exv4w5






Exhibit 4.5




 

 






EVERGREEN SOLAR, INC.




as Issuer




AND




U.S. BANK NATIONAL ASSOCIATION




as Trustee



 




FIRST SUPPLEMENTAL INDENTURE




Dated as of [•], 2011



 




13% Convertible Senior Secured Notes due 2015




 

 






 









 





     FIRST SUPPLEMENTAL INDENTURE, dated as of [•], 2011 (this “Supplemental Indenture”), between
Evergreen Solar, Inc., a Delaware corporation, as Issuer (the “Company,” in its own capacity and as
successor-in-interest to ESLR1, LLC), and U.S. Bank National Association, a national banking
association, as trustee (the “Trustee”).



RECITALS OF THE COMPANY




     WHEREAS, the Company, ESLR1, LLC, the Guarantor party thereto (which has since been merged
with and into the Company), and the Trustee heretofore entered into the Indenture, dated as of
April 26, 2010 (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the
“Indenture”), relating to the Company’s 13% Convertible Senior Secured Notes due 2015 (each a
“Security” and collectively, the “Securities”);



     WHEREAS, the Company issued $165,000,000 aggregate principal amount of Securities;



     WHEREAS, Section 15.02 of the Base Indenture provides that with the written consent of the
Holders of not less than a majority in Principal Amount of the outstanding Securities, the Company
and the Trustee may enter into a supplemental indenture amending the Indenture and amend the
Collateral Documents for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or the Collateral Documents or modifying in any
manner the rights of the Holders under the Indenture or the Collateral Documents;



     WHEREAS, pursuant to a Prospectus, dated as of [•], 2011 (as amended or supplemented, the
“Prospectus”), in accordance with Section 15.02 of the Base Indenture, the Company has solicited
consents from Holders of the Securities for amendments to the Indenture and the Collateral
Documents, such consents to be obtained in connection with a tender offer for the Securities (the
“Tender Offer”);



     WHEREAS, the execution and delivery of this Supplemental Indenture has been authorized by the
board of directors of the Company;



     WHEREAS, the Company has received the written consent of the Holders of at least a majority of
Principal Amount of the outstanding Securities and has satisfied all other conditions precedent and
covenants, if any, provided for in the Base Indenture to enable the Company and the Trustee to
enter into this Supplemental Indenture, all as certified by an Officers’ Certificate, delivered to
the Trustee simultaneously with the execution and delivery of this Supplemental Indenture as
contemplated by Section 1.02 of the Base Indenture; and



     WHEREAS, the Company has delivered to the Trustee simultaneously with the execution and
delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental
Indenture as contemplated by Sections 1.02 and 15.03 of the Base Indenture.



     NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the
premises and mutual covenants herein contained, it is mutually agreed, for the benefit of the
Company and the equal and proportionate benefit of all Holders of the Securities, as follows:



 









 





ARTICLE 1

RELATION TO BASE INDENTURE; DEFINITIONS




     Section 1.01 Relation to Indenture. This Supplemental Indenture constitutes an integral part of the
Indenture and shall form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the
Indenture as amended hereby. The Trustee hereby agrees to make an appropriate notation on each
Global Security and in its records to the effect that the Indenture has been amended pursuant to
the amendments contained in this Supplemental Indenture. Subject to Section 1.07 of the Base
Indenture, in the event of inconsistencies between the Base Indenture and this Supplemental
Indenture, the terms of this Supplemental Indenture shall govern.



     Section 1.02 Defined Terms. For all purposes of this Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires:



          (a) capitalized terms used herein and not otherwise defined herein are used herein as defined
in the Base Indenture;



          (b) all other terms used herein without definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them therein;



          (c) all accounting terms not otherwise defined herein or in the Base Indenture have the
meanings assigned to them in accordance with GAAP;



          (d) unless the context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or a Section, as the case may be, of this Supplemental Indenture; and



          (e) the words “herein,” “hereof,” “hereunder” and other words of similar import refer to this
Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.



ARTICLE 2

MODIFICATION




     Section 2.01 Amendments to the Indenture. The Indenture is hereby modified by amending the following
sections of the Indenture:



          (a) Section 1.01 of the Indenture is hereby amended by adding the following terms in the
appropriate alphabetical order:



               “2011 Exchange Amount” means the aggregate principal amount of Securities exchanged for 2017
Notes pursuant to the exchange offer effected by the Company pursuant to the Prospectus, dated [•],
2011, as amended or supplemented.



               “2017 Notes” means the Company’s 7.5% Convertible Senior Secured Notes due 2017.



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               “2017 Note Guaranty” means the guaranty of the 2017 Notes by a guarantor thereto pursuant to
the 2017 Notes Indenture.



               “2017 Notes Indenture” means the indenture dated as of [•], 2011, by and among the Company,
the guarantors from time to time party thereto, and U.S. Bank National Association, as trustee, as
in effect from time to time.



               “2017 Notes Trustee” means the trustee under the 2017 Notes Indenture.



               “2020 Notes” means the Company’s 4.0% Convertible Subordinated Additional Cash Notes due
2020.”



