PURCHASE AND SALE AGREEMENT AND PRELIMINARY ESCROW INSTRUCTIONS [Portion of DiCon Fiberoptics, Inc. Land, Regatta Boulevard, Richmond, California]
Exhibit
10.8
AND
PRELIMINARY ESCROW INSTRUCTIONS
[Portion
of DiCon Fiberoptics, Inc. Land, Regatta Boulevard, Richmond,
California]
This
Purchase and Sale Agreement and Preliminary Escrow Instructions (the
"Agreement")
is
entered into as of February 27, 2004, (the "Agreement
Date")
between
DICON FIBEROPTICS, INC., a California corporation ("Seller")
and
PULTE HOME CORPORATION, a Michigan corporation ("Buyer").
RECITALS
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A.
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Seller
is the owner of certain real property located in the City of Richmond
(the
"City"),
County of Contra Costa (the "County"),
State of California, which real property is designated as Lots 1,
2, 3,
and 4 of that certain Parcel Map MS 754-01, dated November 1, 2001,
and
recorded in the official records of the County on December 24, 2001
(the
"Property").
The real property located within Lots 3 and 4 and that portion of
the real
property located within Lot 2 lying directly east and north of Lot
3 of
the Parcel Map MS 754-01 is collectively referred to as the "Overall
Property".
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B.
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Seller
desires to sell a portion of the Overall Property to Buyer, and Buyer
desires to purchase the same from Seller, upon the terms and conditions
contained in this Agreement.
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The
parties agree as follows:
AGREEMENT
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1.
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Purchase
and Sale.
Seller hereby agrees to sell to Buyer, and Buyer agrees to purchase
from
Seller, the Purchase Property. The
"Purchase
Property" shall
mean an approximately eleven (11) acre portion of the Overall Property,
as
generally depicted in the crosshatched area shown on Exhibit A hereto,
together with any improvements situated thereon as of the Agreement
Date
and all easements and rights appurtenant to such real property and
improvements. Prior to the expiration of the Due Diligence Period
(defined
in Section 3.1), a survey of the Purchase Property shall be completed
by a
licensed land surveyor selected by Buyer and approved by Seller for
the
purpose of determining the precise area and location of the Purchase
Property. The survey shall not increase the acreage of the Purchase
Property to more than twelve (12) acres, reduce the acreage of the
Purchase Property to less than ten (10) acres or change the location
of
the Purchase Property from the general location set forth in Exhibit
A.
The western boundary of the Purchase Property shall be a straight
line
lying in a north-south direction and connecting the northern border
and
the southern border of the Overall Property. Buyer shall be responsible
for and shall pay directly all costs, fees and expenses incurred
in
connection with the survey. Seller shall have the right to approve
the
survey. The Seller¡¦s right to approve or disapprove the survey shall be
absolute and unconditional under any and all circumstances. If Seller
disapproves of the survey, the survey shall be revised so that it
meets
with Seller¡¦s approval. The "Remaining
Property" shall
mean that part of the Property which is not Purchase
Property.
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2.
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Purchase
Price.
The purchase price ("Purchase
Price")
for the Purchase Property shall be $26.00 times the number of Actual
Square Feet. "Actual
Square Feet"
shall mean the actual gross square footage of the Purchase Property
as
determined by the Acceptable Parcel Map (defined in Section 6.4)
for the
Purchase Property, without deduction for any portion thereof lying
within
any street, right-of-way, easement, or
encroachment.
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3.
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Escrow;
Deposit; General Release; Payment.
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3.1
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Opening
of Escrow.
The transaction contemplated by this Agreement shall be consummated
through an escrow ("Escrow")
with CHICAGO
TITLE COMPANY
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Escrow
Agent"
or
"Title
Company").
Prior to the execution of this Agreement, Seller and Buyer shall
open
Escrow with Escrow Agent. The period commencing on the Agreement
Date and
ending on the date of April 29, 2004, is the "Due
Diligence Period".
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3.2
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Deposit;
General Release.
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| (a) |
Within
three (3) Business Days after the Agreement Date, Buyer shall deposit
into
Escrow the sum of Two Hundred Fifty Thousand Dollars ($250,000.00)
(the
"Deposit").
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1
| (b) |
Simultaneously
with the execution of this Agreement, Buyer shall deliver to Seller
a
general release, waiver of claims and covenant not to ▇▇▇ in the
form of
Exhibit B hereto, duly executed and acknowledged by Buyer ("General
Release").
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3.3
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Deposit
Refundable During Due Diligence Period.
On or before the date of April 29, 2004, Buyer may elect not to proceed
with its purchase of the Purchase Property by written notice received
by
Seller and Escrow Agent on or before the date of April 29, 2004.
If Buyer
so elects as provided in the preceding sentence and Seller and Escrow
Agent have received the notice of Buyer¡¦s election as provided in the
preceding sentence:
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| (a) |
Buyer
shall immediately pay Escrow Agent its fees and
costs;
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| (b) |
Escrow
Agent shall immediately refund the Deposit to
Buyer;
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| (c) |
Escrow
Agent shall immediately pay Buyer interest which accrued on the Deposit
while held by Escrow Agent;
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| (d) |
The
General Release shall become effective
immediately;
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| (e) |
Buyer
shall have no obligation under this Agreement to purchase the Purchase
Property from Seller, or to process and obtain the approval of the
parcel
maps pursuant to Section 6 and the Tentative Map (defined in Section
8.1);
and
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| (f) |
Seller
shall have no obligation under this Agreement to sell the Purchase
Property to Buyer.
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3.4
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Deposit
Released 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, on the date of April 30,
2004,
the Escrow Agent shall, and Buyer hereby irrevocably instructs Escrow
Agent to, release and pay the Deposit (but not the accrued interest
thereon) to Seller.
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3.5
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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, on the date of April 26,
2004,
the Buyer shall pay to Seller the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) (the
"Payment").
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3.6
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Deposit
and Payment Non-Refundable.
The Deposit (after the release and payment of the Deposit to Seller
pursuant to Section 3.4) and the Payment shall be non-refundable
to Buyer
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 or the occurrence of any default by Buyer
or by
Seller, under this Agreement, except as provided in Section
11.3.
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3.7
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Investment
and Reinvestment of Deposit.
The Deposit and all other funds deposited
by Buyer, for so long as they may be held by the Escrow Agent under
this
Agreement, will be invested and reinvested by the Escrow Agent in
any
demand deposit or savings account(s) of any California state or federal
savings and loan association or California state bank or national
banking
association. All interest earned under such account(s) will accrue
to
Buyer.
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4.
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Payment
of Purchase
Price.
The Purchase Price will be payable to Seller in cash through Escrow
at the
Close of Escrow. The amount of the Deposit and the Payment actually
received by Seller shall be applied to the Purchase Price on the
Close of
Escrow.
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5. Documents
and Investigations.
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5.1
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Delivery
of Documents.
Seller will within ten (10) days after the Agreement Date deliver
to
Buyer, for Buyer¡¦s review, copies of the documents listed on Exhibit C
hereto (the "Property
Documents").
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Buyer
agrees to treat all the Property Documents as confidential, not to disclose
any
information gained by review of the Property Documents to any third parties
other than Buyer¡¦s employees, agents, consultants, attorneys, and prospective
lenders, investors and other financing sources for purposes related to Buyer¡¦s
purchase of the Purchase Property, to use such information only in connection
with its proposed purchase of the Purchase Property hereunder, and to take
all
measures necessary to safeguard such information in order to preserve its
confidentiality.
