exv4w10






Exhibit 4.10




FORM OF AMENDED AND RESTATED

PLEDGE AND SECURITY AGREEMENT




dated as of [•], 2011




among




EVERGREEN SOLAR, INC.,




EACH OF THE OTHER GRANTORS PARTY HERETO



and



U.S. BANK NATIONAL ASSOCIATION



as Collateral Agent













 



 




1





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	SECTION 1. DEFINITIONS; GRANT OF SECURITY.	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1	 	General Definitions	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.2	 	Definitions; Interpretation	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	SECTION 2. GRANT OF SECURITY.	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1	 	Grant of Security	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.2	 	Certain Limited Exclusions	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1	 	Security for Obligations	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.2	 	Continuing Liability Under Collateral	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1	 	Generally.	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.2	 	Equipment and Inventory.	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.3	 	Receivables.	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.4	 	Investment Related Property; Investment Related Property Generally	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.5	 	Annual Certificates.	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.6	 	Letter of Credit Rights.	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.7	 	Intellectual Property.	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.8	 	Commercial Tort Claims.	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.9	 	Subsidiaries	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.10	 	Real Estate Assets	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS.	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1	 	Right of Inspection; Access	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.2	 	Further Assurances.	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.3	 	Additional Grantors	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.	 	 	24	 












 



2


	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	6.1	 	Power of Attorney	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.2	 	No Duty on the Part of Collateral Agent or Secured Parties	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	SECTION 7. REMEDIES.	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1	 	Generally.	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.2	 	Application of Proceeds	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.3	 	Sales on Credit	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.4	 	Deposit Accounts	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.5	 	Investment Related Property	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.6	 	Cash Proceeds	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	SECTION 8. CONTINUING SECURITY INTEREST.	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	SECTION 9. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	SECTION 10. MISCELLANEOUS.	 	 	30	 






	 	 	 

	Schedules:
	 	 
	 
	 	 
	Schedule 4.1

	 	General Information
	Schedule 4.2

	 	Location of Equipment and Inventory
	Schedule 4.4

	 	Investment Related Property
	Schedule 4.6

	 	Description of Letters of Credit
	Schedule 4.7

	 	Intellectual Property
	Schedule 4.8

	 	Commercial Tort Claims
	Schedule 4.10

	 	Post Closing Real Estate Asset Deliverables
	 
	 	 
	Exhibits:
	 	 
	 
	 	 
	Exhibit A

	 	Pledge Supplement
	Exhibit B

	 	Counterpart Agreement

















 








Exhibit 4.10




          This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of [•], 2011 (as amended,
restated, supplemented or otherwise modified from time to time, this “Agreement”), among EVERGREEN
SOLAR, INC., a Delaware corporation (the “Company”), EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE
COMPANY, whether as an original signatory hereto or as an Additional Grantor (as herein defined)
(together with the Company, each, a “Grantor”), and U.S. BANK NATIONAL ASSOCIATION, as collateral
agent for the Secured Parties (as herein defined) (in such capacity, together with its agents,
successors and assigns, the “Collateral Agent”).




RECITALS:




          WHEREAS, Grantors are party to that certain Indenture, dated as of April 26, 2010 (as
supplemented or replaced from time to time, the “13% Indenture”), among Company, as issuer, the
guarantors named therein, as guarantors, and U.S. Bank National Association, as in its capacity as
trustee (the “13% Trustee”), pursuant to which the Company issued its 13% Convertible Senior
Secured Notes due 2015 (the “13% Notes”);




          WHEREAS, in consideration of the purchase of the 13% Notes by the 13% Holders as set forth in
the 13% Indenture, each Grantor agreed to secure such Grantor’s obligations under the 13% Indenture
and the 13% Note Documents pursuant to that certain Pledge and Security Agreement, dated as of
April 26, 2010 (as modified and supplemented and in effect immediately prior to the date hereof,
the “Existing Security Agreement”), among the Grantors and the Collateral Agent;




          WHEREAS, Grantors are party to that certain Indenture, dated as of even date herewith (as
supplemented or replaced from time to time, the “7.5% Indenture”, and together with the 13%
Indenture, the “Indentures”), among Company, as issuer, the guarantors named therein, as
guarantors, and U.S. Bank National Association, in its capacity as trustee (the “7.5% Trustee”, and
together with the 13% Trustee, the “Trustees”), pursuant to which the Company will issue its 7.5%
Convertible Senior Secured Notes due 2017 (the “7.5% Notes” and, together with the 13% Notes, the
“Notes”);




          WHEREAS, in consideration of the purchase of the 7.5% Notes by the 7.5% Holders as set forth
in the 7.5% Indenture, each Grantor agreed to secure such Grantor’s obligations under the 7.5%
Indenture and the 7.5% Note Documents pursuant to this Agreement;




          WHEREAS, the Company has requested that the Collateral Agent agree to amend and restate the
Existing Security Agreement, and the Collateral Agent is willing to amend and restate the Existing
Security Agreement, to (among other things) include certain obligations of the Grantors under the
7.5% Notes and 7.5% Indenture as Secured Obligations hereunder, include the 7.5% Trustee and
holders of the 7.5% Notes as Secured Parties, and set forth their agreement with respect to the
relative rights and remedies of the holders of the 13% Notes and holders of the 7.5% Notes
regarding the Collateral and the application of proceeds of the Collateral, all as provided herein.




          WHEREAS, pursuant to the terms and conditions of the Amended and Restated Collateral Trust
Agreement dated as of even date herewith, among Collateral Agent, the Trustees and each of the
Grantors (as amended and supplemented from time to time, the “Collateral Trust Agreement”), the
Grantors have agreed to grant to Collateral Agent, for the benefit of the Holders and the other
Secured Parties (as defined below) the security interests set forth below;











 



2




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and Collateral Agent agree to amend and restate the Existing
Security Agreement so that, as amended and restated, it reads in its entirety as provided herein:




SECTION 1. DEFINITIONS; GRANT OF SECURITY.




     1.1 General Definitions. In this Agreement, the following terms shall have the following meanings:



          “Account Debtor” shall mean each Person who is obligated on a Receivable or any Supporting
Obligation related thereto.




          “Accounts” shall mean all “accounts” as defined in Article 9 of the UCC.




          “Agreement” shall have the meaning set forth in the preamble.




          “Additional Grantors” shall have the meaning assigned in Section 5.3.




          “Assigned Agreements” shall mean all agreements and contracts to which such Grantor is a party
as of the date hereof, or to which such Grantor becomes a party after the date hereof, as each such
agreement may be amended, supplemented or otherwise modified from time to time.




          “Cash Proceeds” shall have the meaning assigned in Section 7.6.




          “Chattel Paper” shall mean all “chattel paper” as defined in Article 9 of the UCC, including,
without limitation, “electronic chattel paper” or “tangible chattel paper”, as each term is defined
in Article 9 of the UCC.




          “Collateral” shall have the meaning assigned in Section 2.1.




          “Collateral Account” shall have the meaning assigned in Section 4.3(b)(v).




          “Collateral Agent” shall have the meaning set forth in the preamble.




          “Collateral Records” shall mean books, records, ledger cards, files, correspondence, customer
lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes,
disks and related data processing software and similar items that at any time evidence or contain
information relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.




          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated or
otherwise securing any of the Collateral and shall include any security agreement or other
agreement granting a lien or security interest in such real or personal property.




          “Commercial Tort Claims” shall mean all “commercial tort claims” as defined in Article 9 of
the UCC, including, without limitation, all commercial tort claims listed on Schedule 4.8
(as such schedule may be amended or supplemented from time to time).













 



3




          “Commodities Accounts” (i) shall mean all “commodity accounts” as defined in Article 9 of the
UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule
4.4(A) under the heading “Commodities Accounts” (as such schedule may be amended or
supplemented from time to time).




          “Controlled Foreign Corporation” shall mean “controlled foreign corporation” as defined in the
Tax Code.




          “Copyright Licenses” shall mean any and all agreements providing for the granting of any right
in or to Copyrights (whether such Grantor is licensee or licensor thereunder).




          “Copyrights” shall mean all United States and foreign copyrights, all mask works fixed in
semiconductor chip products (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether
registered or unregistered, now or hereafter in force throughout the world, all registrations and
applications therefor including, without limitation, the copyrights and applications referred to in
Schedule 4.7(A) (as such schedule may be amended or supplemented from time to time), all
rights corresponding thereto throughout the world, all extensions and renewals of any thereof, the
right to sue for past, present and future infringements of any of the foregoing, and all proceeds
of the foregoing, including, without limitation, licenses, royalties, income, payments, claims,
damages, and proceeds of suit.




          “Documents” shall mean all “documents” as defined in Article 9 of the UCC.




          “Deposit Accounts” (i) shall mean all “deposit accounts” as defined in Article 9 of the UCC
and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4(A)
under the heading “Deposit Accounts” (as such schedule may be amended or supplemented from time to
time).




          “Equipment” shall mean: (i) all “equipment” as defined in Article 9 of the UCC, (ii) all
machinery, manufacturing equipment, data processing equipment, computers, office equipment,
furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether
characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts
thereof, whether or not at any time of determination incorporated or installed therein or attached
thereto, and all replacements therefor, wherever located, now or hereafter existing, including any
fixtures.




          “General Intangibles” (i) shall mean all “general intangibles” as defined in Article 9 of the
UCC, including “payment intangibles” also as defined in Article 9 of the UCC and (ii) shall
include, without limitation, all interest rate or currency protection or hedging arrangements, all
tax refunds, all licenses, permits, concessions and authorizations and all Assigned Agreements (in
each case, regardless of whether characterized as general intangibles under the UCC).




          “Goods” (i) shall mean all “goods” as defined in Article 9 of the UCC and (ii) shall include,
without limitation, all Inventory and Equipment (in each case, regardless of whether characterized
as goods under the UCC).




          “Grantors” shall have the meaning set forth in the preamble.













 



4




          “Holders” shall have the meaning ascribed thereto in the Collateral Trust Agreement.




          “Indemnitee” shall mean Collateral Agent and its and its Affiliates’ officers, partners,
directors, trustees, employees, and agents.




          “Instruments” shall mean all “instruments” as defined in Article 9 of the UCC.




          “Insurance” shall mean: (i) all insurance policies covering any or all of the Collateral
(regardless of whether Collateral Agent is the loss payee thereof) and (ii) any key man life
insurance policies.




          “Intellectual Property” shall mean, collectively, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the
Trade Secret Licenses.




          “Inventory” shall mean: (i) all “inventory” as defined in Article 9 of the UCC and (ii) all
goods held for sale or lease or to be furnished under contracts of service or so leased or
furnished, all raw materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such
inventory or otherwise used or consumed in any Grantor’s business; all goods in which any Grantor
has an interest in mass or a joint or other interest or right of any kind; and all goods which are
returned to or repossessed by any Grantor, all computer programs embedded in any goods and all
accessions thereto and products thereof (in each case, regardless of whether characterized as
inventory under the UCC).




