THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND PRELIMINARY ESCROW INSTRUCTIONS
Exhibit
10.8.3
THIRD
AMENDMENT TO
AND
PRELIMINARY ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics Inc. Land, Regatta Boulevard, Richmond,
California]
This
Third Amendment to Purchase and Sale Agreement and Preliminary Escrow
Instructions (the “Third
Amendment”)
is
entered into as of February 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, and a Second Amendment to Purchase and Sale Agreement and
Preliminary Escrow Instructions as of April 29, 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
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 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.
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).
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.
|
Section
22 of the Agreement is hereby amended to change the address for notices
to
Buyer as follows:
|
PULTE
HOME CORPORATION
0000
Xxxxxxxxxx Xxxx Xxxx, 0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx
Fax
No.:
(000) 000-0000
|
3.
|
The
parties hereby affirm the Purchase and Sale Agreement and Preliminary
Escrow Instructions dated as of February 27, 2004, the First Amendment
to
Purchase and Sale Agreement and Preliminary Escrow Instructions dated
as
of March 1, 2004, and the Second Amendment to Purchase and Sale Agreement
and Preliminary Escrow Instructions dated as of April 29,
2004.
|
|
4.
|
Except
as amended and restated by this Third Amendment, all terms, conditions
and
provisions of the Agreement shall remain in full force and
effect.
|
|
5.
|
This
Third 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 Third 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 Third 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 X. Xxxxxxx
Name:
Xxxxxx
X.
Xxxxxxx
Its:
Assistant
Vice President
Date
of
Execution: 5-3-05