Buyer
agrees that it will obtain from the person responsible for preparing a Property
Document that person¡¦s prior written consent to the disclosure and use of the
Property Document and any information gained by review of the Property Document
permitted by the preceding paragraph.
2
Buyer
shall rely solely upon its own independent investigation concerning matters
contained in the Property Documents. Without limiting the provisions of this
Section or Section 5.3 below, Buyer acknowledges and agrees that Seller has
not
made any representation or warranty, express or implied, as to the accuracy
or
completeness of the Property Documents or the information contained in the
Property Documents, and that Seller shall have no responsibility for the
accuracy or completeness of the Property Documents or the information contained
in the Property Documents.
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5.2
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Buyer's
Investigation.
Seller hereby agrees that Buyer and Buyer's agents, engineers,
contractors, representatives and employees before the Closing Date
may
enter upon the Purchase Property for purposes of performing, at Buyer's
expense, an ALTA, boundary, and/or other survey, engineering studies,
Hazardous Materials (defined below) and soils tests, and such other
feasibility studies and inspections as Buyer shall determine in its
sole
discretion (collectively, "Investigations").
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Buyer
shall not, and shall not permit any of its agents, engineers, contractors,
representatives and employees to, conduct any Investigations within twenty
(20)
feet from any building.
Buyer
agrees that (a) each of Buyer's agents, engineers, contractors, representatives
and employees will be properly qualified and licensed to perform the
Investigations with respect to the Purchase Property required by Buyer; (b)
not
less than two (2) Business Days prior to each entrance upon the Purchase
Property by Buyer or any of Buyer's agents, engineers, contractors,
representatives and employees, Buyer will give Seller written notice of such
intended entrance and deliver to Seller insurance certificates evidencing the
workmen's compensation and liability insurance covering each of Buyer¡¦s agents,
engineers, contractors, representatives and employees who will be entering
upon
the Purchase Property, which insurance coverage must have general liability
limits of $2,000,000 and be otherwise reasonably satisfactory to Seller; and
(c)
Buyer will permit Seller's employees to accompany each of Buyer's agents,
engineers, contractors, representatives and employees entering upon the Purchase
Property.
A
draft
copy of each report, survey, study, test and inspection prepared pursuant to
the
Investigations shall be delivered to Seller for review and comment at least
five
(5) Business Days before such report, survey, study, test or inspection is
finalized. Buyer shall provide Seller with a copy of each final report, survey,
study, test and inspection as soon as the same is finalized.
All
Investigations shall be at the sole expense of Buyer.
Buyer
shall restore the Purchase Property to substantially the same condition it
was
in prior to the Investigations.
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5.3
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Condition
of Property.
Buyer acknowledges and agrees that it is purchasing the Purchase
Property
based solely upon Buyer's Investigations of the Purchase Property,
and
that Buyer is purchasing the Purchase Property in an "AS IS, WITH
ALL
FAULTS" condition, without relying upon any representations or warranties,
express, implied or statutory, of any kind. Without limiting the
above,
Buyer acknowledges and agrees that neither Seller nor any of Seller¡¦s
directors, officers, employees or agents has made any representations
or
warranties, express or implied, as to any matters, directly or indirectly,
concerning the Purchase Property including, but not limited to, the
land,
the square footage of the Purchase Property, improvements and
infrastructure, if any, development rights and exactions, expenses
associated with the Purchase Property, taxes, assessments, bonds,
permissible uses, title exceptions, water or water rights, topography,
utilities, zoning, soil, subsoil, soil and subsoil remediation, the
purposes for which the Purchase Property may be used, the Purchase
Property's fitness for Buyer's intended use, the availability of
such
intended use under applicable law or rule or regulation or ordinance,
drainage, environmental or building laws or rules or regulations
or
ordinances, Hazardous Materials (defined below in this Section 5.3),
or
any other matters affecting or relating to the Purchase Property.
The
Close of Escrow shall be conclusive evidence that (a) Buyer has inspected
(or has caused to be inspected) the Purchase Property to the extent
deemed
by Buyer to be necessary or advisable for its own purposes, (b) Buyer
accepts the Purchase Property as being in good and satisfactory condition
and suitable for Buyer's purposes, and (c) the Purchase Property
fully
complies with Seller's covenants and obligations
hereunder.
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Buyer
further acknowledges and agrees that Seller's cooperation with Buyer in
connection with Buyer's due diligence review of the Purchase Property, whether
by providing the Title Report (defined in Section 7.1), the Property Documents
and other documents, or permitting inspection of the Purchase Property, shall
not be construed as any warranty or representation, express or implied, of
any
kind with respect to the Purchase Property, or with respect to the accuracy,
completeness, or relevance of any such documents.
3
Without
limiting the generality of the foregoing, Buyer hereby expressly waives,
releases and relinquishes, and hereby covenants and agrees that it will forever
refrain from instituting, reinstating, maintaining or prosecuting, any and
all
claims, causes of action, suits, rights and remedies Buyer may now or hereafter
have against Seller, and the directors, officers, employees, and agents of
Seller, whether known or unknown, with respect to any past, present or future
presence or existence of Hazardous Materials on, under or about the Purchase
Property or with respect to any past, present or future violations of any laws,
rules, regulations or ordinances, now or hereafter enacted, regulating or
governing the use, handling, storage, release or disposal of Hazardous
Materials, including, without limitation, (a) any and all rights Buyer may
now
or hereafter have to seek contribution from Seller under Section 113(f)(i)
of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act
of
1986 (42 U.S.C.A. Section 9613), as the same may be further amended or replaced
by any similar law, rule or regulation, (b) any and all rights Buyer may now
or
hereafter have against Seller under the ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous
Substances Account Act (California Health and Safety Code, Section 25300 et
seq.), as the same may be further amended or replaced by any similar law, rule
or regulation, (c) any and all claims, whether known or unknown, now or
hereafter existing, with respect to the Purchase Property under Section 107
of
CERCLA (42 U.S.C.A. Section 9607), as the same may be further amended or
replaced by any similar law, rule or regulation, and (d) any and all claims,
whether known or unknown, based on nuisance, trespass or any other common law
or
statutory provisions. As used herein, the term "Hazardous
Material(s)"
includes, without limitation, any hazardous or toxic materials, substances
or
wastes, such as (i) those materials identified in Chapters 10 and 11 of Title
22
of the California Administrative Code, Division 4.5, as amended from time to
time, (ii) those materials defined in Section 25001 (o), (p) and (q) of the
California Health and Safety Code, as amended from time to time, (iii) any
materials, substances or wastes which are toxic, ignitable, corrosive or
reactive and which are regulated by any local governmental authority, any agency
of the State of California or any agency of the United States Government, (iv)
asbestos, (v) petroleum and petroleum based products, (vi) urea formaldehyde
foam insulation, (vii) polychlorinated biphenyls (PCBs), and (viii) freon and
other chlorofluorocarbons.
BUYER
HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET FORTH
BELOW:
"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
BY
INITIALING BELOW, BUYER HEREBY WAIVES THE PROVISIONS OF SECTION
1542.
Buyer's
Initials
/s/
SK
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6.
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Parcel
Maps.
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6.1
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Buyer's
Obligation.
