exv4w11






Exhibit 4.11




FORM OF AMENDED AND RESTATED




COLLATERAL TRUST AGREEMENT




Dated as of [•], 2011




by and among




EVERGREEN SOLAR, INC.




U.S. BANK NATIONAL ASSOCIATION

as Collateral Agent




U.S. BANK NATIONAL ASSOCIATION

as 13% Trustee




and




U.S. BANK NATIONAL ASSOCIATION

as 7.5% Trustee










 



i


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1 Definitions and Other Matters	 	 	2	 
	 
	 	 	 	 	 	 
	SECTION 2 Reserved.	 	 	7	 
	 
	 	 	 	 	 	 
	SECTION 3 Actionable Default; Remedies.	 	 	7	 
	 
	 	 	 	 	 	 
	3.1
	 	Notice of Default; Written Instructions.	 	 	7	 
	 
	 	 	 	 	 	 
	3.2
	 	Remedies.	 	 	8	 
	 
	 	 	 	 	 	 
	3.3
	 	Administration of Trust Property.	 	 	8	 
	 
	 	 	 	 	 	 
	3.4
	 	Reserved.	 	 	9	 
	 
	 	 	 	 	 	 
	3.5
	 	Right to Initiate Judicial Proceedings, etc.	 	 	9	 
	 
	 	 	 	 	 	 
	3.6
	 	Appointment of a Receiver.	 	 	9	 
	 
	 	 	 	 	 	 
	3.7
	 	Exercise of Powers.	 	 	9	 
	 
	 	 	 	 	 	 
	3.8
	 	Control by Holders.	 	 	9	 
	 
	 	 	 	 	 	 
	3.9
	 	Remedies Not Exclusive.	 	 	10	 
	 
	 	 	 	 	 	 
	3.10
	 	Reserved.	 	 	11	 
	 
	 	 	 	 	 	 
	3.11
	 	Limitation on the Collateral Agent's Duties.	 	 	11	 
	 
	 	 	 	 	 	 
	3.12
	 	Limitation by Law.	 	 	11	 
	 
	 	 	 	 	 	 
	3.13
	 	Absolute Rights of Holders.	 	 	11	 
	 
	 	 	 	 	 	 
	SECTION 4 Trust Account, Application Of Moneys.	 	 	12	 
	 
	 	 	 	 	 	 
	4.1
	 	The Trust Account.	 	 	12	 
	 
	 	 	 	 	 	 
	4.2
	 	Control of Trust Account.	 	 	12	 
	 
	 	 	 	 	 	 
	4.3
	 	Investment of Funds Deposited in Trust Account.	 	 	12	 
	 
	 	 	 	 	 	 
	4.4
	 	Application of Moneys in Trust Account.	 	 	13	 
	 
	 	 	 	 	 	 
	4.5
	 	Application of Moneys Distributable to Holders of Notes.	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 5 Agreements With The Collateral Agent.	 	 	14	 












 



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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	5.1
	 	Delivery of Note Documents.	 	 	14	 
	 
	 	 	 	 	 	 
	5.2
	 	Information as to Holders.	 	 	14	 
	 
	 	 	 	 	 	 
	5.3
	 	Compensation and Expenses.	 	 	14	 
	 
	 	 	 	 	 	 
	5.4
	 	Stamp and Other Similar Taxes.	 	 	15	 
	 
	 	 	 	 	 	 
	5.5
	 	Filing Fees, Excise Taxes, etc.	 	 	15	 
	 
	 	 	 	 	 	 
	5.6
	 	Indemnification.	 	 	15	 
	 
	 	 	 	 	 	 
	5.7
	 	Further Assurances; Notation on Financial Statements.	 	 	15	 
	 
	 	 	 	 	 	 
	SECTION 6 The Collateral Agent.	 	 	16	 
	 
	 	 	 	 	 	 
	6.1
	 	Acceptance of Trust.	 	 	16	 
	 
	 	 	 	 	 	 
	6.2
	 	Exculpatory Provisions.	 	 	16	 
	 
	 	 	 	 	 	 
	6.3
	 	Delegation of Duties.	 	 	17	 
	 
	 	 	 	 	 	 
	6.4
	 	Reliance by Collateral Agent.	 	 	17	 
	 
	 	 	 	 	 	 
	6.5
	 	Limitations on Duties of Collateral Agent.	 	 	18	 
	 
	 	 	 	 	 	 
	6.6
	 	Moneys to be Held in Trust.	 	 	18	 
	 
	 	 	 	 	 	 
	6.7
	 	Resignation and Removal of the Collateral Agent.	 	 	18	 
	 
	 	 	 	 	 	 
	6.8
	 	Status of Successors to the Collateral Agent.	 	 	19	 
	 
	 	 	 	 	 	 
	6.9
	 	Merger of the Collateral Agent.	 	 	19	 
	 
	 	 	 	 	 	 
	6.10
	 	Co-Trustee, Separate Trustee.	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 7 Release of Collateral.	 	 	21	 
	 
	 	 	 	 	 	 
	7.1
	 	Conditions to Release; Release Procedure.	 	 	21	 
	 
	 	 	 	 	 	 
	SECTION 8 Miscellaneous.	 	 	21	 
	 
	 	 	 	 	 	 
	8.1
	 	Amendments, Supplements and Waivers.	 	 	21	 
	 
	 	 	 	 	 	 
	8.2
	 	Notices.	 	 	23	 
	 
	 	 	 	 	 	 
	8.3
	 	Headings.	 	 	23	 
	 
	 	 	 	 	 	 
	8.4
	 	Severability.	 	 	24	 












 



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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	8.5
	 	Treatment of Payee or Indorsee by the Collateral Agent.	 	 	24	 
	 
	 	 	 	 	 	 
	8.6
	 	Dealings with the Trustors.	 	 	24	 
	 
	 	 	 	 	 	 
	8.7
	 	Claims Against the Collateral Agent.	 	 	24	 
	 
	 	 	 	 	 	 
	8.8
	 	Binding Effect.	 	 	24	 
	 
	 	 	 	 	 	 
	8.9
	 	Termination.	 	 	25	 
	 
	 	 	 	 	 	 
	8.10
	 	Governing Law.	 	 	25	 
	 
	 	 	 	 	 	 
	8.11
	 	Counterparts.	 	 	25	 
	 
	 	 	 	 	 	 
	Exhibit A
	 	-                    Form of Supplement to Trust Agreement	 	 	 	 












 



 


          AMENDED
AND RESTATED COLLATERAL TRUST AGREEMENT (this “Agreement”) dated as of [•], 2011, by
and among Evergreen Solar, Inc., a Delaware corporation
(“Company”, in its own capacity and as
successor-in-interest to ESLR1, LLC), the Additional Trustors (as defined in Section 5.7) (and
together with Company, the “Trustors”), and U.S. Bank National Association (together with its
agents, successors and assigns, the “Collateral Agent”), as collateral agent hereunder for the
holders of the Secured Obligations, U.S. Bank National Association (together with its agents,
successors and assigns, the “13% Trustee”), as trustee under the 13% Indenture, and U.S. Bank
National Association (together with its agents, successors and assigns, the “7.5% Trustee”; the
7.5% Trustee together with the 13% Trustee, the “Trustees”), as trustee under the 7.5% Indenture.
Capitalized terms not otherwise defined shall have the meanings set forth in Section 1 below.



Preliminary Statements:




          (1) Company issued $165,000,000 of its 13% Convertible Senior Secured Notes due 2015 (the “13%
Notes”) pursuant to an Indenture dated as of April 26, 2010 (as supplemented or replaced from time
to time, the “13% Indenture”) among Company, ESLR1, LLC, the sole guarantor subsidiary party
thereto (which has since been merged with and into the Company), and the 13% Trustee. In
connection with the issuance of the 13% Notes, Company, such guarantor subsidiary, the Collateral
Agent and the 13% Trustee entered into that certain Collateral Trust Agreement dated as of April
26, 2010 (as modified and supplemented and in effect immediately prior to the date hereof, the
“Existing Collateral Trust Agreement”).



          (2) Company will issue $[•] of its 7.5% Convertible Senior Secured Notes due 2015 (the “7.5%
Notes” and, together with the 13% Notes, the “Notes”) pursuant to an Indenture dated as of the date
hereof (as supplemented or replaced from time to time, the “7.5% Indenture” and, together with the
13% Indenture, the “Indentures”) among Company, the Additional Trustors and the 7.5% Trustee. It
is a condition precedent to issuance of the 7.5% Notes that Company enters into this Agreement and
the other 7.5% Note Documents in order to secure the payment of its obligations under the 7.5%
Indenture and all other Secured Obligations.



          (3) Company has requested that the Collateral Agent and 13% Trustee agree to amend and restate
the Existing Collateral Trust Agreement, and the Collateral Agent and Trustees are willing to amend
and restate the Existing Collateral Trust Agreement, to (among other things) add the 7.5% Trustee
as a party hereto, add certain obligations of Company and the Additional Trustors under the 7.5%
Notes and 7.5% Indenture as Secured Obligations, and set forth their agreement with respect to the
relative rights and remedies of the 13% Holders and 7.5% Holders regarding the Collateral and the
application of proceeds of the Collateral, all as provided herein.



          (4) The Collateral Agent’s security interest in the Collateral will continue to secure the
payment of all of the Secured Obligations.



          (5) Accordingly, the parties hereto agree to amend and restate the Existing Collateral Trust
Agreement so that, as amended and restated, it reads in its entirety as provided herein.



Declaration of Trust:




          NOW THEREFORE, in order to secure the Secured Obligations and in consideration of the premises
and the mutual agreements set forth herein, the Collateral Agent hereby reaffirms and re-declares
that it holds as Collateral Agent in trust under this Agreement all of its right, title and
interest in,









 



2

to and under all the following (and Company and the Additional Trustors, if any, do hereby
consent thereto):





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




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



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



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



          PROVIDED, HOWEVER, that these presents are upon the condition that if Company and the
Additional Trustors, if any, and their successors or assigns, shall satisfy all of the conditions
set forth in Section 7, then this Agreement, and the estates and rights (or portion thereof, as
applicable) assigned in the Collateral Documents, shall cease, terminate and be void; otherwise
they shall remain and be in full force and effect.



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



SECTION 1

Definitions and Other Matters




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



          (b) In each case herein where “Holders” are entitled to vote on any matter or to instruct the
Collateral Agent, the 7.5% Trustee shall so vote or instruct the Collateral Agent on behalf of the
holders of the 7.5% Notes. In each case herein where any payment or distribution is to be made or
notice is to be given to “Holders,” such payments, distributions and notices in respect of the 7.5%
Notes shall be made to the 7.5% Trustee for the benefit of the holders thereof pursuant to the
terms of the 7.5% Indenture.



          (c) In each case herein where “Holders” are entitled to vote on any matter or to instruct the
Collateral Agent, the 13% Trustee shall so vote or instruct the Collateral Agent on behalf of the
holders of the 13% Notes. In each case herein where any payment or distribution is to be made or









 



3

notice is to be given to “Holders,” such payments, distributions and notices in respect of the
13% Notes shall be made to the 13% Trustee for the benefit of the holders thereof pursuant to the
terms of the 13% Indenture.




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




     “7.5% Collateral Documents” means the “Collateral Documents” as such term is defined in
the 7.5% Indenture.




     “7.5% Excluded Obligations” means all obligations of the Company and the Additional
Trustors to pay any make-whole amounts in respect of the 7.5% Notes upon their conversion
pursuant to the 7.5% Indenture in cash.




     “7.5% Holders” means the registered holders of the 7.5% Notes.




     “7.5% Indenture Full Release Event” means receipt by the Collateral Agent of written
notice from the 7.5% Trustee that the obligations under the 7.5% Notes and the 7.5%
Indenture have been paid in full pursuant to the provisions of Article 14 of the 7.5%
Indenture.




     “7.5%
Note Documents” means the “Note Documents” as such term is defined in the 7.5%
Indenture.




     “7.5% Secured Obligations” means all obligations of the Company and the Additional
Trustors from time to time arising under or in respect of the 7.5% Indenture, the 7.5%
Notes, the “Note Guaranties” (as such term is defined in the 7.5% Indenture), the 7.5%
Collateral Documents and any other 7.5% Note Document (including the obligations to pay
principal, interest and all other charges, fees, expenses, commissions, reimbursements,
premiums, indemnities and other payments related to or in respect of the obligations
contained any 7.5% Note Document), excluding however (unless a 13% Release Event has
occurred) all 7.5% Excluded Obligations, in each case whether (a) such obligations are
direct or indirect, secured or unsecured, joint or several, absolute or contingent, reduced
to judgment or not, liquidated or unliquidated, disputed or undisputed, legal or equitable,
due or to become due whether at “Stated Maturity” (as such term is defined in the 7.5%
Indenture), by acceleration or otherwise; (b) arising in the regular course of business or
otherwise; (c) for payment or performance; (d) discharged, stayed or otherwise affected by
any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Company
or any Additional Trustor or any other Person; or (e) now existing or hereafter arising
(including interest and other obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization or similar proceeding with respect to the Company or
any Additional Trustor or any other Person, or that would have arisen or accrued but for the
commencement of such proceeding, even if such obligation or the claim therefor is not
enforceable or allowable in such proceeding), but with respect to all of the foregoing,
excluding however (unless a 13% Release Event has occurred) all 7.5% Excluded Obligations.
For avoidance of doubt, if a 13% Release Event has occurred, then all 7.5% Excluded
Obligations shall constitute 7.5% Secured Obligations.









