end thereof: "The Purchase Price shall increase at the rate of 3.25% per annum for each day from and excluding August 8, 2005 through and including the date of closing. Notwithstanding the foregoing, if Buyer is ready, willing and able to close on the date of closing otherwise applicable under this Agreement, but the date of closing is delayed through the action or wrongful omission by Seller, then, without limiting any other remedy of Buyer, the Purchase Price shall not increase under the preceding sentence for the period of such delay." | |
9. | Credit Against Purchase Price. Buyer shall receive a credit in the amount of Sixty-Five Thousand Dollars ($65,000) from Seller to be applied against the Purchase Price at closing under the Agreement. | |
10. | Adjacent Property. From and after the closing under the Agreement, Seller and Buyer agree to all of the terms and provisions set forth inExhibit 1 attached hereto, which is hereby incorporated into this Amendment as if fully set forth herein. The provisions ofExhibit 1 shall survive the closing, but shall be of no force or effect in the event that the Agreement is terminated prior to closing. | |
11. | Ratification. Except as expressly modified by this Amendment, the Agreement shall continue in full force and effect in accordance with its terms. | |
12. | Counterparts; Execution By Facsimile. This Amendment may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. All counterparts shall be construed together and shall constitute one agreement. Execution and delivery of this Amendment by facsimile shall be sufficient for all purposes and shall be binding on any person who so executes and delivers this Amendment. Solely for purposes of this Section 12, delivery of an executed counterpart of this Amendment shall be effective upon delivery of a facsimile transmission to: Holdings and PEPCO, c/o Mr. Vernon D. Gibson, Fax No. 202-331-6355, with a copy to Allen H. Fox, Fax No. 202-663-6363; Buyer, c/o Mr. Thomas W. Wilbur, Fax No. 202-347-8043; and Escrow Agent, c/o Richard W. Klein, Jr., Esq., Fax No. 202-955-5646. | |
[signatures on following page] | ||
3 | ||
IN WITNESS WHEREOF, Holdings and Buyer have executed this Amendment, Escrow Agent evidences its acknowledgement thereto, and PEPCO joins for the purposes set forth herein, on the dates set forth below, to be effective for all purposes as of the Amendment Date. | ||
HOLDINGS: | PEPCO HOLDINGS, INC. | |
By: JOSEPH M. RIGBY | ||
Date of Execution: 7/18/05 | ||
BUYER | THE JOHN AKRIDGE DEVELOPMENT COMPANY | |
By: M. KLEIN | ||
Date of Execution: July 18th, 2005 | ||
JOINED BY PEPCO: | POTOMAC ELECTRIC POWER COMPANY | |
By: JAMES P. LAVIN | ||
Date of Execution: 7/18/05 | ||
4 | ||
ACKNOWLEDGED |
| |
Escrow Agent has executed this Second Amendment to acknowledge the substitution of PEPCO as the "Seller" under the Agreement and the assignment to PEPCO of all rights and obligations of HOLDINGS thereunder including all rights in and to the Deposit held by Escrow Agent in connection therewith. | ||
By: RICHARD W. KLEIN, JR. | ||
Date of Execution: July 19, 2005 | ||
5 |
- Company Dashboard
- Financials
- Filings
- ETFs
- Insider
- Institutional
- Patents
-
8-K Filing
Pepco 8-KEntry into a Material Definitive Agreement
Filed: 22 Jul 05, 12:00am