          (b) The definition of “Collateral Trust Agreement” in Section 1.01 of the Indenture is hereby
amended and restated in its entirety as follows:



               “ “Collateral Trust Agreement” means the Amended and Restated Collateral Trust Agreement,
dated as of [•], 2011, among the Company, the Subsidiaries of the Company party thereto, the
Trustee, the 2017 Notes Trustee, and U.S. Bank National Association, as Collateral Agent, as
amended, restated, supplemented or otherwise modified from time to time.”



          (c) Clause (2) of the definition of “Permitted Liens” in Section 1.01 of the Indenture is
hereby amended and restated in its entirety to read as follows:



               “(2) Liens on the Collateral securing the Securities, the Note Guaranties and other
Obligations under this Indenture and in respect thereof and any obligations owing to the Trustee or
the Collateral Agent under this Indenture or the Collateral Documents, and any Liens on the
Collateral securing the 2017 Notes, the 2017 Note Guaranties and other obligations under the 2017
Notes Indenture and in respect thereof and any obligations owing to the 2017 Notes Trustee or the
Collateral Agent under the 2017 Notes Indenture or the Collateral Documents.”



          (d) The definition of “Restricted Debt” in Section 1.01 of the Indenture is hereby amended and
restated in its entirety as follows:



               “ “Restricted Debt” means (a) any Subordinated Debt, (b) the 2013 Notes, (c) the 2017 Notes,
(d) the 2020 Notes and (e) any Debt Permitted by clauses (3), (6), (12) or (15) of the definition
of Permitted Debt.”



          (e) The definition of “Security Agreement” in Section 1.01 of the Indenture is hereby amended
and restated in its entirety as follows:



               “ “Security Agreement” means the Amended and Restated Pledge and Security Agreement, dated as
of [•], 2011, among the Company, the Guarantors and the Collateral Agent, as may be amended,
restated, supplemented or otherwise modified from time to time.”



          (f) Clause (2) of Section 4.15(b) of the Indenture is hereby amended and restated in its
entirety as follows:



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               “(2) Debt of the Company pursuant to the Securities in an aggregate principal amount not to
exceed $165,000,000 and debt of any Guarantor pursuant to a Note Guaranty of the Securities, and
Debt of the Company pursuant to the 2017 Notes in an aggregate principal amount not to exceed the
2011 Exchange Amount, and debt of any Guarantor pursuant to a 2017 Note Guaranty of the 2017
Notes.”



          (g) 
Section 4.18 of the Indenture is hereby amended by adding the following new clause (l)
at the end of the section:



               “(l) payments in cash to satisfy any interest payments payable upon conversion of the 2017
Notes[.][; and]1”




          (h) [Section 4.18 of the Indenture is hereby amended by adding the following new clause (m) at
the end of the section:



               “(m) if the Company does not then have a sufficient number of
authorized and unissued shares that have not been reserved for other purposes, payments in cash to
satisfy any Coupon Make Whole Payment (as defined in the 2017 Notes Indenture) payable upon
conversion of the 2017 Notes.”]



ARTICLE 3

AMENDMENTS TO COLLATERAL DOCUMENTS




     Section 3.01 Amendments to Collateral Documents. The Trustee shall, or shall cause the Collateral Agent,
to execute any reasonable document, amendment or agreement, including the Collateral Trust
Agreement and the Security Agreement, to reflect the modifications effected by this Supplemental
Indenture.



ARTICLE 4

EFFECTIVE TIME




     Section 4.01 Effective Time. This Supplemental Indenture shall be effective upon its execution and
delivery by the parties hereto. Notwithstanding the foregoing sentence, the modifications to the
Indenture as described in Article 2 of this Supplemental Indenture shall become operative only upon
the acceptance for exchange by the Company of at least a majority of Principal Amount of the
outstanding Securities, validly tendered (and not withdrawn) pursuant to the Tender Offer on the
settlement date in accordance with the Prospectus, with the result that the modifications effected
by this Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such
exchange shall not occur.



ARTICLE 5

MISCELLANEOUS PROVISIONS




     Section 5.01 Severability Clause. In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby and such provision shall be ineffective only
to the extent of such invalidity, illegality or unenforceability.



     Section 5.02 Effect of Headings. Headings of the Articles and Sections of this Supplemental Indenture have
been inserted for convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.



     Section 5.03 The Trustee. The Trustee shall not be responsible in any manner whatsoever for in any respect
of the validity or sufficiency of this Supplemental Indenture or the due execution




 





1
This second bracketed version to be included only if stockholder
approval to increase the Company’s authorized shares of Common Stock
is not obtained.




2
 This
portion is to be included only if stockholder approval to increase the
Company’s authorized shares of Common Stock is not obtained.





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hereof by the Company or the Guarantor. The Recitals of the Company contained herein shall be
taken as the statements solely of the Company and the Guarantor, and the Trustee assumes no
responsibility for the correctness thereof.




     Section 5.04 Governing Law. THIS SUPPLEMENTAL INDENTURE, TOGETHER WITH THE BASE INDENTURE AND THE
SECURITIES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



     Section 5.05 Successors. All agreements of the Company and of the Guarantor in this Supplemental Indenture
shall bind their respective successors. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.



     Section 5.06 Multiple Originals. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Supplemental Indenture.



[Reminder of the page intentionally left blank.]




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     IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the day and year first above written.



	 	 	 	 	 
	 	EVERGREEN SOLAR, INC.

 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Signatory