MASSACHUSETTS TECHNOLOGY PARK CORPORATION PROJECT GRANT AGREEMENT
Exhibit 10.38
FINAL
This Project Grant Agreement (the “Agreement”) dated as of November 20, 2007, is entered into
between the Massachusetts Technology Park Corporation doing business as the Massachusetts
Technology Collaborative (“MTC”), an independent public instrumentality of the Commonwealth of
Massachusetts and the administrator of the Massachusetts Renewable Energy Trust Fund (the “Trust”),
having its principal office and place of business at 00 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx
00000, and Evergreen Solar, Inc., a Delaware corporation, with a principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Grantee”) (MTC and Grantee collectively as the
“Parties”).
Whereas, MTC as administrator of the Trust is offering financial assistance to Grantee in the form
of a grant to help defray the costs incurred by Grantee in the design and construction of an
approximately Two Hundred and Fifty Thousand (250,000) square foot solar panel manufacturing
facility (the “Project”) on publicly owned land in Devens, Massachusetts (the “Premises”);
Whereas, MTC’s provision of such grant funds for use on the Project is consistent with the
statutory goals set forth in M.G.L. c.40J, and the Trust’s Direction Statement and Operating Plan,
and is expected to lead to substantial economic development activity in the Commonwealth, including
without limitation the retention and creation of employment, as more fully set forth in the
Agreement and Attachment B; and
Whereas, MTC’s Board of Directors approved the commitment of funds to Grantee for the Project on
June 28, 2007.
Now therefore, pursuant to the terms and conditions of the Agreement, MTC and Grantee agree as
follows:
1. Term and Termination a) The term of this Agreement shall commence on the date that this
Agreement is fully executed by the Parties (the “Effective Date”), and, unless terminated earlier
pursuant to the terms of Section 1(b) and Section 6 (Events of Default), shall expire upon
fulfillment of all Grantee Commitments set forth in Section 8 (Grantee’s Commitments). MTC’s
obligation to disburse Grant proceeds, however, shall expire in any event on the earlier to occur
of (i) the six (6) month anniversary of the date that Grantee has substantially completed the
Project (which shall be the date upon which substantial completion occurs under the construction
contract for the Project, and which is hereinafter referred to as “Substantial Completion”), or
(ii) the last day of the thirty sixth (36th) month after the Effective Date. b) This Agreement may
be terminated by either MTC or Grantee if (i) an Event of Default occurs (including the expiration
of any applicable cure period) and remains outstanding as of the date of termination, (ii) the
party seeking to terminate this Agreement hereunder is the Non-Defaulting Party, and (iii) the
Non-Defaulting Party has not waived such Event of Default in writing.
2. The Grant Subject to the provisions of this Agreement, including without limitation the
provisions of Section 5 (Payments), Section 8 (Grantee Commitments) and Section 9 (Repayment), MTC
shall pay to the Grantee a maximum amount of Ten Million Dollars ($10,000,000) (the “Grant”).
3. Use of Proceeds Grantee hereby covenants and agrees that all Grant funds provided by MTC
pursuant to this Agreement shall be used solely to defray the direct costs incurred by Grantee in
connection with the due diligence, permitting, design and construction of the Project (hereinafter
“Project Costs”), and for no other purpose.
Project Grant Agreement: Evergreen Solar, Inc.
4. Reporting Upon Grantee’s submission of invoices pursuant to Section 5, Grantee shall
simultaneously provide MTC with a project status report (the “Progress Reports”), which shall
include without limitation (a) a description of completed Project construction milestones, (b) the
stage of the progress on construction of the Project, and (c) the status of Grantee’s meeting and
maintaining the (i) Retained Positions and (ii) New Positions commitments, as defined and more
fully set forth in Section 8; provided that nothing herein shall be deemed to require Grantee to
disclose information that is of a proprietary nature. Grantee’s compliance with Grantee Commitments
(as defined in Section 8) may be subject to continuous assessment by MTC. In furtherance of the
foregoing, Grantee shall provide MTC with annual reports (the “Annual Reports), which shall include
information setting forth Grantee’s compliance with, and/or variances from the Grantee Commitments.
The first Annual Report shall be submitted to MTC within thirty (30) days of the first anniversary
of the Effective Date and each subsequent Annual Report shall be submitted within thirty (30) days
of each subsequent anniversary of the Effective Date. In the case of the Grantee Commitments set
forth in Sections 8(a)-(c), the Annual Report shall include a certification from Grantee’s CEO or
CFO concerning Grantee’s compliance with, and/or variances from the Grantee Commitments.
5. Invoices/Payment Schedule a) Cost Reimbursement. Grantee shall receive advances of Grant funds
on a cost-reimbursement basis for Project Costs actually incurred on a “Pro-Rata” basis with all
other funding types and sources being made available by the Grantee or to Grantee from MTC and
other entities for the design and general construction of the Project, (collectively the “Total
Project Construction Funds”). The Parties acknowledge that the total amount of MTC’s funding for
the Project general construction is Ten Million Dollars ($10,000,000), comprised of the Grant (the
“Total MTC Funds”). For purposes of cost reimbursement from MTC to Grantee under this Agreement,
payment on a “Pro-Rata” basis means that MTC will reimburse on invoices to the extent of the ratio
the Total MTC Funds bear to the Total Project Construction Funds, with MTC paying that Pro-Rata
percentage of Grantee’s Project Costs for the period covering the invoice. The parties acknowledge
that the estimated Project Costs and anticipated sources of the Total Project Construction Funds
are to be determined and certified by the Grantee after the Effective Date and prior to the
submission of the first invoice for cost-reimbursement. For the avoidance of doubt, examples of
MTC’s Pro-Rata payments of Grant funds upon receipt of an invoice are set forth on the attached
Attachment C. Any Grant funds that have not been disbursed to Grantee pursuant to the foregoing
“Pro-Rata” funding process shall be paid to Grantee upon Substantial Completion. b) Invoices.
