exv4w3






Exhibit 4.3




COLLATERAL TRUST AGREEMENT




Dated as of April 26, 2010



by and among



EVERGREEN SOLAR, INC.




THE GUARANTOR SUBSIDIARIES

party hereto




U.S. BANK NATIONAL ASSOCIATION

as Collateral Agent




and



U.S. BANK NATIONAL ASSOCIATION

as Trustee



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1 Definitions and Other Matters
	 	 	2	 
	SECTION 2 Reserved
	 	 	4	 
	SECTION 3 Actionable Default; Remedies
	 	 	4	 
	3.1 Notice of Default; Written Instructions
	 	 	4	 
	3.2 Remedies
	 	 	4	 
	3.3 Administration of Trust Property
	 	 	4	 
	3.4 Reserved
	 	 	5	 
	3.5 Right to Initiate Judicial Proceedings, etc.
	 	 	5	 
	3.6 Appointment of a Receiver
	 	 	6	 
	3.7 Exercise of Powers
	 	 	6	 
	3.8 Control by Holders
	 	 	6	 
	3.9 Remedies Not Exclusive
	 	 	6	 
	3.10 Reserved
	 	 	7	 
	3.11 Limitation on the Collateral Agent’s Duties
	 	 	7	 
	3.12 Limitation by Law
	 	 	7	 
	3.13 Absolute Rights of Holders
	 	 	7	 
	SECTION 4 Trust Account, Application Of Moneys
	 	 	8	 
	4.1 The Trust Account
	 	 	8	 
	4.2 Control of Trust Account
	 	 	8	 
	4.3 Investment of Funds Deposited in Trust Account
	 	 	8	 
	4.4 Application of Moneys in Trust Account
	 	 	9	 
	4.5 Application of Moneys Distributable to Holders of Notes
	 	 	9	 
	SECTION 5 Agreements With The Collateral Agent
	 	 	10	 
	5.1 Delivery of Note Documents
	 	 	10	 






 









 






	 	 	 	 	 
	 	 	Page
	5.2 Information as to Holders
	 	 	10	 
	5.3 Compensation and Expenses
	 	 	10	 
	5.4 Stamp and Other Similar Taxes
	 	 	11	 
	5.5 Filing Fees, Excise Taxes, etc.
	 	 	11	 
	5.6 Indemnification
	 	 	11	 
	5.7 Further Assurances; Notation on Financial Statements
	 	 	11	 
	SECTION 6 The Collateral Agent
	 	 	12	 
	6.1 Acceptance of Trust
	 	 	12	 
	6.2 Exculpatory Provisions
	 	 	12	 
	6.3 Delegation of Duties
	 	 	13	 
	6.4 Reliance by Collateral Agent
	 	 	13	 
	6.5 Limitations on Duties of Collateral Agent
	 	 	13	 
	6.6 Moneys to be Held in Trust
	 	 	14	 
	6.7 Resignation and Removal of the Collateral Agent
	 	 	14	 
	6.8 Status of Successors to the Collateral Agent
	 	 	15	 
	6.9 Merger of the Collateral Agent
	 	 	15	 
	6.10 Co-Trustee, Separate Trustee
	 	 	15	 
	SECTION 7 Release of Collateral
	 	 	17	 
	7.1 Conditions to Release; Release Procedure
	 	 	17	 
	SECTION 8 Miscellaneous
	 	 	17	 
	8.1 Amendments, Supplements and Waivers
	 	 	17	 
	8.2 Notices
	 	 	18	 
	8.3 Headings
	 	 	19	 
	8.4 Severability
	 	 	19	 
	8.5 Treatment of Payee or Indorsee by the Collateral Agent
	 	 	19	 
	8.6 Dealings with the Trustors
	 	 	19	 






 









 






	 	 	 	 	 
	 	 	Page
	8.7 Claims Against the Collateral Agent
	 	 	20	 
	8.8 Binding Effect
	 	 	20	 
	8.9 Termination
	 	 	20	 
	8.10 Governing Law
	 	 	20	 
	8.11 Counterparts
	 	 	20	 
	Exhibit A  — Form of Supplement to Trust Agreement
	 	 	 	 






 









 






          COLLATERAL
TRUST AGREEMENT (this “Agreement”) dated as of April 26, 2010, by and among
Evergreen Solar, Inc., a Delaware corporation
(“Company”), the subsidiaries of Company listed in
the signature pages hereto (the “Guarantor Subsidiaries”), the Additional Trustors (as defined in
Section 5.7) (and together with Company and the Guarantor Subsidiaries, the “Trustors”), and U.S.
Bank National Association (together with its agents, successors and assigns, the “Collateral
Agent”), as collateral agent hereunder for the holders of the Secured Obligations, and U.S. Bank
National Association (together with its agents, successors and assigns, the “Trustee”), as Trustee
under the Indenture. Capitalized terms not otherwise defined shall have the meanings set forth in
Section 1 below.




Preliminary Statements:




          (1) Company has issued $165,000,000 of its 13% Convertible Senior Secured Notes due 2015 (the
“Notes”) pursuant to an Indenture dated as of April 26, 2010 (as supplemented or replaced from
time to time, the “Indenture”) among Company, the Guarantor Subsidiaries and the Trustee.




          (2) The Collateral Agent shall be granted a security interest in the Collateral to secure the
payment of all of the Secured Obligations.




          (3) It is a condition precedent to issuance of the Notes that Company, the Guarantor
Subsidiaries and the Collateral Agent enter into this Agreement and the Note Documents in order to
secure the payment of their obligations under the Indenture and all other Secured Obligations.




Declaration of Trust:




          NOW THEREFORE, in order to secure the Secured Obligations and in consideration of the premises
and the mutual agreements set forth herein, the Collateral Agent hereby declares that it holds as
Collateral Agent in trust under this Agreement all of its right, title and interest in, to and
under all the following (and Company, the Guarantor Subsidiaries and the Additional Trustors, if
any, do hereby consent thereto):





     (A) the Collateral Documents and the collateral granted to the Collateral Agent
thereunder (the “Initial Collateral”); and




     (B) each agreement entered into and delivered pursuant to Section 5.7 or Section 8.1(b)
and the collateral granted to the Collateral Agent thereunder (the “Supplemental
Collateral”; and, together with the Initial Collateral, the
“Collateral”).



          TO HAVE AND TO HOLD, the foregoing Initial Collateral and the entire Collateral (the
right, title and interest of the Collateral Agent in the Collateral Documents and the Collateral
being hereinafter referred to as the “Trust Estate”) unto the Collateral Agent and its successors
in trust under this Agreement and its assigns and the assigns of its successors in trust forever;




          IN TRUST NEVERTHELESS, under and subject to the terms and conditions herein set forth
and for the benefit of the holders of the Secured Obligations and for the enforcement of the
payment of all of the Secured Obligations, and for the performance of and compliance with the
covenants and conditions of this Agreement, the Notes and the Collateral Documents.




