Exhibit 10.CC
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 Parlex
Corporation ("Seller") and Taurus Methuen LLC ("Purchaser").
BACKGROUND
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A. Seller and Purchaser entered into a Purchase and Sale Agreement
dated as of May 8, 2003 concerning certain premises located at One Parlex
Place, Methuen, Massachusetts, 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
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NOW THEREFORE, for valuable consideration, the Seller and Purchaser
agree as follows:
1. Section 5(e)(i) of the P&S Agreement is hereby amended by
deleting the phrase "Four Million Eight Hundred and Eighteen Thousand
Dollars ($4,818,000.00)" and substituting therefor "Six Million and Six
Hundred Thousand Dollar ($6,600,000.00)."
2. Section 10(a)(xi) of the P&S Agreement is hereby amended by
deleting such section in its entirety and substituting therefore the
following language:
"(xi) a written certification from Seller stating that: (a) the
Improvements as constructed conform in all material
respects to those improvements approved in the 1998
Variance, the 1998 Special Permit and the 1998 Site Plan
Approval; and (b) duly issued certificates of occupancy
are in effect for all portions of the Property;"
3. Section 12(k) of the P&S Agreement is hereby deleted in its
entirety and the following language is hereby substituted therefore:
"(k) Reference is made to a Level 2 Environmental Site
Assessment for the Property performed by LFR Levine
Fricke ("LFR") and the Summary of Findings thereof dated
May 20, 2003 (the "Phase II Interim Report"). Seller
shall, at its sole expense, use commercially reasonable
efforts to cause LFR promptly to issue the final Phase II
report together with a letter, in form and substance
reasonably acceptable to Purchaser (the "Reliance
Letter"), allowing Purchaser and its lender to rely on
such final Phase II report and any additional reports,
findings or certifications provided to Seller in
connection
therewith (such final phase II report, together with the
Phase II Interim Report, is hereinafter referred to as
the "Phase II Report"), provided that such reliance shall
be in accordance with the terms and conditions of LFR's
proposal to Seller dated October 20, 2002. Purchaser
acknowledges that, because the final phase II report will
not be delivered until after the Closing, the Reliance
Letter will not be delivered until after the Closing (it
being agreed, however, that in such event, the final
Phase II report, together with the Reliance Letter, shall
be delivered to Purchaser as promptly as possible
following the Closing and no later than three business
days after the date on which such final Phase II report
is delivered to Seller). Seller shall as soon as
reasonably possible after the Closing Date, but in any
event within 360 days after the Closing Date or such
shorter period as may be required by applicable law, time
being of the essence (in each case subject to any delay
caused by acts of God), complete each of the following:
