SIXTH AMENDMENT TO
Exhibit
10.8.6
SIXTH
AMENDMENT
TO
AND
PRELIMINARY
ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond,
California]
This
Sixth Amendment to Purchase and Sale Agreement and Preliminary Escrow
Instructions (the "Sixth
Amendment") is
entered into as of December 14, 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, a Third Amendment to Purchase
and Sale Agreement and Preliminary Escrow Instructions as of February
27,
2005, a Fourth Amendment to Purchase and Sale Agreement and Preliminary
Escrow Instructions as of July 27, 2005, and a Fifth Amendment to
Purchase
and Sale Agreement and Preliminary Escrow Instructions as of November
17,
2005 (collectively, the "Agreement").
|
| B. |
Seller
and Buyer desire to amend and restate certain provisions of the Agreement
as provided in this Sixth
Amendment.
|
The
parties agree as follows:
AGREEMENT
| 1. |
Section
8.1 of the Agreement is hereby amended by inserting the words "and
live
work" on line two thereof after the word "detached" and before the
word
"homes".
|
| 2. |
Section
10.2 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
|
"10.2 Buyer's
Covenants.
| 10.2.1 |
Utilities.
Within twelve (12) months after the Close of Escrow Buyer, at Buyer's
cost
and expense (including any fees) and subject to the approval of Seller,
shall complete the design and engineering work and the construction
work
for the separation and the relocation of all utility services and
all fire
lines and fire lanes serving the Remaining Property and running over,
under or across the Purchase Property, including the granting of
new
utility easements benefiting the Remaining Property and running over,
under and across the Purchase Property and the installation of a
new fire
hydrant on the southeast corner of the Remaining Property. All deposits
for utilities made by Seller and all refunds due from utilities shall
be
the property of Seller. Buyer shall be responsible for any required
replacement of deposits. Seller shall release old utility easements
that
have been replaced by new utility easements pursuant to this Section
10.2.1 after the completion of the construction work on the utility
services using such new utility
easements.
|
| 10.2.2 |
Sanitary
Sewer.
Within twelve (12) months after the Close of Escrow Buyer, at Buyer's
cost
and expense (including any fees) and subject to the approval of Seller
and
with the cooperation of Seller, shall cause the City to accept
responsibility for the construction, maintenance, repair and replacement
of the existing sanitary sewers lying within the 10' private sanitary
sewer easement and the 10' sanitary sewer easement, running from
the
boundary line of the Purchase Property and the Remaining Property
along
the southern boundary of the Purchase Property to Marina Bay Parkway
and
as shown on Parcel Map MS 754-01 recorded on December 24, 2001 in
Book 182
of Maps at pages 38-41, Contra Costa County Official Records and
on the
Acceptable Parcel Map, and the connection between the
sewers.
|
| 10.2.3 |
Fence.
Within ten (10) days after the Close of Escrow Buyer, at Buyer's
cost and
expense (including any fees) and subject to the approval of Seller,
shall
install a temporary chain link fence separating the Purchase Property
and
the Remaining Property.
|
| 10.2.4 |
New
Parking Area.
Within twelve (12) months after the Close of Escrow, for the areas
to be
designated by Seller on Lot 2, Buyer, at Buyer's cost and expense
(including any fees) and subject to the approval of Seller, shall
complete
the design and engineering work and the construction work for new
parking
areas of not less than the greater of (i) three hundred (300) parking
spaces or (ii) the number of parking spaces required by the City.
The work
for the new parking areas shall include, grading, paving, stripping
parking spaces, landscaping, lighting, irrigation lines, fire lines,
and
fire lanes.
|
| 10.2.5 |
Transformer;
Utilities.
Buyer shall not, and shall not permit any contractor or subcontractor
or
any other person to (a) use any electrical service from the existing
transformer serving the Property, or (b) interfere with any utility
service accessing the Remaining Property through the Purchase
Property.
|
| 10.2.6 |
Grading.
Buyer shall not change the grade of the Purchase Property to a grade
that
will adversely affect the use of, or the storm water drainage to
or from,
the Remaining Property.
|
| 10.2.7 |
Submission
of Plans.
Buyer shall submit the plans and specifications for the design and
engineering work required under this Section 10.2 to Seller at least
ten
(10) Business Days prior to the commencement of the work pursuant
to such
plans and specifications so that Seller may inform Buyer whether
the
design and engineering work meets with Seller¡¦s
approval.
|
| 10.2.8 |
"As
Built" Plans.
Buyer shall furnish Seller with two hard copies and one soft copy
of the
"as built" plans and specifications for the work performed pursuant
to
this Section 10.2 as soon as such work is
completed.
|
| 10.2.9 |
Governmental
Approvals.
Buyer, at Buyer's cost and expense (including any fees), shall obtain
in a
timely manner all governmental approvals required in connection with
the
work contemplated by this Section 10.2. Buyer shall deliver to Seller
the
original or a copy of each such approval as soon as obtained by
Buyer.
|
| 10.2.10 |
Notice
of Completion.
With respect to any contract made by Buyer for the work to be performed
under this Section 10.2, after completion of such work under such
contract, Buyer shall execute and record, in the official records
of the
County of Contra Costa, a Notice of Completion meeting the requirements
of
California Civil Code Section 3093.
|
| 10.2.11 |
Insurance.
Buyer shall purchase and maintain insurance protecting Seller from
claims
which may arise out of or result from the work performed in connection
with this Section 10.2, including liability, property damage and
workmen¡¦s compensation. All such insurance shall name Seller as insured
or additional insured, shall be issued by an insurer or insurers
satisfactory to Seller, shall be written for not less than the limits
of
liability specified on Exhibit G hereto, and shall be otherwise
satisfactory to Seller.
|
Certificates
of the insurance policies required under this Section 10.2.11 shall be delivered
to Seller not less than thirty five (30 5)
/s/ SK /s/ HSL days prior to the commencement
of the work to be performed
under this Section 10.2."
| 3. |
Section
11.1 of the Agreement is hereby amended by adding "SECTION 8," on
lines
three and ten thereof after "OBLIGATIONS UNDER" and before "SECTION
10.2".
|
Seller's
Initials /s/ HSL
Buyer's Initials /s/ SK
| 4. |
Section
11.2 of the Agreement is hereby amended by adding "SECTION 8," on
line two
thereof after "OBLIGATIONS UNDER" and before "SECTION
10.2".
|
Seller's
Initials /s/ HSL
Buyer's
Initials /s/ SK
| 5. |
Except
as amended and restated by this Sixth Amendment, all terms, conditions
and
provisions of the Agreement shall remain in full force and
effect.
|
| 6. |
This
Sixth 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.
|
1
IN
WITNESS HEREOF, the
parties hereto have executed this Sixth 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/ J. Xxxxxx
Xxxxxxxx
Name:
Ho-Xxxxx
Xxx, Ph.D. Name:
J.
Xxxxxx
Xxxxxxxx
Its: President
and
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 Sixth 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: _______________________________
Name:
Xxxxxx
X.
Xxxxxxx
Its: Assistant
Vice President
Date
of
Execution: ____________________
2
EXHIBIT
G
INSURANCE
Liability $5,000,000
Property
damage $5,000,000
Workers'
compensation $2,000,000
Employer's
practice liability $1,000,000