Buyer shall prepare and process with the City in compliance with
all
applicable laws, rules, regulations, and ordinances parcel maps,
one of
which will describe the Purchase Property and the other of which
will
describe the Remaining Property. The parcel map for the Purchase
Property
shall replicate the area and the location of the Purchase Property
as
shown on the survey of the Purchase Property completed pursuant to
Section
1, except
that if the City requires the boundary between the Purchase Property
and
the Remaining Property (the western boundary of the Purchase Property
and
the eastern boundary of the Remaining Property) to be moved west
no more
than fifteen (15) feet or east no more than fifteen (15) feet as
a
condition of the City's approval of the parcel maps, then the boundary
between the Purchase Property and the Remaining Property shall be
moved to
the extent required by such condition.
The parcel map for the Remaining Property shall contain two lots.
The
parcel maps shall include all the site requirements, easements and
terms
and conditions for the Purchase Property and the Remaining Property.
Buyer
shall use reasonably commercial efforts to obtain the City's approval
of
the parcel maps as soon as possible. Buyer shall be responsible for
and
shall pay directly all costs, fees and expenses incurred in connection
with the parcel maps.
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6.2
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Seller's
Approvals.
Seller shall have the right to approve the parcel maps (including
all
related documents, applications, maps, drawings, plans and materials)
as a
condition precedent to the submission of the parcel maps to the
City.
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4
Seller
shall have the right to approve any amendment or modification of the parcel
maps
(and of any related documents, applications, maps, drawings, plans and
materials) after the submission of the parcel maps to the City and any
conditions requested or imposed by the City in connection with the processing
of
the parcel maps by the City.
The
Seller's right to approve or disapprove under this Section 6.2 is subject to
the
exception in Section 6.1 concerning the movement of the boundary between the
Purchase Property and the Remaining Property west no more than fifteen (15)
feet
or east no more than fifteen (15) feet pursuant to a condition of the City's
approval of the parcel maps.
Any
item
of which Seller disapproves under this Section 6.2 shall be revised so that
it
meets with Seller¡¦s approval.
If
Seller
does not approve or disapprove of an item under this Section 6.2 on or before
ten (10) days after receiving the same, Seller shall be deemed to have approved
the item.
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6.3
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Information
to Seller.
Buyer shall submit the parcel maps along with all related documents,
applications, maps, drawings, plans and materials to Seller at least
five
(5) Business Days prior to submission to the
City.
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6.4
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Recording
of Acceptable Parcel Maps.
The parcel maps prepared by Buyer, approved by Seller, and approved
by the
City, pursuant to this Section 6 are referred to as the "Acceptable
Parcel Maps".
The Acceptable Parcel Maps shall be recorded in the Official Records
of
the County prior to or concurrently with the Close of
Escrow.
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7.
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Title.
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7.1
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Title
Report.
Within five (5) Business Days after the Agreement Date, Seller, at
Seller¡¦s cost and expense, shall cause to be issued by the Title Company
a current preliminary title report ("Title
Report")
covering the Overall Property. The Title Report shall set forth the
state
of title to the Overall Property together with all exceptions or
conditions to such title, including, but not limited to, all easements,
restrictions, rights-of-way, covenants, reservations and all other
encumbrances affecting the Overall Property which would appear in
an
owner's policy of title insurance if issued. Buyer shall also be
furnished
with true, correct and legible copies of all instruments referred
to in
the Title Report as conditions or exceptions to title to the Overall
Property, (collectively, "supporting
documents").
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7.2
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Title
Objections.
Buyer shall give written notice to Seller and Escrow Agent approving
or
disapproving the exceptions set forth in the Title Report (other
than
Approved Exceptions (defined in Section 7.3)) within fifteen (15)
days
following the later of (a) Buyer's receipt of the Title Report, all
supporting documents and the Property Documents, or (b) the Agreement
Date. Seller will have fifteen (15) days ("Seller's
Response Period")
after receipt of Buyer's notice to notify Buyer and Escrow Agent
of
Seller's intent to cause any exceptions disapproved by Buyer to be
removed
by the Close of Escrow. If Seller fails to notify Buyer and Escrow
Agent
within Seller's Response Period that Seller does not intend to cause
the
disapproved exceptions to be removed, then Seller shall be deemed
to have
notified Buyer and Escrow Agent that Seller does not intend to cause
the
disapproved exceptions to be removed. If Seller notifies Buyer and
Escrow
Agent or is deemed to have notified Buyer and Escrow Agent that Seller
does not intend to cause the disapproved exceptions to be so removed,
then
Buyer will, by written notice received by Seller and Escrow Agent
no later
than ten (10) days after the expiration of Sellers' Response Period,
either withdraw Buyer's objections to the exceptions that Seller
will not
remove or elect not to proceed with its purchase of the Purchase
Property.
If Buyer fails to notify Seller and Escrow Agent as provided in the
preceding sentence, then Buyer shall be deemed to have notified Seller
and
Escrow Agent that it is withdrawing Buyer's objections to the exceptions
that Seller will not remove. If Buyer elects not to proceed with
its
purchase of the Purchase Property:
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| (a) |
Buyer
shall immediately pay Escrow Agent its fees and
costs;
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| (b) |
Escrow
Agent shall immediately refund the Deposit to
Buyer;
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| (c) |
Escrow
Agent shall immediately pay Buyer interest which accrued on the Deposit
while held by Escrow Agent;
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| (d) |
The
General Release shall become effective
immediately;
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| (e) |
Buyer
shall have no obligation under this Agreement to purchase the Purchase
Property from Seller, or to process and obtain the approval of the
parcel
maps pursuant to Section 6 and the Tentative Map;
and
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| (f) |
Seller
shall have no obligation under this Agreement to sell the Purchase
Property to Buyer.
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7.3
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Approved
Exceptions.
"Approved
Exceptions" means:
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| (a) |
all
title exceptions in the Title Report approved by Buyer (including
those
for which Buyer has withdrawn or is deemed to have withdrawn an objection)
pursuant to Section 7.2;
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| (b) |
all
liens to secure payment of general and special real property taxes
and
assessments, not delinquent;
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| (c) |
all
liens of supplemental taxes assessed pursuant to the provisions of
Chapter
3.5 of the California Revenue and Taxation Code, Section 75 et.
seq.;
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| (d) |
all
matters affecting the condition of title created by or resulting
from the
Acceptable Parcel Maps or the Tentative Map (defined in Section
8.1);
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| (e) |
all
exceptions created by or resulting from any act or omission of Buyer
or
any of its agents, engineers, contractors, representatives and
employees;
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| (f) |
all
exceptions created by or resulting from any act or omission of any
governmental authority in response to any activities of Buyer or
Seller
pursuant to Sections 6 or 8 of this
Agreement;
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| (g) |
all
applicable laws, rules, regulations and ordinances (including, but
not
limited to, those relative to building, zoning and land use) affecting
the
development, use, occupancy or enjoyment of the Purchase
Property;
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| (h) |
all
matters which would be revealed by a survey of the Purchase
Property;
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| (i) |
all
matters which could be revealed by an inspection of the Purchase
Property;
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| (j) |
all
matters which could be ascertained by making inquiry of the parties
or
persons in possession of the Purchase
Property;
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| (k) |
all
standard exceptions and exclusions in the Title
Report;
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| (l) |
all
standard exceptions and exclusions in the Title Policy (defined
in Section
7.4).
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7.4
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Title
Insurance.