(W) cause the additional testing, investigation, and
studies recommended in the Phase II Report to be
conducted, (X) cause all remedial action and cleanup
recommended in the Phase II Report to be undertaken and
completed as set forth in the Phase II Report and
otherwise in accordance with applicable law, and carry
out and complete any further remediation in accordance
with applicable law, such that a Permanent Solution
Response Action Outcome will have been achieved for the
Property pursuant to a 310 CMR 40.000 et seq. and
all other applicable law, with only such Activity and Use
Limitations or other ongoing conditions or requirements
as are reasonably acceptable (in form and substance) to
Purchaser (it being agreed that it shall be reasonable
for Purchaser to reject any Activity and Use Limitation
or other ongoing condition or requirement that would have
a material adverse impact on the value or marketability
of the Property for manufacturing, distribution, office
or warehousing uses); (Y) cause all notifications and
submittals described in the Phase II Report or otherwise
required under applicable law to be timely made to the
appropriate governmental authorities and provide copies
of such notifications to Purchaser, including without
limitation the following submittals to the Massachusetts
Department of Environmental Protection: a 120-day written
Release Notification Form (to be submitted by September
16, 2003); a "Phase I/Tier Classification" submittal; a
Release Abatement Measure (RAM) Plan to the extent
recommended by the LSP or otherwise required by
applicable law; a RAM Completion Report; and a Response
Action Outcome; and (Z) provide Purchaser with third
party documentation reasonably acceptable to Purchaser
and Lender that all remedial action described in clause
(X) and (Y) above has been carried out in accordance with
the Phase II Report and otherwise in accordance with
applicable law, including without limitation providing
written evidence reasonably satisfactory to Purchaser and
Lender that a Permanent Solution Response Action Outcome,
with only such Activity and Use Limitations or other
ongoing conditions or requirements as are reasonably
acceptable to Purchaser, has been achieved and has become
effective with respect to the environmental conditions at
the Property and that all filings, submission, and
approvals relating to such Permanent Solution Response
Action Outcome have been carried out in accordance with
310 CMR 40.000 et seq. and all other applicable law.
Seller shall thereafter, at all times during the term of
the Lease, at its sole expense, cause all actions to be
taken necessary to maintain such Permanent Solution
Response Action Outcome in full force at all times,
including without limitation complying with any ongoing
monitoring, maintenance, or reporting obligations
required under such Permanent Solution Response Action
Outcome and providing evidence of such compliance to
Purchaser upon Purchaser's reasonable
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request. The obligations in this Section 12(k) shall
survive the Closing and shall also be set forth in the
Lease.;"
3. Section 28 of the P&S Agreement is amended by inserting, immediately
after existing subsection (ii) of such Section 28 (in the middle of page
32), the following language as new subsection (iii):
"(iii) Seller shall have failed to comply with the provisions
and requirements of Section 12(k) of this Agreement or
the second-to-last paragraph of Section 5.10 of the
Lease, including without limitation the failure to have
caused a Permanent Solution Response Action Outcome to
have been achieved, become effective, and to have
remained in full force with respect to the Property."
4. Schedule 3 of the P&S Agreement is amended by adding the
following to such schedule:
"Summary of Findings - Level 2 Environmental Site
Assessment , Parlex Corporation, One Parlex Place,
Methuen, Massachusetts" prepared by LFR Levine Fricke and
dated May 20, 2003."
5. Schedule 6 of the P&S Agreement, which attaches the Lease, is
amended by deleting the second-to-last paragraph of Section 5.10 of the
Lease, and replacing such paragraph with the following:
"Reference is made to a Level 2 Environmental Site
Assessment for the Property performed by LFR Levine
Fricke and the Summary of Findings thereof dated May 20,
2003 (the "Phase II Interim Report"). Tenant shall, at
its sole expense, use commercially reasonable efforts to
cause LFR promptly to issue the final Phase II report
together with a letter, in form and substance reasonably
acceptable to Landlord (the "Reliance Letter"), allowing
Landlord and its lender to rely on such final Phase II
report and any additional reports, findings or
certifications provided to Tenant in connection therewith
(such final phase II report, together with the Phase II
Interim Report, is hereinafter referred to as the "Phase
II Report"), provided that such reliance shall be in
accordance with the terms and conditions of LFR's
proposal to Tenant dated October 20, 2002. Tenant agrees
that the final Phase II report, together with the
Reliance Letter, shall be delivered to Landlord as
promptly as possible following the date hereof and no
later than three business days after the date on which
such final Phase II report is delivered to Tenant.
Tenant shall as soon as reasonably possible after the
Closing Date, but in any event within 360 days after the
Closing Date or such shorter period as may be required by
applicable law, time being of the essence (in each case
subject to any delay caused by acts of God), complete
each of the following: (W) cause the additional testing,
investigation, and studies recommended in the Phase II
Report to be conducted, (X) cause all remedial action and
cleanup recommended in the Phase II Report to be
undertaken and completed as set forth in the Phase II
Report and otherwise in accordance with applicable law,
and carry out and complete any further remediation in
accordance with applicable law, such that a Permanent
Solution Response Action Outcome will have been achieved
for the Property pursuant to a 310 CMR 40.000 et seq. and
all other applicable law, with only such Activity and Use
Limitations or other ongoing conditions or requirements
as are reasonably acceptable (in form and substance) to
Landlord (it being agreed that it shall be reasonable for
Landlord to reject any Activity and Use Limitation or
other ongoing condition or requirement that would have a
material adverse impact on the value or
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marketability of the Property for manufacturing,
distribution, office or warehouse uses); (Y) cause all
notifications and submittals described in the Phase II
Report or otherwise required under applicable law to be
timely made to the appropriate governmental authorities
and provide copies of such notifications to Landlord,
including without limitation the following submittals to
the Massachusetts Department of Environmental Protection:
a 120-day written Release Notification Form (to be
submitted by September 6, 2003); a "Phase I/Tier
Classification" submittal; a Release Abatement Measure
(RAM) Plan to the extent recommended by the LSP or
otherwise required by applicable law; a RAM Completion
Report; and a Response Action Outcome; and (Z) provide
Landlord and any third party lender to Landlord with
third party documentation reasonably acceptable to
Landlord and any such lender that all remedial action
described in clause (X) and (Y) above has been carried
out in accordance with the Phase II Report and otherwise
in accordance with applicable law, including without
limitation providing written evidence satisfactory to
Landlord and any such lender that a Permanent Solution
Response Action Outcome, with only such Activity and Use
Limitations or other ongoing conditions or requirements
as are reasonably acceptable to Landlord, has been
achieved and has become effective with respect to the
environmental conditions at the Property and that all
filings, submission, and approvals relating to such
Permanent Solution Response Action Outcome have been
carried out in accordance with 310 CMR 40.000 et seq. and
all other applicable law. Tenant shall thereafter, at
all times during the term of the Lease, at its sole
expense, cause all actions to be taken necessary to
maintain such Permanent Solution Response Action Outcome
in full force at all times, including without limitation
complying with any ongoing monitoring, maintenance, or
reporting obligations required under such Permanent
Solution Response Action Outcome and providing
evidence of such compliance to Landlord upon Landlord's
reasonable request. If during the term of the Lease
Landlord is ever required to undertake any action to
maintain such Permanent Solution Response Action Outcome
in full force, Tenant shall promptly reimburse all costs
incurred by Landlord in undertaking such action.
Tenant's indemnity obligations set forth elsewhere in
this Lease shall include any cost, loss, or damage
incurred by Landlord and arising in connection with any
subsequent audit by the Massachusetts Department of
Environmental Protection (or any successor governmental
entity) of the Permanent Solution Response Action Outcome
or any submissions, reports, or conditions relating
thereto, including without limitation the cost of any
additional remediation required pursuant to such audit."
Section 8.1(ix) of the Lease shall contain a specific reference to
Tenant's obligations under the immediately preceding paragraph.
6. Schedule 6 of the P&S Agreement, which attaches the Lease, is
amended by deleting Section 5.17 of the Lease in its entirety and inserting
the following language in its place:
"Section 5.17 Additional Payments for Certain Improvements. (a)
Commencing on the Commencement Date and by the first day of each subsequent
calendar month during the first five years of the Term until the Approved
Parking Area Work (defined below) is fully completed and paid for as
provided below, Tenant shall pay to Landlord $7,176.00 (all such amounts
paid to Landlord, the "Improvement Funds"). The Improvement Funds may be
commingled with other funds of Landlord and shall not constitute an asset of
Tenant, and no fiduciary relationship shall be created with respect to such
funds.
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(b) On or prior to September 15, 2003, Tenant shall submit plans,
specifications, and contractors bids for the improvement and repair of the
Lower Gravel Parking Lot (defined below). Upon request of Landlord, Tenant
shall submit any other materials reasonably requested by Landlord in
connection with such proposed improvement. After consultation with Tenant,
Landlord shall notify Tenant as to the scope of improvement and repair
reasonably approved by Landlord for the Lower Gravel Parking Lot. Tenant
shall obtain all permits and approvals necessary for the proposed
improvements. Within thirty (30) days following receipt of such
notification, but subject to any delay resulting from causes beyond Tenant's
control, Tenant shall commence and thereafter diligently work to complete
the improvement and repair the Lower Gravel Parking Lot at its sole cost and
expense in accordance with the scope of work approved by Landlord and
otherwise in accordance with the requirements applicable to Tenant Work in
this Lease and applicable law ("Approved Parking Area Work"). The term
"Lower Gravel Parking Lot" means the parking area at the Property more
particularly shown on the sketch attached hereto as Exhibit I.
(c) Except as hereinafter provided and so long as no Event of
Default has occurred, upon completion of the Approved Parking Area Work or
portions thereof, Tenant may submit third party invoices and evidence of
payment for such work to Landlord and may request reimbursement for such
costs actually incurred by Tenant to the extent of the amount of the
Improvement Funds actually paid to Landlord by Tenant. In no event shall
any approval from Landlord relating to the Approved Parking Area Work be
deemed to be a judgment from Landlord that the Approved Parking Area Work
can be completed within a certain budget or for an amount less than or equal
to the amount of the Improvement Funds actually paid to Landlord by Tenant;
to the extent any Tenant Work on the Lower Gravel Parking Lot exceeds the
amount of the Improvement Funds actually paid to Landlord by Tenant, all
excess cost shall be borne by Tenant at its expense without reimbursement.
(d) If Tenant has not completed improvement and repair of the Lower
Gravel Parking Lot satisfactory to Landlord on or before June 30, 2004,
Landlord may, in its sole discretion and without obligation to do so, use
all or any portion of the Improvement Funds to carry out such improvement
and repair of the Lower Gravel Parking Lot substantially in accordance with
the plans approved by Landlord as provided for above (or, if no such plans
have been approved by Landlord, then as Landlord may deem appropriate).
(e) If there is a monetary or other material default by Tenant in
its obligations under this Lease, and if such default continues beyond any
applicable notice and cure period (or if the giving of notice is barred by
applicable law), Landlord may, but shall not be obliged to, apply all or any
portion of the Improvement Funds to the extent necessary to cure the
default. After any such application by Landlord of the Improvement Funds,
Tenant shall promptly pay to Landlord an amount equal to the Improvement
Funds so expended. Within thirty (30) days after the expiration or sooner
termination of the Term, and provided that no default exists under this
Lease, the amount of the Improvement Funds not expended as provided for
above shall be returned to the Tenant.
(f) In the event of a sale of the Premises or lease, conveyance or
transfer of the Premises, Landlord shall have the right to transfer the
Improvement Funds to the transferee and Landlord shall upon such transfer be
released by Tenant from all liability for the return or use of such
Improvement Funds; and subject to Article IX, following such transfer Tenant
agrees to look to the transferee solely for the return of said Improvement
Funds. The provisions hereof shall apply to every transfer or assignment
made of the Improvement Funds to such a transferee. Tenant further
covenants that it will not assign or encumber or attempt to assign or
encumber its rights with respect to the Improvement
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Funds, and that neither Landlord nor its successors or assigns shall be
bound by any assignment, encumbrance, attempted assignment or attempted
encumbrance. Tenant will enter into such agreements as Landlord's lender
may request with respect to the assignment of the Improvement Funds to such
lender. In connection with any transfer of the Premises, Tenant shall
cooperate with Landlord in the assignment of the Improvement Funds to the
transferee and, if requested by the transferee.
7. Before the Closing, Purchaser and Seller shall agree upon a
sketch of the Lower Gravel Parking Lot that and such sketch shall be
attached as an exhibit to the P&S Agreement and the Lease.
8. Sections 12(l) and 16(e) of the P&S Agreement are amended by
striking "89,000" and substituting "$122,569.00". The last paragraph of
Section 5.10 of the Lease is amended by striking "89,000" and substituting
"$122,569.00".
9. Exhibit H to the Lease is amended by deleting the references to
Full Depth Asphalt Repairs ($15,000) and New Asphalt Overlay ($35,000),
Seller and Purchaser acknowledging that such matters shall be subsumed
within the Approved Parking Area Work to be undertaken as provided for in
Section 5.17 of the Lease. The reference to $117,000.00 in Section 5.16(a)
of the Lease is changed to $67,185.00.
10. 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
2, 2003.
11. 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.
12. 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.
13. 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.
[The balance of this page is intentionally left blank;
signature page follows]
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EXECUTED under seal as of the date first written above.
SELLER:
Parlex Corporation
By: /s/ Jonathan R. Kosheff 6/3/03
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Name: Jonathan R. Kosheff
Title: Chief Financial Officer
PURCHASER:
Taurus Methuen LLC
By: /s/ Scott R. Tully
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Name: Scott R. Tully
Title: Manager
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