exv10w36






Exhibit 10.36



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ANLAGE 11




Undertaking of Evergreen Solar Inc.



Evergreen
Solar, Inc. (“Evergreen”)

Deutsche Bank AG Filiale Deutschlandgeschäft, in its capacity as Security Agent and Lender,

Deutsche Bank Luxembourg S.A.

Bayerische Hypo- und Vereinsbank Aktiengesellschaft

HVB Banque Luxembourg Société Anonyme

NORD/LB Norddeutsche Landesbank Girozentrale

IKB Deutsche Industriebank AG

Sachsen Bank unselbstständige Anstalt der Landesbank Baden-Württemberg

EverQ GmbH




agree as follows:




Undertaking



All terms set in italics in this Undertaking have the same meaning as the terms set opposite
to them in the table attached as Annex 1, which in turn have the meaning defined in the syndicated
loan agreement dated 30 April, 2007 as amended on 22 May 2007 and on 01 September 2008 regarding a
syndicated loan in the amount of EUR 192,500,000.00 granted to EverQ GmbH (Loan Agreement). The
Loan Agreement including schedules is known to Evergreen in its entirety. Terms defined in this
Undertaking (“Undertaking”) have the meaning defined herein and are not set in italics.



However, Evergreen is not a party to the Loan Agreement and the latter does not constitute a
legally binding document for Evergreen even where the wording of the Loan Agreement might suggest
otherwise. Rather, the legal relationship between Evergreen on the one side and the Financing
Parties and the Borrower on the other side is exclusively governed by this Undertaking regarding
the issuance of the aforementioned loan to the Borrower.




 









 




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Section A     Undertaking





	§ 1	 	Subordination of claims of Shareholders
	 
	(1)	 	Evergreen hereby subordinates all of its current and future claims against the Borrower, and
all of the rights appertaining thereto, with the exception of trade receivables and the claims on
interest out of its shareholder loans that may not bear significantly higher interest than Tranche
C, to all of the current and future claims of the Banks (including all of their domestic and
foreign branches) against the Borrower under the Financing Documents, irrespective of the legal
form of the Borrower at such time and irrespective of the
identity of its shareholders. As long as the Banks have not been fully satisfied in respect of the aforementioned
claims when due and payable, Evergreen will not dispose of its claims subordinated in
accordance with this subsection without the prior written consent of the Banks and, in
particular, will not collect on them, secure them, assign them to third parties, pledge them
or set them off. At the same time, Evergreen warrants that it has not disposed of the claims
prior to today, so that no third party rights exist with respect to such claims.
	 
	(2)	 	Evergreen hereby subordinates all of its current and future trade receivables and all of the
rights against the Borrower appertaining thereto as well as the claims on interest out of its
shareholder loans that may not bear significantly higher interest than Tranche C to all of the
claims of the Banks (including all of their domestic and foreign branches) against the Borrower
under the Financing Documents that have or will have fallen due, irrespective of the legal form of
the Borrower at such time and irrespective of the identity of its shareholders.
As long as the Banks have not been fully satisfied in respect of the aforementioned
claims when due and payable, Evergreen will not dispose of its claims subordinated in
accordance with this subsection without the prior written consent of the Banks and, in
particular, will not collect on them, secure them, assign them to third parties, pledge them
or set them off. At the same time, Evergreen warrants that it has not disposed of the claims
prior to today, so that no third party rights exist with respect to such claims.
	 
	(3)	 	This subordination shall remain valid until it is rescinded by written mutual agreement. The
Banks shall consent to the rescission if the Borrower has fulfilled or secured all of its
obligations to them under the Financing Documents. The Banks have the right to grant their consent
subject to the condition subsequent that the Banks are required to return the





 









 




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	 	 	amounts that have been paid to them (especially in the case of impending challenge during
insolvency proceedings).






	§ 2	 	 Representations and Warranties




By concluding this Undertaking, Evergreen represents and warrants to the Banks that





	(a)	 	within the framework of the current version of the Master Joint Venture Agreement, the MoU and
the respective License and Technology Transfer Agreement executed by Evergreen, the Borrower will
receive unlimited use of all of the licenses and other rights of use, as well as the necessary
process expertise, necessary to satisfy the Business Plan, to the extent Evergreen owns such
rights;
	 
	(b)	 	no judicial or extrajudicial legal proceedings exist with respect to the licenses and other
rights of use referred to in subparagraph (a) that could threaten the Borrower’s rights out of the
licenses or the rights of use;
	 
	(c)	 	all agreements between the Borrower and Evergreen have been concluded, and are being
performed, on the basis of terms that are at arm’s length;
	 
	(d)	 	if it expands production capacity, grants licenses or other rights of use to third parties — or
acquires shares of companies — that compete with the Borrower using comparable technology to its
own technology it shall, to the extent feasible, grant to the Borrower within the framework of the
current versions of the Master Joint Venture Agreement, the MoU and of the respective License and
Technology Transfer Agreement access to the use of the respective technology at least equivalent to
its own access and on at least the same (or more favorable) terms.




The aforementioned Representations and Warranties shall apply as having been repeated by Evergreen
with every Notice of Drawing, on each drawing date and on the first day of each Interest Period.





	§ 3	 	 Conclusion of Inter-Company Agreements
	 
	(1)	 	Evergreen covenants, in respect to the Borrower, not to enter into any control, profit transfer
or other inter-company agreements within the meaning of sec. 291 and 292 of the German Stock
Corporation Act (Aktiengesetz), or to execute transformations within the meaning of




 









 










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	 	 	the German Act on Business Transformations (Umwandlungsgesetz) or comparable transactions without the prior written consent of the Banks.
	 
	(2)	 	§ 3 (1) above does not apply to the Borrower’s transformation into a stock corporation
(Aktiengesellschaft) according to sec. 190 ff. of the German Act on Business Transformations
(Umwandlungsgesetz).






	§ 4	 	 Expansion Measures




The Borrower and the Shareholders shall offer the Banks the option of financing the Expansion
Measures in preference to all other financing providers. However, no prejudice to a favourable
financing decision may be derived therefrom.



If the Banks’ review does not lead to a favourable financing decision, then the Banks consent to
the Expansion Measures already by executing the Loan Agreement if the Borrower and the
Shareholders are implementing the Expansion Measures via a subsidiary or affiliate on a
stand-alone basis, i.e. without any financial or non-financial recourse whatsoever to the Borrower,
it being understood that the Shareholders must grant to the Borrower at least the same terms and
conditions as to such subsidiary or affiliate to the extent services rendered, goods delivered or
rights granted to such subsidiary or affiliate are also rendered, delivered or granted under the
Project Contracts.





	§ 5	 	 Further Obligations
	 
	(1)	 	Jointly with the further Shareholders, Evergreen has contributed equity capital to the Borrower
in the amount of EUR 62,900,000.00 and has granted the Borrower shareholder loans (subordinate to
the claims of the Banks under the Loan Agreement in accordance with Section A § 1 subsections (1)
and (2) above) in the amount of at least EUR 125,000,000.00 prior to the first Drawing under the
Loan Agreement.
	 
	(2)	 	Until the full repayment of all amounts payable by the Borrower under the Loan Agreement,
Evergreen covenants






	 	(i)	 	to grant additional equity capital or additional loans (subordinated in accordance with
Section A § 1 subsections (1) and (2) above to claims of the Banks under the Loan Agreement),
in the amount of 33.33% of that amount by which




 









 










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	 	(a)	 	the investment costs for EverQ3 exceed the investment costs projected in
the Business Plan or
	 
	 	(b)	 	investment grants or investment subsidies are not granted in the
projected amount or investment grants or investment subsidies are required to be
repaid or Tranche B is to be repaid by Maturity Date;






	 	 	 	In case of (b) above the Borrower is obliged to make a repayment towards the
drawdown under Tranche B in the amount of the additional equity or additional loans
received.






