Exhibit 10.FF
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement (this
"Amendment") is entered into as of June 3, 2003 by and between Poly-Flex
Circuits, Inc. ("Seller") and Taurus Cranston LLC ("Purchaser").
BACKGROUND
----------
A. Seller and Purchaser entered into a Purchase and Sale Agreement
dated as of May 8, 2003 concerning certain premises located at 28 Kenney
Drive, Cranston, Rhode Island, as amended by a First Amendment to Purchase
and Sale Agreement dated May 23, 2003 (as so amended, the "P&S Agreement").
Capitalized terms used herein without definition have the meaning given to
them in the P&S Agreement.
B. The Due Diligence Period expires as of the date hereof and,
subject to the execution and delivery of this Amendment by Seller, Purchaser
intends to give its Notice to Proceed.
C. Seller and Purchaser wish to amend the P&S Agreement as provided
below.
AGREEMENT
---------
NOW THEREFORE, for valuable consideration, the Seller and Purchaser
agree as follows:
1. Section 12 of the P&S Agreement is amended by renumbering the
existing subsection (m) thereof to be subsection (o) thereof and by
inserting the following as new subsections (m) and (n) of such Section 12:
"(m) Reference is made to that certain Declaration of Protective
Controls affecting the Property dated November 29, 1977 made by Howard
Development Corporation, and recorded in the Land Evidence Records of the
City of Cranston, Rhode Island in Land Evidence Book 427, Page 897 (the
"Declaration"). Purchaser shall have received a duly executed estoppel from
the Rhode Island Economic Development Corporation in a form acceptable to
Purchaser and any third party mortgage lender to Purchaser certifying, among
other things, that (1) the construction of the improvements on the Property
was commenced and completed in accordance with the requirements of the
Declaration and neither the Property nor any improvements thereon are in
violation of any provision of the Declaration and (2) the provisions of the
Declaration relating to rights of plan approval and of repurchase are no
longer of any force and effect with respect to the Property;
(n) Purchaser shall have received written confirmation from the City
of Cranston Building Department in a form acceptable to Purchaser and any
third party mortgage lender to Purchaser that (1) the Property, and all
improvements thereon, is located in the "M-2" zoning district under the
applicable Zoning Ordinance of the City of Cranston, (2) the present uses of
the Property (office, research and development, warehousing and
manufacturing) were, at the time of initial construction, and are currently,
permitted as of right under the zoning classification of "M-2" and such uses
of the Property do not otherwise violate any applicable zoning regulations,
(3) the Property and all improvements thereon are otherwise in compliance
with the applicable zoning and building codes and regulations, (4) the
Property is a legally-subdivided parcel in accordance with the terms of the
applicable subdivision laws, (5) there are no outstanding zoning or building
code violations which have been cited by the City of Cranston against the
Property, and (6) the Building Inspector of the City of Cranston is not
aware of any circumstances which would render the existing certificates of
occupancy for the Property invalid or cause them to be revoked.
2. Section 12(l) of the P&S Agreement is hereby amended by deleting
"$1,782,000" and substituting therefor the following: "Six Million and Six
Hundred Thousand Dollar ($6,600,000.00), to be secured by both the Property
and the property in Methuen Massachusetts being acquired simultaneously with
the closing hereunder by an affiliate of Purchaser pursuant to that certain
Purchase and Sale Agreement between Taurus Methuen LLC and Parlex
Corporation."
3. Seller shall provide Purchaser with such certifications relating
to the number of employees of Seller at the Property as Purchaser may
reasonably require in order to confirm that the Property complies with all
applicable laws relating to parking.
4. The deed to Purchaser shall contain the following certification
from Seller: ""No R.I.G.L. withholding is required as Seller is a resident
corporation, as that term is defined in the Rhode Island tax law pertaining
to the Seller, as evidenced by Affidavit." At the Closing, Seller shall
execute and deliver an affidavit in the form attached to this Amendment as
Exhibit A.
5. Seller represents and warrants to Purchaser that Seller has
applied for a renewal of its industrial wastewater discharge permit and that
Seller has no reason to believe that such renewal will not be granted.
Seller shall use reasonable efforts to obtain such renewal by Closing or as
soon as possible thereafter and shall provide Purchaser with evidence of
such renewal promptly upon receipt thereof by Seller. The provisions of
this Section 5 shall survive the Closing.
6. Seller agrees that, at the Closing, it shall execute and deliver
a Subordination, Non-Disturbance and Attornment Agreement substantially in
the form sent by John Sullivan to Edward Kutchin and Andrew Stempler on June
1, 2003.
7. When duly executed and delivered by both parties hereto, this
Amendment shall constitute Purchaser's Notice to Proceed under Section 5(e)
of the P&S Agreement.
8. This Amendment may be executed by facsimile and in counterparts
and it shall be sufficient that the signature of each party appear on one or
more of such counterparts.
9. Except as otherwise provided above, the P&S Agreement is
ratified and confirmed and remains in full force and effect. All references
in the P&S Agreement to "this Agreement" shall mean the P&S Agreement as
amended by this Amendment.
[Balance of this page intentionally left blank]
2
EXECUTED under seal as of the date first written above.
SELLER:
Poly-Flex Circuits, Inc.
By: /s/ Peter J. Murphy
-----------------------------
Name: Peter J. Murphy
Title: Treasurer
PURCHASER:
Taurus Cranston LLC
By: /s/ Scott R. Tully
----------------------------
Name: Scott R. Tully
Title: Manager
3