Exhibit
10.52


 


EXECUTION VERSION


 


AMENDMENT NO. 4

TO

FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE


 


This AMENDMENT NO. 4 TO
FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”),
dated as of June 30, 2010, is entered into by and between FIRST WIND
ACQUISITION, LLC, a Delaware limited liability company (“Borrower”) and
HSH NORDBANK AG, NEW YORK BRANCH, (“HSHN”, 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 Fourth Amended and Restated Secured Promissory Note, dated as of July 17,
2009 (the “Note”);


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Amendment No. 1 to Fourth Amended and Restated Secured Promissory
Note, dated as of November 30, 2009;


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Amendment No. 2 to Fourth Amended and Restated Secured Promissory
Note, dated as of December  22, 2009;


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Consent and Amendment No. 3 to Fourth Amended and Restated Secured
Promissory Date dated as of March 2, 2010; and


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender wish to further 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 “KWP II Project” shall be added in appropriate
alphabetical order and shall read as follows:


 


“KWP II Project”
shall have the meaning assigned to such term in Schedule 4.


 


(b)                                 Schedule 11 is hereby deleted in its entirety and replaced with the
schedule attached hereto as Exhibit A.


 


(c)                                  Schedule 12 is hereby deleted in its entirety and replaced with the
schedule attached hereto as Exhibit B.


 


Section 3.                                           Legal Effect.  This Amendment shall become effective as of
the date hereof.  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 4.                                           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
of any of the Corresponding Term Loans 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 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 


 


2

















 


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.


 


3

















 


(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.]


 


4

















 


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, LLC

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn Lim

  
	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
  FIRST WIND ACQUISITION, LLC

  
	
   

  	
  c/o First Wind Energy, LLC

  
	
   

  	
  179 Lincoln Street, Suite 500

  
	
   

  	
  Boston, MA 02111

  



 


Signature Page to


Amendment No. 4 to Fourth Amended and Restated Promissory Note (FWA)


 

















 


	
  HSH
  NORDBANK AG, NEW YORK BRANCH,

  	
   

  
	
  as
  a Lender, Collateral Agent and Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David Watson

  	
   

  
	
   

  	
  Name:

  	
  David Watson

  	
   

  
	
   

  	
  Title:

  	
  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

  	
   

  



 


Signature Page to


Amendment No. 4 to Fourth Amended and Restated Promissory Note (FWA)


 

















 


Exhibit A


 


Schedule 11


 


Maximum Outstanding Loan per kw


 


	
   

  	
   

  	
  Release Event

  No FWH Major Capital Raise

  	
   

  	
  FWH Major Capital Raise with

  or

  without Release Event

  	
   

  
	
  in $/kw

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  As of March 2, 2010

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  750

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  625

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  750

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  750

  	
   

  
	
  September 1, 2010

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  675

  	
  *

  	
  $

  	
  500

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  450

  	
  *

  
	
  September 30, 2010

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  450

  	
   

  
	
  January 15, 2011

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  300

  	
   

  	
  $

  	
  0

  	
   

  
	
  April 15, 2011

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  0

  	
   

  
	
  May 15, 2011

  	
   

  	
  $

  	
  333

  	
   

  	
  $

  	
  267

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  233

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 15, 2011

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  133

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  117

  	
   

  	
  $

  	
  83

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  



 


Deduction for lack of full 24
month warranty coverage


 


	
   

  	
   

  	
  Release Event

  No FWH Major Capital Raise

  	
   

  	
  FWH Major Capital Raise with

  or

  without Release Event

  	
   

  
	
  in $/kw

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  As of March 2, 2010

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  750

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  625

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  750

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  575

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  475

  	
   

  	
  $

  	
  375

  	
   

  	
  $

  	
  750

  	
   

  
	
  September 1, 2010

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  575

  	
   

  	
  $

  	
  650

  	
  *

  	
  $

  	
  475

  	
   

  	
  $

  	
  375

  	
   

  	
  $

  	
  425

  	
  *

  
	
  September 30, 2010

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  575

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  425

  	
   

  	
  $

  	
  325

  	
   

  	
  $

  	
  425

  	
   

  
	
  January 15, 2011

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  0

  	
   

  
	
  April 15, 2011

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  300

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  150

  	
   

  	
  $

  	
  0

  	
   

  
	
  May 15, 2011

  	
   

  	
  $

  	
  233

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  133

  	
   

  	
  $

  	
  67

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 15, 2011

  	
   

  	
  $

  	
  67

  	
   

  	
  $

  	
  33

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  17

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  



 






* Payment of the Corresponding Term Loans for the
Oakfield Project shall occur on September 1, 2010.


 

















 


Exhibit B


 


Schedule 12


 


	
   

  	
   

  	
  Term Loan Fee

  
	
  Quarterly Date

  	
   

  	
  Corresponding Term Loans

  for the KWP II Project and

  Rollins Project

  	
   

  	
  Corresponding Term Loans

  for the Oakfield Project

  
	
  March 2,
  2010

  	
   

  	
  1.00%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.00%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  March 31,
  2010

  	
   

  	
  0.00%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.00%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Amendment
  Closing Date]

  	
   

  	
  0.00%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.50%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 30,
  2010

  	
   

  	
  0.25%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.25%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  September 30,
  2010

  	
   

  	
  0.50%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.50%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2010

  	
   

  	
  0.75%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  0.25%
  of outstanding balance of Corresponding Term Loans

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  March 31,
  2011

  	
   

  	
  1.00%
  of outstanding balance of Corresponding Term Loans

  	
   

  	
  N/A