SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND PRELIMINARY ESCROW INSTRUCTIONS
Exhibit
10.8.2
SECOND
AMENDMENT TO
AND
PRELIMINARY ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond,
California]
This
Second Amendment to Purchase and Sale Agreement and Preliminary Escrow
Instructions (the "Second
Amendment")
is
entered into as of April 29th, 2004, 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 and a First Amendment
to
Purchase and Sale Agreement and Preliminary Escrow Instructions as
of
March 1, 2004 (collectively, the "Agreement").
|
| B. |
Seller
and Buyer desire to amend and restate certain provision of the Agreement
as provided in this Second
Amendment.
|
The
parties agree as follows:
AGREEMENT
| 1. |
Section
3.5 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
|
|
"3.5
|
$250,000
Payment to Seller.
If Buyer has not elected to not proceed with its purchase of the
Purchase
Property pursuant to Section 3.3 or 7.2, then on the date of August
26,
2004, the Buyer shall pay to Seller by wire transfer the amount of
Two
Hundred Fifty Thousand Dollars
($250,000.00)."
|
| 2. |
A
new Section 3.6 is hereby added to the Agreement to read as
follows:
|
|
"3.6
|
$500,000
Payment to Seller.
If (a) the City has approved the Tentative Map and (b) Buyer has
requested
the first extension of the Closing Date as provided in Section 13.2.2,
then on or before the Closing Date as in effect prior to such first
extension, the Buyer shall pay to Seller by wire transfer the amount
of
Five Hundred Thousand Dollars ($500,000). The payment under Section
3.5
and the payment under this Section 3.6 are hereinafter individually
and
collectively referred to as the "Payment".
|
| 3. |
Section
3.6 of the Agreement is hereby renumbered as Section 3.7 of the
Agreement.
|
| 4. |
Section
3.7 of the Agreement is hereby renumbered as Section 3.8 of the
Agreement.
|
| 5. |
A
new Section 10.3 is hereby added to the Agreement to read as
follows:
|
|
"10.3
|
Soil.
|
|
10.3.1
|
Placement
of Soil.
Seller hereby agrees that if the City has approved the Tentative
Map, then
(a) Buyer may place soil on that part of the Purchase Property designated
on Exhibit E hereto on top of the existing site improvements, and
(b)
Buyer and Buyer's architects, consultants, contractors and engineers
performing services or work in connection with this Section 10.3
may enter
upon the Purchase Property to perform such services or
work.
|
The
placement of soil shall be completed in accordance with plans and specifications
approved by Seller and in compliance with all applicable laws, rules,
regulations, and ordinances.
The
plans
and specifications shall include traffic lanes and fire lanes and protection
for
site improvements, utilities, the Remaining Property and adjacent landowners,
and a date and time schedule for the services and work to be
performed.
Buyer
shall submit the plans and specifications to Seller at least sixty (60) days
prior to the commencement of the placement of soil so that Seller may inform
Buyer whether the plans and specifications meet with Seller's
approval.
1
Buyer
agrees that each of Buyer's architects, consultants, contractors and engineers
performing services or work for the placement of soil will be properly qualified
and licensed to perform such services and work.
Not
less
than two (2) Business Days prior to the first entrance
upon the Purchase Property by Buyer or any of Buyer's architects, consultants,
contractors or engineers, in connection with the services or work for the
placement of soil, Buyer will give Seller written notice of such intended
entrance.
|
10.3.2
|
Restoration.
If the Close of Escrow does not occur on or before the Closing Date,
on or
before the date falling sixty (60) days after the Closing Date Buyer
shall
restore the Purchase Property to substantially the same condition
it was
in prior to the placement of soil.
|
|
10.3.3
|
Buyer's
Responsibility.
Buyer shall be responsible for all direct, indirect, consequential,
incidental, special and other damages, whether in contract or in
tort,
which may arise out of or result from the services or the work performed
in connection with this Section
10.3.
|
|
10.3.4
|
Insurance.
Buyer shall purchase and maintain insurance protecting Seller from
claims
which may arise out of or result from the services and work performed
in
connection with this Section 10.3, 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 F hereto, and shall be otherwise
satisfactory to Seller.
|
Certified
copies of the insurance policies required under this Section 10.3.4 shall be
delivered to Seller not less than thirty (30) days prior to the commencement
of
the placement of soil.
|
10.3.5
|
Bonds.
Buyer shall purchase and maintain bonds protecting Seller from mechanics'
liens which may arise out of or result from the services and work
performed in connection with this Section 10.3 and guaranteeing Seller
that Buyer will perform its obligations under this Section 10.3.
All such
bonds shall name Seller as obligee, shall be issued by a surety or
sureties satisfactory to Seller, shall be written for not less than
the
limits specified on Exhibit F hereto, and shall be otherwise satisfactory
to Seller.
|
The
bonds
required under this Section 10.3.5 shall be delivered to Seller not less than
thirty (30) days prior to the commencement of the placement of
soil.
|
10.3.6
|
Costs.
Buyer shall be responsible for and shall pay directly all costs,
fees and
expenses incurred in connection with the plans and specifications
for the
placement of soil, the placement of soil, any restoration of the
Purchase
Property required under Section 10.3.2 and the insurance and bonds
required under Sections 10.3.4 and
10.3.5."
|
| 6. |
Section
11.1 of the Agreement is hereby amended by adding the words and numbers
"AND SECTION 10.3" on lines three and ten thereof after the words
and
numbers "SECTION 10.2" and before the closing
parenthesis.
|
| 7. |
Section
11.2 of the Agreement is hereby amended by adding the words and numbers
"OR SECTION 10.3" at the end of line two thereof after the words
and
numbers "SECTION 10.2" and before the
colon.
|
| 8. |
Section
13.2 of the Agreement is hereby amended by renumbering and renaming
the
Section as "Section 13.2.1 Extension
of Closing Date if City has not Approved the Tentative
Map",
the reference to "Section 13.2" in line 2 of the renumbered Section
13.2.1
is hereby amended to read "Section 13.2.1", and a new Section 13.2.2
is
hereby added to the Agreement to read as
follows:
|
|
"13.2.2
|
Extension
of Closing Date if City has Approved the Tentative Map.
Buyer may request Seller to extend the Closing Date as provided and
subject to the conditions precedent in this Section
13.2.2.
|
If
(a)
the City has approved the Tentative Map and (b) Buyer requires the extension
in
order to perform services and work in connection with Section 10.3, then Buyer
may request Seller to extend the Closing Date up to three (3) times. Each such
extension may extend the Closing Date to the date falling up to thirty (30)
days
after the Closing Date as in effect prior to such extension, but no later than
May 31, 2005.
The
first
such extension is subject to the condition precedent that, on or before the
Closing Date as in effect prior to such extension, Seller shall have received
from Buyer by wire transfer the payment under Section 3.6.
2
Each
such
extension is subject to the conditions precedent that, on or before the Closing
Date as in effect prior to such extension (a) Seller and Escrow Agent shall
each
have received from Buyer a written notice of Buyer's request to Seller to extend
the Closing Date, (b) the extension is required to perform services and work
in
connection with Section 10.3, and (c) Seller shall have received from Buyer
by
wire transfer an extension payment in the amount of Fifty Thousand Dollars
($50,000.00). The extension payments are not applicable to the Purchase Price
and 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.
| 9. |
Except
as amended and restated by this Second Amendment, all terms, conditions
and provisions of the Agreement shall remain in full force and
effect.
|
|
10.
|
This
Second Amendment may be executed in any number of identical counterparts.
If so executed, each of such counterparts is to be deemed an original
for
all purposes, and all such counterparts shall, collectively, constitute
one agreement. The signature pages of each counterpart may be combined
to
form one Agreement. The parties agree that the executed counterparts
may
be transmitted by fax and that such faxed copy will be deemed as
an
original hereof.
|
[signatures
on following page]
3
IN
WITNESS HEREOF,
the
parties hereto have executed this Second 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 X. Xxxxxxx
|
|
Name:
Ho-Xxxxx
Xxx, Ph.D.
|
Name:
Xxxxxx
X. Xxxxxxx
|
|
Its:
President & CEO
|
Its:
Attorney-in-Fact
|
Acceptance
by Escrow Holder
CHICAGO
TITLE COMPANY hereby acknowledges that it has received originally executed
counterparts or a fully executed original of the foregoing Second 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/
Xxxxxx Xxxxxxx
Name:
Xxxxxx
Xxxxxxx
Its:
Assistant
Vice President
Date
of
Execution: 5-3-05
4
5
EXHIBIT
F
INSURANCE
|
Liability
|
|
|
Property
damage
|
$5,000,000
|
|
Workmen¡¦s
compensation
|
$2,000,000
|
|
Employer¡¦s
practice liability
|
$1,000,000
|
BONDS
|
Mechanics¡¦
Liens
|
$250,000
|
|
Performance
|
$250,000
|