On the Close of Escrow, Seller shall convey to Buyer good and marketable
fee title to the Purchase Property, which conveyance shall be effected
by
the recordation of the Grant Deed (defined in Section 13.3), insured
upon
recordation by Buyer's "Title
Policy,"
which shall consist of an CLTA (or ALTA if elected by Buyer) Owner's
Policy of Title Insurance issued by the Title Company in the full
amount
of the Purchase Price, showing title to the Purchase Property vested
in
Buyer, subject only to the Approved Exceptions. The issuance by the
Title
Company of the Title Policy as provided in the preceding sentence
shall be
conclusive evidence that Seller has complied with its obligations
(express
and implied) to convey to Buyer good and marketable fee title to
the
Purchase Property.
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8.
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Tentative
Subdivision Map.
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8.1
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Buyer's
Development.
Buyer shall develop the Purchase Property for single family attached
or
detached homes pursuant to a tentative subdivision map of the Purchase
Property ("Tentative
Map").
Buyer shall use reasonably commercial efforts to obtain the City's
approval of the Tentative Map as soon as possible. Buyer shall be
responsible for and shall pay directly all costs, fees and expenses
incurred in connection with the Tentative
Map.
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8.2
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Seller's
Approvals.
Seller shall have the right to approve the Tentative Map (including
all
related documents, applications, maps, drawings, plans and materials)
as a
condition precedent to the submission of the Tentative Map to the
City.
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6
Seller
shall have the right to approve any amendment or modification of the Tentative
Map (and of any related documents, applications, maps, drawings, plans and
materials) after the submission of the Tentative Map to the City and any
conditions requested or imposed by the City in connection with the processing
of
the Tentative Map by the City.
Seller
may refuse to approve the Tentative Map, any amendment or modification of the
Tentative Map, and any related document, application, map, drawing, plan or
material, if Seller determines that the Tentative Map, any amendment or
modification of the Tentative Map, or any related document, application, map,
drawing, plan or material, may cause or result in any material negative impact
on the value or the use of the Remaining Property, including but not limited
to
any requirement that Seller apply for or obtain new or modified approvals for
Seller's use of the Remaining Property, or may cause or result in any material
adverse effect on Seller's use and enjoyment of the Remaining Property, or
may
cause or result in any material burden or restriction on the Remaining
Property.
Any
item
of which Seller disapproves under this Section 8.2 shall be revised so that
it
meets with Seller's approval.
If
Seller
does not approve or disapprove of an item under this Section 8.2 on or before
five (5) Business Days after receiving the same, Seller shall be deemed to
have
approved the item.
|
8.3
|
Information
to Seller.
Buyer shall provide to Seller copies of the Tentative Map, any amendment
or modification of the Tentative Map, and all related documents,
applications, maps, drawings, plans and materials, at least five
(5)
Business Days prior to submission to the City. Buyer shall, on a
regular
basis, keep Seller fully informed of the status of the Tentative
Map and
shall notify Seller at least five (5) Business Days in advance of
any
public meeting or private meeting (which Seller shall be permitted
to
attend) relating to the Tentative
Map.
|
|
9.
|
Representations.
|
|
9.1
|
Seller's
Representations.
Seller makes the following representations and warranties to Buyer
on and
as of the Agreement Date and the Close of
Escrow.
|
|
9.1.1
|
Authority.
The individual signing this Agreement on behalf of Seller has the
power,
right and authority to (a) enter into this Agreement, (b) bind Seller
hereto, and (c) consummate the transaction contemplated hereby, without
the consent or joinder of any other party (other than the City approval
required for the Acceptable Parcel
Maps).
|
|
9.1.2
|
California
Franchise Withholding.
Seller is exempt from the provisions of Section 18662 of the California
Revenue and Taxation Code and neither Buyer nor Escrow Agent is required
to withhold any amounts from the purchase price pursuant
thereto.
|
|
9.2
|
Buyer's
Representations.
Buyer hereby represents and warrants to Seller on and as of the Agreement
Date and the Close of Escrow that the individual signing this Agreement
on
behalf of Buyer has the power, right and authority to (a) enter into
this
Agreement and (b) bind Buyer hereto, and (c) consummate the transaction
contemplated hereby, without the consent or joinder of any other
party
(other than the City approval required for the Acceptable Parcel
Maps).
|
|
10.
|
Covenants.
|
|
10.1
|
Seller's
Covenants.
Seller covenants as follows until the Close of
Escrow:
|
|
10.1.1
|
No
Improvements.
Seller shall not construct any additional improvements on the Purchase
Property.
|
|
10.1.2
|
Maintain
the Purchase Property.
Seller shall maintain the Purchase Property in its condition existing
on
the Agreement Date.
|
|
10.1.3
|
Enter
into No Agreements.
Seller shall enter into no agreements with the City, the County,
any other
governmental agency, utility company or any person or entity regarding
the
Purchase Property, which would remain in effect after the Close of
Escrow,
without obtaining Buyer¡¦s prior written consent, which Buyer shall not
unreasonably withhold.
|
7
|
10.2
|
Buyer's
Covenants.
|
|
10.2.1
|
Utilities.
Buyer, at Buyer's cost and expense (including any fees) and subject
to the
approval of Seller, shall arrange for (a) the design and engineering
work
for the separation of all utility services and all fire lines and
fire
lanes between the Purchase Property and the Remaining Property, and
(b)
the completion of the physical separation of all utility services
and all
fire lines and fire lanes pursuant to the design and engineering
work
provided for in the preceding subsection (a) effective on and as
of the
Closing Date. The design and engineering work and the construction
work
provided for in this Section shall be subject to the approval of
Seller.
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.
|
|
10.2.2
|
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.
|
|
10.2.3
|
New
Parking Area.
Within eighteen (18) months after the Close of Escrow, for the area
designated as "New Parking" in Exhibit A, Buyer, at Buyer's cost
and
expense (including any fees) and subject to the approval of Seller,
shall
arrange for (a) the design and engineering work for grading, paving,
painting not less than the greater of (i) three hundred (300) parking
spaces or (ii) the number of parking spaces required by the City,
landscaping and lighting, and (b) the completion of the grading,
paving,
painting, landscaping and lighting pursuant to the design and engineering
work provided for in the preceding subsection
(a).
|
|
10.2.4
|
Standpipe.
Within one (1) year after obtaining the first building permit to
construct
a home or homes on the Purchase Property, and at Buyer's cost and
expense
(including any fees), Buyer shall install a standpipe on the south
west
corner of the Remaining Property.
|
|
10.2.5
|
Transformer.
Within one (1) year after obtaining the first building permit to
construct
a home or homes on the Purchase Property, and at Buyer's cost and
expense
(including any fees), Buyer shall cause a transformer to be installed
on
the Purchase Property adequate for all electrical service to the
improvements contemplated for the Purchase
Property.
|
|
10.2.6
|
No
Interference.
Buyer shall not, and shall not permit any contractor or subcontractor
or
any other person to, interfere with any utility service accessing
the
Remaining Property through the Purchase
Property.
|
|
10.2.7
|
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.
|
Buyer
shall submit the plans and specifications for the design and engineering work
required under this Section 10.2 to Seller at least sixty (60) days prior to
the
Close of Escrow so that Seller may inform Buyer whether the design and
engineering work meets with Seller's approval.
|
11.
|
Remedies.
|
|
11.1
|
Liquidated
Damages to Seller.
