Exhibit 10.50


 


AMENDMENT
NO.3

TO

SECOND AMENDED AND RESTATED GUARANTY


 


This AMENDMENT NO.3 TO
SECOND AMENDED AND RESTATED GUARANTY (this “Amendment”), dated as of March 2,2010,
is entered into by and between First Wind Holdings, LLC, a Delaware limited liability
company (“FWH”) and HSH Nordbank AG, New York Branch (“HSHN”).


 


RECITALS


 


WHEREAS, FWH entered into
that certain Second Amended and Restated Guaranty in favor of HSHN, dated as of
July 17,2009 (the “Guaranty Agreement”);


 


WHEREAS, FWH and HSHN entered
into that certain Amendment No.1 to Second Amended and Restated Guaranty, dated
as of November 30, 2009;


 


WHEREAS, FWH and HSHN
entered into that certain Amendment No.2 to Second Amended and Restated
Guaranty, dated as of December 22,2009; and


 


WHEREAS, FWH and HSHN wish
to further amend the Guaranty Agreement as set forth herein.


 


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 Guaranty Agreement.


 


Section 2.               Amendment to Guaranty
Agreement. Effective on the date hereof, the Guaranty Agreement is hereby
amended as follows:


 


(a)           The definition of “Change
of Control” shall be deleted in its entirety and replaced with the following:


 


“Change of Control”
shall mean an event or any series of events by which (i) the Sponsors
taken together cease to have the power, directly or indirectly, to vote or
direct the voting of membership interests carrying the voting rights to elect
the majority of the 


 

















 


board of directors of the
Guarantor or (ii) the Sponsors taken together cease to own legally and
beneficially, directly or indirectly, at least 50% of the membership or
economic interests of the Guarantor.


 


(b)           The definition of “Permitted
Indebtedness” shall be deleted in its entirety and replaced with the following:


 


“Permitted Indebtedness”
shall mean (a) the Indebtedness under the Basic Documents; (b) Outstanding
HSH Loans and other Indebtedness permitted under the terms of the Outstanding
HSH Loans; (c) “Permitted Indebtedness” (as defined in any FW Credit
Facility) and the financing of any Eligible Qualified Project under a FW Credit
Facility for which the Corresponding Term Loans (as defined in such FW Credit
Facility) have been repaid in full and all excess proceeds of such financing,
if any, are distributed to the Guarantor and deposited in accounts subject to
the lien of the Security Agreements; (d) the guarantees and the loans
entered into prior to the Effective Date as listed on Schedule 5, each
of which is subordinated in all respects to the Guaranteed Obligations; (e) any
refinancings, replacements, refundings, renewals or extensions of the
Indebtedness described in clauses (a) through (d) above and this
clause (e); provided, that the amount of such Indebtedness is not
increased at the time of such refinancing, replacement, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder; (f) trade payables or other similar Indebtedness incurred in
the ordinary course of business if paid when due (taking into account any grace
periods) and in any event within 90 days after the date of the relevant
invoice; (g) intercompany loans between any Project Company or
wholly-owned (direct or indirect) subsidiary of the Guarantor and the
Guarantor, between the Guarantor and FWA or FWA4, or between wholly-owned
(direct or indirect) subsidiaries of the Guarantor; provided, in each
case that such loans are unsecured and are subordinated in all respects to the
Outstanding HSH Loans pursuant to an intercreditor agreement that is similar in
form and in substance to the Intercreditor Agreement; (h) a guarantee by
the Guarantor for certain limited indemnification obligations in connection
with the Agreement for Purchase of Membership Interests, dated as of January 31,
2008, among UPC New York Wind 2, LLC (n/k/a New York Wind II, LLC), UPC New
York Wind 3, LLC (n/k/a 


 


2

















 


New York Wind III, LLC) and
Lehman First Wind Holdings LLC (as successor in interest to Lehman Brothers
Holdings Inc., a Delaware corporation) in an amount not exceeding $20,000,000;
and (i) (x) Indebtedness in respect of capital lease obligations and
purchase money obligations and renewals, refinancings and extensions thereof,
for fixed or capital assets and (y) customary indemnities in connection
with sales by the Guarantor and its Subsidiaries otherwise permitted hereunder,
provided that the aggregate amount of all such Indebtedness in clauses
i(x)-(y) herein at anyone time outstanding shall not exceed $25,000,000
and shall at all times be subordinated to the Guaranteed Obligations on
subordination terms substantially similar to those set forth on Schedule 8;
(j) Indebtedness of the Guarantor in an aggregate amount not to exceed at
any time the positive difference between Minimum Members’ Equity and
$600,000,000; provided, that such Indebtedness shall be subordinated by
terms substantially similar to those set forth on Schedule 8 by its
terms; (k) Indebtedness incurred under the AIMCO Credit Agreement,
including without limitation the Undertaking Agreement, dated as of the date
hereof, entered into by the Guarantor and Wells Fargo, N.A.; and (1) Indebtedness
incurred with respect to (1) the transfer of certain letters of credit for
the Mars Hill Project and the Steel Winds Project to the related Project
Companies or other Affiliates in accordance with the terms of the Holdings Loan
Agreement, including without limitation any guarantee by the Guarantor of such
letters of credit and (2) the establishment of a corporate letter of
credit facility in an amount up to $50,000,000 by the Guarantor or an
Affiliate, including without limitation any guarantee by the Guarantor in
respect of such letter of credit facility; provided, that such
Indebtedness shall be subordinated by terms substantially similar to those set
forth on Schedule 9 by its terms.


 


(c)           Clause (o) of
the definition of “Permitted Liens” shall be deleted in its entirety and
replaced with the following:


 


(i)            as required in
connection with Permitted Indebtedness described in clauses (i) or (j) of
the definition thereof, or (ii) as required in connection with any other
permitted financing of a project owned by the Guarantor or any subsidiary of
the Guarantor if the Net Cash Proceeds of such financing are distributed to
Guarantor and deposited in accounts subject to the lien of the Security
Agreements and applied in accordance with Section 3(d), as
applicable;


 


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(d)           The definition of “Restricted
Payment” shall be deleted in its entirety and replaced with the following:


 


“Restricted Payment”
shall mean any of the following:


 


(a)           (i) any dividend or distribution (in cash, property
or obligations) on, or any other payment or distribution on account of, or any
payment for, or any purchase, redemption, retirement or other acquisition,
directly or indirectly of, any ownership interests in the Guarantor (except (A) any
such dividend or distribution in respect of taxes owed in respect to tax
distributions not to exceed $2,000,000 in the aggregate and (B) any UPC
Wind Partners II Redemption Payment); (ii) any option or warrant for the
purchase or acquisition of any such ownership interests or (iii) the
setting apart of any money for a sinking or other analogous fund for any of the
foregoing; and


 


(b)           (i) any payment (in cash, property or obligations)
with respect to principal or interest on, or any other payment or distribution
on account of, or any payment for, the purchase, redemption, retirement or
other acquisition of, any subordinated debt, except for any payments as may be
expressly permitted by Schedule 8, Schedule 9 or clause (g) of
the definition of “Permitted Indebtedness, as applicable; or (ii) the
setting apart of any money for a sinking or other analogous fund for any of the
foregoing.


 


(e)           Section 3(g) shall
be deleted in its entirety and replaced with the following:


 


Audited Financial
Statements; Reporting. It 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 Guarantor,
(provided that subsequent to an initial public offering of equity securities of
the Guarantor, such 120 day period shall be reduced to 90 days) the audited
balance sheet and related consolidated statements of income, operations and
cash flows of the Guarantor and its subsidiaries as of the end of and for such
year, setting forth in each case 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 


 


4

















 


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 Guarantor and its subsidiaries in
accordance with GAAP consistently applied.


 


(f)            Schedule 3(aa) of
the Guaranty shall be amended by deleting it in its entirety and replacing it
with the following:


 


(aa)         Distributions. Guarantor shall
not make or declare any Restricted Payments without the prior written consent
of the Administrative Agent, unless (i) after giving effect to such
Restricted Payment the Guarantor shall have not less than $600,000,000 of
Minimum Members’ Equity, (ii) the Restricted Payment is distributed solely
from cashflow received by the Guarantor other than proceeds of any
Indebtedness, and (iii) any Restricted Payment shall not exceed the
positive difference of (A) aggregate cashflow other than proceeds of
Indebtedness received by the Guarantor on or after the Effective Date less (B) Restricted
Payments previously made on or after the Effective Date.


 


(g)           The schedule attached
hereto as Exhibit A shall be added to the Agreement as new Schedule 8.


 


(h)           The schedule attached
hereto as Exhibit B shall be added to the Agreement as new Schedule 9.


 


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 the Guaranty Agreement. Except as expressly set forth herein, the
Guaranty Agreement as specifically amended by this Amendment shall remain
unchanged and in full force and effect and hereby is ratified and confirmed.
FWH acknowledges that this Amendment does not 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 contained in 


 


5

















 


the Guaranty
Agreement as amended by this Amendment, FWH agrees and covenants that it will
not claim that any current or prior action or course of conduct by HSHN with
respect to any Events of Default that have occurred or may hereafter occur,
constitutes an agreement or obligation to continue such action or course of
conduct in the future. FWH acknowledges that HSHN has not made any commitments,
undertakings, waivers or amendments 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). FWH
hereby irrevocably and unconditionally submits to the nonexclusive 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 HSHN in any such dispute shall be binding on
FWH if sent to the FWH by registered or certified mail, at the address
specified on the signature page of this Amendment. FWH 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.


 


(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 


 


6

















 


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.


 


(d)           Address for
Notices. The parties acknowledge and agree that the address for notices set
forth on the signature pages to this Amendment shall be the addresses for
all notices delivered in connection with this Amendment or the Guaranty
Agreement and that the addresses set forth on the signature pages to the
Guaranty Agreement shall no longer be effective for notices.


 


[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 HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael U. Alvarez

  
	
   

  	
   

  	
  Name:

  	
  Michael U. Alvarez

  
	
   

  	
   

  	
  Title:

  	
  President and COO

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

   

  First Wind Holdings, LLC

  c/o First Wind Energy, LLC

  179 Lincoln Street, Suite 500

  Boston, MA 02111

  Attention:  President

  Facsimile:  (617) 960-2889

   

  with a copy to:

   

  First Wind Energy, LLC

  179 Lincoln Street, Suite 500

  Boston, MA 02111

  Attention:  General Counsel

  Facsimile:  (617) 960-2889

  



 

















 


	
  HSH NORDBANK AG, NEW YORK
  BRANCH,

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David Watson

  	
   

  
	
   

  	
  Name:

  	
  David Watson

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York
  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 8


 


Terms of
Subordination


 


1.             General.


 


(a)           Unless otherwise expressly provided hereunder, payment of
the principal of Permitted Indebtedness under clause (j) of such definition (“Subordinated
Indebtedness”) and other amounts payable on or in respect of Subordinated
Indebtedness shall be subordinate and subject in right of payment to the prior
payment in full of all Guaranteed Obligations (including without limitation
post-petition interest and postpetition fees and costs, whether or not
allowable in bankruptcy, but excluding certain indemnity or reimbursement
obligations that survive the repayment in full of the underlying Loans and for
which no claim has been asserted) (“Payment in Full”). Subordinated
Indebtedness (excluding interest paid in kind) shall be not incurred if the
principal amount thereof will exceed the applicable aggregate maximum
indebtedness set forth in clause (j) of the definition of Permitted
Indebtedness.


 


(b)           Any lender supplying Subordinated Indebtedness (each, in
such capacity, a “Subordinated Lender”) agrees that, unless and until
Payment in Full, such Subordinated Lender shall not ask, demand, sue for, take
or receive from, by set-off or in any other manner, or retain, payment (in
whole or in part) of its Subordinated Indebtedness from the Guarantor except
(i) as permitted under these subordination provisions and (ii) if no Event of
Default under the Guaranty would result from such a payment.


 


(c)           Each Subordinated Lender agrees that the Guarantor shall
make Payment in Full prior to the payment of principal of its Subordinated
Indebtedness, except as permitted pursuant to Section 4 hereof.


 


(d)           Notwithstanding anything to the contrary contained in this
Guaranty, the Guarantor may pay outstanding principal, together with accrued
and unpaid interest and fees then due, in respect of any Subordinated
Indebtedness (the “Original Debt”) from the proceeds of any new
Subordinated Indebtedness incurred to refinance or replace such Original Debt.


 


2.             Subordinated Maturity Date.
The maturity date of any Subordinated Indebtedness shall be no earlier than
December 31, 2011, which date shall be extended to a date that is no less than
91 days after any new maturity date of the Guaranteed Obligations (the “Subordinated
Maturity Date”).


 

















 


3.             Interest; Subordinated
Payments. No part of the principal of any Subordinated Indebtedness
shall be repaid before the earlier to occur of the Payment in Full of the
Guaranteed Obligations or the Subordinated Maturity Date therefor, unless otherwise
permitted under Section 4 of this Schedule 8. The aggregate
amount of interest required to be paid in cash in respect of any Subordinated
Indebtedness shall not over any twelve (12) consecutive month period exceed an
aggregate amount equal to 13% of the outstanding principal amount of such
Subordinated Indebtedness accrued over such 12-month period, inclusive of any
and all fees payable in connection with such Subordinated Indebtedness (with
original issue discount and fees being equated to interest based on a weighted
average life to maturity of the Subordinated Indebtedness); provided,
that any interest payable in respect of the Subordinated Indebtedness that will
exceed such limitations set forth above shall not be paid unless and until a
holder of membership interests in the Guarantor or one or more of such holder’s
Affiliates performs any of the following:


 


(a)           makes a cash equity capital
contribution to the Guarantor in the form of Cure Equity in the amount of such
excess interest; or


 


(b)           makes a subordinated loan to the
Guarantor in the form of Cure Debt in an amount of such excess interest.


 


For purposes of the
foregoing, the following terms shall have the corresponding meanings:


 


“Cure Debt”
shall mean Indebtedness issued by the Guarantor to the holders of membership
interests in the Guarantor or any of their Affiliates (a) that is subordinated
to the Guaranteed Obligations and in accordance with the terms set forth on
this Exhibit A, and (b) that has no principal amortization, mandatory redemption,
interest payment payable in cash or other cash payment requirements prior to
the date that is six (6) months after the scheduled maturity date of the
Guaranteed Obligations.


 


“Cure Equity”
shall mean membership interests in and issued by the Guarantor for cash to the
holders of membership interests in the Guarantor or any of their Affiliates and
(a) contain no requirement to be purchased, redeemed, retired or defeased (or
any similar requirement) or the payment of any cash dividend, prior to date
that is six (6) months after the scheduled maturity date of the Guaranteed
Obligations and (b) are not subject to any mandatory cash dividend or
distribution requirements prior to the date that is six (6) months after the
scheduled maturity date of the Guaranteed Obligations (except for Tax
Distributions).


 


4.             Principal Payments.
The Guarantor agrees that unless and until Payment in Full, it shall not make
(or cause to be made) any cash payment of 


 

















 


principal on or in respect
of any Subordinated Indebtedness to any Subordinated Lender, except that such
payments may be made (x) to the extent permitted by Section 1(d) of this
Schedule 8 or (y) from funds of the Guarantor that are available to make
a Restricted Payment in accordance with and to the extent permitted by Section
3(aa) of the Guaranty.


 


5.             Payment Upon Dissolution,
Etc. In the event of (a) any insolvency or bankruptcy case or
proceeding or any receivership, liquidation, reorganization or other similar
proceeding in connection therewith, relative to the Guarantor, or (b) any
liquidation, dissolution or other winding up of the Guarantor, whether partial
or complete and whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Guarantor, then and in
any such proceeding, dissolution, liquidation or other winding up or other
event, the Lender shall be entitled to receive Payment in Full before any
Subordinated Lender shall be entitled to receive any payment on account of its
Subordinated Indebtedness (whether in respect of principal, interest, premium,
fees, indemnities, commissions or otherwise) and to that end, any payment or
distribution of any kind or character, whether in cash, property or securities
which may be payable or deliverable in respect of its Subordinated Indebtedness
in any such case, proceeding, dissolution, liquidation or other winding up or
event shall instead be paid or delivered directly to the Lender (or to the
applicable agent on behalf of the Lender) for application to the Guaranteed
Obligations in accordance with the Guaranty, whether or not due, until Payment
in Full.


 


6.             Proceeding Against
Borrowers. Upon the occurrence of an Event of Default giving rise to
the Lender’s rights to make a demand on the Guarantor for payment of all of the
Guaranteed Obligations, no payments of any kind in respect of any Subordinated
Indebtedness shall be permitted and all interest thereafter accruing on the
Permitted Indebtedness shall be capitalized and added to the principal balance
on the Permitted Indebtedness that shall be due and payable no earlier than the
Subordinated Maturity Date thereof. Whether or not any Event of Default shall
exist under the Guaranty, each Subordinated Lender shall not, without the prior
written consent of the Lender, (a) commence an involuntary proceeding against
the Guarantor under a bankruptcy, insolvency or receivership law or (b) take
any grant of collateral security for its Subordinated Indebtedness, which
collateral security also has been pledged as security for the Guaranteed
Obligations.


 


7.             Payment to Lenders of
Certain Amounts Received by each Subordinated Lender. In the event
that any Subordinated Lender receives on account or in respect of its
Subordinated Indebtedness any distribution of assets by the Guarantor or any
Affiliate, or payment by or on behalf of the Guarantor or any Affiliate, of any
kind or character, whether in cash, securities or other 


 

















 


property, other than as permitted
hereunder, each Subordinated Lender shall hold in trust (as property of the
Lender) for the benefit of, and immediately upon receipt thereof, shall pay
over or deliver to the Lender (or to the applicable agent on behalf of the
Lender) such distribution or payment in precisely the form received (except for
the endorsement or assignment by such Subordinated Lender where necessary) for
application in accordance with the Guaranty. In the event of failure of such
Subordinated Lender to make any such endorsement or assignment, the Lender
irrevocably is authorized and empowered by and on behalf of each Subordinated
Lender to make the same.


 


8.             Authorizations to Lender.
Each Subordinated Lender (a) irrevocably authorizes and empowers (without
imposing any obligation on) the Lender (or applicable agent on behalf of the
Lender) to demand, sue for, collect, receive and give receipts for all payments
and distributions on or in respect of its Subordinated Indebtedness which are
required to be paid or delivered to the Lender (or the applicable agent on
behalf of the Lender) as provided herein, and to file and prove all claims
therefor and take all such other action, in the name of such Subordinated
Lender or otherwise, as the Lender (or applicable agent on behalf of the
Lender) may determine to be necessary or appropriate for the enforcement of
these subordination provisions, all in such manner as the Lender shall instruct
or otherwise in accordance with the Guaranty, (b) irrevocably authorizes and
empowers (without imposing any obligation) the Lender to vote the (including,
without limitation, voting its Subordinated Indebtedness in favor of or in
opposition to any matter which may come before any meeting of creditors of the
Guarantor generally or in connection with, or in anticipation of, any
insolvency or bankruptcy case or proceeding, or any proceeding under any laws
relating to the relief of debtors, readjustment of indebtedness, arrangements,
reorganizations, compositions or extensions relative to the Guarantor) in such
manner as the Lender shall instruct or otherwise in accordance with the
Guaranty, and (c) agrees to execute and deliver to the Lender (or applicable
agent on behalf of the Lender) all such further instruments confirming the
above authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and to take all such other action,
as may be requested by the Lender in order to enable the Lender (or the
applicable agent on behalf of the Lender) to enforce all claims upon or in
respect of its Subordinated Indebtedness.


 


9.             Notice. Each
Subordinated Lender agrees, for the benefit of the Lender, that it will give
the Lender (or the applicable agent on behalf of the Lender) prompt notice of
any event of default (as defined under the terms of its Subordinated
Indebtedness) by the Guarantor or any Affiliate in respect of any Subordinated
Indebtedness.


 


10.           No Waiver; Modification to
Senior Debt. No failure on the part of the Lender (or applicable
agent on behalf of the Lender) and no delay in 


 

















 


exercising, any right,
remedy or power hereunder shall operate as a waiver thereof by the Lender, nor
shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or future exercise by the Lender (or applicable agent on
behalf of the Lender) of any other right, remedy or power. Each and every
right, remedy and power granted, by law or other agreement, or allowed to the
Lender shall be cumulative and not exclusive, and may be exercised by the
Lender (or applicable agent on behalf of the Lender) from time to time.


 


At any time, without the
consent of or notice to the Subordinated Lenders, without incurring
responsibility or liability to the Subordinated Lenders and without impairing
or releasing the subordination provided herein or the obligations hereunder of
the Subordinated Lenders, the Lender may do anyone or more of the following:
(a) change the manner, place or terms of payment of or extend the time of
payment of, or renew or alter, the Guaranteed Obligations or any collateral
security therefor, or otherwise amend or supplement in any manner the
Guaranteed Obligations or any instruments evidencing the same or any agreement
under which Guaranteed Obligations are outstanding or the Guaranty; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing the Guaranteed Obligations; (c) release any Person liable in
any manner for the Guaranteed Obligations; and (d) exercise or refrain from
exercising any rights against the Guarantor and any other Person. Each
Subordinated Lender unconditionally waives notice of the incurring of
Guaranteed Obligations or any part thereof.


 


11.           Further Assurances.
Each Subordinated Lender, at its own cost, shall take any further action as the
Lender may reasonably request in order to carry out more fully the intent and
purpose of these subordination provisions, including the undertaking any other
further actions deemed advisable or reasonably required under the laws of the local
jurisdiction to effect the enforceability of these subordination provisions
thereunder.


 

















 


Exhibit B


 


Schedule 9


 


Terms of Corporate
LC Facility Subordination


 


1.             General. The
Guarantor may assume letter of credit reimbursement obligations or provide a
guaranty in respect of letter of credit reimbursement obligations (in either
event, the “Subordinated Guaranty”), provided that (a) the aggregate
liability for which the Guarantor is liable pursuant to the Subordinated
Guaranty may not exceed $50,000,000, and (b) the Subordinated Guaranty
obligations shall be unsecured and subordinated in all respects to the
Guaranteed Obligations and in accordance with the remaining terms of this
Schedule 9. Notwithstanding anything to the contrary contained in this Guaranty,
the Guarantor may pay outstanding principal, together with accrued and unpaid
interest and fees then due, in respect of any Subordinated Guaranty (the “Original
Debt”) from the proceeds of any new Subordinated Guaranty incurred to
refinance or replace such Original Debt or any upon any extension of the
maturity of the Original Debt.


 


2.             Security. The
Subordinated Guaranty shall be unsecured as to the Guarantor and may be secured
only by the Milford project assets and a cash reserve account for the payment
of fees payable to the lenders under the letter of credit facility.


 


3.             Fees; Interest.
All fees, interest and any other amounts payable under the letter of credit
facility shall be on arm’s-length terms and conditions.