Grantee may submit invoices for payment using the template provided by MTC. The invoice shall set
forth total Project Costs incurred as of the date of the invoice, broken down into MTC’s Pro Rata
share. Invoices shall provide reasonable supporting documentation to provide evidence of Project
Costs actually incurred. c) Payment Terms. MTC shall pay the Grantee within thirty (30) days after
receipt of a properly documented invoice, unless MTC should determine that any such payment or any
part thereof is otherwise not properly payable pursuant to the terms of this Agreement (in which
case MTC shall make payment with respect to any portion of such invoice that is properly payable).
6. Events of Default For the purposes of this Agreement, a “Defaulting Party” shall mean any party
hereto against which the other party hereto is entitled to assert an Event of Default under this
Section 6 and a “Non- Defaulting Party” shall mean with respect to the occurrence of any Event of
Default (as defined below), the party to this Agreement that is not the Defaulting Party in
connection with such Event of Default. For purposes of this Agreement “Event of Default” shall mean
any of the following: a) Failure by the Defaulting Party to make, when due, any payment or
repayment required under this Agreement if such failure is not remedied within thirty (30) calendar
days after written notice of such failure is given by the other party and provided the payment or
repayment is not the subject of a continuing good faith dispute; b) Material breach of any of the
Defaulting Party’s obligations contained in this Agreement, including without limitation the
obligations set forth in Section 8(a)-(e), which breaches are not excused by Force Majeure (as
defined in Section 16) or cured within thirty (30) calendar days after written notice thereof is
provided to the Non-Defaulting Party; c) Any circumstance: (i) in which the Defaulting Party makes
a general assignment for the benefit of creditors as a symptom of impending bankruptcy,
Page 2
Project Grant Agreement: Evergreen Solar, Inc.
(ii) in which the Defaulting Party files a petition or otherwise commences, authorizes or consents
to the commencement of a proceeding or cause of action under any bankruptcy or similar law for the
protection of creditors, or where such a petition is filed against Defaulting Party and is not
stayed, withdrawn or dismissed within sixty (60) days after such filing, (iii) in which a court of
competent jurisdiction shall determine that Defaulting Party is generally not paying its debts as
such debts become due, or (iv) which results in the Defaulting Party’s insolvency or its admission
that it is unable to pay its debts generally as they become due; d) The Defaulting Party’s failure
to perform any material covenant or obligation set forth in this Agreement, and such failure is not
excused by Force Majeure or cured within thirty (30) calendar days after written notice thereof is
provided to the Non-Defaulting Party; and e) Default by the Grantee under the terms of any loan to
Grantee MTC has made or participated in (an “MTC Loan”) which default is not cured within any
applicable grace period shall be an Event of Default hereunder with Grantee as the Defaulting
Party. In addition to any other remedy available to it under this Agreement or under applicable
law, upon any occurrence of an Event of Default, the Non-Defaulting Party shall be entitled to
suspend performance of its obligations under this Agreement until the earlier of such time as (a)
such Event of Default has been cured, or (b) the Non-Defaulting Party has elected to terminate this
Agreement pursuant to Section 1(b). The Non-Defaulting Party may, in addition to such suspension
and/or termination, initiate proceedings for an assessment of damages payable to the Non-Defaulting
Party resulting from such Event of Default and/or seek any other remedies available to the
Non-Defaulting Party either at law or in equity; provided that MTC’s remedies (in addition to such
suspension and/or termination) upon an Event of Default by Grantee shall be limited to the right to
enforce the repayment and forfeiture provisions as specified in Section 9 below. Neither the
preceding sentence nor any other provision of this Agreement shall restrict or otherwise limit
MTC’s rights under any agreements entered into with Grantee in conjunction with an MTC Loan,
including without limitation any rights to demand or accelerate repayment of any funds provided to
Grantee under an MTC Loan.
7. Assignment Grantee’s rights and restrictions on the assignment or any form of transfer of any of
Grantee’s interest in the Grant or this Agreement (including without limitation by merger, sale of
assets or corporate reorganization) shall be governed by the same terms and conditions permitting
and/or restricting assignments of Grantee’s leasehold interest as set forth in Article 10 of that
certain Ground Lease entered into by and between Grantee and the Massachusetts Development Finance
Agency (“MassDevelopment”), dated November 2007.
8. Grantee’s Commitments Grantee acknowledges that the Grant is conditioned on Grantee’s meeting
and maintaining the following commitments (collectively the “Grantee Commitments”), and Grantee
therefore agrees and covenants that it shall: a) Maintain a general business presence in
Massachusetts for a period of five (5) years, commencing on Substantial Completion. For purposes of
this Agreement, Grantee shall be deemed to be maintaining a general business presence in
Massachusetts so long as Grantee maintains its corporate headquarters, its primary United States
based research and development operations, and its primary United States based manufacturing
operations in Massachusetts. b) (i) create 350 net new jobs in Massachusetts within two (2) years
of the Effective Date (the “New Positions”), (ii) maintain the New Positions in Massachusetts over
the immediately subsequent five (5) year period, and (iii) retain at least 310 of its existing jobs
in Massachusetts (the “Retained Positions”) for a seven (7) year period commencing on the Effective
Date. For purposes of this Agreement, the term “job” (wherever it may appear in this Agreement,
either on its own, in a defined term, in upper or lower case) means a Massachusetts-based full-time
equivalent employee on Grantee’s payroll; c) Employ a preference to use Massachusetts-based
contractors in the construction of the Project, but Grantee shall not be required to employ a
certain quota or percentage of Massachusetts based contractors. On or within 30 days of the
Effective Date of this Agreement, Grantee will present MTC with a preliminary list of possible
construction contractors, which may be modified from time to time during the Project by the
Grantee, and provided that nothing herein shall be deemed to require MTC’s approval of any
contractors; d) Employ a preference for equipment manufactured or assembled by Massachusetts
companies, but Grantee shall not be obligated to purchase any quota or percentage of equipment from
Massachusetts companies. On or within 30 days of the
Page 3
Project Grant Agreement: Evergreen Solar, Inc.
