EXHIBIT 10.15
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "AGREEMENT") dated as of December
31,2001 between the INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF AUBURN ("OWNER")
and FIBERCORE USA, INC., a Delaware corporation ("OPTIONEE").
W I T N E S S E T H:
WHEREAS, Optionee and Employees' Retirement System of Alabama and
Teacher's Retirement System of Alabama ("LENDERS") entered into a Loan Agreement
dated as of December 31, 2001 ("LOAN') wherein Optionee agreed to develop, build
and equip a plant located on the Premises (as such term is defined herein) for
fiber optic manufacturing; more particularly identified, upon the terms and
conditions set forth in the Loan Agreement; and
WHEREAS, Owner has offered and Optionee has accepted certain
business development assistance and benefits (collectively, the "AIBD
AGREEMENTS") a copy of which is attached hereto as Exhibit A; and
WHEREAS, Owner and Optionee are desirous of entering into this
Agreement for the purpose of setting forth the agreements of the parties with
respect to the conveyance of the Premises from Owner to Optionee.
NOW, THEREFORE, for good and valuable consideration Owner and
Optionee agree as follows:
Section 1. Premises. Owner hereby grants, bargains and sells to
Optionee an exclusive option, irrevocable on the part of Owner until September
30, 2002 (the "OPTION EXPIRATION DATE") to purchase:
(a) the land more particularly described in Exhibit B attached
hereto (the "LAND");
(b) all right, title and interest of Owner, if any, in and to the
land lying in the bed of any street in front of or adjoining the Land to the
center line thereof and to any unpaid award or any taking by condemnation for
any damage to the Land by reason of a change of grade of any street or highway;
(c) the appurtenances and all the estate and rights of Owner in and
to the Land and Buildings; and
(d) all right, title and interest of Owner, if any, in and to the
fixtures, equipment and other personal property attached or appurtenant to the
Land (all of the foregoing being collectively called the "PREMISES").
Section 2. Purchase Price. The purchase price is Twenty-Five
Thousand and No/100 Dollars ($25,000.00) and shall be payable in full as soon as
possible after the Closing (as such term is hereinafter defined) in cash or by
bank or certified check to the order of Owner, which shall be returned to
Optionee upon the exercise of the Option.
Section 3. Intentionally Omitted.
Section 4. Title. The Premises are to be conveyed subject to the
matters set forth in Exhibit C attached hereto.
Section 5. Exercise of Option and Closing Date. Notice of the
election of Optionee to purchase the Premises (the "ELECTION NOTICE") shall be
given to Owner at least fifteen (15) days prior to the Option Expiration Date.
The closing (the "CLOSING") shall take place on or before the Option Expiration
Date on the date designated by Optionee in the Election Notice (the "CLOSING
DATE") at the offices of Lender's attorneys, Messrs., Pappanastos, Wilson &
Associates, P.C., at 25 South Court Street, Montgomery, Alabama 36104.
Section 6. Deed and Taxes. At the Closing:
(a) Owner shall deliver to Optionee a statutory warranty deed with
covenant against grantor's acts so as to convey fee simple title to the Premises
free of all encumbrances, except as stated in Section 4 hereof;
(b) Optionee shall pay the purchase price.
Section 7. Intentionally Omitted.
Section 8. Representations and Warranties. Owner represents and
warrants to Optionee that:
(a) Owner shall not mortgage or otherwise encumber the Premises
without the prior written consent of Optionee.
Section 9. Apportionments at Closing. The real estate taxes are to
be apportioned as of midnight on the day preceding the Closing.