          “Investment Accounts” shall mean the Collateral Account, Securities Accounts, Commodities
Accounts and Deposit Accounts.




          “Investment Related Property” shall mean: (i) all “investment property” (as such term is
defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as
investment property under the UCC): all Pledged Equity Interests, Pledged Debt, the Investment
Accounts and certificates of deposit.




          “Issue Date” means the “Issue Date” under and as defined in the 7.5% Indenture.




          “Letter of Credit Right” shall mean “letter-of-credit right” as defined in Article 9 of the
UCC.




          “Material Adverse Effect” means a material adverse effect on (i) the business, operations,
properties, assets, condition (financial or otherwise) of Company and its Subsidiaries taken as a
whole; (ii) the ability of any Grantor to fully and timely perform its Secured Obligations; (iii)
the legality, validity, binding effect or enforceability against a Grantor of a Notes Document to
which it is a party; or (iv) the ability of the Collateral Agent or any Secured Party to enforce
its rights and remedies under any Note Document.




          “Material Real Estate Asset” shall mean any Real Estate Asset located in the United States
having a fair market value greater than or equal to $1,250,000.




          “Money” shall mean “money” as defined in the UCC.













 



5




          “Non-Assignable Contract” shall mean any agreement, contract or license to which any Grantor
is a party that by its terms purports to restrict or prevent the assignment or granting of a
security interest therein (either by its terms or by any federal or state statutory prohibition or
otherwise irrespective of whether such prohibition or restriction is enforceable under Section
9-406 through 9-409 of the UCC).




          “Patent Licenses” shall mean all agreements providing for the granting of any right in or to
Patents (whether such Grantor is licensee or licensor thereunder).




          “Patents” shall mean all United States and foreign patents and applications for letters patent
throughout the world, including, but not limited to each patent and patent application referred to
in Schedule 4.7(B) (as such schedule may be amended or supplemented from time to time), all
reissues, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations
of any of the foregoing, all rights corresponding thereto throughout the world, and all proceeds of
the foregoing including, without limitation, licenses, royalties, income, payments, claims,
damages, and proceeds of suit and the right to sue for past, present and future infringements of
any of the foregoing.




          “Payment Intangible” shall have the meaning specified in Article 9 of the UCC.




          “Pledged Debt” shall mean all Debt owed to such Grantor, including, without limitation, all
Debt described on Schedule 4.4(A) under the heading “Pledged Debt” (as such schedule may be
amended or supplemented from time to time), issued by the obligors named therein, the instruments
evidencing such Debt, and all interest, cash, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in exchange for any or all
of such Debt.




          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests.




          “Pledged LLC Interests” shall mean all interests in any limited liability company including,
without limitation, all limited liability company interests listed on Schedule 4.4(A) under
the heading “Pledged LLC Interests” (as such schedule may be amended or supplemented from time to
time) and the certificates, if any, representing such limited liability company interests and any
interest of such Grantor on the books and records of such limited liability company or on the books
and records of any securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such limited liability company interests.




          “Pledged Partnership Interests” shall mean all interests in any general partnership, limited
partnership, limited liability partnership or other partnership including, without limitation, all
partnership interests listed on Schedule 4.4(A) under the heading “Pledged Partnership
Interests” (as such schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such partnership interests and any interest of such Grantor on
the books and records of such partnership or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such partnership
interests.













 



6




          “Pledged Stock” shall mean all shares of capital stock owned by such Grantor, including,
without limitation, all shares of capital stock described on Schedule 4.4(A) under the
heading “Pledged Stock” (as such schedule may be amended or supplemented from time to time), and
the certificates, if any, representing such shares and any interest of such Grantor in the entries
on the books of the issuer of such shares or on the books of any securities intermediary pertaining
to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.




          “Pledged Trust Interests” shall mean all interests in a Delaware business trust or other trust
including, without limitation, all trust interests listed on Schedule 4.4(A) under the
heading “Pledged Trust Interests” (as such schedule may be amended or supplemented from time to
time) and the certificates, if any, representing such trust interests and any interest of such
Grantor on the books and records of such trust or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such trust
interests.




          “Pledge Supplement” shall mean any supplement to this Agreement in substantially the form of
Exhibit A.




          “Proceeds” shall mean: (i) all “proceeds” as defined in Article 9 of the UCC, (ii) payments
or distributions made with respect to any Investment Related Property and (iii) whatever is
receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary.




          “Real Estate Asset” shall mean, at any time a determination, any interest (fee, leasehold or
otherwise) then owned by any Grantor in any real property.




          “Receivables” shall mean all rights to payment, whether or not earned by performance, for
goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services
rendered or to be rendered, including, without limitation all such rights constituting or evidenced
by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property,
together with all of Grantor’s rights, if any, in any goods or other property giving rise to such
right to payment and all Collateral Support and Supporting Obligations related thereto and all
Receivables Records.




          “Receivables Records” shall mean (i) all original copies of all documents, instruments or
other writings or electronic records or other Records evidencing the Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer
discs, computer runs, record keeping systems and other papers and documents relating to the
Receivables, whether in the possession or under the control of any Grantor or any computer bureau
or agent from time to time acting for any Grantor or otherwise, (iii) all evidences of the filing
of financing statements and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other creditors or secured
parties, and certificates, acknowledgments, or other writings, including, without limitation, lien
search reports, from filing or other registration officers, (iv) all credit information, reports
and memoranda relating thereto and (v) all other written or nonwritten forms of information related
in any way to the foregoing or any Receivable.













 



7




          “Record” shall have the meaning specified in Article 9 of the UCC.




          “Secured Obligations” shall have the meaning ascribed thereto in the Collateral Trust
Agreement.




          “Secured Parties” means, at any relevant time, the holders of the Secured Obligations,
including without limitation, the Holders of the Notes, the Trustees and the Collateral Agent.




          “Securities” shall mean any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of 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.




          “Securities Accounts” (i) shall mean all “securities accounts” as defined in Article 8 of the
UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule
4.4(A) under the heading “Securities Accounts” (as such schedule may be amended or supplemented
from time to time).




          “Supporting Obligation” shall mean all “supporting obligations” as defined in Article 9 of the
UCC.




          “Tax Code” shall mean the United States Internal Revenue Code of 1986, as amended from time to
time.




          “Trademark Licenses” shall mean any and all agreements providing for the granting of any right
in or to Trademarks (whether such Grantor is licensee or licensor thereunder).




          “Trademarks” shall mean all United States, state and foreign trademarks, trade names,
corporate names, company names, business names, fictitious business names, internet domain names,
trade styles, service marks, certification marks, collective marks, logos, other source or business
identifiers, designs and general intangibles of a like nature, all registrations and applications
for any of the foregoing including, but not limited to the registrations and applications referred
to in Schedule 4.7(C) (as such schedule may be amended or supplemented from time to time),
all extensions or renewals of any of the foregoing, all of the goodwill of the business connected
with the use of and symbolized by the foregoing, the right to sue for past, present and future
infringement or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of
the foregoing, including, without limitation, licenses, royalties, income, payments, claims,
damages, and proceeds of suit.




          “Trade Secret Licenses” shall mean any and all agreements providing for the granting of any
right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder).




          “Trade Secrets” shall mean all trade secrets and all other confidential or proprietary
information and know-how now or hereafter owned or used in, or contemplated at any time for use in,
the business of such Grantor (all of the foregoing being collectively called a












 



8



“Trade Secret”), whether or not such Trade Secret has been reduced to a writing or other
tangible form, including all documents and things embodying, incorporating, or referring in any way
to such Trade Secret, the right to sue for past, present and future infringement of any Trade
Secret, and all proceeds of the foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of suit.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of
New York or, when the context implies, the Uniform Commercial Code as in effect from time to time
in any other applicable jurisdiction.




          “United States” shall mean the United States of America.




     1.2 Definitions; Interpretation. All capitalized terms used herein (including the preamble and recitals hereto) and not
otherwise defined herein shall have the meanings ascribed thereto in the Collateral Trust
Agreement, or if not defined therein, in the applicable Indenture, or if not defined in the
Collateral Trust Agreement or the applicable Indenture, in the UCC. References to “Sections,”
“Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, as the case may be, of
this Agreement unless otherwise specifically provided. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect. Any of the terms defined herein may,
unless the context otherwise requires, be used in the singular or the plural, depending on the
reference. The use herein of the word “include” or “including”, when following any general
statement, term or matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to similar items or matters,
whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words
of similar import) is used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general statement, term or
matter. If any conflict or inconsistency exists between this Agreement and an applicable
Indenture, such Indenture shall govern. All references herein to provisions of the UCC shall
include all successor provisions under any subsequent version or amendment to any Article of the
UCC.



SECTION 2. GRANT OF SECURITY.




     2.1 Grant of Security. Each Grantor hereby reaffirms and grants to Collateral Agent, for its benefit and for the
benefit of the Secured Parties, a security interest and continuing lien on all of such Grantor’s
right, title and interest in, to and under all property of such Grantor including, but not limited
to the following, in each case whether now owned or existing or hereafter acquired or arising and
wherever located (all of which being hereinafter collectively referred to as the “Collateral”):



          (a) Accounts;




          (b) Chattel Paper;




          (c) Documents;




          (d) Equipment;



          (e) General Intangibles;










 



9




          (f) Goods;




          (g) Instruments;




          (h) Insurance;




          (i) Intellectual Property




          (j) Inventory;




          (k) Investment Related Property;




          (l) Letter of Credit Rights;




          (m) Money;




          (n) Receivables and Receivable Records;




          (o) Commercial Tort Claims;




          (p) to the extent not otherwise included above, all Collateral Records, Collateral Support and
Supporting Obligations relating to any of the foregoing; and




          (q) to the extent not otherwise included above, all Proceeds, products, accessions, rents and
profits of or in respect of any of the foregoing.




     2.2 Certain Limited Exclusions. The Collateral will not include the following assets (such assets, the “Excluded
Property”); (i) any building, leasehold or parcel of real property with a fair market value (as
determined in good faith by the Company) of less than $1,250,000, (ii) any lease, license,
contract, property rights or agreement to which the Company or any Guarantor is a party on the
Issue Date or any of its rights or interests thereunder if and for so long as the grant of such
security interest shall constitute or result in (A) the abandonment, invalidation or
unenforceability of any right, title or interest of the Company or any Guarantor therein or (B) a
breach or termination pursuant to the terms of, or a default under, any such lease, license,
contract, property rights or agreement (other than to the extent that any such term would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial
Code (or any successor provision or provisions) of any relevant jurisdiction or any other
applicable law or principles of equity); provided however that in relation to clause (ii) above,
such security interest shall attach immediately at such time as the condition causing such
abandonment, invalidation or unenforceability shall be remedied and, to the extent severable, shall
attach immediately to any portion of such lease, license, contract, property rights or agreement
that does not result in any of the consequences specified in (A) or (B) above; (iii) any of the
outstanding capital stock of a Controlled Foreign Corporation in excess of 65% of the voting power
of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; and (iv)
any Equity Interests of Evergreen Solar (China) Co., Ltd. if and for so long as the grant of such
security interest therein is not expressly permitted by the arrangements with Hubei Science &
Technology Investment Co., Ltd. (“HSTIC”) in effect on the Issue Date or as long as HSTIC and any
required governmental authority has not otherwise consented to or approved the granting of a junior
security interest therein (collectively, the “HSTIC Consent”); provided however that the security
interest shall automatically, and without further action, become









 



10

effective in respect to such
Equity Interests (or portion thereof) and attach immediately at such time as the HSTIC Consent is
received or such arrangements are not longer executory.




SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.




     3.1 Security for Obligations. This Agreement secures, and the Collateral is collateral security for, the payment and
performance in full when due of all the Secured Obligations.



     3.2 Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for
all obligations in respect of the Collateral and nothing contained herein is intended or shall be a
delegation of duties to Collateral Agent or any Secured Party, (ii) each Grantor shall remain
liable under each of the agreements included in the Collateral, including, without limitation, any
agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of
the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and
provisions thereof and neither Collateral Agent nor any Secured Party shall have any obligation or
liability under any of such agreements by reason of or arising out of this Agreement or any other
document related thereto nor shall Collateral Agent nor any Secured Party have any obligation to
make any inquiry as to the nature or sufficiency of any payment received by it or have any
obligation to take any action to collect or enforce any rights under any agreement included in the
Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests
or Pledged LLC Interests, and (iii) the exercise by Collateral Agent of any of its rights hereunder
shall not release any Grantor from any of its duties or obligations under the contracts and
agreements included in the Collateral.



SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.




     4.1 Generally.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants that:





          (i) it owns the Collateral purported to be owned by it or otherwise has the rights it
purports to have in each applicable item of the Collateral and, as to all its Collateral,
whether now existing or hereafter acquired, will continue to own or have such rights in
each item of the Collateral except as otherwise permitted by the Indentures, in each case
free and clear of any and all Liens, rights or claims of all other Persons, other than
Permitted Liens;




          (ii) it has indicated on Schedule 4.1(A) (as such schedule may be amended or
supplemented from time to time): (A) the type of organization of such Grantor, (B) the
jurisdiction of organization of such Grantor, (C) its organizational identification number
and (D) the jurisdiction where the chief executive office or principal place of business
is, and for the five-year period preceding the date hereof has been, located;




          (iii) the full legal name of such Grantor is as set forth on Schedule 4.1(A)
(as such schedule may be amended or supplemented from time to time) and it has not done in
the last five (5) years, and does not do, business under any other name (including any
trade-name or fictitious business name) except for those names set forth









 



11



on Schedule
4.1(B) (as such schedule may be amended or supplemented from time to time);




          (iv) except as provided on Schedule 4.1(C), it has not changed its name,
jurisdiction of organization, principal place of business, chief executive office or its
corporate structure in any way within the past five (5) years;




          (v) upon (x) the filing of all UCC financing statements naming each Grantor as
“debtor” and Collateral Agent as “secured party” and describing the Collateral in the
filing offices set forth opposite such Grantor’s name on Schedule 4.1(D) hereof (as
such schedule may be amended or supplemented from time to time), and (y) execution of a
control agreement with respect to each Deposit Account, the security interests granted to
Collateral Agent hereunder constitute valid and perfected first priority Liens (subject in
the case of priority only to Permitted Liens) on that portion of the Collateral that can be
perfected by such filing or execution of such control agreement;




          (vi) other than the financing statements filed in favor of Collateral Agent, no
effective UCC financing statement, fixture filing or other instrument similar in effect
under any applicable law covering all or any part of the Collateral is on file in any
filing or recording office except for financing statements filed in connection with
Permitted Liens;




          (vii) no authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body is required for either (x) the pledge or
grant by any Grantor of the Liens purported to be created in favor of Collateral Agent
hereunder or (y) the exercise by Collateral Agent of any rights or remedies in respect of
any Collateral (whether specifically granted or created hereunder or created or provided
for by applicable law), except, in each case, (A) for the filings contemplated by clause
(vii) above, (B) as may be required, in connection with the disposition of any Investment
Related Property, by laws generally affecting the offering and sale of Securities, (C) as
may be required in connection with Pledged Equity Interests of Foreign Subsidiaries
hereunder, to the extent identified in Schedule 4.1(E) hereof, and (D) such
authorizations, approvals or other actions of or notices to or filings with Governmental
Authorities or regulatory bodies obtained as of the date hereof; and




          (viii) it does not own any “as extracted collateral” (as defined in the UCC).



     (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:




          (i) such Grantor shall defend the Collateral against all Persons at any time claiming
any interest therein, except with respect to Permitted Liens;




          (ii) it shall not produce, use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or in material violation of any applicable statute, regulation or ordinance or any policy of insurance covering
the Collateral;




          (iii) it shall not change such Grantor’s name, chief executive office, type of
organization or jurisdiction of organization unless it shall have (A) notified









 



12



Collateral
Agent in writing, by executing and delivering to Collateral Agent a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto, together with
all applicable Supplements to Schedules thereto, at least ten (10) days’ prior to any such
change or establishment, identifying such new proposed name, chief executive office, type
of organization or jurisdiction of organization and providing such other information in
connection therewith as Collateral Agent may reasonably request and (B) taken all actions
necessary or advisable to maintain the continuous validity, perfection and the same or
better priority of Collateral Agent’s security interest in the Collateral intended to be
granted and agreed to hereby;




          (iv) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it
shall promptly notify Collateral Agent in writing of any event that may have a Material
Adverse Effect on the value of the Collateral or any material portion thereof, or the
rights and remedies of Collateral Agent in relation thereto, including, without limitation,
the levy of any legal process against the Collateral or any material portion thereof;




          (v) except otherwise permitted by the Notes Documents, it shall not take or permit any
action which could impair Collateral Agent’s rights in the Collateral in any material
respect; and




          (vi) each Grantor will maintain its primary operating and investments accounts in the
United States. The Grantors shall, at least once each week, remit to Deposit Accounts or
Securities Accounts maintained by the Grantors in the United States amounts held by them in
foreign Deposit Accounts and Securities Accounts in the aggregate value in excess of (A)
5,000,000 euro (as determined two (2) Business Days prior to such remittance) plus (B)
amounts required to be maintained by or paid to foreign governmental authorities for taxes,
assessments, levies and duties or in respect thereto.



          (c) Post-Closing Items. Company hereby covenants and agrees that Company shall
deliver (or cause the applicable Grantor to deliver), (a) as soon as practical and in any event not
later than 60 days after the Issue Date, such Pledge Supplements, certificates, stock powers, any
other documents and/or opinions of foreign counsel to the Company or its Subsidiaries, addressed to
Collateral Agent, relating to the pledge of 65% of capital stock of the Controlled Foreign
Corporations set forth on Schedule 4.4(A) hereto; (b) as soon as practical and in any event not
later than 60 days after the Issue Date, duly executed control agreements in such form as may be
reasonably acceptable to Collateral Agent with respect to all Deposit Accounts required to be
pledged hereunder, (c) not later than 45 days after the Issue Date, the items set forth on Schedule
4.10. Subject to Section 4.4.2(b), the Company further covenants and agrees that it shall, or
shall cause the applicable Grantor to, use its commercially reasonable efforts to deliver as soon
as practical duly executed control agreements in such form as may be reasonably acceptable to
Collateral Agent with respect to all Securities Accounts owned by them on the Issue Date. Unless
and until Collateral Agent shall actually receive such items of Collateral and the supporting
documentation contemplated by this Section 4.1(c), Collateral Agent may assume without inquiry that
it has received all post-closing items it is required to receive pursuant to this Section 4.1(c).




     4.2 Equipment and Inventory.



          (a) Representations and Warranties. Each Grantor represents and warrants that:











 



13





          (i) all of the Equipment and Inventory included in the Collateral is kept only at the
locations specified in Schedule 4.2 (as such schedule may be amended or
supplemented from time to time);




          (ii) any Goods now or hereafter produced by any Grantor included in the Collateral
have been and will be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended; and




          (iii) none of the Inventory or Equipment is in the possession of an issuer of a
negotiable document (as defined in Section 7-104 of the UCC) therefor or otherwise in the
possession of a bailee or a warehouseman.



          (b) Covenants and Agreements. Each Grantor covenants and agrees that:





          (i) it shall keep the Equipment and Inventory until sold in the ordinary course of
business and any Documents evidencing any Equipment and Inventory in the locations
specified on Schedule 4.2 (as such schedule may be amended or supplemented from
time to time) unless it shall have taken all actions necessary or advisable to maintain the
continuous validity, perfection and the same or better priority of Collateral Agent’s
security interest in the Collateral intended to be granted and agreed to hereby, or to
enable Collateral Agent to exercise and enforce its rights and remedies hereunder, with
respect to such Equipment and Inventory;




          (ii) it shall notify Collateral Agent in writing, by executing and delivering to
Collateral Agent, no less often than quarterly, a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all
applicable Supplements to Schedules thereto, in the event there has been any change in the
locations specified on Schedule 4.2 with respect to such Equipment, Inventory
(other than Inventory sold in the ordinary course of business) and Documents, identifying
such new locations and providing such other information in connection therewith as
Collateral Agent may reasonably request;




          (iii) it shall keep correct and accurate records of the Inventory as is customarily
maintained under similar circumstances by Persons of established reputation engaged in
similar business, and in any event sufficient to prepare financial statements in accordance
with GAAP;




          (iv) it shall not deliver any Document evidencing any Equipment or Inventory (other
than pursuant to a sale of Inventory in the ordinary course of business) to any Person
other than the issuer of such Document to claim the Goods evidenced therefor or Collateral
Agent; and




          (v) if any Equipment or Inventory in excess of $25,000 for any location or $100,000 in
the aggregate is in possession or control of any third party, each Grantor shall join with
Collateral Agent in notifying the third party of Collateral Agent’s security interest and obtaining an acknowledgment from the third party that it is
holding the Equipment and Inventory for the benefit of Collateral Agent.



     4.3 Receivables.









 



14


          (a) Representations and Warranties. Each Grantor represents and warrants that:





          (i) each Receivable (A) is and will be the legal, valid and binding obligation of the
Account Debtor in respect thereof, representing an unsatisfied obligation of such Account
Debtor, (B) is and will be enforceable in accordance with its terms except to the extent
that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization and other similar laws affecting creditors’ rights generally and
by equitable principles (regardless of whether enforcement is sought in equity or at law),
and (C) is and will be in compliance with all applicable laws, whether federal, state,
local or foreign;




          (ii) none of the Account Debtors in respect of any Receivable in excess of $25,000
individually or $100,000 in the aggregate is the government of the United States, any
agency or instrumentality thereof, any state or municipality or any foreign sovereign; and




          (iii) no Receivable is evidenced by, or constitutes, an Instrument or Chattel Paper
which has not been delivered to, or otherwise subjected to the control of, Collateral Agent
to the extent required by, and in accordance with Section 4.3(c).