Effective Date of this Agreement, Grantee will present MTC with a preliminary list of possible
equipment manufacturers, which may be modified from time to time during the Project by the Grantee,
and provided that nothing herein shall be deemed to require MTC’s approval of any equipment
manufacturers; and e) Not be or become a “Prohibited Person.” For the purposes of this Agreement a
“Prohibited Person” is any person or entity which is, or in which a direct or indirect owner of 10%
or more of the beneficial interest is, (X) in breach or violation of a written contract with the
Commonwealth or MTC as to which more than $5,000,000 is at issue and the entity is not contesting
the breach or violation or the Commonwealth or MTC has obtained at least an initial finding or
determination in its favor which has not been overruled as to the principal matter at issue from a
court, arbitrator or other tribunal with jurisdiction, (Y) delinquent to the extent of $1,000,000
or more in the payment of any state or local taxes assessed by or in the Commonwealth or (Z) a
person or entity as to which it is illegal for MTC to do business with under state or federal law.
Notwithstanding the foregoing, however, the acquisition of 10% or more of the stock of the Grantee
on a recognized stock exchange or in the open market without the intervention, support or consent
of the Grantee shall not cause Grantee to be or become a Prohibited Person.
9. Repayment Provisions a) Grantee acknowledges and agrees that it shall repay the full amount of
the Grant (without interest), excluding any theretofore “Earned Amounts” (as that term is defined
in Section 9(b)(ii) below and used in the examples set forth on Exhibit B), if it fails to comply
with the Grantee Commitments set forth in Section 8(a), such repayment to be due and payable to MTC
within thirty (30) days of Grantee’s receipt of written notice from MTC demanding such repayment
due to Grantee’s failure to comply. b) (i) Grantee shall have eight (8) years following the
Effective Date to create 2,300 new “Job Years.” A “Job Year” shall be defined as each Job (as
defined in Section 8(b)) that was created during the year in excess of the number of “Baseline
Jobs” multiplied by the number of weeks the job existed divided by 50. The term “Baseline Jobs”
shall mean Three Hundred and Ten (310) jobs. Grantee shall submit to MTC, within thirty (30) days
of each annual anniversary of the Effective Date, a Job Years Assessment Report containing
information demonstrating the number of Job Years created as of each annual anniversary of the
Effective Date. (ii) For each new Job Year created (each an “Actual Job Year” and collectively the
“Actual Job Years”), Grantee shall be deemed to have earned a portion of the Grant in an amount
equal to Four Thousand Three Hundred Forty Eight Dollars ($4,348.00) (the “Earned Amount”), and in
an aggregate Actual Job Years amount not to exceed Ten Million Dollars ($10,000,000). All Earned
Amounts shall not be subject to forfeiture. (iii) In the event that the number of Actual Job Years
created on any annual anniversary of the Effective Date is less than the number of Targeted Job
Years Created, as that term is set forth and applied in Attachment B for such annual anniversary
date, Grantee shall forfeit to MTC a portion of the Grant in an amount equal to Four Thousand Three
Hundred Forty Eight Dollars ($4,348.00) multiplied by the difference between (A) the number of
Targeted Job Years Created as specified in Attachment B for such annual anniversary date and (B)
the number of Actual Job Years created by such annual anniversary date (the “Forfeiture Amount”).
Grantee shall pay MTC any Forfeiture Amount within thirty days of Grantee’s receipt of written
notification from MTC, provided that any Forfeiture Amount due hereunder on account of the number
of Actual Job Years created within the first two (2) annual anniversaries of the Effective Date
shall be deferred and paid upon the first day of the third (3rd) year after the Effective Date and
in no case shall the total Forfeiture Amount exceed $10 million less any previously earned amounts.
In addition, Grantee shall not be obligated to pay any Forfeiture Amount or otherwise repay any of
the Grant funds after such time as the Grantee has achieved the creation of 2,300 Job Years, as set
forth on Attachment B. (iv) Notwithstanding the foregoing, in the event that a Forfeiture Amount is
determined to be payable hereunder, and in any subsequent annual period the number of Actual Job
Years created by any annual anniversary of the Effective Date exceeds the number of Targeted Job
Years Created by such annual anniversary date, MTC shall re-pay Grantee a portion of the Forfeiture
Amount in an amount equal to Four Thousand Three Hundred Forty Eight Dollars ($4,348.00) multiplied
by the number of Actual Job Years created by such annual anniversary date in excess of the Targeted
Job Years Created by such annual anniversary date (the “Re-Payment Amount”). Furthermore, in the
event Grantee achieves on a cumulative basis the creation of 2300 Job Years on or before
Page 4
Project Grant Agreement: Evergreen Solar, Inc.