Section 10. Environmental Hazards. (a) Environmental Representations
and Warranties. Except as otherwise disclosed by that certain Phase I
environmental report (or Phase II environmental report, if required) delivered
to Optionee by Owner in connection with this Agreement (such report is referred
to below as the "ENVIRONMENTAL REPORT"), (i) there are no Hazardous Substances
(defined below) or underground storage tanks in, on, or under the Premises,
except those that are both (A) in compliance with Environmental Laws (defined
below) and with permits issued pursuant thereto and (B) fully disclosed to
Optionee in writing pursuant the Environmental Report; (ii) there are no past,
present or threatened Releases (defined remediated in accordance with
Environmental Law; (iii) there is no threat of any Release of Hazardous
Substances migrating to the Premises; (iv) there is no past or present
non-compliance with Environmental Laws, or with permits issued pursuant thereto,
in connection with the Premises which has not been fully remediated in
accordance with Environmental Law;
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(v) Owner does not know of, and has not received, any written or oral notice or
other communication from any person (including, but not limited to, a
governmental authority) re1ating to Hazardous Substances or Remediation (defined
below) thereof of possible liability of any person pursuant to any Environmental
Law other environmental conditions in connection with the Premises, or any
actual or potential administrative or judicial proceedings in connection with
any of the foregoing and (vi) Owner has truthfully and fully provided to
Optionee, in writing, any and all information relating to conditions in, on,
under or from the Premises that is known to Owner and all information that is
contained in Owner's files and records, including, but not limited to, any
reports relating to Hazardous Substances in, on, under or from the Premises
and/or to the environmental condition of the Premises.
"ENVIRONMENTAL LAW" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to protection of human health or the environment, relating
to Hazardous Substances, relating to liability for or costs of Remediation or
prevention of Releases of Hazardous Substances or relating to liability for or
costs of other actual or threatened danger to human health or the environment.
Environmental Law includes, but is not limited to, the following statutes, as
amended, any successor thereto, and any regulations promulgated pursuant
thereto, and any state or local statutes, ordinances, rules, regulations and the
like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to underground storage tanks); the Solid Waste Disposal Act; the Clean Water
Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking
Water Act; the Occupational Safety and Health Act; the Federal Water Pollution
Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the
Endangered Species Act; the National Environmental Policy Act; and the River and
Harbors Appropriation Act. Environmental Law also includes, but is not limited
to, any present and future federal, state and local laws, statutes, ordinances,
rules, regulations and the like, as well as common law: conditioning transfer of
Premises upon a negative declaration or other approval of a governmental
authority of the environmental condition of the Premises; requiring notification
or disclosure of Releases of Hazardous Substances or other environmental
condition of the Premises to any governmental authority or other Person, whether
or not in connection with transfer of title to or interest in Premises; imposing
conditions or requirements in connection with permits or other authorization for
lawful activity; relating to nuisance, trespass or other causes of action
related to the Premises; or relating to wrongful death, personal injury, or
Premises or other damage in connection with any physical condition or use of the
Premises.
"HAZARDOUS SUBSTANCES" include, but are not limited to any and all
substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or future Environmental Laws or that may have a
negative impact on human health or the environment, including but not limited to
petroleum and petroleum products, asbestos and asbestos-containing materials,
polychlorinated biphenyls, lead, radon, radioactive materials, flammables and
explosives, but excluding substances of kinds and in amounts ordinarily and
customarily used or stored in similar
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properties for the purpose of cleaning or other maintenance or operations and
otherwise in compliance with all Environmental Laws.
"RELEASE" of any Hazardous Substance includes, but is not limited
to, any release, deposit, discharge, emission, leaking, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances.
"REMEDIATION" includes, but is not limited to, any response,
remedial, removal, or corrective action, any activity to cleanup, detoxify,
decontaminate, contain or otherwise remediate any Hazardous Substance, any
actions to prevent, cure or mitigate any Release of any Hazardous Substance, any
action to comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment, audit,
sampling and testing, laboratory or other analysis, or evaluation relating to
any Hazardous Substances or to anything referred to in this Section.
