EXHIBIT 10.2
REVISED AGREEMENT
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THIS AGREEMENT, made the 1st day of July 1991, is by and between the UNIVERSITY
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OF DELAWARE, a Corporation of the State of Delaware, hereinafter called
(UNIVERSITY), and ASTROPOWER, INC., a Corporation of the State of Delaware,
hereinafter called (ASTROPOWER) and supersedes and replaces a similar agreement
entered into August 15, 1989.
1. UNIVERSITY will construct to its standards a 40,000 square foot building on
University land with an agreed upon design and site, including parking space.
2. The proposed building will be leased to ASTROPOWER for a term of twenty (20)
years commencing on the date of acceptance of the building by the UNIVERSITY
and ASTROPOWER and ending twenty (20) years from the acceptance date.
3. The proposed building will be utilized by ASTROPOWER in compliance with its
Business Plan, attached as Exhibit A, and made a part of this Agreement.
3a. The Agreement may be canceled by ASTROPOWER after nine (9) years, with
twelve (12) months notice of cancellation.
4. The rental for the proposed building will be paid to the UNIVERSITY by
ASTROPOWER monthly over the term of the Lease, according to the Rental Schedule
attached as Exhibit B.
5. ASTROPOWER will also pay into a REMODELING FUND $10,000 annually on the
anniversary date of this Lease over the first twenty (20) years for a total of
$200,000. The Fund is to be interest-bearing and under the control of the
UNIVERSITY. The purpose of the FUND is to defray the cost of remodeling the
building upon the termination of this Agreement by ASTROPOWER.
6. In addition, ASTROPOWER will pay into a RENOVATION FUND $8,000 annually on
the anniversary date over the first five (5) years of this Lease and $16,000
annually on the anniversary date for the next fifteen (15) years of this Lease
for a total of $280,000. The Fund will be interest-bearing and under the
control of the UNIVERSITY. The Fund will be used to pay for the cost of
renovations which will be made or supervised by the UNIVERSITY. To the fullest
extent possible, such renovations will be determined by mutual agreement.
7. In addition, the University will receive from ASTROPOWER 100,000 shares of
ASTROPOWER Capital Stock upon acceptance of the building by ASTROPOWER.
8. ASTROPOWER will pay the cost of all utilities, including telephone services
furnished to the proposed building.
9. ASTROPOWER shall maintain the premises and 6.33+ acres of grounds in good
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order, repair, and cleanliness, reasonable wear and tear excepted, at its own
expense, including snow removal and any
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relining or cleaning needed for the paved areas; provided, however, that the
UNIVERSITY shall be responsible for repair of the exterior and structural
components of the building and paved areas to the extent of funding available in
the Renovation Fund as defined under item 6. of this Lease.
10. ASTROPOWER will not assign or sublet any part of the leased premises
without the UNIVERSITY'S written consent, such consent will not be unreasonably
withheld.
11. ASTROPOWER will not make any structural alterations or additions to the
leased premises or erect any exterior sign thereon without the written consent
of UNIVERSITY, such consent will not be unreasonably withheld.
12. ASTROPOWER, upon the termination of the Agreement, will deliver up and
surrender quiet and peaceable possession of the leased premises in as good order
and condition as the same now are, reasonable wear and tear and accident by fire
or other casualty excepted.
13. ASTROPOWER agrees to defend, indemnify, and hold harmless the UNIVERSITY,
its Trustees, personnel, and agents from and against any suits, claims, decrees,
liability, or judgments, including all costs and expenses, for loss or damage to
property and injury or death to persons on or about the premises resulting from
the negligence of ASTROPOWER, its employees, agents, contractors, guests,
invitees, and licensees.
14. ASTROPOWER, during the term of this Lease, will maintain in effect a
comprehensive general liability insurance policy with combined single limits of
at least $2,000,000 per occurrence and add the UNIVERSITY as a named insured to
cover any claims which may arise from or grow out of this Agreement. ASTROPOWER
shall furnish current certificates of insurance to evidence this insurance and
the policy shall be endorsed to require that the UNIVERSITY shall be notified of
any termination or significant change affecting this coverage.
15. The Rental payments are due and payable to the Treasurer of the UNIVERSITY
by ASTROPOWER on the first day of each month and the Remodeling Fund and
Renovation Fund payments are due and payable to the Treasurer of the UNIVERSITY
by ASTROPOWER on each anniversary date of this Agreement and interest determined
by the prime rate of the Citibank of New York, NY, shall be assessed and
compounded monthly on any such payments not made within 30 days of the due date.
Any failure of ASTROPOWER to pay Rental, Remodeling Fund and Renovation Fund
payments including interest thereon within 60 days of the due dates or perform
any material term hereof after notice and a thirty (30) day cure period, shall
at the option of UNIVERSITY, terminate all rights of ASTROPOWER hereunder. In
the event that ASTROPOWER shall be absent from the leased premises for a period
of thirty (30) consecutive days, while in default, ASTROPOWER shall, at the
option of University, be deemed to have abandoned the leased premises, and any
property left on the leased premises shall be considered abandoned and may be
disposed of by UNIVERSITY as it shall see fit. All property on the leased
premises is hereby subject to a lien in favor of UNIVERSITY, for the payment of
all sums due hereunder, to the maximum extent allowed by law. Recovery of the
leased premises by UNIVERSITY shall not relieve ASTROPOWER of any obligations
hereunder. UNIVERSITY shall have the affirmative duty to mitigate ASTROPOWER'S
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obligations under the foregoing circumstances and shall promptly attempt to let
the leased premises to others upon commercially reasonable terms and conditions,
to recover from ASTROPOWER sums due hereunder, less any consideration received
from others for the use of the leased premises, for the remaining term hereof
after paying expenses.
16. UNIVERSITY shall have the right, without undue disruption, at all
reasonable hours and upon prior reasonable notice to enter upon the entirety of
the leased premises for the purpose of making repairs and alterations which
UNIVERSITY is obligated or desires to make, and to examine the condition of the
premises.
17. In the event that all or a substantial part of the building in which the
leased premises is located is (a) damaged or destroyed and the UNIVERSITY
determines that the building shall not be repaired, or (b) is condemned by any
competent authority, this Lease shall terminate if the UNIVERSITY so elects.
18. In the event that any party hereto shall prevail in any legal action
brought by it against any other party hereto to enforce the terms hereof or
relating to the leased premises, the prevailing party shall be entitled to all
costs incurred in connection with such action, including a reasonable attorney's
fee.
19. No failure of UNIVERSITY to enforce any term hereof shall be deemed a
waiver, nor shall any acceptance of a partial payment of rent be deemed a waiver
of UNIVERSITY'S right to the full amount thereof.
20. Terms and conditions of this Agreement shall be binding upon and inure to
any successors and assigns of the parties thereto, except that the UNIVERSITY
reserves the right to renegotiate the financial terms of this Agreement in the
event ASTROPOWER is purchased by another party, or in the event another party
acquires control of ASTROPOWER.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
Signed, sealed, and delivered in the presence of:
ASTROPOWER: UNIVERSITY OF DELAWARE:
BY: /S/ XXXXX X. XXXXXXX, PRESIDENT BY: /S/ XXXXX X. XXXXXXX, PRESIDENT
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By: /S/ G.A. LOESSNER, VICE PRESIDENT
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AND SECRETARY
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SUPPLEMENTAL MEMORANDUM OF AGREEMENT
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BETWEEN THE UNIVERSITY OF DELAWARE AND ASTROPOWER, INC.
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An agreement has been entered into on this 1st day of July ,1991 between the
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UNIVERSITY OF DELAWARE, a Corporation of the State of Delaware, hereinafter
called (UNIVERSITY), and ASTROPOWER, INC., a Corporation of the State of
Delaware, hereinafter called (ASTROPOWER).
ASTROPOWER agrees that it will accept the building on July 1, 1991, and
The parties agree to amend Appendix B of the Revised Agreement upon the
completion of the accounting by substituting the final agreed upon total cost to
construct and equip the building for the $2 million of total costs estimated in
Exhibit B, and
It is further agreed that the amount of rent paid by ASTROPOWER to the
UNIVERSITY will be adjusted accordingly so that the resulting internal rate of
return over twenty (20) years is no less than 8.82%, and
It is further agreed that any adjustment due one party as a result of these
revisions will be paid by the other party in a lump sum in not less than thirty
(30) days and an appropriate adjustment be made to the monthly rent to be paid
thereafter, and
It is further agreed that snow removal will be provided by the UNIVERSITY during
the winter of 1991-92 and that ASTROPOWER pay the UNIVERSITY $750 for this
service on January 1, 1992.
ASTROPOWER, INC. UNIVERSITY OF DELAWARE
/S/ XXXXX X. XXXXXXX, PRESIDENT /S/ XXXXX X. XXXXXXX, PRESIDENT
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EXHIBIT B
REVISED RENTAL SCHEDULE
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As of 6/l/92
Per Sq. Ft. Annual Rent on
on 40,000 40,000 Square
Year Square Feet Feet Monthly Rent
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1 3.68 147,200 $12,266.67
2 3.88 155,200 12,933.33
3 4.10 164,000 13,666.67
4 4.33 173,200 14,433.33
5 4.57 182,800 15,233.33
6 4.82 192,800 16,066.67
7 5.09 203,600 16,966.67
8 5.37 214,800 17,900.00
9 5.67 226,800 18,900.00
10 5.98 239,200 19,933.33
11 6.31 252,400 21,033.33
12 6.66 266,400 22,200.00
13 7.03 281,200 23,433.33
14 7.42 296,800 24,733.33
15 7.83 313,200 26,100.00
16 8.26 330,400 27,533.33
17 8.72 348,800 29,066.67
18 9.20 368,000 30,666.67
19 9.71 388,400 32,366.67
20 10.25 410,000 34,166.67
ASTROPOWER, INC. UNIVERSITY OF DELAWARE
/S/ XXXXX X. XXXXXXX, PRESIDENT /S/ XXXXX X. XXXXXXX, PRESIDENT
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6/2/92
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