the last day of the 8th year after the Effective Date, MTC shall pay back to Grantee any and all
Forfeiture Amounts previously paid by Grantee to MTC (the “True-Up Amount”). Any Re-Payment Amount
and/or True-Up Amount shall not exceed the aggregate of all Forfeiture Amounts previously paid by
Grantee to MTC. MTC shall re-pay Grantee any Re-Payment Amount and/or True-Up Amount within thirty
days of MTC’s receipt of written notification from Grantee. c) All of the provisions of the
foregoing Section 9(b) notwithstanding, Grantee shall not be required to pay any Forfeiture Amount
or otherwise repay any of the Grant funds to MTC due to any failure to fulfill Grantee Commitments
that directly result from an event of Force Majeure as defined in Section 16, and Grantee shall
have the right at any time to apply to MTC for full or partial waiver or modification or extension
of time to meet Grantee Commitments. Any decision to waive, modify or extend such time frames shall
be in the sole exercise of MTC’s discretion. d) In the event Grantee becomes a Prohibited Person as
defined in Section 8(e), MTC may declare an Event of Default hereunder and cease making any further
Grant advances and any MTC Loan shall be deemed to be in default and MTC may exercise any other
remedies available to it under the MTC Loan agreement.
10. Nondiscrimination The Grantee agrees to comply with all applicable Federal and State statutes,
rules and regulations promoting fair employment practices or prohibiting employment discrimination
and unfair labor practices and shall not discriminate in the hiring of any applicant for employment
nor shall any qualified employee be demoted, discharged or otherwise subject to discrimination in
the tenure, position, promotional opportunities, wages benefits or terms and conditions of their
employment because of race, color, national origin, ancestry, age, sex, religion, disability,
handicap, sexual orientation, or for exercising any rights afforded by law.
11. Indemnification and Insurance a) To the fullest extent permitted by law, Grantee shall
indemnify and hold harmless the Commonwealth, MTC, and each of their respective agents, officers,
directors and employees (together with the Commonwealth and MTC, the “Covered Persons”) from and
against any and all liability, loss, claims, damages, fines, penalties, costs and expenses
(including reasonable attorney’s fees), judgments and awards (collectively, “Damages”) sustained,
incurred or suffered by or imposed upon any Covered Person resulting from (i) any breach of this
Agreement, or (ii) any negligent acts or omissions or reckless misconduct of Grantee in connection
with construction of the Project or otherwise. Without limiting the foregoing, Grantee shall
indemnify and hold harmless each Covered Person against any and all Damages that may arise out of
or are imposed because of the failure to comply with the provisions of applicable law by Grantee or
any of its agents, officers, directors, employees or subcontractors. The foregoing notwithstanding,
Grantee shall not be liable for (i) any Damages sustained, incurred or suffered by or imposed upon
any Covered Person resulting from any negligent acts or omissions or reckless misconduct of the
Commonwealth or MTC or any other Covered Person, and (ii) except for liability for death or
personal injury caused by the negligence or willful misconduct of the Grantee or its agents,
including without limitation its contractor for construction of the Project, or for claims of
infringement of a third party’s intellectual property by Grantee, the aggregate liability of
Grantee under this Agreement shall not exceed the greater of the amount of the Grant or the amount
recovered under any applicable insurance coverage. b) In no event shall either party be liable for
any indirect, incidental, special or consequential damages whatsoever (including but not limited to
lost profits or interruption of business), whether arising out of or related to Grantee’s
construction of the Project under this Agreement or otherwise. Notwithstanding the foregoing, the
parties acknowledge and agree that MTC as a public entity has an overriding policy of not providing
financial or other assistance of any kind from its limited public resources to Prohibited Persons
for any period of time. The parties agree and stipulate that any forfeiture of Grantee’s right to
receive additional disbursements of Grant funds to the extent provided for herein if Grantee should
voluntarily be or become a Prohibited Person is reasonable in light of the irreparable harm MTC
would suffer. c) Grantee hereby agrees to maintain a program of insurance and/or self-insurance
which is prudent and adequate to address any claim or liability which may arise out of Grantee’s
construction of the Project and performance of its obligations pursuant to this Agreement.
Page 5
Project Grant Agreement: Evergreen Solar, Inc.
12. Public Records As a public entity, MTC is subject to the Massachusetts Public Records Law (set
forth at Massachusetts General Laws Chapter 66) and thus documents and other materials made or
received by MTC and/or its employees are subject to public disclosure. All information received by
MTC shall be deemed to be subject to public disclosure, except as otherwise provided in the
procedures set forth in Attachment A hereto. By signing this Agreement, Grantee acknowledges,
understands and agrees that the procedures set forth in Attachment A are applicable to any
documents submitted by Grantee to MTC, including but not limited to any acknowledgements set forth
therein, and that Grantee shall be bound by these procedures.
13. Document Review Rights MTC will have the right to review Grantee’s or its other agents’ records
to the extent necessary to confirm that Grantee is in compliance with the Use of Proceeds
provision, at any time from the Effective Date through the end of the Retention Period, as defined
below herein, provided that nothing herein shall be deemed to permit MTC to review any records that
contain information of a proprietary nature to Grantee. If such review reveals that any portion of
the Grant was utilized for purposes not permitted under this Agreement, then Grantee shall refund
to MTC the amount determined by such review within thirty (30) days of Grantee’s receipt of such
demand. Grantee shall maintain books, records, and other compilations of data pertaining to the
Grant payments made under this Agreement to the extent and in such detail as shall properly
substantiate use of such payments. All such records shall be kept for a period commencing on the
Effective Date and terminating seven (7) years after payment of the final advance of Grant proceeds
under this Agreement (the “Retention Period”). If any litigation, claim, negotiation, audit or
other action involving the records is commenced prior to the expiration of the Retention Period,
all records shall be retained until completion of the audit or other action and resolution of all
issues resulting therefrom, or until the end of the Retention Period, whichever is later. MTC or
the Commonwealth or any of their duly authorized representatives shall have the right at reasonable
times and upon reasonable notice, to examine and copy at reasonable expense, the books, records,
and other compilations of data of the Grantee which pertain to the Project and/or the provisions
and requirements of this Agreement from the Effective Date through the end of the Retention Period.