          PROVIDED, HOWEVER, that these presents are upon the condition that if Company, the
Guarantor Subsidiaries and the Additional Trustors, if any, and their successors or assigns, shall
satisfy all of the conditions set forth in Section 7, then this Agreement, and the estates and
rights (or portion thereof,





 









 







as applicable) assigned in the Collateral Documents, shall cease, terminate and be void;
otherwise they shall remain and be in full force and effect.




          IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust Estate is to be held and
applied by the Collateral Agent, subject to the further covenants, conditions and trusts
hereinafter set forth.




SECTION 1




Definitions and Other Matters



          (a) The
words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement and section references are to this Agreement unless otherwise specified.




          (b) In each case herein where “Holders” are entitled to vote on any matter or to instruct the
Collateral Agent, the Trustee shall so vote or instruct the Collateral Agent on behalf of the
holders of the Notes. In each case herein where any payment or distribution is to be made or
notice is to be given to “Holders,” such payments, distributions and notices in respect of the
Notes shall be made to the Trustee for the benefit of the holders thereof pursuant to the terms of
the Indenture.




          (c) As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and the plural forms of the terms defined):





     “Actionable Default” means the non-payment at scheduled final maturity of the Notes (or
the declaration prior to their stated final maturity that all of Notes are due and payable
pursuant to Section 10.02 of the Indenture or the automatic acceleration of the Notes
pursuant to Section 10.02 of the Indenture); provided that upon delivery of a Notice of
Actionable Default, the Collateral Agent may assume that an Actionable Default shall be
deemed to be continuing unless the Notice of Actionable Default delivered with respect
thereto shall have been withdrawn in a writing delivered to the Collateral Agent by the
Trustee or the Majority Holders prior to the first date on which the Collateral Agent
commences the exercise of any remedy with respect to the Collateral following the receipt of
such Notice of Actionable Default.




     “Bankruptcy Proceeding” means that Company, any Guarantor Subsidiary or any Additional
Trustor, if any, shall generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against Company, any
Guarantor Subsidiary or any Additional Trustor, if any, seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, administrator or other similar official
for it or for any substantial part of its property and assets and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain undismissed or unstayed
for a period of at least 60 consecutive days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or any substantial part



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of its property and assets) shall occur; or any event or action analogous to or having
a substantially similar effect to any of the events or actions set forth above in this
definition (other than a solvent reorganization) shall occur under the law of any
jurisdiction applicable to Company, any Guarantor Subsidiary or any Additional Trustor, if
any; or Company, any Guarantor Subsidiary or any Additional Trustor, if any, shall take any
corporate, partnership, limited liability company or other similar action to authorize any
of the actions set forth above in this definition.




     “Business Day” has the meaning set forth in the Indenture.




     “Collateral Agent’s Fees” means all fees, costs and expenses of the Collateral Agent of
the type described in Sections 5.3, 5.4, 5.5 and 5.6 of this Agreement.




     “Collateral Documents” has the meaning set forth in the Indenture.




     “Distribution Dates” means the dates fixed by the Collateral Agent (the first of which
shall occur within 90 days after receipt of a Notice of Actionable Default that has not
theretofore been withdrawn and the balance of which shall be monthly thereafter) for the
distribution of all moneys held by the Collateral Agent in the Trust Account.




     “Holders” means the registered holders of the Notes.




     “Indenture Full Release Event” means receipt by the Collateral Agent of written notice
from the Trustee that the obligations under the Notes and the Indenture have been paid in
full pursuant to the provisions of Article 14 of the Indenture.




     “Liens” has the meaning set forth in the Indenture.




     “Majority Holders” means, as of any date, the Holders of Notes representing more than
50% of the aggregate unpaid principal amount of all Notes outstanding at such time or the
Trustee acting on behalf of such Holders.




     “Mortgages” means a collective reference to each mortgage, deed of trust and any other
document or instrument under which any Lien on real property owned by any Trustor is granted
to secure the Secured Obligations or under which rights or remedies with respect to any such
Liens are governed.




     “Note Documents” has the meaning set forth in the Indenture.




     “Notice of Actionable Default” means a written notice to the Collateral Agent from the
Majority Holders or the Trustee in respect of an Actionable Default.




     “Permitted Investments” has the meaning set forth in Section 4.3(b).




     “Responsible Officer” means the chief executive officer, the president, the chief
financial officer, the principal accounting officer or the treasurer (or the equivalent of
any of the foregoing) of Company.




     “Secured Obligations” has the meaning set forth in the Indenture.



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     “Secured Party” has the meaning set forth in the Indenture.




     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interests or participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences or indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments commonly
known as “securities” or any certificates of interest, shares or participations in temporary
or interim certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.




     “Security Agreement” means the Pledge and Security Agreement dated as of April 26,
2010, and any successor or replacement thereof, among Company, the Guarantor Subsidiaries
and the Collateral Agent.




     “Termination Date” means the date upon which the Collateral Agent has received the
certificates described in Section 7.1 hereof.



SECTION 2




Reserved.



SECTION 3




Actionable Default; Remedies.



          3.1 Notice of Default; Written Instructions.




          Upon receipt of a Notice of Actionable Default given by the Majority Holders, the Collateral
Agent shall, within five days thereafter, notify the Trustee that an Actionable Default exists.
Upon receipt of any written directions pursuant to Section 3.8(a), the Collateral Agent shall,
within five days thereafter, send a copy thereof to the Trustee.




          3.2 Remedies.




          If and only if the Collateral Agent shall have received a Notice of Actionable Default and
such Notice of Actionable Default shall not have been withdrawn in accordance with the provisions
set forth in the definition of Actionable Default, the Collateral Agent shall exercise the rights
and remedies provided in this Agreement and in the Collateral Documents as directed by the Majority
Holders.




          3.3 Administration of Trust Property.




          (a) Each Secured Party hereby appoints the Collateral Agent to serve as collateral agent
hereunder on the terms and conditions set forth herein. Subject to, and in accordance with, this
Agreement, the Collateral Agent will serve as collateral agent hereunder, for the benefit solely
and exclusively of the present and future Secured Parties, and will:





     (i) accept, enter into, hold, maintain, administer and enforce all Collateral
Documents, including all Collateral subject thereto, and all Liens created thereunder,
perform its obligations under the Collateral Documents and protect, exercise and enforce the
interests, rights,



4









 







powers and remedies granted or available to it under, pursuant to or in connection with
the Collateral Documents;




     (ii) take all lawful and commercially reasonable actions permitted under the Collateral
Documents that it may deem necessary or advisable to protect or preserve its interest in the
Collateral subject thereto and such interests, rights, powers and remedies;




     (iii) deliver and receive notices pursuant to the Collateral Documents;




     (iv) sell, assign, collect, assemble, foreclose on, institute legal proceedings with
respect to, or otherwise exercise or enforce the rights and remedies of a secured party
(including a mortgagee, trust deed beneficiary and insurance beneficiary or loss payee) with
respect to the Collateral under the Collateral Documents and its other interests, rights,
powers and remedies;




     (v) remit as provided in Section 4.4 all cash proceeds received by the Collateral Agent
from the collection, foreclosure or enforcement of its interest in the Collateral under the
Collateral Documents or any of its other interests, rights, powers or remedies;




     (vi) execute and deliver amendments to this Agreement and the Collateral Documents as
from time to time authorized pursuant to Section 8.1 accompanied by a certificate of a
Responsible Officer to the effect that the amendment was permitted under Section 8.1; and




     (vii) release any Lien granted to it by any Collateral Document upon any Collateral if
and as required by Section 7.1.



          (b) Each party to this Agreement acknowledges and consents to the undertaking of the
Collateral Agent set forth in Section 3.3(a) and agrees to each of the other provisions of this
Agreement applicable to the Collateral Agent.




          3.4 Reserved.




          3.5 Right to Initiate Judicial Proceedings, etc.




          If and only if the Collateral Agent shall have received a Notice of Actionable Default and
such Notice of Actionable Default shall not have been withdrawn in accordance with the provisions
of the definition of Actionable Default:





     (i) the Collateral Agent shall have the right and power to institute and maintain such
suits and proceedings as it may deem appropriate to protect and enforce the rights vested in
it by this Agreement and each Collateral Document, and




     (ii) the Collateral Agent may, either after entry or without entry, proceed by suit or
suits at law or in equity to enforce such rights and to foreclose upon the Collateral and to
sell all or, from time to time, any of the Trust Estate under the judgment or decree of a
court of competent jurisdiction.



5









 





          3.6 Appointment of a Receiver.




          If a receiver of the Trust Estate shall be appointed in judicial proceedings, the Collateral
Agent may be appointed as such receiver. Notwithstanding the appointment of a receiver, the
Collateral Agent shall be entitled to retain possession and control of all cash held by or
deposited with it or its agents pursuant to any provision of this Agreement or any Collateral
Document.




          3.7 Exercise of Powers.




          All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement
may be exercised by the Collateral Agent in respect of any Collateral Document as though set forth
at length therein and all the powers, remedies and rights of the Collateral Agent and the Holders
as set forth in any Collateral Document may be exercised from time to time as herein and therein
provided.




          3.8 Control by Holders.




          (a) Subject to Section 3.8(b), if an Actionable Default shall have occurred and be continuing
and if the Collateral Agent shall have received a Notice of Actionable Default with respect
thereto, the Majority Holders shall have the right, by an instrument in writing executed and
delivered to the Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of exercising any trust or
power conferred on the Collateral Agent, or for the appointment of a receiver, or for the taking of
any action authorized by this Agreement.




          (b) Nothing in this Section 3.8 shall impair the right of the Collateral Agent in its
discretion to take or omit to take any action deemed proper by the Collateral Agent and which
action or omission is not inconsistent with the direction of the Holders entitled to direct the
Collateral Agent pursuant to this Section 3.8; provided, however, that the Collateral Agent shall
not be under any obligation to take any action that is discretionary with the Collateral Agent
under the provisions hereof or under any Collateral Document.




          3.9 Remedies Not Exclusive.




          (a) No remedy conferred upon or reserved to the Collateral Agent herein or in any Collateral
Document is intended to be exclusive of any other remedy or remedies, but every such remedy shall
be cumulative and shall be in addition to every other remedy conferred herein or in any Collateral
Document or now or hereafter existing at law or in equity or by statute.




          (b) No delay or omission of the Collateral Agent to exercise any right, remedy or power
accruing upon any Actionable Default shall impair any such right, remedy or power or shall be
construed to be a waiver of any such Actionable Default or an acquiescence therein; and every
right, power and remedy given by this Agreement or any Collateral Document to the Collateral Agent
may be exercised from time to time and as often as may be deemed expedient by the Collateral Agent.




          (c) In case the Collateral Agent shall have proceeded to enforce any right, remedy or power
under this Agreement or any Collateral Document and the proceeding for the enforcement thereof
shall have been discontinued or abandoned for any reason or shall have been determined adversely to
the Collateral Agent, then and in every such case the Trustors, the Collateral Agent and the
Holders shall, subject to any determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder and under such Collateral Document with
respect to the Trust Estate and in






6









 







all other respects, and thereafter all rights, remedies and powers of the Collateral Agent
shall continue as though no such proceeding had been taken.




          (d) All rights of action and rights to assert claims upon or under this Agreement and the
Collateral Documents may be enforced by the Collateral Agent without the possession of any Note or
the production thereof in any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Collateral Agent shall be brought in its name as Collateral Agent and
any recovery of judgment shall be held as part of the Trust Estate.




          3.10 Reserved.




          3.11 Limitation on the Collateral Agent’s Duties.




          (a) Beyond its duties set forth in this Agreement as to the custody thereof and the accounting
to the Trustors and the Holders for moneys received by it hereunder, the Collateral Agent shall not
have any duty to the Trustors and the Holders as to any Collateral in its possession or control or
in the possession or control of any agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining thereto. To the
extent, however, that the Collateral Agent or any agent or nominee thereof maintains possession or
control of any of the Collateral, the Collateral Agent shall, and shall instruct such agent or
nominee to, grant the Trustors access to such Collateral that the Trustors require for the normal
conduct of their business, consistent with their current practice so long as the Collateral Agent
shall not have received a Notice of Actionable Default.




          (b) The powers conferred on Collateral Agent hereunder are solely to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, Collateral Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which Collateral Agent accords its own property.
Neither Collateral Agent nor any of its directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon all or any part of the Collateral or for any delay
in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon
the request of any Grantor or otherwise.




          3.12 Limitation by Law.




          All rights, remedies and powers provided by this Section 3 may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law in the premises, and all
the provisions of this Section 3 are intended to be subject to all applicable mandatory provisions
of law that may be controlling in the premises and to be limited to the extent necessary so that
they will not render this Agreement invalid, unenforceable in whole or in part or not entitled to
be recorded, registered, or filed under the provisions of any applicable law.




          3.13 Absolute Rights of Holders.




          Notwithstanding any other provision of this Agreement (other than Section 3.2) or any
provision of any Collateral Document, but subject to the provisions of the Indenture, the right of
each Holder, which is absolute and unconditional, to receive payments of the Secured Obligations
held by such






7









 







Holder on or after the due date thereof as therein expressed, to seek adequate protection in
respect of its interest in this Agreement and the Collateral, to institute suit for the enforcement
of such payment on or after such due date, or to assert its position and views as a secured
creditor in a Bankruptcy Proceeding, or the obligation of the Trustors, which is also absolute and
unconditional, to pay the Secured Obligations to the Holders at the time and place expressed
therein shall not be impaired or affected without the consent of such Holder.




SECTION 4




Trust Account, Application Of Moneys.



          4.1 The Trust Account.




          On the date hereof there shall be established and, at all times thereafter until the trusts
created by this Agreement shall have terminated, there shall be maintained with the Collateral
Agent an account that shall be entitled the “Evergreen Solar, Inc. Collateral Trust” (the “Trust
Account"). The Trust Account shall be established and maintained by the Collateral Agent at its
corporate trust offices. All moneys that are received by the Collateral Agent after the occurrence
of an Actionable Default in respect of the Collateral shall be deposited in the Trust Account and
thereafter shall be held and applied by the Collateral Agent in accordance with the terms of this
Agreement and the Indenture. To the extent necessary, appropriate or desirable, the Collateral
Agent from time to time may establish sub-accounts as part of the Trust Account for the purpose of
better identifying and maintaining proceeds of Collateral, all of which sub-accounts shall be
treated as and be deemed equivalent to, the Trust Account for all purposes hereof.




          4.2 Control of Trust Account.




          All right, title and interest in and to the Trust Account shall vest in the Collateral Agent,
and funds on deposit in the Trust Account shall constitute part of the Trust Estate. The Trust
Account shall be subject to the exclusive dominion and control of the Collateral Agent.




          4.3 Investment of Funds Deposited in Trust Account.




          (a) All monies received by the Collateral Agent shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but need not be
segregated in any manner from any other moneys, except to the extent required by law, and may be
deposited by the Collateral Agent under such general conditions as may be prescribed by law in the
Collateral Agent’s general banking department, and the Collateral Agent shall be under no liability
for interest on any moneys received by it hereunder.




          (b) The Collateral Agent may invest funds on deposit in the Trust Account in Permitted
Investments. “Permitted Investments” means such investments as may be specified from time to time
by written instruction from the Company, which instructions may be given only if an Event of
Default does not then exist; provided, such investments are consistent with the Collateral
Agent’s investment criteria, including without limitation, direct obligations of the United States
government having maturities of 90 days or less, money market deposit accounts with United States
banks, which may include the Collateral Agent, whose short-term debt ratings are not less than
A-1/P-1, money market funds that invest solely in direct obligations of the United States
government and repurchase agreements. The Collateral Agent or any of its affiliates may receive
compensation with respect to any investment






8









 







directed hereunder. The Collateral Agent will act upon investment instructions the day that
such instructions are received, provided that the requests are communicated within a
sufficient amount of time to allow the Collateral Agent to make the specified investment.
Instructions received after an applicable investment cutoff deadline will be treated as being
received by the Collateral Agent on the next business day, and the Collateral Agent shall not be
liable for any loss arising directly or indirectly, in whole or in part, from the inability to
invest funds on the day the instructions are received. The Collateral Agent shall not be liable
for any loss incurred by the actions of third parties or for any loss arising by error, failure or
delay in the making of an investment or reinvestment, and the Collateral Agent shall not be liable
for any loss of principal or income in connection therewith, unless such error, failure or delay
results from the Collateral Agent’s gross negligence or willful misconduct. The Collateral Agent
shall not be liable for any loss of principal or income due to the choice of Permitted Investments
in which any moneys received by it hereunder are invested or the choice of Permitted Investments
converted into cash pursuant to this Section 4.3(b).




          (c) All such investments and the interest and income received thereon
and therefrom and the net proceeds realized on the sale thereof shall be held in the Trust Account,
as applicable, as part of the Trust Estate. The parties acknowledge that, for tax reporting
purposes, all interest attributable to the Trust Account pursuant to this Agreement shall be
allocable to the Company.




          4.4 Application of Moneys in Trust Account.





     Subject to Section 4.5, all moneys held by the Collateral Agent in the Trust Account
shall, to the extent available for distribution, be distributed (or deposited in a separate
account for the benefit of the Trustee pursuant to Section 4.5) by the Collateral Agent as
follows:




     First:  To the Collateral Agent in an amount equal to the Collateral Agent’s
Fees that are unpaid as of the relevant Distribution Date and to any Secured Party that has
theretofore advanced or paid any such Collateral’s Fees in an amount equal to the amount
thereof so advanced or paid by such Secured Party prior to such Distribution Date;




     Second: The Trustee for application to the payment in full of all outstanding
Secured Obligations, whether or not due and payable to the Secured Parties (which shall then
be applied or held by the trustee in such order as may be provided in the Indenture); and




     Third: Any surplus then remaining shall be paid to the respective Trustor,
its successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or
as a court of competent jurisdiction may direct.



          4.5 Application of Moneys Distributable to Holders of Notes.




          If at any time any moneys collected or received by the Collateral Agent pursuant to this
Agreement or any Collateral Document are distributable pursuant to Section 4.4 to the Trustee, and
if the Trustee shall notify the Collateral Agent that no provision is made under the Indenture (i)
for the application by the Trustee of such amounts so distributable (whether by virtue of the
respective Notes issued under the Indenture not having become due and payable or otherwise) or (ii)
for the receipt and the holding by the Trustee of such amounts pending the application thereof,
then the Collateral Agent shall invest all such amounts applicable to Holders of Notes in
obligations of the kinds referred to in Section 4.3, and shall hold all such amounts so
distributable, and all such investments and the proceeds thereof, in






9









 







trust solely for the Trustee and for no other purpose until such time as the Trustee shall
request the delivery thereof by the Collateral Agent to the Trustee for application by it pursuant
to Indenture.




          This Section 4 is intended for the benefit of, and will be enforceable as a third party
beneficiary by, each present and future holder of Secured Obligations, each present and future
Trustee, and the Collateral Agent as a Secured Party.




SECTION 5




Agreements With The Collateral Agent.



          5.1 Delivery of Note Documents.




          Within 10 days after the date hereof, Company will deliver to the Collateral Agent a true and
complete copy of each Note Document then in effect. The Company agrees that, promptly upon the
execution thereof, Company will deliver to the Collateral Agent a true and complete copy of (i) any
and all amendments, modifications or supplements to any Note Document, and (ii) any Note Documents
entered into subsequent to the date hereof. Unless and until the Collateral Agent actually
receives such copies it shall not be deemed to have knowledge of them.




          5.2 Information as to Holders.




          The Company agrees that it shall deliver to the Collateral Agent from time to time upon
request of the Collateral Agent a list setting forth:





          (i) the aggregate amount outstanding under the Notes,




          (ii) the interest rates then in effect under the Notes; and




          (iii) to the extent known to Company, the names of the holders of the Notes outstanding
thereunder and the unpaid principal amount owing to each such holder of Notes.



          The Company will furnish to the Collateral Agent within 30 days after the date hereof, and
periodically if notice addresses and/or addresses change, a list setting forth the name and address
of each party to whom notices must be sent under the Indenture and the Notes. At all times the
Collateral Agent may assume without inquiry that the most recent list it has received remains
current.




          5.3 Compensation and Expenses.




          The Trustors, jointly and severally, agree to pay to the Collateral Agent, from time to time
upon demand:





          (i) reasonable compensation (which shall not be limited by any provision of law in
regard to compensation of a trustee of an express trust) for its services hereunder and
under the Collateral Documents and for administering the Trust Estate; and




          (ii) all of the fees, costs and expenses of the Collateral Agent (including, without
limitation, the reasonable fees and disbursements of such counsel and such special counsel
as the Collateral Agent elects to retain) (A) arising in connection with the preparation,



10









 







execution, delivery, modification and termination of this Agreement and each Collateral
Document or the enforcement of any of the provisions hereof or thereof or (B) incurred or
required to be advanced in connection with the administration of the Trust Estate, the sale
or other disposition of Collateral pursuant to any Collateral Document and the preservation,
protection or defense of the Collateral Agent’s rights under this Agreement and in and to
the Collateral and the Trust Estate.



          The obligations of the Trustors under this Section 5.3 shall survive the termination of the
other provisions of this Agreement.




          5.4 Stamp and Other Similar Taxes.




          The Trustors, jointly and severally, agree to indemnify and hold harmless the Collateral Agent
and each Holder from any present or future claim for liability for any stamp or other similar tax
and any penalties or interest with respect thereto that may be assessed, levied or collected by any
jurisdiction in connection with this Agreement, any Collateral Document, the Trust Estate or any
Collateral. The obligations of the Trustors under this Section 5.4 shall survive the termination
of the other provisions of this Agreement.




          5.5 Filing Fees, Excise Taxes, etc.




          The Trustors, jointly and severally, agree to pay or to reimburse the Collateral Agent for any
and all amounts in respect of all search, filing, recording and registration fees, taxes, excise
taxes and other similar imposts that may be payable or determined to be payable in respect of the
execution, delivery, performance and enforcement of this Agreement and each Collateral Document.
The obligations of the Trustors under this Section 5.5 shall survive the termination of the other
provisions of this Agreement.




          5.6 Indemnification.




          The Trustors, jointly and severally, agree to pay, indemnify and hold the Collateral Agent and
each of its agents harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and administration of
this Agreement and the Collateral Documents (including, but not limited to, actions by the
Collateral Agent to enforce its rights with respect to the Collateral), unless arising from the
gross negligence or willful misconduct (in either case, as determined by a final judgment of a
court of competent jurisdiction) of the Collateral Agent or such of the agents as are seeking
indemnification. The foregoing indemnities in this Section 5.6 shall survive the resignation or
removal of the Collateral Agent or the termination of this Agreement.




          5.7 Further Assurances; Notation on Financial Statements.




          (a) At any time and from time to time, upon the written request of the Collateral Agent, and,
at the sole expense of the Trustors, the Trustors will promptly execute and deliver any and all
such further instruments and documents and take such further action as the Collateral Agent
reasonably deems necessary or desirable in obtaining the full benefits of this Agreement, the
Collateral Documents and the Indenture and of the rights and powers herein and therein granted. To
the extent required by law, the Trustors shall, in all of their financial statements, indicate by
footnote or otherwise that the Secured Obligations are secured pursuant to this Agreement and the
Collateral Documents.







11









 








          (b) Pursuant to the Indenture, from time to time, additional subsidiaries of Company are
required to become parties to the Security Agreement. In connection with a subsidiary becoming
party to the Security Agreement, such subsidiary (an “Additional Trustor”) shall execute a
Supplement to Trust Agreement in the form of Exhibit A hereto and upon such execution shall
become a Trustor hereunder with all applicable rights and responsibilities.




SECTION 6




The Collateral Agent.



          6.1 Acceptance of Trust.




          The Collateral Agent, for itself and its successors, hereby accepts the trusts created by this
Agreement upon the terms and conditions hereof, including those contained in this Section 6.




          6.2 Exculpatory Provisions.




          (a) The Collateral Agent shall not be responsible in any manner whatsoever for the correctness
of any recitals, statements, representations or warranties contained herein or in any Collateral
Document, all of which are made solely by the Trustors. The Collateral Agent makes no
representations as to the value or condition of the Trust Estate or any part thereof, or as to the
title of the Trustors thereto or as to the security afforded by any Collateral Document or this
Agreement, or as to the validity, execution (except its own execution), enforceability, legality or
sufficiency of this Agreement, any Collateral Document or the Secured Obligations secured hereby
and thereby, and the Collateral Agent shall incur no liability or responsibility in respect of any
such matters. The Collateral Agent shall not be responsible for insuring the Trust Estate or for
the payment of taxes, charges, assessments or liens upon the Trust Estate or otherwise as to the
maintenance of the Trust Estate, except that in the event the Collateral Agent enters into
possession of a part or all of the Trust Estate, the Collateral Agent shall preserve the part in
its possession.




          (b) The Collateral Agent shall not be required to ascertain or inquire as to the performance
by the Trustors of any of the covenants or agreements contained herein, in any Collateral Document
or in any other Note Document. Whenever it is necessary, or in the opinion of the Collateral Agent
advisable, for the Collateral Agent to ascertain the amount of Secured Obligations then held by a
Holder, the Collateral Agent may rely on a certificate of such Holder or its representative as to
such amount, and if any such Holder or representative shall not give such information to the
Collateral Agent, such Holder shall not be entitled to receive distributions hereunder (in which
case such distributions shall be held in trust for such Holder) until it has given such information
to the Collateral Agent.




          (c) The Collateral Agent shall not be personally liable for any action taken or omitted to be
taken by it in accordance with this Agreement or any Collateral Document except for its own gross
negligence or willful misconduct.




          (d) The Collateral Agent shall have no responsibility for the preparation, filing or recording
of any instrument, document or financing statement or for the maintenance of any security interest
intended to be perfected thereby.







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          6.3 Delegation of Duties.




          The Collateral Agent may execute any of the trusts or powers hereof and perform any duty
hereunder either directly or by or through agents or attorneys-in-fact, which may include officers
and employees of the Trustors. The Collateral Agent shall be entitled to advice of counsel
concerning all matters pertaining to such trusts, powers and duties. The Collateral Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by
it without gross negligence or willful misconduct.




          6.4 Reliance by Collateral Agent.




          (a) Whenever in the administration of the trusts of this Agreement the Collateral Agent shall
deem it necessary or desirable that a matter be proved or established in connection with the
taking, suffering or omitting any action hereunder by the Collateral Agent, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may be deemed to be
conclusively provided or established by a certificate of a Responsible Officer of any Trustor
delivered to the Collateral Agent, and such certificate shall be full warranty to the Collateral
Agent for any action taken, suffered or omitted in reliance thereon, subject, however, to the
provisions of Section 6.5.




          (b) The Collateral Agent may consult with counsel, and any opinion of such counsel who is not
an employee of the Collateral Agent shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in accordance therewith. The Collateral
Agent shall have the right at any time to seek instructions concerning the administration of the
Trust Estate from any court of competent jurisdiction.




          (c) The Collateral Agent may rely, and shall be fully protected in acting, upon any
resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order,
bond or other paper or document that it has no reason to believe to be other than genuine and to
have been signed or presented by the proper party or parties or, in the case of cables, telecopies
and telexes, to have been sent by the proper party or parties. In the absence of its gross
negligence or willful misconduct, the Collateral Agent may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Agent and conforming to the requirements of this Agreement or
any Collateral Document.




          (d) The Collateral Agent shall not be under any obligation to exercise any of the rights or
powers vested in the Collateral Agent by this Agreement at the request or direction of the Majority
Holders pursuant to this Agreement or any Collateral Document, unless the Collateral Agent shall
have been provided adequate security and indemnity against the costs, expenses and liabilities that
may be incurred by it in compliance with such request or direction, including such reasonable
advances as may be requested by the Collateral Agent.




          6.5 Limitations on Duties of Collateral Agent.




          (a) The Collateral Agent shall be obliged to perform such duties and only such duties as are
specifically set forth in this Agreement or in any Collateral Document, and no implied covenants or
obligations shall be read into this Agreement or any Collateral Document against the Collateral
Agent and the Collateral Agent shall not be liable with respect to any action taken or omitted by
it in accordance with the direction of the Holders pursuant to Section 3.8.







13









 








          (b) Except as herein otherwise expressly provided, the Collateral Agent shall not be under any
obligation to take any action that is discretionary with the Collateral Agent under the provisions
hereof or under any Collateral Document except upon the written request of the Holders pursuant to
Section 3.8. The Collateral Agent shall make available for inspection and copying by the Trustee,
each certificate or other paper furnished to the Collateral Agent by Company under or in respect of
this Agreement, any Collateral Document or any of the Trust Estate.




          6.6 Moneys to be Held in Trust.




          All moneys received by the Collateral Agent under or pursuant to any provision of this
Agreement or any Collateral Document shall be held in trust for the purposes for which they were
paid or are held.




          6.7 Resignation and Removal of the Collateral Agent.




          (a) The Collateral Agent may at any time, by giving 30 days’ prior written notice to Company
and the Trustee, resign and be discharged of the responsibilities hereby created, such resignation
to become effective upon the earlier of: (i) 30 days from the date of such notice; and (ii) the
appointment of a successor trustee or trustees by Company, the acceptance of such appointment by
such successor trustee or trustees, and the approval of such successor trustee or trustees by the
Majority Holders; provided, that, no resignation shall become effective unless and until a
successor trustee has been appointed as provided herein. The Collateral Agent may be removed at
any time and a successor trustee or trustees appointed by the affirmative vote of the Majority
Holders; provided that the Collateral Agent shall be entitled to its fees and expenses to the date
of removal. If no successor trustee or trustees shall be appointed and approved within 30 days
from the date of the giving of the aforesaid notice of resignation the Collateral Agent shall, or
the Trustee or any Holder may, apply to any court of competent jurisdiction to appoint a successor
trustee or trustees (which may be an individual or individuals) to act until such time, if any, as
a successor trustee or trustees shall have been appointed as above provided. Any successor trustee
or trustees so appointed by such court shall immediately and without further act be superseded by
any successor trustee or trustees approved by the Majority Holders as above provided.




          (b) If at any time the Collateral Agent shall resign or be removed or otherwise become
incapable of acting, or if at any time, a vacancy shall occur in the office of the Collateral Agent
for any other cause, a successor trustee or trustees may be appointed by the Majority Holders, and
the powers, duties, authority and title of the predecessor trustee or trustees terminated and
canceled without procuring the resignation of such predecessor trustee or trustees, and without any
other formality (except as may be required by applicable law) than appointment and designation of a
successor trustee or trustees in writing, duly acknowledged, delivered to the predecessor trustee
or trustees and Company, and filed for record in each public office, if any, in which this
Agreement is required to be filed.




          (c) The appointment and designation referred to in Section 6.7(b) shall, after any required
filing, be full evidence of the right and authority to make the same and of all the facts therein
recited, and this Agreement shall vest in such successor trustee or trustees, without any further
act, deed or conveyance, all of the estate and title of its predecessor, and upon such filing for
record the successor trustee or trustees shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Majority Holders, Company or the
successor trustee or trustees, execute and deliver an instrument transferring to such successor or
successors all the estates, properties, rights, powers, trusts, duties, authority and title of such
predecessor or predecessors hereunder and shall deliver all securities and






14









 







moneys held by it to such successor trustee or trustees. Should any deed, conveyance or other
instrument in writing from any Trustor be required by any successor trustee or trustees for more
fully and certainly vesting in such successor trustee or trustees the estates, properties, rights,
powers, trusts, duties, authority and title vested or intended to be vested in the predecessor
trustee or trustees, any and all such deeds, conveyances and other instruments in writing shall, on
request of such successor trustee or trustees, be executed, acknowledged and delivered by such
Trustor.




          (d) Any required filing for record of the instrument appointing a successor trustee or
trustees as hereinabove provided shall be at the expense of the Trustors. The resignation of any
trustee or trustees and the instrument or instruments removing any trustee or trustees, together
with all other instruments, deeds and conveyances provided for in this Section 6 shall, if
permitted by law, be forthwith recorded, registered and filed by and at the expense of the
Trustors, wherever this Agreement is recorded, registered and filed.




          6.8 Status of Successors to the Collateral Agent.




          Except as permitted by Section 6.7, every successor to the Collateral Agent appointed pursuant
to Section 6.7 shall be a bank or trust in good standing and having power so to act, incorporated
under the laws of the United States or any State thereof or the District of Columbia, and having
its principal corporate trust office within the 48 contiguous States, and shall also have (together
with its corporate affiliates) capital, surplus and undivided profits of not less than
$100,000,000, if there be such an institution with such capital, surplus and undivided profits
willing, qualified and able to accept the trust upon reasonable or customary terms.




          6.9 Merger of the Collateral Agent.




          Any corporation into which the Collateral Agent may be merged, or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Collateral
Agent shall be a party, or any corporation to which the Collateral Agent shall transfer all or
substantially all of its corporate trust business (including the administration of this trust)
shall be trustee under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto.




          6.10 Co-Trustee, Separate Trustee.




          (a) If at any time or times it shall be necessary or prudent in order to conform to any law of
any jurisdiction in which any of the Collateral shall be located, or the Collateral Agent shall be
advised by counsel, satisfactory to it, that it is so necessary or prudent in the interest of the
Holders, or the Majority Holders shall in writing so request the Collateral Agent and the Trustors,
or the Collateral Agent shall deem it desirable for its own protection in the performance of its
duties hereunder, the Collateral Agent and the Trustors shall execute and deliver all instruments
and agreements necessary or proper to constitute another bank or trust Company, or one or more
persons approved by the Collateral Agent and the Trustors, either to act as co-trustee or
co-trustees of all or any of the Collateral, jointly with the Collateral Agent originally named
herein or any successor or successors, or to act as separate trustee or trustees of any such
property. In the event the Trustors shall not have joined in the execution of such instruments and
agreements within 30 days after the receipt of a written request from the Collateral Agent so to
do, or in case an Actionable Default shall have occurred and be continuing, the Collateral Agent
may act under the foregoing provisions of this Section 6.10 without the concurrence of the
Trustors, and the Trustors hereby appoint the Collateral Agent as its agent and attorney to act for
it under the foregoing provisions of this Section 6.10 in either of such contingencies.







15









 








          (b) Every separate trustee and every co-trustee, other than any trustee that may be appointed
as successor to the Collateral Agent, shall, to the extent permitted by law, be appointed and act
and be such, subject to the following provisions and conditions, namely:





          (i) all rights, powers, duties and obligations conferred upon the Collateral Agent in
respect of the custody, control and management of moneys, papers or securities shall be
exercised solely by the Collateral Agent, or its successors as trustee hereunder;




          (ii) all rights, powers, duties and obligations conferred or imposed upon the
Collateral Agent hereunder shall be conferred or imposed and exercised or performed by the
Collateral Agent and such separate trustee or separate trustees or co-trustee or
co-trustees, jointly, as shall be provided in the instrument appointing such separate
trustee or separate trustees or co-trustee or co-trustees, except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be performed the
Collateral Agent shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;




          (iii) no power given hereby to, or that it is provided hereby may be exercised by, any
such co-trustee or co-trustees or separate trustee or separate trustees, shall be exercised
hereunder by such co-trustee or co-trustees or separate trustee or separate trustees, except
jointly with, or with the consent in writing of, the Collateral Agent, anything herein
contained to the contrary notwithstanding;




          (iv) no trustee hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder; and




          (v) the Trustors and the Collateral Agent, at any time by an instrument in writing,
executed by them, may accept the resignation of or remove any such separate trustee or
co-trustee, and in that case, by an instrument in writing executed by the Trustors and the
Collateral Agent jointly, may appoint a successor to such separate trustee or co-trustee, as
the case may be, anything herein contained to the contrary notwithstanding. In the event
that the Trustors shall not have joined in the execution of any such instrument within ten
days after the receipt of a written request from the Collateral Agent so to do, or in case
an Actionable Default shall have occurred and be continuing, the Collateral Agent shall have
the power to accept the resignation of or remove any such separate trustee or co-trustee and
to appoint a successor without the concurrence of the Trustors, the Trustors hereby
appointing the Collateral Agent its agent and attorney to act for it in such connection in
either of such contingencies. In the event that the Collateral Agent shall have appointed a
separate trustee or separate trustees or co-trustee or co-trustees as above provided, it may
at any time, by an instrument in writing, accept the resignation of or remove any such
separate trustee or co-trustee, the successor to any such separate trustee or co-trustee to
be appointed by the Trustors and the Collateral Agent, or by the Collateral Agent alone, as
provided in this Section 6.10.



16









 





SECTION 7




Release of Collateral.



          7.1 Conditions to Release; Release Procedure.




          (a) All of the Collateral shall be released when the Collateral Agent shall have received
written notice from the Trustee that an Indenture Full Release Event has occurred; provided that
all of the Collateral shall not be released unless and until all Collateral Agent’s Fees shall have
been paid in full.




          (b) From time to time during the term of this Agreement, one or more portions of Collateral
shall be released as soon as practicable after the date upon which the Collateral Agent shall have
received written notice from the Trustee advising the Collateral Agent that such Collateral is to
be released pursuant to clauses (1) through (5) of Section 9.02 of the Indenture.




          (c) Upon the release of the Collateral, or any portion thereof, all right, title and interest
of the Collateral Agent in, to and under the Trust Estate in respect of the Collateral or portion
thereof so released shall terminate and shall revert to the respective Trustors, their successors
and assigns, and the estate, right, title and interest of the Collateral Agent in such Collateral
shall thereupon cease and terminate; and in such case, upon the written request of the respective
Trustors, their successors or assigns, and at the cost and expense of the Trustors, their
successors or assigns, the Collateral Agent shall execute in respect of the Collateral so released,
such instruments as are necessary or desirable to evidence such release and, in the case of an
Indenture Full Release Event, terminate and remove of record any documents constituting public
notice of the Collateral Documents, and deliver or cause to be delivered to the Trustors the
Collateral so released then held by the Collateral Agent. Any cancellation and satisfaction of the
Collateral Documents shall be without prejudice to the rights of the Collateral Agent or any
successor trustee to charge and be reimbursed for any expenditures that it may thereafter incur in
connection therewith.




SECTION 8




Miscellaneous.



          8.1 Amendments, Supplements and Waivers.




          (a) With the written consent of the Trustee, the Collateral Agent and the Trustors may, from
time to time, enter into written agreements among them supplemental hereto for the purpose of
adding to or waiving any provision of this Agreement or any Collateral Document or changing in any
manner the rights of the Collateral Agent, the Holders or the Trustors hereunder or thereunder;
provided, however, that no such supplemental agreement shall,





          (i) without the written consent of the Trustee, (A) amend, modify or waive any
provision of Section 4.4 or this Section 8.1, (B) reduce the percentage specified in the
definition of Majority Holders, or (C) amend or modify the definition of the term “Secured
Obligations";




          (ii) without the written consent of the Trustee, amend, modify or waive any provision
of Section 4.5;



17









 






          (iii) without the written consent of the Collateral Agent, amend, modify or waive any
provision of Section 6 or alter the duties or obligations of the Collateral Agent hereunder;
or




          (iv) without the written consent of the Collateral Agent, amend or modify the
definition of “Majority Holders” set forth in Section 1 of this Agreement.



     Any such supplemental agreement shall be binding upon the Trustors, the Holders and the
Collateral Agent and their respective successors. The Collateral Agent shall not enter into any
such supplemental agreement unless it shall have received a certificate of a Responsible Officer to
the effect that such supplemental agreement will not result in a breach of any provision or
covenant contained in the Indenture.



          (b) Without the consent of any Holders, the Collateral Agent and the Trustors, at any time and
from time to time, may enter into additional pledge or Collateral Documents or one or more
agreements supplemental hereto or to any Collateral Document, in form satisfactory to the
Collateral Agent,





          (i) to add to the covenants of the Trustors, for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Trustors;




          (ii) to mortgage, pledge or grant a security interest in any property or assets that
are required to be mortgaged or pledged, or in which a security interest is required to be
granted, to the Collateral Agent pursuant to any Collateral Document or the Indenture;




          (iii) to evidence the release, termination or discharge of any Lien securing the
Secured Obligations when such release, termination or discharge is permitted by the
Indenture and this Agreement;




          (iv) to release Collateral as permitted under the Indenture and the Collateral
Documents;




          (v) to make any change that does not materially adversely affect the rights of any
Holder; and




          (vi) to cure any ambiguity or correct any inconsistent or otherwise defective provision
contained in any Collateral Document, so long as such action will not adversely affect the
interest of the Holders.



          8.2 Notices.




          All notices, requests, demands and other communications provided for or permitted hereunder
shall be in writing and shall be sent by mail or hand delivery:




          (a) If to any Trustor, to it at the address of Company at: 138 Bartlett Street, Marlboro,
Massachusetts 01752, Attention: Chief Financial Officer, Fax: (508) 229-0747, or at such other
address as shall be designated by it in a written notice to the Collateral Agent.







18









 








          (b) If to the Collateral Agent, to it at its address at: 633 West Fifth Street,
24th Floor, Los Angeles, California 90071, Attention: Corporate Trust Services
(Evergreen Solar 13% Convertible Senior Secured Notes due 2015), Fax: (213) 615-6197, or at such
other address as shall be designated by it in a written notice to Company.




          (c) If to the Trustee, to it at its address at 633 West Fifth Street, 24th Floor,
Los Angeles, California 90071, Attention: Corporate Trust Services (Evergreen Solar 13%
Convertible Senior Secured Notes due 2015), Fax: (213) 615-6197, or at such other address as shall
be designated by it in writing to the Collateral Agent.




          (d) Any notice given to any Holder shall also be given to the Trustee.



All such notices, requests, demands and communications shall be deemed to have been duly given or
made when delivered by hand, the next Business Day after deposit with an overnight courier, or five
Business Days after being deposited in the mail, postage prepaid, or when telecopied, receipt
acknowledged; provided, however, that any notice, request, demand or other communication to the
Collateral Agent shall not be effective until received.




          8.3 Headings.




          Section, subsection and other headings used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.




          8.4 Severability.




          Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall
not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.




          8.5 Treatment of Payee or Indorsee by the Collateral Agent.




          (a) The Collateral Agent may treat the registered holder of any registered note, and the payee
or indorsee of any note or debenture that is not registered, as the absolute owner thereof for all
purposes hereunder and shall not be affected by any notice to the contrary, whether such promissory
note or debenture shall be past due or not.




          (b) Any person, firm, corporation or other entity that shall be designated as the duly
authorized representative of one or more Holders of Secured Obligations to act as such in
connection with any matters pertaining to this Agreement or any Collateral Document or the
Collateral shall present to the Collateral Agent such documents, including, without limitation,
opinions of counsel, as the Collateral Agent may reasonably require, in order to demonstrate to the
Collateral Agent the authority of such person, firm, corporation or other entity to act as the
representative of such Holders.




          8.6 Dealings with the Trustors.




          (a) Upon any application or demand by any Trustor to the Collateral Agent to take or permit
any action under any of the provisions of this Agreement, such Trustor shall furnish to the
Collateral Agent a certificate of a Responsible Officer stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been complied with, except
that in the






19









 







case of any such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such particular application or
demand, no additional certificate or opinion need be furnished.




          (b) Any opinion of counsel may be based, insofar as it relates to factual matters, upon a
certificate of a Responsible Officer filed with the Collateral Agent.




          8.7 Claims Against the Collateral Agent.




          Any claims or causes of action that the holders of any Secured Obligations, the Trustee or any
Trustor shall have against the Collateral Agent shall survive the termination of this Agreement and
the release of the Collateral hereunder.




          8.8 Binding Effect.




          This Agreement shall be binding upon and inure to the benefit of each of the parties hereto,
the Holders, and their respective successors and assigns, and nothing herein or in any Collateral
Document is intended or shall be construed to give any other person any right, remedy or claim
under, to or in respect of this Agreement, any Collateral Document, the Collateral or the Trust
Estate.




          8.9 Termination.




          This Agreement shall terminate on the date upon which all Secured Obligations have been paid
in full.




          8.10 Governing Law.




          This Agreement shall be governed by, and construed and interpreted in accordance with, the
laws of the State of New York and any action alleging any breach by the Collateral Agent of its
duties hereunder, whether by act or omission or anticipatory, shall be prosecuted only in the
courts of the State of New York.




          8.11 Counterparts.




          This Agreement may be executed in separate counterparts, each of which shall be an original
and all of which taken together shall constitute one and the same instrument.




[The remainder of this page is intentionally left blank]






20









 








          In Witness Whereof, the parties hereto have executed this Agreement or caused this
Agreement to be duly executed by their respective officers thereunto duly authorized as of the day
and year first above written.




	 	 	 	 	 
	 	Collateral Agent







U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Paula Oswald
 	 
	 	 	Name:  	Paula Oswald 	 
	 	 	Title:  	Vice President 	 
	 
	 	Trustee







U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Paula Oswald
 	 
	 	 	Name:  	Paula Oswald 	 
	 	 	Title:  	Vice President 	 



21









 






	 	 	 	 	 



	 	 	 	 	 
	 	The Company



EVERGREEN SOLAR, INC.

 	 
	 	By:  	/s/ Michael El-Hillow
 	 
	 	 	Name:  	Michael El-Hillow 	 
	 	 	Title:  	Chief Financial Officer, Chief
Operations Officer and Secretary 	 



22









 






	 	 	 	 	 



	 	 	 	 	 
	 	Guarantor







ESLR1, LLC

 	 
	 	By:  	/s/ Michael El-Hillow
 	 
	 	 	Name:  	Michael El-Hillow 	 
	 	 	Title:  	Manager 	 
	 
	 	 	 
	 	By:  	     /s/ Richard Chleboski
 	 
	 	 	Name:  	Richard Chelboski 	 
	 	 	Title:  	Manager 	 



23









 






	 	 	 	 	 



Exhibit A to the


Collateral Trust Agreement




FORM OF SUPPLEMENT TO TRUST AGREEMENT




[Date]




U.S. Bank National Association,

as the Collateral Agent

for the Secured Obligations

in the Collateral Trust Agreement

referred to below

Attn: Corporate Trust Department

(Evergreen Solar 13% Convertible Senior Secured Notes due 2015)




[Name of Additional Trustor]




Ladies and Gentlemen:




          Reference is made to the Collateral Trust Agreement dated as of April 26, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Collateral Trust Agreement”),
among Evergreen Solar, Inc., a Delaware corporation, (the “Company”), the Guarantor Subsidiaries
listed on the signature pages thereto (the “Guarantor Subsidiaries”) and U.S. Bank National
Association, as Collateral Agent (“Collateral Agent”) Terms defined in the Collateral Trust
Agreement and not otherwise defined herein are as defined in the Collateral Trust Agreement.




          Pursuant to Section 5.7 of the Collateral Trust Agreement, the undersigned hereby agrees, as
of the date first above written, to be bound as a Trustor by all of the terms and provisions of the
Collateral Trust Agreement to the same extent as each of the other Trustors. The undersigned
further agrees, as of the date first above written, that each reference in the Collateral Trust
Agreement to a “Trustor” shall also mean and be a reference to the undersigned.




          This Supplement to Collateral Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.




	 	 	 	 	 
	 	Very truly yours,







[NAME OF ADDITIONAL TRUSTOR]

 	 
	 	By:  	
 	 
	 	 	Title: