exv10w1






Exhibit 10.1



CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been omitted pursuant to a
request for confidential treatment and, where applicable, have been marked with an asterisk
(“[****]”) to denote where omissions have been made. The confidential material has been filed
separately with the Securities and Exchange Commission.




AMENDMENT TO MASTER SUPPLY AGREEMENT




     This Amendment (“Amendment”) is entered into as of this 26th of March 2010 to be
effective on the date that the Initial Payment as defined below is made to Evergreen (the
“Effective Date”) by and between (i) Evergreen Solar, Inc., having its principal place of
business at 138 Bartlett Street, Marlboro, MA 01752-3016 USA (“Evergreen”), and (ii) Ralos
Vertriebs GmbH, Michelstadt, Germany (“Purchaser”).



     Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Supply Agreement (as defined below).



RECITALS




     WHEREAS, Evergreen and Purchaser entered into that certain Master Supply Agreement dated as of
May 21, 2008, which agreement has been modified by temporary price adjustments agreed to be the
parties from time to time in 2009 (as so modified by any temporary price adjustments, the
“Supply Agreement”);



     WHEREAS, Purchaser requested and Evergreen agrees that the purchase and sale obligations of
the parties pursuant to the Supply Agreement requiring Purchaser to order and purchase certain
quantities of Product, and requiring Evergreen to ship and sell certain quantities of Product,
shall be suspended effective January 1, 2010, pending a good faith discussion of modifications to
the Supply Agreement;



     WHEREAS, prior to the suspension of the purchase and sale obligations under the Supply
Agreement, Purchaser purchased Products pursuant to the Supply Agreement, as referenced in the
invoices listed in Exhibit A, which Purchaser has yet to pay for in accordance with the
terms of the Supply Agreement (all amounts payable for Products under invoices listed in
Exhibit A-1 (net of credits listed) are referred to as the “Product Payments”); and



     WHEREAS, Purchaser and Evergreen agree that the discussions of modifications that will
eventually lead to an early release of Purchaser from its obligation to buy and an early release of
Evergreen from its obligations to supply the quantities of Product as agreed in the Supply
Agreement and that the Supply Agreement will be modified to allow the continuation of the supply
of Product by Evergreen to Purchaser; and



 









 






     WHEREAS, the parties wish to formally agree to the suspension of their respective purchase and
sale obligations and for payment of overdue invoices on the terms and conditions as set forth
herein;



     NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and
other good and valuable consideration, to be legally bound, Evergreen and Purchaser agree as
follows:



AGREEMENT




     1. Upon the execution of this Amendment, the obligations of the Purchaser and Evergreen set
forth in Sections 3 and 4 of the Supply Agreement, shall be suspended effective January 1, 2010,
and until such time as the parties mutually agree in writing to reinstate those provisions, subject
to any changes they may mutually agree to for the obligations contained in these sections; provided
that the aforementioned suspension of Purchaser’s obligations shall only continue as long as
Purchaser complies with all of the payment obligations under the Supply Agreement as modified by
any payment accommodations granted to Purchaser by Evergreen pursuant to Section 4 and Section 5
below.



     2. The Parties agree that as of March 25, 2010, Purchaser has already reduced the sum of
overdue Product Payments by [****].



     3. As further payment in full of the Product Payments, Purchaser agrees to make all of the
following payments on the following dates to Evergreen by wire transfer per the wire instructions
set forth in Exhibit B or to another account as later directed by Evergreen in writing:




     a. A payment of [****] on or before [****] (the “Initial Payment”);




     b. Weekly payments of [****] (“Weekly Payments”), due on or before Friday
morning each week commencing on [****] and continuing until the Product Payments are made in
full; and




     c. [****]




     d. A final payment of any then remaining Product Payment amounts and interest thereon
in accordance with Section 5 shall be paid on or before [****].



     4. Payments will be deemed to have been made on the date that the Purchaser has irrevocably
ordered the immediate transfer of funds to Evergreen’s account at which time Purchaser shall
provide Evergreen with notice of the transfer ordered and applicable tracking information.



     5. Purchaser agrees to pay any unpaid interest on payments due for Products purchased by
Purchaser under the Supply Agreement at any time (with the payment amounts at any given time being
determined net of any credit memos issued by Evergreen or invoices properly delivered to Evergreen
by Purchaser). Evergreen acknowledges that Purchaser has questioned the calculation of interest by
Evergreen under the Supply Agreement and Evergreen agrees that it will revisit any unpaid interest
invoices it has provided to date and issue corrected



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invoices or credit notes as appropriate to correct any charges that were not properly
calculated in accordance with the Supply Agreement. Any dispute regarding the calculation of
interest or invoices issued by Ralos to Evergreen will be resolved by mutual agreement between the
parties if possible. Purchaser will endeavor to and expects to make a final payment in the
remaining amount of any then outstanding Product Payment amounts on or before [****] as set forth
in the payment schedule provided to Evergreen by Purchaser. If the final payment of the Product
Payments and interest is not made on or before [****], interest on any then outstanding Product
Payment amounts shall accrue interest at an annualized rate of [****] compounded monthly, instead
of the existing annualized rate of 18%. In all cases, if the applicable interest per the foregoing
sentence would exceed the maximum interest allowed by law, the actual interest rate charged shall
be the maximum allowed by law.