Such access may include on-site audits, review and copying of records.
14. Lobbying No Grant funds may be used to pay for or otherwise support any activities intended to
influence any matter pending before the Massachusetts General Court or for activities covered by
the law and regulations governing “legislative agents” or “executive agents” set forth in the
Massachusetts Lobbying Law, M.G.L. c.3, §39.
15. Choice of Law This Agreement shall be construed under, and governed by, the laws of the
Commonwealth of Massachusetts, without giving effect to its conflict of laws principles. The
Grantee agrees to bring any Federal or State legal proceedings arising under this Grant in which
the Commonwealth or MTC is a party in a court of competent jurisdiction within the Commonwealth of
Massachusetts. This Section shall not be construed to limit any other legal rights of the parties.
16. Force Majeure Neither party shall be liable to the other, or be deemed to be in breach of this
Agreement for any failure or delay in rendering performance arising out of causes beyond its
reasonable control and without its fault or negligence (“Force Majeure”). Such causes may include,
but are not limited to, acts of God or of a public enemy (including terrorist attacks), fires,
floods, epidemics, quarantine restrictions, freight embargoes, or unusually severe weather. Except
as otherwise provided in this Agreement, dates or times of performance, including limits set on
making advances of Grant funds, shall be extended to the extent of delays excused by Force Majeure,
provided that the party whose performance is affected notifies the other promptly in writing of the
existence and nature of such delay. Nothing in this Section 16 shall be deemed to apply to MTC’s
obligation to advance Grant funds as and when due pursuant to the terms of Section 5 of this
Agreement.
Page 6
Project Grant Agreement: Evergreen Solar, Inc.
17. Waivers Conditions, covenants, duties and obligations contained in this Agreement may be waived
only by written agreement between the parties. Forbearance or indulgence in any form or manner by a
party shall not be construed as a waiver, nor in any way limit the remedies available to that
party.
18. Notice Any notice under this Agreement shall be in writing and shall be sent either (i) by
facsimile, (ii) by courier, or (iii) by first class mail, postage, prepaid, to the address as set
forth below (or to such other address as a party may provide by notice to the party pursuant to
this Section), and shall be effective (i) if dispatched by facsimile and delivery is electronically
confirmed by said media, the day such electronic confirmation is received, (ii) if sent by courier,
one business day after dispatch, (iii) if sent by first class mail, five business days after its
date of posting. The address for such notice for each party is as follows:
If to MTC: Massachusetts Technology Collaborative 00 Xxxxx Xxxxx Xxxxxxxxxxx, XX 00000 000/000-0000
(phone) 508/000-0000 (fax) Attn: Xxxxxx X. Xxxxxxxxxx, Grants & Contracts Administrator
(xxxxxxxxxx@xxxxxxxx.xxx)
If to Grantee: Evergreen Solar, Inc. 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 000/000-0000 (phone)
508/.229.0747 (fax) Attn:
19. Amendments, Entire Agreement and Attachments All conditions, covenants, duties and obligations
contained in the Agreement may be amended only through a written amendment signed by the parties.
The parties understand and agree that this Agreement supersedes all other verbal and written
agreements and negotiations by the parties regarding the matters contained herein. The following
are attached and incorporated into this Agreement:
i. Attachment A – MTC’s Sensitive Information Policy and Procedures
ii. Attachment B – Jobs Target Schedule
iii. Attachment C – Pro-Rata Payment Calculation
ii. Attachment B – Jobs Target Schedule
iii. Attachment C – Pro-Rata Payment Calculation
The Massachusetts Technology Park Corporation |
||
d/b/a Massachusetts Technology Collaborative
|
Evergreen Solar, Inc. | |
By:
|
By: | |
Name: Xxxxxxxx Xxxxx
|
Name: | |
Title: Executive Director
|
Title: | |
Date:
|
Date: |
Page 7
Project Grant Agreement: Evergreen Solar, Inc.
Attachment A
The Massachusetts
Technology Collaborative Policy And Procedures
Regarding Submission Of “Sensitive Information”
Regarding Submission Of “Sensitive Information”
The Massachusetts Technology Collaborative, the Massachusetts Renewable Energy Trust which it
administers, and Xxxx Xxxxx Innovation Institute (collectively referred to herein as “MTC”) are
subject to the requirements concerning disclosure of public records under the Massachusetts Public
Records Act, M.G.L. c. 66 (the “Public Records Act”), which governs the retention, disposition and
archiving of public records. For purposes of the Public Records Act, “public records” include all
books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or
other documentary materials or data, regardless of physical form or characteristics, made or
received by MTC. As a result, any information submitted to MTC by a grant applicant, recipient
grantee, respondent to a request for response (including, but not limited to an RFQ, RFP and RFI),
contractor, or any other party (collectively the “Submitting Party”) is subject to public
disclosure as set forth in the Public Records Act.
The foregoing notwithstanding, “public records” do not include certain materials or data which fall
within one of the specifically enumerated exemptions set forth in the Public Records Act or in
other statutes, including MTC’s enabling act, M.G.L. Chapter 40J. One such exemption that may be
applicable to documents submitted by a Submitting Party is for any documentary materials or data
made or received by MTC that consists of trade secrets or commercial or financial information
regarding the operation of any business conducted by the Submitting Party, or regarding the
competitive position of such Submitting Party in a particular field of endeavor (the “Trade Secrets
Exemption”).