IF BUYER FAILS TO PERFORM ANY OF BUYER¡¦S OBLIGATIONS UNDER THIS AGREEMENT
(EXCEPT OBLIGATIONS UNDER SECTION 10.2) AND SELLER HAS NOTIFIED BUYER
IN
WRITING OF SUCH DEFAULT, OR IF ANY REPRESENTATION OR WARRANTY UNDER
SECTION 9.2 IS NOT TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN
MADE AND
SELLER HAS NOTIFIED BUYER IN WRITING OF SUCH DEFAULT, OR IF THE CLOSE
OF
ESCROW DOES NOT OCCUR ON OR BEFORE THE CLOSING DATE BECAUSE OF A
DEFAULT
BY BUYER UNDER SECTIONS 12.1.1 (EXCEPT OBLIGATIONS UNDER SECTION
10.2),
12.1.2 OR 12.1.3 AND SELLER HAS NOTIFIED BUYER IN WRITING OF SUCH
DEFAULT,
OR IF THE CLOSE OF ESCROW DOES NOT OCCUR ON OR BEFORE THE CLOSING
DATE
BECAUSE THE ACCEPTABLE PARCEL MAPS HAVE NOT BEEN RECORDED OR THE
TITLE
COMPANY IS NOT PREPARED TO RECORD THE ACCEPTABLE PARCEL MAPS CONCURRENTLY
WITH THE CLOSE OF ESCROW AND SELLER HAS NOTIFIED BUYER IN WRITING
OF SUCH
FAILURE, THE PARTIES AGREE THAT SELLER SHALL BE DEEMED RELEASED FROM
SELLER'S OBLIGATION TO SELL THE PURCHASE PROPERTY TO BUYER. IN SUCH
EVENT,
SELLER SHALL BE ENTITLED TO THE DEPOSIT AND THE PAYMENT AS LIQUIDATED
DAMAGES, WHICH THE PARTIES AGREE IS A REASONABLE SUM CONSIDERING
ALL THE
CIRCUMSTANCES EXISTING ON THE AGREEMENT DATE, INCLUDING THE DIFFICULTY
OR
IMPRACTICALITY OF DETERMINING THE ACTUAL DAMAGES TO
SELLER.
|
8
SUCH
LIQUIDATED DAMAGES SHALL BE SELLER¡¦S EXCLUSIVE REMEDY FOR SUCH DEFAULT, AND
SELLER SHALL ACCEPT SAID LIQUIDATED DAMAGES IN PLACE OF ANY
OTHER
RIGHTS OR REMEDIES IT MAY HAVE AGAINST BUYER INCLUDING, BUT NOT LIMITED TO,
ANY
RIGHT TO SPECIFIC PERFORMANCE OR TO RECOVER DAMAGES. THE LIQUIDATED DAMAGES
HEREUNDER ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT ARE INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CIVIL CODE SECTIONS 1671, 1676 AND
1677. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION
3389.
THE GENERAL RELEASE SHALL BECOME EFFECTIVE IMMEDIATELY UPON SELLER NOTIFYING
BUYER OF A DEFAULT OR FAILURE AS PROVIDED ABOVE IN THIS SECTION
11.1.
Seller's
Initials /s/
HSL
Buyer's Initials
/s/
SK
|
11.2
|
Other Damages to Seller. IF BUYER FAILS TO PERFORM ANY OF BUYER¡¦S OBLIGATIONS UNDER SECTION 10.2: |
| (A) |
IF
THE CLOSE OF ESCROW HAS NOT YET OCCURRED, SELLER MAY TERMINATE ITS
OBLIGATION TO SELL THE PURCHASE PROPERTY TO BUYER BY WRITTEN NOTICE
TO
BUYER OF SUCH DEFAULT; AND
|
| (B) |
BUYER
SHALL BE LIABLE TO SELLER FOR ALL DIRECT, INDIRECT, CONSEQUENTIAL,
INCIDENTAL AND SPECIAL DAMAGES RESULTING FROM SUCH DEFAULT.
|
|
11.3
|
Liquidated
Damages to Buyer.
IF THE CLOSE OF ESCROW DOES NOT OCCUR ON OR BEFORE THE CLOSING DATE
BECAUSE OF A DEFAULT BY SELLER UNDER SECTIONS 12.2.1, 12.2.2, 12.2.5
OR
12.2.6 AND BUYER HAS NOTIFIED SELLER IN WRITING OF SUCH DEFAULT,
THE
PARTIES AGREE THAT BUYER SHALL BE ENTITLED TO EITHER (BUT NOT BOTH)
OF THE
FOLLOWING REMEDIES AT BUYER'S ELECTION: (A) THE RETURN OF THE DEPOSIT
AND
THE PAYMENT AS LIQUIDATED DAMAGES, AND IN SUCH EVENT THE PARTIES
AGREE
THAT SELLER SHALL BE DEEMED RELEASED FROM SELLER'S OBLIGATION TO
SELL THE
PURCHASE PROPERTY TO BUYER, OR (B) IF THE ACCEPTABLE PARCEL MAP FOR
THE
PURCHASE PROPERTY HAS BEEN RECORDED, TO PURSUE SPECIFIC PERFORMANCE
OF THE
AGREEMENT. BUYER SHALL BY WRITTEN NOTICE RECEIVED BY SELLER NO LATER
THAN
SIXTY (60) DAYS AFTER THE CLOSING DATE NOTIFY SELLER OF WHETHER IT
HAS
ELECTED THE REMEDY PROVIDED IN CLAUSE (A) ABOVE OR THE REMEDY PROVIDED
IN
CLAUSE (B) ABOVE. IF BUYER FAILS TO NOTIFY SELLER AS PROVIDED IN
THE
PRECEDING SENTENCE, THEN BUYER SHALL BE DEEMED TO HAVE NOTIFIED SELLER
IN
WRITING THAT IT HAS ELECTED THE REMEDY PROVIDED IN CLAUSE (A)
ABOVE.
|
THE
PARTIES AGREE THAT THE LIQUIDATED DAMAGES PROVIDED UNDER CLAUSE (A) ABOVE IS
A
REASONABLE SUM CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE AGREEMENT
DATE,
INCLUDING THE DIFFICULTY OR IMPRACTICALITY OF DETERMINING THE ACTUAL DAMAGES
TO
BUYER.
THE
REMEDIES PROVIDED IN THIS SECTION 11.3 SHALL BE BUYER'S EXCLUSIVE REMEDIES
FOR
SUCH DEFAULT, AND BUYER SHALL ACCEPT SAID REMEDIES IN PLACE OF ANY OTHER RIGHTS
OR REMEDIES IT MAY HAVE AGAINST SELLER INCLUDING, BUT NOT LIMITED TO, ANY RIGHT
TO RECOVER DAMAGES. BUYER SHALL NOT BE ENTITLED TO RECORD A LIS PENDENS AGAINST
THE PURCHASE PROPERTY OTHER THAN IN CONNECTION WITH AN ACTION FOR SPECIFIC
PERFORMANCE OF THE AGREEMENT PURSUANT TO CLAUSE (B) ABOVE.
THE
LIQUIDATED DAMAGES PROVIDED UNDER CLAUSE (A) ABOVE ARE NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS
3275
OR 3369, BUT ARE INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO BUYER PURSUANT
TO
CIVIL CODE SECTION 1671. BUYER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 3389. THE GENERAL RELEASE SHALL BECOME EFFECTIVE IMMEDIATELY UPON
THE
RETURN OF THE DEPOSIT AND THE PAYMENT AS LIQUIDATED DAMAGES AS
PROVIDED
IN CLAUSE (A) ABOVE.