(b) Environmental Covenants. During the period that this Agreement
is in effect, owner covenants and agrees that: (i) all uses and operations on or
of the Premises, whether by Owner or any other person shall be in compliance
with all Environmental Laws and permits issued pursuant thereto; (ii) there
shall be no Releases of Hazardous Substances in, on, under or from the Premises;
(iii) there shall be no Hazardous Substances in, on, or under the Premises,
except those that are both (A) in compliance with all Environmental Laws and
with permits issued pursuant thereto and (B) fully disclosed to Optionee in
writing; (iv) Owner shall keep the Premises free and clear of all liens and
other encumbrances imposed pursuant to any Environmental Law, whether due to any
act or omission of Owner or any other person (the "ENVIRONMENTAL LIENS"); (v)
Owner shall, at its sole cost and expense, fully and expeditiously cooperate in
all activities pursuant to Section 10(c) below, including, but not limited to,
providing all relevant information and making knowledgeable persons available
for interviews; (vi) Owner shall, at its sole cost and expense, perform any
environmental site assessment or other investigation of environmental conditions
in connection with the Premises, pursuant to any reasonable written request of
Optionee made in the event that Optionee has reason to believe that an
environmental hazard exists on the Premises (including, but not limited to,
sampling, testing and analysis of soil, water, air, building materials and other
materials and substances whether solid, liquid or gas), and share with Optionee
the reports and other results thereof, and Optionee and other Indemnified
Parties shall be entitled to rely on such reports and other results thereof;
(vii) Owner shall, at its sole cost and expense, comply with all reasonable
written requests of Optionee made in the event that Optionee has reason to
believe that an environmental hazard exists on the Premises (A) reasonably
effectuate Remediation of any condition (including, but not limited to, a
Release of a Hazardous Substance) in, on, under or from the Premises; (B) comply
with any Environmental Law; (C) comply with any directive from any governmental
authority and (D) take any other reasonable action necessary or appropriate for
protection of human health or the environment; (viii) Owner shall not do or
allow any user of the Premises to do any act that materially increases the
dangers to human health or the environment, poses an unreasonable risk of harm
to any person (whether on or off the Premises,, impairs or may impair the value
of the Premises, is contrary to any requirement of any insurer, constitutes a
public or private nuisance, constitutes waste, or violates any covenant,
condition, agreement or easement applicable to the Premises and (ix) Owner shall
immediately notify Optionee in writing of (A) any presence or Releases or
threatened Releases of Hazardous Substances in on, under from
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or migrating towards the Premises; (B) any non-compliance with any Environmental
Laws related in any way to the Premises; (C) any actual or potential
Environmental Lien; (D) any required or proposed Remediation of environmental
conditions relating to the Premises and (E) any written or oral notice or other
communication of which Owner becomes aware from any source whatsoever
(including, but not limited to, a governmental entity) relating in any way to
Hazardous Substances or Remediation thereof, possible liability of any Person
pursuant to any Environmental Law, other environmental conditions in connection
with the Premises, or any actual or potential administrative or judicial
proceedings in connection with anything referred to in this Section 10.
(c) Optionee's Rights. In the event that Optionee has reason to
believe that an environmental hazard exists on the Premises that does not, in
Optionee's sole discretion, endanger any tenants or other occupants of the
Premises or their guests or the general public or materially and adversely
affect the value of the Premises, upon reasonable notice from Optionee Owner
shall, at Owner's expense, promptly cause an engineer or consultant,
satisfactory to Optionee, to conduct any environmental assessment or audit (the
scope of which shall be determined in Optionee's sole and absolute discretion)
and take any samples of soil, groundwater or other water, air, or building
materials or any other invasive testing requested by Optionee and promptly
deliver the results of any such assessment, audit sampling or other testing;
provided, however if such results are not delivered to Optionee within a
reasonable period or if Optionee has reason to believe that an environmental
hazard exists on the Premises that, in Optionee's sole judgment, endangers any
tenant or other occupant of the Premises or their guests or the general public
or may materially and adversely affect the value of the Premises, upon
reasonable notice to Owner, Optionee and any other Person designated by
Optionee, including, but not limited to, any receiver, any representative of a
governmental entity, and any environmental consultant, shall have the right, but
not the obligation to enter upon the Premises at all reasonable times to assess
any and all aspects of the environmental condition of the Premises and its use,
including, but not limited, to conducting any environmental assessment or audit
(the scope of which shall be determined in Optionee's sole and absolute
discretion) and taking samples of soil, ground water or other water, air, or
building materials, and reasonably conducting other invasive testing. Owner
shall cooperate with and provide Optionee and any such Person designated by
Optionee with access to the Premises.
(d) Environmental Indemnification. Owner shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless Optionee from and
against any and losses and costs of Remediation (whether or not performed
voluntarily), engineers' fees, environmental consultants' fees, and costs of
investigation (including, but not limited to, sampling, testing, and analysis of
soil, water, air, building materials and other materials and substances whether
solid, liquid or gas) imposed upon or incurred by or asserted against any
Optionee, and directly or indirectly arising out of or in any way relating to
any one (1) or more of the following: (i) any presence of any Hazardous
Substances in, on, above, or under the Premises; (ii) any past, present or
threatened Release of Hazardous Substances in, on, above under or from the
Premises; (iii) any activity by Owner, any person affiliated with Owner or any
tenant or other user of the Premises in connection with any actual, proposed or
threatened use, treatment, storage, holding, existence, disposition or other
Release, generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling, transfer or transportation to or from
the Premises of any Hazardous Substances at any time located in, under, on or
above the
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Premises; (iv) any activity by Owner, any Person affiliated with Owner or any
tenant or other user of the Premises in connection with any actual or proposed
Remediation of any Hazardous Substances at any time located in, under, on or
above the Premises, whether or not such Remediation is voluntary or pursuant to
court or administrative order, including, but not limited to, any removal,
remedial or corrective action; (v) any past or present non-compliance or
violations of any Environmental Laws (or permits issued pursuant to any
Environmental Law) in connection with the Premises or operations thereon,
including, but not limited to, any failure by Owner, any affiliate of Owner or
any tenant or other user of the Premises to comply with any order of any
governmental authority in connection with any Environmental Laws; (vi) the
imposition, recording or filing of any Environmental Lien encumbering the
Premises; (vii) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Section 10;
(viii) any past, present or threatened injury to, destruction of or loss of
natural resources in any way connected with the Premises, including, but not
limit to, costs to investigate and assess such injury, destruction or loss; (ix)
any acts of Owner or other users of the Premises in arranging for disposal or
treatment, or arranging with a transporter for transport for disposal or
treatment, of Hazardous Substances owned or possessed by such Owner or other
users, at any facility or incineration vessel owned or operated by another
person and containing such or any similar Hazardous Substance; (x) any acts of
Owner or other users of the Premises, in accepting any Hazardous Substances for
transport to disposal or treatment facilities, incineration vessels or sites
selected by Owner or such other users, from which there is a Release, or a
threatened Release of any Hazardous Substance which causes the incurrence of
costs for Remediation; (xi) any personal injury, wrongful death, or Premises
damage arising under any statutory or common law or tort law theory, including,
but not limited to, damages assessed for the maintenance of a private or public
nuisance or for the conducting of an abnormally dangerous activity on or near
the Premises and (xii) any misrepresentation or inaccuracy in any representation
or warranty or material breach or failure to perform any covenants or other
obligation pursuant to Section 10(b) hereof. This indemnity shall survive any
termination of this Agreement.
(e) Duty to Defend; Attorneys' Fees and Other Fees and Expenses.
Upon written request by Optionee, Owner shall defend Optionee (if requested by
Optionee, in the name of Optionee) by attorneys and other professionals approved
by Optionee. Notwithstanding the foregoing, if the defendants in any such claim
or proceeding include both Owner and Optionee and Owner and Optionee shall have
reasonably concluded that there are any legal defenses available to it that are
different from or additional to those available to Owner, Optionee shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of Optionee,
provided that no compromise or settlement shall be entered without Owner's
consent, which consent shall not be unreasonably withheld. Upon demand, Owner
shall pay or, in the sole and absolute discretion of Optionee, reimburse
Optionee for the payment of reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith.
(f) Notwithstanding the representations, covenants and agreements
contained in Section 10, Environmental Hazards, the obligations and
responsibilities of the Owner, shall be limited to events and occurrences from
after the time of delivery of the Phase One Environmental Report duly addressed
to Optionee in a form satisfactory to Optionee.
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Section 11. Damage to Premises. In the event the Premises shall be
destroyed or damaged by fire or other cause prior to Closing, Owner shall have
no obligation to repair, restore or replace the same and this Agreement shall
continue in full force and effect without any reduction or abatement in, or
credit against, the purchase price, but Owner shall assign and turn over at the
Closing and Optionee shall be entitled to receive and keep, all insurance
proceeds paid or to be paid with respect to such destruction or damage which
remain after payment or reimbursement has been made for any work theretofore
performed by Owner in connection with the repair and restoration of such
destruction or damage to the Premises.
Section 12. Termination of Agreement. Notwithstanding anything
contained herein, to the contrary this Agreement shall terminate and be of no
further force or effect at such time as Owner shall convey the Premises to
Optionee.
Section 13. Default by Owner. In the event Owner defaults hereunder
Optionee shall have the right, in addition to such rights as Optionee may have
at law or in equity, to apply a portion of the purchase price to satisfy any
liens or encumbrances which Owner is obligated to pay and discharge hereunder.
For the purposes hereof a breach by Owner of any of the representations or
warranties contained in Section 8 hereof shall constitute a default hereunder.
Section 14. Broker. The parties warrant and represent that they have
dealt with no brokers in connection with this transaction. Optionee shall
indemnify and hold Owner harmless from and against any claims asserted by any
broker claiming to have dealt with Optionee in connection with this transaction
and Owner shall indemnify and hold Optionee harmless from and against any claims
asserted by any broker claiming to have dealt with Owner in connection with this
transaction. This paragraph shall survive the Closing.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Alabama.
Section 16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one (1) and the same instrument.
Section 17. Notices. Any notice, request, consent or other
communication under this Agreement (a "NOTICE") shall be in writing and shall be
given by mailing the same by registered or certified mail, return receipt
requested, addressed to the parties at the addresses hereinabove set forth.
Either party may by notice to the other change the address to which notices to
such party shall thereafter be given.
Section 18. Optionee Takes "As Is". Optionee shall accept the
Premises on the Closing "as is" and, except as otherwise expressly provided
herein Owner has made no warranty, representation or agreement with respect to
the condition or the repair of the Premises.
Section 19. Assignment. Optionee shall have the right to assign this
Agreement to a wholly owned subsidiary of Optionee.
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Section 20. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
Section 21. Entire Agreement. All understandings and agreements
heretofore had between the parties are merged in this Agreement, which alone
fully and completely expresses their agreement, and it is entered into after
full investigation, neither party relying upon any statement or representation,
not embodied in this Agreement, made by the other.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties as of the date first above written.
OWNER:
Attest: INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF AUBURN
/s/ Philip Dunlap By: /s/ Norman L. Caldwell
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Philip Dunlap, Secretary Name: Norman L. Caldwell
Title: Chairman of the Board
OPTIONEE:
FIBERCORE USA, INC., a Delaware
corporation
By: Robert Lobban
----------------------------------
Name: Robert Lobban
Title: Chief Financial Officer
STATE OF ALABAMA
COUNTY OF LEE
I, the undersigned authority, a Notary Public and for said County
and State, hereby certify that Norman L. Caldwell, whose name as Chairman of the
Board of the Industrial Development Board of the City of Auburn is signed to the
foregoing Option Agreement and who is known to me, acknowledged before me that
he, acting in his capacity as such officer, executed the same for and as the act
of the corporation.
Given under my hand and official seal this 28th day of December,
2001
/s/ (ILLEGIBLE)
(NOTARY SEAL) -----------------------------------
Notary Public
City of Auburn
Home of Auburn University
July 24, 2001
Mr. Steven Phillips
Chief Financial Officer,
Treasurer and Director
FiberCore, Inc.
253 Worcester Road
Charlton, Massachusetts 01507
Dear Mr. Phillips:
Please accept this letter as a written confirmation of the City of Auburn and
its Industrial Development Board to provide the following incentives to
FiberCore should you select Auburn, Alabama for your new manufacturing facility.
Specifically, Auburn will provide you with the following incentives:
1. Provide to the Company, at no cost, Lot 1 Auburn Technology Park,
North. This lot is approximately 35.04 +/- acres. This site already
has a finished pad of approximately 250,000 square feet (98%
compaction) and is ready for construction. The new Auburn Technology
Park, North will be served by all utilities. The Board has placed a
value on this lot of approximately $1,100,000 (drawing attached).
2. The Board will ensure that all utility connections are brought to
designated locations no greater than five (5) feet from your
building to facilitate connections. This incentive is valued at
$50,000.
3. The City will provide the Company with all available tax abatements
for property and sales and use taxes in connection with land,
building improvements, and capital equipment. The anticipated
millage rate to be abated shall be 23 mils out of a total of 54 mils
applicable in Auburn, Alabama. The millage not abated reflects
school taxes, hospital and children's home. Property tax abatement
is for ten (10) years and sales and use tax abatement are one time
only. We have used total project costs of $46.5 million for
computation purposes. The estimated abatement to the Company has a
value of $3,603,350 (computation attached).
4. The Board will provide assistance to the Company to ensure that all
State of Alabama incentives are obtained. These include the
following:
o Alabama Industrial Development Training -- letter of
commitment attached.
o Capital Investment Tax Credit -- letter of commitment
attached.
144 Tichenor Avenue, Suite 1 o Auburn, Alabama 36830
(334) 501-7260 o FAX: (334) 501-7299 o www.auburnalabama.org
Mr. Steve Phillips
Page two
July 24, 2001
The City of Auburn and its Industrial Development Board are extremely pleased
that FiberCore, Inc. is considering our community for a new manufacturing
facility. We look forward to working with you to make this project a reality.
Please do not hesitate to call us if we may provide you with additional
information.
Industrial Development Board City of Auburn
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Normal L. Caldwell, Chairman Bill Ham, Jr., Mayor
FIBERCORE INC.
Estimated Amounts of Taxes to be Abated:
I. Non-Educational Ad Valorem Taxes:
1.) Proposed new building in Auburn Technology Park North:
Value: $7,500,000 x 20% Assessment
23 mils Abated (non-educational taxes*) = $ 34,500 annually
2.) Land (including site work):
Value: $1,100,000 x 20% Assessment
23 mils Abated (non-educational taxes*) = $5,060 annually
3.) New Mfg. Equipment to be purchased and used in Auburn:
Value: $39,000,000 x 20% Assessment
23 mils Abated (non-educational taxes*) = $ 179,400 annually
Estimated Total Ad Valorem Taxes Abated = $ 218,960 annually
x10
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Ten Year Total = $2,189,600
(*31 Mils are not abated which included: 4.0 Mils for Hospital and Children's
Home)
II. Sales and Use Taxes:
Abatement for Sales Taxes = 6.5% (1.0% County-wide Schools not abated)
Abatement for Machinery in Mfg. = 3.0%
1.) Building materials used in construction:
Materials estimated at $3,750,000 x 6.5% = $ 243,750
2.) New capital equipment purchased for use in
manufacturing in Auburn:
$39,000,000 x 3.0% = $ 1,170,000
Estimated Total Sales and Use Tax Abatement:
(*One Time Only) $ 1,413,750*
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ESTIMATED TOTAL VALUE OF ABATEMENTS = $ 3,603,350
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