	 	(ii)	 	to secure Completion of the EverQ3 investment by granting additional equity capital or
additional loans (subordinated in accordance with Section A § 1 subsections (1) and (2) above
to claims of the Banks under the Loan Agreement), in the amount of 33,33% of the necessary
amount if the Borrower fails to comply with its Undertakings under § 15 (Financial Ratios)
during the construction period of EverQ3; such additional shareholder loans may be repaid to
Evergreen provided that and insofar as the Borrower again complies with its Undertakings
under § 15 (Financial Ratios) considering such repayment;
	 
	 	(iii)	 	to secure Completion, including — if required — backfitting from Quad Technology to Gemini String Technology.
	 
	 	(iv)	 	to support the Borrower by implementation of actions contained in the MoU,
	 
	 	(v)	 	to promote the Borrower’s operations on the basis of the Project Contracts.






	(3)	 	The repayment of Evergreen’s shareholder loans is permitted provided that and insofar as the
Borrower’s equity capital was increased by proceeds of the IPO at least in the Aggregate Amount.
	 
	 	 	“Aggregate Amount” equals the sum of the repayments of Shareholder-1’s, Shareholder-2’s and
Shareholder-3’s shareholder loans, the payment according to Section A § 5 subsection (4) of
the Undertaking of Shareholder-1 (Schedule 11 to the Loan Agreement) and the payment according
to Section A § 5 subsection (4) of the Undertaking of Shareholder-3 (Schedule 13 to the Loan
Agreement).




 









 










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	(4)	 	Evergreen covenants to receive the in section E.IV of the MoU mentioned “Gemini Compensation
Value” in the amount of USD 45.000.000,00 or any comparable payment from the Borrower only provided
that and insofar as the Borrower’s equity capital was increased by proceeds of the IPO at least in
the Aggregate Amount
	 
	(5)	 	Upon demand, Evergreen will reimburse the Agent, the Security Agent and the other Financing
Parties all such reasonable and necessary external costs as the latter have incurred in connection
with the judicial or extrajudicial preservation or enforcement of their rights against Evergreen.
	 
	(6)	 	Evergreen covenants not to entirely or partially assign or transfer its rights and obligations
under this Undertaking.
	 
	(7)	 	Until the Borrower is not listed on the stock exchange, Evergreen covenants not to receive
dividends or distributions or comparable (direct or indirect) payments or benefits from the
Borrower. If permitted to Commercial Law, such payments or performances are permitted from the year
2010 for the business year 2009, as far and as long as the Leverage Ratio goes below the value 1,5.
	 
	(8)	 	Evergreen shall concurrently sign this Undertaking,
Addendum-1 according to Annex 2 and
the Addendum-2 according to Annex 3 to this Undertaking.
	 
	§ 6	 	 Miscellaneous
	 
	 	 	Claims of the Financing Parties against Evergreen are not affected by the agreements in §
23 subsection (8) (Costs and expenses) of the Loan Agreement.





Section B     Miscellaneous





	§ 1	 	Payments
	 
	(1)	 	Payment without deductions




All payments of Evergreen under this Undertaking are payable net, with no deductions of tax or
similar charges whatsoever, irrespective of the nature thereof, without any express demand made
therefor, on the due date (no later than 10 am local time). Payment obligations shall only be


 









 






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deemed to have been satisfied with the effect of discharging the obligation vis-a-vis the Bank
or Banks if and to the extent the relevant amounts are effectively paid in the currency in which
they are owed and in immediately disposable funds and have been credited, without reservation, to
the corresponding account designated by the Agent (or, in the case of payment obligations under an
Ancillary Facility, by the relevant Ancillary Bank) at the main trading centre of the currency in
question.





	(2)	 	No set-off




Evergreen is not entitled to set-off its own counterclaims against claims of the Agent or of
the Banks under the Loan Agreement or to assert a right of retention. The waiver of the right to
set-off and of retention does not apply to the extent the counterclaims are undisputed or have been
bindingly adjudicated.





	(3)	 	Partial payments




Should Evergreen make payments that are insufficient to satisfy liabilities under this
Undertaking which are in arrears or which are due, then in the event of payments to the Agent, the
Agent (in accordance with the ratios of the Banks) or, in the case of payments made to an Ancillary
Bank, the Ancillary Bank in question shall apply these payments towards such payments as are in
arrears or due, in the following priority:





	(a)	 	first — towards fees, commissions, costs and other expenses of the Arranger, the Agent or
the Security Agent to be reimbursed;
	 
	(b)	 	second — towards interest claims which are due and have not been paid;
	 
	(c)	 	third — towards outstanding Drawings; and
	 
	(d)	 	fourth — towards all further claims which are due.
	 
	§ 2	 	 Notices
	 
	(1)	 	Form




Unless otherwise provided in this Undertaking, all notices under this Undertaking must be given by
letter or facsimile.




 









 







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	(2)	 	Address




All notices to Evergreen shall be directed to the address set forth in Schedule 10 to the Loan
Agreement or to such other address as Evergreen has timely indicated to the Agent.





	§ 3	 	 Amendments




No amendments to this Undertaking shall be valid unless made in writing. The foregoing also
applies to any amendment to or waiver of this writing requirement.





	§ 4	 	 Transfer




Each Bank is entitled and obliged to assign or transfer, as the case may be, all or part of
its rights and duties under this Undertaking to another credit institution or financial
institution, provided, however, that such assignment and transfer may only be effected jointly with
the assignment and transfer of all or the correspondig part of, as the case may be, the rights and
duties such Bank has under the Financing Documents.





	§ 5	 	 Severability clause




Should any provisions of this Undertaking be or become invalid or unenforceable, whether in whole
or in part, then the remaining provisions hereof shall remain unaffected thereby. The Parties
hereby undertake to replace an invalid or unenforceable provision with the valid and enforceable
provision that most closely reflects in commercial terms the purpose of the invalid or
unenforceable provision. An analogous rule shall apply in the case of contractual gaps.





	§ 6	 	 No waiver




A delay or a failure (including an only partial failure) to exercise rights on the part of the
Agent or the Banks shall not be deemed a waiver of those rights and shall not give rise to a
forfeiture of such rights.





	§ 7	 	 Language






	(1)	 	Notices




All notices given in connection with this Undertaking must be given in German or English.




 









 







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	(2)	 	Documents




Any other document submitted in connection with a Financing Document must:





	(a)	 	be prepared in German or English,
	 
	(b)	 	unless otherwise agreed with the Agent, be submitted together with a certified German
translation. In such case the German translation shall take priority, except where the document in
question is prescribed by law or is otherwise an official document.






	§ 8	 	 Prescription




Any right and any claim of a Financing Party against Evergreen arising in connection with a
Financing Document shall be prescribed after three years from the date it falls due, except where
the relevant statutory prescription period is longer.





	§ 9	 	 Term




The term of this Undertaking shall not expire until all claims of the Banks under the Loan
Agreement have been finally fulfilled.





	§ 10	 	 Applicable Law, Jurisdiction






	(1)	 	This Undertaking and all rights and obligations arising hereunder shall in all respects be
governed by German law.
	 
	(2)	 	Evergreen hereby submits to the jurisdiction of the competent courts of Frankfurt am Main.
However, each Financing Party may sue Evergreen before each other competent court.
Evergreen irrevocably waives any objection which it may now or hereafter have that such
proceedings have to be brought in a more convenient forum.




 









 










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	Date:

	 	Evergreen Solar, Inc.
	 
	 	 
	Sep 19, 2008
	 	 
	 
	 	
	 

	 	(/s/ Richard M. Feldt) 
      (           
           )
	The Security Agent
	 	 
	 
	 	 
	Date:

	 	Deutsche Bank AG, Filiale Deutschlandgeschäft
	 
	 	 
	 

	 	(                     )      (                     )
	 
	 	 
	The Agent
	 	 
	 
	 	 
	Date:

	 	Deutsche Bank Luxembourg S.A.
	 
	 	 
	 

	 	(                     )      (                     )
	 
	 	 
	The Banks
	 	 
	 
	 	 
	Date:

	 	Deutsche Bank AG, Filiale Deutschlandgeschäft
	 
	 	 
	 

	 	(                     )      (                     )






 









 





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	Date:

	 	Deutsche Bank Luxembourg S. A.
	 
	 	 
	 

	 	(                      )     (                      )
	 
	 	 
	Date:

	 	Bayerische Hypo- und Vereinsbank Aktiengesellschaft
	 
	 	 
	 

	 	(                      )     (                      )
	 
	 	 
	Date:

	 	HVB Banque Luxembourg Société Anonyme
	 
	 	 
	 

	 	(                      )     (                      )
	 
	 	 
	Date:

	 	NORD/LB Norddeutsche Landesbank Girozentrale
	 
	 	 
	 

	 	(                      )     (                      )
	 
	 	 
	Date:

	 	IKB Deutsche Industriebank AG
	 
	 	 
	 

	 	(                      )     (                      )






 









 





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	Date:

	 	Sachsen Bank
	 

	 	unselbstständige Anstalt
der Landesbank Baden-Württemberg
	 
	 	 
	 

	 	(                      )     (                      )
	The Borrower
	 	 
	 
	 	 
	Date:

	 	EverQ GmbH
	 
	 	 
	 

	 	
      






 









 




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Annex 1




Terms Defined in the Loan Agreement




	 	 	 
	Addendum-1

	 	Addendum-1
	 
	Addendum-2

	 	Addendum-2
	 
	Agent

	 	Agent
	 
	Lead Arranger

	 	Lead Arranger
	 
	Co-Lead Arranger

	 	Co-Lead Arranger
	 
	Arranger

	 	Arranger
	 
	Ancillary Bank

	 	Ancillary Bank
	 
	Ancillary Facility

	 	Ancillary Fazilität
	 
	Banks

	 	Banken
	 
	Borrower

	 	Kreditnehmer
	 
	Business Plan

	 	Businessplan
	 
	Completion

	 	Fertigstellung
	 
	Completion date

	 	Fertigstellungstermin
	 
	Drawing

	 	Ziehung
	 
	EverQ3

	 	EverQ3
	 
	Expansion Measures

	 	Expansionsmaßnahmen
	 
	Financing Documents

	 	Finanzierungsdokumente
	 
	Financing Parties

	 	Finanzierungsparteien






 









 





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	Interest Period

	 	Zinsperiode
	 
	IPO

	 	Börsengang
	 
	Leverage Ratio

	 	Verschuldungsgrad
	 
	Loan Agreement

	 	Kreditvertrag
	 
	MoU

	 	MoU
	 
	Maturity Date

	 	Endfälligkeitstag
	 
	Notice of Drawing

	 	Ziehungsnachricht
	 
	Project Contracts

	 	Projektverträge
	 
	Representations and Warranties

	 	Bestätigungen und Zusicherungen
	 
	Security Agent

	 	Sicherheitenagent
	 
	Shareholder

	 	Gesellschafter
	 
	Shareholder-1

	 	Gesellschafter-1
	 
	Shareholder-2

	 	Gesellschafter-2
	 
	Shareholder-3

	 	Gesellschafter-3
	 
	Tranche B

	 	Tranche B
	 
	Tranche C

	 	Tranche C