Seller's
Initials /s/
HSL Buyer's
Initials
/s/
SK
9
|
12.
|
Closing
Conditions.
|
|
12.1
|
Seller's
Conditions Precedent.
Seller's obligation to sell the Purchase Property is subject to the
conditions precedent that, on the Close of
Escrow:
|
|
12.1.1
|
Buyer
Performed All Obligations.
Buyer shall have performed each and every of Buyer's obligations
under
this Agreement.
|
|
12.1.2
|
Buyer's
Representations and Warranties Are True.
All of Buyer's representations and warranties set forth in Section
9.2 of
this Agreement shall be true and correct in all material respects
on and
as of the Agreement Date and the Close of
Escrow.
|
|
12.1.3
|
Buyer's
Deliveries.
Buyer shall have deposited with Escrow Agent all funds required under
Section 13.4.1.
|
|
12.1.4
|
Acceptable
Parcel Maps.
The Acceptable Parcel Maps have been recorded or the Title Company
is
prepared to record the Acceptable Parcel Maps concurrently with the
Close
of Escrow.
|
|
12.2
|
Buyer's
Conditions Precedent.
Buyer's obligation to purchase the Purchase Property is subject to
the
conditions precedent that, on the Close of
Escrow:
|
|
12.2.1
|
Seller
Performed All Obligations.
Seller shall have performed each and every of Seller's obligations
under
this Agreement.
|
|
12.2.2
|
Seller's
Representations and Warranties Are True.
All of Seller's representations and warranties set forth in Section
9.1 of
this Agreement shall be true and correct in all material respects
on and
as of the Agreement Date and the Close of
Escrow.
|
|
12.2.3
|
Title
Company Can Issue Title Policy.
The Title Company shall be ready, willing and able to issue Buyer¡¦s Title
Policy to Buyer at the Close of Escrow, and Seller shall be ready,
willing
and able to convey good and marketable fee title to the Purchase
Property
to Buyer at the Close of Escrow, both except for and subject to the
Approved Exceptions. The willingness of the Title Company to issue
the
Title Policy as provided in Section 7.4 shall be conclusive evidence
that
Seller is ready, willing and able to convey to Buyer good and marketable
fee title to the Purchase Property, except for and subject to the
Approved
Exceptions.
|
|
12.2.4
|
Acceptable
Parcel Maps.
The Acceptable Parcel Maps have been recorded or the Title Company
is
prepared to record the Acceptable Parcel Maps concurrently with the
Close
of Escrow.
|
|
12.2.5
|
Seller's
Deliveries.
Seller shall have delivered to Escrow Agent the documents described
in
Section 13.4.2 below.
|
|
12.2.6
|
Possession
at Closing.
Seller shall be ready, willing and able to deliver possession of
the
Purchase Property to Buyer at the Close of Escrow, free from any
rights or
claims of rights of possession of any person or entity, except for
and
subject to the Approved Exceptions.
|
|
13.
|
Escrow
Closing.
|
|
13.1
|
Closing
of Escrow.
The Close of Escrow shall occur on or before the earlier of (a) thirty
(30) days after the City has approved the Tentative Map, or (b) the
date
of February 28, 2005, and may be extended as provided in Section
13.2 (the
"Closing
Date").
The Close of Escrow shall be the date on which the Grant Deed (defined
below) is recorded in the Official Records of the County (the
"Close
of Escrow").
|
|
13.2
|
Extension
of Closing Date.
Buyer may elect to extend the Closing Date as provided and subject
to the
conditions precedent in this Section
13.2.
|
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.
If
Buyer
has extended the Closing Date as provided in the preceding sentence 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.
10
If
Buyer
has extended the Closing Date as provided in the preceding sentence 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.
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 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).
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.
|
13.3
|
Grant
Deed.
Title to the Purchase Property shall be conveyed by a grant deed
("Grant
Deed")
in the form of Exhibit D hereto.
|
|
13.4
|
Deposit
into Escrow.
|
|
13.4.1
|
Deposit
by Buyer.
Buyer shall at least three (3) Business Days before the Closing Date
deposit with Escrow Agent the Purchase Price for the Purchase Property
and
any other funds necessary to close
escrow.
|
|
13.4.2
|
Deposit
by Seller.
Seller shall at least two (2) Business Days before the Closing Date,
deposit the following into Escrow:
|
|
(a)
|
Grant
Deed.
The Grant Deed, duly executed and acknowledged by Seller;
and
|
|
(b)
|
FIRPTA
Certificate.
A
certificate satisfying the requirements of Section 1445 of the Internal
Revenue Code of 1986, as amended (the "FIRPTA
Certificate").
|
|
13.5
|
Prorations.
Real property taxes and general assessments for the then current
tax year
shall be prorated as of the Close of Escrow on the basis of the value
of
the land with offsite improvements and without buildings, excluding
any
increase arising from the purchase and sale under this Agreement.
If the
Close of Escrow shall occur before the tax rate is fixed for the
then
current year, the apportionment of taxes shall be based upon the
tax rate
for the preceding year applied to the latest assessed valuation,
and after
the taxes are assessed for the then current year, Buyer and Seller
shall
adjust the amount actually due by a new proration based upon the
new rate
and upon demand the proper party shall promptly pay the differential
in
cash to the other party. Seller shall not be responsible for any
taxes and
assessments incurred or assessed applicable to any period after the
Close
of Escrow.
|
|
13.6
|
Possession.
Seller shall deliver possession of the Purchase Property to Buyer
at the
Close of Escrow, free from any rights or claims of rights of possession
of
any person or entity, except for and subject to the Approved Exceptions.
|
|
13.7
|
Costs
of Escrow.
All title premiums and other escrow related fees and closing costs
shall
be paid as between Seller and Buyer as
follows:
|
| (a) |
Seller
shall pay County transfer taxes;
|
| (b) |
Buyer
shall pay all premiums for the Title
Policy;
|
| (c) |
Seller
and Buyer shall each pay one-half (1/2) of the Escrow fees and City
transfer taxes;
|
| (d) |
Buyer
shall pay all other costs and expenses required for the Close of
Escrow,
including without limitation recording
fees.
|
|
13.8
|
Reporting
to Internal Revenue Service.
Escrow Agent shall report this transaction to the Internal Revenue
Service
pursuant to Section 6045 of the Internal Revenue Code of 1986, as
amended.
|
|
14.
|
Condemnation.
If, prior to the Close of Escrow, all or any portion of the Purchase
Property is subject to an actual taking by a public authority by
the power
of eminent domain (a "taking"),
Buyer shall accept that portion of the Purchase Property subject
to such
taking without any reduction in the Purchase Price, and shall be
entitled
to any compensation or award relating to that portion of the Purchase
Property subject to such
taking.
|
11
|
15.
|
Commissions.
Buyer and Seller each represent and warrant to the other that they
have
not entered into any agreement,
incurred any obligation or know of any facts which might result in
an
obligation for any party to pay a sales or brokerage commission or
finder's fee for this transaction, except that Buyer has agreed to
pay a
commission to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Broker")
pursuant to a separate written agreement between Broker and Buyer.
The
Broker shall not be
entitled to a commission if this transaction does not close. Buyer
and
Seller each agree to indemnify and hold the other harmless from any
and
all liabilities, claims, damages, and costs, including reasonable
attorneys' fees, arising from a breach of the representation and
warranty
set forth in the first sentence of this
Section.
|
|
16.
|
Backup
Offers.