     6. Interest due on the Product Payments and payments for any other Products purchased by
Purchaser shall accrue as agreed in the Supply Agreement but shall be due and payable on the same
day as the last payment of the Product Payments pursuant to Section 3.b. or Section 3.c., as the
case may be, or upon Purchasers failure to comply with the terms of this Agreement as modified by
this Amendment.



     7. Purchaser may make additional payments at any time.



     8. If by [****] Purchaser has paid to Evergreen (as demonstrated by written confirmation from
the bank wiring such payments) [****] (inclusive of all payments made pursuant to Sections 2, 3 and
7), Evergreen agrees that Purchaser will have no further payment obligations for the Product
Payments and all interest amounts payable thereon shall be irrevocably waived.



     9. Evergreen shall be granted reasonable access to the books and records of Purchaser (during
normal business hours and after reasonable notice to Purchaser) to ensure that payments are being
made in accordance with the terms of Section 3.c. and to generally assure Evergreen of Purchaser’s
financial status. In addition, Ralos will provide Evergreen with weekly updates regarding the
status of installations, project sales and cash flow and liquidity in a form the parties reasonably
agree.



     10. Pending the suspension of obligations pursuant to Section 1 above, the parties may agree
to the purchase and sale of additional Product under the Supply Agreement, but the price, order and
fulfillment terms of any such purchases shall be determined based on written purchase orders and
order confirmations associated with any such purchases. In the event of any such purchases, the
other terms for such purchases not specified in the purchase orders or order confirmations shall be
based on the terms set forth in the sections of the Supply Agreement other than Sections 3 and 4.



     11. In connection with this Amendment to the Supply Agreement, Purchaser agrees to provide
Evergreen with payment security for Purchaser’s payment obligations in the form of (a) a guarantee
from Purchaser’s parent company, Ralos New Energies AG and (b) assignments of receivables, chattel
mortgages and guarantees in an amount sufficient to secure the payments due from Purchaser to
Evergreen. Evergreen understands that its interests in receivables will be and personal property
may be subordinate to the interests of commercial lending institutions



3









 





presently
negotiating security interests with Purchaser in connection with commercial banking
relationships. Such assignments, chattel mortgages and guarantees shall be provided or made to
Evergreen on commercially standard terms and conditions within no more than two weeks following the
consummation of Purchaser’s new commercial banking arrangements.




     12. Purchaser and Evergreen agree to endeavor to work together in good faith so that up to
[****] of the Products might be purchased by Purchaser or an affiliate pursuant to the Agreement
[****] by Purchaser, an affiliate of the Purchaser or a third party. The additional details
regarding the ordering and delivery of the Products for [****] will be determined in good faith by
the parties. Evergreen acknowledges that Purchaser’s ability to use the Product [****] is
contingent on a number of factors, including the financing terms. The parties will endeavor to
determine other projects that may benefit from the combination of Ralos’s expertise and Evergreen’s
industry leading products.



     13. The Supply Agreement, as modified by this Amendment, contains the entire understanding of
the parties with respect to the subject matter thereof and hereof and supersedes all prior
agreements relating thereto, written or oral, between the parties. Except as and to the extent
expressly modified by this Amendment, the rights and obligations of Evergreen and Purchaser set
forth in the Supply Agreement and the schedules thereto shall remain in full force and effect in
all respects. In the event of a conflict or inconsistency between this Amendment and Supply
Agreement and the schedules thereto and exhibits hereo, the provisions of this Amendment shall
govern. In the event that Purchaser fails to comply with the payment terms of the Supply Agreement
as modified by this Amendment, the payment terms of the Supply Agreement shall revert to the
payments terms as in effect prior to the execution of this Amendment.



     14. Evergreen agrees that as long as Purchaser continues to make payments in accordance with
this Amendment and as long as Purchaser meets its payment obligations for any other sales of
Product agreed to after the date of this Amendment, Evergreen will refrain from asserting any
claims for breaches or defaults by Purchaser which occurred prior to the date hereof under the
Agreement. Purchaser agrees and acknowledges that it presently has no claims against Evergreen for
any breach or default under the Agreement.



     15. This Amendment may be executed in several counterparts, each of which shall constitute an
original and all of which, when taken together, shall constitute one agreement.



[signatures next page]



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     IN WITNESS WHEREOF, the undersigned duly authorized representatives of Evergreen and Purchaser
have executed this Amendment as of the date first referenced above.



	 	 	 	 	 	 	 	 	 	 	 

	EVERGREEN SOLAR, INC.	 	 	 	RALOS NEW ENERGIES AG	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Scott J. Gish
	 	 	 	By:
	 	/s/ Heinrich Dauscher	 	 
	 

	 	 

Print Name: Scott J. Gish
	 	 	 	 	 	 

Print Name: Heinrich Dauscher
	 	 
	 

	 	Title: Vice President
	 	 	 	 	 	Title: CTO	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ A. Klein	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Print Name: A. Klein	 	 
	 

	 	 	 	 	 	 	 	Title: CEO	 	 






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EXHIBIT A




Invoice List




	 	 	 	 	 	 	 

	Doc Nbr
	 	Posting Date
	 	Due Date
	 	EuroAmt in Doc
	[****]