FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND PRELIMINARY ESCROW INSTRUCTIONS [Portion of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond, California]
Exhibit
10.8.4
FOURTH
AMENDMENT TO
AND
PRELIMINARY ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond,
California]
This
Fourth Amendment to Purchase and Sale Agreement and Preliminary Escrow
Instructions (the “Fourth
Amendment”) is
entered into as of July 27, 2005, between DICON FIBEROPTICS, INC., a California
corporation (“Seller”) and
PULTE
HOME CORPORATION, a Michigan corporation (“Buyer”).
RECITALS
| A. |
Seller
and Buyer entered into a Purchase and Sale Agreement and Preliminary
Escrow Instructions as of February 27, 2004, a First Amendment to
Purchase
and Sale Agreement and Preliminary Escrow Instructions as of March
1,
2004, a Second Amendment to Purchase and Sale Agreement and Preliminary
Escrow Instructions as of April 29, 2004, and a Third Amendment to
Purchase and Sale Agreement and Preliminary Escrow Instructions as
of
February 27, 2005 (collectively, the “Agreement”).
|
| B. |
Seller
and Buyer desire to amend and restate certain provisions of the Agreement
as provided in this Fourth
Amendment.
|
The
parties agree as follows:
AGREEMENT
| 1. |
Section
13.2.1 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
|
| “13.2.1 |
Extension
of Closing Date if City has not approved the Tentative Map.
Buyer may elect to extend the Closing Date as provided and subject
to the
conditions precedent in this Section
13.2.1.
|
1st
Extension: If the City has not approved the Tentative Map on or before the
date
of February 28, 2005, Buyer may extend the Closing Date to the date of March
30,
2005.
2nd
Extension:
If Buyer has extended the Closing Date as provided under the 1st
extension and if the City has not approved the Tentative Map on or before the
date of March 30, 2005, Buyer may extend the Closing Date to the date of April
29, 2005.
3rd
Extension:
If Buyer has extended the Closing Date as provided under the 2nd
extension
and if the City has not approved the Tentative Map on or before the date of
April 29, 2005, Buyer may extend the Closing Date to the date of May 31,
2005.
4th
Extension:
If Buyer has extended the Closing Date as provided under the 3rd
extension and if the City has not approved the Tentative Map on or before the
date of May 31, 2005, Buyer may extend the Closing Date to the date of June
30,
2005.
5th
Extension: If Buyer has extended the Closing Date as provided under the
4th
extension and if the City has not approved the Tentative Map on or before the
date of June 30, 2005, Buyer may extend the Closing Date to the date of July
29,
2005.
6th
Extension: If Buyer has extended the Closing Date as provided under the
5th
extension and if the City has not approved the Tentative Map on or before the
date of July 29, 2005, Buyer may extend the Closing Date to the date of August
29, 2005.
7th
Extension: If Buyer has extended the Closing Date as provided under the
6th
extension and if the City has not approved the Tentative Map on or before the
date of August 29, 2005, Buyer may extend the Closing Date to the date of
September 28, 2005.
8th
Extension: If Buyer has extended the Closing Date as provided under the
7th
extension and if the City has not approved the Tentative Map on or before the
date of September 28, 2005, Buyer may extend the Closing Date to the date of
October 28, 2005.
9th
Extension: If Buyer has extended the Closing Date as provided under the
8th
extension and if the City has not approved the Tentative Map on or before the
date of October 28, 2005, Buyer may extend the Closing Date to the date of
November 29, 2005.
Each
of
the 1st, 2nd, and
3rd
extensions
is subject to the conditions precedent that, on or before the Closing Date
as in
effect prior to each such extension (a) Seller and Escrow Agent shall each
have
received from Buyer a written notice of Buyer’s election to extend the Closing
Date, and (b) Seller shall have received from Buyer by wire transfer an
extension payment in the amount of Twenty Five Thousand Dollars
($25,000.00).
Each
of
the 4th,
5th
and
6th
extensions is subject to the conditions precedent that, on or before the Closing
Date as in effect prior to each such extension (a) Seller and Escrow Agent
shall
each have received from Buyer a written notice of Buyer’s election to extend the
Closing Date, (b) Seller shall have received from Buyer by wire transfer an
extension payment in the amount of Fifty Thousand Dollars ($50,000.00), and
(c)
Seller shall have received from Buyer by wire transfer an extension deposit
in
the amount of One Hundred Thousand Dollars ($100,000.00).
Each
of
the 7th,
8th
and
9th
extensions
is subject to the conditions precedent that, on or before the Closing Date
as in
effect prior to each such extension (a) Seller and Escrow Agent shall each
have
received from Buyer a written notice of Buyer’s election to extend the Closing
Date, (b) Seller shall have received from Buyer by wire transfer an extension
payment in the amount of Twenty Five Thousand Dollars ($25,000.00), and (c)
Seller shall have received from Buyer by wire transfer an extension deposit
in
the amount of Twenty Five Thousand Dollars ($25,000.00).
The
extension payments under this Section 13.2.1 are not applicable to the Purchase
Price. The extension deposits under this Section 13.2.1 actually received by
Seller shall be applied to the Purchase Price on the Close of Escrow. The
extension payments and the extension deposits are non-refundable under any
and
all circumstances including, but not limited to, any termination of Buyer’s
obligation to purchase and Seller’s obligation to sell the Purchase Property
under this Agreement."
| 2. |
Except
as amended and restated by this Fourth Amendment, all terms, conditions
and provisions of the Agreement shall remain in full force and
effect.
|
| 3. |
This
Fourth Amendment may be executed by the different parties hereto
on
separate counterparts each of which, when so executed, shall be deemed
an
original but all such counterparts shall constitute but one and the
same
agreement.
|
IN
WITNESS HEREOF, the
parties hereto have executed this Fourth Amendment as of the date first above
written.
|
Seller:
|
Buyer:
|
|
DICON
FIBEROPTICS, INC.,
|
PULTE
HOME CORPORATION
|
|
a
California corporation
|
a
Michigan corporation
|
|
By: /s/
Ho-Xxxxx Xxx
|
By:
/s/
Xxxxxx Xxxxxxxx
|
|
Name:
Ho-Xxxxx
Xxx, Ph.D.
|
Name:
Xxxxxx
Xxxxxxxx
|
|
Its:
President & CEO
|
Its:
Division
President
|
Acceptance
by Escrow Holder
CHICAGO
TITLE COMPANY hereby acknowledges that it has received originally executed
counterparts or a fully executed original of the foregoing Fourth Amendment
to
Purchase and Sale Agreement and Preliminary Escrow Instructions and agrees
to
act as Escrow Agent thereunder and to be bound by and perform the terms thereof
as such terms apply to Escrow Agent.
CHICAGO
TITLE COMPANY
By:
/s/
Xxxxxxxxx Xxxxxxxx for Xxxxxx X. Xxxxxxx
Name:
Xxxxxx
X.
Xxxxxxx
Its: Assistant
Vice President
Date
of
Execution: 8-1-05
1