 



4



     “13% Collateral Documents” means the “Collateral Documents” as such term is defined in
the 13% Indenture.




     “13% Holders” means the registered holders of the 13% Notes.




     “13% Indenture Full Release Event” means receipt by the Collateral Agent of written
notice from the 13% Trustee that the obligations under the 13% Notes and the 13% Indenture
have been paid in full pursuant to the provisions of Article 14 of the 13% Indenture.




     “13% Note Documents” means the “Note Documents” as such term is defined in the 13%
Indenture.




     “13% Release Event” means either (i) a 13% Indenture Full Release Event or (ii) receipt
by the Collateral Agent of written notice from the 13% Trustee that 13% Holders of at least
75% of Principal Amount (as such term is defined in the 13% Indenture) of 13% Notes then
outstanding have consented to the release of all or substantially all of the Collateral.




     “13% Secured Obligations” means all obligations of the Company and the Additional
Trustors from time to time arising under or in respect of the 13% Indenture, the 13% Notes,
the “Note Guaranties” (as such term is defined in the 13% Indenture), the 13% Collateral
Documents and any other 13% Note Document (including the obligations to pay principal,
interest and all other charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the obligations contained any 13%
Note Document), in each case whether (a) such obligations are direct or indirect, secured or
unsecured, joint or several, absolute or contingent, reduced to judgment or not, liquidated
or unliquidated, disputed or undisputed, legal or equitable, due or to become due whether at
“Stated Maturity” (as such term is defined in the 13% Indenture), by acceleration or
otherwise; (b) arising in the regular course of business or otherwise; (c) for payment or
performance; (d) discharged, stayed or otherwise affected by any bankruptcy, insolvency,
reorganization or similar proceeding with respect to the Company or any Additional Trustor
or any other Person; or (e) now existing or hereafter arising (including interest and other
obligations arising or accruing after the commencement of any bankruptcy, insolvency,
reorganization or similar proceeding with respect to the Company or any Additional Trustor
or any other Person, or that would have arisen or accrued but for the commencement of such
proceeding, even if such obligation or the claim therefor is not enforceable or allowable in
such proceeding).




     “Actionable Default” means an Actionable 7.5% Default or an Actionable 13% Default.




     “Actionable 7.5% Default” means the non-payment at scheduled final maturity of the 7.5%
Notes (or the declaration prior to their stated final maturity that all of 7.5% Notes are
due and payable pursuant to Section 10.02 of the 7.5% Indenture or the automatic
acceleration of the 7.5% Notes pursuant to Section 10.02 of the 7.5% Indenture); provided
that upon delivery of a Notice of Actionable 7.5% Default, the Collateral Agent may assume
that an Actionable 7.5% Default shall be deemed to be continuing unless the Notice of
Actionable 7.5% Default delivered with respect thereto shall have been withdrawn in a
writing delivered to the Collateral Agent by the 7.5% Trustee or the Majority Holders prior
to the first date on which the Collateral Agent commences the exercise of any remedy with
respect to the Collateral following the receipt of such Notice of Actionable 7.5% Default.









 



5



     “Actionable 13% Default” means the non-payment at scheduled final maturity of the 13%
Notes (or the declaration prior to their stated final maturity that all of 13% Notes are due
and payable pursuant to Section 10.02 of the 13% Indenture or the automatic acceleration of
the 13% Notes pursuant to Section 10.02 of the 13% Indenture); provided that upon delivery
of a Notice of Actionable 13% Default, the Collateral Agent may assume that an Actionable
13% Default shall be deemed to be continuing unless the Notice of Actionable 13% Default
delivered with respect thereto shall have been withdrawn in a writing delivered to the
Collateral Agent by the 13% Trustee or the Majority Holders prior to the first date on which
the Collateral Agent commences the exercise of any remedy with respect to the Collateral
following the receipt of such Notice of Actionable 13% Default.




     “Bankruptcy Proceeding” means that Company or any Additional Trustor, if any, shall
generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against Company or any Additional
Trustor, if any, seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, administrator or other similar official for it or for any substantial part of its
property and assets and, in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of at least 60 consecutive days
or any of the actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property and assets) shall occur; or
any event or action analogous to or having a substantially similar effect to any of the
events or actions set forth above in this definition (other than a solvent reorganization)
shall occur under the law of any jurisdiction applicable to Company or any Additional
Trustor, if any; or Company or any Additional Trustor, if any, shall take any corporate,
partnership, limited liability company or other similar action to authorize any of the
actions set forth above in this definition.




     “Business Day” means any day except a Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to close or be closed.




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




     “Collateral Documents” means, collectively, the 7.5% Collateral Documents and the 13%
Collateral Documents.




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




     “Event of Default” means an “Event of Default” under and as defined in either
Indenture.









 



6



     “Existing Trust Account” means the “Trust Account” established under and as defined in
the Existing Collateral Trust Agreement.




     “Holders” mean, collectively, the 7.5% Holders and the 13% Holders.




     “Indenture Full Release Event” means any 7.5% Indenture Full Release Event or 13%
Indenture Full Release Event.




     “Lien” means any lien, mortgage, pledge, assignment for security, security interest or
charge of any kind (including any conditional sale or other title retention agreement and
any lease in the nature thereof) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.




     “Majority Holders” means, as of any date, (a) the Holders of Notes representing more
than 50% of the aggregate unpaid principal amount of all Notes outstanding at such time or
(b) the 7.5% Trustee and/or the 13% Trustee acting on behalf of such 7.5% Holders and 13%
Holders, respectively, which collectively constitute the Holders described in clause (a) of
this definition.




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




     “Note Documents” means, collectively, the 7.5% Note Documents and the 13% Note
Documents.




     “Notice of Actionable Default” means a written notice to the Collateral Agent from the
Majority Holders or the applicable Trustee(s) in respect of any Actionable Default; provided
that upon delivery of a Notice of Actionable Default, the Collateral Agent may assume that
an Actionable Default shall be deemed to be continuing unless the Notice of Actionable
Default delivered with respect thereto shall have been withdrawn in a writing delivered to
the Collateral Agent by the Majority Holders prior to the first date on which the Collateral
Agent commences the exercise of any remedy with respect to the Collateral following the
receipt of such Notice of Actionable Default.




     “Notice of Actionable 7.5% Default” means a written notice to the Collateral Agent from
the 7.5% Trustee in respect of any Actionable 7.5% Default.




     “Notice of Actionable 13% Default” means a written notice to the Collateral Agent from
the 13% Trustee in respect of any Actionable 13% Default.




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




     “Person” means an individual, a corporation, a partnership, a limited liability
company, an association, a trust or any other entity, including a government or political
subdivision or an agency or instrumentality thereof.









 



7



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




     “Secured Obligations” means, collectively, the 7.5% Secured Obligations and the 13%
Secured Obligations.




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




     “Security Agreement” means the Amended and Restated Pledge and Security Agreement dated
as of the date hereof, and any successor or replacement thereof, among Company, the
Additional Trustors and the Collateral Agent.




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



SECTION 2




Reserved.




SECTION 3




Actionable Default; Remedies.




          3.1 Notice of Default; Written Instructions.



          Upon receipt of a Notice of Actionable 7.5% Default given by the 7.5% Trustee, the Collateral
Agent shall, within five days thereafter, notify the 13% Trustee that an Actionable 7.5% Default
exists. Upon receipt of a Notice of Actionable 13% Default given by the 13% Trustee, the
Collateral Agent shall, within five days thereafter, notify the 7.5% Trustee that an Actionable 13%
Default exists. Upon receipt of a Notice of Actionable Default given by the Majority Holders, the
Collateral Agent shall, within five days thereafter, notify the Trustees that an Actionable Default
exists. Upon receipt of any written directions pursuant to Section 3.8(a), the Collateral Agent
shall, within five days thereafter, send a copy thereof to the Trustees.









 



8


          3.2 Remedies.



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



          3.3 Administration of Trust Property.



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




          (i) accept, enter into, hold, maintain, administer and enforce all Collateral
Documents, including all Collateral subject thereto, and all Liens created thereunder,
perform its obligations under the Collateral Documents and protect, exercise and enforce the
interests, rights, powers and remedies granted or available to it under, pursuant to or in
connection with the Collateral Documents;




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




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




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




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




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




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



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









 



9


          3.4 Reserved.



          3.5 Right to Initiate Judicial Proceedings, etc.



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




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




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



          3.6 Appointment of a Receiver.



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



          3.7 Exercise of Powers.



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



          3.8 Control by Holders.



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



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









 



10


          3.9 Remedies Not Exclusive.



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



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



          (c) In case the Collateral Agent shall have proceeded to enforce any right, remedy or power
under this Agreement or any Collateral Document and the proceeding for the enforcement thereof
shall have been discontinued or abandoned for any reason or shall have been determined adversely to
the Collateral Agent, then and in every such case the Trustors, the Collateral Agent and the
Holders shall, subject to any determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder and under such Collateral Document with
respect to the Trust Estate and in all other respects, and thereafter all rights, remedies and
powers of the Collateral Agent shall continue as though no such proceeding had been taken.



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









 



11


          3.10 Reserved.



          3.11 Limitation on the Collateral Agent’s Duties.



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



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



          3.12 Limitation by Law.



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



          3.13 Absolute Rights of Holders.



          Notwithstanding any other provision of this Agreement (other than Section 3.2) or any
provision of any Collateral Document, but subject to the provisions of the applicable Indentures,
the right of each Holder, which is absolute and unconditional, to receive payments of the Secured
Obligations held by such Holder on or after the due date thereof as therein expressed, to seek
adequate protection in respect of its interest in this Agreement and the Collateral, to institute
suit for the enforcement of such payment on or after such due date, or to assert its position and
views as a secured creditor in a Bankruptcy Proceeding, or the obligation of the Trustors, which is
also absolute and unconditional, to pay the Secured Obligations to the Holders at the time and
place expressed therein shall not be impaired or affected without the consent of such Holder.

















 





 12




SECTION 4




Trust Account, Application Of Moneys.




          4.1 The Trust Account.




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




          4.2 Control of Trust Account.




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




          4.3 Investment of Funds Deposited in Trust Account.




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




          (b)   The Collateral Agent may invest funds on deposit in the Trust Account in Permitted
Investments. “Permitted Investments” means such investments as may be specified from time to time
by written instruction from the Company, which instructions may be given only if an Event of
Default does not then exist; provided, such investments are consistent with the Collateral
Agent’s investment criteria, including without limitation, direct obligations of the United States
government having maturities of 90 days or less, money market deposit accounts with United States
banks, which may include the Collateral Agent, whose short-term debt ratings are not less than
A-1/P-1, money market funds that invest solely in direct obligations of the United States
government and repurchase agreements. The Collateral Agent or any of its affiliates may receive
compensation with respect to any investment directed hereunder. The Collateral Agent will act upon
investment instructions the day that such instructions are received, provided that the
requests are communicated within a sufficient amount of time to allow the Collateral Agent to make
the specified investment. Instructions received after an applicable investment cutoff deadline
will be treated as being received by the Collateral Agent on the next business day, and the
Collateral Agent shall not be liable for any loss arising directly or indirectly, in whole or in












 



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part, from the inability to invest funds on the day the instructions are received. The
Collateral Agent shall not be liable for any loss incurred by the actions of third parties or for
any loss arising by error, failure or delay in the making of an investment or reinvestment, and the
Collateral Agent shall not be liable for any loss of principal or income in connection therewith,
unless such error, failure or delay results from the Collateral Agent’s gross negligence or willful
misconduct. The Collateral Agent shall not be liable for any loss of principal or income due to
the choice of Permitted Investments in which any moneys received by it hereunder are invested or
the choice of Permitted Investments converted into cash pursuant to this Section 4.3(b).




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




          4.4 Application of Moneys in Trust Account.





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




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




               Second: To the Trustees, ratably in proportion to the respective amounts of
unpaid principal of the Notes outstanding, for application to the payment in full of all
outstanding Secured Obligations, whether or not due and payable to the Secured Parties
(which shall then be applied or held by the Trustees in such order as may be provided in the
applicable Indentures); and




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



          4.5 Application of Moneys Distributable to Holders of Notes.




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













 



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




SECTION 5




Agreements With The Collateral Agent.




          5.1 Delivery of Note Documents.




          Within 10 days after the date hereof, Company will deliver to the Collateral Agent a true and
complete copy of each Note Document then in effect (except for 13% Note Documents that were
delivered to the Collateral Agent prior to the date hereof). The Company agrees that, promptly
upon the execution thereof, Company will deliver to the Collateral Agent a true and complete copy
of (i) any and all amendments, modifications or supplements to any Note Document, and (ii) any Note
Documents entered into subsequent to the date hereof. Unless and until the Collateral Agent
actually receives such copies it shall not be deemed to have knowledge of them.




          5.2 Information as to Holders.




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





          (i) the aggregate amount outstanding under the 7.5% Notes, and the aggregate amount
outstanding under the 13% Notes,




          (ii) the interest rates then in effect under the 7.5% Notes and the 13% Notes; and




          (iii) to the extent known to Company, the names of the holders of the 7.5% Notes and
the 13% Notes outstanding thereunder and the unpaid principal amount owing to each such
holder of 7.5% Notes and 13% Notes.



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




          5.3 Compensation and Expenses.




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





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









 



15



          (ii) all of the fees, costs and expenses of the Collateral Agent (including, without
limitation, the reasonable fees and disbursements of such counsel and such special counsel
as the Collateral Agent elects to retain) (A) arising in connection with the preparation,
execution, delivery, modification and termination of this Agreement and each Collateral
Document or the enforcement of any of the provisions hereof or thereof or (B) incurred or
required to be advanced in connection with the administration of the Trust Estate, the sale
or other disposition of Collateral pursuant to any Collateral Document and the preservation,
protection or defense of the Collateral Agent’s rights under this Agreement and in and to
the Collateral and the Trust Estate.



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




          5.4 Stamp and Other Similar Taxes.




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




          5.5 Filing Fees, Excise Taxes, etc.




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




          5.6 Indemnification.




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




          5.7 Further Assurances; Notation on Financial Statements.




          (a)   At any time and from time to time, upon the written request of the Collateral Agent, and,
at the sole expense of the Trustors, the Trustors will promptly execute and deliver any and all
such further instruments and documents and take such further action as the Collateral Agent
reasonably deems












 



16



necessary or desirable in obtaining the full benefits of this Agreement, the Collateral
Documents and the Indenture and of the rights and powers herein and therein granted. To the extent
required by law, the Trustors shall, in all of their financial statements, indicate by footnote or
otherwise that the Secured Obligations are secured pursuant to this Agreement and the Collateral
Documents.




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




SECTION 6




The Collateral Agent.




          6.1 Acceptance of Trust.




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




          6.2 Exculpatory Provisions.




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




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




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













 



17




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




          6.3 Delegation of Duties.




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




          6.4 Reliance by Collateral Agent.




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




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




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




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













 



18




          6.5 Limitations on Duties of Collateral Agent.




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




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




          6.6 Moneys to be Held in Trust.




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




          6.7 Resignation and Removal of the Collateral Agent.




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




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













 



19




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




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




          6.8 Status of Successors to the Collateral Agent.




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




          6.9 Merger of the Collateral Agent.




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




          6.10 Co-Trustee, Separate Trustee.




          (a)   If at any time or times it shall be necessary or prudent in order to conform to any law of
any jurisdiction in which any of the Collateral shall be located, or the Collateral Agent shall be
advised by counsel, satisfactory to it, that it is so necessary or prudent in the interest of the
Holders, or the Majority Holders shall in writing so request the Collateral Agent and the Trustors,
or the Collateral Agent shall deem it desirable for its own protection in the performance of its
duties hereunder, the Collateral












 



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Agent and the Trustors shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust Company, or one or more persons approved by the
Collateral Agent and the Trustors, either to act as co-trustee or co-trustees of all or any of the
Collateral, jointly with the Collateral Agent originally named herein or any successor or
successors, or to act as separate trustee or trustees of any such property. In the event the
Trustors shall not have joined in the execution of such instruments and agreements within 30 days
after the receipt of a written request from the Collateral Agent so to do, or in case an Actionable
Default shall have occurred and be continuing, the Collateral Agent may act under the foregoing
provisions of this Section 6.10 without the concurrence of the Trustors, and the Trustors hereby
appoint the Collateral Agent as its agent and attorney to act for it under the foregoing provisions
of this Section 6.10 in either of such contingencies.




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





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




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




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




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




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









 



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that the Collateral Agent shall have appointed a separate trustee or separate trustees
or co-trustee or co-trustees as above provided, it may at any time, by an instrument in
writing, accept the resignation of or remove any such separate trustee or co-trustee, the
successor to any such separate trustee or co-trustee to be appointed by the Trustors and the
Collateral Agent, or by the Collateral Agent alone, as provided in this Section 6.10.



SECTION 7




Release of Collateral.




          7.1 Conditions to Release; Release Procedure.




          (a)   All of the Collateral shall be released when the Collateral Agent shall have received
both (i) written notice from the 7.5% Trustee that a 7.5% Indenture Full Release Event has occurred
and (ii) written notice from the 13% Trustee that a 13% Indenture Full Release Event has occurred;
provided that all of the Collateral shall not be released unless and until all Collateral Agent’s
Fees shall have been paid in full.




          (b)   From time to time during the term of this Agreement, one or more portions of Collateral
shall be released as soon as practicable after the date upon which the Collateral Agent shall have
received written notice from the 7.5% Trustee and the 13% Trustee advising the Collateral Agent
that such Collateral is to be released pursuant to clauses (1) through (5) of Section 9.02 of the
7.5% Indenture and 13% Indenture, respectively.




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




SECTION 8




Miscellaneous.




          8.1 Amendments, Supplements and Waivers.




          (a)   With the written consent of the Trustees, the Collateral Agent and the Trustors may, from
time to time, enter into written agreements among them supplemental hereto for the purpose of
adding to or waiving any provision of this Agreement or any Collateral Document or changing in any












 



22



manner the rights of the Collateral Agent, the Holders or the Trustors hereunder or
thereunder; provided, however, that no such supplemental agreement shall,





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




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




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




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



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




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





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




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




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




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




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









 



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



          8.2 Notices.




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




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




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




          (c)   If to the 7.5% Trustee, to it at its address at 633 West Fifth Street, 24th
Floor, Los Angeles, California 90071, Attention: Corporate Trust Services (Evergreen Solar 7.5%
Convertible Senior Secured Notes due 2017), Fax: (213) 615-6197, or at such other address as shall
be designated by it in writing to the Collateral Agent.




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




          (d)   Any notice given to any 7.5% Holder shall also be given to the 7.5% Trustee. Any notice
given to any 13% Holder shall also be given to the 13% Trustee.



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




          8.3 Headings.




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













 



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          8.4 Severability.




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




          8.5 Treatment of Payee or Indorsee by the Collateral Agent.




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




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




          8.6 Dealings with the Trustors.




          (a)   Upon any application or demand by any Trustor to the Collateral Agent to take or permit
any action under any of the provisions of this Agreement, such Trustor shall furnish to the
Collateral Agent a certificate of a Responsible Officer stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such particular application or
demand, no additional certificate or opinion need be furnished.




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




          8.7 Claims Against the Collateral Agent.




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




          8.8 Binding Effect.




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













 



25




          8.9 Termination.




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




          8.10 Governing Law.




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




          8.11 Counterparts.




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




[The remainder of this page is intentionally left blank]















 





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




	 	 	 	 	 
	 	Collateral Agent



U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	7.5% Trustee



U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	13% Trustee



U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





 27




	 	 	 	 	 
	 	The Company



EVERGREEN SOLAR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





Exhibit A to the

Collateral Trust Agreement




FORM OF SUPPLEMENT TO TRUST AGREEMENT




[Date]




U.S. Bank National Association,

as the Collateral Agent

for the Secured Obligations

in the Collateral Trust Agreement

referred to below

Attn: Corporate Trust Department

(Evergreen Solar 13% Convertible Senior Secured Notes due 2015

And Evergreen Solar 7.5% Convertible Senior Secured Notes due 2017)




[Name of Additional Trustor]



Ladies and Gentlemen:




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




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




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




	 	 	 	 	 
	 	Very truly yours,



[NAME OF ADDITIONAL TRUSTOR]

 	 
	 	By:  	 	 
	 	Title: