Exhibit 10.31


 


UNIT REDEMPTION AGREEMENT


 


This
Unit Redemption Agreement, dated
as of April 28, 2006, is by and between UPC Wind Partners II, LLC (“UPC Holding”)  and UPC Wind
Partners, LLC (the “Company”),  each a Delaware limited
liability company.


 


UPC
Holding is the owner of 51,000,000 Series A Units of the Company. The
Company and UPC Holding desire that the Company redeem 42,972,114 Series A
Units (the  “Redeemed Units”)  upon the terms
and subject to the conditions of this Agreement.


 


Accordingly,
the parties agree as follows:


 


ARTICLE I. REDEMPTION OF THE REDEEMED UNITS.


 


Section 1.1            Sale of Redeemed Units.  Simultaneously with the execution and delivery of this Agreement,
UPC Holding shall, and hereby does sell, convey, assign, transfer, deliver, set
over to and vest in the Company, its successors and assigns, all of UPC
Holding’s right, title and interest, legal and equitable, in and to the
Redeemed Units free and clear of all Liens (as defined in Section 2.3).


 


Section 1.2            Delivery of Redeemed Units.  The Redeemed
Units are uncertificated, and the execution and delivery of this Agreement by
each of the parties thereto, together with the appropriate actions by the
officers of the Company to reflect the redemption on the books of the Company,
shall be sufficient to effect UPC Holding’s delivery, and the Company’s receipt
of and title to, of the Redeemed Units.


 


Section 1.3            Redemption Price for Redeemed Units.  As consideration for the transaction described in Section 1.1,
the Company shall make payments to UPC Holdings as follows: (1) $32,972,114
in cash, paid concurrently with the execution and delivery of this Agreement,
and (ii) one or more future cash payments (the “Contingent Payments”),  which shall be payable
(without duplication) no later than 30 days after the date the commercial
operation date certificate (a “COD Certificate”) is executed with respect to
any wind power project listed on Schedule 1 or any other
wind power project developed by, contributed to or acquired by the Company
after the date hereof (which shall not include the wind power project in Mars
Hill, Maine or operated by Kaheawa Wind Power, LLC) (each a “Development Project”),  in amounts equal to $33,333
per megawatt of installed capacity at such Development Project as reflected in
such COD Certificate; provided, that the aggregate amount of such Contingent Payments shall not exceed $10,000,000.
The amounts payable hereunder shall be payable by the Company to UPC Holding, at the election of UPC
Holding, by check or by wire transfer to an account designated by UPC Holding.


 


ARTICLE II. REPRESENTATIONS AND WARRANTIES OF UPC HOLDING


 


UPC
Holding represents and warrants as of the date hereof to the Company as
follows:


 


Section 2.1            Organization,
Power and Authority.  UPC Holding is
a limited liability company duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has all requisite
limited liability company power and authority to execute and


 

















 


deliver
this Agreement and to perform its obligations hereunder, and the execution,
delivery and performance by UPC Holding of this Agreement have been duly
authorized by all necessary action. The persons party to the Non-Competition
Agreement attached as Exhibit A hereto constitute all of the persons holding
a direct, indirect, legal and/or beneficial ownership interest in equity of UPC
Holding.


 


Section 2.2            Authorization.  UPC Holding
has all requisite limited liability company power and authority to execute and
deliver this Agreement and to carry out the provisions of this Agreement. All
limited liability company action on the part of UPC Holding and its officers,
managers and members necessary for the authorization, execution and delivery of
this Agreement, and the performance of all obligations of UPC Holding
hereunder, has been taken. This Agreement has been duly and validly executed
and delivered and constitutes, assuming this Agreement has been duly
authorized, executed and delivered by the other party hereto, valid and legally
binding obligations of UPC Holding, enforceable in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other
Laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by Laws
relating to the availability of specific
performance, injunctive relief or other equitable remedies. “Law” means any
applicable constitutional provisions, statute, act, code, common law,
regulation, rule, ordinance, order, decree, ruling, proclamation, resolution,
judgment, decision, declaration, or interpretation or advisory opinion or
letter of a domestic, foreign or international governmental authority.


 


Section 2.3            No Conflicts.  The execution, delivery
and performance by UPC Holding of this Agreement and the transactions
contemplated hereby will not (a) conflict with or result in, with or
without the passage of time or giving of notice or both, any breach,
default or loss of rights under, or
acceleration of, or give rise to any right of termination, rescission,
acceleration or modification under, any mortgage, indenture, contract, lease,
agreement, charter document (including the Limited Liability Company Agreement of
UPC Holding), instrument, judgment,
decree, order, writ, statute, rule or regulation, license or permit or
(b) result in the creation of any Liens upon any of the properties or assets of
UPC Holding. “Lien”  means (i) any lien, hypothecation, pledge, collateral assignment,
security interest, charge or encumbrance of any kind, whether such
interest is based on the common law, statute or contract, and whether such
obligation or claim is fixed or contingent (including any agreement to give any
of the foregoing) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing and (ii) any purchase
option, right of first refusal, call or similar right of a third party.


 


Section 2.4            Redeemed Units.  UPC Holding is the record and beneficial
owner of the Redeemed Units. The Redeemed Units are UPC Holding’s only
membership interest of any nature in the Company. The transfer to the
Company by UPC Holding of the Redeemed Units in accordance with this Agreement
will pass to the Company good and marketable title to the Redeemed Units, and
all other incidents of record and beneficial ownership pertaining thereto, free
and clear of any Liens. None of the Redeemed Units is subject to any voting
trust or other contract, agreement,
arrangement, commitment or understanding, written or oral, restricting or otherwise relating to the
voting or disposition of the Redeemed Units, other than this Agreement and the
Limited Liability Company Agreement of the Company. No proxies or powers of
attorney have been granted with respect to the Redeemed Units. Except as
contemplated herein, there are no outstanding warrants, options, agreements,
convertible or exchangeable securities or


 


2

















 


other
commitments pursuant to which UPC Holding is or may become obligated to sell any of the Redeemed Units.


 


Section 2.5            Litigation.  There is no
action, suit, claim, proceeding, investigation or other legal, administrative
or arbitrational proceeding pending or, to the knowledge of UPC Holding,
threatened against UPC Holding or its affiliates, or against any officer,
manager or director of UPC Holding or its affiliates nor, to the knowledge of
UPC Holding, has there occurred any event nor does there exist any condition on
the basis of which any material litigation, proceeding or investigation might
properly be instituted, in each case related to the transactions contemplated
hereby. Neither UPC Holding nor any of its affiliates is a party or subject to
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality relating to the transactions contemplated hereby.


 


Section 2.6            Governmental Authorizations.  No consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Governmental Authority is required
on the part of UPC Holding or any of its affiliates in connection with the
execution, delivery and performance by UPC Holding of this Agreement. “Governmental Authority” means
any federal, state, local or foreign government or any court, arbitral tribunal,
administrative or regulatory agency, or other governmental authority, agency or
instrumentality.


 


Section 2.7            Acknowledgement.  UPC Holding
acknowledges that it has made its own analysis of the fairness of the
transactions contemplated hereby and has not relied on any advice or
recommendation by the Company or its members, managers, officers or affiliates
with respect to its decision to enter into this Agreement and to consummate the
transactions contemplated hereby. UPC Holding has had sufficient opportunity to
investigate and review the business, management and financial affairs of the
Company, and has had sufficient access to management of the Company, before its
decision to enter into this Agreement. UPC Holding acknowledges that, in
connection with its entry into this Agreement
and consummation of the transactions contemplated hereby, (i) UPC
Holding has not relied on any representations or warranties of the Company, or
any member, manager, officer, affiliate or representative of the Company,
except for the representations or warranties of the Company set forth in Article III
and (ii) UPC Holding has made an independent decision to sell its Redeemed
Units pursuant to this Agreement.


 


ARTICLE III. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY. 


 


The
Company represents and warrants to UPC Holding as of the date hereof as
follows:


 


Section 3.1            Organization, Power and Authority.  The Company is a limited liability company duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation and has all requisite limited liability company power and authority
to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and
performance by the Company of this Agreement have been duly authorized by all
necessary action.


 


Section 3.2            Authorization.  The
Company has all requisite limited liability company power and authority to
execute and deliver this Agreement and to carry out the provisions of this


 


3

















 


Agreement.
All limited liability company action on the part of the Company and its
officers, managers and members necessary for the authorization, execution and
delivery of this Agreement, and the performance of all obligations of the Company
hereunder, has been taken. This Agreement has been duly and validly executed
and delivered and constitutes, assuming this Agreement has been duly
authorized, executed and delivered by the other party hereto, valid and legally
binding obligations of the Company, enforceable in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other Laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by Laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies.


 


ARTICLE IV. SIMULTANEOUS DELIVERIES.


 


Section 4.1            Deliveries of UPC Holding.  UPC Holding shall deliver
the following  documents to the
Company concurrently with the effectiveness of this Agreement:


 


(a)           Secretary’s Certificate.  A
certificate, in form and substance reasonably satisfactory to the Company,
executed by an appropriate officer of UPC Holding and dated as of the date
hereof, certifying as to the incumbency of the officer executing this Agreement
and the other documents contemplated hereby on its behalf and as to the
authenticity of his or her signature, as to the correctness and accuracy of the
representations of UPC Holding contained in this Agreement as of the date
hereof, and as to the accuracy and completeness of the copies of the
authorizing resolutions and the limited liability company documents of UPC
Holding that shall be attached to such certificate.


 


(b)           Good Standing Certificate.  A certificate
of the Delaware Secretary of State, dated not more than 5 days prior to the
date hereof, as to the existence and good standing of such entity of UPC
Holding.


 


(c)           Non-Competition Agreement.  A fully
executed Non-Competition Agreement in the form attached hereto as Exhibit A
from UPC Holding and the other parties listed therein.


 


Section 4.2            Deliveries of the Company.  The Company
shall deliver the following documents to UPC Holding concurrently with the
effectiveness of this Agreement:


 


(a)           Secretary’s Certificate.  A certificate,
in form and substance reasonably satisfactory to UPC Holding, executed by an
appropriate officer of the Company and dated as of the date hereof, certifying
as to the incumbency of the officer executing this Agreement and the other
documents contemplated hereby on its behalf and as to the authenticity of his
or her signature, as to the correctness and accuracy of the representations of
the Company contained in this Agreement as of the date hereof, and as to the
accuracy and completeness of the copies of the authorizing resolutions and the
limited liability company documents of the Company that shall be attached to
such certificate.


 


(b)           Good Standing Certificate.  A certificate of the Delaware Secretary of State, dated not more than 5 days
prior to the date hereof, as to the
existence and good standing of such entity of the Company.


 


4

















 


ARTICLE V. INDEMNIFICATION.


 


Section 5.1            Indemnification by the Company.  UPC Holding
shall indemnify the Company, its affiliates, members (other than UPC Holding),
managers, officers, subsidiaries and successors from, against, for and in
respect of all damages, losses, obligations, liabilities, claims, actions and
reasonable costs and expenses (including, without limitation, reasonable
attorneys’, accountants’ and other professional fees and expenses) sustained,
suffered or incurred by the Company or any of its affiliates (other than UPC
Holding), members, managers, officers, subsidiaries or successors, as a result
of a breach by UPC Holding of any representation, warranty or agreement of UPC
Holding pursuant to or contained in this Agreement.


 


Section 5.2            Indemnification of UPC Holding.  The Company shall indemnify each of UPC Holding,
and its affiliates (other than the Company and the Company’s subsidiaries) and
successors, from, and against, for and in respect of all damages, losses,
obligations, liabilities, claims, actions, and reasonable costs and expenses
(including, without limitation, reasonable attorneys’, accountants’ and other
professional fees and expenses) sustained, suffered or incurred by UPC Holding, or any of its
affiliates (other than the Company and the Company’s subsidiaries) or
successors, as a result of a breach of any representation, warranty or
agreement of the Company contained in or made pursuant to this Agreement.


 


Section 5.3            Survival.  All representations and warranties contained in this Agreement shall
survive the execution and delivery of this
Agreement.


 


Section 5.4            Remedies Cumulative.  The remedies
provided for in this Article V shall be cumulative and shall not preclude
assertion by the indemnified parties of any other rights or the seeking of any
other remedies against the indemnifying parties.


 


ARTICLE VI. MISCELLANEOUS.


 


Section 6.1            No Third-Party Beneficiaries.  Except as provided in Sections 5.1 and 5.2, nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the parties hereto and their respective heirs, permitted
successors, permitted assigns or legal representatives any legal or equitable
right, remedy or claim under, in or in respect of this Agreement or any
provision herein contained, except to the extent expressly provided in this
Agreement.


 


Section 6.2            Amendment; Waiver.  This Agreement
may not be amended, modified, supplemented, or restated, nor may any provision
of this Agreement be waived, other than through a written instrument adopted,
executed and agreed to by the parties hereto.


 


Section 6.3            Further Assurances.  In connection
with this Agreement and the
transactions contemplated hereby, the Company and UPC Holding shall execute and
deliver all such future instruments and take such further action as may be
reasonably necessary or appropriate to carry out the provisions of this
Agreement and the intention of the parties.


 


Section 6.4            Notices.  All notices,
claims, certificates, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or if sent by nationally recognized overnight courier, by telecopy,
or by


 


5

















 


registered or certified mail, return receipt
requested and postage prepaid, addressed to the address that any such party may
designate by written notice to the other party): 


 


Section 6.5            Entire Agreement;
Supersede.  This Agreement, and any other writings
referred to herein or delivered pursuant hereto, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior contracts, agreements and understandings, whether oral
or written, between the parties with respect to the subject matter hereof.


 


Section 6.6            Governing Law.  THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.


 


Section 6.7            Headings.  The
descriptive headings used herein are inserted for convenience of reference
only, do not constitute a part of this Agreement, and shall not affect in any
manner the meaning or interpretation of this Agreement. 


 


Section 6.8            Counterparts.  This
Agreement may be executed in any number of counterparts (including facsimile
counterparts), all of which together shall constitute a single instrument.


 


[signature
page follows]


 


6

















 


IN WITNESS WHEREOF, UPC
Holding and the Company have duly executed this Agreement as of the date first
written above.


 


	
   

  	
  UPC HOLDING:

  
	
   

  	
  UPC WIND PARTNERS II, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Peter Gish

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  COMPANY:

  
	
   

  	
  UPC
  WIND PARTNERS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Peter Gish

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 














 


Schedule 1

Existing Development Projects


 


UPC Wind Partners, LLC

Existing Development Projects


 


UNITED STATES


 


	
  Project

  	
   

  	
  MW

  	
   

  	
  State

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fire
  Island

  	
   

  	
  70

  	
   

  	
  AK

  
	
  Fry
  Rodman

  	
   

  	
  100

  	
   

  	
  CA

  
	
  Mojave
  Green

  	
   

  	
  100

  	
   

  	
  CA

  
	
  West
  Granite Range

  	
   

  	
  40

  	
   

  	
  CA

  
	
  Bristol
  Range

  	
   

  	
  200

  	
   

  	
  CA

  
	
  Kaheawa
  II

  	
   

  	
  20

  	
   

  	
  HI

  
	
  Kaheawa
  III

  	
   

  	
  20

  	
   

  	
  HI

  
	
  North
  Shore

  	
   

  	
  30

  	
   

  	
  HI

  
	
  South
  Point

  	
   

  	
  21

  	
   

  	
  HI

  
	
  Kauai

  	
   

  	
  11

  	
   

  	
  HI

  
	
  Lanai/Molokai

  	
   

  	
  200

  	
   

  	
  HI

  
	
  Oakfield

  	
   

  	
  75

  	
   

  	
  ME

  
	
  Bagley
  Mountain

  	
   

  	
  50

  	
   

  	
  ME

  
	
  Stetson
  Mountain

  	
   

  	
  75

  	
   

  	
  ME

  
	
  Lyman

  	
   

  	
  30

  	
   

  	
  NH

  
	
  Cambridge

  	
   

  	
  60

  	
   

  	
  NH

  
	
  North
  Country Phase 2

  	
   

  	
  100

  	
   

  	
  NH

  
	
  Bloody
  Run Hills

  	
   

  	
  100

  	
   

  	
  NV

  
	
  Prattsburgh

  	
   

  	
  75

  	
   

  	
  NY

  
	
  Cohocton

  	
   

  	
  82

  	
   

  	
  NY

  
	
  Cohocton
  II

  	
   

  	
  42

  	
   

  	
  NY

  
	
  GenWy

  	
   

  	
  200

  	
   

  	
  NY

  
	
  Seven
  Mile Hill

  	
   

  	
  60

  	
   

  	
  OR

  
	
  Lakeview

  	
   

  	
  100

  	
   

  	
  OR

  
	
  Mile
  High Ranch

  	
   

  	
  100

  	
   

  	
  TX

  
	
  Milford

  	
   

  	
  200

  	
   

  	
  UT

  
	
  Milford
  Wind II

  	
   

  	
  200

  	
   

  	
  UT

  
	
  Sheffield

  	
   

  	
  52

  	
   

  	
  VT

  
	
  Windham

  	
   

  	
  50

  	
   

  	
  VT

  



 


 


CANADA


 


	
  Project

  	
   

  	
  MW

  	
   

  	
  Province

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Garvie
  Mountain

  	
   

  	
  30

  	
   

  	
  NB

  
	
  Proton

  	
   

  	
  100

  	
   

  	
  ON

  
	
  Cahill

  	
   

  	
  50

  	
   

  	
  ON

  
	
  North
  Bay

  	
   

  	
  10

  	
   

  	
  ON

  
	
  Highlands

  	
   

  	
  50

  	
   

  	
  NS

  



 

















 


Exhibit A

Form of Non-Competition Agreement


 

















 


[See Tab 17]