          (b) Covenants and Agreements: Each Grantor hereby covenants and agrees that:





          (i) it shall keep and maintain at its own cost and expense satisfactory and complete
records of the Receivables, including, but not limited to, the originals of all
documentation with respect to all Receivables and records of all payments received and all
credits granted on the Receivables, all merchandise returned and all other dealings
therewith;




          (ii) upon Collateral Agent’s reasonable request, it shall mark conspicuously, in form
and manner reasonably satisfactory to Collateral Agent, all Chattel Paper, Instruments and
other evidence of Receivables (other than any delivered to Collateral Agent as provided
herein), as well as the Receivables Records with an appropriate reference to the fact that
Collateral Agent has a security interest therein;




          (iii) other than in respect of obligations subject to good faith disputes, it shall
perform in all material respects all of its obligations with respect to the Receivables;




          (iv) other than in the ordinary course of business and while no Event of Default
exists, it shall not amend, modify, terminate or waive any provision of any Receivable in
any manner which could reasonably be expected to have a Material Adverse Effect on the
value of such Receivable as Collateral. Other than in the ordinary course of business and
so long as no Event of Default exists, such Grantor shall not (w) grant any extension or
renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any
Receivable for less than the total unpaid balance thereof, (y) release, wholly or
partially, any Person liable for the payment thereof, or (z) allow any credit or discount
thereon;









 



15



          (v) each Grantor shall continue to collect all amounts due or to become due to such
Grantor under the Receivables and any Supporting Obligation and diligently exercise each
material right it may have under any Receivable, any Supporting Obligation or Collateral
Support, in each case, at its own expense, and in connection with such collections and
exercise, such Grantor shall take such action as such Grantor may deem necessary or
advisable. Notwithstanding the foregoing, Collateral Agent shall have the right at any
time during the existence of an Event of Default to notify, or require any Grantor to
notify, any Account Debtor of Collateral Agent’s security interest in the Receivables and
any Supporting Obligation and, in addition, at any time following the occurrence and during
the continuation of an Event of Default, Collateral Agent may: (A) direct the Account
Debtors under any Receivables to make payment of all amounts due or to become due to such
Grantor thereunder directly to Collateral Agent; (B) notify, or require any Grantor to
notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors
under any Receivables have been directed to make payment to remit all amounts representing
collections on checks and other payment items from time to time sent to or deposited in
such lockbox or other arrangement directly to Collateral Agent; and (C) enforce, at the
expense of such Grantor, collection of any such Receivables and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same extent as such
Grantor might have done. If Collateral Agent notifies any Grantor that it has elected to
collect the Receivables in accordance with the preceding sentence, any payments of
Receivables received by such Grantor shall be forthwith (and in any event within two (2)
Business Days) deposited by such Grantor in the exact form received, duly indorsed by such
Grantor to Collateral Agent if required, in a collateral account (the “Collateral
Account”), and until so turned over, all amounts and proceeds (including checks and other
instruments) received by such Grantor in respect of the Receivables, any Supporting
Obligation or Collateral Support shall be received in trust for the benefit of Collateral
Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor
shall not adjust, settle or compromise the amount or payment of any Receivable, or release
wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount
thereon; and




          (vi) it shall use its commercially reasonable efforts to keep in full force and effect
any Supporting Obligation or Collateral Support relating to any Receivable.



          (c) Delivery and Control of Receivables. With respect to any Receivables in excess of
$25,000 individually or $100,000 in the aggregate that is evidenced by, or constitutes, Chattel
Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be
delivered, promptly upon the request of Collateral Agent, to Collateral Agent (or its agent or
designee) appropriately indorsed to Collateral Agent or indorsed in blank: (i) with respect to any
such Receivables in existence on the date hereof, on or prior to the date hereof, and (ii) with
respect to any such Receivables hereafter arising, within ten (10) days of such Grantor acquiring
rights therein. Any Receivable not otherwise required to be delivered or subjected to the control
of Collateral Agent in accordance with this subsection (c) shall be delivered or subjected to such
control upon request of Collateral Agent.




     4.4 Investment Related Property; Investment Related Property Generally



          (a) Covenants and Agreements. Each Grantor hereby covenants and agrees that:










 



16





          (i) in the event it acquires rights in any Investment Related Property after the date
hereof, it shall deliver to Collateral Agent a completed Pledge Supplement, substantially
in the form of Exhibit A attached hereto, together with all applicable Supplements
to Schedules thereto, reflecting such new Investment Related Property and all other
Investment Related Property. Notwithstanding the foregoing, it is understood and agreed
that the security interest of Collateral Agent shall attach to all Investment Related
Property immediately upon any Grantor’s acquisition of rights therein and shall not be
affected by the failure of any Grantor to deliver a supplement to Schedule 4.4 as
required hereby;




          (ii) except as provided in the next sentence and except to the extent constituting
Excluded Property, in the event such Grantor receives any dividends, interest or
distributions on any Investment Related Property, or any securities or other property upon
the merger, consolidation, liquidation or dissolution of any issuer of any Investment
Related Property, then (A) such dividends, interest or distributions and securities or
other property shall be included in the definition of Collateral without further action and
(B) such Grantor shall immediately take all steps, if any, necessary or advisable to ensure
the validity, perfection, priority and, if applicable, control of Collateral Agent over
such Investment Related Property (including, without limitation, delivery thereof to
Collateral Agent) and pending any such action such Grantor shall be deemed to hold such
dividends, interest, distributions, securities or other property in trust for the benefit
of Collateral Agent and shall be segregated from all other property of such Grantor.
Notwithstanding the foregoing, so long as no Event of Default under either Indenture shall
have occurred and be continuing, Collateral Agent authorizes each Grantor to retain all
ordinary cash dividends and distributions that are paid in the normal course of the
business of the issuer, all scheduled payments of interest and all property received upon
the liquidation or dissolution of a Subsidiary permitted by the Note Documents; and




          (iii) to the extent applicable, each Grantor consents to the grant by each other
Grantor of a Security Interest in all Investment Related Property to Collateral Agent.



          (b) Delivery and Control.




     Each Grantor agrees that with respect to any Investment Related Property in which it currently
has rights it shall comply with the provisions of this Section 4.4(b) on or before the
Issue Date and with respect to any Investment Related Property hereafter acquired by such Grantor
it shall comply with the provisions of this Section 4.4(b) promptly upon acquiring rights
therein. With respect to any Investment Related Property that is represented by a certificate or
that is an “instrument” (other than any Investment Related Property credited to a Securities
Account), and subject to the limitations set forth in Section 2.2 hereof, it shall cause
such certificate or instrument to be delivered to Collateral Agent, indorsed in blank by an
“effective indorsement” (as defined in Section 8-107 of the UCC), regardless of whether such
certificate constitutes a “certificated security” for purposes of the UCC. In addition to the
foregoing, if any issuer of any Investment Related Property is located in a jurisdiction outside
the United States, each Grantor shall take such additional actions, including, without limitation,
causing the issuer to register the pledge on its books and records or making such filings or
recordings, in each case as may be necessary or advisable, under the laws of such issuer’s
jurisdiction to insure the validity, perfection and priority of the security interest of Collateral Agent; provided that the
Grantors shall not be required to take any actions contemplated by this sentence with respect to
the pledge of Equity Interests of Foreign Subsidiaries so long as the total assets (determined in
accordance









 



17

with GAAP) of such Foreign Subsidiaries with respect to which such actions have not been
taken do not exceed $1,000,000 in the aggregate at any time. Upon the occurrence and during the
continuance of an Event of Default under either Indenture, Collateral Agent shall have the right,
without notice to any Grantor, to transfer all or any portion of the Investment Related Property to
its name or the name of its nominee or Trustee.




          (c) Voting and Distributions.





          (i) So long as no Event of Default under any Indenture shall have occurred and be
continuing:




	 	(A)	 	each Grantor shall be entitled to exercise or refrain from exercising any and
all voting and other consensual rights pertaining to the Investment Related Property
or any part thereof for any purpose not inconsistent with the terms of this Agreement
or the Indentures or any other Note Document; and
	 
	 	(B)	 	Collateral Agent shall promptly execute and deliver (or cause to be executed
and delivered) to each Grantor all proxies, and other instruments as such Grantor may
from time to time reasonably request for the purpose of enabling such Grantor to
exercise the voting and other consensual rights when and to the extent which it is
entitled to exercise pursuant to clause (A) above;






          (ii) Upon the occurrence and during the continuation of an Event of Default:




	 	(A)	 	all rights of each Grantor to exercise or refrain from exercising the voting
and other consensual rights which it would otherwise be entitled to exercise pursuant
hereto shall cease and all such rights shall thereupon become vested in Collateral
Agent who shall thereupon have the sole right to exercise such voting and other
consensual rights; and
	 
	 	(B)	 	in order to permit Collateral Agent to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant hereto and to receive
all dividends and other distributions which it may be entitled to receive hereunder:
(1) each Grantor shall promptly execute and deliver (or cause to be executed and
delivered) to Collateral Agent all proxies, dividend payment orders and other
instruments as Collateral Agent may from time to time reasonably request and (2) the
each Grantor acknowledges that Collateral Agent may utilize the power of attorney set
forth in Section 6.





          4.4.1 Pledged Equity Interests and Pledged Debt




          (a) Representations and Warranties. Each Grantor hereby represents and warrants,
that:





          (i) Schedule 4.4 (as such schedule may be amended or supplemented from time to
time) sets forth under the headings “Pledged Stock, “Pledged LLC Interests,” “Pledged
Partnership Interests” and “Pledged Trust Interests,”
respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership
Interests and Pledged Trust Interests owned by any Grantor and such Pledged Equity
Interests constitute the percentage of issued and outstanding shares of stock, percentage









 



18



of membership interests, percentage of partnership interests or percentage of beneficial
interest of the respective issuers thereof indicated on such Schedule;




          (ii) it is the record and beneficial owner of the Pledged Equity Interests pledged by
such Grantor free of all Liens, rights or claims of other Persons other than Liens in favor
of Collateral Agent pursuant to the terms of this Agreement and Permitted Liens, and there
are no outstanding warrants, options or other rights to purchase, or shareholder, voting
trust or similar agreements outstanding with respect to, or property that is convertible
into, or that requires the issuance or sale of, any Pledged Equity Interests;




          (iii) without limiting the generality of Section 4.1(a)(v), except for the
consents obtained in this Agreement, no consent of any Person (to the extent not obtained
prior to the date hereof), including any other general or limited partner, any other member
of a limited liability company, any other shareholder or any other trust beneficiary, is
necessary or desirable in connection with the creation, perfection or first priority status
of the security interest of Collateral Agent in any Pledged Equity Interests or the
exercise by Collateral Agent of the voting or other rights provided for in this Agreement
or the exercise of remedies in respect thereof;




          (iv) Schedule 4.4 (as such schedule may be amended or supplemented from time
to time) sets forth under the heading “Pledged Debt” all of the Pledged Debt owned by any
Grantor and all of such Pledged Debt has been duly authorized, authenticated or issued, and
delivered and is the legal, valid and binding obligation of the issuers thereof, except to
the extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting creditors’ rights
generally and by equitable principles (regardless of whether enforcement is sought in
equity or at law) and is not in default; and




          (v) none of the Pledged LLC Interests nor Pledged Partnership Interests are or
represent interests in issuers that are: (A) registered as investment companies, (B) are
dealt in or traded on securities exchanges or markets or (C) have opted to be treated as
securities under the uniform commercial code of any jurisdiction unless such interest is
certificated and delivered to the Collateral Agent pursuant to Section 4.4(b).