On and after the Agreement Date but only until the expiration of
the Due
Diligence Period if Buyer has not elected to not proceed with its
purchase
of the Purchase Property pursuant to Section 3.3 or 7.2, Seller shall
have
the right to market the Purchase Property and negotiate with third
parties
concerning the sale of the Purchase Property. On and after the Agreement
Date but only until the expiration of the Due Diligence period if
Buyer
has not elected to not proceed with its purchase of the Purchase
Property
pursuant to Section 3.3 or 7.2, Seller shall have the right to make
and
accept "backup" offers and to execute "backup" agreements subject
to this
Agreement for the sale of the Purchase
Property.
|
|
17.
|
No
Recorded Memorandum.
Buyer shall not record this Agreement or any short form memorandum
of this
Agreement.
|
|
18.
|
Further
Documents.
This Agreement shall be preliminary escrow instructions to Escrow
Agent.
Each party will, whenever and as often as it shall be requested by
the
other party or Escrow Agent, execute, acknowledge and deliver or
cause to
be executed, acknowledged and delivered, such further instruments
and
documents as may be reasonably necessary in order to complete the
transactions contemplated by this Agreement, including without limitation
such escrow instructions as may be required by Escrow Agent. If there
is a
conflict between this Agreement and any escrow instructions, this
Agreement shall control.
|
|
19.
|
Time
is of the Essence.
Time is of the essence of the Agreement and the escrow provided for
herein.
|
|
20.
|
Survival.
The agreements, covenants, representations, warranties, indemnities,
releases and waivers of the parties shall survive the Close of Escrow
and
the recordation of the Grant Deed, and shall not be deemed merged
into the
Grant Deed upon its recordation.
|
|
21.
|
Relationship
of the Parties.
The relationship of Seller and Buyer is solely that of vendor and
vendee.
Nothing is intended to create a partnership, joint venture, or a
fiduciary
relationship between the parties or make one party the agent of the
other.
|
|
22.
|
Notices.
All notices given pursuant to this Agreement shall be in writing.
If
notice is received on a day which is not a Business Day (defined
in
Section 23), or on a Business Day after 5:00 P.M., it shall be deemed
received on the next Business Day. For purposes of notice, the addresses
of the parties are as follows, which may be changed by five (5) days
prior
written notice:
|
|
To
Seller:
|
To
Buyer
|
|
DICON
FIBEROPTICS, INC.
|
PULTE
HOME CORPORATION
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Attn:
▇▇▇▇ ▇▇▇▇▇
|
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
With
copy to:
|
With
copy to:
|
|
DICON
FIBEROPTICS, INC.
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
To
Escrow Agent:
|
|
CHICAGO
TITLE COMPANY
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
12
|
23.
|
Business
Days.
A
"Business Day" is a day of the week from 8:00 A.M. through 5:00 P.M.,
Monday through Friday, but excluding holidays, as defined by California
Government Code Sections 6700 and 6701, and the Thursday in November
known
as Thanksgiving Day and the day after Thanksgiving Day. If performance
of
a party or Escrow Agent is specified pursuant to this Agreement to
occur
on a day which is not a Business Day, then such performance shall
be
extended to the next Business Day, and all future performance shall
be
counted from such extended date.
|
|
24.
|
Successors
and Assigns.
This Agreement shall bind and inure to the benefit of the parties
hereto
and their respective successors and assigns; provided, however, that
Buyer
shall not assign this Agreement or any of the rights of Buyer hereunder
without the prior written consent of
Seller.
|
|
25.
|
Waivers;
Writing Required.
No delay or omission to exercise any right under this Agreement shall
impair any such right, nor shall it be construed to be a waiver thereof.
No waiver of any single default under this Agreement shall be deemed
a
waiver of any other default. Any amendment or waiver of any provision
of
this Agreement must be in writing to be
effective.
|
|
26.
|
Attorneys'
Fees.
In any action to enforce this Agreement, the prevailing party shall
be
entitled to reasonable attorneys' fees and
costs.
|
|
27.
|
Indemnification.
Buyer shall indemnify Seller and its directors, officers, employees,
and
agents against and hold Seller and each such person harmless from
any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind or
nature
whatsoever (including attorneys' fees) in any way arising out of
or
attributable to any services or work performed by Buyer or for Buyer
by
any of Buyer's officers, employees, agents, architects, consultants,
contractors, or engineers, in connection with this Agreement.
|
|
28.
|
Paragraph
Headings.
Paragraph headings are for reference only, and shall not affect the
interpretation or meaning of any provision of this
Agreement.
|
|
29.
|
Severability.
The illegality or unenforceability of any provision of this Agreement
shall not in any way affect or impair the legality or enforceability
of
the remaining provisions of this Agreement.
|
|
30.
|
Counterparts.
This Agreement 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.
|
|
31.
|
Governing
Law.
This Agreement shall be governed by and construed under the laws
of the
State of California.
|
|
32.
|
Construction.
Seller and Buyer acknowledge that each party and their counsel have
reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved
against
the drafting party shall not be employed in the interpretation of
this
Agreement or any amendments or exhibits to this Agreement. If any
portion
of this Agreement is declared by a court of competent jurisdiction
to be
invalid or unenforceable, any remaining portion of this Agreement
shall
remain in effect.
|
|
33.
|
Entire
Agreement.
This Agreement, the Exhibits attached hereto and the survey referred
to in
Section 1 (a) integrate all the terms and conditions mentioned herein
or
incidental hereto, (b) supersede all oral negotiations and prior
writings
with respect to the subject matter hereof, and (c) are intended by
the
parties as the final expression of the agreement with respect to
the terms
and conditions set forth in this Agreement, the Exhibits and the
survey
referred to in Section 1 and as the complete and exclusive statement
of
the terms agreed to by the parties.
|
[signatures
on following page]
13
IN
WITNESS HEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
|
Seller:
|
Buyer:
|
|
DICON
FIBEROPTICS, INC.,
|
PULTE
HOME CORPORATION
|
|
a
California corporation
|
a
Michigan corporation
|
|
By: /s/
Ho-▇▇▇▇▇ ▇▇▇
|
By:
/s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Name:
Ho-▇▇▇▇▇
▇▇▇, Ph.D.
|
Name:
J.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
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 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/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Its:
AVP
|
|
Date
of Execution: 3/1/04
|
14
EXHIBIT
A
15
EXHIBIT
B
GENERAL
RELEASE, WAIVER OF CLAIMS AND COVENANT NOT TO ▇▇▇
1. PULTE
HOME CORPORATION, a Michigan corporation ("Buyer") hereby expressly waives,
releases and relinquishes, and hereby covenants and agrees that it will forever
refrain from instituting, reinstating, maintaining or prosecuting, any and
all
claims, causes of action, suits, rights and remedies Buyer may now or hereafter
have against DICON FIBEROPTICS, INC., a California corporation ("Seller"),
whether known or unknown, arising from or relating to that certain Purchase
and
Sale Agreement and Preliminary Escrow Instructions (the "Agreement") entered
into as of February 27, 2004, between Seller and Buyer (the
"Claims").
2. Buyer
hereby waives the provisions of California Civil Code Section 1542, which
provides:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor,"
3. Buyer
hereby represents and warrants that it has not sold, assigned, transferred,
conveyed or otherwise disposed of any of the Claims, and hereby agrees to
indemnify Seller against any and all claims by third persons resulting from
any
such sale, assignment, transfer, conveyance or other disposition.
4. This
General Release, Waiver of Claims and Covenant not to ▇▇▇ shall bind and inure
to the benefit of Buyer and Seller and their respective successors and
assigns.
5. In
any
action to enforce this General Release, Waiver of Claims and Covenant not to
▇▇▇, the prevailing party shall be entitled to reasonable attorneys' fees and
costs.
6. This
General Release, Waiver of Claims and Covenant not to ▇▇▇ shall be governed
by
and construed under the laws of the State of California.
7. This
General Release, Waiver of Claims and Covenant not to ▇▇▇ shall become effective
as provided in Sections 3.3, 7.2, 11.1 and 11.3 of the Agreement.
|
PULTE
HOME CORPORATION, a Michigan corporation
|
|
By:
|
|
Name:
|
|
Title:
|
|
Dated:
February 27, 2004
|
|
STATE
OF
)
|
|
) ss.
|
|
COUNTY
OF
)
|
On
____________________, before me, ___________________, a Notary Public in and
for
said state, personally appeared _______________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose
name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public in and for said State
|
16
EXHIBIT
C
PROPERTY
DOCUMENTS
| 1. |
Med-Tox
Associates, 3/28/90, 4/6/90, 4/11/90, 4/13/90, 4/26/90: Analytical
Laboratory Report.
|
| 2. |
Dames
& ▇▇▇▇▇, 4/10/90: Limited Preliminary Site Assessment Railroad
Properties, California, Illinois, Kansas, New Mexico and
Texas.
|
| 3. |
▇▇▇▇▇▇
▇▇▇▇▇▇, Inc., 4/25/90: Preliminary Site
Assessment.
|
| 4. |
McLaren
▇▇▇▇, 6/18/90: Property Assessment, ▇▇▇▇
▇▇▇▇▇▇ Yard.
|
| 5. |
PES
Environmental, Inc., 9/9/97: Final Removal Action Workplan, Catellus
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
|
| 6. |
PES
Environmental, Inc., 9/10/97: Underground Storage Tank Closure Report,
Catellus ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
|
| 7. |
PES
Environmental, Inc., 9/4/98: Operations and Maintenance Plan, Catellus
Commercial Center Phase I, Richmond,
CA.
|
| 8. |
PES
Environmental, Inc., 11/16/98: Phase I ESA Update, Parcels CA0131106
and
▇▇▇▇▇▇▇▇▇ [vacant parcels], Catellus Commercial Center, Richmond,
CA.
|
| 9. |
PES
Environmental, Inc., 12/29/98: Removal Action Implementation Report,
Catellus ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
|
| 10. |
DTSC
and Catellus, 12/30/98: Operation and Maintenance Agreement, Catellus
Commercial Center Site (Phase I Portion) between ▇▇▇▇▇▇ and Regatta
Blvd.
and between Marina Way South and Marina Bay Parkway, Richmond,
CA.
|
| 11. |
DTSC
and Catellus, 12/30/98: Covenant to Restrict Use of Property
(Environmental Restrictions), Regatta Business Park at Marina Bay
(formerly known as Phase I of Catellus Commercial Center) located
on the
east side of Marina Way South between ▇▇▇▇▇▇ Avenue and Regatta Blvd,
Richmond, CA.
|
| 12. |
DTSC,
12/31/98: Approval of Removal Action Implementation Report, Catellus
Commercial Center, Richmond, CA.
|
| 13. |
DTSC,
1/12/99 Completion of Oversight of Removal Activities as outlined
in the
Voluntary Cleanup Agreement, Catellus Commercial Center, Richmond,
CA.
|
| 14. |
PES,
2/8/99: Phase I ESA Update, Parcel ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇. [CA0131108]
|
| 15. |
PES,
7/13/99: Documentation of Groundwater Monitoring Well Destruction,
Former
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
|
| 16. |
▇▇▇▇▇▇▇▇▇
& Rollo, 4/21/00: Geotechnical Investigation [Project No.
2774.01].
|
| 17. |
▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, 7/24/01: Final Geotechnical Services Report [Project No.
2774.02].
|
| 18. |
DES
Architects + Engineers, 2/02/98: Storm Water Pollution Prevention
Plan for
Catellus Commercial Center, Richmond,
CA.
|
| 19. |
▇▇▇▇▇▇
▇▇▇▇▇▇, Inc., 3/18/97: Initial Study for the 23rd
Street, Richmond, CA.
|
| 20. |
LSA
Associates, Inc., 4/04/00: Initial Study for the Proposed DiCon
Fiberoptics Project [EID00-03].
|
17
EXHIBIT
D
GRANT
DEED
RECORDING
REQUESTED BY
AND
WHEN
RECORDED MAIL
THIS
GRANT DEED AND ALL
TAX
STATEMENTS TO:
PULTE
HOME CORPORATION
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________________________________________________________________________________
(Above
Space for Recorder's Use Only)
GRANT
DEED
Documentary
Transfer Tax not shown
pursuant
to Section 11932 of the Revenue
and
Taxation Code, as amended.
FOR
VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, DICON
FIBEROPTICS, INC., a California corporation ("Grantor"), hereby GRANTS to PULTE
HOME CORPORATION, a Michigan corporation, the following described real property
(the "Property") located in the City of Richmond, County of Contra Costa, State
of California.
SEE
EXHIBIT "1" ATTACHED HERETO AND INCORPORATED HEREIN
BY THIS REFERENCE
AND
SUBJECT TO:
| 1. |
Taxes
and assessments.
|
| 2. |
All
other covenants, conditions, restrictions, reservations, rights,
rights of
way, easements, encumbrances, liens and title matters whether or
not of
record or visible from an inspection of the Property and all matters
which
an accurate survey of the Property would
disclose.
|
IN
WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as of the
___
day of ________, 200__.
|
DICON
FIBEROPTICS, INC.,
|
|
|
a
California corporation
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
STATE
OF
)
|
|
|
)
ss.
|
|
|
COUNTY
OF
)
|
On
______________________, before me, ______________________, a Notary Public
in
and for said state, personally appeared _____________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument, the person, or the entity upon behalf of which
the
person acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public in and for said State
|
18
STATEMENT
OF TAX DUE AND REQUEST THAT TAX DECLARATION NOT BE MADE A PART OF THE PERMANENT
RECORD IN THE OFFICE OF THE COUNTY RECORDER
(PURSUANT
TO SECTION 11932 REVENUE AND TAXATION CODE)
|
TO:
|
Recorder |
|
|
County
of Contra
Costa
|
Request
is hereby made in accordance with the provisions of the Documentary Transfer
Tax
Act that the amount of the tax due not be shown on the original document which
names:
|
Grantor:
|
DICON FIBEROPTICS, INC., a California corporation |
|
Grantee:
|
PULTE
HOME CORPORATION, a Michigan
corporation
|
The
property described in the accompanying document is located in the City of
Richmond.
The
amount of tax due on the accompanying document is $____________.
|
_______
|
Computed
on full value of property conveyed.
|
|
_______
|
Computed
on full value, less liens and encumbrances remaining at the time
of
sale.
|
|
DICON
FIBEROPTICS, INC.,
|
|
|
a
California corporation
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Note:
|
After
the permanent record is made, this form will be affixed to the conveying
document and returned with it.
|
19