Exhibit
10.48


 


AMENDMENT
NO. 1

TO

SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTE


 


This AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”)
dated as of March 2, 2010 is entered into by and between FIRST WIND ACQUISITION
IV, LLC, a Delaware limited liability company (“Borrower”) and HSH
NORDBANK AG, NEW YORK BRANCH, (“HSHN” and, in its capacities as lender
(the “Lender”), as collateral agent (the “Collateral Agent”) and
as the administrative agent (the “Administrative Agent”), as
applicable).


 


RECITALS


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Second Amended and Restated Note dated as of July 17, 2009 (the “Note”);
and


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender wish to amend the
Note as set forth hereunder;


 


NOW, THEREFORE, in
consideration of the foregoing and mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:


 


AGREEMENT


 


Section 1.               Definitions.  Capitalized terms used and not otherwise
defined in this Amendment shall have the meanings assigned to such terms in the
Note and the principles of interpretation set forth in Section 1 (b) thereof
shall apply herein.


 


Section 2.               Amendments to Note.


 


(a)           A new definition of “FWH Major
Capital Raise” shall be added in appropriate alphabetical order and shall read
as follows:


 


“FWH Major
Capital Raise” shall mean the closing of the initial public offering of the
common shares of First Wind Holdings (or the resulting parent entity pursuant
to a reorganization entered into in connection with such initial public offering)
or one or more equity or debt (junior to the Lenders, as applicable to the
borrowing entity, on terms substantially similar to those set forth in the
Parent Guaranty) financings closing on or


 

















 


after March 2, 2010
resulting in Net Cash Proceeds of $200,000,000 or more in the aggregate for all
such offerings or financings described above; provided that all Net Cash
Proceeds of such equity or junior debt financing are (i) received by First
Wind Holdings, and (ii) deposited into accounts of First Wind Holdings,
subject to the liens granted by the security agreements in respect of the First
Wind Holdings Loan Agreement.


 


(b)           The definition of “Maturity Date” is
hereby deleted in its entirety and replaced with the following:


 


“Maturity Date”
shall mean the Sheffield Term Loan Maturity Date or Steel Winds II Term Loan
Maturity Date, as applicable.


 


(c)           A new definition of “New TSA” shall
be added in appropriate alphabetical order and shall read as follows:


 


“New TSA”
shall mean any agreement that creates a binding obligation of First Wind
Holdings or any of its majority-owned subsidiaries to purchase turbines,
whether such binding obligation is created by the exercise of an option under a
turbine supply agreement in existence as of March 2, 2010 or by the entry
into a new turbine supply agreement after such date.


 


(d)           A new definition of “New TSA
Obligation” shall be added in appropriate alphabetical order and shall read as
follows:


 


“New TSA
Obligation” shall mean, with respect to any New TSA, (a) the sum of
the amounts actually paid by First Wind Holdings or its majority-owned
subsidiaries under the terms of such New TSA, and the binding obligations of
the Borrower or First Wind Holdings under, or guarantees by the Borrower or
First Wind Holdings of, such New TSA for the early termination thereof less (b) the
original principal amount of Indebtedness incurred (or for which a binding
commitment has been obtained) related to the purchase of such turbines and
without any recourse to the Borrower or First Wind Holdings.


 


(e)           The definition of “Release Event” is
hereby deleted in its entirety and replaced with the following:


 


“Release Event”
means the occurrence of all of the following: (i) the closing after March 2,
2010 of (A) one or more corporate letter of credit facility(ies) the
aggregate binding commitment of which is $30,000,000 or more and each of which
facility is available for drawings of letters of credit for the benefit of all
of First Wind Holdings and its


 


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Affiliates (it being
understood, however, that any letter of credit facility that is solely
available for specific projects or Affiliates does not qualify under this
clause (A), but a corporate letter of credit facility that contains an availability
sublimit with respect to certain projects or Affiliates would qualify under
this clause (A)) or (B) a Subject Disposition or one or more equity or
debt (junior to the Lenders, as applicable to the borrowing entity, on terms
substantially similar to those set forth in the Parent Guaranty) financings
resulting in Net Cash Proceeds of (I) prior to repayment of the
Corresponding Term Loans with respect to the Oakfield Project (as defined in
the FWA Note), $75,000,000 or more in the aggregate for all such transactions
and (II) on and after the repayment of the Corresponding Term Loans with
respect to the Oakfield Project, $30,000,000 or more in the aggregate for all
such transactions; provided that all Net Cash Proceeds of such Subject
Disposition, project financing, or equity or junior debt financing under this
clause (B) are (x) received by First Wind Holdings (or the resulting
parent entity pursuant to a reorganization entered into in connection with such
initial public offering), and (y) deposited into accounts of First Wind
Holdings, subject to the liens granted by the security agreements in respect of
the First Wind Holdings Loan Agreement; and (ii) the Administrative Agent
shall have received a repayment in respect of outstanding Corresponding Term Loans
under the FWA Note in an amount such that, after giving effect to such
repayment, the aggregate outstanding principal amount of such Corresponding
Term Loans for each Turbine thereunder is equal to or less than the applicable
maximum loan amount per kilowatt of capacity of each Turbine that may be
outstanding as of the immediately preceding applicable date as set forth in the
applicable column on Schedule 11 of the FWA Note, upon which repayment the
portion of the Term Loan Commitment shall be terminated pursuant to Section 2.1(c)(ii) of
the FWA Note.


 


(f)            A new definition of “Sheffield Term
Loan” shall be added in appropriate alphabetical order and shall read as
follows:


 


“Sheffield Term
Loan” shall mean each of the Corresponding Term Loans applicable to the
Turbines allocated to the Sheffield Project.


 


(g)           A new definition of “Sheffield Term
Loan Maturity Date” shall be added in appropriate alphabetical order and shall
read as follows:


 


“Sheffield Term
Loan Maturity Date” shall mean the Maturity Date applicable to each
Sheffield Term Loan, which is June 30, 2011.


 


(h)           A new definition of “Steel Winds II
Term Loan” shall be added in appropriate alphabetical order and shall read as
follows:


 


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“Steel Winds II
Term Loan” shall mean each of the Corresponding Term Loans applicable to
the Turbines allocated to the Steel Winds II Project.


 


(i)            A new definition of “Steel Winds II
Term Loan Maturity Date” shall be added in appropriate alphabetical order and
shall read as follows:


 


“Steel Winds II
Term Loan Maturity Date” shall mean the Maturity Date applicable to each
Steel Winds II Term Loan, which is June 30, 2011.


 


(j)            A new definition of “Term Loan Fee”
shall be added in appropriate alphabetical order and shall read as follows:


 


“Term Loan Fee”
shall mean an amount equal to the fee calculation based on the amount of total
outstanding Loans as of each specified date on Schedule 14.


 


(k)           The definition of “Term Loan Maturity
Date” is hereby deleted in its entirety.


 


(l)            The following sentence shall be
added to the end of Section 2(d):


 


The Term Loan Fee shall be
paid in arrears by the Borrower to the Administrative Agent for the account of
each Lender pro rata, on each specified date during
the Loan Availability Period in accordance with Schedule 14.


 


(m)          Section 5(h) is hereby
deleted in its entirety and replaced with the following:


 


Turbine
Supply Document.  (i) The Borrower, First Wind Holdings or
any of its majority-owned subsidiaries shall not enter into any New TSA wherein
the New TSA Obligations actually incurred exceed $15,000,000 in the aggregate
at any given time for all New TSAs; provided, however, that (A) after
the occurrence of either the FWH Major Capital Raise or Release Event, for
every $1,000,000 of New TSA Obligations that the Borrower or First Wind
Holdings irrevocably incurs or commits to incur in excess of $15,000,000, the
Borrower shall make a prepayment of the principal amount of the Corresponding
Term Loans in an amount equal to $5.00 per kilowatt of capacity of each
Turbine, and (B) irrespective of whether the FWH Major Capital Raise or
Release Event has occurred, the restrictions contained in this clause (i) shall
automatically and permanently terminate if the aggregate outstanding principal
amount of the Corresponding Term Loans for each Turbine is equal to or less
than $450.00 per


 


4

















 


kilowatt of capacity of
each Turbine; (ii) the Borrower shall not (and the Borrower shall cause
each Corresponding Project Company not to), without the prior written consent
of the Administrative Agent, cancel or terminate, or accept or consent to a
cancellation or termination of, any Turbine Supply Document to which it is a
party, or (iii) the Borrower shall not (and the Borrower shall cause each
Corresponding Project Company not to), without the prior written consent of the
Administrative Agent, amend, supplement or modify in any material respect, or
enter into any material amendment, supplement or modification to, any Turbine
Supply Document to which it is a party. 
The Borrower shall provide the Administrative Agent promptly after
execution thereof by the Borrower or any Corresponding Project Company, as
applicable, with copies of each Turbine Supply Document and any amendment or
other modification or waiver of compliance with any Turbine Supply Document.