It is MTC’s
expectation and belief that the overwhelming percentage of documents it receives from a
Submitting Party does not contain any information that would warrant an assertion by MTC of an
exemption from the Public Records Act. Submitting Parties should therefore take care in determining
which documents they submit to MTC, and should assume that all documents submitted to MTC are
subject to public disclosure without any prior notice to the
Submitting Party and without resort to any formal public records request.
In the event that a Submitting Party wishes to submit certain documents to MTC and believes such a
document or documents may be proprietary in nature and may fall within the parameters of the Trade
Secrets Exemption and/or some other applicable exemption, the following procedures shall apply:
1. At the time of the Submitting Party’s initial submission of documents to MTC, the Submitting
Party must provide a cover letter, addressed to MTC’s General Counsel, indicating that it is
submitting documents which it believes are exempt from public disclosure, including a description
of the specific exemption(s) that the Submitting Party contends is/are applicable to the submitted
materials, a precise description of the type and magnitude of harm that would result in the event
of the documents’ disclosure, and a specific start date and end date within which the claimed
exemption applies. If different exemptions, xxxxx and/or dates apply to different documents, it is
the Submitting Party’s responsibility and obligation to provide detailed explanations for each such
document.
2. At the time of the Submitting Party’s initial submission of documents to MTC, the Submitting
Party must also clearly and unambiguously identify each and every such document that it contends is
subject to an exemption from public disclosure as “Sensitive Information.” It is the Submitting
Party’s responsibility and obligation to ensure that all such documents are sufficiently identified
as “Sensitive Information,” and Submitting Party’s designation must be placed in a
Page 8
Project Grant Agreement: Evergreen Solar, Inc.
prominent location on the face of each and every document that it contends is exempt from
disclosure under the Public Records Act.
Information
Submitted to MTC in any form other than a hard copy document will not be subject to the
procedures set forth in this Policy. For example, information submitted by e-mail, facsimile and/or
verbally will not be subject to these procedures and may be disclosed at any time without notice to
the Submitting Party.
3. Documents that are not accompanied by the written notification to MTC’s General Counsel or are
not properly identified by the Submitting Party as “Sensitive Information” at the time of their
initial submission to MTC are presumptively subject to disclosure under the Public Records Act, and
the procedures for providing the Submitting Party with notice of any formal public records request
for documents, as set forth below, shall be inapplicable.
4. At the time MTC receives documents from the Submitting Party, any such documents designated by
Submitting Party as “Sensitive Information” shall be segregated and stored in a secure filing area
when not being utilized by appropriate MTC staff. By submitting a grant application, request for
response, or any other act that involves the submission of information to MTC, the Submitting Party
certifies, acknowledges and agrees that (a) MTC’s receipt, segregation and storage of documents
designated by Submitting Party as “Sensitive Information” does not represent a finding by MTC that
such documents fall within the Trade Secrets Exemption or any other exemption to the Public Records
Act, or that the documents are otherwise exempt from disclosure under the Public Records Act, and
(b) MTC is not liable under any circumstances for the subsequent disclosure of any information
submitted to MTC by the Submitting Party, whether or not such documents are designated as
“Sensitive Information” or MTC was negligent in disclosing such documents.
5. In the event that MTC receives an inquiry or request for information submitted by a Submitting
Party, MTC shall produce all responsive information without notice to the Submitting Party. In the
event that the inquiry or request entails documents that the Submitting Party has previously
designated as “Sensitive Information” in strict accordance with this Policy, the inquiring party
shall be notified in writing that one or more of the documents it has requested has been designated
by the Submitting Party as “Sensitive Information”, and, if not already submitted, that a formal,
written public records request must be submitted by the requesting party to MTC’s General Counsel
for a determination of whether the subject documents are exempt from disclosure.
6. Upon the General Counsel’s receipt of a formal, written public records request for information
that encompass documents previously designated by Submitting Party as “Sensitive Information”, the
Submitting Party shall be notified in writing of MTC’s receipt of the public records request, and
MTC may, but shall not be required to provide Submitting Party an opportunity to present MTC with
information and/or legal arguments concerning the applicability of the Trade Secrets Exemption or
some other exemption to the subject documents. 7. The General Counsel shall review the subject
documents, the Public Records Act and the exemption(s) claimed by the Submitting Party in making a
determination concerning their potential disclosure.
The General
Counsel is the sole authority within MTC for making determinations on the applicability
and/or assertion of an exemption to the Public Records Act. No employee of MTC other than the
General Counsel has any authority to address issues concerning the status of “Sensitive
Information” or to bind MTC in any manner concerning MTC’s treatment and disclosure of such
documents. Furthermore, the potential applicability of an exemption to the disclosure of documents
designated by the Submitting Party as “Sensitive Information” shall not require MTC to assert such
an exemption. MTC’s General Counsel retains the sole discretion and authority to assert an
exemption, and he may decline to exert such an exemption if, within his discretion, the public
interest is served by the disclosure of any documents submitted by
the Submitting Party.
Page 9
Project Grant Agreement: Evergreen Solar, Inc.
8. MTC shall provide the requesting party and Submitting Party with written notice of its
determination that the subject documents are either exempt or not exempt from disclosure. 9. In the
event that MTC determines that the subject documents are exempt from disclosure, the requesting
party may seek review of MTC’s determination before the Supervisor of Public Records, and MTC shall
notify the Submitting Party in writing in the event that the requesting party pursues a review of
MTC’s determination.
10. In the event the requesting party pursues a review of MTC’s determination that the documents
are exempt from disclosure and the Supervisor of Public Records concludes that the subject
documents are not exempt from disclosure and orders MTC to disclose such documents to the
requester, MTC shall notify the Submitting Party in writing prior to the disclosure of any such
documents, and Submitting Party may pursue injunctive relief or any other course of action in its
discretion.
11. In the event that MTC determines that the subject documents are not exempt from disclosure or
the General Counsel determines that, under the circumstances and in his discretion, MTC shall not
assert an exemption, MTC shall notify the Submitting Party in writing prior to the disclosure of
any such documents, and Submitting Party may pursue injunctive relief or any other course of action
in its discretion.
The Submitting
Party’s submission of documentation to MTC shall require a signed certification that
Submitting Party acknowledges, understands and agrees with the applicability of the foregoing
procedures to any documents submitted to MTC by Submitting Party at any time, including but not
limited to the acknowledgements set forth herein, and that Submitting Party shall be bound by these
procedures.
All documents submitted by Submitting Party, whether designated as “Sensitive Information” or not,
are not returnable to Submitting Party.
Page 10
Project Grant Agreement: Evergreen Solar, Inc.
Attachment B
Evergreen Grant Analysis
See Attached
Evergreen Grant Analysis
See Attached
Page 11
Evergreen — Grant Analysis
| Job-Years if | ||||||||
| Year | Target | Target Achieved | ||||||
1 |
360 | 50 | ||||||
2 |
510 | 200 | ||||||
3 |
610 | 300 | ||||||
4 |
660 | 350 | ||||||
5 |
660 | 350 | ||||||
6 |
660 | 350 | ||||||
7 |
660 | 350 | ||||||
8 |
660 | 350 | ||||||
Total Job Years |
2300 | |||||||
Grant Amount |
$ | 10,000,000 | ||||||
Amount per Job Year |
$4,348 | GrantAmount/JobYears | ||||||
Baseline Jobs (to be retained) |
310 | |||||||
EXAMPLES
| Year | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | Total | |||||||||||||||||||||||||||
Example 1 |
||||||||||||||||||||||||||||||||||||
Actual Job Years Reported |
660 | 660 | 800 | 800 | 750 | 750 | 750 | 750 | ||||||||||||||||||||||||||||
Targeted Job Years Created Above Baseline |
50 | 200 | 300 | 350 | 350 | 350 | 350 | 350 | 2300 | |||||||||||||||||||||||||||
Less Actual Job Years Created Above Baseline |
350 | 350 | 490 | 490 | 440 | 440 | 440 | 440 | 3440 | |||||||||||||||||||||||||||
Variance from Target |
300 | 150 | 190 | 140 | 90 | 90 | 90 | 90 | 1140 | |||||||||||||||||||||||||||
Job Years Earned (not to exceed 2,300) |
350 | 350 | 490 | 490 | 440 | 180 | 0 | 0 | ||||||||||||||||||||||||||||
Cumulative Job Years Earned |
350 | 700 | 1190 | 1680 | 2120 | 2300 | 2300 | 2300 | ||||||||||||||||||||||||||||
Job Years Forfeited |
0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||||||||||||
Cumulative Job Years Forfeited |
0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||||||||||||
Earnings |
||||||||||||||||||||||||||||||||||||
Actual Job Years Earned |
350 | 350 | 490 | 490 | 440 | 180 | — | — | 2,300 | |||||||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Earned Amount |
$ | 1,521,739 | $ | 1,521,739 | $ | 2,130,435 | $ | 2,130,435 | $ | 1,913,043 | $ | 782,609 | $ | 0 | $ | 0 | $ | 10,000,000 | ||||||||||||||||||
Forfeitures* |
||||||||||||||||||||||||||||||||||||
Job Years Forfeited |
— | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Forfeited Amount |
$ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||||||
Cumulative Earned Amount |
$ | 1,521,739 | $ | 3,043,478 | $ | 5,173,913 | $ | 7,304,348 | $ | 9,217,391 | $ | 10,000,000 | $ | 10,000,000 | $ | 10,000,000 | ||||||||||||||||||||
Cumulative Forfeited Amount |
$ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||||||||
| * | NOTE: A positive forfeiture amount indicates a previously forfeited amount that MTC will return to Evergreen |
Example 2 |
||||||||||||||||||||||||||||||||||||
Actual Job Years Reported |
310 | 400 | 510 | 600 | 660 | 670 | 700 | 700 | ||||||||||||||||||||||||||||
Targeted Job Years Created Above Baseline |
50 | 200 | 300 | 350 | 350 | 350 | 350 | 350 | 2300 | |||||||||||||||||||||||||||
Less Actual Job Years Created Above Baseline |
0 | 90 | 200 | 290 | 350 | 360 | 390 | 390 | 2070 | |||||||||||||||||||||||||||
Variance from Target |
-00 | -000 | -000 | -00 | 0 | 10 | 40 | 40 | -230 | |||||||||||||||||||||||||||
Job Years Earned (not to exceed 2,300) |
0 | 90 | 200 | 290 | 350 | 360 | 390 | 390 | ||||||||||||||||||||||||||||
Cumulative Job Years Earned |
0 | 90 | 290 | 580 | 930 | 1290 | 1680 | 2070 | ||||||||||||||||||||||||||||
Job Years Forfeited |
-00 | -000 | -000 | -00 | 0 | 10 | 40 | 40 | ||||||||||||||||||||||||||||
Cumulative Job Years Forfeited |
-00 | -000 | -000 | -000 | -000 | -000 | -000 | -000 | ||||||||||||||||||||||||||||
Earnings |
||||||||||||||||||||||||||||||||||||
Actual Job Years Earned |
— | 90 | 200 | 290 | 350 | 360 | 390 | 390 | 2,070 | |||||||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Earned Amount |
$ | 0 | $ | 391,304 | $ | 869,565 | $ | 1,260,870 | $ | 1,521,739 | $ | 1,565,217 | $ | 1,695,652 | $ | 1,695,652 | $ | 9,000,000 | ||||||||||||||||||
Forfeitures* |
||||||||||||||||||||||||||||||||||||
Job Years Forfeited |
(50 | ) | (110 | ) | (100 | ) | (60 | ) | — | 10 | 40 | 40 | (230 | ) | ||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Forfeited Amount |
-$ | 217,391 | -$ | 478,261 | -$ | 434,783 | -$ | 260,870 | $ | 0 | $ | 43,478 | $ | 173,913 | $ | 173,913 | -$ | 1,000,000 | ||||||||||||||||||
Cumulative Earned Amount |
$ | 0 | $ | 391,304 | $ | 1,260,870 | $ | 2,521,739 | $ | 4,043,478 | $ | 5,608,696 | $ | 7,304,348 | $ | 9,000,000 | ||||||||||||||||||||
Cumulative Forfeited Amount |
-$ | 217,391 | -$ | 695,652 | -$ | 1,130,435 | -$ | 1,391,304 | -$ | 1,391,304 | -$ | 1,347,826 | -$ | 1,173,913 | -$ | 1,000,000 | ||||||||||||||||||||
| * | NOTE: A positive forfeiture amount indicates a previously forfeited amount that MTC will return to Evergreen |
Example 3 |
||||||||||||||||||||||||||||||||||||
Actual Job Years Reported |
310 | 660 | 660 | 661 | 659 | 660 | 660 | 660 | ||||||||||||||||||||||||||||
Targeted Job Years Created Above Baseline |
50 | 200 | 300 | 350 | 350 | 350 | 350 | 350 | 2300 | |||||||||||||||||||||||||||
Less Actual Job Years Created Above Baseline |
0 | 350 | 350 | 351 | 349 | 350 | 350 | 350 | 2450 | |||||||||||||||||||||||||||
Variance from Target |
-50 | 150 | 50 | 1 | -1 | 0 | 0 | 0 | 150 | |||||||||||||||||||||||||||
Job Years Earned (not to exceed 2,300) |
0 | 350 | 350 | 351 | 349 | 350 | 350 | 200 | ||||||||||||||||||||||||||||
Cumulative Job Years Earned |
0 | 350 | 700 | 1051 | 1400 | 1750 | 2100 | 2300 | ||||||||||||||||||||||||||||
Job Years Forfeited |
-50 | 50 | 0 | 0 | -1 | 0 | 0 | 0 | ||||||||||||||||||||||||||||
Cumulative Job Years Forfeited |
-50 | 0 | 0 | 0 | -0 | -0 | -0 | -0 | ||||||||||||||||||||||||||||
Earnings |
||||||||||||||||||||||||||||||||||||
Actual Job Years Earned |
— | 350 | 350 | 351 | 349 | 350 | 350 | 200 | 2,300 | |||||||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Earned Amount |
$ | 0 | $ | 1,521,739 | $ | 1,521,739 | $ | 1,526,087 | $ | 1,517,391 | $ | 1,521,739 | $ | 1,521,739 | $ | 869,565 | $ | 10,000,000 | ||||||||||||||||||
Forfeitures* |
||||||||||||||||||||||||||||||||||||
Job Years Forfeited |
(50 | ) | 50 | — | — | (1 | ) | — | — | — | (1 | ) | ||||||||||||||||||||||||
Multiplied by Amount/Job Year |
$ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | $ | 4,348 | ||||||||||||||||||
Total Forfeited Amount |
-$ | 217,391 | $ | 217,391 | $ | 0 | $ | 0 | -$ | 4,348 | $ | 0 | $ | 0 | $ | 0 | -$ | 4,348 | ||||||||||||||||||
| True — Up Payment (in the event that Grantee achieves the creation on a cumulative basis of 2300 Job Years on or before the last day of the 8th year following the Effective Date, MTC shall pay back to Grantee any and all amounts previously paid by Recipient to MTC as Forfeiture Amounts) | $ | 4,348 | ||||||||||||||||||||||||||||||||||
Cumulative Earned Amount |
$ | 0 | $ | 1,521,739 | $ | 3,043,478 | $ | 4,569,565 | $ | 6,086,957 | $ | 7,608,696 | $ | 9,130,435 | $ | 10,000,000 | ||||||||||||||||||||
Cumulative Forfeited Amount |
-$ | 217,391 | $ | 0 | $ | 0 | $ | 0 | -$ | 4,348 | -$ | 4,348 | -$ | 4,348 | -$ | 4,348 | ||||||||||||||||||||
| * | NOTE: A positive forfeiture amount indicates a previously forfeited amount that MTC will return to Evergreen; | |
Project Grant Agreement: Evergreen Solar, Inc.
Attachment C
Example 1
Total Project Construction Funds = $50,000,000
MTC Grant |
$ | 10,000,000 | 20 | % | ||||
Company Equity |
40,000,000 | 80 | % | |||||
Invoice : |
$ | 1,000,000 | ||||||
Grant Draw |
$ | 200,000 | (20 | %) | ||||
Company Funds Draw |
800,000 | (80 | %) |
Example 2
Total Project Construction Funds = $60,000,000
MTC Grant |
$ | 10,000,000 | ||
Bank Loan |
$ | 25,000,000 | ||
Company Equity |
$ | 25,000,000 | ||
Invoice: |
$ | 1,000,000 | ||
Grant Draw: |
$ | 166,667 | ||
Bank Draw & Company Equity* |
$ | 833,333 | * |
| Ratio to be negotiated between Co. and party lending for construction |
Page 12
