OPTION AGREEMENT DATED JUNE 18, 2008
EXHIBIT 10.9
OPTION AGREEMENT DATED JUNE 18, 2008
THIS
OPTION AGREEMENT (this "Agreement") is made
and entered into as of this 18th day of
June, 2008 (the “Effective Date”), by
and between ADVANCED FIBERGLASS TECHNOLOGIES, INC., a Wisconsin corporation
("Buyer"), and
M & W FIBERGLASS, LLC, a Wisconsin limited liability company (the "Company").
RECITALS
WHEREAS,
the Company owns (i) certain real estate, fixtures and improvements comprising
approximately 14.263 acres of land and approximately 70,300 square feet of
manufacturing and office space located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, as more specifically described in Exhibit A attached
hereto (the “Property”);
WHEREAS,
the Company and Buyer are Co-Borrowers under that certain Bond Agreement by and
between the Company, Buyer, City of Wisconsin Rapids, Xxxxx X. Xxxxx, Xxxxxxxx
Xxxxx, and Nekoosa Port Xxxxxxx State Bank (the “Bank”) dated February 28,
2007 (the “Bond
Agreement”);
WHEREAS,
the Company has agreed to grant an option to Buyer, and Buyer has agreed to
acquire an option from the Company, for Buyer to purchase the Property from the
Company on the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Buyer agree as
follows:
ARTICLE I
GRANT
OF OPTION; OPTION FEE; PURCHASE PRICE
Section 1.1 Grant of
Option. Subject
to the terms set forth in this Agreement, the Company hereby grants to
Buyer, and Buyer hereby accepts from the Company, an irrevocable and exclusive
option to purchase the Property (the "Option") on the terms
set forth in this Agreement.
Section 1.2 Option
Fee. The
Company acknowledges its receipt from Buyer of the amount of Two Thousand Five
Hundred Dollars ($2,500) in cash (the "Option Fee") as
payment in full for the Option. Buyer acknowledges and agrees that
the Option Fee shall be non-refundable to Buyer except as provided
herein. If Buyer does not exercise the Option in accordance with
Section 2.1,
then the Option Fee shall not be refunded to Buyer, and shall be retained by the
Company, except that, if the Buyer reasonably determines, after due diligence,
that the Property has such title defects that are both (A) not capable of being
insured and (B) would be reasonably expected to materially affect the value of
Property, then the Company promptly shall return the Option Fee to the
Buyer.
Section 1.3 Purchase
Price. The
purchase price for the Property shall be Four Million Five Hundred Thousand
Dollars ($4,500,000)(the "Purchase
Price"). Buyer shall receive a credit at the closing against
the Purchase Price for the Option Fee.
Section 1.4 Payment of Purchase
Price. If Buyer exercises the Option and proceeds to the
closing, the Purchase Price (as adjusted for prorations) shall be paid by Buyer
in the form of: (i) an assumption of the IRB Debt; (ii) cash at closing in the
amount of Five Hundred Thousand Dollars ($500,000); and (iii) the balance in the
form of a promissory note bearing interest at not more than twelve-month LIBOR
as of the Closing Date plus 2.75%, payable in quarterly installments of
principal and interest amortized over not more than 15 years with the unpaid
principal balance due not more than seven years after the Closing Date, and
otherwise on such other terms and conditions as the parties may agree. For
purposes of this Agreement, “IRB Debt” means (i)
all Obligations (as that term is defined under the Bond Agreement) of the
Company under the Bond Agreement and (ii) all obligations of the Company under
that certain Promissory Note dated February 28, 2007 in the principal amount of
$75,000 issued to the City of Wisconsin Rapids.
Section 1.5 Assumption of IRB
Debt. At closing, Buyer shall assume and agree to perform all
of the Company’s obligations under the IRB Debt arising from and after the
closing and execute and deliver to the Company such undertaking and instruments
as will be reasonably sufficient to evidence the assumption of obligations under
this Section. Except as expressly set forth herein, Buyer is
not assuming any Liabilities of the Company, and all such Liabilities shall
remain the sole responsibility of the Company. For purposes of this
Agreement, “Liabilities” means
and includes any direct or indirect indebtedness, guaranty, endorsement, claim,
loss, damage, deficiency, cost, expense, obligation or responsibility, fixed or
unfixed, known or unknown, asserted or unasserted, liquidated or unliquidated,
secured or unsecured.
ARTICLE II
EXERCISE
OF OPTION
Section 2.1 Exercise of
Option. Buyer
shall exercise the Option, if at all, by delivering written notice thereof to
the Company during the Exercise Period (as defined herein). Any
attempt by Buyer to exercise the Option after expiration of the Exercise Period,
or by any means during the Exercise Period other than as set forth in this
Section 2.1, shall be null and void and of no force or
effect. For purposes of this Agreement, "Exercise Period"
shall mean the period of time commencing on the Effective Date and ending no
later than 5:00 p.m. (Central Time) on the first anniversary of the Effective
Date. “Business
Day” means any day other than Saturday, Sunday or any federal legal
holiday.
Section 2.2 Failure to Exercise
Option. Upon
the expiration of the Exercise Period, (i) this Agreement shall terminate
automatically and the Option shall be null and void and of no further force or
effect without any further action by the parties, (ii) the Company shall retain
the Option Fee and (iii) the Company and Buyer shall have no further rights or
obligations under this Agreement.
Section 2.3 Disclosure
Schedules. If Buyer validly exercises the Option in accordance
with Section 2.1, then the Company shall deliver to Buyer within fifteen
(15) days following receipt of Buyer’s written notice of exercise schedules
which identify any disclosures that are necessary to make the representations
and warranties of the Company set forth in Article IV of this Agreement true and
correct in all material respects (the “Disclosure
Schedules”). Notwithstanding anything to the contrary
contained in this Agreement, it is understood and agreed that the obligations of
Buyer to consummate and effect this Agreement and the transactions contemplated
hereby shall be subject to, at or prior to closing, Buyer’s reasonable
satisfaction with the form and substance of the Disclosure
Schedules. Buyer shall have until 5:00 p.m. (Central Standard time)
on the tenth (10th) day following Buyer’s receipt of the Disclosure Schedules to
provide written notice to the Company stating that it is not reasonably
satisfied with the form and substance of the Disclosure Schedules and setting
forth in reasonable detail the reasons why and the changes that would be
necessary to make Buyer reasonably satisfied with the form and substance of the
Disclosure Schedules. Buyer’s failure to timely provide such notice
shall be deemed to constitute Buyer’s irrevocable agreement that it accepts the
Disclosure Schedules as initially provided to Buyer. If Buyer timely
provides such notice, the Company shall have five (5) Business Days to
revise the Disclosure Schedules as requested by Buyer. If the Company
fails to revise the Disclosure Schedules as provided herein, Buyer may elect to
(i) accept the Disclosure Schedules as modified, if at all, and proceed
with the transaction, or (ii) terminate this Agreement by providing written
notice to the Company. If Buyer elects to terminate this Agreement as
provided in this Section, the parties shall have no further obligations to one
another under this Agreement.
ARTICLE III
CLOSING
Section 3.1 Closing Date and
Place. The date of the closing shall be mutually determined by
the parties, but in any event shall be on or after: (i) the date that all
conditions to such closing as set forth in this Agreement have been satisfied;
and (ii) October 15, 2008 (the “Closing Date”). The closing shall
occur at the offices of Buyer or at such other location as the parties may
otherwise agree in writing.
Section 3.2 Transfer of
Title. At the closing, the Company agrees to execute and
deliver to Buyer a warranty deed in customary form conveying the Property,
together with all rights and appurtenances therein, to Buyer free and clear of
all liens and encumbrances, excepting Permitted Liens. For purposes
hereof, “Permitted Liens”
shall mean (a) liens for taxes not yet due and payable; (b) zoning,
building codes and other land use laws regulating the use or occupancy of the
Property; (c) easements, covenants, conditions, restrictions and other similar
matters affecting title to the Property which do not or would not reasonably be
expected to materially impair the use or occupancy of the Property; (d) any
mortgage or lien securing the IRB Debt; (e) all matters which would be
disclosed by an accurate survey of the Property which do not or would not
reasonably be expected to materially impair the use or occupancy of the
Property; and (f) liens set forth on the Disclosure Schedules.
Section 3.3 Expenses. All
expenses associated with the Property (excluding those expenses for which Buyer
is otherwise responsible under the terms and conditions of that certain
Lease
dated August 1, 2007 by and between the Company and Buyer), including, without
limitation, expenses for electricity, gas, water, sewer, real property taxes and
such other items that are customarily prorated in transactions of this nature,
shall be ratably prorated between Buyer and the Company as of the Closing Date
in accordance with local custom.
Section 3.4 Bank
Consent. Notwithstanding anything to the contrary contained in
this Agreement, it is understood and agreed that the obligations of the Company
to consummate and effect the transactions contemplated hereby shall be subject
to, at or prior to closing, the Company having obtained any requisite consent,
approval, and authorization of the Bank to consummate the transactions
contemplated by this Agreement.
ARTICLE IV
TITLE
DOCUMENTS
Section 4.1 Title
Report. The Company shall furnish and deliver to Buyer for
examination within twenty (20) days of receipt of written notice of exercise of
the Option a title report written by a title insurance company licensed by the
State of Wisconsin, showing title as required under Section 3.2 of this
Agreement. Any objections to the condition of title shall be raised
by Buyer in writing within five (5) days from delivery of the title report,
following which the Company shall have ten (10) days in which to elect in
writing whether to cure such objections to Buyer’s reasonable
satisfaction. In the event the Company does not elect to cure such
objections or affirmatively elects not to cure the same, Buyer shall, within ten
(10) days after the earlier of (a) receipt of the Company’s written election not
to cure such objections or (b) expiration of the period within which the Company
is entitled to make the foregoing election (in either case, the “Election Deadline”),
have the option, exercisable by written notice to the Company, either to (x)
terminate this Agreement, or (y) proceed to closing, taking title to the
Property subject to the matters that the Company has elected not to
cure. The foregoing election by Buyer must be delivered to the
Company within ten (10) days after Election Deadline. The cost of the
title report shall be paid by the Company. In the event the Bank
requires title insurance in connection with the closing, the Company shall, in
place of the title report required pursuant to this Section, provide to Buyer a
title insurance commitment for an owner’s policy of title insurance in an amount
equal to the Purchase Price and naming the Bank as additional proposed
insured. The cost of the title insurance commitment and the title
insurance policy issued with respect thereto, inclusive of full extended
coverage (other than the survey exception), and inclusive of any endorsements
issued with respect to title exceptions that do not constitute Permitted Liens,
but exclusive of any Buyer-requested endorsements, shall be paid by the
Company. Any transfer fees payable in connection with the conveyances
contemplated by this Agreement shall be paid by the Company.
ARTICLE V
REPRESENTATIONS
OF THE COMPANY
The
Company hereby represents and warrants to Buyer that the statements contained in
this Article V,
subject to the exceptions set forth in the Disclosure Schedules to be delivered
by
the
Company to Buyer as provided in Section 2.3 of this Agreement, are true and
correct as of the date of this Agreement and will be true and correct on the
Closing Date. Each of the representations and warranties set forth
herein shall survive the closing of the transaction contemplated by this
Agreement.
Section 5.1 Organization and
Authority. The
Company is a corporation duly organized, validly existing and in active status
under the laws of the State of Wisconsin. The Company has the
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of the Company. This Agreement has
been duly and validly executed and delivered by the Company, and, assuming this
Agreement constitutes a valid and binding obligation of Buyer, this Agreement
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.
Section 5.2 No
Violation. Neither
the execution and delivery of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby will (i) constitute
a breach or violation of any provision of the articles of organization, bylaws
or any operating agreement of the Company, as amended, (ii) constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of or
permit any other party to terminate, require the consent from or the giving of
notice to any other party to, or accelerate the performance required by, or
result in the creation of any Lien (other than Permitted Liens) upon the
Property under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which the Company is bound, or
(iii) conflict with or violate any order, judgment or decree, or any
statute, ordinance, rule or regulation applicable to the
Company. For purposes of this Agreement, "Lien" means any lien,
security interest, pledge, charge, claim, mortgage, easement, restriction
or any other encumbrance.
Section 5.3 Title to the
Property. The
Company has the power and the right to sell, assign and transfer the Property,
and the Company will sell and deliver to Buyer, and upon consummation of the
transactions contemplated by this Agreement, Buyer will acquire good and
marketable title to the Property, free and clear of all Liens other than
Permitted Liens.
Section 5.4 Environmental
Conditions. The Property is not in violation of any federal,
state, or local law, ordinance or regulation relating to the environmental
conditions on, under or about the Property, including, but not limited to, soil
and ground water conditions, and the Company has not violated any environmental
law now in existence with respect to the Property.
Section 5.5 Hazardous
Materials. During the time in which the Company has
owned the Property, neither the Company nor, to the best of the Company’s
knowledge, any third party has used, generated, manufactured, stored, released,
or disposed of on, under, or about the Property or transported to or from the
Property any flammable, explosive, radioactive materials, hazardous wastes,
toxic substances, or related matters (“Hazardous
Materials”), except in conformity with the requirements of any and all
applicable laws, rules, regulations and ordinances regulating or governing the
handling and disposal thereof. For the purpose of this
Article
V, Hazardous Materials shall include, but not be limited to, substances such as
friable asbestos or those defined as “hazardous substances,” “hazardous
materials,” or “toxic substances” in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Hazardous Materials Transportation Act, 42 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; and in the regulations adopted and publications promulgated pursuant to
said laws and any amendments thereto. To the best of the Company’s
knowledge, there are no Hazardous Materials stored, released, or disposed of (i)
on, under, or about the Property, except in conformity with the requirements of
any and all applicable laws, rules, regulations and ordinances regulating or
governing the handling and disposal thereof, or (ii) on, under, or about
adjacent properties, in such a manner that their migration to the Property
appears reasonably likely.
Section 5.6 Zoning Laws;
Permits. To the best of the knowledge of the
Company, no zoning, building, or similar law or ordinance is violated by the
maintenance, operation, or use of the Property. The Company has
received no written notice of any change contemplated in any applicable laws,
ordinances, or restriction, or any judicial or administrative action, or any
action by adjacent landowners, or natural or artificial conditions upon the
Property which would prevent, impede, limit, or render more costly in any
material way Buyer’s use of the Property consistent with the historic usage
thereof. To the best of the knowledge of the Company, all approvals
and permits necessary for the operation of the Property consistent with the
historic usage thereof have been obtained, are in full force and effect, and are
transferable to Buyer without consent or approval of any third party or
governmental entity, and the Company will transfer and assign all such permits
to Buyer at the closing.
Section 5.7 Eminent
Domain. There are no condemnation or eminent domain
proceedings pending or, to the best of the Company’s knowledge, contemplated
against the Property or any part thereof, and the Company has received no
written notice of the desire of any public authority or other entity to take or
use the Property or any part thereof.
Section 5.8 Lease. There
will be no leases or occupancy agreements for the Property or any part thereof
which will survive the closing, unless accepted by Buyer.
Section 5.9 Service
Contracts. There will be no service contracts or use
agreements affecting or benefiting the Property which will survive the closing,
unless accepted by Buyer.
Section 5.10 Litigation. There
is no suit, claim, proceeding or investigation pending or, to the Company's
knowledge, threatened against the Company which (i) would reasonably be
expected to prevent or delay the consummation of the transactions
contemplated by this Agreement or (ii) would adversely affect title to the
Property of any part thereof. The Company is not a party to or bound
by any outstanding order, writ, injunction or decree which would reasonably
be expected to prevent or delay the consummation of the transactions
contemplated hereby.
ARTICLE VI
MISCELLANEOUS
PROVISIONS
Section 6.1 Time is of the
Essence. Time
is of the essence as to all dates and deadlines set forth in this
Agreement; provided,
however, that notwithstanding anything to the contrary in this
Agreement, if the time period for the performance of any covenant or obligation,
satisfaction of any condition or delivery of any notice or item required under
this Agreement shall expire on a day other than a Business Day, such time period
shall be extended automatically to the next Business Day.
Section 6.2 Assignment.
Buyer
shall have the right to designate an assignee to receive title to the Property
by providing written notice to the Company at any time prior to closing; provided, however, that (i)
Buyer shall not be released from any of its liabilities and obligations under
this Agreement by reason of such designation or assignment, and (ii) such
designation shall not be effective until Buyer has provided the Company
with a fully executed copy of such designation or assignment and assumption
instrument, which shall be in form and substance reasonably satisfactory to the
Company.
Section 6.3 Notices. All
notices, demands, consents, or other communications that are required or
permitted hereunder or that are given with respect to this Agreement shall be in
writing and shall be sufficient if personally delivered or sent by registered or
certified mail, facsimile message, or overnight delivery
service. Any notice shall be deemed given upon the earlier of the
date when received at, or the fifth day after the date when sent by registered
or certified mail or the day after the date when sent by overnight delivery
service or facsimile to, the address or facsimile number set forth below, unless
such address or facsimile number is changed by written notice to the other
party in accordance with this Agreement:
(a) if to
Buyer, to:
Advanced Fiberglass
Technologies, Inc.
0000 Xxxxxxxx
Xxxxx
Xxxxxxxxx Xxxxxx, XX
00000
Attn: Xxx
Xxxxxxxxx
Facsimile: 000-000-0000
with a
copy to:
Advanced Fiberglass
Technologies, Inc.
0000 Xxxxxxxx
Xxxxx
Xxxxxxxxx Xxxxxx, XX
00000
Attn: Xxxxxxx
Xxxxxxx
Facsimile: 000-000-0000
(b) if to the
Company, to:
M & W
Fiberglass, LLC
0000
Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx
X. Xxxxx
Facsimile:
______________
with a
copy to:
Xxxxxxxx &
Xxxxx
0000 Xxxx
Xxxxxx
Xxxxxxx Xxxxx,
XX 00000
Attn: Xxxx
X. Xxxxx, Esq
Facsimile: 000-000-0000
Section 6.4 Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart. Any counterpart may be executed and delivered by
facsimile signature and such facsimile signature shall be deemed an
original.
Section 6.5 Entire Agreement; Parties in
Interest. This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto, including the Exhibits and
Disclosure Schedules (a) constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (b) are not intended to confer upon any third party
any rights or remedies hereunder.
Section 6.6 Expenses. Except
as otherwise provided in this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
(including, without limitation, the fees and expenses of its advisers,
accountants and legal counsel), shall be paid by the party incurring such
expense.
Section 6.7 Recording
Fees. Any
fees or charges incurred in connection with the recording of this Option
Agreement in the office of register of deeds shall be paid by the
Buyer.
Section 6.8 Amendment. This
Agreement may not be amended, changed or modified except in writing signed by
the parties hereto.
Section 6.9 Governing Law; Jurisdiction;
Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Wisconsin without regard to principles of conflicts of
law. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR
AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.10 Further
Actions. Upon
the terms and subject to the conditions hereof, each of the parties hereto shall
(i) execute and deliver such other documents and instruments and do
and perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of this Agreement and the transactions
contemplated hereby, and (ii) use its reasonable best efforts to obtain any
consents, licenses, permits, waivers, approvals, authorizations or orders
required to be obtained or made by Buyer or the Company or any of their
subsidiaries in connection with the authorization, execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company and Buyer each have caused this Option Agreement to
be executed and delivered in their names by their respective duly authorized
officers or representatives.
| M & W FIBERGLASS, LLC | ADVANCED FIBERGLASS TECHNOLOGIES, INC. | |||
|
By: /s/ Xxxxx X.
Xxxxx
|
By: /s/ Xxxxxx
Xxxxxxxxx
|
|||
|
Name: Xxxxx X.
Xxxxx
|
Name: Xxxxxx
Xxxxxxxxx
|
|||
|
Title:
President
|
Title: Chief Executive
Officer
|
|||
EXHIBIT A
Xxx 0 xx
Xxxx xxxxxx Xxxxxxxxx Xxxxxx Xxx Xx. 0000 recorded in Volume 29 of Survey Maps
at Page 190, being part of the SE ¼ of the NE ¼ of Xxxxxxx 0x, Xxxxxxxx 00
Xxxxx, Xxxxx 0 Xxxx, Xxxx of Wisconsin Rapids, Wood County,
Wisconsin.
Tax Key
No.: Part of 34-09841 and Part of 34-09852