 


(n)           Section 5(r) is hereby
deleted in its entirety and replaced with the following:


 


(r)            Annual Financial
Statements.  The Borrower
shall provide to the Administrative Agent as soon as available and in any event
within 120 days after the end of each fiscal year of the Borrower, First Wind
Holdings and their respective subsidiaries, the audited balance sheet and
related consolidated statements of income, operations and cash flows of the
Borrower, First Wind Holdings and their respective subsidiaries, as of the end
of and for such year, setting forth in each case in comparative form of the
figures for the previous fiscal year, all reported on by an independent public accountant
of recognized national standing (in respect of all time periods subsequent to
the year ending December 31, 2010, without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
income, operations and cash flows of the Borrower, First Wind Holdings and
their respective subsidiaries, in accordance with GAAP consistently applied.


 


(o)           Sections 5(x) and 5(y) are
hereby deleted in their entirety and each Project is hereby deemed to be a
Qualified Project for all purposes under the Note.


 


(p)           Section 5(aa) is hereby deleted
in its entirety and replaced with the following:


 


Turbine
Appraisal.  Prior to each Quarterly Date occurring after
March 31, 2010, with respect to each Turbine for which Corresponding
Term Loans have been made, the Administrative Agent may instruct the
Independent Appraiser to prepare an appraisal of such Turbine (at the Borrower’s
cost) in accordance with the Appraisal Procedure; provided, that no
Turbine may be the


 


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subject of an appraisal
more than once per calendar quarter and more than two times over any twelve
(12) consecutive month period under this Section 5(aa).  The appraisal shall be the basis for
determining the Appraised Value of such Turbine for all purposes of this
Note.  The Administrative Agent shall
deliver a copy of the appraisal to the Borrower no fewer than five (5) Business
Days before such Quarterly Date.


 


(q)           Exhibit A hereto shall be
added as new Schedule 14 to the Note.


 


Section 3.               Fees.  Notwithstanding anything to the contrary
contained in the fee letter between the parties dated December 12, 2008
and the fee letter between the parties dated July 17, 2009, (collectively,
the “Fee Letters”), each party acknowledges and agrees hereunder that
all fees pursuant to the Fee Letters that have not yet been paid shall be due
and payable by the Borrower on or before June 30, 2010.


 


Section 4.               Legal Effect.  This Amendment shall become effective upon
satisfaction, or waiver by HSHN, of each of the following conditions:


 


(a)           Receipt by HSHN of a copy of all
turbine supply agreement entered into by First Wind Acquisition V, LLC and any
and all other turbine supply agreements in connection with which First Wind
Holdings has any actual or contingent payment or guarantee commitments; and


 


(b)           Execution and delivery of this Amendment.


 


This Amendment constitutes
the entire agreement between the parties hereto with respect to the matters
dealt with herein.  All previous
documents, undertakings and agreements, whether verbal, written or otherwise,
between the parties hereto with respect to the subject matter of the Amendment,
are hereby cancelled and superseded and shall not affect or modify any of the
terms or obligations set forth in this Amendment.


 


Section 5.               Miscellaneous.


 


(a)           Reference to and Effect on Note
and Other Basic Documents.  Except as
expressly set forth herein, the Note and the other Basic Documents as
specifically amended by this Amendment shall remain unchanged and in full force
and effect and are hereby ratified and confirmed.  The Borrower acknowledges that neither this
Amendment nor any extension of the Maturity Date nor any agreement to extend
the expiry of any Letter of Credit (whether by amendment, by issuance of a new
letter of credit, or otherwise) constitute any commitment to provide any
additional loans or other extensions of credit, any future waiver or
forbearance, or any additional extensions of time for the repayment of any
debt.  In consideration for the
commitments and extensions of


 


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credit contained in the
Note as amended by this Amendment, the Borrower agrees and covenants that it
will not claim that any current or prior action or course of conduct by the
Lender, the Administrative Agent or the Collateral Agent with respect to any
failure of the Borrower to repay its Loans or other obligations by the Maturity
Date (without giving effect to this Amendment), or any related Event of Default
which has occurred or may hereafter occur, constitutes an agreement or
obligation to continue such action or course of conduct in the future.  The Borrower acknowledges that the Lender,
the Administrative Agent and the Collateral Agent have not made any
commitments, undertakings, waivers or amendments in respect of the Basic Documents
except as expressly set forth in this Amendment.


 


(b)           Governing Law, Etc.  This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York (without regard
to conflict of laws provisions thereof other than Section 5-1401 of the
New York General Obligations Law).  The
Borrower hereby irrevocably and unconditionally submits to the non-exclusive
jurisdiction of any state or federal court sitting in the County of New York,
State of New York over any suit, action or proceeding arising out of or relating
to this Amendment.  Service of process by
the Lenders in any such dispute shall be binding on the Borrower if sent to the
Borrower by registered or certified mail, at the address specified on the
signature page of this Amendment. 
The Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction.


 


EACH PARTY WAIVES ANY RIGHT
IT MAY HAVE TO JURY TRIAL IN ANY ACTION RELATED TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


NO CLAIM SHALL BE MADE BY
ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR
AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS,
EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT,
DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR
IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT OR ANY
ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.


 


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(c)           Counterparts and Facsimile or
Electronic Mail Execution.  This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of this
Amendment by facsimile or by electronic mail shall be equally as effective as
delivery of an original executed counterpart of this Amendment.  Any party delivering an executed counterpart
of this Amendment by facsimile or by electronic mail also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.


 


[Remainder of page intentionally
left blank.]


 


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IN WITNESS WHEREOF, the
Parties have caused this Amendment to be duly executed and delivered as of the
day and year first above written.


 


	
   

  	
  FIRST WIND ACQUISITION
  IV, LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Evelyn Lim

  
	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  First Wind Acquisition, LLC

  
	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
  85 Wells Avenue,
  Suite 305

  
	
   

  	
  Newton, MA  02459

  
	
   

  	
  Attention:

  	
  President

  
	
   

  	
  Facsimile:

  	
  (617) 964-3342

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  
	
   

  	
  85 Wells Avenue,
  Suite 305

  
	
   

  	
  Newton, MA  02459

  
	
   

  	
  Attention:

  	
  General Counsel

  
	
   

  	
  Facsimile:

  	
  (617) 964-3342

  
					



 

















 


	
  HSH NORDBANK AG, NEW YORK
  BRANCH,

  as a Lender, Collateral Agent and Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David Watson

  	
   

  
	
   

  	
  Name:

  	
  David Watson

  	
   

  
	
   

  	
  Title:

  	
  Vice President HSH
  Nordbank AG, NY Branch

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York
  Branch

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  HSH NORDBANK AG, NEW YORK
  BRANCH

  	
   

  
	
  230 Park Avenue

  	
   

  
	
  32nd Floor

  	
   

  
	
  New York, New York
  10169-0005

  	
   

  
	
  Attention:

  	
  Energy - Portfolio
  Management

  	
   

  
	
  Telephone:

  	
  (212) 407-6044 — David
  Watson

  	
   

  
	
  Facsimile:

  	
  (212) 407-6807

  	
   

  
	
   

  	
   

  
	
  with a copy to:

  	
   

  
	
   

  	
   

  
	
  HSH NORDBANK AG, NEW YORK
  BRANCH

  	
   

  
	
  230 Park Avenue

  	
   

  
	
  32nd Floor

  	
   

  
	
  New York, New York
  10169-0005

  	
   

  
	
  Attention: General
  Counsel

  	
   

  
	
  Telephone:

  	
  (212) 407-6152

  	
   

  
	
  Facsimile:

  	
  (212) 407-6811

  	
   

  
					



 

















 


Exhibit A


 


Schedule 14


 


	
  Date

  	
   

  	
  Term Loan Fee

  
	
   

  	
   

  	
   

  
	
  March 2, 2010

  	
   

  	
  1.00% of
  outstanding balance of Loans

  
	
  March 31,
  2010

  	
   

  	
  0.00% of
  outstanding balance of Loans

  
	
  May 15, 2010

  	
   

  	
  1.00% of
  outstanding balance of Corresponding Term Loans related to the Steel Winds II
  Project

  
	
  June 30, 2010

  	
   

  	
  0.25% of
  outstanding balance of Loans

  
	
  September 30,
  2010

  	
   

  	
  0.50% of
  outstanding balance of Loans

  
	
  December 31,
  2010

  	
   

  	
  0.75% of
  outstanding balance of Loans

  
	
  March 31,
  2011

  	
   

  	
  1.00% of
  outstanding balance of Loans