 


4.             Guaranty Payments.
The Guarantor agrees that unless and until all of the Guaranteed Obligations
have been paid in full (including without limitation post-petition interest and
post-petition fees and costs, whether or not allowable in bankruptcy, but
excluding certain indemnity or reimbursement obligations that survive the
repayment in full of the underlying Loans and for which no claim has been
asserted) (“Payment in Full”), any cash payment by the Guarantor under
the Subordinated Guaranty shall be allowed, notwithstanding anything to the
contrary contained in the Guaranty, solely to the extent (a) no Event of
Default has occurred and is continuing under the Guaranty at the time of such
payment, (b) any such payment would not cause an Event of Default to occur
under the Guaranty, and (c) any such payment either (I) together with each
previous payment made under this clause (I), does not exceed $15,000,000 in the
aggregate or (II) is made from funds of the Guarantor that are available to
make a Restricted Payment in accordance with and to the extent permitted by Section
3(aa) of the Guaranty.


 

















 


5.             Payment Upon Dissolution,
Etc. In the event of (a) any insolvency or bankruptcy case or
proceeding or any receivership, liquidation, reorganization or other similar
proceeding in connection therewith, relative to the Guarantor or to its assets,
or (b) any liquidation, dissolution or other winding up of the Guarantor,
whether partial or complete and whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of the
Guarantor, then and in any such proceeding, dissolution, liquidation or other
winding up or other event, the Lender shall be entitled to receive Payment in
Full before any letter of credit issuer shall be entitled to receive any
payment on account of the Subordinated Guaranty from the Guarantor on account
of the Subordinated Guaranty (whether in respect of reimbursement obligations,
interest, premium, fees, indemnities, commissions or otherwise) and to that
end, any payment or distribution of any kind or character, whether in cash,
property or securities which may be payable or deliverable by the Guarantor in
respect of the Subordinated Guaranty in any such case, proceeding, dissolution,
liquidation or other winding up or event shall instead be paid or delivered
directly to the Lender (or to the applicable agent on behalf of the Lender) for
application to the Guaranteed Obligations in accordance with the Guaranty,
whether or not due, until Payment in Full.


 


6.             Proceeding Against
Borrowers. Upon the occurrence of an Event of Default giving rise to
the Lender’s rights to make a demand on the Guarantor for payment of all of the
Guaranteed Obligations, no payments of any kind by the Guarantor in respect of
the Subordinated Guaranty shall be permitted. Whether or not any Default shall
exist under the Guaranty, each letter of credit issuer shall not, without the
prior written consent of the Lender, commence any proceeding against the
Guarantor in bankruptcy, insolvency or receivership law.


 


7.             Notice. Each
letter of credit issuer agrees, for the benefit of the Lender, that it will
give the Lender (or the applicable agent on behalf of the Lender) prompt notice
of any default by the Guarantor or any Affiliate in respect of any Subordinated
Guaranty.


 


8.             No Waiver; Modification to
Senior Debt. No failure on the part of the Lender (or applicable
agent on behalf of the Lender) and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof by the Lender, nor shall any
single or partial exercise of any right, remedy or power hereunder preclude any
other or future exercise by the Lender (or applicable agent on behalf of the
Lender) of any other right, remedy or power. Each and every right, remedy and
power granted, by law or other agreement, or allowed to the Lender shall be
cumulative and not exclusive, and may be exercised by the Lender (or applicable
agent on behalf of the Lender) from time to time.


 

















 


At any time, without the
consent of or notice to the letter of credit issuer, without incurring
responsibility or liability to the letter of credit issuer and without
impairing or releasing the subordination provided herein or the obligations hereunder
of the letter of credit issuer, the Lender may do anyone or more of the
following: (a) change the manner, place or terms of payment of or extend the
time of payment of, or renew or alter, the Guaranteed Obligations or any
collateral security therefor, or otherwise amend or supplement in any manner
the Guaranteed Obligations or any instruments evidencing the same or any
agreement under which Guaranteed Obligations are outstanding or the Guaranty;
(b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing the Guaranteed Obligations; (c) release any
Person liable in any manner for the Guaranteed Obligations; and (d) exercise or
refrain from exercising any rights against the Guarantor and any other Person. Each
letter of credit issuer unconditionally waives notice of the incurring of
Guaranteed Obligations or any part thereof.