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:





          (i) except as permitted by the Indenture, it shall not vote to enable or take any
other action to: (A) amend or terminate any partnership agreement, limited liability
company agreement, certificate of incorporation, by-laws or other organizational documents
in any way that materially changes the rights of such Grantor with respect to any
Investment Related Property or adversely affects the validity, perfection or priority of
Collateral Agent’s security interest, (B) permit any issuer of any Pledged Equity Interest
to issue any additional stock, partnership interests, limited liability company interests
or other equity interests of any nature or to issue securities convertible into or granting
the right of purchase or exchange for any stock or other equity interest of any nature of
such issuer, (C) permit any issuer of any Pledged Equity Interest to dispose of all or a
material portion of its assets, (D) waive any default under or breach of any terms of
organizational document relating to the issuer of any Pledged Equity Interest or the terms
of any









 



19



Pledged Debt, or (E) except as otherwise provided herein, cause any issuer of any
Pledged Partnership Interests or Pledged LLC Interests which are not securities (for
purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such
Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for
purposes of the UCC; and




          (ii) it shall comply in all material respects with all of its obligations under any
partnership agreement or limited liability company agreement relating to Pledged
Partnership Interests or Pledged LLC Interests and, except as otherwise provided in this
Agreement, shall enforce all of its rights with respect to any Investment Related Property;
and




          (iii) to the extent applicable, each Grantor consents to the grant by each other
Grantor of a security interest in all Investment Related Property to Collateral Agent and,
without limiting the foregoing, consents to the transfer of any Pledged Partnership
Interest and any Pledged LLC Interest to Collateral Agent or its nominee following an Event
of Default under either Indenture and to the substitution of Collateral Agent or its
nominee as a partner in any partnership or as a member in any limited liability company
with all the rights and powers related thereto.



          4.4.2 Investment Accounts




          (a) Representations and Warranties. Each Grantor hereby represents and warrants that:





          (i) Schedule 4.4 hereto (as such schedule may be amended or supplemented from
time to time) sets forth under the headings “Securities Accounts” and “Commodities
Accounts, ” respectively, all of the Securities Accounts and Commodities Accounts in which
each Grantor has an interest. Each Grantor is the sole entitlement holder of each such
Securities Account and Commodities Account, and such Grantor has not consented to, and is
not otherwise aware of, any Person (other than Collateral Agent pursuant hereto having
“control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over, or any other
interest in, any such Securities Account or Commodity Account or any securities or other
property credited thereto, other than, to the extent provided by the UCC, the financial
institution where such Securities Account or Commodities Account is maintained by solely
virtue of its capacity as such;




          (ii) Schedule 4.4 hereto (as such schedule may be amended or supplemented from
time to time) sets forth under the heading “Deposit Accounts” all of the Deposit Accounts
in which each Grantor has an interest and each Grantor is the sole account holder of each
such Deposit Account and such Grantor has not consented to, and is not otherwise aware of,
any Person (other than Collateral Agent pursuant hereto) having either sole dominion and
control (within the meaning of common law) or “control” (within the meaning of Section
9-104 of the UCC) over, or any other interest in, any such Deposit Account or any money or
other property deposited therein, other than, to the extent provided by the UCC, the
financial institution where such Deposit Account is maintained by solely virtue of its
capacity as such; and




          (iii) each Grantor has delivered all Instruments constituting Collateral to
Collateral Agent.

















 



20


          (b) Delivery and Control. With respect to any Investment Related Property
consisting of Securities Accounts or Securities Entitlements, it shall use its commercially
reasonable efforts to cause the securities intermediary maintaining such Securities Account or
Securities Entitlement to enter into an agreement in such form as may be reasonably acceptable to
Collateral Agent pursuant to which it shall agree to comply with Collateral Agent’s “entitlement
orders” without further consent by such Grantor; provided however, that the Grantors will not be
required to use commercially reasonable efforts to provide a control agreement in favor of the
Collateral Agent with respect to any Securities Account with a balance of less than $100,000
individually so long as the aggregate cash balances of all Securities Accounts so excluded pursuant
to this proviso shall not at any time exceed $500,000. With respect to any Investment Related
Property that is a “Deposit Account,” it shall cause the depositary institution maintaining such
account to enter into an agreement in such form as may be reasonably acceptable to Collateral
Agent, pursuant to which Collateral Agent shall, have control over such Deposit Account (within the
meaning of Section 9-104 of the UCC); provided however, that the Grantors will not be required to
provide a control agreement in favor of the Collateral Agent with respect to (x) any Deposit
Account with a balance of less than $100,000 individually, provided that the aggregate cash
balances of all Deposit Accounts so excluded pursuant to this clause (x) shall not at any time
exceed $500,000 or (y) any Deposit Account that is solely a payroll or benefits account.
Notwithstanding the foregoing, in no event will a Grantor be required to obtain control agreements
or take any other action required by such applicable foreign jurisdiction to obtain perfection of
the Collateral Agent’s security interests under the laws of the applicable foreign jurisdiction in
respect of foreign Securities Accounts or Deposit Accounts.




     4.5 Annual Certificates.



     The Officer’s Certificate delivered to the Trustee pursuant to Section 4.15 of the Indenture
shall certify as to each Grantor’s compliance with the requirements of this Agreement.



     4.6 Letter of Credit Rights.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants that
all material letters of credit to which such Grantor is the beneficiary are listed on Schedule
4.6 hereto (as such schedule may be amended or supplemented from time to time).




          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that with
respect to any material letter of credit hereafter arising it shall obtain the consent of the
issuer thereof to the assignment of the proceeds of the letter of credit to Collateral Agent and
shall deliver to Collateral Agent a completed Pledge Supplement, substantially in the form of
Exhibit A attached hereto, together with all applicable Supplements to Schedules thereto.




     4.7 Intellectual Property.



          (a) Representations and Warranties. Each Grantor hereby represents and
warrants, on the Issue Date, that:





          (i) Schedule 4.7 (as such schedule may be amended or supplemented from time to
time) sets forth a true and complete list of all United States, state and foreign
registrations of and applications for Patents, Trademarks, and Copyrights owned by each
Grantor;









 



21



          (ii) it is the sole and exclusive owner of the entire right, title, and interest in
and to all Intellectual Property on Schedule 4.7 (as may be amended or
supplemented from time to time), and owns or has the valid right to use, or could obtain
such rights upon terms that are not materially adverse, all other Intellectual Property
used in or necessary to conduct its business, free and clear of all Liens, claims,
encumbrances and licenses, except for Permitted Liens;




          (iii) all Intellectual Property material to the business of such Grantor is subsisting
and has not been adjudged invalid or unenforceable, in whole or in part, and such Grantor
has performed all acts and has paid all renewal, maintenance, and other fees and taxes
required to maintain each and every registration and application of material Intellectual
Property in full force and effect;




          (iv) all Intellectual Property material to the business of such Grantor is valid and
enforceable; no holding, decision, or judgment has been rendered in any action or
proceeding before any court or administrative authority challenging the validity of, such
Grantor’s right to register, or such Grantor’s rights to own or use, any Intellectual
Property and no such action or proceeding is pending or, to such Grantor’s knowledge,
threatened, that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;




          (v) to such Grantor’s knowledge, the conduct of such Grantor’s business does not
infringe upon any trademark, patent, copyright, trade secret or similar
intellectual property right owned or controlled by a third party; and, to such Grantor’s
knowledge, no claim has been made that the use of any Intellectual Property owned or used
by Grantor (or any of its respective licensees) violates the asserted rights of any third
party that could reasonably be expected to have a Material Adverse Effect;




          (vi) to such Grantor’s knowledge, no third party is infringing upon any Intellectual
Property owned or used by such Grantor, or any of its respective licensees;




          (vii) no settlement or consents, covenants not to sue, nonassertion assurances, or
releases have been entered into by Grantor or to which Grantor is bound that adversely
affect such Grantor’s rights to own or use any Intellectual Property material to the
business of such Grantor; and




          (viii) such Grantor has not made a previous assignment, sale, transfer or agreement
constituting a present or future assignment, sale, transfer or agreement of any
Intellectual Property that has not been terminated or released. There is no effective
financing statement or other document or instrument now executed, or on file or recorded in
any public office, granting a security interest in or otherwise encumbering any part of the
Intellectual Property, other than in favor of the Collateral Agent.



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:





          (i) it shall not do any act or omit to do any act whereby any of the Intellectual
Property which is material to the business of Grantor may lapse, or become abandoned,
dedicated to the public, or unenforceable, or which would adversely affect in









 



22



any material respect the validity, grant, or enforceability of the security interest
in favor of Collateral Agent granted therein;




          (ii) it shall not, with respect to any Trademarks which are material to the business
of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of
the quality of products sold and services rendered under any of such Trademark at a level
at least substantially consistent with the quality of such products and services as of the
date hereof, and each Grantor shall take all steps necessary to insure that licensees of
such Trademarks use such consistent standards of quality;




          (iii) it shall promptly notify Collateral Agent if it knows or has reason to know that
any item of the Intellectual Property that is material to the business of any Grantor may
become (A) abandoned or dedicated to the public or placed in the public domain, (B) invalid
or unenforceable, or (C) subject to any adverse determination or development (including the
institution of proceedings) in any action or proceeding in the United States Patent and
Trademark Office, the United States Copyright Office, and state registry, any foreign
counterpart of the foregoing, or any court;




          (iv) it shall take all reasonable steps in the United States Patent and Trademark
Office, the United States Copyright Office, any state registry or any foreign counterpart
of the foregoing, to pursue any application and maintain any registration of each
Trademark, Patent, and Copyright owned by any Grantor and material to its business which is
now or shall become included in the Intellectual Property;




          (v) if any Intellectual Property material to the business of such Grantor owned by or
exclusively licensed to such Grantor is infringed, misappropriated, or diluted by
a third party, such Grantor shall promptly take all reasonable actions as it determines are
appropriate in the exercise of its commercially reasonable judgment, to stop such
infringement, misappropriation, or dilution and protect its exclusive rights in such
Intellectual Property including, but not limited to, the initiation of a suit for
injunctive relief and to recover damages, except where failure to take such action could
not reasonably be expected to result in a Material Adverse Effect;




          (vi) it shall promptly report to Collateral Agent (A) the filing of any application to
register any Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any state registry (whether such application is filed by
such Grantor or through any trustee, employee, licensee, or designee thereof) and (B) the
registration of any Intellectual Property by any such office, in each case by executing and
delivering to Collateral Agent a completed Pledge Supplement, substantially in the form of
Exhibit A attached hereto, together with all applicable Supplements to Schedules
thereto; and




          (vii) it shall use proper statutory notice in connection with its use of any of the
Intellectual Property.



     4.8 Commercial Tort Claims.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants that
Schedule 4.8 (as such schedule may be amended or supplemented from time to time) sets forth
all Commercial Tort Claims of each Grantor in excess of $100,000 individually or $250,000 in the
aggregate.










 



23


          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that with
respect to any Commercial Tort Claim in excess of $100,000 individually or $250,000 in the
aggregate hereafter arising it shall deliver to Collateral Agent a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all applicable
Supplements to Schedules thereto, identifying such new Commercial Tort Claims. Unless and until
Collateral Agent shall actually receive such Pledge Supplement, Collateral Agent may assume without
inquiry that no such Pledge Supplement is required to be delivered to it.




     4.9 Subsidiaries. If any Person becomes a Guarantor, Company and such Guarantor shall (a) promptly cause such
Guarantor to become a Grantor under this Agreement by executing and delivering to Collateral Agent
a Counterpart Agreement, and (b) take, or cause such Guarantor to take, all such actions and to
execute and deliver, or cause to be executed and delivered, in respect of all of its assets that
constitute Collateral all such documents, instruments, agreements and certificates as may be
necessary, or as may otherwise be reasonably requested by Collateral Agent, to grant a perfected
first-priority Lien, subject only to Permitted Liens, on the assets of such Guarantor constituting
Collateral to the extent required by this Agreement. If any Person becomes a Foreign Subsidiary of
Company, and the ownership interests of such Foreign Subsidiary are owned by any Grantor, such
Grantor shall deliver all such documents, instruments, agreements, and certificates as may
reasonably be requested by Collateral Agent, and such Grantor take all of the actions necessary to
grant and to perfected first priority Lien in favor of Collateral Agent, for the benefit of Secured
Parties, hereunder in such ownership interests.



     4.10 Real Estate Assets. The Company or the applicable Grantor shall deliver all items set forth on Schedule
4.10 no later than 45 days after the Issue Date. If any Grantor acquires a Material Real
Estate Asset or a Real Estate Asset owned on the Closing Date becomes a Material Real Estate Asset
and such interest has not otherwise been made subject to the Lien of the Security Documents in
favor of Collateral Agent, for the benefit of Secured Parties, then such Grantor shall take all
such actions and execute and deliver, or cause to be executed and delivered, (i) a real property
mortgage in customary form and substance and any other documents or instruments as are required to
vest in the Collateral Agent a perfected first priority security interest (subject to Permitted
Liens) in such Material Real Estate Asset and (ii) a customary survey, title insurance policy and
Opinion of Counsel with respect to such Material Real Estate Asset and such real property mortgage,
as applicable.



SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS.



     5.1 Right of Inspection; Access. Collateral Agent shall at all times, upon reasonable prior written notice (except while an
Event of Default under either Indenture exists, during which time no notice shall be required),
have full and free access during normal business hours to all the books, correspondence and records
of each Grantor, and Collateral Agent and its representatives may examine the same, take extracts
therefrom and make photocopies thereof, and each Grantor agrees to render to Collateral Agent, at
such Grantor’s cost and expense, such clerical and other assistance as may be reasonably requested
with regard thereto. Upon reasonable prior written notice (except while an Event of Default under
either Indenture exists, during which time no notice shall be required),
Collateral Agent and its representatives shall at all times also have the right to enter any
premises of each Grantor and inspect any property of each Grantor where any of the Collateral of
such Grantor granted pursuant to this Agreement is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.









 



24


     5.2 Further Assurances.



          (a) Each Grantor agrees that from time to time, at the expense of such Grantor, that it shall
promptly execute and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that Collateral Agent may reasonably request, in order to
create and/or maintain the validity, perfection or priority of and protect any security interest
granted or purported to be granted hereby or to enable Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to Collateral. Without limiting the generality of the
foregoing, each Grantor shall:





          (i) file such financing or continuation statements, or amendments thereto, and execute
and deliver such other agreements, instruments, endorsements, powers of attorney or
notices, as may be necessary or desirable, or as Collateral Agent may reasonably request,
in order to perfect and preserve the security interests granted or purported to be granted
hereby;




          (ii) take all actions necessary to ensure the recordation of appropriate evidence of
the liens and security interest granted hereunder in the Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office, and the
various Secretaries of States; and;




          (iii) at any reasonable time, upon request by Collateral Agent, assemble the
Collateral and allow inspection of the Collateral by Collateral Agent, or persons
designated by Collateral Agent; and




          (iv) at Collateral Agent’s reasonable request, appear in and defend any action or
proceeding that may affect such Grantor’s title to or Collateral Agent’s security interest
in all or any material part of the Collateral.



          (b) Each Grantor hereby authorizes Collateral Agent to file a Record or Records, including,
without limitation, financing or continuation statements, and amendments thereto, in any
jurisdictions and with any filing offices as Collateral Agent may determine, in its sole
discretion, are necessary or advisable to perfect the security interest granted to Collateral Agent
herein. Such financing statements may describe the Collateral in the same manner as described
herein or may contain an indication or description of collateral that describes such property in
any other manner as Collateral Agent may determine, in its sole discretion, is necessary, advisable
or prudent to ensure the perfection of the security interest in the Collateral granted to
Collateral Agent herein, including, without limitation, describing such property as “all assets” or
“all personal property, whether now owned or hereafter acquired.” Each Grantor shall furnish to
Collateral Agent from time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as Collateral Agent may
reasonably request, all in reasonable detail.




          (c) Each Grantor hereby authorizes Collateral Agent to modify this Agreement after obtaining
such Grantor’s approval of or signature to such modification by amending Schedule 4.7 (as
such schedule may be amended or supplemented from time to time) to
include reference to any right, title or interest in any existing Intellectual Property or any
Intellectual Property acquired or developed by any Grantor after the execution hereof or to delete
any reference to any right, title or interest in any Intellectual Property in which any Grantor no
longer has or claims any right, title or interest.










 



25


     5.3 Additional Grantors. From time to time subsequent to the date hereof, additional Persons may become parties
hereto as additional Grantors (each, an “Additional Grantor”), by executing a counterpart agreement
in the form attached as Exhibit B hereto (“Counterpart Agreement”). Upon delivery of any
such Counterpart Agreement to Collateral Agent, notice of which is hereby waived by each of the
other Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as
if Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of
Company to become an Additional Grantor hereunder. This Agreement shall be fully effective as to
any Grantor that is or has become a party hereto regardless of whether any other Person becomes or
fails to become or ceases to be a Grantor hereunder.



SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.



     6.1 Power of Attorney. To the extent permitted by applicable law, each Grantor hereby irrevocably appoints
Collateral Agent (such appointment being coupled with an interest) as such Grantor’s
attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of
such Grantor, Collateral Agent or otherwise, from time to time in Collateral Agent’s discretion to
take any action and to execute any instrument that Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Agreement, including, without limitation, the
following (which if so specified, Collateral Agent shall be entitled to exercise only during the
existence of an Event of Default under either Indenture):



          (a) upon the occurrence and during the continuance of any Event of Default under either
Indenture, to obtain and adjust insurance required to be maintained by such Grantor or paid to
Collateral Agent pursuant to such Indenture;




          (b) upon the occurrence and during the continuance of any Event of Default under either
Indenture, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance
and receipts for moneys due and to become due under or in respect of any of the Collateral;




          (c) upon the occurrence and during the continuance of any Event of Default under either
Indenture, to receive, endorse and collect any drafts or other instruments, documents and chattel
paper in connection with clause (b) above;




          (d) upon the occurrence and during the continuance of any Event of Default under either
Indenture, to file any claims or take any action or institute any proceedings that Collateral Agent
may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce
the rights of Collateral Agent with respect to any of the Collateral;




          (e) to prepare and file any UCC financing statements naming such Grantor as debtor as
contemplated by Section 5.2(b);




          (f) to prepare, sign, and file for recordation in any intellectual property registry,
appropriate evidence of the lien and security interest granted herein in the Intellectual Property
in the name of such Grantor;




          (g) upon the occurrence and during the continuance of an Event of Default under either
Indenture, to take or cause to be taken all actions necessary to perform or comply or










 



26

cause performance or compliance with the terms of this Agreement, including, without limitation, access
to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened
against the Collateral, the legality or validity thereof and the amounts necessary to discharge the
same to be determined by Collateral Agent in its sole discretion, any such payments made by
Collateral Agent to become obligations of such Grantor to Collateral Agent, due and payable
immediately without demand; and




          (h) (i) upon the occurrence and during the continuance of an Event of Default under either
Indenture, generally to sell, transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though Collateral Agent were the
absolute owner thereof for all purposes, and (ii) to do, at Collateral Agent’s option and such
Grantor’s expense, at any time or from time to time, all acts and things that Collateral Agent
deems reasonably necessary to protect or preserve the Collateral and Collateral Agent’s security
interest therein in order to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.




     6.2 No Duty on the Part of Collateral Agent or Secured Parties. The powers conferred on Collateral Agent hereunder are solely to protect the interests of
the Secured Parties in the Collateral and shall not impose any duty upon Collateral Agent or any
Secured Party to exercise any such powers. Collateral Agent and the Secured Parties shall be
accountable only for amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or trustees shall be responsible
to any Grantor for any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.



SECTION 7. REMEDIES.



     7.1 Generally.



          (a) If any Event of Default under either Indenture shall have occurred and be continuing,
Collateral Agent may exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it at law or in equity, all the rights and
remedies of a secured party on default under the UCC (whether or not the UCC applies to the
affected Collateral) to collect, enforce or satisfy any Secured Obligations then owing, whether by
acceleration or otherwise, and also, to the extent permitted by applicable law, may pursue any of
the following separately, successively or simultaneously:





          (i) require any Grantor to, and each Grantor hereby agrees that it shall at its
expense and promptly upon request of Collateral Agent forthwith, assemble all or part of
the Collateral as directed by Collateral Agent and make it available to
Collateral Agent at a place to be designated by Collateral Agent that is reasonably
convenient to both parties;




          (ii) enter onto the property where any Collateral is located and take possession
thereof with or without judicial process;




          (iii) prior to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral for disposition in any
manner to the extent Collateral Agent deems appropriate; and




          (iv) without notice except as specified below or under the UCC, sell, assign, lease,
license (on an exclusive or nonexclusive basis) or otherwise dispose of the









 



27



Collateral or any part thereof in one or more parcels at public or private sale, at any of Collateral
Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or
times and at such price or prices and upon such other terms as Collateral Agent may deem
commercially reasonable.



          (b) Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral
at any public or private (to the extent to portion of the Collateral being privately sold is of a
kind that is customarily sold on a recognized market or the subject of widely distributed standard
price quotations) sale in accordance with the UCC and Collateral Agent, as Collateral Agent for and
representative of the Secured Parties, shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the Collateral sold at any
such sale made in accordance with the UCC, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Collateral payable by Collateral Agent at such
sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim
or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time
in the future have under any rule of law or statute now existing or hereafter enacted. Each
Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days
notice to such Grantor of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. Collateral Agent shall not be
obligated to make any sale of Collateral regardless of notice of sale having been given.
Collateral Agent may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. Each Grantor agrees that it would not be commercially
unreasonable for Collateral Agent to dispose of the Collateral or any portion thereof by using
Internet sites that provide for the auction of assets of the types included in the Collateral or
that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each
Grantor hereby waives any claims against Collateral Agent arising by reason of the fact that the
price at which any Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if Collateral Agent accepts the first offer
received and does not offer such Collateral to more than one offeree. If the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all the Secured Obligations,
Grantors shall be liable for the deficiency and the reasonable fees of any attorneys employed by
Collateral Agent to collect such deficiency. Each Grantor further agrees that a breach of any of
the covenants contained in this Section will cause irreparable injury to Collateral Agent, that
Collateral Agent has no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section shall be specifically enforceable against
such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that no default has
occurred giving rise to the Secured Obligations becoming due and payable prior to their stated
maturities or payment in full thereof.




          (c) Collateral Agent may sell the Collateral without giving any warranties as to the
Collateral. Collateral Agent may specifically disclaim or modify any warranties of title or the
like. This procedure will not be considered to adversely effect the commercial reasonableness of
any sale of the Collateral.




          (d) Collateral Agent shall have no obligation to marshal any of the Collateral.










 



28


     7.2 Application of Proceeds. Except as expressly provided elsewhere in this Agreement, to the extent permitted
by applicable law, all proceeds received by Collateral Agent in respect of any sale, any collection
from, or other realization upon all or any part of the Collateral shall be applied in full or in
part by Collateral Agent as set forth in the Collateral Trust Agreement.



     7.3 Sales on Credit. If Collateral Agent sells any of the Collateral upon credit, Grantor will be credited only
with payments actually made by purchaser and received by Collateral Agent and applied to
indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral,
Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds of the sale.



     7.4 Deposit Accounts. If any Event of Default under either Indenture shall have occurred and be
continuing, Collateral Agent may apply, to the extent permitted by applicable law, the balance from
any Deposit Account or instruct the bank at which any Deposit Account is maintained to pay the
balance of any Deposit Account to or for the benefit of Collateral Agent.



     7.5 Investment Related Property. Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities
Act and applicable state securities laws, Collateral Agent may be compelled, with respect to any
sale of all or any part of the Investment Related Property conducted without prior registration or
qualification of such Investment Related Property under the Securities Act and/or such state
securities laws, to limit purchasers to those who will agree, among other things, to acquire the
Investment Related Property for their own account, for investment and not with a view to the
distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at
prices and on terms less favorable than those obtainable through a public sale without such
restrictions (including a public offering made pursuant to a registration statement under the
Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private
sale shall be deemed to have been made in a commercially reasonable manner and that Collateral
Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any
Investment Related Property for the period of time necessary to permit the issuer thereof to
register it for a form of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should, agree to so register it.
If Collateral Agent determines to exercise its right to sell any or all of the Investment Related
Property, upon written request, each Grantor shall and shall cause each issuer of any Pledged
Stock to be sold hereunder, each partnership and each limited liability company interests in
which have been pledged hereunder from time to time to furnish to Collateral Agent all such
information as Collateral Agent may request in order to determine the number and nature of
interest, shares or other instruments included in the Investment Related Property which may be sold
by Collateral Agent in exempt transactions under the Securities Act and the rules and regulations
of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.



     7.6 Cash Proceeds. In addition to the rights of Collateral Agent specified in Section 4.3 with respect
to payments of Receivables, all proceeds of any Collateral received by Collateral Agent hereunder
(whether from a Grantor or otherwise) consisting of cash, checks and other near-cash items
(collectively, “Cash Proceeds”): (i) if no Event of Default under any Indenture shall have
occurred and be continuing, shall be returned to the applicable Grantor and (ii) if an Event of
Default under either Indenture shall have occurred and be continuing, may, in the sole discretion
of Collateral Agent, (A) be held by Collateral Agent for the ratable benefit of the Secured
Parties, as collateral security for the Secured Obligations (whether matured or









 



29

unmatured) and/or (B) then or at any time thereafter may be applied by Collateral Agent against the Secured
Obligations then due and owing.




     7.7 Intellectual Property. (a) Anything contained herein to the contrary notwithstanding, to
the extent permitted by applicable law, upon the occurrence and during the continuation of an Event
of Default under either Indenture:




          (i) Collateral Agent shall have the right (but not the obligation) to bring suit or
otherwise commence any action or proceeding in the name of any Grantor, Collateral Agent or
otherwise, in Collateral Agent’s sole discretion, to enforce any Intellectual Property, in
which event such Grantor shall, at the request of Collateral Agent, do any and all lawful
acts and execute any and all documents reasonably required by Collateral Agent in aid of
such enforcement and such Grantor shall promptly, upon demand, reimburse and indemnify
Collateral Agent as provided in Section 10 hereof in connection with the exercise
of its rights under this Section, and, to the extent that Collateral Agent shall elect not
to bring suit to enforce any Intellectual Property as provided in this Section, each
Grantor agrees to use all reasonable measures, whether by action, suit, proceeding or
otherwise, to prevent the infringement of any of the Intellectual Property by others and
for that purpose agrees to diligently maintain any action, suit or proceeding against any
Person so infringing as shall be necessary to prevent such infringement;




          (ii) upon written demand from Collateral Agent, each Grantor shall grant, assign,
convey or otherwise transfer to Collateral Agent an absolute assignment of all of such
Grantor’s right, title and interest in and to the Intellectual Property and shall execute
and deliver to Collateral Agent such documents as are reasonably necessary or appropriate
to carry out the intent and purposes of this Agreement;




          (iii) each Grantor agrees that such an assignment and/or recording shall be applied to
reduce the Secured Obligations outstanding only to the extent that Collateral Agent (or any
Secured Party) receives cash proceeds in respect of the sale of, or other realization upon,
the Intellectual Property;




          (iv) within five (5) Business Days after written notice from Collateral Agent, each
Grantor shall make available to Collateral Agent, to the extent within such Grantor’s power
and authority, such personnel then in such Grantor’s employ as Collateral Agent may
reasonably designate, by name, title or job responsibility, to permit such Grantor to
continue, directly or indirectly, to produce, advertise and sell the products and services
sold or delivered by such Grantor under or in connection with the Trademarks, Trademark
Licenses, such persons to be available to perform their prior functions on Collateral
Agent’s behalf and to be compensated by Collateral Agent at such Grantor’s expense on a per
diem, pro-rata basis consistent with the salary and benefit structure applicable to each as
of the date of such Event of Default;




          (v) Collateral Agent shall have the right to notify, or require each Grantor to
notify, any obligors with respect to amounts due or to become due to such Grantor in
respect of the Intellectual Property, of the existence of the security interest created
herein, to direct such obligors to make payment of all such amounts directly to Collateral
Agent, and, upon such notification and at the expense of such Grantor, to enforce
collection of any such amounts and to adjust, settle or compromise the amount or









 



30



payment thereof, in the same manner and to the same extent as such Grantor might have done;




          (vi) all amounts and proceeds (including checks and other instruments) received by
Grantor in respect of amounts due to such Grantor in respect of the Collateral or any
portion thereof shall be received in trust for the benefit of Collateral Agent hereunder,
shall be segregated from other funds of such Grantor and shall be forthwith paid over or
delivered to Collateral Agent in the same form as so received (with any necessary
endorsement) to be held as cash Collateral and applied as provided by Section 7.6
hereof; and




          (vii) Grantor shall not adjust, settle or compromise the amount or payment of any such
amount or release wholly or partly any obligor with respect thereto or allow any credit or
discount thereon.



          (b) If (i) an Event of Default under either Indenture shall have occurred and, by reason of
cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of
Default under either Indenture shall have occurred and be continuing, (iii) an assignment or other
transfer to Collateral Agent of any rights, title and interests in and to the Intellectual Property
shall have been previously made and shall have become absolute and effective, and (iv) the Secured
Obligations shall not have become immediately due and payable, upon the written request of any
Grantor, Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantor’s
sole cost and expense, such assignments or other transfer as may be necessary to reassign to such
Grantor any such rights, title and interests as may have been assigned to Collateral Agent as
aforesaid, subject to any disposition thereof that may have been made by Collateral Agent;
provided, after giving effect to such reassignment, Collateral Agent’s security interest
granted pursuant hereto, as well as all other rights and remedies of Collateral Agent granted
hereunder, shall continue to be in full force and effect.




          (c) Solely for the purpose of enabling Collateral Agent to exercise rights and remedies under
this Section 7 and at such time as Collateral Agent shall be lawfully entitled to exercise
such rights and remedies, each Grantor hereby grants to Collateral Agent, to the extent it has the
right to do so, an irrevocable, nonexclusive license (exercisable without payment of royalty or
other compensation to such Grantor), subject, in the case of Trademarks, to sufficient
rights to quality control and inspection in favor of such Grantor to avoid the risk of
invalidation of said Trademarks, to use, operate under, license, or sublicense any Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the same may be located.




SECTION 8. CONTINUING SECURITY INTEREST.



          This Agreement shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the payment in full of all Secured Obligations, be binding upon each
Grantor, its successors and assigns, and inure, together with the rights and remedies of Collateral
Agent hereunder, to the benefit of Collateral Agent and its successors, transferees and assigns.
Upon the payment in full of all Secured Obligations, and as otherwise provided in the Collateral
Trust Agreement, the security interest granted hereby shall terminate hereunder and of record and
all rights to the Collateral shall revert to Grantors. Upon any such termination Collateral Agent
shall, at Grantors’ expense, execute and deliver to Grantors such documents as Grantors shall
reasonably request to evidence such termination. Unless an Event of Default under either Indenture
shall have occurred and be continuing, upon request by the Company to Collateral Agent in writing,
Collateral Agent shall release its security interest on any










 



31

Collateral sold or disposed of, as permitted under both Indentures in accordance with Section 7.1 of the Collateral Trust Agreement;
provided that, unless an Event of Default under either Indenture shall have occurred and be
continuing, such security interest shall be automatically released upon any sale, transfer or other
disposition of Collateral by any Grantor to a Person that is not (either before or after the
consummation of such sale, transfer or disposition) the Company or a Guarantor that is permitted by
Section 4.17 of each Indenture (but excluding any transaction subject to Article 11 of each
Indenture where the recipient is required to become the obligor on the Notes or a Guarantor).




SECTION 9. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.



          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. If any Grantor fails to perform any agreement contained
herein, Collateral Agent may itself perform, or cause performance of, such agreement, and the
expenses of Collateral Agent incurred in connection therewith shall be payable by each Grantor in
accordance with the provisions of the Collateral Trust Agreement.




SECTION 10. MISCELLANEOUS.



          Any notice required or permitted to be given under this Agreement shall be given in accordance
with Section 8.2 of the Collateral Trust Agreement. No failure or delay on the part of Collateral
Agent in the exercise of any power, right or privilege hereunder or under any other
Note Document shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other power, right or
privilege. Except as otherwise provided in the Note Documents, the Grantors hereby waive
presentment, demand, protest or any notice (to the extent permitted by applicable law) of any kind
in connection with this Agreement and the other Collateral Documents. All rights and remedies
existing under this Agreement and the other Note Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby. All covenants
hereunder shall be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an exception to, or
would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default under either Indenture if such action is taken or condition exists.
This Agreement shall be binding upon and inure to the benefit of Collateral Agent and Grantors and
their respective successors and assigns. No Grantor shall, except in accordance with Article 11 of
each Indenture, assign any right, duty or obligation hereunder. This Agreement and the other Note
Documents embody the entire agreement and understanding between Grantors and Collateral Agent and










 



32

supersede all prior agreements and understandings between such parties relating to the subject
matter hereof and thereof. Accordingly, the Note Documents may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties. This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to the same document.




          THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAWS).




[Remainder of page intentionally left blank]










 



33


          IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be duly executed
and delivered by their respective officers thereunto duly authorized as of the date first written
above.




	 	 	 	 	 
	 	COLLATERAL AGENT


U.S. BANK NATIONAL ASSOCIATION


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 









 



34

	 	 	 	 	 
	 	GRANTORS


EVERGREEN SOLAR, INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 










 



 




SCHEDULE 4.1

TO PLEDGE AND SECURITY AGREEMENT




GENERAL INFORMATION





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business and Organizational Identification Number of each Grantor:





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Chief Executive	 	 
	Full Legal	 	Type of	 	Jurisdiction of	 	Office/Sole Place	 	 
	Name	 	Organization	 	Organization	 	of Business	 	Organization I.D.#
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 






	(B)	 	Other Names (including any Trade-Name or Fictitious Business Name) under which each Grantor
has conducted business for the past five (5) years:





	 	 	 
	Name of Grantor	 	Trade Name or Fictitious Business Name
	 
	 	 
	 
	 	 






	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business and Corporate Structure within past five (5) years:





	 	 	 	 	 
	Name of Grantor	 	Date of Change	 	Description of Change
	 
	 	 	 	 
	 
	 	 	 	 






	(D)	 	Financing Statements:





	 	 	 
	Name of Grantor	 	Filing Jurisdiction(s)
	 
	 	 
	 
	 	 






	(E)	 	Foreign Approvals:





 












 



 


SCHEDULE 4.2

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 
	Name of Grantor	 	Location of Equipment and Inventory
	 	 	 
	 	 	 











 



 


SCHEDULE 4.4

TO PLEDGE AND SECURITY AGREEMENT




INVESTMENT RELATED PROPERTY




     Pledged Stock:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	% of	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Stock	 	 	 	 	 	 	No. of	 	 	Stock of	 
	 	 	Stock	 	 	Class of	 	 	Certificated	 	 	Certificate	 	 	Par	 	 	Pledged	 	 	the Stock	 
	Grantor	 	Issuer	 	 	Stock	 	 	(Y/N)	 	 	No.	 	 	Value	 	 	Stock	 	 	Issuer	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





     Pledged LLC Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	% of	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding LLC	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Interests of	 
	 	 	Limited	 	 	 	 	 	 	 	 	 	 	 	 	 	 	the Limited	 
	 	 	Liability	 	 	Certificated	 	 	Certificate	 	 	No. of Pledged	 	 	Liability	 
	Grantor	 	Company	 	 	(Y/N)	 	 	No. (if any)	 	 	Units	 	 	Company	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





     Pledged Partnership Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	% of	 
	 	 	 	 	 	 	Type of	 	 	 	 	 	 	 	 	 	 	Outstanding	 
	 	 	 	 	 	 	Partnership	 	 	 	 	 	 	 	 	 	 	Partnership	 
	 	 	 	 	 	 	Interests (e.g.,	 	 	 	 	 	 	Certificate	 	 	Interests of	 
	 	 	 	 	 	 	general or	 	 	Certificated	 	 	No.	 	 	the	 
	Grantor	 	Partnership	 	 	limited)	 	 	(Y/N)	 	 	(if any)	 	 	Partnership	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





     Pledged Trust Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	% of	 
	 	 	 	 	 	 	Class of	 	 	 	 	 	 	 	 	 	 	Outstanding	 
	 	 	 	 	 	 	Trust	 	 	Certificated	 	 	Certificate No.	 	 	Trust Interests	 
	Grantor	 	Trust	 	 	Interests	 	 	(Y/N)	 	 	(if any)	 	 	of the Trust	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 











 



 


     Pledged Debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Outstanding	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Original Principal	 	 	Principal	 	 	 	 	 	 	Maturity	 
	Grantor	 	Issuer	 	 	Amount	 	 	Balance	 	 	Issue Date	 	 	Date	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





     Securities Account:



	 	 	 	 	 	 	 
	 	 	Share of Securities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





     Commodities Accounts:



	 	 	 	 	 	 	 
	 	 	Name of Commodities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





     Deposit Accounts:



	 	 	 	 	 	 	 
	 	 	Name of Depositary	 	 	 	 
	Grantor	 	Bank	 	Account Number	 	Account Name
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 











 



 


SCHEDULE 4.6

TO PLEDGE AND SECURITY AGREEMENT



Additional
Information:






	 	 	 
	Name of Grantor	 	Description
of Letters of Credit
	 	 	 
	 	 	 











 



 


SCHEDULE 4.7

TO PLEDGE AND SECURITY AGREEMENT




INTELLECTUAL PROPERTY





	(A)	 	Copyrights
	 
	(B)	 	Patents
	 
	(C)	 	Trademarks











 



 


     SCHEDULE 4.8



TO PLEDGE AND SECURITY AGREEMENT




	 	 	 
	Name of Grantor	 	Commercial Tort Claims
	 	 	 
	 	 	 











 



 


SCHEDULE 4.10

TO PLEDGE AND SECURITY AGREEMENT










 



 


EXHIBIT A

TO PLEDGE AND SECURITY AGREEMENT




PLEDGE SUPPLEMENT




          This PLEDGE SUPPLEMENT, dated [mm/dd/yy], is delivered pursuant to the AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT, dated as of _________, 2011 (as it may be from time to time amended,
restated, modified or supplemented, the “Security Agreement”), among EVERGREEN SOLAR, INC., the
other Grantors named therein, and U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent. Capitalized
terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the
Security Agreement.




          Grantor hereby confirms the grant to Collateral Agent set forth in the Security Agreement of,
and does hereby grant to Collateral Agent, a security interest in all of Grantor’s right, title and
interest in and to all Collateral to secure the Secured Obligations, in each case whether now or
hereafter existing or in which Grantor now has or hereafter acquires an interest and wherever the
same may be located. Grantor represents and warrants that the attached Supplements to Schedules
accurately and completely set forth all additional information required pursuant to the Security
Agreement and hereby agrees that such Supplements to Schedules shall constitute part of the
Schedules to the Security Agreement.




          IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly executed and
delivered by its duly authorized officer as of [mm/dd/yy].




	 	 	 	 	 
	 	[NAME OF GRANTOR]


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 









 



 


SUPPLEMENT TO SCHEDULE 4.1

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business and Organizational Identification Number of each Grantor:





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Chief Executive	 	 
	Full Legal	 	Type of	 	Jurisdiction of	 	Office/Sole Place	 	 
	Name	 	Organization	 	Organization	 	of Business	 	Organization I.D.#
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 






	(B)	 	Other Names (including any Trade-Name or Fictitious Business Name) under which each Grantor
has conducted business for the past five (5) years:





	 	 	 
	Name of Grantor	 	Trade Name or Fictitious Business Name
	 
	 	 
	 
	 	 






	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business and Corporate Structure within past five (5) years:





	 	 	 	 	 
	Name of Grantor	 	Date of Change	 	Description of Change
	 
	 	 	 	 
	 
	 	 	 	 






	(D)	 	Financing Statements:





	 	 	 
	Name of Grantor	 	Filing Jurisdiction(s)
	 
	 	 
	 
	 	 






	(E)	 	Foreign Approvals











 



 


SUPPLEMENT TO SCHEDULE 4.2

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 
	Name of Grantor	 	Location of Equipment and Inventory
	 	 	 
	 	 	 











 



 


SUPPLEMENT TO SCHEDULE 4.4

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:



Pledged Stock:



Pledged Partnership Interests:



Pledged LLC Interests:



Pledged Trust Interests:



Pledged Debt:



Securities Account:



Commodities Accounts:



Deposit Accounts:










 



 


SUPPLEMENT TO SCHEDULE 4.6

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 
	Name of Grantor	 	Description of Letters of Credit
	 	 	 
	 	 	 











 



 


SUPPLEMENT TO SCHEDULE 4.7

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:





	(A)	 	Copyrights
	 
	(B)	 	Patents
	 
	(C)	 	Trademarks











 



 


SUPPLEMENT TO SCHEDULE 4.8

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 
	Name of Grantor	 	Commercial Tort Claims
	 	 	 
	 	 	 











 



 




EXHIBIT B

TO PLEDGE AND SECURITY AGREEMENT




FORM OF COUNTERPART AGREEMENT




[Date]




[Name]

as Collateral Agent

for the Secured Obligations

in the Pledge and Security Agreement

referred to below




	 	 	 	 	 

	Attn:

	 	 	 	 
	 

	 	 	 	 





[Name of Additional Grantor]



Ladies and Gentlemen:



Reference is made to the Amended and Restated Pledge and Security Agreement dated as of [•], 2011
(as amended, restated, supplemented or otherwise modified from time to time, the “Pledge and
Security Agreement”), among Evergreen Solar, Inc., a Delaware corporation, (the “Company”), the
other Grantors party thereto and U.S. Bank National Association, as Collateral Agent (“Collateral
Agent”). Terms defined in the Pledge and Security Agreement and not otherwise defined herein are
as defined in the Pledge and Security Agreement.



Pursuant to [Section 4.9/5.3] of the Pledge and Security Agreement, the undersigned hereby agrees,
as of the date first above written, to be bound as a Grantor by all of the terms and provisions of
the Pledge and Security Agreement to the same extent as each of the other Grantors. The
undersigned further agrees, as of the date first above written, that each reference in the Pledge
and Security Agreement to a “Grantor” shall also mean and be a reference to the undersigned.



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




	 	 	 	 	 
	 	Very truly yours,
[NAME OF ADDITIONAL GRANTOR]

 	 
	 	By:  	 	 
	 	 	Title: