Exhibit 10.53


 


Execution Version


 


 


COMMON AGREEMENT


 


 


dated as of July 26,
2010


 


 


among


 


 


KAHUKU WIND POWER, LLC, as
Borrower


 


 


U.S. DEPARTMENT OF ENERGY,
as Guarantor and Loan Servicer,


 


 


and


 


 


MIDLAND LOAN SERVICES, INC.,
as Collateral Agent


 


 


Kahuku Wind Project

Oahu, Hawaii


 

















 


Table of Contents


 


	
  ARTICLE 1 DEFINITIONS; RULES OF INTERPRETATION

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1.

  	
  Definitions

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  1.2.

  	
  Rules of Interpretation

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  1.3.

  	
  Conflict with DOE Credit Facility Documents

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2
  FUNDING

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1.

  	
  Financial Plan; Advance Schedule

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2.2.

  	
  Availability of Advances

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2.1.

  	
  Availability

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2.2.

  	
  Loan Commitment Reductions and Cancellations

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.3.

  	
  Mechanics for Requesting Advances

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3.1.

  	
  Master Advance Notice

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.4.

  	
  Mechanics for Funding Advances

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.1.

  	
  Funding of Advances

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.2.

  	
  Equity Contributions

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.3.

  	
  Drawstop Notices

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.4.

  	
  No Liability

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.5.

  	
  Advance Requirements under the DOE Credit Facility Documents

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  2.6.

  	
  No Approval of Work

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3
  PAYMENTS; PREPAYMENTS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1.

  	
  Place and Manner of Payments

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.1.

  	
  Collateral Agency Agreement

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.2.

  	
  Net of Tax, Etc.

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.2.

  	
  Interest Provisions Relating to All Advances

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2.1.

  	
  Interest Account and Interest Computations

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2.2.

  	
  Interest Payment Dates

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.3.

  	
  FFB Loan Transfer

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3.1.

  	
  Illegality

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3.2.

  	
  Increased Costs

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3.3.

  	
  Alternate Office; Minimization of Costs

  	
   

  	
  11

  



 


i

















 


	
  3.4.

  	
  Prepayments

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4.1.

  	
  Terms of
  all Prepayments

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4.2.

  	
  Voluntary
  Prepayments

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4.3.

  	
  Mandatory
  Prepayments

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.5.

  	
  Payment of
  DOE Credit Facility Fees

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  3.6.

  	
  Evidence
  of Debt

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4
  CONDITIONS PRECEDENT

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1.

  	
  Conditions
  Precedent to Financial Closing Date

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.1.

  	
  Loan
  Documents

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.2.

  	
  Project
  Documents

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.3.

  	
  Advance
  Schedule

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.4.

  	
  Financial
  Plan; Base Case Projections; Project Milestone Schedule and Construction
  Budget

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.5.

  	
  Financial
  Statements

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.6.

  	
  Update of
  Conditional Commitment

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.7.

  	
  Update of
  Credit Rating

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.8.

  	
  Coverage
  Ratios

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.9.

  	
  Pre-Closing
  Equity; No Unapproved Charges for Budgeted Contingencies

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.10.

  	
  Consents
  and Approvals

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.11.

  	
  Reports

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.12.

  	
  Consultants’
  and Advisors’ Certificates

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.13.

  	
  Fee
  Arrangements for Independent Consultants

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.14.

  	
  Construction
  Contract Price

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.15.

  	
  Notice to
  Proceed; Conditions Precedent to Construction Contracts

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.16.

  	
  Market
  Study

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.17.

  	
  Security
  Interests

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.18.

  	
  Borrower
  Certificate; Kahuku Holdings Certificate; Sponsor Certificate; Project
  Operator Certificate; Solvency Certificate

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.19.

  	
  Legal
  Opinions

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.20.

  	
  Taxes;
  Costs and Expenses

  	
   

  	
  24

  



 


ii

















 


	
   

  	
  4.1.21.

  	
  Evidence
  of Insurance

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.22.

  	
  Third-Party
  Materials Supply Agreements

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.23.

  	
  Project
  Accounts

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.24.

  	
  Lobbying
  Certification

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.25.

  	
  Title to
  Project Site

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.26.

  	
  Environmental

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.27.

  	
  Earthquake
  Risk Assessment

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.28.

  	
  Utility
  Services

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.29.

  	
  Conditions
  Precedent in DOE Credit Facility Documents

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.30.

  	
  Conditions
  Precedent in Transaction Documents

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.31.

  	
  DOE
  Requirements

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.32.

  	
  Confirmation
  of Non-Disclosure and Assignment of Inventions Agreements

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.33.

  	
  No
  Litigation

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.34.

  	
  Funding of
  Base Equity Amount; Equity Commitments

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.35.

  	
  Due
  Diligence Review

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.36.

  	
  Review and
  Payment of Credit Subsidy

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.37.

  	
  Intellectual
  Property

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.38.

  	
  Payment
  and Performance Bonds

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.39.

  	
  No
  Judgment Liens

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.40.

  	
  USA
  Patriot Act

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.41.

  	
  Davis-Bacon
  Compliance

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.42.

  	
  OMB
  Certification

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.43.

  	
  Turbine
  Supplier Report

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.2.

  	
  Quarterly
  Conditions Precedent to Advances

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  4.2.1.

  	
  Certification
  of Updated Advance Schedule

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.2.

  	
  Construction
  Progress Report

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.3.

  	
  Fees and
  Expenses

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.4.

  	
  Consents
  and Approvals

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.5.

  	
  Insurance

  	
   

  	
  31

  



 


iii

















 


	
   

  	
  4.2.6.

  	
  Proceedings
  and Other Documents

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.7.

  	
  Representations
  and Warranties; No Default; Program Requirements

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.8.

  	
  No Change
  in Circumstances

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.9.

  	
  Performance
  Metrics

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.10.

  	
  Certificates

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.11.

  	
  Construction
  Budget

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.12.

  	
  Equity
  Contributions

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.13.

  	
  Base Case
  Projections

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.3.

  	
  Conditions
  Precedent to Each Advance

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.1.

  	
  Advance
  Request; Quarterly Approved Advance Schedule

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.2.

  	
  Issuance
  of FFB Advance Request Approval Notice

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.3.

  	
  Fees and
  Expenses

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.4.

  	
  Absence of
  Drawstop Notice

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.5.

  	
  Base
  Equity

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.6.

  	
  Title
  Continuation

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.7.

  	
  Additional
  Requirements

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.8.

  	
  Advance
  Schedule; Base Case Projections; and Construction Budget

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 REPRESENTATIONS AND WARRANTIES

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1.

  	
  Organization

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  5.2.

  	
  Authorization;
  No Conflict

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  5.3.

  	
  Legality,
  Validity and Enforceability

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  5.4.

  	
  Capitalization

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  5.5.

  	
  Investments;
  Subsidiaries

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  5.6.

  	
  Title

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  5.7.

  	
  Leases

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  5.8.

  	
  Security
  Interests

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  5.9.

  	
  Liens

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  5.10.

  	
  Permits;
  Other Required Consents

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  5.11.

  	
  Litigation,
  Labor Disputes

  	
   

  	
  39

  



 


iv

















 


	
  5.12.

  	
  Tax

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  5.13.

  	
  Business, Indebtedness,
  Contracts, Etc.

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  5.14.

  	
  Transactions
  with Affiliates

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  5.15.

  	
  Compliance
  with Governmental Rules

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  5.16.

  	
  Environmental
  Laws

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  5.17.

  	
  Investment
  Company Act

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  5.18.

  	
  Regulation
  of Parties

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  5.19.

  	
  ERISA

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  5.20.

  	
  Insurance

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  5.21.

  	
  Intellectual
  Property

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  5.22.

  	
  No
  Defaults

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  5.23.

  	
  No
  Judgment Liens

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  5.24.

  	
  Sufficiency
  of Project Documents

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  5.25.

  	
  Financial
  Statements

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  5.26.

  	
  Project
  Milestone Schedule and Construction Budget; Operating Forecasts and Base Case
  Projections

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  5.27.

  	
  Sufficient
  Funds

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  5.28.

  	
  Fees and
  Enforcement

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  5.29.

  	
  Immunity

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  5.30.

  	
  No Other
  Powers-of-Attorney, Etc.

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  5.31.

  	
  No
  Additional Fees

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  5.32.

  	
  Foreign
  Assets Control Regulations, Prohibited Persons, Etc.

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  5.33.

  	
  Lobbying

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  5.34.

  	
  Insolvency
  Proceedings

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  5.35.

  	
  Use of
  Proceeds

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  5.36.

  	
  No
  Material Adverse Effect

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  5.37.

  	
  Certain
  Program Requirements

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  5.38.

  	
  Davis-Bacon
  Act

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  5.39.

  	
  Buy
  American Provisions

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  5.40.

  	
  Compliance
  with Governmental Rules; Environmental Laws; Governmental Approvals

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  5.41.

  	
  Full
  Disclosure

  	
   

  	
  49

  



 


v

















 


	
  5.42.

  	
  Domestic
  Procurement Consideration

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 AFFIRMATIVE COVENANTS

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1.

  	
  Information
  Covenants

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  6.2.

  	
  Books,
  Records and Inspections; Accounting and Auditing Matters

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  6.3.

  	
  Maintenance
  of Property and Insurance

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  6.4.

  	
  Maintenance
  of Existence; Conduct of Business

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  6.5.

  	
  Compliance
  with Governmental Rules; Environmental Laws; Governmental Approvals

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  6.6.

  	
  Compliance
  with Debarment Regulations

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  6.7.

  	
  Tax,
  Duties, Proper Legal Form

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  6.8.

  	
  Construction
  and Approved Construction Changes

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  6.9.

  	
  Operating
  Forecasts

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  6.10.

  	
  Diligent
  Construction of Project and Operations

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  6.11.

  	
  Ineligible
  and Overrun Project Costs

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.12.

  	
  Cost
  Overruns and Contingencies

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.13.

  	
  Use of
  Proceeds; Repayment of Indebtedness

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.14.

  	
  Performance
  of Obligations

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.15.

  	
  Project
  Documents

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.16.

  	
  Cash
  Deposits

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.17.

  	
  Reserve
  Accounts

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.18.

  	
  Safety
  Audit

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.19.

  	
  Replacement
  of Certain Project Participants

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.20.

  	
  Security
  Interest in Newly Acquired Property; Additional Project Documents

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.21.

  	
  Title;
  Rights to Land

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.22.

  	
  Independent
  Consultants

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.23.

  	
  Additional
  Documents; Filings and Recordings

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.24.

  	
  Compliance
  with Governmental Rules

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  6.25.

  	
  Event of
  Loss

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  6.26.

  	
  Application
  of Loss Proceeds

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  6.27.

  	
  Acceptance
  and Startup Testing

  	
   

  	
  68

  



 


vi

















 


	
  6.28.

  	
  Debt-to-Equity
  Contribution Ratio

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  6.29.

  	
  Compliance
  With Certain U.S. Government Requirements

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  6.30.

  	
  Davis-Bacon
  Act

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  6.31.

  	
  ERISA
  Covenants

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  6.32.

  	
  Domestic
  Procurement Consideration

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  6.33.

  	
  Initial
  Advance Date

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  6.34.

  	
  Separateness
  Provisions

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 NEGATIVE COVENANTS

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1.

  	
  Indebtedness

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.2.

  	
  Liens

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.3.

  	
  Leases

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.4.

  	
  Loans,
  Advances and Investments

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.5.

  	
  Capital
  Expenditures

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.6.

  	
  Subsidiaries;
  Partnerships

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.7.

  	
  Ordinary
  Course of Conduct; No Other Business

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.8.

  	
  Merger,
  Bankruptcy, Dissolution or Transfer of Assets

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  7.9.

  	
  Organizational
  Documents; Fiscal Year; Legal Form; Capital Structure

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  7.10.

  	
  Restricted
  Payments

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  7.11.

  	
  Redemption
  or Issuance of Stock

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  7.12.

  	
  Other
  Transactions

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  7.13.

  	
  Accounts

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  7.14.

  	
  Debt
  Service Coverage Ratio

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  7.15.

  	
  Commissions

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  7.16.

  	
  Amendment
  of and Notices Under Transaction Documents

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  7.17.

  	
  Other
  Agreements

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  7.18.

  	
  Hedging
  Agreements

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  7.19.

  	
  Compromise
  or Settlement of Disputes

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  7.20.

  	
  Abandonment
  of Project

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  7.21.

  	
  Improper
  Use

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  7.22.

  	
  Assignment

  	
   

  	
  78

  



 


vii

















 


	
  7.23.

  	
  Margin
  Regulations

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  7.24.

  	
  Environmental
  Laws

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  7.25.

  	
  ERISA

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  7.26.

  	
  Investment
  Company Act

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  7.27.

  	
  Public
  Utility Holding Company Act

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  7.28.

  	
  Powers of
  Attorney

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  7.29.

  	
  Prohibited
  Persons

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 EVENTS OF DEFAULT; REMEDIES

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  8.1.

  	
  Events of
  Default

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  8.2.

  	
  Remedies
  for Events of Default

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  8.3.

  	
  Automatic
  Acceleration

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 AGENTS AND ADVISORS

  	
   

  	
  90

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Appointment
  of Agents

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  9.2.

  	
  Duties and
  Responsibilities

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  9.3.

  	
  Rights and
  Obligations

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  9.4.

  	
  No
  Responsibility for Certain Conduct

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  9.5.

  	
  Defaults

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  9.6.

  	
  No
  Liability

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  9.7.

  	
  Fees and
  Expenses of Agents

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  9.8.

  	
  Resignation
  and Removal

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  9.9.

  	
  Successor
  Agents

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  9.10.

  	
  Authorization

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  9.11.

  	
  Agent as
  Lender

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  9.12.

  	
  Appointment
  of Independent Consultants

  	
   

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 REIMBURSEMENT AGREEMENT

  	
   

  	
  98

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Reimbursement
  Obligation

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  10.2.

  	
  Payments
  and Computations

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.1.

  	
  Interest

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.2.

  	
  Method of
  Payment

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.3.

  	
  Taxes

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.4.

  	
  Calculations

  	
   

  	
  99

  



 


viii

















 


	
   

  	
  10.2.5.

  	
  Determinations

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.3.

  	
  Obligations
  Absolute

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
  10.4.

  	
  Security

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4.1.

  	
  Borrower
  Reimbursement Obligations Secured

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4.2.

  	
  Actions

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.5.

  	
  DOE Rights

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5.1.

  	
  Rights
  Cumulative

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5.2.

  	
  Subrogation

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.6.

  	
  Further
  Assurances

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  11.1.

  	
  Addresses

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  11.2.

  	
  Further
  Assurances

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  11.3.

  	
  Delay and
  Waiver

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  11.4.

  	
  Right of
  Set-Off

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  11.5.

  	
  Amendment
  or Waiver

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  11.6.

  	
  Entire
  Agreement

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  11.7.

  	
  Governing
  Law

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  11.8.

  	
  Severability

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  11.9.

  	
  Calculations

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  11.10.

  	
  Limitation
  on Liability

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  11.11.

  	
  Waiver of
  Jury Trial

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  11.12.

  	
  Consent to
  Jurisdiction

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  11.13.

  	
  Successors
  and Assigns

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  11.14.

  	
  Participations

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  11.15.

  	
  Reinstatement

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  11.16.

  	
  No
  Partnership; Etc.

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
  11.17.

  	
  Payment of
  Costs and Expenses

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
  11.18.

  	
  Counterparts

  	
   

  	
  111

  



 


ix














 


COMMON AGREEMENT


 


This COMMON AGREEMENT (the “Common Agreement”),
dated as of July 26, 2010, is by and among (i) KAHUKU WIND
POWER, LLC, a limited liability company organized and existing under
the laws of Delaware, as Borrower, (ii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary
of Energy, for itself as a Credit Party and as guarantor of the Advances made
under the DOE Credit Facility Documents (in such capacity, “DOE”), (iii) DOE, acting by and through the Secretary of Energy, as the Loan
Servicer (in such capacity, the “Loan Servicer”), and (iv) MIDLAND LOAN SERVICES, INC., a corporation formed and
existing under the laws of Delaware, as the Collateral Agent.


 


RECITALS


 


WHEREAS, pursuant to the Loan Documents, the
Borrower intends to develop, construct, own and operate the Project.


 


WHEREAS, Kahuku Holdings is the sole Equity Owner
of the Borrower;


 


WHEREAS, 92% of the Equity Interests of Kahuku
Holdings are held by the Sponsor, and 8% of the Equity Interests of Kahuku
Holdings are held by Makani Nui Associates, LLC, a limited liability company
organized and existing under the laws of Hawaii;


 


WHEREAS, subject to the terms and conditions of the
Equity Funding Agreement, the Sponsor and Kahuku Holdings have made and have
agreed to make, or procure the making of, Equity Contributions to the Borrower.


 


WHEREAS, the Borrower, in furtherance of its
obligations with respect to the Project has requested that:


 


(i)            FFB
make Advances pursuant to the DOE Credit Facility Documents in the aggregate principal
amount not exceeding $117,330,968, and


 


(ii)           DOE
guarantee the repayment of the DOE Guaranteed Loan pursuant to the DOE
Guarantee.


 


WHEREAS, the execution of this Common Agreement,
which provides for, inter alia (i) certain common representations,
warranties and covenants of the Borrower, (ii) certain uniform conditions
of disbursement of the Advances, and (iii) certain common events of
default, is a condition precedent to the obligations of the Credit Parties
under the DOE Credit Facility Documents.


 

















 


AGREEMENT


 


NOW, THEREFORE, in consideration of the foregoing,
the Credit Parties entering into the DOE Credit Facility Documents, and other
good and valid consideration, the receipt and adequacy of which are hereby
expressly acknowledged, the parties hereby agree as follows:


 


ARTICLE 1

DEFINITIONS; RULES OF INTERPRETATION


 


1.1.         Definitions.


 


Except as otherwise expressly provided herein,
capitalized terms used in this Common Agreement and its exhibits and schedules
shall have the meanings given in Exhibit A.


 


1.2.         Rules of
Interpretation.


 


Except as otherwise expressly provided herein, the rules of
interpretation set forth in Exhibit B shall apply to this Common
Agreement.


 


1.3.         Conflict
with DOE Credit Facility Documents.


 


Except as expressly provided otherwise hereunder,
in the case of any conflict between the terms of this Common Agreement and the
terms of any DOE Credit Facility Document, the terms of this Common Agreement,
as between the Borrower and the Credit Parties party hereto, shall control.


 


ARTICLE 2

FUNDING


 


2.1.         Financial
Plan; Advance Schedule.


 


(a)           The
proposed sources and uses of financing with respect to the Project are set
forth on the Financial Plan attached as Exhibit Al. This Article 2
does not represent any undertaking of any of the Credit Parties to make any
Advances to the Borrower.


 


(b)           Attached
hereto as Schedule 2.1(b) is an initial Advance Schedule, which
represents the Borrower’s best estimate in all material respects as of the
Financial Closing Date, based on all facts and circumstances existing and known
to the Borrower, of the timing and amount of proposed Advances and Equity
Contributions for the Project set forth on a monthly basis. The Advance
Schedule shall be amended from time to time as set forth in Section 4.2.


 


2

















 


2.2.         Availability
of Advances.


 


2.2.1.       Availability.


 


Subject to the satisfaction (or waiver by DOE or
the Collateral Agent, as applicable, in writing) of each applicable condition
precedent set forth in Article 4 and in the DOE Credit Facility
Documents, Advances under the DOE Credit Facility Documents shall be made
during the applicable Availability Period.


 


2.2.2.       Loan
Commitment Reductions and Cancellations.


 


The Borrower may, on not less than fifteen (15)
days prior written notice to DOE and upon the satisfaction of any consent
requirement or other applicable provisions of each DOE Credit Facility
Document, permanently reduce the unutilized portions of the DOE Credit Facility
Commitment, in full or in part, but only if:


 


(a)           each
partial reduction is in an amount permitted under the DOE Credit Facility
Documents;


 


(b)           DOE,
in consultation with the Lender’s Engineer, is satisfied that such cancellation
or reduction will not impair construction or development of the Project; and


 


(c)           upon
such cancellation or reduction, the Borrower pays all fees, Periodic Expenses,
and other amounts then due with respect to such cancellation or reduction under
the DOE Credit Facility Documents.


 


Once reduced or canceled, the DOE Credit Facility
Commitment may not be reinstated.


 


2.3.         Mechanics
for Requesting Advances.


 


2.3.1.       Master
Advance Notice.


 


(a)           The
Borrower may request an Advance under the DOE Credit Facility Documents by
delivering to the Credit Parties and the Lender’s Engineer, within three (3) months
after the Quarterly Approval Date but not less than ten (10) Business Days
prior to the Requested Advance Date, an appropriately completed Master Advance
Notice with respect to such Advance. The Borrower may request an Advance no
more frequently than once per calendar month; provided, however,
that the Borrower may request one additional Advance in any calendar month that
includes a Principal Payment Date, but only for the purpose of paying interest
owing on the outstanding DOE Guaranteed Loan that constitutes Eligible Base
Project Costs.


 


(b)           Each
Master Advance Notice shall specify:


 


3

















 


(i)            the
amount of the Advance requested under the DOE Credit Facility Documents, which
shall be in the minimum amount and increments required by the DOE Credit
Facility Documents;


 


(ii)           the
Requested Advance Date, which shall be any Business Day;


 


(iii)          pursuant
to Section 2.4.2, (A) the portion of the Approved Pre-Closing
Equity Credit to be allocated as Base Equity with respect to a requested
Advance (not to exceed the Approved Pre-Closing Equity Credit Balance), and (B) the
amount of Base Equity and Overrun Equity to be transferred from the Equity
Contribution Account prior to or concurrently with such Advances;


 


(iv)          the
aggregate amount, on a prospective basis after giving effect to the requested
Advance, of (A) all Advances outstanding under the DOE Credit Facility
Documents, (B) all Equity Contributions allocated from the Approved
Pre-Closing Equity Credit as Base Equity with respect to outstanding Advances, (C) Base
Equity and Overrun Equity (if any) contributed from the Equity Contribution
Account or in cash with respect to outstanding Advances, and (D) the
revised Approved Pre-Closing Equity Credit Balance, if greater than zero;


 


(v)           the
Project Costs being financed using the proceeds of the requested Advances,
which shall be only Eligible Base Project Costs;


 


(vi)          if
applicable, the “Prepayment Election” (as defined in the FFB Promissory Note)
for such Advance as set forth in the FFB Advance Request;


 


(vii)         that
(A) the representations and warranties of the Borrower contained in the
Loan Documents to which the Borrower is a party are true, correct and complete
on and as of the Requested Advance Date, (B) no Event of Default or
Potential Default has occurred and is continuing, and (C) such other
matters as are required to be certified by the Borrower pursuant to Section 4.3;
and


 


(viii)        Such
other information as may be required in the form of Master Advance Notice, if
applicable.


 


(c)           The
Borrower shall include as attachments to each Master Advance Notice, and shall
deliver the same to DOE and the Loan Servicer:


 


(i)            a
draft of the FFB Advance Request with respect to the requested Advance,
together with any information necessary for FFB and DOE to process such
request; and


 


4

















 


(ii)           all
other certificates and documentation required in respect of such Advance under
the DOE Credit Facility Documents and the related Loan Documents.


 


2.4.         Mechanics
for Funding Advances.


 


2.4.1.       Funding
of Advances.


 


(a)           Satisfaction
of Conditions Precedent.


 


(i)            Promptly
after receipt of a Master Advance Notice, DOE shall review such Master Advance
Notice and the attachments thereto to determine whether all certificates and
documentation required under Section 2.3 have been delivered to it.
At such time as DOE has determined that it has received all such required
certificates and documentation, it shall promptly so notify the other Credit
Parties and the Borrower;


 


(ii)           No
later than six (6) Business Days prior to the Requested Advance Date, the
Borrower shall deliver to DOE a completed FFB Advance Request with respect to
the requested Advance, including all wire transfer information for the
designated payees of the proceeds of such Advance, together with any other
information required on such FFB Advance Request; and


 


(iii)          As
soon as DOE determines that (A) all conditions precedent set forth in Article 4
in respect of the requested Advance have been satisfied (or waived), (B) the
required Equity Contributions have been made in accordance with Section 2.4.2,
and (C) the FFB Advance Request and all other certificates and
documentation required under the DOE Credit Facility Documents in respect of
the requested Advance have been provided and are satisfactory (or have been
waived), then DOE shall sign the FFB Advance Request Approval Notice attached
to the FFB Advance Request and forward both to the FFB, with a copy to the
Borrower, the Collateral Agent and the Lender’s Engineer, it being agreed that,
if DOE makes such determination no later than six (6) Business Days prior
to the Requested Advance Date, then DOE shall use all reasonable efforts to
sign and forward such FFB Advance Request Approval Notice no later than five (5) Business
Days prior to the Requested Advance Date.


 


(b)           FFB
Funding.  For
any requested Advance for which a FFB Advance Request Approval Notice has been
issued pursuant to this Section 2.4.1 and for which no Drawstop
Notice has been issued pursuant to Section 2.4.3, in accordance
with the terms of the FFB Note Purchase Agreement FFB has agreed to fund such
Advance on the Requested Advance Date in accordance with the DOE Credit
Facility Documents. Such funds shall be applied as specified in the Collateral
Agency Agreement; provided, however, that, if any Drawstop Notice has
been issued and is in effect on the Requested Advance Date with respect to 


 


5

















 


any funds received by the Collateral Agent, such
funds shall be applied pursuant to Section 2.4.3(c).


 


2.4.2.       Equity
Contributions.


 


(a)           Determinations.  On or prior to the date that is
nine (9) Business Days prior to the Requested Advance Date, the Borrower
shall cause Equity Contributions to be allocated from the Approved Pre-Closing
Equity Credit, disbursed from the Equity Contribution Account or contributed in
cash in an aggregate amount such that, after giving effect to all Advances to
be made on such Requested Advance Date, the Debt-to-Equity Contribution Ratio
is not more than 79:21. If the Equity Contribution for an Advance will include
amounts from the Approved Pre-Closing Equity Credit, the Borrower shall
allocate in the Master Advance Notice of such Advance that portion of the
Approved Pre-Closing Equity Credit (not to exceed the Approved Pre-Closing
Equity Credit Balance) to be deemed contributed as Base Equity on the related
Requested Advance Date. After the Approved Pre-Closing Equity Credit Balance
has been fully utilized, the Borrower shall indicate on each Master Advance
Notice the amount of Base Equity or Overrun Equity, as the case may be, to be
deposited into the Construction Account from the Equity Contribution Account or
contributed in cash with respect to the Advance requested pursuant to such
Master Advance Notice.


 


(b)           Confirmation.  As of the date that is eight (8) Business
Days prior to the Requested Advance Date, (i) if at such time as the
Collateral Agent has determined that the Equity Contributions contributed or
deemed contributed are sufficient to satisfy the requirements of Section 2.4.2(a),
the Collateral Agent shall so notify the Borrower, the Equity Investor, and the
Credit Parties, and (ii) to the extent that the Collateral Agent has
determined that the Equity Contributions contributed or deemed contributed are
not sufficient to satisfy the requirements of Section 2.4.2(a), the
Collateral Agent shall so notify the Borrower, the Equity Investor, and the
Credit Parties. If as of the date that is six (6) Business Days prior to
the Requested Advance Date there continues to be a shortfall in the Base Equity
or Overrun Equity required to be contributed or deemed contributed, the
Collateral Agent shall issue a notice substantially in the form attached as Exhibit N
(a “Drawstop Notice”), in accordance with Section 2.4.3, to
the Borrower and the other Credit Parties.


 


2.4.3.       Drawstop
Notices.


 


(a)           Issuance.  At any time after the issuance
of a Master Advance Notice up to the date that is one (1) Business Day
prior to the Requested Advance Date, whether or not DOE has issued an FFB
Advance Request Approval Notice, DOE may, from time to time, issue a Drawstop
Notice to the Borrower and the 


 


6

















 


other Credit
Parties, if DOE determines that the conditions in Article 4 with
respect to such Advance are not met, or having been met, are no longer met.


 


(b)           Consequences. If a Drawstop Notice is issued, FFB shall not be obligated to make the
requested Advance; provided, however, that the issuance of a
Drawstop Notice shall be without prejudice to the Borrower’s right to request
future Advances in accordance with the terms and provisions hereof.


 


(c)           Funds
Advanced.  If any Drawstop Notice has been issued, funds
delivered to the Collateral Agent pursuant to Section 2.4.1(b) shall
not be applied and shall be returned promptly to the FFB.


 


(d)           Costs.  The Borrower shall pay all
reasonable, documented out-of-pocket expenses incurred by DOE, FFB, Loan Servicer
or the Collateral Agent in respect of any Advance failed to be made under this Section 2.4.3.


 


2.4.4.       No
Liability.


 


Without limiting the generality of Section 9.6
or Section 11.10, no Credit Party shall have any liability to the
Borrower or any Affiliate thereof or to any other Credit Party solely arising
from the issuance of or failure to issue any FFB Advance Request Approval
Notice, Drawstop Notice, or any other notice contemplated by this Section 2.4.


 


2.5.         Advance
Requirements under the DOE Credit Facility Documents.


 


Notwithstanding anything to the contrary contained
in this Article 2, the Borrower shall also comply with all separate
disbursement requirements set forth in the DOE Credit Facility Documents.
Unless otherwise specified in the DOE Credit Facility Documents, all
determinations to be made with respect to the DOE Credit Facility Documents
shall be made by DOE.


 


2.6.         No
Approval of Work.


 


The making of any Advance under the Loan Documents
shall not be deemed to constitute approval or acceptance by any Credit Party of
any work, labor, supplies, materials or equipment furnished or supplied with
respect to the Project in respect of any provision in the Loan Documents
pursuant to which a Credit Party has the right or obligation to provide such
approval or acceptance.


 


7

















 


ARTICLE 3 

PAYMENTS; PREPAYMENTS


 


3.1.         Place
and Manner of Payments.


 


3.1.1.       Collateral
Agency Agreement.


 


The Borrower shall repay the DOE Guaranteed Loan,
including all fees and interests accrued thereon, in accordance with the DOE
Credit Facility Documents. All payments due under the DOE Credit Facility
Documents shall be made by the Borrower pursuant to the terms of the DOE Credit
Facility Documents and the Collateral Agency Agreement. The Collateral Agent
shall apply each payment received by it in accordance with the Collateral
Agency Agreement; provided, however, that, notwithstanding any
instructions to the contrary in the FFB Note, for purposes of administering
payments to FFB, the Borrower shall remit such payments directly to an account
designated by the Loan Servicer for payment to FFB. The Borrower may not
reborrow any principal amount of the DOE Guaranteed Loan that is repaid.


 


3.1.2.       Net
of Tax, Etc.


 


(a)           Tax.  Any and all payments to any
Secured Party by the Borrower hereunder or under any other Loan Document shall
be made free and clear of, and without deduction for, any and all Taxes, and
all liabilities with respect thereto, excluding (i) taxes imposed on or
measured by the net income (however denominated) of such Secured Party by any
jurisdiction or any political subdivision or taxing authority thereof or
therein solely as a result of a present or former connection between such
Secured Party and such jurisdiction or political subdivision (other than any
connection arising as a result of the transactions contemplated by the Loan
Documents), and (ii) any withholding Taxes or other Tax based on gross
income imposed by the United States of America (all such Taxes being hereinafter
referred to as “Covered Taxes”). If the Borrower shall be required by
law to withhold or deduct any Covered Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Secured Party, (A) the
sum payable shall be increased as may be necessary so that after making all
such required deductions (including deductions applicable to additional sums
payable under this Section 3.1.2), such Secured Party receives an
amount equal to the sum it would have received had no such deductions been
made, (B) the Borrower shall make such deductions and (C) Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with all Governmental Rules. If the Borrower shall make
any payment with respect to Covered Taxes under this Section 3.1.2(a) to
or for the benefit of any Secured Party and if such Secured Party shall claim
any credit or deduction for such Covered Taxes against any other Taxes payable
by such Secured Party that are not Covered Taxes then such Secured Party shall
pay to the Borrower an amount equal to the amount the Secured Party determines
in its sole discretion, absent manifest error, is the amount by which such
other Taxes are actually reduced; provided, that the aggregate amount
payable by such Secured Party pursuant to this sentence shall not exceed the
aggregate amount previously paid by the Borrower with respect to such Covered
Taxes and no amount shall be payable while a Potential Default or Event of
Default is continuing.


 


8

















 


(b)           Indemnity.  The Borrower shall indemnify
each Secured Party for the full amount of Covered Taxes (including any Covered
Taxes imposed by any jurisdiction on amounts payable under this Section 3.1.2)
paid by any Secured Party, whether or not such Covered Taxes were correctly or
legally asserted. Each Secured Party shall give notice to the Borrower of the
assertion of any claim against such Secured Party relating to such Secured
Party’s Covered Taxes as promptly as is practicable after being notified of
such assertion; provided, that any failure to notify the Borrower
promptly of such assertion shall not relieve the Borrower of its obligation
under this Section 3.1.2, except to the extent the Borrower is
actually and materially prejudiced by such failure. Payments by the Borrower
pursuant to this indemnification shall be made within ten (10) days after
the date such Secured Party makes written demand therefor (submitted through
the Loan Servicer), which demand shall be accompanied by a certificate
describing in reasonable detail the basis thereof. Each Secured Party agrees to
repay to the Borrower any refund (including that portion of any interest that
was included as part of such refund with respect to Covered Taxes paid by the
Borrower pursuant to this Section 3.1.2(b)) received by such
Secured Party for Covered Taxes that were paid by the Borrower pursuant to this
Section 3.1.2(b), and to provide reasonable assistance to the
Borrower (and at the expense of the Borrower) to contest any such Covered Taxes
that such Secured Party or the Borrower reasonably believes not to have been
lawfully or properly assessed.


 


(c)           Notice.  Within ten (10) days after
the date of any payment of Covered Taxes by the Borrower, the Borrower shall
furnish to the Loan Servicer and each affected Secured Party the original or a
certified copy of a receipt evidencing such payment, or if the relevant tax
authority has not provided the Borrower with such a receipt, shall furnish such
other evidence of such payment as may be available to the Borrower (in which
case the Borrower shall promptly request a receipt from the relevant tax
authority, and so furnish the original or a certified copy thereof promptly on
receipt thereof). The Borrower shall compensate each Secured Party for all
reasonable losses and expenses sustained by such Secured Party as a result of
any failure by the Borrower to so furnish such copy of such evidence or, if
available, such receipt.


 


(d)           Survival
of Obligations.  The obligations of the Borrower under this Section 3.1.2
shall survive the termination of this Common Agreement and the repayment of the
Secured Obligations, but no longer than the applicable statute of limitations.


 


(e)           Documentation.  Any Secured Party that is not a
“United States person” within the meaning of Section 7701(a)(30) of the
Internal Revenue Code that is entitled to an exemption from or reduction of
withholding of U.S. federal income tax with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower, at the time or
times prescribed by applicable law or reasonably requested by the Borrower,
such properly completed


 


9














 


and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding of U.S. federal income tax, or at a reduced rate of
such withholding. In addition, any Secured Party, if requested by the Borrower,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower as will enable the Borrower to determine
whether or not such Secured Party is subject to backup withholding or
information reporting requirements. Each Secured Party shall promptly (i) notify
the Borrower of any change in circumstances which (other than as a result of a
Change in Law or interpretation thereof) would modify or render invalid any
such claimed exemption or reduction and (ii) at the request and expense of
the Borrower, take such steps as shall not be disadvantageous to it, in the
sole judgment of such Secured Party, and as may be reasonably necessary
(including the re-designation of its lending office) to avoid any requirement
of applicable laws of any such jurisdiction that the Borrower make any
deduction or withholding for Covered Taxes from amounts payable to such Secured
Party.


 


3.2.         Interest
Provisions Relating to All Advances.


 


3.2.1.       Interest
Account and Interest Computations.


 


In accordance with Section 609.10(e)(1) of
the Applicable Regulations, interest shall accrue on the unpaid principal
amount of each Advance from the date such Advance is disbursed to the
Collateral Agent or otherwise disbursed or deemed disbursed pursuant to the DOE
Credit Facility Documents, to the date such Advance is paid in full, at a rate
per annum relating thereto as specified in the DOE Credit Facility Documents.
The Borrower hereby authorizes each Credit Party to record in an account or
accounts maintained by such Credit Party on its books (A) the interest
rates applicable to all Advances, (B) the interest periods for each
Advance outstanding, (C) the date and amount of each principal and
interest payment on the DOE Guaranteed Loan outstanding, and (D) such other
information as such Credit Party may determine is necessary for the computation
of interest payable by the Borrower hereunder. The Borrower agrees that all
computations of interest by a Credit Party pursuant to this Section 3.2.1
shall, absent manifest error, constitute prima  facie evidence of
the amount thereof, and shall be conclusive absent manifest error. All
computations of interest shall be made as set forth in the relevant DOE Credit
Facility Documents.


 


3.2.2.       Interest
Payment Dates.


 


Subject to the terms of the DOE Credit Facility
Documents, the Borrower shall pay accrued interest on the outstanding principal
amount of each Advance on each Quarterly Payment Date, on prepayment (to the
extent thereof), and at maturity (whether by acceleration or otherwise).


 


10

















 


3.3.         FFB
Loan Transfer.


 


3.3.1.       Illegality.


 


Upon any FFB Loan Transfer or receipt by the
Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan
Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE,
Loan Servicer and Collateral Agent shall cooperate with the transferee of the
FFB Loan to amend this Common Agreement and any other Loan Documents to
incorporate customary provisions for a commercial loan transaction of this type
reasonably satisfactory to such transferee with respect to any Change of Law
that makes it unlawful or impossible for any lender to make or maintain any FFB
Loans.


 


3.3.2.       Increased
Costs.


 


Upon any FFB Loan Transfer or receipt by the
Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan
Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE,
Loan Servicer and Collateral Agent shall cooperate with the transferee of the
FFB Loans to amend this Common Agreement and any other Loan Documents to
incorporate customary provisions reasonably satisfactory to such transferee
with respect to any Change of Law that subjects such transferee lender to any
tax, duty or other charge with respect to any FFB Loans.


 


3.3.3.       Alternate
Office; Minimization of Costs.


 


Upon any FFB Loan Transfer or receipt by the
Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan
Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE,
Loan Servicer and Collateral Agent shall cooperate with the transferee of the
FFB Loans to amend this Common Agreement and any other Loan Documents to
incorporate customary provisions for a commercial loan transaction of this type
reasonably satisfactory to such transferee lender with respect to such
transferee lender designating an alternative lending office with respect to its
FFB Loan to mitigate costs or to avoid any circumstances that might make it
unlawful or impossible for such transferee lender to maintain an FFB Loan.


 


3.4.         Prepayments.


 


3.4.1.       Terms
of all Prepayments.


 


(a)           With
respect to any prepayment of all or any part of the DOE Guaranteed Loan,
whether such prepayment is voluntary or mandatory, including a prepayment upon acceleration,
the Borrower shall comply with all applicable terms and provisions of the FFB
Note Purchase Agreement.


 


11

















 


(b)           All
prepayments shall be allocated first, to any
Late Charge, next, to any associated
make-whole premiums, next, to
accrued and unpaid interest on the DOE Guaranteed Loan, and next, to principal on the DOE Guaranteed Loan, which shall
be applied first to prepay in full one or more Advances selected by the
Borrower, and if necessary, to prepay in part an Advance selected by the
Borrower, which partial prepayment shall be applied to installments of
principal of such selected Advance in the inverse order of maturity, pursuant
to the DOE Credit Facility Documents, in each case such prepayment shall be
allocated to principal in the maximum possible amount when taken together with
any associated make-whole premiums or discounts (it being understood that (x) if
there is an associated premium, the principal amount prepaid would be less than
the prepayment amount, and (y) if there is an associated discount, the
principal amount prepaid would be greater than the prepayment amount).


 


(c)           All
prepayments of the DOE Guaranteed Loan shall be applied in accordance with the
DOE Credit Facility Documents.


 


(d)           The
Borrower may not reborrow any principal amount of the DOE Guaranteed Loan that
is prepaid.


 


3.4.2.       Voluntary
Prepayments.


 


(a)           Without
the consent of DOE, the Borrower may not prepay the DOE Guaranteed Loan in full
or in part prior to the end of the Availability Period. Any prepayment in full
or in part with the consent of DOE prior to the end of the Availability Period
shall be subject to any applicable prepayment premiums, discounts, charges or
other amounts as may be required by the DOE Credit Facility Documents.


 


(b)           After
the end of the Availability Period, the Borrower may prepay all or any part of
the principal amount of the DOE Guaranteed Loan upon prior written notice
submitted by the Borrower to the Credit Parties not later than the fifth (5th)
Business Day prior to the Intended Prepayment Date, and satisfaction of the
following conditions:


 


(i)            compliance
with any restrictions contained in the DOE Credit Facility Documents, including
any minimum prepayment amount requirement of the DOE Credit Facility Documents;
and


 


(ii)           payment
of all accrued and unpaid interest on such principal amount, and any other fees
and Periodic Expenses then payable, including any prepayment premiums, or other
amounts as may be required under the DOE Credit Facility Documents.


 


12

















 


3.4.3.       Mandatory
Prepayments.


 


(a)           The
Borrower shall be required to make, or cause to be made, as applicable,
mandatory prepayments of the DOE Guaranteed Loan upon the occurrence of any of
the following and in amounts set forth in this Section 3.4.3:


 


(i)            upon
the receipt by the Borrower of performance liquidated damages pursuant to any
Project Document in excess of the amounts needed, as determined by DOE in
consultation with the Lender’s Engineer (as appropriate), to pay corresponding
performance liquidated damages payable to a Project Participant who is not a
First Wind Entity or an Affiliate thereof, the excess amount of such
performance liquidated damages;


 


(ii)           upon
the receipt by the Borrower of Loss Proceeds in an amount that exceeds by more
than $10,000 the amount of such Loss Proceeds used or to be used to repair or
restore the Project in accordance with Section 6.26, such amount;


 


(iii)          upon
the payment of any amounts to the Borrower in respect of the termination or
repudiation of any Project Document or in respect of any damages paid to the
Borrower as a result of a breach of any such Project Document (in the case of
damages, in excess of the amount applied in remedying the relevant breach and,
in the case of termination or repudiation, in excess of any reasonable
out-of-pocket costs incurred by the Borrower in replacing such Project Document
and approved by DOE), such amount;


 


(iv)          upon
any sale of any assets no longer used or useful in the operation of the Project
in excess of $500,000 in a single transaction or a series of related
transactions, in an amount equal to the proceeds of such sales unless applied
or to be applied to the acquisition of replacement assets;


 


(v)           promptly
upon the receipt of Cash Grant proceeds, an amount equal to 79% of the Cash
Grant awarded in respect of the Project;


 


(vi)          on
the Quarterly Payment Date after the failure by Borrower to comply with the
Debt Service Coverage Ratio requirements set forth in Section 7.14,
an amount, which after giving effect to such prepayment, would achieve
compliance with such Debt Service Coverage Ratio requirements from and after
such date;


 


(vii)         on
the Guaranteed Operational Completion Date, if Operational Completion has not
been achieved, the Borrower shall cause the Sponsor, pursuant to the Sponsor
Guarantee, to pay an amount equal to $10,000,000 less any amounts previously
paid by the Sponsor pursuant to the Sponsor Guarantee;


 


13

















 


(viii)        on
the Guaranteed Project Completion Date, if Project Completion has not been
achieved, the Borrower shall cause the Sponsor, pursuant to the Sponsor
Guarantee, to pay an amount equal to the remaining amounts available under the
Sponsor Guarantee;


 


(ix)           on
any date on which a Restricted Payment is allowed to be made in accordance with
Section 7.10, the Excess Cash Prepayment Amount; and


 


(x)            if
no Restricted Payments were allowed to be made in accordance with Section 7.10
within the previous twenty-four (24) months, an amount equal to all funds on
deposit at such time in the Equity Distribution Account.


 


(b)           Any
mandatory prepayments of the DOE Guaranteed Loan shall be applied, and shall be
subject to the terms and conditions, as set forth in the DOE Credit Facility
Documents.


 


3.5.         Payment
of DOE Credit Facility Fees.


 


(a)           Borrower
shall pay (i) to DOE on the Financial Closing Date, a Loan Facility Fee in
the amount of $938,647.74, and (ii) to FFB, the fees payable to FFB from
time to time in accordance with the requirements of the DOE Credit Facility
Documents.


 


(b)           Borrower
shall pay annually in advance to DOE, for its own account, the DOE Maintenance
Fee each year in advance, commencing on the Financial Closing Date and then on
each anniversary thereof.


 


(c)           Borrower
shall pay a DOE Modification Fee, if any, at the time reasonably determined by
DOE.


 


(d)           All
DOE Credit Facility Fees shall be paid on the dates due, in immediately
available funds in Dollars, to DOE. Once paid, the DOE Credit Facility Fees
shall not be refundable under any circumstances.


 


(e)           All
amounts payable to DOE under this Section 3.5 shall be paid by wire
transfer to the following account, or to such other account as may be specified
by DOE from time to time:


 


U.S. Treasury Department


ABA No. 0210-3000-4
TREASNYC/CTR/BNF=89000001


OBI=LGPO Kahuku Wind Power Loan No. 1103


 


14

















 


3.6.         Evidence
of Debt.


 


(a)           The
FFB shall maintain or cause to be maintained, in accordance with its usual
practice, internal records evidencing the amounts from time to time lent by and
owing to it under the DOE Credit Facility Documents and each of the payments
from time to time made in respect thereof.


 


(b)           The
Loan Servicer shall maintain, in accordance with its usual practice, internal
records evidencing the amounts from time to time (i) advanced by FFB under
the FFB Note Purchase Agreement, and (ii) paid by DOE with respect to the
DOE Guarantee and, in each case, each of the payments made from time to time in
respect thereof.


 


(c)           Except
as otherwise provided in any Loan Document, the entries made in the internal
records maintained by or on behalf of each of the Credit Parties, respectively,
pursuant to clauses (a) and (b), above shall, absent manifest error,
constitute prima  facie evidence of the existence and amount of
Secured Obligations of the Borrower as therein recorded and shall be conclusive
absent manifest error. Notwithstanding anything to the contrary, in the event
of any conflict among the records of the Credit Parties, the records of the FFB
shall prevail.


 


ARTICLE 4 

CONDITIONS PRECEDENT


 


4.1.         Conditions
Precedent to Financial Closing Date.


 


The occurrence of the Financial Closing Date is
subject to the prior satisfaction (or waiver in writing), as determined by (x) in
all cases, DOE, (y) with respect to any documents or instruments addressed
to FFB or to which FFB is party, FFB, and (z) with respect to Collateral
Agent, as specifically set forth in this Article 4, each in its
sole discretion, of each of the following conditions precedent (the “Initial
Conditions Precedent”) as of the Financial Closing Date.


 


4.1.1.       Loan
Documents.


 


DOE shall have received fully executed originals in
sufficient counterparts for each Credit Party of each of the following
documents, each of which shall be in form and substance satisfactory to DOE and
the Collateral Agent, as applicable:


 


(a)           Common
Agreement.  This Common Agreement.


 


(b)           DOE
Credit Facility Documents.  Each of the following documents and all other
contracts and documents required in connection with the DOE Guaranteed Loan
(the “DOE Credit Facility Documents”):


 


(i)            the
FFB Program Financing Agreement;


 


15

















 


(ii)           the
FFB Note Purchase Agreement;


 


(iii)          the
FFB Promissory Note;


 


(iv)          the
DOE Guarantee;


 


(v)           the
Collateral Agency Agreement; and


 


(vi)          all
other documents, certificates and instruments required to be delivered in
connection with any of the foregoing documents.


 


(c)           Equity
Documents.  Each of the following documents and all other
contracts and documents required in connection with the Equity Commitments (the
“Equity Documents”):


 


(i)            the
Equity Funding Agreement;


 


(ii)           the
Sponsor Support Agreement; and


 


(iii)          the
Sponsor Guarantee.


 


(d)           Security
Documents.  Each of the following documents and all other
contracts and documents entered into prior to, on, or after the Initial Advance
Date that provide any Lien, charge or security interest to the Secured Parties
(or any of them) to secure the Secured Obligations (the “Security Documents”):


 


(i)            Asset
Pledge Documents.  Each of the following documents and all other
contracts and documents that provide any Lien, charge or security interest to
the Secured Parties (or any of them) on the assets of the Borrower to secure
the Secured Obligations (the “Asset Pledge Documents”):


 


(A)          the Deed of Trust;


 


(B)           the Security Agreement;


 


(C)           the Account Control Agreements; and


 


(D)          agreements pledging all other real or personal property interests of the
Borrower, including all leasehold or other property interests relating to the
Project, and all related fixtures, easements, rights-of-way and licenses.


 


(ii)           Equity
Pledge Documents.  The Equity Pledge Agreement and each of the
other documents, pledge agreements and related documents, pursuant to which the
owners thereof will pledge to the Collateral Agent for the 


 


16

















 


benefit of the
Secured Parties all of their respective right, title and interest in the
Pledged Equity Interests (the “Equity Pledge. Documents”); and


 


(iii)          Direct
Agreements.  Each of the following agreements and any
other agreement consenting to the assignment to the Secured Parties of the
Borrower’s interest in any Project Documents (the “Direct Agreements”),
together with customary legal opinions and officer’s certificates in connection
therewith:


 


(A)          the Consent and Direct Agreement among the Project Construction
Contractor, the Borrower and the Collateral Agent;


 


(B)           the Consent and Direct Agreement among the Battery Supplier, the
Borrower and the Collateral Agent;


 


(C)           the Consent and Direct Agreement among the Turbine Supplier, the
Borrower and the Collateral Agent;


 


(D)          the Consent and Direct Agreement among the Project Operator, the
Borrower and the Collateral Agent;


 


(E)           the Consent and Direct Agreement among the Turbine Operator, the
Borrower and the Collateral Agent;


 


(F)           the Consent and Direct Agreement among the Battery Operator, the
Borrower and the Collateral Agent;


 


(G)           the Consent and Direct Agreement among the Output Purchaser, the
Borrower and the Collateral Agent; and


 


(H)          any other Consent and Direct Agreement entered into from time to time
after the Financial Closing Date among a Project Participant, the Borrower and
the Collateral Agent.


 


(e)           Subordination
Agreements.  Each Subordination Agreement required by the
DOE.


 


(f)            Other
Documents.  Any other documents and agreements as may be
required under the Program Requirements or as otherwise reasonably required by
DOE.


 


4.1.2.       Project
Documents.


 


DOE shall have received a copy of a fully executed
original of each of the following documents, each of which shall be in form and
substance satisfactory to DOE, and certified by the Borrower that (x) such
copy is a true, correct, and complete copy of such document (including all
schedules, exhibits, attachments, 


 


17

















 


supplements and amendments thereto and any related
protocols or side letters), (y) such document has been duly executed and
delivered by the parties thereto and is in full force and effect, and (z) to
the Borrower’s knowledge, no party to such document is, or but for the passage
of time or giving of notice or both will be, in breach of any obligation
thereunder:


 


(a)           Land
Documents.  Each of the contracts and other documents
evidencing the Borrower’s ownership or control of land and rights to land for
the Project, all easements, licenses, and covenants, conditions and
restrictions in connection with the Project Site, and any and all other
documents affecting an interest in or right to use the Project Site (the “Land
Documents”).


 


(b)           Construction
Documents.  Each of the following documents and all other
contracts required for construction, procurement, installation, and improvement
of land, buildings, equipment, and manufacturing facilities for the Project,
including related material subcontracts entered into after the Financial
Closing Date, as in effect from time to time (the “Construction Documents”):


 


(i)            the
Engineering Agreements;


 


(ii)           an
assignment of each Engineering Agreement to the Borrower;


 


(iii)          the
Project Construction Contract;


 


(iv)          the
Turbine Supply Documents;


 


(v)           the
Battery Purchase Agreement;


 


(vi)          the
Transformer Agreement; and


 


(vii)         the
Equipment Purchase Agreement, until such time as Borrower’s rights and
interests under such agreement are transferred to the Output Purchaser in
accordance with the terms of the Power Purchase Agreement.


 


(c)           Operating
Documents.  Each of the following documents and all other
contracts required for operation and maintenance of the Project (the “Operating
Documents”):


 


(i)            the
Power Purchase Agreement;


 


(ii)           the
Project O&M Agreement;


 


(iii)          the
Battery O&M Agreement;


 


(iv)          the
Turbine O&M Agreement;


 


18

















 


(v)           the
Turbine Warranty Agreement; and


 


(vi)          the
Administrative Services Agreement.


 


4.1.3.       Advance
Schedule.


 


At least ten (10) Business Days prior to the
Financial Closing Date (or such shorter period as may be satisfactory to DOE),
DOE shall have received, in form and substance satisfactory to DOE in
consultation with the Lender’s Engineer, a copy of the Advance Schedule,
certified by the Borrower, the Sponsor and the Lender’s Engineer, which shall
be, as of the date specified in the Borrower Certificate, the Borrower’s good
faith estimate in all material respects, based on all facts and circumstances
then existing and known to the Borrower and the Sponsor, of the timing and
amount of proposed Advances and Equity Contributions for the Project (showing
the total Advances expected in each calendar month).


 


4.1.4. Financial Plan; Base Case Projections;
Project Milestone Schedule and Construction Budget.


 


The Lender’s Engineer and DOE shall have received,
unless otherwise set forth below, at least ten (10) Business Days prior to
the Financial Closing Date (or such shorter period as may be satisfactory to
DOE) the following items, each in form and substance satisfactory to DOE in
consultation with the Lender’s Engineer, and certified by the Borrower, the
Sponsor and the Lender’s Engineer, which shall be, as of the date specified in
the Borrower Certificate, the Borrower’s reasonable estimate of the information
contained therein:


 


(i)            the
Project Plans, certified by the Lender’s Engineer;


 


(ii)           an
updated Financial Plan, acceptable to DOE, together with evidence that the DOE
Credit Facility Commitment, when combined with other funds committed to the
Project, including the Base Equity, will be available and sufficient to carry
out the Project and pay Total Project Costs (including Debt Service through
Operational Completion and required funding of reserve accounts);


 


(iii)          the
Base Case Projections, including a computer file containing the Base Case
Projections and the underlying models and assumptions and explanations thereto;


 


(iv)          the
Project Milestone Schedule;


 


(v)           the
Construction Budget; and


 


19

















 


(vi)          the
Lender’s Engineer and DOE shall have received and approved, at least ten (10) Business
Days prior to the Financial Closing Date, a detailed description, with
supporting documents as reasonably requested, of Development Costs incurred to
date and a Development Costs Statement summarizing those costs which the
Borrower seeks credit as Approved Pre-Closing Equity Credit to be applied
toward Base Equity and which are to be reviewed by the Lender’s Engineer.


 


4.1.5.       Financial
Statements.


 


At least ten (10) Business Days prior to the
Financial Closing Date (or such shorter period as may be satisfactory to DOE,
DOE shall have received, in form and substance satisfactory to DOE, the most
recent audited Financial Statements of the Sponsor and the most recent
unaudited Financial Statements, from each of the Borrower, Kahuku Holdings and
the Sponsor, together in each case with a corresponding Financial Officer
Certificate.


 


4.1.6.       Update
of Conditional Commitment.


 


Either (i) DOE shall have determined that no
material changes are proposed with respect to the terms and conditions provided
in the term sheet, or (ii) at least thirty (30) days prior to the
requested Financial Closing Date, Borrower shall have provided to DOE, in form
and substance satisfactory to DOE, a written summary of such changes.


 


4.1.7.       Update
of Credit Rating.


 


DOE shall have received, in form and substance
satisfactory to DOE, a credit rating of the Borrower from the Rating Agency,
dated at least thirty (30) days prior to the Financial Closing Date, in
accordance with the Applicable Regulations.


 


4.1.8.       Coverage
Ratios.


 


DOE shall have received, in form and substance
satisfactory to DOE, evidence that the Base Case Projections delivered pursuant
to Section 4.1.4 indicate throughout the term of the DOE Credit
Facility Documents a minimum annual Debt Service Coverage Ratio of 1.15 to 1.00
for the period after the Project Completion Date is expected to be achieved and
until repayment in full of the DOE Guaranteed Loan.


 


4.1.9.       Pre-Closing
Equity; No Unapproved Charges for Budgeted Contingencies.


 


DOE shall have received the following items, each
in form and substance satisfactory to DOE in consultation with the Lender’s
Engineer:


 


20














 


(i)            the
Development Costs Statement, certified by the Lender’s Engineer;


 


(ii)           certification
from the Borrower and the Lender’s Engineer that the amounts reflected in the
Approved Pre-Closing Equity Credit have been or are to be applied in accordance
with the Construction Budget only for Eligible Base Project Costs, together
with a description of amounts in the Construction Budget that have been applied
to Ineligible Base Project Costs; and


 


(iii)          certification
from the Borrower and the Lender’s Engineer that no changes have been made to
the line item for Contingencies in the Construction Budget, except for Approved
Construction Changes.


 


4.1.10.     Consents
and Approvals.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) certification from the Borrower, together with
such other evidence as DOE may request, that all Governmental Approvals and
other Required Consents listed on Schedule 5.10 (except those identified
on Schedule 5.10 as to be obtained at a later stage in the development
of the Project), each in form and substance satisfactory to DOE, have been duly
obtained and are not subject to any waiting period or appeal, and (ii) a
copy of each such Governmental Approval or other Required Consent, certified by
the Borrower as being true and complete.


 


4.1.11.     Reports.


 


DOE shall have received the Lender’s Engineer
Report, Independent Wind Resource Consultant Report and the
Interconnection Requirements Study, each in form and substance satisfactory to
DOE.


 


4.1.12.     Consultants’
and Advisors’ Certificates.


 


DOE shall have received, in form and substance
satisfactory to DOE, the following certificates, each dated the Financial
Closing Date:


 


(i)            Lender’s
Engineer Certificate.  A Lender’s
Engineer Certificate regarding the matters required to be certified by it as
set forth in this Section 4.1 and such other matters specified in the form
attached as Exhibit Dl;


 


(ii)           Insurance
Advisor Certificate.  An Insurance
Advisor Certificate regarding the scope of coverage proposed of the Required
Insurance that has been obtained by the Borrower in the form attached as Exhibit Fl;
and


 


(iii)          Plans
and Budgets; Accountant Letter.  Each
of (i) a certification from the Lender’s Engineer as to the Financial Plan
and the Construction Budget, (ii) a certification from the Borrower
relating to the tax


 


21

















 


assumptions in the Base Case Projections, and (iii) a
certification from the Lender’s Engineer as to its independent review of the
technical inputs included in the Base Case Projections.


 


4.1.13.     Fee
Arrangements for Independent Consultants.


 


DOE shall have received, in form and substance
satisfactory to DOE, evidence that the Periodic Expenses of any Independent
Consultants incurred and invoiced prior to the Financial Closing Date (x) have
been paid in full, (y) are to be paid with the proceeds of the requested
Advance, or (z) are to be paid by other satisfactory arrangements.


 


4.1.14.     Construction
Contract Price.


 


DOE shall have received, in form and substance satisfactory
to DOE in consultation with the Lender’s Engineer, certification from the
Borrower and the Lender’s Engineer that the price set forth in each
Construction Document has not been amended, changed or modified from the price
as of the Financial Closing Date, except for Approved Construction Changes.


 


4.1.15.     Notice
to Proceed; Conditions Precedent to Construction Contracts.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer, certification from
the Borrower and the Lender’s Engineer that (i) all conditions precedent
to effectiveness of, or the issuance of the Construction Notice to Proceed or
performance of obligations under, the Project Construction Contract, have been
satisfied or waived, or will be concurrently with the initial Advance, and (ii) a
Construction Notice to Proceed under the Project Construction Contract has been
issued, or will be issued concurrently with the initial Advance, in either
event that specifies that construction work shall commence not later than
thirty (30) days after the initial Advance.


 


4.1.16.     Market
Study.


 


DOE shall have received a report from DOE’s
marketing advisor in form and substance satisfactory to DOE:


 


4.1.17.     Security
Interests.


 


(a)           Security
Interests.  DOE shall have received,
in form and substance satisfactory to DOE and the Collateral Agent, evidence
that all security interests in the Collateral Security intended to be created
by the Security Documents have been or will be created and, where appropriate,
registered or otherwise perfected to create a first priority perfected security
interest and Lien, subject only to


 


22

















 


Permitted Liens, over the Collateral Security in
favor of the Collateral Agent, as applicable. Subject only to Permitted Liens,
each such Lien (i) to the extent it arises or attaches under the Uniform
Commercial Code of any jurisdiction in the United States, shall be valid and
enforceable and shall constitute a first priority perfected security interest,
and (ii) in all other cases, shall be enforceable against the Borrower,
any subsequent lienor (including a judgment lienor), any junior lienor, or any
transferee for or not for value, in bulk, by operation of law, for the benefit
of creditors, or otherwise.


 


(b)           Filings.  The Collateral Agent shall have received, in
form and substance satisfactory to DOE and the Collateral Agent, that (i) each
of the Security Documents has been or will be duly filed and registered or
recorded in every jurisdiction in which such filing and registration or
recording is necessary to make valid and effective the Liens intended to be
created thereby and the rights of the Secured Parties thereunder, (ii) all
fees and duties in connection with such registration (x) have been paid in
full, (y) are to be paid with the proceeds of the requested Advance, or (z) are
to be paid by other satisfactory arrangements.


 


(c)           Collateral
Agent Certificate.  DOE shall have
received, in form and substance satisfactory to DOE, a Collateral Agent
Certificate as to all matters as are required to be certified by the Collateral
Agent pursuant to this Section 4.1.


 


4.1.18.     Borrower
Certificate; Kahuku Holdings Certificate; Sponsor Certificate;  Project Operator Certificate; Solvency Certificate.


 


DOE shall have received (i) a Borrower
Certificate regarding the matters required to be certified by it as set forth
in this Section 4.1 and such other certifications as may be
required to be made to the Credit Parties by the Borrower as of the Financial
Closing Date under the DOE Credit Facility Documents, (ii) a Kahuku
Holdings Certificate regarding the matters required to be certified by it as
set forth in this Section 4.1 and such other certifications as may
be required to made to the Credit Parties by Kahuku Holdings as of the
Financial Closing Date under the DOE Credit Facility Documents, (iii) a
Sponsor Certificate regarding the matters required to be certified by it as set
forth in this Section 4.1 and such other certifications as may be
required to made to the Credit Parties by the Sponsor as of the Financial
Closing Date under the DOE Credit Facility Documents, (iv) a Project
Operator Certificate regarding the matters required to be certified by it as
set forth in this Section 4.1 and such other certifications as may
be required to made to the Credit Parties by the Project Operator as of the
Financial Closing Date under the DOE Credit Facility Documents, and (v) the
Solvency Certificate.


 


4.1.19.     Legal
Opinions.


 


DOE and the Collateral Agent shall have received
legal opinions from each of Chadbourne & Parke LLP, Cades Schutte LLP,
Carlsmith Ball LLP, Morgan


 


23

















 


Lewis & Bockius LLP and Law Offices of Kim
McCormick, dated the Financial Closing Date and in form and substance
satisfactory to DOE, with respect to the laws of the jurisdictions governing
the Transaction Documents to which each of the Borrower, Kahuku Holdings, the
Sponsor and the Project Operator is a party and the laws of the jurisdictions
of organization of the Borrower, Kahuku Holdings, the Sponsor and the Project
Operator. Such legal opinions shall be in customary form and include, as
applicable and without limitation, the following (i) due authorization,
execution, delivery, and enforceability of the Transaction Documents to which
such First Wind Entity is a party, (ii) creation and perfection of
security interests, (iii) receipt of all Governmental Approvals necessary
to (1) construct and operate the Project, (2) enter into financing
arrangements with respect to the Project, and (3) enter into the
applicable Transaction Documents, and that such Governmental Approvals are in
full force and effect and all applicable appeal periods have expired, (iv) the
DOE will not be regulated as an electric corporation or public utility under
the United States or Hawaii law solely as a result of entering into Transaction
Documents, (v) absence of conflicts with law, agreements or organizational
documents, and absence of litigation, and (vi) non-consolidation matters.


 


4.1.20.     Taxes;
Costs and Expenses.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Borrower, and such other evidence
as DOE may reasonably request, that all required Taxes, all Periodic Expenses,
and all recordation and other costs, fees and Periodic Expenses due in
connection with the execution, delivery, filing, registration, or performance
of the Transaction Documents or the perfection of the security interests in the
Collateral Security (x) have been paid in full, (y) are to be paid
with the proceeds of the requested Advance, or (z) are to be paid by other
satisfactory arrangements.


 


4.1.21.     Evidence
of Insurance.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Borrower and the Insurance Advisor,
certificates from insurers, and such other evidence as DOE may reasonably
request (i) that insurance coverage for the Project satisfies the
requirements for Required Insurance as set forth on Schedule 6.3(b), and
(ii) that the applicable insurance policies are in full force and effect
without default.


 


4.1.22.     Third-Party
Materials Supply Agreements.


 


DOE shall have received copies of each of the
Third-Party Materials Supply Agreements in effect on the Financial Closing
Date, if any, certified by the Borrower as being true, correct and complete as
of the Financial Closing Date.


 


24

















 


4.1.23.     Project
Accounts.


 


DOE shall have received, in form and substance satisfactory
to DOE, certification from the Collateral Agent that each of the Project
Accounts has been established in accordance with the Collateral Agency
Agreement.


 


4.1.24.     Lobbying
Certification.


 


DOE shall have received, in form and substance
satisfactory to DOE, evidence that the Borrower has provided a Standard
Form-LLL “Disclosure Form to Report Lobbying” as required.


 


4.1.25.     Title
to Project Site.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) evidence of the Borrower’s ownership of
unencumbered fee title (subject only to Permitted Liens), under the relevant
laws of Hawaii of the owned portion of the Project Site as are necessary for
the development of the Project, (ii) the ALTA Survey with respect to the
owned portion of the Project Site, and (iii) an ALTA Deed of Trust Loan
Policy (or similar policy form) issued by the Title Company, with such
coinsurers or reinsurers as may be reasonably acceptable to DOE, in the
aggregate amount of not less than $7,700,000 insuring as of the Financial
Closing Date that the Deed of Trust creates a first and prior Lien on the owned
portion of the Project Site subject only to Permitted Liens.


 


4.1.26.     Environmental.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) environmental assessments for the Project Site, (ii) a
Finding of No Significant Impact with respect to the Project Site, and (iii) evidence
of satisfaction of any additional environmental requirements (including
required mitigations) in accordance with Environmental Laws, including, without
limitation, all required National Environmental Policy Act documentation.


 


4.1.27.     Earthquake
Risk Assessment.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer, (i) a
geotechnical report prepared by an independent geologist satisfactory to DOE
setting forth an acceptable assessment of the earthquake risk for the Project
Site and any other property where the Project will be located and
recommendations for mitigation of earthquake risk, and (ii) certification
from the Borrower and the Lender’s Engineer, together with such other evidence
as DOE may request, that such recommendations for mitigation of earthquake risk
have been adequately addressed in the Construction Documents.


 


25

















 


4.1.28.     Utility
Services.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer, together with
such other evidence as DOE may request, certification from the Borrower and the
Lender’s Engineer, that (i) arrangements reflected in the Project
Milestone Schedule and the Construction Budget have been made under the
Construction Documents or are otherwise available to the extent required in Section 5.24
for the provision of all services, materials and utilities necessary for the
construction, startup and commissioning of the Project, and (ii) arrangements
reflected in the Base Case Projections have been made or can be made under the
Operating Documents to the extent then appropriate in the determination of DOE
or are otherwise available to the extent required in Section 5.24
for the provision of all services, materials and utilities necessary for the
operation and maintenance of the Project as contemplated by the Project
Documents.


 


4.1.29.     Conditions
Precedent in DOE Credit Facility Documents.


 


Each condition precedent to the initial Advance
under the DOE Credit Facility Documents shall have been satisfied in the sole
determination of each relevant Credit Party thereto.


 


4.1.30.     Conditions
Precedent in Transaction Documents.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Borrower that to the Borrower’s
Knowledge all conditions precedent to the obligations of any party under any
Transaction Document to be performed as of the Financial Closing Date have been
satisfied or waived.


 


4.1.31.     DOE
Requirements.


 


All DOE Requirements required to have been
satisfied as of the Financial Closing Date shall have been satisfied.


 


4.1.32.     Confirmation
of Non-Disclosure and Assignment of Inventions Agreements.


 


DOE shall have received, in form and substance
satisfactory to DOE, together with such other evidence as DOE may request,
certification from the Borrower and the Sponsor of the existence of valid and
binding non-disclosure and assignment of invention agreements with all
employees of the Borrower.


 


4.1.33.     No
Litigation.


 


There shall be no pending or threatened (in
writing) Action (i) that relates to the Project or to any transaction
contemplated by any of the Transaction Documents


 


26

















 


or (ii) to which the Borrower, the Sponsor or,
to the Borrower’s Knowledge, any other Major Project Participant is a party,
that (in the case of this clause (ii) only), either singly or in the
aggregate, has, or could reasonably be expected to have, a Material Adverse
Effect. DOE shall have received, in form and substance satisfactory to DOE, all
such information as it shall have requested in respect of any pending or
threatened Action (i) that relates to the Project or to any transactions
contemplated by any of the Transaction Documents or (ii) to which the
Borrower, the Sponsor or any other Major Project Participant is a party.


 


4.1.34.     Funding
of Base Equity Amount; Equity Commitments.


 


DOE shall have received evidence in form and
substance satisfactory to DOE and the Collateral Agent that an amount equal to (x) the
Base Equity Commitment, less (y) the Approved Pre-Closing Equity Credit,
has been deposited in the Equity Contribution Account and that all Equity
Commitments are in full force and effect.


 


4.1.35.     Due
Diligence Review.


 


DOE shall have confirmed to the Borrower that it
has completed its due diligence review of the Project and all other matters
related thereto and that the results thereof are satisfactory to DOE.


 


4.1.36.     Review
and Payment of Credit Subsidy.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation (i) from OMB that OMB has reviewed and
approved DOE’s calculation of the Credit Subsidy Cost for the DOE Guarantee as
of the Financial Closing Date, and (ii) from the U.S. Treasury Department
that DOE has made payment in full of the Credit Subsidy Cost in accordance with
the Program Requirements.


 


4.1.37.     Intellectual
Property.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation that the Borrower owns or holds a valid and
enforceable license or right to use all Technology and Intellectual Property
Rights necessary for the construction and operation of the Project for the term
of the DOE Credit Facility Documents (which includes, without limitation, all
Intellectual Property Rights granted or conferred under the Construction
Documents).


 


4.1.38.     Payment
and Performance Bonds.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation that any payment and performance bonds
required to be issued under any Project Construction Contract are in full force
and effect.


 


27

















 


4.1.39.     No
Judgment Liens.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation that that the Borrower does not have a
judgment lien against any of its property for a debt owed to the United States
of America.


 


4.1.40.     USA
Patriot Act.


 


DOE shall have received at least ten (10) Business
Days prior to the Financial Closing Date, all documentation and other
information required by financial institutions in comparable transactions under
applicable “know-your-customer” and anti-money laundering rules and
regulations, including the USA Patriot Act.


 


4.1.41.     Davis-Bacon
Compliance.


 


DOE shall have received, in form and substance
satisfactory to DOE, a written certification from Borrower, as of the Financial
Closing Date, that the Borrower has timely complied in all material respects
with the requirements set forth in Section 6.30 and Exhibit A4
with respect to the Davis-Bacon Act.


 


4.1.42.     OMB
Certification.


 


OMB shall have certified in writing (in form and
substance satisfactory to DOE) that the DOE Credit Facility Documents and the
Project comply with the provisions of the Omnibus Appropriations Act, 2009,
P.L. No. 111-8, Division C, Title III, as amended by Section 408 of
the Supplemental Appropriations Act, 2009, P.L. No. 111-32.


 


4.1.43.     Turbine
Supplier Report.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Lender’s Engineer that the Turbine
Supplier has successfully implemented all known corrective actions with respect
to the turbines that are the subject of the Turbine Supply Documents.


 


4.2.         Quarterly
Conditions Precedent to Advances.


 


The obligation of FFB to make, and DOE to
guarantee, each Advance (including the initial Advance) is subject to the prior
satisfaction (or waiver in writing) as determined by DOE, in its sole
discretion, of each of the following conditions precedent (the “Quarterly
Conditions  Precedent”) as of a date
(the “Quarterly Approval Date”) not more than three (3) months
prior to the Requested Advance Date (which Quarterly Approval Date shall be the
date falling three (3) months after the Financial Closing Date and each
date falling three (3) months thereafter or, if such date is not a
Business Day, then in each case, the first Business Day thereafter):


 


28

















 


4.2.1.       Certification
of Updated Advance Schedule.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer:


 


(i)            certification
from the Borrower and the Lender’s Engineer that the updated Advance Schedule
provided by the Borrower, including the estimates set forth therein, of the
timing and amount of Advances required in connection with the construction and
financing of the Project is consistent with the Construction Budget and the
Project Milestone Schedule;


 


(ii)           certification
from the Borrower and the Lender’s Engineer that the proceeds of all Advances
made since the Financial Closing Date (for the first Quarterly Approval Date)
or the previous Quarterly Approval Date (for all other Quarterly Approval
Dates) have been applied as set forth in the corresponding FFB Advance Requests
or as otherwise approved by DOE; and


 


(iii)          certification
from the Borrower that the proceeds of all Advances to be made with respect to
the updated Advance Schedule for the upcoming three-month period will be needed
for Eligible Project Costs that have been incurred or by the Requested Advance
Date will be incurred, together with a description in reasonable detail of such
Eligible Project Costs, and that the cumulative percentage of Eligible Project
Costs that are funded by the proceeds of all Advances made since the Financial
Closing Date does not violate the Debt-to-Equity Contribution Ratio requirement
of 79:21.


 


4.2.2.       Construction
Progress Report.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer:


 


(a)           the
most recent Construction Progress Report, certified by the Borrower and the
Lender’s Engineer as being accurate and complete in all material respects based
upon the Borrower’s good faith reasonable estimates of the information
contained therein with respect to the following:


 


(i)            construction
of the Project is proceeding in accordance with the Project Milestone Schedule
and the Construction Budget, or if construction is not proceeding in accordance
with the Project Milestone Schedule and the Construction Budget, then the
Construction Progress Report shall describe any variances and state that the
variances could not reasonably be expected to have a Material Adverse Effect;


 


(ii)           the
Project is expected to achieve Operational Completion by the Anticipated
Operational Completion Date; and


 


29

















 


(iii)          Total
Funding Available is sufficient to pay all remaining Total Project Costs
(including Debt Service through Operational Completion, DOE Credit Facility
Fees, Periodic Expenses, identified Cost Overruns, and required funding of
reserve accounts);


 


(iv)          evidence
that as of the date of such Construction Progress Report (A) each
Construction Contractor, any sub-contractor, and each Operator shall have
irrevocably waived and released all Liens, statutory or otherwise, that any of
them may have or acquire on the Collateral Security with respect to work
completed prior to the last submission for payment; and (B) all unpaid
balances that are due or unsettled claims with any Construction Contractor or
any sub-contractor, if any, have been adequately paid and that those being
contested or negotiated in good faith are provisioned to the reasonable
satisfaction of DOE; and


 


(b)           certification
from the Borrower and the Lender’s Engineer that, as of the Quarterly Approval
Date:


 


(i)            the
Borrower is in material compliance with all Environmental Laws and any other
applicable environmental requirements in respect of the Project;


 


(ii)           the
Borrower is in material compliance with all Governmental Approvals;


 


(iii)          there
is no reason to believe that anything is incorrect or misleading in any
material respect in the most recent Construction Progress Report; and


 


(iv)          nothing
has occurred since the date of the most recent Construction Progress Report or
the date of the Lender’s Engineer’s most recent site visit, whichever is later,
that could reasonably be expected to prevent construction of the Project and
payment of Total Project Costs (including Debt Service through Operational
Completion and required funding of reserve accounts) in accordance with the
Project Milestone Schedule and the Construction Budget, together with the
resources available to the Borrower from the Overrun Equity Commitment and,
with DOE’s consent, as provided in the Sponsor Guarantee.


 


4.2.3.       Fees
and Expenses.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation that all DOE Credit Facility Fees and
Periodic Expenses then due (x) have been paid in full, (y) are to be
paid with the proceeds of the requested Advance, or (z) are to be paid by
other satisfactory arrangements.


 


30














 


4.2.4.       Consents
and Approvals.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) certification from the Borrower, together with
such other evidence as DOE may reasonably request or as may be required under
the Transaction Documents, that all consents and approvals of third Persons as
may be required in connection with the proposed Advances and all Governmental
Approvals required as of the Quarterly Approval Date have been duly obtained
and are in full force and effect and are not under appeal or subject to other
proceedings or unsatisfied conditions that could reasonably be expected to
result in a material modification or cancellation thereof, and (ii) copies
of all material Governmental Approvals not previously delivered, certified by
the Borrower as being true and complete.


 


4.2.5.       Insurance.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) certification from the Borrower and the Insurance
Advisor that all Required Insurance is in place, in good standing and in full
force and all premiums due thereon (x) have been paid in full, (y) are
to be paid with the proceeds of the requested Advance, or (z) are to be
paid by other satisfactory arrangements, and (ii) certificates or policies
with respect to any additional renewal or substitute insurance obtained by the
Borrower since the previous Quarterly Approval Date, designating the Collateral
Agent as loss payee and additional insured, as appropriate, certified by the
Borrower and the Insurance Advisor as being true and complete.


 


4.2.6.       Proceedings
and Other Documents.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) certification from the Borrower that all
corporate and similar proceedings concluded since the last Quarterly Approval
Date are in proper form and substance, (ii) original counterparts or
copies certified by the Borrower of all Additional Project Documents entered
into since the last Quarterly Approval Date, and (iii) such other evidence
as DOE may reasonably request in order to evidence the consummation of the
transactions contemplated thereby and compliance with the Quarterly Conditions
Precedent.


 


4.2.7.       Representations
and Warranties; No Default; Program Requirements.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Borrower in the Master Advance
Notice, and such other evidence that DOE may reasonably request, that (i) the
representations and warranties of the Borrower in the Loan Documents (other
than those that speak only as to an earlier date) are true and correct in all
material respects, (ii) no Event of Default or


 


31

















 


Potential Default has occurred and is continuing,
and (iii) the Borrower is in compliance with the Program Requirements.


 


4.2.8.       No
Change in Circumstances.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer, certification
from the Borrower that no event has occurred since the date of this Agreement
(for Advances prior to the first Quarterly Approval Date) and, thereafter,
since the previous Quarterly Approval Date, or could reasonably be expected to
occur, with respect to the Project or any Project Participant that has had or
could reasonably be expected to have a Material Adverse Effect.


 


4.2.9.       Performance
Metrics.


 


DOE shall have received, in form and substance
satisfactory to DOE in consultation with the Lender’s Engineer, certification
from the Borrower and the Lender’s Engineer that the Borrower has achieved the
targets provided in Project Milestone Schedule applicable to such Quarterly
Approval Date.


 


4.2.10.     Certificates.


 


DOE shall have received, in form and substance
satisfactory to DOE:


 


(i)            Borrower
Certificate.  A Borrower Certificate
regarding the matters required to be certified by it as set forth in this Section 4.2
in the form attached as Exhibit C2;


 


(ii)           Kahuku
Holdings Certificate.  A Kahuku
Holdings Certificate regarding the matters required to be certified by it as
set forth in this Section 4.2 in the form attached as Exhibit E4;


 


(iii)          Sponsor
Certificate.  A Sponsor Certificate
regarding the matters required to be certified by it as set forth in this Section 4.2
in the form attached as Exhibit E2;


 


(iv)          Lender’s
Engineer Certificate.  A Lender’s
Engineer Certificate regarding the matters required to be certified by it as
set forth in this Section 4.2 in the form attached as Exhibit D2;


 


(v)           Insurance
Advisor Certificate.  An Insurance
Advisor Certificate regarding the matters required to be certified by it as set
forth in this Section 4.2 in the form attached as Exhibit F2;
and


 


32

















 


(vi)          Collateral
Agent Certificate.  A Collateral
Agent Certificate regarding the matters required to be certified by it as set
forth in this Section 4.2 in the form attached as Exhibit G2.


 


4.2.11.     Construction
Budget.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Borrower and the Lender’s Engineer
that (i) there have been no changes to the Construction Budget since the
previous Quarterly Approval Date, except for Approved Construction Changes, and
(ii) the aggregate amounts expended for each type of Project Cost do not
exceed the aggregate amounts budgeted for such costs in the Construction
Budget, except for Approved Construction Changes.


 


4.2.12.     Equity
Contributions.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from Kahuku Holdings, the Sponsor and the
Collateral Agent, and such other evidence as DOE may reasonably request, that
the amount of Base Equity required with respect to Advances made as of the date
of the updated Advance Schedule has been funded through allocations of the
Approved Pre-Closing Equity Credit or amounts transferred from the Equity
Contribution Account as required under the Equity Funding Agreement.


 


4.2.13.     Base
Case Projections.


 


DOE shall have received, in form and substance
satisfactory to DOE, updated Base Case Projections.


 


4.3.          Conditions
Precedent to Each Advance.


 


The obligation of FFB to make, and DOE to
guarantee, each Advance (including the initial Advance) is subject to the prior
satisfaction (or waiver in writing) as determined by DOE, in its sole
discretion of each of the following conditions precedent (the “Advance
Conditions Precedent”) as of the date of the relevant Master Advance Notice
and as of the Advance Date:


 


4.3.1.       Advance
Request; Quarterly Approved Advance Schedule.


 


DOE shall have received, in form and substance
satisfactory to DOE, (i) a Master Advance Notice, together with all
certificates and documentation required under Section 2.3, (ii) certification
from the Borrower that (A) the requested Advance conforms in all material
respects with the Quarterly Approved Advance Schedule and any difference is
expressly noted in the Master Advance Notice), (B) the representations and
warranties certified in connection with the previous Quarterly Approval Date
(other than those that speak only as to an earlier date) are true and correct
in all material respects, (C) the Borrower is in compliance in all
material


 


33

















 


respects with all covenants and other obligations
under this Agreement, (D) no event, including any Change of Law, has
occurred since the previous Quarterly Approval Date with respect to the Project
or the Borrower that has had or could reasonably be expected to have a Material
Adverse Effect, and (iii) certification from the Sponsor that no event has
occurred since the previous Quarterly Approval Date with respect to the Sponsor
and Kahuku Holdings that has had or could reasonably be expected to have a
Material Adverse Effect.


 


4.3.2.       Issuance
of FFB Advance Request Approval Notice.


 


FFB shall have received, in accordance with the DOE
Credit Facility Documents, the FFB Advance Request signed by the Borrower,
together with the FFB Advance Request Approval Notice signed by DOE.


 


4.3.3.       Fees
and Expenses.


 


DOE shall have received, in form and substance
satisfactory to DOE, confirmation that all DOE Credit Facility Fees and
Periodic Expenses then due (x) have been paid in full, (y) are to be
paid with the proceeds of the requested Advance, or (z) are to be paid by
other satisfactory arrangements.


 


4.3.4.       Absence
of Drawstop Notice.


 


The Loan Servicer shall not have received a
Drawstop Notice with respect to such Advance.


 


4.3.5.       Base
Equity.


 


DOE shall have received, in form and substance
satisfactory to DOE, certification from the Collateral Agent, together, with
such other evidence as DOE may request, (a) of the aggregate amount of
Base Equity that has been funded with respect to such Advance, and (b) that,
after the application of such Advance, the amount of Base Equity that has been
used to fund Eligible Project Costs is equal to at least 21% of the Eligible
Project Costs incurred and paid.


 


4.3.6.       Title
Continuation.


 


DOE shall have received, in form and substance
satisfactory to DOE, a title run-down and date-down endorsement (dated within
two (2) Business Days of the applicable Advance Request) of the Borrower’s
(or in respect of leased real property, the landlord’s) continued ownership of
unencumbered fee title (subject only to Permitted Liens), under the relevant
laws of Hawaii, of the Project Site as is necessary for the development of the
Project.


 


34

















 


4.3.7.       Additional
Requirements.


 


DOE shall have received, in form and substance
satisfactory to DOE, written certification from an Authorized Official of the
Borrower stating, to such Authorized Official’s Knowledge as of a date not
earlier than fifteen (15) Business Days prior to the relevant Advance Date,
that (i) the Borrower has timely complied in all material respects with (A) its
reporting obligations under Section 6.29(a) with respect to
the Recovery Act and (B) the requirements set forth in Section 6.30
and Exhibit A4 with respect to the Davis-Bacon Act, and (ii) that
Commencement of Construction has occurred.


 


4.3.8.       Advance
Schedule; Base Case Projections; and Construction Budget.


 


In respect of the initial Advance, the Lender’s
Engineer and DOE shall have received, at least two (2) Business Days prior
to the Initial Advance Date (or such shorter period as may be satisfactory to
DOE), the following items, each in form and substance satisfactory to DOE in
consultation with the Lender’s Engineer:


 


(i)            updated
Advance Schedule, certified by the Borrower, the Sponsor and the Lender’s
Engineer, which shall be the Borrower’s good faith estimate, as of the date
delivery, of the information contained therein in all material respects, based
on all facts and circumstances existing and known to the Borrower and the
Sponsor, of the timing and amount of proposed Advances and Equity Contributions
for the Project (showing the total Advances expected in each calendar month);


 


(ii)           updated
Base Case Projections, including a computer file containing the Base Case
Projections and the underlying models and assumptions and explanations thereto,
certified by the Borrower, the Sponsor and the Lender’s Engineer, which shall
be the Borrower’s reasonable estimate, as of the date delivery, of the
information contained therein;


 


(iii)          updated
Construction Budget, certified by the Borrower, the Sponsor and the Lender’s
Engineer, which shall be the Borrower’s reasonable estimate, as of the date
delivery, of the information contained therein; and


 


(iv)          certification
from the Borrower that (A) the representations and warranties made in Section 5.26
are true and correct, as of the date of their delivery, with respect to the Advance
Schedule, Base Case Projections, and Construction Budget delivered pursuant to
this Section 4.3.8, and (B) the updated Advance Schedule, Base
Case Projections, and Construction Budget delivered pursuant to this Section 4.3.8
do not contain any material adverse change from the versions that were
delivered as of the Financial Closing Date.


 


35

















 


ARTICLE 5 

REPRESENTATIONS AND WARRANTIES


 


The Borrower makes all of the following
representations and warranties to and in favor of each Credit Party as of (i) the
Financial Closing Date, (ii) each Quarterly Approval Date, (iii) each
Advance Date, and (iv) the Project Completion Date, except as such
representations and warranties relate to an earlier date, and all of these
representations and warranties shall survive the Financial Closing Date.


 


5.1.         Organization.


 


The Borrower (a) is a limited liability
company organized and existing under the laws of Delaware, (b) is duly
qualified to do business in Hawaii and in each other jurisdiction where the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect, and (c) has all requisite corporate power and authority to (i) own
or hold under lease and operate the property it purports to own or hold under
lease, (ii) carry on its business as now being conducted and as now
proposed to be conducted in respect of the Project, (iii) incur
Indebtedness and create Liens on its properties, and (iv) execute,
deliver, perform and observe the terms and conditions of each of the
Transaction Documents to which it is a party.


 


5.2.         Authorization;
No Conflict.


 


The Borrower has duly authorized, executed and
delivered the Loan Documents and the other Transaction Documents to which it is
a party, and neither its execution and delivery thereof nor its consummation of
the transactions contemplated thereby nor its compliance with the terms thereof
(a) does or will contravene its Organizational Documents or any other
Governmental Rules, (b) does or will contravene or result in any breach or
constitute any default under any Governmental Judgment, (c) does or will
contravene or result in any breach or constitute any default under, or result
in or require the creation of any Lien upon any of its revenues, properties or
assets under any agreement or instrument to which it is a party or by which it
or any of its revenues, properties or assets may be bound, except for Permitted
Liens, or (d) does or will require the consent or approval of any Person
other than the Required Consents and any other consents or approvals that have
been obtained and are in full force and effect.


 


5.3.         Legality,
Validity and Enforceability.


 


(a)           Each
Transaction Document to which the Borrower is a party is a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to Bankruptcy Laws and general principles of
equity regardless of whether enforcement is considered in a proceeding at law
or in equity.


 


36

















 


(b)           To
Borrower’s Knowledge, each Transaction Document is the legal, valid and binding
obligation of any other party thereto (other than Kahuku Holdings, the Sponsor
and the Project Operator), enforceable against such party in accordance with its
terms, subject to Bankruptcy Laws and general principles of equity regardless
of whether enforcement is considered in a proceeding at law or in equity.


 


(c)           Each
Transaction Document to which the Sponsor, Kahuku Holdings or the Project
Operator is a party is the legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms, subject to Bankruptcy Laws
and general principles of equity regardless of whether enforcement is
considered in a proceeding at law or in equity.


 


5.4.         Capitalization.


 


All of the Equity Interests of the Borrower are
owned by Kahuku Holdings. There are no outstanding options or rights for
conversion into or acquisition, purchase or transfer of Equity Interests of the
Borrower or any agreements or arrangements for the issuance by the Borrower of
additional Equity Interests. The Borrower does not have outstanding (a) any
securities convertible into or exchangeable for its Equity Interests or (b) any
rights to subscribe for or to purchase, or any option for the purchase of, or
any agreement, arrangement or understanding providing for the issuance
(contingent or otherwise) of, or any call, loan commitment or claims of any
character relating to, its Equity Interests.


 


5.5.         Investments;
Subsidiaries.


 


The Borrower has not made any Investments other
than Permitted Investments. The Borrower has no Subsidiaries and does not
beneficially own the whole or any part of the Equity Interests of any other
Person.


 


5.6.         Title.


 


The Borrower owns and has, or will have, valid
legal and beneficial title to, or a valid leasehold interest in, the Project
Site, the personal property and other assets and revenues of the Borrower on
which it purports to grant Liens pursuant to the Security Documents, in each
case free and clear of any Lien of any kind except for the lien created by the
Security Documents and Permitted Liens.


 


5.7.         Leases.


 


Any Leases material to the Project in existence on
the date of this representation and under which the Borrower is lessee are
valid and subsisting, the Borrower is not in default in any material respect
under any of such Leases, and the Borrower enjoys peaceful and undisturbed
possession of the property subject to such Leases


 


37

















 


and the right to continue to enjoy such possession
during the time when such property is necessary for the Project.


 


5.8.         Security
Interests.


 


Pursuant to the Security Documents, as of the date
of each Advance, the Collateral Agent (for the benefit of the Credit Parties)
has a perfected first priority Lien in the Collateral Security, subject only to
the Permitted Liens. Such security interest in the Collateral Security will, as
of the Financial Closing Date and with respect to any subsequently acquired
property (absent a Change of Law), when so subsequently acquired, be superior
and prior to the rights of all third Persons now existing or hereafter arising
whether by way of deed of trust, mortgage, lien, security interests,
encumbrance, assignment or otherwise, except for any such rights of third
Persons permitted pursuant to this Common Agreement or the Security Documents,
including any Permitted Lien. As of the Financial Closing Date, all documents
and instruments, including the Deeds of Trust and Financing Statements, have
been recorded or filed for record in such manner and in such places as are
required, and all other action as is necessary shall have been taken to
establish and perfect the Collateral Agent’s Lien in and to the Collateral
Security (for the benefit of the Secured Parties) to the extent contemplated by
the Security Documents. All Taxes and filing fees and Periodic Expenses that
are due and payable in connection with the execution, delivery or recordation
of the Deeds of Trust and the Financing Statements, or the execution, issuance
and delivery of the FFB Promissory Note, or the mortgaging of the mortgaged
property under the Deed of Trust, have been paid or satisfactory arrangements
have been made with the relevant Credit Parties to satisfy such obligations.


 


5.9.         Liens.


 


Except for Permitted Liens, the Borrower has not
created, and is not under any obligation to create, and has not entered into
any transaction or agreement that would result in the imposition of, any Lien
upon any of its revenues, properties or assets. There are no Liens on the
Pledged Equity Interests, except for any Permitted Liens related to the rights
and interests of the Secured Parties pursuant to the Equity Pledge Documents.


 


5.10.       Permits;
Other Required Consents.


 


Except as disclosed in writing by the Borrower from
time to time, Schedule 5.10 to the Disclosure Letter sets forth all
consents and approvals, including all Governmental Approvals, that are required
to have been obtained or to be obtained by the Borrower in connection with the
Transaction Documents and the Project either (x) as of the Financial
Closing Date, or (y) to the Borrower’s Knowledge, at a later stage in the
development of the Project (the “Required Consents”). The Borrower has
filed applications for or obtained such Required


 


38

















 


Consents required as of the date of representation
(including any Required Consents disclosed in writing by the Borrower and
required on that date) and such Required Consents then required to have been
obtained are in full force and effect and are not then under appeal or subject
to other proceedings or unsatisfied conditions that could reasonably be
expected to result in a material modification or cancellation as of such date,
and Borrower has provided DOE with copies of all such Required Consents. The
Borrower is in compliance with all such Required Consents, the non-compliance
with which could reasonably be expected to have a Material Adverse Effect,
including all Federal, state, and local regulatory requirements.


 


5.11.       Litigation,
Labor Disputes.


 


(a)           Except
as set forth on Schedule 5.11 to the Disclosure Letter (or disclosed in
writing to DOE pursuant to Section 6.1(h) following the
Financial Closing Date), there is no pending or threatened (in writing) Action
that relates to the Project or to any transaction contemplated by any of the
Transaction Documents or to which the Borrower or (so long as the Sponsor has
obligations under the Sponsor Guarantee) the Sponsor is a party that, either singly
or in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect.  No such Action
is pending or threatened against any other First Wind Entity, and the Borrower
is not aware of, nor does it have any reason to expect, any such Action to be
pending or threatened against any other Major Project Participant that, either
singly or in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect.


 


(b)           The
Borrower has not failed to observe in any material respect any order of any
court, arbitrator, administrative agency or other Governmental Authority that
has, or could reasonably be expected to have, a Material Adverse Effect. There
is no injunction, writ, or preliminary restraining order of any nature issued
by an arbitrator, court or other Governmental Authority directing that any of
the transactions provided for in any of the Transaction Documents not be
consummated as herein or therein provided.


 


(c)           There
are no strikes, slowdowns or work stoppages by the employees of any of the
Borrower or, to the Borrower’s Knowledge, any Major Project Participant
on-going, or currently threatened in writing, that have caused or could
reasonably be expected to cause a Material Adverse Effect.


 


5.12.       Tax.


 


(a)           The
Borrower has filed all material tax returns required by Governmental Rules to
be filed by it and has paid (i) all income Taxes payable by it that have
become due pursuant to such tax returns and (ii) all other material Taxes
and assessments payable by it that have become due (other than those


 


39














 


Taxes that it is contesting in good faith and by
appropriate proceedings, for which reserves have been established to the extent
required by GAAP). The Borrower has paid or has provided cash or
cash-equivalent reserves adequate in the reasonable judgment of the Borrower’s
management and consistent with GAAP for the payment of all income or other
Taxes imposed on it for all prior Fiscal Years and accrued for the current
Fiscal Year to the date hereof, which reserves shall be in an amount at least
equal to the full assessed amount of such Taxes. The Borrower shall not be
liable for, absent a Change of Law, any material Tax liability in connection
with the Project or the other transactions contemplated by the Transaction
Documents that is not specifically reflected in the Base Case Projections as in
effect on the Financial Closing Date and in the Construction Budget or as
reflected in the assumptions in the then applicable Operating Forecast, as the
case may be.


 


(b)           No
withholding Tax is payable by the Borrower to any government authority in
connection with any amounts payable by the Borrower under or in respect of the
Loan Documents.


 


(c)           No
First Wind Entity, in accordance with Section 609.10(d)(21) of the
Applicable Regulations, nor, to the Borrower’s knowledge, any Major Project
Participant, has owed any delinquent Indebtedness to any Governmental Authority
of the United States, including Tax liabilities, unless the delinquency has
been resolved with the appropriate Governmental Authority in accordance with the
standards of the Debt Collection Improvement Act.


 


5.13.       Business, Indebtedness,
Contracts, Etc.


 


The Borrower has not conducted any business other
than the business contemplated by the Transaction Documents and such other
business as may be related to the Project, has no outstanding Indebtedness
other than Permitted Indebtedness and has no other liabilities other than those
permitted under the Loan Documents, and is not a party to or bound by any
contract other than those contracts permitted under the Loan Documents.


 


5.14.       Transactions
with Affiliates.


 


Except as set forth on Schedule 5.14 to the
Disclosure Letter or as permitted by Section 7.12, the Borrower is
not a party to any contracts or agreements with, and does not have any other
loan commitments to, whether or not in the ordinary course of business, any
Affiliate. The Borrower is not a party to any agreement requiring the payment
of development fees.


 


40

















 


5.15.       Compliance
with Governmental Rules.


 


In accordance with Section 609.10(d)(20) of
the Applicable Regulations, the Borrower is in compliance with, and has
conducted its business, operations, assets, equipment, property, leaseholds,
and other facilities in compliance with all Environmental Laws and in
compliance with all other Governmental Rules the noncompliance with which
could reasonably be expected to have a Material Adverse Effect, and no notices
of violation of any Governmental Rule have been issued, entered or
received by the Borrower that have not been cured with no remaining liability
to the Borrower, other than those notices that have been disclosed to the
extent required by the terms of the Loan Documents. Neither the Borrower nor,
to the Borrower’s Knowledge, Kahuku Holdings or Sponsor is in default with
respect to any Governmental Judgment which default would be reasonably expected
to have a Material Adverse Effect.


 


5.16.       Environmental
Laws.


 


(a)           The
Borrower (x) has been issued all Governmental Approvals relating to, and (y) has
received no complaint, order, directive, claim, citation or notice by any
Governmental Authority (that has not been disclosed to the extent required by
the Loan Documents) relating to its then-existing obligations with respect to: (A) air
emissions, (B) discharges to surface water or ground water, (C) noise
emissions, (D) solid or liquid waste disposal, (E) the use,
generation, storage, transportation or disposal of toxic or Hazardous
Substances or wastes, or (F) other environmental, health or safety matters.


 


(b)           Except
as set forth on Schedule 5.16 to the Disclosure Letter, neither the
Borrower nor, to the Borrower’s Knowledge, any third party, has used, released,
discharged, generated, manufactured, produced, stored, or disposed of in, on,
under or about the Project Site or the Improvements or transported thereto or
therefrom, any Hazardous Substances that could reasonably be expected to have a
Material Adverse Effect or material harm to environmental, health or safety
matters as reasonably determined by DOE.


 


(c)           There
is not and has not been any condition, circumstance, action, activity or event
with respect to the Project, the Borrower or the Project Site that could
reasonably form the basis of any violation of any Environmental Law or that
could reasonably be expected to have a Material Adverse Effect or material harm
to environmental, health or safety matters as reasonably determined by DOE.


 


(d)           The
Borrower has satisfied all conditions of approval in connection with issuance
of the Government Approvals listed on Schedule 5.10 that are required to
have been satisfied by the Financial Closing Date.


 


41

















 


5.17.       Investment Company Act.


 


The Borrower is not required to register as an “investment
company” and it is not “controlled” by a company required to register as an “investment
company” under the Investment Company Act.


 


5.18.       Regulation
of Parties.


 


The Borrower is not subject to the Public Utility
Holding Company Act. None of the Credit Parties shall by reason if its
ownership or operation of the Project upon the exercise of remedies under the
Security Documents, by virtue of such exercise alone (without regard to any
other asset owned, or any entity controlled, by such Credit Party), be subject
to the Public Utility Holding Company Act.


 


5.19.       ERISA.


 


(a)           The
Borrower has operated the Employee Benefit Plans, and the ERISA Affiliates have
operated the Pension Plans, in compliance with their terms and with all
applicable provisions and requirements of the Internal Revenue Code, ERISA, and
other applicable Federal or state laws and have performed all their respective
obligations under each such plan.


 


(b)           No
ERISA Event has occurred or is reasonably expected to occur.


 


(c)           Except
to the extent required under Section 4980B of the Internal Revenue Code or
comparable state law, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of the Borrower or any ERISA Affiliate.


 


(d)           As
of the most recent valuation date for each Pension Plan, there are no
outstanding benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities).


 


(e)           The
execution and delivery of this Common Agreement and the consummation of the
transactions contemplated hereunder will not involve any transaction that is
subject to the prohibitions of Section 406 of ERISA or in connection with
which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of
the Internal Revenue Code.


 


(f)            All
liabilities under each Pension Plan are (i) funded to at least the minimum
level required by applicable law or, if higher, to the level required by the
terms governing the Pension Plans (ii) insured with a reputable insurance
company, (iii) provided for or recognized in the Financial Statements most
recently delivered to DOE pursuant to Section 6.1 or (iv) estimated
in the formal


 


42

















 


notes to the Financial Statements most recently
delivered to DOE pursuant to Section 6.1.


 


(g)           There
are no circumstances which may give rise to a liability in relation to any
Pension Plan which is not funded, insured, provided for, recognized or
estimated in the manner described in subsection (f) above.


 


(h)           (i) The
Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of
the Internal Revenue Code; (ii) the assets of the Borrower do not and will
not constitute “plan assets” within the meaning of Section 3(42) of ERISA
and the United States Department of Labor Regulations set forth in 29 C.F.R. §
2510.3-101; (iii) the Borrower is not and will not be a “governmental plan”
within the meaning of Section 3(32) of ERISA; (iv) transactions by or
with the Borrower are not and will not be subject to state statutes applicable
to the Borrower regulating investments of fiduciaries with respect to
governmental plans; and (v) the Borrower shall not engage in any
transaction which would cause any obligation, or action taken or to be taken,
hereunder (or the exercise by the Credit Parties of any of their respective
rights under this Common Agreement) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under ERISA, Section 4975
of the Internal Revenue Code or any similar state law. The Borrower further
agrees to deliver to Credit Parties such certifications or other evidence of compliance
with the provisions of this Section 5.19(h) as the Credit
Parties may from time to time request.


 


5.20.       Insurance.


 


All Required Insurance to be obtained and
maintained for the Project pursuant to Section 6.3 is in full force
and effect.


 


5.21.       Intellectual
Property.


 


(a)           The
Borrower owns or holds a valid and enforceable license or right to use the
Technology and Intellectual Property Rights necessary to do the following in a
commercially reasonable manner and as contemplated in connection with the
Project: (i) construct, operate, use and maintain the Project; (ii) produce,
manufacture, process, finish, package, label, ship, sell and support the
products specified in the Power Purchase Agreement, including process
formulation development, validation, qualify assurance and quality control,
using equipment and materials supplied under the Construction Documents (as may
be applicable); and (iii) exercise its rights and perform its obligations
under the Operating Documents in connection with the Project, except, in each
case, where the failure to own or hold a valid and enforceable license or right
to use such Technology and Intellectual Property Rights could not reasonably be
expected to result in a Material Adverse Effect.


 


43

















 


(b)           No
actions by the Borrower or any product, process, method, substance, part or
other material presently contemplated to be sold or employed by the Borrower
infringe upon or misappropriate the Intellectual Property Rights of any other
Person, except, in each case, where such infringement or misappropriation of
such Intellectual Property Rights or such other rights could not reasonably be
expected to result in a Material Adverse Effect.


 


5.22.       No
Defaults.


 


No Event of Default or Potential Default has
occurred and is continuing. Other than a breach that has been cured or waived
in writing, there is no breach by the Borrower of any material obligation under
any Loan Document, and no notices of breach of any Loan Document have been issued,
entered or received by the Borrower.


 


5.23.       No
Judgment Liens.


 


The Borrower does not have a judgment lien against
any of its property for a debt owed to the United States of America and does
not have an outstanding debt (other than a debt under the Internal Revenue
Code) owed to the United States of America or any agency thereof that is in
delinquent status, as the term “delinquent status” is defined in 31 C.F.R.§
285.13(d).


 


5.24.       Sufficiency
of Project Documents.


 


(a)           All
easements, leasehold and other property interests, and all utility and other
services, means of transportation, facilities, other materials and other rights
that can reasonably be expected to be necessary for the construction,
completion and operation of the Project in accordance with Governmental Rules and
the Transaction Documents (including without limitation gas, electrical, water
and sewage services and facilities) have been procured under the Project
Documents or are commercially available to the Project at the Project Site on
terms consistent with the Construction Budget and the Base Case Projections,
and, to the extent appropriate, arrangements have been made on terms consistent
with the Construction Budget and the Base Case Projections for such easements,
interests, services, means of transportation, facilities, materials and rights.


 


(b)           DOE
has received a true, complete and correct copy of each of the Project Documents
(including all exhibits, schedules, protocols and side letters referred to
therein or delivered pursuant thereto, if any, and all amendments,
modifications, additions, waivers thereto or thereof). None of the Project
Documents has been amended or modified, except in accordance with this Common
Agreement. Prior to the execution of each such Project Document entered into on
or prior to the date this representation is made, Borrower believed that each
party to each such Project Document could carry out its obligations in


 


44

















 


accordance therewith, and nothing has come to the
attention of Borrower to cause it to believe that any such party will not be
able to carry out its obligations in accordance therewith except as has been
disclosed to the extent required under the Loan Documents.


 


(c)           Each
Principal Project Document is in full force and effect and all conditions
precedent to the obligations of the respective parties under the Principal
Project Documents have been satisfied or where required, with the written
consent of DOE, waived.


 


(d)           All
representations, warranties and other factual statements made by any First Wind
Entity in any Project Document to which such entity is a party are true and
correct in all material respects, and (i) to the Borrower’s Knowledge at
the time of execution and delivery of any Project Document, all
representations, warranties and other factual statements made in each Project
Document by each other party thereto were true and correct in all material
respects, and (ii) to the Borrower’s knowledge, after the execution and
delivery of any Project Document, all representations, warranties and other
factual statements made in each Project Document by each other party thereto
are, at any time the Borrower makes this representation, true and correct in
all material respects.


 


(e)           Borrower
believed on the Financial Closing Date that it is technically feasible for the
Battery to be operated so as to fulfill in all material respects the design
specifications and requirements contained in the Lender’s Engineer Report.


 


(f)            Borrower
believes that it is technically feasible for the Project (with the exception of
the Battery) to be operated so as to fulfill in all material respects the
design specifications and requirements contained in the Lender’s Engineer
Report.


 


5.25.       Financial Statements.


 


Each of the Financial Statements of the Borrower,
Kahuku Holdings and the Sponsor delivered to the Credit Parties has been
prepared in accordance with GAAP and presents fairly in all material respects
the financial condition of Borrower, Kahuku. Holdings or the Sponsor as of the
respective dates of the balance sheets included therein and the results of
operations of Borrower, Kahuku Holdings or Sponsor for the respective periods
covered by the statements of income included therein. In the case of the
Borrower, except as reflected in such Financial Statements, there are no
liabilities or obligations of any nature whatsoever for the period to which
such Financial Statements relate (other than under the Transaction Documents)
that are required to be disclosed in accordance with GAAP.


 


45

















 


5.26.       Project Milestone Schedule and Construction Budget;
Operating Forecasts and Base Case Projections.


 


(a)           The
Project Milestone Schedule, the Construction Budget, the Operating Forecast and
the Base Case Projections, as amended or supplemented by Approved Construction
Changes, (i) are complete and based on reasonable assumptions, (ii) are
consistent with the provisions of the Project Documents, (iii) have been
prepared in good faith and with due care, and (iv) fairly represent the
Borrower’s expectation as to the matters covered thereby as of the date of the
representation (or such other date as may be set forth in the applicable
Borrower Certificate).


 


(b)           The
Project Milestone Schedule accurately specifies in summary form the work that
the Project Construction Contractor, Turbine Supplier and Battery Supplier
propose to complete on or before the deadlines specified therein.


 


(c)           The
Construction Budget represents the Borrower’s best estimate, as of the date of
such representation (or such other date as may be set forth in the applicable
Borrower Certificate), of all costs and expenses anticipated by the Borrower to
be incurred to construct the Project in the manner contemplated by the Transaction
Documents.


 


(d)           Borrower’s
good faith estimate and belief as of the Financial Closing Date is that (i) Operational
Completion will occur no later than the Anticipated Operational Completion
Date, (ii) Project Completion will occur no later than the Guaranteed
Project Completion Date, (iii) Total Project Costs will not exceed Base
Project Costs except to the extent that DOE has been notified to the contrary
in accordance with the Loan Documents, and (iv) each of Total Project
Costs, Base Project Costs, Eligible Base Project Costs and Ineligible Base
Project Costs will not exceed the respective amounts therefor set forth in the
Financial Plan. Nothing has occurred to cause Borrower to believe that the
Project Milestone Schedule and Base Case Projections, as amended or
supplemented by Approved Construction Changes, are unreasonable in any material
respect.


 


5.27.       Sufficient Funds.


 


In accordance with Section 609.10(d)(8) of
the Applicable Regulations, the Total Funding Available to the Borrower will be
sufficient to carry out the Project, including adequate contingency funds for
identified cost overruns.


 


5.28.       Fees and Enforcement.


 


Other than amounts that have been paid in full or
with respect to which arrangements satisfactory to DOE have been made, no fees
or Taxes including documentary, stamp, transaction, registration, or similar
Taxes are required to


 


46

















 


have been paid to ensure the legality, validity,
enforceability, priority or admissibility in evidence in applicable
jurisdictions of any Transaction Documents.


 


5.29.       Immunity.


 


In any proceedings in connection with any
Transaction Document to which the Borrower is a party, the Borrower has not
been and will not be entitled to claim for itself or any of its assets immunity
from suit, execution, attachment or other legal processes.


 


5.30.       No
Other Powers-of-Attorney, Etc.


 


The Borrower has not executed and delivered any
powers of attorney or similar documents, except (i) to its directors and
employees in the ordinary course of business, and (ii) in connection with
Permitted Liens.


 


5.31.       No
Additional Fees.


 


The Borrower has not paid nor become obligated to
pay any fee or commission to any broker, finder or intermediary for or on
account of arranging the financing of the transactions contemplated by the
Transaction Documents.


 


5.32.       Foreign
Assets Control Regulations, Prohibited Persons, Etc.


 


(a)           Neither
the making of any Advances nor the use of the proceeds thereof will violate the
Foreign Asset Control Regulations.


 


(b)           All
First Wind Entities are in compliance with all applicable orders, rules and
regulations of OFAC.


 


(c)           None
of the First Wind Entities or Major Project Participants, nor, to the Borrower’s
Knowledge, any of their respective Principal Persons, or members, parents or
subsidiaries is or ever has been a Prohibited Person.


 


(d)           No
event has occurred and no condition exists that is likely to result in any
First Wind Entity or any of their respective Principal Persons or members,
parents or subsidiaries becoming a Prohibited Person.


 


(e)           To
the Borrower’s Knowledge, no Person that Controls any First Wind Entity or
Major Project Participant is a Prohibited Person.


 


(f)            None
of the Collateral is traded or used, directly or indirectly, by a Prohibited
Person or by a Person organized in a Prohibited Jurisdiction.


 


47

















 


(g)           Each
First Wind Entity has established an anti-money laundering compliance program
if and as required by the USA Patriot Act.


 


(h)           The
First Wind Entities and their Principal Persons, members, parents,
subsidiaries, employees and agents have complied with all applicable Corrupt
Practices Laws in obtaining any consents, licenses, approvals, authorizations,
rights, or privileges with respect to the Project and are otherwise conducting
the Project and the business of the First Wind Entities in compliance with all
applicable Corrupt Practices Laws.


 


(i)            The
internal management and accounting practices and controls of the First Wind
Entities are adequate for compliance with all Corrupt Practices Laws.


 


5.33.       Lobbying.


 


In accordance with 31 U.S.C. §1352, no proceeds of
the Advances have been or will be expended by the Borrower or any of its
Affiliates to pay any Person for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, an officer or employee
of Congress, or an employee of a member of Congress.


 


5.34.       Insolvency
Proceedings.


 


The Borrower is not insolvent and is not the
subject of any pending, or to the Borrower’s knowledge, threatened, Insolvency
Proceedings.


 


5.35.       Use
of Proceeds.


 


The Borrower has used and shall continue to use the
proceeds of all Advances in accordance with the terms and conditions of all
applicable Loan Documents.


 


5.36.       No
Material Adverse Effect.


 


No Material Adverse Effect has occurred and is
continuing, nor, to the Borrower’s Knowledge, does any fact or circumstance
exist that could reasonably be expected to have a Material Adverse Effect.


 


5.37.       Certain
Program Requirements.


 


(a)           Eligibility.
In accordance with Section 609.10(d)(1) of the Applicable
Regulations, the Project qualifies as an “Eligible Project” under Title XVII
and is not a research, development, or demonstration project or a project that
employs Commercial Technologies (as defined in the Applicable Regulations) in
service in the United States. The Project does not involve the construction,
alteration, maintenance, or repair of a “public building” or “public work”
within


 


48

















 


the meaning of Section 1605 of the Recovery
Act, 2 CFR §§176.140 and 176.160, and the OMB Implementing Guidance.


 


(b)           U.S.
Nexus. In accordance with Section 609.10(d)(2) of the Applicable
Regulations, the Project will be constructed and operated in the United States,
the employment of the new or significantly improved technology in the Project
has the potential to be replicated in other commercial projects in the United
States, and this technology is or is likely to be available in the United
States for further commercial application.


 


(c)           Useful
Life. In accordance with Section 609.10(d)(6) of the Applicable
Regulations, the Maturity Date occurs prior to the end of ninety percent (90%)
of the projected useful life of the Project’s major physical assets.


 


(d)           No
Tax-Exempt Indebtedness. In accordance with Section 609.10(d)(7) of
the Applicable Regulations, the DOE Guaranteed Loan does not finance, either
directly or indirectly, tax-exempt indebtedness obligations, consistent with
the requirements of Section 149(b) of the Internal Revenue Code.


 


5.38.       Davis-Bacon
Act.


 


The Borrower has taken all steps necessary to
comply with, and in all material respects is in compliance with, Section 6.30
and Exhibit A4 relating to the Davis-Bacon Act.


 


5.39.       Buy
American Provisions.


 


The Project does not involve the construction,
alteration, maintenance, or repair of a “public building” or “public work”
within the meaning of the Buy American Provisions.


 


5.40.       Compliance
with Governmental Rules; Environmental Laws; Governmental Approvals.


 


The Borrower and, to the Borrower’s Knowledge, each
of Kahuku Holdings and Sponsor, are in compliance with all Governmental Rules applicable
to each such entity, the noncompliance with which could reasonably be expected
to have a Material Adverse Effect.


 


5.41.       Full Disclosure.


 


(a)           The
statements and information contained in any Borrower Certificate or DOE Credit
Facility Document, taken together with all documents, reports or other written
information pertaining to the Project, together with all updates of such
information from time to time, that have been furnished by or on behalf of the
Borrower to any Credit Party or any Independent Consultant, are


 


49














 


true and correct in all material respects and do
not contain any material misstatement of fact or omit to state a material fact
or any fact necessary to make the statements contained therein not materially
misleading in light of the circumstances in which they were made.


 


(b)           There is no fact known to
the Borrower that has not been disclosed to the Credit Parties in writing that
would reasonably be expected to be material to the DOE’s decision to enter into
this Common Agreement or the DOE Guarantee or to any Credit Party’s decision to
authorize any Advance or that could otherwise reasonably be expected to have a
Material Adverse Effect.


 


(c)           There are in existence no
documents or agreements that have not been disclosed or described to the Credit
Parties that are material in the context of the Transaction Documents or that
have the effect of varying any of the Transaction Documents or the Project.


 


(d)           Each of the Project
Milestone Schedule, the Construction Budget, the Operating Forecast, Operating
Plan and the Base Case Projections, as amended and supplemented by Approved
Construction Changes, has been prepared in good faith based on assumptions
believed to be reasonable by the Borrower at the time of their preparation or
update.


 


5.42.       Domestic Procurement Consideration.


 


Borrower represents and warrants it gave due
consideration to procuring from its suppliers for the Project equipment and
components manufactured in the United States, taking into account availability,
cost, technical performance, reliability, efficiency, warranty coverage and
related commercial terms.


 


ARTICLE 6 

AFFIRMATIVE COVENANTS


 


The Borrower covenants and agrees that until the
date all Secured Obligations (other than inchoate indemnity obligations) are
paid in full and the DOE Credit Facility Commitment has terminated, unless DOE
waives compliance in writing:


 


6.1.         Information
Covenants.


 


At its own expense the Borrower shall furnish or
cause to be furnished to DOE, in each case (x) in unalterable electronic
format (except for the financial model, which shall be furnished in Excel file
format) with a reproduction of the signatures where required, and (y) upon
request by DOE, in soft electronic format, the following items:


 


50

















 


(a)           Monthly Reporting Package.


 


(i)            Within twenty (20) days
after the end of each month prior to the Project Completion Date, the Borrower
shall deliver to DOE and the Lender’s Engineer a Construction Progress Report
certified by an Authorized Official of the Borrower; provided, that the
Borrower acknowledges that within thirty (30) days after the end of each month
prior to the Project Completion Date, the Lender’s Engineer will deliver to DOE
its comments on the Borrower’s report on construction progress or, if requested
by the DOE, its separate report;


 


(ii)           Within twenty-five (25)
days after the end of each month falling after the Project Completion Date, the
Borrower shall deliver to DOE an Operations Report covering such monthly period
and certified by an Authorized Official of the Borrower; and


 


(iii)          In addition to each other
item indicated in this Section 6.1(a) as being part of the
Monthly Reporting Package, the Borrower shall deliver to DOE a completed
Monthly Reporting Certificate;


 


(b)           Quarterly Financial
Statements and Report. Within sixty
(60) days after the end of each fiscal quarter (excluding, for purposes of
clause (i) below, the fourth fiscal quarter) of each Fiscal Year:


 


(i)            unaudited Financial
Statements of the Borrower as at the end of such quarterly period;


 


(ii)           a certificate by a
Financial Officer of the Borrower providing (A) for each such quarter that
includes all or a portion of the Construction Period, calculations showing the
Debt-to-Equity Contribution Ratio of the Borrower; and (B) for each such
quarter that includes all or a portion of the Operating Period, calculations
showing compliance with the requirements of Section 7.14 (Debt
Service Coverage Ratio), or if such certification cannot be made, an
explanation therefor and what corrective action the Borrower has taken or
proposes to take with respect thereto; and


 


(iii)          a report with an
assessment and certification of compliance with the conservation measures
described in the Kahuku Wind Power Habitat Conservation Plan and a disclosure
of any “incidental take” (as defined in the Endangered Species Act) of the
species listed in the Biological Opinion incurred by the Project. The
disclosure of incidental take should include the amount of take for the
reporting quarter, as well as the total amount of incidental take.


 


(c)           Annual Financial
Statements and Reports. As soon as
available, but in any event within one hundred twenty (120) days after the end
of each Fiscal Year:


 


51

















 


(i)            Financial Statements of
the Borrower as at the end of such Fiscal Year, certified by the Borrower’s
Accountant and accompanied by any management letter delivered by the Borrower’s
Accountant; and


 


(ii)           a report from the
Borrower’s Accountant for each such Fiscal Year that includes any portion of
the Construction Period, calculating and comparing the actual Debt-to-Equity
Contribution Ratio to the Debt-to-Equity Contribution Ratio required by the
Loan Documents;


 


(d)           Certification by
Financial Officer. Each time Financial
Statements of the Borrower are delivered pursuant to Sections 6.1(b)(i) (as
part of the Quarterly Reporting Package), or 6.1(c)(i) such
Financial Statements shall be certified by a Financial Officer of the Borrower
as having been prepared in accordance with GAAP on a consistent basis and as
fairly presenting in all material respects the financial condition of the
Borrower as of the date thereof and the results of operations and cash flows of
the Borrower for the periods presented. Such certification shall also include a
certification that the Person has made or caused to be made a review of the
transactions and financial condition of the Borrower during the relevant fiscal
period and (i) that other than as set out in such Financial Statements,
there are no liabilities or obligations of the Borrower that are required to be
presented in such Financial Statements in accordance with GAAP, and (ii) that
no Event of Default or Potential Default exists, or if such certification
cannot be made, the nature and period of existence of such Event of Default or
Potential Default and what corrective action the Borrower has taken or proposes
to take with respect thereto;


 


(e)           Financial Statements of
Kahuku Holdings, Sponsor. Promptly after
the same become available, and in accordance with the time periods applicable
to the Borrower set forth in Sections 6.1(b) (as part of the
Quarterly Reporting Package) and 6.1(c), unaudited quarterly Financial
Statements of the Sponsor and Kahuku Holdings, and audited annual Financial Statements
of the Sponsor, all prepared in accordance with GAAP certified by a Financial
Officer of the Sponsor and Kahuku Holdings, as applicable, as having been
prepared in accordance with GAAP on a consistent basis and as fairly presenting
in all material respects the financial condition of the Sponsor and Kahuku,
Holdings, as applicable, as of the date thereof and the results of operations
and cash flows of the Sponsor and Kahuku Holdings, as applicable, for the
periods presented, and, if the same are audited annual Financial Statements,
certified by the Sponsor’s and Hawaii Holding’s Accountant, as applicable; provided,
that with respect to the Sponsor, this obligation shall end on the Project
Completion Date;


 


(f)            Management Letters. Promptly after the Borrower’s receipt thereof, a copy of any
management letter and all other material communications received by the
Borrower from the Borrower’s Accountant in relation to its financial,
accounting and other systems, management or accounts or the Project;


 


52

















 


(g)           Reporting Obligations. Promptly, but in any event within five (5) Business Days, after
any Authorized Official of the Borrower or the Project Operator obtains
knowledge thereof or information pertaining thereto, notice of:


 


(i)            any event that
constitutes an Event of Default or Potential Default, specifying the nature
thereof, together with a Borrower Certificate indicating any steps the Borrower
has taken or proposes to take to remedy the same;


 


(ii)           (A) any pending or
threatened (in writing) Action (1) against the Borrower or any of its
property, (2) respecting the Project or any Transaction Document or any
transaction contemplated thereby, or (3) against any other Major Project
Participant; (B) any material dispute between the Borrower and/or Sponsor,
on the one hand, and any other Major Project Participant, on the other hand;
and (C) any material development in any of the foregoing;


 


(iii)         any proceeding or
legislation by any Governmental Authority specifically affecting (A) the
Project, the Borrower, any of its property or its equity capital or (B) a
Project Participant that, in each case, could reasonably be expected to have a
Material Adverse Effect, including any material developments with respect to any
of the foregoing;


 


(iv)          any change in the
Authorized Officials of the Borrower who are responsible to deliver any
certificate under any Loan Document, including certified specimen signatures of
any new Person so appointed and satisfactory evidence of the authority of such
Person, or any change in the Borrower’s Accountant and the reason therefor;


 


(v)           any actual or proposed
termination, rescission, discharge (otherwise than by performance), amendment,
supplement, modification, waiver or indulgence or breach in any material
respect of any Transaction Document, Governmental Approval or other Required
Consent that is not otherwise approved, consented to or accepted pursuant to
the terms of the Transaction Documents;


 


(vi)          any notice received or
initiated by the Borrower relating to the Project or any Transaction Document
or any notice received or initiated by the Borrower relating to any
Governmental Approval, but excluding notices received or initiated that are (i) in
the ordinary course of business or otherwise previously delivered pursuant to
any Transaction Document; or (ii) not reasonably suggestive of a possible
Material Adverse Effect;


 


(vii)         any Lien (other than a
Permitted Lien) being granted or established or becoming enforceable over any
of the Borrower’s assets;


 


53

















 


(viii)       any proposed material
change in the nature or scope of the Project or the business or operations of
the Borrower;


 


(ix)          any casualty damage or
loss to the Project in excess of $250,000;


 


(x)           any notice of a
delinquent payment owed by the Borrower to, or to the Borrower by (A) any
Major Project Participant (other than the Project Construction Contractor) if
such payment is more than thirty (30) days delinquent, or (B) any other
party under the Project Documents if such payment is more than ninety (90) days
delinquent, in either case, if the amount of any such delinquent payment is in
excess of $100,000, in each case together with a copy of all correspondence
received or sent by the Borrower with respect to such delinquent payment;


 


(xi)          any material or
substantive correspondence from any Construction Contractor, the Turbine
Supplier, the Battery Supplier or any Operator relating to, (A) any
material delay in the completion of the Project, or (B) any event that
could reasonably be expected to interrupt the operation of the Project for more
than fifteen (15) consecutive days;


 


(xii)         any notice of
interruption of the ability of the Output Purchaser to receive deliveries under
the Power Purchase Agreement or any event that could reasonably be expected to
interrupt the ability of the Output Purchaser to receive deliveries under the
Power Purchase Agreement for more than fifteen (15) consecutive days;


 


(xiii)        any notice from the
Output Purchaser regarding the payment of an invoice submitted to the Output
Purchaser by the Borrower other than in the ordinary course of business;


 


(xiv)        any one or more events,
conditions or circumstances (including government action) that exist or have
occurred or in the reasonable judgment of the Borrower are expected as imminent
that could reasonably be expected to have a Material Adverse Effect;


 


(xv)         any non-compliance of a
Reserve Letter of Credit with the criteria established with respect thereto and
any event, condition or circumstance that represents or could reasonably be
expected to lead to non-compliance by a bank providing a Reserve Letter of
Credit with the required criteria with respect thereto or the renewal thereof;


 


(xvi)        any Event of Force
Majeure affecting, or that either the Borrower or any other Major Project
Participant claims would affect, the performance by such Person of any
obligation under any Transaction Document, 


 


54

















 


together with copies of all notices, calculations,
data and other correspondence between such Major Project Participant and the
Borrower in respect of any such event, circumstance or condition;


 


(xvii)       any material dispute
between (a) the Borrower and any Major Project Participant, or (b) between
the Borrower or any Major Project Participant and any Governmental Authority,
in each case relating to the Project;


 


(xviii)      upon reasonable request
by DOE, copies of any data relating to the performance of tests under any
Project Document;


 


(xix)        any event that could
reasonably be expected to cause a reduction in the Operating Revenues of the
Borrower for any Fiscal Year by more than 10% of the amount estimated therefor
in the Operating Forecast;


 


(xx)         any proposed cancellation
or change in any Required Insurance maintained by the Borrower or by any other
Person for the benefit of the Borrower with respect to the Project, notice
shall be provided according to Schedule 6.3(b);


 


(xxi)        any periodic reports
submitted by the Borrower to the Output Purchaser pursuant to the Power
Purchase Agreement, together with a copy of any such report;


 


(xxii)       any other material report
filed by any Major Project Participant with any Governmental Authority relating
to the Project, together with a copy of any such report, if and to the extent
that the Borrower is aware of such filing and has reasonable access to a copy
of such report;


 


(xxiii)      (a) an ERISA Event, (b) the
adoption of any new Pension Plan by the Borrower or any ERISA Affiliate, (iii) the
adoption of any amendment to a Pension Plan, if such amendment will result in a
material increase in benefits or unfunded benefit liabilities (as defined in Section 4001(a)(18)
of ERISA) (c) the commencement of contributions by the Borrower or any
ERISA Affiliate to any Pension Plan or Multiemployer Plan, or (d) the
receipt by the Borrower or any ERISA Affiliate of a notice from a Multiemployer
Plan sponsor concerning an ERISA Event; and


 


(xxiv)     any material
non-compliance with any Governmental Approval or Environmental Law.


 


(h)           Governmental and
Environmental Reports. As soon as
available, but in any event:


 


(i)            within ten (10) days
after any such report is submitted, a copy of any report required to be filed
by the Borrower (or on behalf of the 


 


55

















 


Borrower) with any Governmental Authority other
than in the ordinary course of business;


 


(ii)           within twenty-four (24)
hours after the Borrower obtains knowledge, or reasonably should have obtained
knowledge, of any accident related to the Project having a material and adverse
impact on the environment or on human health (including any accident resulting
in the loss of life), verbal notice thereof, and within ten (10) days
thereafter a report describing such accident, the impact of such accident and
the remedial efforts required and (as and when taken) implemented with respect
thereto;


 


(iii)          within thirty (30) days
after the close of each Fiscal Year, a report, satisfactory to DOE in its
reasonable discretion, summarizing any violations of Environmental Laws in
connection with the Project over the preceding year, with sufficient
information (as determined by DOE acting in consultation with the Lender’s
Engineer) to allow the Credit Parties (including DOE) to monitor the Project’s
performance with respect to the environment and its compliance with
Environmental Laws and including a narrative summary of (A) the results of
environmental monitoring or sampling activity, (B) any violations of
Environmental Laws identified by any environmental Governmental Authority and
any remedial action taken with respect thereto;


 


(iv)          within ten (10) days
after an Authorized Official of the Borrower obtains knowledge thereof, any
Environmental Claim by any Governmental Authority or any assertion of an
Environmental Claim or claims involving an amount in excess of $250,000
individually or $500,000 in the aggregate by any other Person or Persons
together with a copy of any correspondence relating thereto and a description
of any steps the Borrower is taking and proposes to take with respect thereto;
and


 


(v)           within ten (10) days
after it is submitted, a copy of any report filed by the Borrower with the U.S.
Fish and Wildlife Service required in Section 8.2.2 of the Kahuku Wind
Power Habitat Conservation Plan;


 


(i)            Updates to Project
Milestone Schedule, Construction Budget, Operating Plan, Operating Forecast,
and Base Case Projections. As part of the
Quarterly Reporting Package, in each case certified by an Authorized Official
of the Borrower:


 


(i)            for each fiscal quarter
that includes all or a portion of the Construction Period, an updated Project
Milestone Schedule and Construction Budget; and


 


(ii)           upon the request of DOE,
the Borrower shall schedule a date to discuss with DOE any updated Operating
Plan, updated Operating 


 


56

















 


Forecast, updated Base Case Projections, and such
other matters relating to the Project as DOE may reasonably request;


 


(j)            Annual Safety
Audit. Within thirty (30) days after its
completion, a copy of the report regarding the required annual safety audit
pursuant to Section 6.18;


 


(k)           Additional Project
Documents and Governmental Approvals.
As soon as available, but in no event later than ten (10) Business Days
after the receipt thereof by the Borrower, copies of (i) all Additional
Project Documents, (ii) any Third-Party Materials Supply Agreement entered
into by the Borrower after the Financial Closing Date, if such Third-Party
Materials Supply Agreement has a term longer than two years and a committed
payment greater than $250,000 in any year or $2,000,000 in aggregate, and (iii) any
Governmental Approvals and other Required Consents obtained or entered into by
the Borrower after the Financial Closing Date;


 


(1)           Additional Audit Reports. As soon as available, but in any event within ten (10) Business
Days after the receipt thereof by the Borrower, copies of all other material
annual or interim reports submitted to the Borrower by the Borrower’s
Accountant;


 


(m)          Other Reports and Filings. Promptly upon transmission thereof, notice (or, if not available
on-line, then copies) of all financial information, statutory audits, proxy
materials and other information and reports, if any, which the Borrower has
delivered to the Securities and Exchange Commission or any successor regulatory
authority;


 


(n)           Insurance Certificate.
Certificates with respect to Required Insurance conforming to the insurance
requirements of Schedule 6.3(b) at the times required by such
Schedule;


 


(o)           Information Pertaining to
Banks Providing Reserve Letters of Credit.
As soon as available, but in any event, no later than thirty (30) days after
any reduction in the credit rating of any bank providing a Reserve Letter of
Credit to (i) “A-” by S&P or “A3” by Moody’s, in either case with a “negative
outlook,” or (ii) a level below “A-” by S&P or “A3” by Moody’s;


 


(p)           Other Information. Promptly upon request, such other information or documents as any
Credit Party or any Independent Consultant may reasonably request;


 


57

















 


(q)           Information Made
Available.


 


(i)            In accordance with Section 609.10(d)(19)
of the Applicable Regulations, (A) the information that will be made
available to DOE is as set forth in the Loan Documents, and (B) any
information may be made publicly available to the extent required by applicable
federal law; and


 


(ii)           Without limiting the
generality of clause (i) of this subsection, all correspondence, books,
documents, papers and records relating to the structuring, negotiation and
execution of this Common Agreement and the transactions contemplated herein,
including this Common Agreement, the Loan Documents, the pre-application, the
Application, the term sheet and all supporting documentation, financial statements,
audit reports of independent accounting firms, permits and regulatory approvals
furnished or otherwise made available to DOE, will be handled in accordance
with all applicable federal laws, rules, or regulations, including the Trade
Secrets Act, 18 U.S.C. §1905, and the Freedom of Information Act (FOIA), 5
U.S.C. §552, and DOE’s implementing regulations at 10 CFR 1004.


 


(r)            Annual Updates to
Operating Plan, Operating Forecast, Base Case Projections. Annually prior to the end of each calendar year once the Operating
Period has commenced, an updated annual Operating Plan, an updated annual
Operating Forecast; and updated Base Case Projections in form and substance
satisfactory to DOE.


 


(s)            Prohibited Persons. Borrower shall provide immediate written notice (including a brief
description) to DOE if at any time it learns that the representations made by
Borrower with respect to Prohibited Persons (including the Debarment
Regulations) were erroneous when made or have become erroneous by reason of
changed circumstances.


 


6.2.         Books, Records and Inspections; Accounting and
Auditing Matters.


 


(a)           The Borrower shall keep
proper records and books of account, maintain adequate management information
and cost control systems, and make arrangements reasonably satisfactory to the
Credit Parties for overseeing the financial operations of the Borrower,
including its cash management, accounting and financial reporting, for
overseeing the Borrower’s relationship with the Credit Parties and the Borrower’s
Accountant and, in accordance with Section 609.10(f)(1) of the
Applicable Regulations, for facilitating the effective and accurate audit and
performance evaluation of the Project pursuant to the Applicable Regulations
and Program Requirements;


 


(b)           Each set of Financial
Statements the Borrower delivers shall be prepared in accordance with GAAP
consistently applied except to the extent that there have been any changes to
such accounting principles or the application


 


58






 










 


thereof noted in such Financial Statements and all
financial records of the Borrower shall be maintained at the principal
executive office of the Borrower;


 


(c)                                  The Borrower (i) shall consult and cooperate with the Credit
Parties regarding the Project upon their request, (ii) in accordance with Section 609.10(d)(18)
of the Applicable Regulations, shall permit officers and designated
representatives of the Credit Parties and the Independent Consultants to visit
and inspect at all reasonable times the Project and any other facilities and
properties of the Borrower, (iii) in accordance with Section 609.10(0(2) of
the Applicable Regulations, shall provide to officers and designated
representatives of the Credit Parties, the Comptroller General and the
Independent Consultants access to any pertinent books, documents, papers and
records of the Borrower for the purpose of audit, examination, inspection and
monitoring upon reasonable notice and at reasonable times during normal
business hours, to examine and discuss the affairs, finances and accounts of
the Borrower with the representatives of the Borrower, (iv) shall afford
proper facilities for such inspection, shall make copies (at Borrower’s
expense) of any records that are subject to such inspection, shall make available
all information related to the Project, including all patents, technology and
proprietary rights owned or controlled by the Borrower and utilized in the
construction, startup or operation of the Project, as may be reasonably
necessary in order to determine the technical progress, soundness of financial
condition, management stability, compliance with environmental requirements,
adequacy of health and safety conditions, and all other matters with respect to
the Project, and (v) shall exercise reasonable efforts to cause each Major
Project Participant to make available to the Credit Parties, the Comptroller
General and the Independent Consultants the same rights of inspection and
access to its books and records that such Major Project Participant makes
available to Borrower or to the Project Operator.


 


(d)                                 The Borrower shall upon the request of any Credit Party authorize the
Borrower’s Accountant to communicate directly with the Credit Parties, the
Comptroller General and the Independent Consultants and their representatives
at any time regarding the Borrower’s accounts and operations;


 


(e)                                  In the event that the Borrower’s Accountant should cease to be the
accountants of the Borrower for any reason, the Borrower shall appoint and
maintain as the Borrower’s Accountant another firm of independent public
accountants, which firm shall be nationally recognized or otherwise approved by
DOE; and


 


(f)                                    The Borrower shall retain all records relating to expenditures with
respect to which Advances were made for five (5) years after the Advance
was made with respect to such expenditure.


 


59

















 


6.3.                            Maintenance of Property and Insurance.


 


(a)                                  The Borrower shall (1) keep all its property and assets in good
working order and condition to the extent necessary to ensure that its business
can be conducted properly at all times, (ii) operate, maintain and repair
the Project or cause the Project to be operated, maintained and repaired in
accordance with the standards set forth in the O&M Agreements, manufacturer’s
requirements necessary to maintain warranties and insurance requirements, (iii) possess
all equipment necessary for the operation of the Project and maintain such
spare parts and inventory or renew and replace equipment, in each case as
consistent with the Transaction Documents and the “reasonable and prudent
operator” standard, and (iv) maintain at the Project Site a complete set
of plans and specifications for the Project.


 


(b)                                 The Borrower shall keep its present and future properties and business
insured as required by and in accordance with the terms and provisions
described on Schedule 6.3(b). The Borrower shall obtain and maintain and
shall pursue any contractual remedies to cause other Persons required to
provide Required Insurance, including, but not limited to any Construction
Contractor and Operator to obtain and maintain such Required Insurance or
alternate coverage provided for on Schedule 6.3(b) or in their
respective Project Documents, as the case may be.


 


6.4.                            Maintenance of Existence; Conduct of Business.


 


The Borrower shall (i) maintain and preserve
its existence as a limited liability company organized and existing under the
laws of Delaware and acquire, maintain, and renew all rights, licenses,
contracts, powers, privileges, Leases, lands, sanctions, and franchises
necessary in the normal conduct of its business and in the performance of its
obligations hereunder and under the other Transaction Documents, (ii) observe
all corporate formalities and (iii) engage only in the business
contemplated by the Transaction Documents.


 


6.5.                            Compliance with Governmental Rules; Environmental
Laws; Governmental Approvals.


 


The Borrower shall, with respect to work relating
to the Project, using prudent business judgment in good faith, vigorously
pursue all contractual remedies available to it to cause each Construction
Contractor and Operator to (i) comply with, and shall conduct its
business, operations, assets, equipment, property, leaseholds, and other
facilities in compliance with all Environmental Laws and in compliance with all
other Governmental Rules the noncompliance with which could reasonably be
expected to have a Material Adverse Effect, and (ii) procure, maintain and
comply with all Governmental Approvals required for the ownership,
construction, financing, maintenance or operation of the Project or any part
thereof as contemplated by the Transaction Documents at or prior to such time
as


 


60

















 


such Governmental Approval is required or
necessary, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.


 


6.6.                            Compliance with Debarment Regulations.


 


The Borrower shall provide immediate written notice
(including a brief description) to DOE if at any time it learns that the
representations made with respect to Debarment Regulations were erroneous when
made or have become erroneous by reason of changed circumstances.


 


6.7.                            Tax, Duties, Proper Legal Form.


 


The Borrower shall pay or arrange for the payment
before they become overdue of all present and future (i) Taxes (including
stamp taxes), duties, fees, Periodic Expenses, or other charges payable on or
in connection with the execution, issue, delivery, registration, or notarization,
or for the legality, validity, or enforceability, of this Common Agreement, any
other Transaction Documents and any other documents related to this Common
Agreement (other than any Tax that it is contesting in good faith and by
appropriate proceedings for which reserves have been established to the extent
required by GAAP) (ii) claims, levies, or liabilities (including claims
for labor, services, materials and supplies), for sums that have become due and
payable and that have or, if unpaid, might become a Lien (other than a
Permitted Lien) upon the property of the Borrower (or any part thereof) and (iii) Taxes
payable by it or imposed upon its income or property. The Borrower shall take
all action to ensure that each of the Transaction Documents is in proper legal
form under the respective governing laws selected in such Transaction Document,
without any further action required with respect to such legal form for the
enforcement of such Transaction Documents.


 


6.8.                            Construction and Approved Construction Changes.


 


(a)                                  The Borrower shall apply the proceeds of the Advances exclusively to
Eligible Base Project Costs and shall use its best efforts to cause: Physical
Completion to be achieved on or prior to the Anticipated Physical Completion
Date and in any event within the Construction Budget (together with the
resources available to the Borrower from the Overrun Equity Commitment and,
with DOE’s consent, as provided in the Sponsor Guarantee); Operational
Completion to be achieved on or prior to the Anticipated Operational Completion
Date and in any event within the Construction Budget (together with the
resources available to the Borrower from the Overrun Equity Commitment and,
with DOE’s consent, as provided in the Sponsor Guarantee); Financial Completion
to be achieved on or prior to the Anticipated Financial Completion Date; and
Project Completion to be achieved on or prior to the Anticipated Project
Completion Date.


 


61

















 


(b)                                 The Borrower shall not change, reallocate, amend, modify, or supplement
or permit or consent to any changes, reallocations, amendments, modifications,
or supplements (each a “Construction Change”) of any of the provisions
of the Project Milestone Schedule or the Construction Budget, except for the
following changes (“Approved Construction Changes”):


 


(i)                                     any Construction Change that (x) has been submitted in writing by
the Borrower to DOE (including an explanation in reasonable detail of the
reasons for such Construction Change) and (y) has received a written
approval from DOE in consultation with the Lender’s Engineer (which approval
may be provided by electronic mail);


 


(ii)                                  any increase of any of the line items in the Construction Budget if such
increase (x) is not individually in excess of $1,500,000, and (y) when
aggregated with all other changes to the Construction Budget in accordance with
this Section 6.8(b)(ii) since the Financial Closing Date,
would not result in a cumulative net decrease, since the Financial Closing
Date, of Contingencies of more than $4,000,000;


 


(iii)                               any payments for Overrun Project Costs made with the proceeds of the
Overrun Equity Commitment or, with DOE’s consent, as provided in the Sponsor
Guarantee; and


 


(iv)                              any revision to the Project Milestone Schedule determined by the
Borrower and confirmed by the Lender’s Engineer to DOE (x) not to impair
or delay achievement of the Guaranteed Operational Completion Date, (y) could
not reasonably be expected to have a Material Adverse Effect, or (z) not
to increase any cost in the Construction Budget other than as allowed under Section 6.8(b)(ii).


 


(c)                                  All Approved Construction Changes shall be reflected in a revised
Project Milestone Schedule, Construction Budget and/or Advance Schedule, as the
case may be, delivered as part of the next Quarterly Reporting Package.


 


6.9.                            Operating Forecasts.


 


From and after the Project Completion Date, the
Borrower shall or shall cause the Project to operate in all material respects
pursuant to the Operating Plan then in effect.


 


6.10.                     Diligent Construction of Project and Operations.


 


The Borrower shall construct the Project diligently
in accordance with the Construction Contracts and the other Transaction
Documents, Governmental Approvals, the Project Milestone Schedule and the
Construction Budget. The


 


62

















 


Borrower shall conduct, and shall cause each
Operator to conduct, the operations of the Project on the basis of customary
commercial practice and arm’s-length arrangements, or as otherwise set forth in
the Project Documents, with due diligence and efficiency and under the
supervision of qualified and experienced management.


 


6.11.                     Ineligible and Overrun Project Costs.


 


All Ineligible Project Costs and Overrun Project
Costs shall be funded in accordance with the Equity Funding Agreement.


 


6.12.                     Cost Overruns and Contingencies.


 


Any Cost Overrun shall be funded as a Project Cost,
first, from Contingencies (to the extent
of available funds), next, from
Overrun Equity in accordance with Section 2.4.2 and the Equity
Funding Agreement, and next, but only
upon DOE consent in its sole discretion, from the Sponsor Guarantee pursuant to
the terms thereunder.


 


6.13.                     Use of Proceeds; Repayment of Indebtedness.


 


(a)                                  Proceeds.  The Borrower shall use the proceeds of all
Equity Contributions and all Advances in accordance with the terms and
conditions of all applicable Loan Documents.


 


(b)                                 Repayment of Indebtedness.  The Borrower shall repay in accordance with
its terms all Indebtedness due under the Loan Documents.


 


6.14.                     Performance of Obligations.


 


The Borrower shall maintain in full force and
effect each of the DOE Credit Facility Documents and each of the other Loan
Documents to which it is a party in accordance with the respective terms
thereof, except for those Loan Documents that shall by their terms terminate
after the indefeasible payment in full of all Secured Obligations owed
thereunder. The Borrower shall comply with the provisions of and perform all of
its obligations under each Loan Document in accordance with the terms thereof.
The Borrower shall maintain in full force and effect each of the Accounts in
accordance with the Collateral Agency Agreement.


 


6.15.                     Project Documents.


 


The Borrower shall (i) maintain all the
Project Documents to which it is a party in full force and effect in accordance
with their terms, (ii) comply with the material provisions of and perform
all of its material obligations under such Project Documents, and (iii) diligently
pursue all of its rights and remedies under such


 


63

















 


Project Documents where the failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


6.16.                     Cash Deposits.


 


The Borrower shall instruct each Person remitting
cash to or for the account of the. Borrower to deposit such cash in accordance
with the terms of the Collateral Agency Agreement and shall otherwise comply
with the Collateral Agency Agreement. The Borrower shall remit any amounts
received by it or received by third parties on its behalf to the Collateral
Agent for deposit in accordance with the Collateral Agency Agreement.


 


6.17.                     Reserve Accounts.


 


(a)                                  The Borrower shall establish and maintain in accordance with the
Collateral Agency Agreement a reserve for Debt Service (the “Debt Service
Reserve”). The Debt Service Reserve shall consist of any combination of
cash and Reserve Letters of Credit.


 


(b)                                 The Borrower shall establish and maintain in accordance with the
Collateral Agency Agreement the Major Maintenance Reserve in the Major
Maintenance Reserve Account.


 


(c)                                  The Borrower shall establish and maintain in accordance with the
Collateral Agency Agreement the Battery Replacement Reserve in the Battery
Replacement Reserve Account.


 


6.18.                     Safety Audit.


 


Not less frequently than once each calendar year,
the Borrower shall conduct, or cause the Operators to conduct, a safety audit
of the Project in a manner reasonably satisfactory to DOE (in consultation with
the Lender’s Engineer), each in its sole discretion, including an analysis of
whether the Project is in compliance with all Governmental Rules and
Environmental Laws and each such safety audit shall result in the prompt
preparation of a written report with respect thereto which shall be delivered
to DOE and the Lender’s Engineer for review and approval by DOE, in
consultation with the Lender’s Engineer. The Borrower shall provide for the
prompt correction of any deficiencies identified in such safety audit and for
the operation and maintenance of the Project in accordance with any
recommendations set forth therein.


 


6.19.                     Replacement of Certain Project Participants.


 


The Borrower shall, at the request of DOE (after
consultation with the Borrower), exercise its right (if any) to terminate for
cause (i) any Operator in accordance with and as permitted by the
applicable O&M Agreement, (ii) each Construction


 


64

















 


Contractor in accordance with and as permitted by
the Construction Contracts (other than Harris Stratex Networks Operating Corporation
in respect of the Equipment Purchase Agreement), or (iii) any Person party
to any other Project Document in accordance with and as permitted by such
Project Document, in each case either if the relevant counterparty is a First
Wind Entity or an Affiliate thereof or, otherwise, if the failure to do so
could reasonably be expected to have a Material Adverse Effect. Promptly after
any termination, the Borrower shall enter into a replacement agreement with a
new operator, Construction Contractor or other Person, as the case may be, on
terms and conditions satisfactory to DOE.


 


6.20.                     Security Interest in Newly Acquired Property;
Additional Project Documents.


 


If the Borrower shall at any time acquire any
interest in property not covered by the Security Documents or enter into any
Additional Project Document, the Borrower shall promptly (i) execute,
deliver and record a supplement to the Security Documents, satisfactory in form
and substance to DOE, (ii) ensure that the security interest shall be
valid and effective and (iii) deliver to the Collateral Agent, a consent
to assignment for each such Additional Project Document in an agreed form;
provided, however, that the obligation in this paragraph shall not apply to
vehicles or other minor assets.


 


6.21.                     Title; Rights to Land.


 


The Borrower shall preserve and maintain good and
valid title to the Project and such rights to use the Project Site as are
necessary to construct, operate and maintain the Project in accordance with the
requirements of the Transaction Documents.


 


6.22.                     Independent Consultants.


 


The Borrower (i) shall cooperate in all
respects with each Independent Consultant and (ii) shall ensure that each
Independent Consultant is provided with all information reasonably requested by
such Independent Consultant in fulfilling its duties to the Credit Parties and
ensure that any information that it may supply to such Independent Consultant
is accurate and not, by omission of information or otherwise, misleading in any
material respect at the time such information is provided.


 


6.23.                     Additional Documents; Filings and Recordings.


 


(a)                                  The Borrower shall execute and deliver, from time to time as reasonably
requested by DOE or the Collateral Agent at the Borrower’s expense, such other
documents as shall be necessary or advisable in connection with the rights and
remedies of the Credit Parties and the Collateral Agent granted or


 


65

















 


provided for by the Transaction Documents, and to
consummate the transactions contemplated therein.


 


(b)                                 (i) The Borrower shall, at its own expense, take all actions that
have been or shall be reasonably requested by DOE or the Collateral Agent, or
that the Borrower knows are necessary, to establish, maintain, protect, perfect
and continue the perfection of the first priority (subject to Permitted Liens)
security interests of the Secured Parties created by the Security Documents and
shall furnish timely notice of the necessity of any such action, together with
such instruments, in execution form, and such other information as may be
required or reasonably requested to enable any appropriate Secured Party to
effect any such action. Without limiting the generality of the foregoing, the
Borrower shall, at its own expense, (A) execute or cause to be executed
and shall file or cause to be filed or register or cause to be registered such
financing statements, continuation statements, fixture filings and mortgages or
deeds of trust in all places necessary or advisable (in the opinion of counsel
for the DOE or the Collateral Agent) to establish, maintain and perfect such
security interests and in all other places that DOE or the Collateral Agent
shall reasonably request, (B) discharge all other Liens (other than
Permitted Liens) or other claims adversely affecting the rights of the Secured
Parties in the Collateral Security and (C) deliver or publish all notices
to third parties that may be required to establish or maintain the validity,
perfection or priority of any Lien created pursuant to the Security Documents.


 


(ii)                                  The Borrower shall do everything necessary in the reasonable judgment of
DOE or the Collateral Agent (including filing, registering and recording all
necessary documents and paying all fees, taxes, levies, imposts and Periodic Expenses
in connection therewith) to (A) create security arrangements, including,
if applicable, the establishment of a pledge or the perfection of any Lien or,
as applicable, the enforceability of a Lien as against the Borrower and any
subsequent lienor (including a judgment lienor), holder of a charge, or
transferee for or not for value, in bulk, by operation of law, or otherwise, in
each case granted, with respect to future assets in accordance with the
requirements of all Governmental Rules, or the law of any other jurisdiction,
as applicable, subject only to Permitted Liens (B) maintain the security
and pledges created by the Security Documents in full force and effect at all
times (including, as applicable, the priority thereof), subject only to
Permitted Liens, and (C) preserve and protect the Collateral Security and
protect and enforce its rights and title, and the rights and title of the
Credit Parties, to the security created by the Security Documents. Furthermore,
the Borrower shall cause to be delivered to DOE such opinions of counsel and
other related documents as may be reasonably requested by DOE or the Collateral
Agent to assure compliance with this Section 6.23. Additionally,
when requested by DOE, the Borrower shall cause any Person party to a Project
Document (other than a Third Party Materials Supply Agreement) executed
subsequent to the Financial Closing Date to enter into a Direct Agreement with


 


66

















 


the Collateral Agent in form and substance satisfactory
to DOE and the Collateral Agent.


 


6.24.                     Compliance with Governmental Rules.


 


The Borrower at all times shall comply with Section 609.10(d)(20)
of the Applicable Regulations, and shall conduct its business, operations,
assets, equipment, property, leaseholds, and other facilities in compliance
with all Environmental Laws and in compliance with all other Governmental Rules the
noncompliance with which could reasonably be expected to have a Material
Adverse Effect.


 


6.25.                     Event of Loss.


 


If any material Event of Loss shall occur with
respect to the Project or any part thereof, the Borrower shall (i) diligently
pursue all its rights to compensation against all relevant insurers, reinsurers
and Governmental Authorities, as applicable, in respect of such event, (ii) not,
without the written consent of DOE, compromise or settle any claim (A) with
respect to any Event of Loss involving an amount in excess of $1,000,000 per
claim; and (iv) pay or apply all Loss Proceeds stemming from such event in
accordance with Section 3.4.3(a)(ii) and Section 6.26.


 


6.26.                     Application of Loss Proceeds.


 


(a)                                  All Loss Proceeds shall be applied as provided in this Section 6.26.
All Loss Proceeds shall be paid by the relevant insurers, reinsurers and
Governmental Authorities, as applicable, directly to the Collateral Agent as
loss payee and, if paid to the Borrower, such Loss Proceeds shall be received
in trust and for the benefit of the Collateral Agent segregated from other
funds of the Borrower, and shall be forthwith paid over to the Collateral Agent
in the same form as received (with any necessary endorsement). The Collateral
Agent as directed by DOE shall apply all such Loss Proceeds in accordance with
the provisions of this Section 6.26.


 


(b)                                 Upon the occurrence of a Event of Loss with respect to which Loss
Proceeds are payable in respect of a single loss in an amount not in excess of
$2,000,000, the Borrower shall apply such Loss Proceeds to the payment of the
costs of repair or restoration of the portion of the Project lost or damaged,
and disbursement of such funds by the Collateral Agent shall be made in
accordance with the Collateral Agency Agreement.


 


(c)                                  Upon the occurrence of any Event of Loss with respect to which Loss
Proceeds are payable in respect of a single loss in an amount in excess of
$2,000,000, disbursement of funds by the Collateral Agent to the Borrower shall


 


67

















 


be permitted if, and only if, DOE after
consultation with the Lender’s Engineer shall have determined that:


 


(i)                                             repair or replacement of the relevant portion of the Project is
technically and economically feasible and would not result in a breach of the
Debt Service Coverage Ratio requirements set forth in Section 7.14
(taking into account the expected time period of the repair or replacement
process and anticipated Operating Revenues during such period); and


 


(ii)                                          the Borrower is in compliance with such other conditions and
requirements as DOE shall consider appropriate in the circumstances.


 


(d)                                 All Loss Proceeds not otherwise applied in accordance with clauses (b) or
(c) of this Section 6.26, including, without limitation, due
to the absence of required approval by the Lender’s Engineer or DOE, as
applicable, shall be applied by the Collateral Agent to the prepayment of the
DOE Guaranteed Loan in accordance with Section 3.4.3(a)(ii).


 


6.27.                     Acceptance and Startup Testing.


 


The Borrower shall consult with and provide
reasonable notice to DOE and Lender’s Engineer regarding provisions related to
startup and testing of facility and equipment pursuant to the Construction
Contracts and the O&M Agreement.


 


6.28.                     Debt-to-Equity Contribution Ratio.


 


At all times until the Project Completion Date, the
Borrower shall ensure that the Debt-to-Equity Contribution Ratio is not greater
than 79:21.


 


6.29.                     Compliance With Certain U.S. Government
Requirements.


 


(a)                                  Recovery Act.  The Borrower shall timely comply with the
reporting requirements set out in Section 1512(c) of Title XV of
Division A of the Recovery Act. Such reporting shall be made in accordance with
the procedures set out or otherwise referenced in 2 C.F.R. Section 176.50
and the OMB Implementing Guidance, and, in each case, any amendment, supplement
or successor thereto. DOE may require in its notice that such reporting relate
back to the date hereof. Accordingly, Borrower shall at all times maintain such
records as may be necessary, in the event DOE issues such notice, to undertake
such reporting obligations.


 


(b)                                 Lobbying Requirements.  The Borrower shall comply with all
requirements of 31 U.S.C. §1352, including if any funds have been paid or will
be paid to any Person for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, an officer or employee of Congress,
or an employee of a member of Congress in connection with the


 


68














 


Advances, the Borrower shall complete and submit
Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance
with its instructions.


 


(c)                                  Use of United States Government Funds.  The Borrower shall comply with Section 609.10(c) of
the Applicable Regulations regarding the prohibition on the use of funds
obtained from the United States Government, or from a loan or other instrument
guaranteed by the United States Government, for the payment of Credit Subsidy
Costs, administrative fees, or other fees charged by or paid to DOE relating to
the Applicable Regulations, except to the extent explicitly authorized by an
act of the United States Congress.


 


(d)                                 Foreign Assets Control Regulations, Prohibited Persons, Etc.


 


(i)                                     The Borrower shall ensure that the making of any Advances and the use of
the proceeds thereof will not violate any Governmental Rule, including the
Foreign Asset Control Regulations.


 


(ii)                                  The Borrower shall ensure that it and its Principal Persons shall, at
all times, comply with all applicable orders, rules and regulations of
OFAC and all applicable Corrupt Practices Laws.


 


(iii)                               The Borrower shall ensure that it never becomes a Prohibited Person.


 


(iv)                              The Borrower shall ensure that none of the Collateral is traded or used,
directly or indirectly, by a Prohibited Person or by a Person organized in a
Prohibited Jurisdiction.


 


(v)                                 The Borrower shall establish and maintain an anti-money laundering
compliance program if and as required by the USA Patriot Act.


 


(vi)                              The Borrower shall ensure that its internal management and accounting
practices and controls are adequate for compliance with all Corrupt Practices
Laws.


 


6.30.                     Davis-Bacon Act.


 


(a)                                  In accordance with Section 1705(c) of Title XVII, beginning on
the date hereof, all laborers and mechanics employed in the performance of the
Project, including those employed by contractors and subcontractors, shall be
paid wages at rates not less than those prevailing on similar work in the
relevant locality as determined by the Secretary of Labor in accordance with
the Davis-Bacon Act. In furtherance of this requirement, the contract clauses
set out in 29 CFR 5.5(a)(1) through (10) are attached as Exhibit A4
(as modified therein) and are hereby incorporated herein as though set out in
their entirety in this Section


 


69

















 


6.30
and as provided therein shall be incorporated into all other Davis-Bacon Act
Covered Contracts (as defined in Exhibit A4), in each case.


 


(b)                                 The Borrower, on DOE’s behalf, shall systematically review the certified
payroll records that it maintains for its own laborers and mechanics pursuant
to subparagraph (b)(3)(i) of Exhibit A4 and those that it
receives for the laborers and mechanics of any Contract Party (as defined in Exhibit A4)
pursuant to subparagraph (b)(3)(ii)(A) of Exhibit A4. The
Borrower shall promptly notify the DOE contracting officer in writing when it
receives any complaint related to non-compliance with the Davis-Bacon Act, or
discovers in the course of its systematic review of the certified payroll
records an incident that the Borrower reasonably believes to be a case of such
non-compliance and which, in each case, the Borrower cannot resolve on its own
and shall forward to the DOE contracting officer (1) the complaint or a
written summary of the non-compliant incident, (2) a summary of the
Borrower’s investigation into such complaint or such incident, and (3) the
relevant certified payroll records. Certified payroll records maintained by the
Borrower shall be preserved for three (3) years after completion of work.
Notwithstanding anything to the contrary in subparagraph (b)(3)(ii)(A) of Exhibit A4,
the Borrower shall maintain such certified payroll records at a site designated
by the Borrower and shall make such records available to DOE and the U.S.
Department of Labor when necessary, and upon request, for purposes of an
investigation or audit of compliance with prevailing wage requirements.
Certified payroll records maintained by the Borrower shall be considered federal
government records for the purposes of the Freedom of Information Act, 42
U.S.C. 552. The Borrower shall provide such records to DOE within five (5) days
of receipt of any request for such records from DOE.


 


(c)                                  If the DOE Credit Facility Commitment terminates as a consequence of the
Borrower’s failure to deliver on or before September 30, 2011, a written
certification to DOE that Commencement of Construction has occurred, such
termination (and any corresponding Event of Default under this Common Agreement)
shall not be deemed to release the Borrower or any other Contract Party (as
defined in Exhibit A4) from their respective obligations under this
Section 6.30 and Exhibit A4, nor from any liability for
any breach by any such party of the terms and provisions of this Section 6.30
and Exhibit A4, in each case, as required to be performed during
the period prior to such termination.


 


6.31.                     ERISA Covenants.


 


(a)                                  The Borrower shall do, and shall cause each ERISA Affiliate to do, each
of the following: (i) maintain each Employee Benefit Plan in compliance in
all material respects with the applicable provisions of ERISA, the Internal
Revenue Code or other Federal or state law; (ii) cause each Qualified Plan to
maintain its qualified status under Section 401(a) of the Internal
Revenue Code; (iii) timely make all required contributions to any Employee
Benefit Plan; (iv)


 


70

















 


not become a party to any Multiemployer Plan; (v) ensure
that all liabilities under each Pension Plan are either (A) funded to at
least the minimum level required by law or, if higher, to the level required by
the terms governing such Pension Plan; (B) insured with a reputable
insurance company; or (C) provided for or recognized in the Financial Statements
most recently delivered to DOE under Section 6.1 hereof); and (vi) ensure
that the contributions or premium payments to or in respect of each Pension
Plan is and continues to be promptly paid at no less than the rates required
under the rules of such Pension Plan and in accordance with the most
recent actuarial advice received in relation to such Pension Plan and
applicable law.


 


(b)                                 The Borrower shall not, nor shall it permit any of ERISA Affiliate to, (i) terminate
any Pension Plan so as to result in any material (in the opinion of DOE)
liability to the Borrower or any ERISA Affiliate, (ii) permit to exist any
ERISA Event, or any other event or condition, which presents the risk of a
material (in the opinion of DOE) liability to any ERISA Affiliate, (iii) make a
complete or partial withdrawal (within the meaning of Section 4201 of
ERISA) from any Multiemployer Plan so as to result in any material (in the
opinion of DOE) liability to the Borrower or any ERISA Affiliate, (iv) enter
into any new Pension Plan or modify any existing Pension Plan so as to increase
its obligations thereunder which could result in any material (in the opinion
of DOE) liability to the Borrower or any ERISA Affiliate, or (v) permit
the present value of all nonforfeitable accrued benefits under any Pension Plan
(using the actuarial assumptions utilized by the PBGC upon termination of an
employee pension benefit plan subject to Title IV of ERISA) materially (in the
opinion of DOE) to exceed the fair market value of the Pension Plan’s assets
allocable to such benefits, all determined as of the most recent valuation date
for each such Pension Plan.


 


6.32.                     Domestic Procurement Consideration.


 


In respect of the operation and maintenance of the
Project, Borrower shall give full consideration to procuring from its suppliers
for the Project equipment and components manufactured in the United States,
taking into account availability, cost, technical performance, reliability,
efficiency, warranty coverage and related commercial terms.


 


6.33.                     Initial Advance Date.


 


Borrower shall request the initial Advance and
satisfy all conditions precedent to such Advance under the DOE Credit Facility
Documents pursuant to the submission of the Master Advance Notice, in
accordance with Section 2.3.1, within ten (10) Business Days
after the Financial Closing Date.


 


71

















 


6.34.                     Separateness Provisions.


 


Borrower shall comply with the separateness
provisions set forth on Schedule 6.34.


 


ARTICLE 7

NEGATIVE COVENANTS


 


The Borrower covenants and agrees that until the
date all Secured Obligations (other than inchoate indemnity obligations) are
paid in full and the DOE Credit Facility Commitment has terminated, unless DOE
waives compliance in writing:


 


7.1.                            Indebtedness.


 


The Borrower shall not, and shall not agree to,
incur, create, guarantee, assume, permit to exist or otherwise become liable
for any Indebtedness, except for:


 


(a)                                  Indebtedness incurred under the Loan Documents;


 


(b)                                 Contingent Obligations under the Project Documents all of which are
subordinated to the Secured Obligations, but excluding any amounts payable by
the Borrower to any Affiliate other  than payments in the ordinary
course of business under the Project O&M Agreement and the Administrative
Services Agreement;


 


(c)                                  Permitted Subordinated Loans;


 


(d)                                 Indebtedness in respect of amounts due to trade creditors and accrued
expenses, in each case arising in the ordinary course of business, to the
extent such amounts and expenses are not unpaid more than ninety (90) days past
the due date therefor;


 


(e)                                  Indebtedness for the acquisition of equipment or property incurred in
connection with the construction or operation of the Project as explicitly
contemplated under a Principal Project Document; and


 


(f)                                    Permitted Leases.


 


7.2.                            Liens.


 


The Borrower shall not, and shall not agree to,
create, assume or otherwise permit to exist any Lien upon any of the Collateral
Security or any of its other property, whether now owned or hereafter acquired,
or in any proceeds or income therefrom, other than Permitted Liens.


 


72

















 


7.3.                            Leases.


 


The Borrower shall not enter into any agreement or
arrangement to acquire by Lease the use of any property or equipment of any
kind (including by sale-leaseback or otherwise), except for Permitted Leases in
an amount not in excess of the amount budgeted therefor in the Construction
Budget or forecast therefor in the Operating Forecast, as applicable.


 


7.4.                            Loans, Advances and Investments.


 


The Borrower shall not make or permit to remain
outstanding any loans, extensions of credit or advances by the Borrower to or
investments by the Borrower in (whether by acquisition of any stocks, notes or
other securities or obligations) any Person, except for Permitted Investments
or as expressly provided in the Transaction Documents as in effect on the
Financial Closing Date.


 


7.5.                            Capital Expenditures.


 


The Borrower shall not make any Capital Expenditure
in any year except for (a) expenditures contemplated by the Construction
Budget, (b) expenditures made from the proceeds of insurance to the extent
permitted by the Loan Documents, (c) expenditures pursuant to periodic
budgets previously approved by DOE, (d) in amounts that are available and
could have been paid as a Restricted Payment under Section 7.10,
and (e) other Capital Expenditures in an aggregate in any Fiscal Year not
in excess of $250,000, provided that the Borrower shall be authorized to make
such expenditures as are necessary to address health or safety emergencies (but
not to exceed in any instance $500,000).


 


7.6.                            Subsidiaries; Partnerships.


 


The Borrower shall not: (a) form or have any
Subsidiaries; (b) enter into any partnership or a joint venture; (c) acquire
any ownership interest in or make any capital contribution to any other Person;
(d) enter into any partnership, profit-sharing or royalty agreement or
other similar arrangement whereby the Borrower’s income or profits are, or
might be, shared with any other Person; or (e) enter into any management
contract or similar arrangement whereby its business or operations are managed
by any other Person, other than the O&M Agreements and the Administrative
Services Agreement.


 


7.7.                            Ordinary Course of Conduct; No Other Business.


 


The Borrower shall not: (a) engage in any
business other than the acquisition, ownership, design, development,
construction, financing, implementation, completion, operation and maintenance
of the Project in accordance with and as contemplated by the Transaction
Documents; (b) undertake any action that could reasonably be expected to
lead to a material alteration of the nature of its business or the nature or
scope of the Project; (c) change its name or take any other action


 


73

















 


that might adversely affect the Liens created by
the Security Documents; or (d) fail to maintain its corporate existence
and its right to carry on its business.


 


7.8.                            Merger, Bankruptcy, Dissolution or Transfer of
Assets.


 


The Borrower shall not, and shall not agree to: (a) enter
into any transaction of merger or consolidation or convey, sell, lease or
otherwise transfer any of its property or assets, except (i) transactions
permitted under the Transaction Documents, (ii) sales in the ordinary
course of business, (iii) sales to the Output Purchaser under the terms of
the Power Purchase Agreement, and (iv) sales of equipment or other assets
that are (x) obsolete, (y) no longer used or useful in the operation
of the Project, or (z) are replaced by other equipment of equal value and
utility, and in all cases for which the Borrower shall have received
consideration reflecting value that would have been obtained in a transaction
on an arm’s length basis with an unaffiliated third party (unless such assets
only have scrap value), each of which, with respect to clause (iv), shall be
verified by the Lender’s Engineer if requested by DOE; (b) wind up,
liquidate, or dissolve itself, commence an Insolvency Proceeding or file any
petition or pass a resolution seeking the same; or (c) acquire property or
assets of any other Person (other than purchases or other acquisitions of
inventory or materials or spare parts or Capital Expenditures, each in the
ordinary course of business in accordance with the applicable budget).


 


7.9.                            Organizational Documents; Fiscal Year; Legal Form;
Capital Structure.


 


The Borrower shall not (a) amend or modify its
Organizational Documents, or (b) amend or modify its legal form, its
Fiscal Year or its capital structure.


 


7.10.                     Restricted Payments.


 


(a)                                  Except as set forth in Section 7.10(b), the Borrower shall
not reduce its capital or declare or make or authorize any dividend or any
other payment or distribution of cash or property to its Equity Owners on
account of any equity interest or make any payment with respect to principal or
interest on or purchase, redeem or defease any Permitted Subordinated Loans
(each of the foregoing a “Restricted Payment”) unless the Borrower
satisfies each of the following conditions:


 


(i)                                             Operational Completion has occurred;


 


(ii)                                          no Potential Default or Event of Default then exists or would exist
after giving effect to any such Restricted Payment;


 


74

















 


(iii)                                       the cash balance in (and the Reserve Letters of Credit available to be
drawn into) each of the Debt Service Reserve Account, Major Maintenance Reserve
Account and Battery Replacement Reserve Account shall equal or exceed the then
required reserve requirement set forth in the Collateral Agency Agreement, both
before and after the Restricted Payment is made;


 


(iv)                                      the Distribution Preconditions have been satisfied;


 


(v)                                         no more than one (1) other Restricted Payment has been made during
the current Fiscal Year; and


 


(vi)                                      such Restricted Payment is permitted by Governmental Rules.


 


(b)                                 Notwithstanding any other restriction in this Common Agreement, the
Borrower may make payments or Restricted Payments to a Project Participant, in
accordance with the Collateral Agency Agreement, either (x) as payment of
Operating Costs, or (y) from amounts held in the Equity Distribution
Account, in the amount of payable fees that constitute Operating Costs.


 


7.11.                     Redemption or Issuance of Stock.


 


The Borrower shall not redeem, retire, purchase or
otherwise acquire, directly or indirectly, any of its Equity Interests now or
hereafter outstanding (or any options or warrants issued by the Borrower with
respect to its Equity Interests) or set aside any funds for any of the
foregoing or issue any Equity Interests to any other Person.


 


7.12.                     Other Transactions.


 


Except for the Transaction Documents as in effect
on the Financial Closing Date or as set out on Schedule 5.14 to the
Disclosure Letter, the Borrower shall not, directly or indirectly, (a) enter
into any transaction or series of related transactions with any Person
(including any Affiliate) other than in the ordinary course of business and on
an arm’s-length basis, or (b) establish any sole and exclusive purchasing
or sales agency, or enter into any transaction whereby the Borrower might pay
more than the fair market value for products of others.


 


7.13.                     Accounts.


 


The Borrower shall not establish any bank accounts,
deposit accounts or securities accounts, other than the Project Accounts.


 


75

















 


7.14.                     Debt Service Coverage Ratio.


 


As of the last day of each fiscal quarter of the
Borrower occurring after the last day of the Availability Period and continuing
until the repayment in full of the DOE Guaranteed Loan, the Borrower shall not
permit its Debt Service Coverage Ratio for (i) the preceding
four-fiscal-quarter period (measured as of the end of such period or, in the
event of a period occurring prior to the end of the first four-fiscal-quarter
period after the First Principal Payment Date, such shorter period from the
First Principal Payment Date to the end of such period), and (ii) the
projected four-fiscal-quarter period, in each case to be less than 1.15 to
1.00; provided, however
that no violation of this covenant shall have occurred if, in the event any
such ratio is not met, then (A) 100% of excess cash (including all funds
on deposit in the Equity Distribution Account) is used to prepay the principal
amount of the Guaranteed Loan to the extent required comply with the Debt
Services Coverage Ratios and (B) mandatory prepayments are made pursuant
to Section 3.4.3(a)(vi)), such that the Debt Service Coverage
Ratios meet the requirements herein by the last day of the immediately
following fiscal quarter of the Borrower.


 


7.15.                     Commissions.


 


The Borrower shall not pay:


 


(a)                                  any commission or fee to any other First Wind Entity or any Affiliate
thereof for furnishing guarantees, counter-guarantees or similar credit support
for any obligations undertaken in connection with the Project (other than as
set forth in paragraph (b) below), or


 


(b)                                 any fee to any other First Wind Entity or any Affiliate thereof with
respect to or in connection with the development, construction, financing or
operation of the Project, including salaries, bonuses, commissions, management
fees, consulting fees, and technical assistance fees, other than amounts
provided for in the Project O&M Agreement and the Administrative Services
Agreement.


 


7.16.                     Amendment of and Notices Under Transaction
Documents.


 


The Borrower shall not (other than to correct minor
or technical errors that do not change any Person’s rights or obligations),
except with the prior written consent of DOE acting in consultation with the
Lender’s Engineer:


 


(a)                                  directly or indirectly agree to any amendment, modification,
termination, replacement of counterparty, supplement or waiver or waive any
right to consent to any amendment, modification, termination, replacement of
counterparty, supplement or waiver of any right with respect to, or assign any
of the respective duties or obligations under:


 


76

















 


(i)                                     any Project Document, except for Change Orders under any Construction
Contract that (A) do not change the Construction Budget or the Project
Milestone Schedule, except for Approved Construction Changes, (B) could
not reasonably be expected to delay the occurrence of Operational Completion by
more than thirty (30) days, and (C) could not reasonably be expected to
have a Material Adverse Effect; provided, that the Borrower shall give
DOE and the Lender’s Engineer prompt written notice of such Change Orders;


 


(ii)                                  any Governmental Approval or other Required Consent, the effect of which
could reasonably be expected to have a Material Adverse Effect;


 


(iii)                               any Loan Document (except a Loan Document to which a Credit Party is a
party and for which amendment, modification, termination, supplement or waiver
requires the consent of such Credit Party);


 


(iv)                              any Organizational Document; or


 


(v)                                 any agreement replacing any Operator;


 


(b)                                 certify, consent to or otherwise permit through a Change Order or
otherwise for “Final Completion” to occur under the Project Construction
Contract, “Project Completion” under the Turbine Supply Agreement, or “Final
Completion” under the Battery Supply Agreement; or


 


(c)                                  enter into any agreement other than any Loan Document restricting its
ability to amend or otherwise modify any of the Transaction Documents.


 


7.17.                     Other Agreements.


 


The Borrower shall not enter into or become a party
to any agreement, contract or loan commitment outside the ordinary course of
business other than (a) the Transaction Documents as in effect on the
Financial Closing Date, or (b) agreements, contracts or loan commitments
expressly contemplated or permitted by the Transaction Documents as in effect
on the Financial Closing Date, or (c) as contemplated by the Construction
Budget, Project Milestone Schedule, the Operating Plan or the Operating
Forecast.


 


7.18.                     Hedging Agreements.


 


The Borrower shall not enter into any Hedging
Agreement.


 


7.19.                     Compromise or Settlement of Disputes.


 


The Borrower shall not agree or otherwise consent
to settle or compromise any single litigation, arbitration or other dispute in
excess of $1,000,000, or series of


 


77

















 


litigation, arbitration or other dispute
proceedings in the aggregate in excess of $1,000,000, in each case without the
prior written consent of DOE.


 


7.20.                     Abandonment of Project.


 


The Borrower shall not (a) abandon, agree to
abandon or make any public statements regarding its intention to abandon the
development, construction or operation of the Project, or take any action that
could be deemed an “abandonment”, or transfer the Project to any Person, or (b) notify
any Major Project Participant of its intent to terminate any Principal Project
Document or the construction or operation of the Project.


 


7.21.                     Improper Use.


 


The Borrower shall not use, operate or occupy, or
allow the use, maintenance, operation or occupancy of, any portion of the
Project Site or Project in any manner or for any purpose: (a) that would
be illegal or dangerous (unless safeguarded as required by Governmental Rules),
(b) that could reasonably be expected to have a Material Adverse Effect, (c) that
may make void, voidable or cancelable, or materially increase the premium of,
any insurance then in force with respect to the Project or any part thereof, or
(d) other than for the intended purpose thereof in the construction,
operation and maintenance of the Project.


 


7.22.                     Assignment.


 


Other than the assignment of the Project Documents
and Governmental Approvals to the Collateral Agent as security for the benefit
of the Secured Parties, the Borrower shall not assign or otherwise transfer its
rights under any of the Transaction Documents or Governmental Approvals to any
Person.


 


7.23.                     Margin Regulations.


 


The Borrower shall not directly or indirectly apply
any part of the proceeds of any Advance or other revenues to the purchasing or
carrying of any margin stock within the meaning of Regulation T, U or X of the
Board of Governors of the Federal Reserve of the United States, or any
regulations, interpretations or rulings thereunder.


 


7.24.                     Environmental Laws.


 


The Borrower shall not undertake any action or
Release any Hazardous Substances in violation of any Environmental Law and
shall ensure that the Project shall be operated in compliance with all
Environmental Laws and that the Project shall not be operated in any manner
that would pose a hazard to public health or safety or to the environment, in
each case unless such action could not reasonably be expected to have a
Material Adverse Effect.


 


78














 


7.25.       ERISA.


 


Neither the Borrower nor any ERISA Affiliate shall
adopt, establish, participate in, or incur any obligation to contribute to, any
Employee Benefit Plan or incur any liability to provide post-retirement welfare
benefits in violation of any Governmental Rule.


 


7.26.       Investment
Company Act.


 


The Borrower shall not take any action that would
result in the Borrower being required to register as an “investment company”
under the Investment Company Act.


 


7.27.       Public
Utility Holding Company Act.


 


The Borrower shall not take, nor permit any
Affiliate to take any action that could result in the Borrower being subject to
regulation under the Public Utility Holding Company Act.


 


7.28.       Powers
of Attorney.


 


The Borrower shall not grant any power of attorney
or similar power to any Person, except (i) to its directors, officers and
employees in the ordinary course of business, or (ii) in connection with
Permitted Liens.


 


7.29.       Prohibited
Persons.


 


The Borrower shall not Knowingly enter into any
transactions with any Person who is a Prohibited Person.


 


ARTICLE 8


EVENTS OF DEFAULT; REMEDIES


 


8.1.         Events
of Default.


 


The occurrence of any of the following events shall
constitute an Event of Default hereunder:


 


(a)           Failure
to Make Payment Under Loan Documents.
The Borrower shall fail to pay, in accordance with the terms of the DOE Credit
Facility Documents or any other Loan Documents (whether by scheduled maturity,
required prepayment, by acceleration or otherwise), (i) any principal of
or interest on the DOE Guaranteed Loan on or before the date such amount is
due, or (ii) any fee, charge or other amount due under any Loan Document
on or before the date such amount is due.


 


79

















 


(b)           Misstatements;
Omissions. Any representation or
warranty confirmed or made in any Loan Document by or on behalf of the
Borrower, Kahuku Holdings, the Sponsor or the Project Operator or in any
certificate, Financial Statement or other document provided by or on behalf of
any such Person to any Credit Party or Independent Consultant in connection
with the transactions contemplated by the Transaction Documents shall be found
to have been incorrect, false or misleading in any material respect when made
or deemed to have been made.


 


(c)           Covenants
and Other Agreements with Cure Period.


 


(i)            The
Borrower or any First Wind Entity shall fail to perform or observe any material
term, covenant or agreement (other than those set forth in Sections 8.1(a),
(b) and (d)) contained in any Loan Document to which it is a
party, where such default has not been remedied within thirty (30) days or such
other time period as may be specified in the applicable Loan Document if such
default is remediable after any Authorized Official of such party receives
notice or should reasonably have known of such failure.


 


(ii)           Any
Major Project Participant shall fail to perform or observe any material term,
covenant or agreement (other than those set forth in Sections 8.1(a), (b) and
(d)) contained in any Loan Document to which it is a party, where such
default has not been remedied (or waived by DOE) within thirty (30) days or
such other time period as may be specified in the applicable Loan Document if
such default is remediable after any Authorized Official of such party receives
notice or should reasonably have known of such failure.


 


(d)           Covenants
Without Cure Period. (i) The Borrower
shall fail to perform or observe any of its obligations under (A) any
term, covenant or agreement set forth in Section 6.1(h)(i) (Reporting
Obligations), Section 6.3(b) (Maintenance of Property and
Insurance), Section 6.13 (Use of Proceeds; Repayment of
Indebtedness), Section 6.17 (Debt Service Reserve) or Article 7
(Negative Covenants) (except as provided in Section 7.14) or (B) any
other negative covenant contained in any Loan Document to which it is a party,
where such default has not been remedied within the cure period, if any,
specified in such Loan Document, or (ii) the Borrower or any of its
members, directors, officers, parents or subsidiaries, or any of its successors
or assigns, shall fail to perform or observe any of its obligations under Section 7.29.


 


(e)           Environmental
Matters. (i) Any administrative, regulatory or
judicial action, suit or proceeding under or relating to any Environmental Law
or asserting any Environmental Claim shall have been instituted that has had or
could reasonably be expected to have a Material Adverse Effect, or (ii) any
Governmental Judgment is issued relating to any Environmental Claim,
Environmental Law or any Governmental Approval issued under any


 


80

















 


Environmental Law that has had or could reasonably
be expected to have a Material Adverse Effect.


 


(f)            Breach
or Default Under Project Documents.
Any Project Participant shall breach or default under, or become unable to
perform, any of its material agreements, conditions, terms or covenants
contained in any Project Document to which it is a party and (i) such
circumstance shall continue unremedied beyond any applicable cure period set
forth therein, (ii) such breach has had or could reasonably be expected to
have a Material Adverse Effect; provided, that if it is feasible to
replace such defaulting party with a new counterparty that is acceptable to DOE
and on terms satisfactory to DOE, in each case in DOE’s sole discretion, there
shall be no default if such replacement occurs within the lesser of (x) ninety
(90) days or (y) such shorter period as avoids the occurrence of a
Material Adverse Effect; provided, further, that no such
replacement option shall apply with respect to the Output Purchaser under the
Power Purchase Agreement or the Turbine Supplier under the Turbine Supply
Documents.


 


(g)           Equity
Funding Agreement; Sponsor Support Agreement; Sponsor Guarantee.


 


(i)               The
Sponsor or Kahuku Holdings fails to make payment when due under the Equity
Funding Agreement, the Sponsor Support Agreement or the Sponsor Guarantee, and
such failure continues for three (3) Business Days;


 


(ii)              Any
non-payment breach of or default under the Equity Funding Agreement, the
Sponsor Support Agreement or the Sponsor Guarantee occurs and such default or
breach continues beyond the applicable grace period;


 


(iii)             The
incurrence or creation of any Indebtedness for Borrowed Money of Kahuku
Holdings; or


 


(iv)             Prior
to the Project Completion Date, any default or breach, in either event that
could reasonably be expected to give the lender a right to accelerate the
maturity of any Indebtedness of the Sponsor in excess of $10,000,000; provided,
however, that this circumstance shall not constitute an Event of Default
if within three (3) Business Days of such default or breach, the Sponsor
prepays the DOE Guaranteed Loan in the amount of the then remaining, undrawn
amount of the Sponsor Guarantee or applies the funds drawn under the Sponsor
Guarantee otherwise as may be directed by DOE in its sole discretion.


 


(h)           Unenforceability,
Termination, Repudiation or Transfer of Any Transaction Document. This Common Agreement or any of the other Transaction Documents or any
material provision hereof or thereof at any time for any reason (1) is or
becomes invalid, illegal, void or unenforceable or any party thereto shall


 


81

















 


have repudiated or disavowed or taken any action to
challenge the validity or enforceability of such agreement, (ii) except as
otherwise expressly permitted hereunder, ceases to be in full force and effect
except at the stated termination date thereof, or shall be assigned or
otherwise transferred or prematurely terminated by any party thereto prior to
the repayment in full of all Secured Obligations (other than with the prior
written consent of DOE), or (iii) shall cease to give the Collateral Agent
or any Credit Party in any material respect the Liens, rights, powers and
privileges purported to be created thereby or hereby.


 


(i)            Security
Interests. Subject only to
Permitted Liens, any of the Security Documents shall fail in any material
respect to provide the Liens, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby (including the
priority intended to be created thereby) or such Lien shall fail to have the
priority contemplated therefor in such Security Documents, or any such Security
Document or Lien shall cease to be in full force and effect, or the validity
thereof or the applicability thereof to the Advances, or any other obligations
purported to be secured or guaranteed thereby or any part thereof, shall be
disaffirmed by or on behalf of the Borrower or any other party thereto.


 


(j)            Ownership
of Borrower; Kahuku Holdings.


 


(i)               Kahuku
Holdings ceases to be the sole Equity Owner of Borrower or ceases to own and
Control all Equity Interests in the Borrower; or


 


(ii)              a
Change of Control occurs.


 


(k)           Default
under Other Indebtedness.


 


(i)               The
Borrower shall default in the payment of any principal, interest or other
amount due under any agreement or instrument evidencing, or under which the
Borrower has outstanding at any time, any Indebtedness for Borrowed Money
(other than the Advances) in an amount in excess of $500,000 for a period
beyond any applicable grace period; or


 


(ii)              any
other default occurs under any such agreement or instrument, if the effect of
such default is to accelerate, or to permit the acceleration of, the maturity
of such Indebtedness for Borrowed Money in an amount in excess of $500,000
(other than the Advances).


 


(l)            Judgments.


 


(i)               One
or more Governmental Judgments or arbitral awards shall be entered against the
Borrower, or, prior to the Project Completion Date, the Sponsor, and such
Governmental Judgments or arbitral awards shall not be


 


82

















 


vacated, discharged or stayed or bonded pending
appeal for any period of thirty (30) consecutive days, and the aggregate amount
of all such Governmental Judgments and arbitral awards outstanding at any time
(except to the extent any applicable insurer(s) shall have acknowledged
liability therefor) exceeds $1,000,000 for the Borrower or $10,000,000 for the
Sponsor.


 


(ii)              One
or more Governmental Judgments or arbitral awards shall be entered against any
of the Major Project Participants other than the Borrower, or, prior to the
Project Completion Date, the Sponsor, and such Governmental Judgments or
arbitral awards shall not be vacated, discharged or stayed or bonded pending
appeal for any period of thirty (30) consecutive days, and such Governmental
Judgments and/or arbitral awards, either singly or in the aggregate, can
reasonably be expected to have a Material Adverse Effect.


 


(iii)             Notwithstanding
paragraph (i) or (ii) above, one or more Governmental Judgments shall
be entered against any Major Project Participant in the form of an injunction
or similar form of relief requiring suspension or abandonment of construction
or operation of the Project (or any material portion thereof) for a period of
at least thirty (30) days and such Governmental Judgments shall not be vacated,
discharged or stayed or bonded pending appeal for any period of thirty (30)
consecutive days.


 


(m)          Bankruptcy;
Insolvency.


 


(i)            Involuntary
Bankruptcy, Etc. An Insolvency
Proceeding shall have been commenced against (A) the Borrower or Kahuku
Holdings, (B) prior to the Project Completion Date, the Sponsor, or (C) to
the extent such proceeding could reasonably be expected to have a Material
Adverse Effect, any Affiliate of the Borrower, and in each case if such
proceeding continues undismissed for sixty (60) days.


 


(ii)           Voluntary
Bankruptcy, Etc. The institution of an
Insolvency Proceeding by (A) the Borrower or Kahuku Holdings, (B) prior
to the Project Completion Date, the Sponsor, or (C) to the extent such
proceeding could reasonably be expected to have a Material Adverse Effect, any
Affiliate of the Borrower; or the admission by such Person in writing of its
inability to pay its Indebtedness generally as it becomes due or its general
failure to pay its Indebtedness as it becomes due; or any other event shall
have occurred that under any Governmental Rule would have an effect
analogous to any of those events listed above in this Section 8.1(m)(ii)(C) with
respect to any such Person; or any action is taken by any such Person for the
purpose of effecting any of the foregoing.


 


(n)           Governmental
Approvals and Required Consents.
Any Major Project Participant shall fail to obtain, renew, maintain or comply
with any


 


83

















 


Governmental Approval or other Required Consent, or
any such Governmental Approval or Required Consent shall be rescinded,
terminated, suspended, modified, withdrawn or withheld or shall be determined
to be invalid or shall cease to be in full force and effect; or any proceedings
shall be commenced by or before any Governmental Authority for the purpose of
rescinding, terminating, suspending, modifying, withdrawing or withholding any
Governmental Approval, if such failure, termination, suspension, modification,
withdrawal, withholding, revocation, proceeding or other event has had or could
reasonably be expected to have a Material Adverse Effect.


 


(o)           Use
of Project Site. Pursuant to a final,
non-appealable determination by a Governmental Authority, the Borrower shall
cease to have the right to (i) possess and use the Project Site and the
Improvements for the purpose of owning, constructing, maintaining and operating
the Project in the manner contemplated by the Transaction Documents, for a
period of thirty (30) consecutive days, or (ii) sell or otherwise dispose
of any of its interest in the Project Site or the Project other than as
permitted by the Loan Documents.


 


(p)           Event
of Loss. All or substantially all of the Project is
destroyed or becomes permanently inoperative, or the Project suffers an actual
or constructive loss or damage not covered by insurance, which could reasonably
be expected to have a Material Adverse Effect.


 


(q)           Suspension
of Construction. Prior to the Project
Completion Date, construction of the Project shall be suspended for a period of
twenty (20) or more consecutive days; provided, that such period of
permissible suspension shall be extended by any Event of Force Majeure delay
permitted under the Power Purchase Agreement, but not to exceed a total of 360
days.


 


(r)            Suspension
of Operation. From and after the
Project Completion Date, the Project ceases to operate for a period of twenty
(20) or more consecutive days; provided, that such period of permissible
suspension shall be extended by any Event of Force Majeure delay permitted
under the Power Purchase Agreement, but not to exceed a total of 360 days.


 


(s)            Failure
of Physical Completion or Operational Completion to Occur; Insufficient Funding.


 


(i)            Any
of the following:


 


(A)          Physical
Completion has not occurred by the Guaranteed Physical Completion Date; or


 


(B)          Operational
Completion has not occurred by the Guaranteed Operational Completion Date; provided,
that the Guaranteed


 


84

















 


Operational Completion Date shall be extended by
ninety (90) days (the “Operational Completion Date Extension”) if each
of the following conditions is satisfied to DOE’s satisfaction:


 


(1)           all
conditions to Operational Completion, except Achievement of Battery Completion,
have been satisfied;


 


(2)           Borrower
certifies that it shall use its best efforts during the Operational Completion
Date Extension to cause Achievement of Battery Completion to occur; and


 


(3)           Borrower
provides calculations (taking into account the reduction in anticipated Project
revenues under the Power Purchase Agreement because of the lack of Achievement
of Battery Completion and any funds available under the Sponsor Guarantee to
prepay the DOE Guaranteed Loan) showing, throughout the term of the DOE Credit
Facility Documents, a minimum annual Debt Service Coverage Ratio of 1.15 to
1.00 for the period beginning on the First Principal Payment Date and
continuing until repayment in full of the DOE Guaranteed Loan;


 


provided,
further, however, that if Achievement of Battery Completion has
not occurred by the end of the Operational Completion Date Extension, the
requirement of Achievement of Battery Completion for Operational Completion
shall automatically be waived, if each of the following conditions is satisfied
to DOE’s satisfaction:


 


(1)           all
conditions to Operational Completion, except Achievement of Battery Completion,
have been satisfied;


 


(2)           Borrower
has used its best efforts during the Operational Completion Date Extension to
cause Achievement of Battery Completion to occur;


 


(3)           Sponsor
has made the mandatory prepayment in accordance with Section 3.4.3(a)(vii);
and


 


(4)           Borrower
provides calculations (taking into account the reduction in anticipated Project
revenues under the Power Purchase Agreement because of the lack of Achievement
of Battery Completion) showing, throughout the term of the DOE Credit Facility
Documents, a minimum annual Debt Service Coverage Ratio of 1.15 to 1.00 for the
period beginning on the First Principal Payment Date and continuing until
repayment in full of the DOE Guaranteed Loan.


 


85

















 


(ii)           At
any time prior to the Project Completion Date, in the reasonable opinion of
DOE, in consultation with the Lender’s Engineer as appropriate, the remaining
Project Costs necessary to achieve Project Completion exceed the funds
available to the Borrower and the Borrower fails within sixty (60) days after
receiving notice thereof from DOE to arrange for the provision of the requisite
funds (through additional Equity Contributions or Permitted Subordinated Loans)
on terms and conditions and from parties reasonably acceptable to DOE.


 


(t)            Notice
of Termination under Certain Project Agreements.
The giving of a notice of termination under any Principal Project Document or
the occurrence of any event or circumstance entitling any Major Project Participant
to give such a notice; provided, that if it is feasible to replace such
Principal Project Document with a new Principal Project Document involving a
counterparty that is acceptable to DOE and on terms satisfactory to DOE, in
each case in DOE’s sole discretion, there shall be no default if such
replacement occurs within the lesser of (x) ninety (90) days or (y) such
shorter period as avoids the occurrence of a Material Adverse Effect;
provided, further, that no such replacement option shall apply with
respect to the Power Purchase Agreement or the Turbine Supply Documents.


 


(u)           ERISA
Events. There occurs one or more ERISA Events
which individually or in the aggregate results in or otherwise is associated
with any liability of the Borrower or any ERISA Affiliate during the term of
this Common Agreement; or there exist any unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA.


 


(v)           Extended
Event of Force Majeure. The occurrence
of an Event of Force Majeure that prevents the Borrower from performing its
obligations under any Transaction Document for more than 180 days, or, if the
Event of Force Majeure constitutes “Force Majeure” under Section 21 of the
Power Purchase Agreement, then 360 days.


 


(w)          Reserve
Accounts. The Borrower shall fail
to maintain each of the Project Revenue Account, Debt Service Reserve Account,
Major Maintenance Reserve Account and Battery Replacement Reserve Account and
to fund such Project Accounts in accordance with the applicable reserve
requirements set forth in the Collateral Agency Agreement.


 


(x)           Material
Adverse Effect. The occurrence of any
event or condition that has had or could reasonably be expected to have a
Material Adverse Effect.


 


86

















 


(y)           Foreign
Assets Control Regulations, Prohibited Persons, Etc.


 


(i)            Advances
and Foreign Asset Control Regulations.
The making of any Advances or the use of the proceeds thereof violates any
Governmental Rule, including the Foreign Asset Control Regulations.


 


(ii)           OFAC
and Corrupt Practices Laws.
Any First Wind Entity or any of their respective Principal Persons, members,
parents, subsidiaries, employees and agents fail to comply with all applicable
orders, rules, and regulations of OFAC, or all applicable Corrupt Practices
Laws in obtaining any consents, licenses, approvals, authorizations, rights, or
privileges with respect to the Project or are not otherwise conducting the
Project or the business of the First Wind Entities in compliance with all
applicable Corrupt Practices Laws.


 


(iii)          First
Wind Entity Prohibited Person.
Any First Wind Entity or any of their Principal Persons, members, parents or
subsidiaries is or becomes a Prohibited Person; provided, that if any
such Principal Person, member, parent or subsidiary that becomes a Prohibited
Person is removed or replaced with a Person reasonably acceptable to DOE within
ten (10) days from the date that the Borrower Knew that such Principal
Person, member, parent or subsidiary is a Prohibited Person, no Event of Default
under this Section 8.1(y)(iii) shall be deemed to have
occurred.


 


(iv)          Major
Project Participant Prohibited Person.
Any Major Project Participant or any of their Principal Persons, members,
parents or subsidiaries is or becomes a Prohibited Person and such Major
Project Participant, Principal Person, member, parent or subsidiary is not
removed or replaced with a Person reasonably acceptable to DOE within thirty
(30) days from the date that the Borrower Knew that such Major Project
Participant, Principal Person, member, parent or subsidiary is a Prohibited
Person; provided, that the foregoing cure period is not available if the
Output Purchaser or Turbine Supplier becomes a Prohibited Person.


 


(v)           Transactions
with a Prohibited Person.


 


(A)          The
Borrower Knowingly enters into any transaction with a Person who is a
Prohibited Person.


 


(B)          The
Borrower enters into any transaction with a Person who is a Prohibited Person
and does not remove or replace such Prohibited Person reasonably acceptable to
DOE within thirty (30) days from the date that the Borrower Knew that such
Person was a Prohibited Person.


 


(vi)          First
Wind Entity and Major Project Participant Change in Control. Any change in Control of any First Wind Entity or Major Project
Participant occurs that results in such First Wind Entity or Major Project
Participant being Controlled by a Prohibited Person; provided, that if
any such Major Project


 


87

















 


Participant or such Prohibited Person Controlling
such Major Project Participant is removed or replaced with a Person reasonably
acceptable to DOE within thirty (30) days from the date that the Borrower Knew
that such Major Project Participant became Controlled by a Prohibited Person,
no Event of Default under this Section 8.1(y)(vi) shall be
deemed to have occurred.


 


(vii)         Collateral. Any of the Collateral shall be traded or used, directly or indirectly,
by a Prohibited Person or by a Person organized in a Prohibited Jurisdiction.


 


For the avoidance of doubt, each clause of this Section 8.1
shall operate independently, and the occurrence of any such event shall
constitute an Event of Default.


 


8.2.         Remedies
for Events of Default.


 


Upon the occurrence and during the continuance of
an Event of Default, the Credit Parties may, without further notice of default,
presentment or demand for payment, protest or notice of non-payment or
dishonor, or other notices or demands of any kind, all such notices and demands
being waived (to the extent permitted by Governmental Rules), exercise any or
all rights and remedies at law or in equity (in any combination or order that
the Credit Parties, may elect), including, without limitation or prejudice to
the Credit Parties’ other rights and remedies, the following:


 


(i)            (A) refuse,
and the Collateral Agent or any Credit Party shall not be obligated, to make or
guarantee any further Advances or any payments from any Project Account or any
Account Proceeds or other funds held by the Collateral Agent by or on behalf of
the Borrower, and (B) suspend or terminate the DOE Credit Facility
Commitment;


 


(ii)           take
those actions necessary to perfect and maintain the Liens of the Security
Documents;


 


(iii)          declare
and make all sums of outstanding principal and accrued but unpaid interest
remaining under this Common Agreement and the other Loan Documents together
with all unpaid fees, Periodic Expenses and charges due hereunder or under any
other Loan Document, payable on demand or immediately due and payable,
whereupon such amounts shall immediately mature and become due and payable;


 


(iv)          enter
into possession of the Project (or any portion thereof) and perform any and all
work and labor necessary to complete the Project (or any portion thereof) or to
operate and maintain the Project (or any portion thereof), or otherwise
foreclose upon or take possession of any Collateral Security and all


 


88














 


sums expended by any such Person in so doing,
together with interest on such amount at the Late Charge Rate, shall be repaid
by the Borrower to such Person upon demand and shall be secured by the Security
Documents, notwithstanding that such expenditures may, together with the
aggregate amount of Advances under the DOE Credit Facility Documents, exceed
the amount of the total DOE Credit Facility Commitment;


 


(v)           set
off and apply such amounts to the satisfaction of the Secured Obligations under
all of the Loan Documents, including (A) all monies on deposit in any
Project Account, (B) any Account Proceeds, (C) any amounts paid under
the Equity Funding Agreement, the Sponsor Support Agreement or the Sponsor
Guarantee, including any Reserve Letters of Credit issued thereunder, or (D) any
other moneys of the Borrower on deposit with the Collateral Agent or any Credit
Party;


 


(vi)          prior
to the occurrence of Operational Completion, require the Equity Investor to
make an Accelerated Equity Contribution in an amount equal to the lesser of: (A) the
balance of the undrawn Base Equity Commitment and all amounts of the Overrun
Equity Commitment, and (B) the outstanding amount of the Secured
Obligations at such time;


 


(vii)         cure
defaults;


 


(viii)        proceed
to protect and enforce its rights and remedies by appropriate proceedings,
whether for damages or the specific performance of any provision of this Common
Agreement or any other Transaction Document, or in aid of the exercise of any
power granted in this Common Agreement or any other Transaction Document, or by
law, or proceed to enforce the payment of any amount due and payable; and


 


(ix)           exercise
any and all rights and remedies available to it under any of the Transaction
Documents with respect to the Project, the Borrower, Kahuku Holdings, the
Sponsor, the Equity Owners and any other Project Participant and under the
Collateral Security or otherwise under Governmental Rules; and


 


(x)            in
accordance with Section 609.10(e)(4) of the Applicable Regulations,
take such other actions as DOE may reasonably require to provide for the care,
preservation, protection, and maintenance of all Collateral so as to enable the
United States to achieve maximum recovery upon default by Borrower on the
Advances.


 


89

















 


8.3.         Automatic
Acceleration.


 


Upon the occurrence of an Event of Default referred
to in Section 8.1(m) (Bankruptcy; Insolvency), (a) the
DOE Credit Facility Commitment shall automatically be terminated, and (b) the
Advances, together with interest accrued thereon, and all other amounts due
under the Advances, in respect of the DOE Guaranteed Loan or under the Loan
Documents, shall immediately mature and become due and payable, without any
other presentment, demand, diligence, protest, notice of acceleration, or other
notice of any kind, all of which the Borrower hereby expressly waives.


 


ARTICLE 9


AGENTS AND ADVISORS


 


9.1.         Appointment
of Agents.


 


In connection with the Project, each Credit Party
hereby appoints, and by its signature below, each such Agent accepts such
appointment:


 


(a)           the
Loan Servicer to act as Loan Servicer and authorizes it to exercise such
rights, powers, authorities and discretions as are specifically delegated to
the Loan Servicer by the terms of this Common Agreement and the other Loan
Documents, together with all such rights, powers, authorities and discretions
as are reasonably incidental thereto; and


 


(b)           the
Collateral Agent to act as Collateral Agent and authorizes it to exercise such
rights, powers, authorities and discretions as are specifically delegated to
the Collateral Agent by the terms of this Common Agreement and the other Loan
Documents, together with all such rights, powers, authorities and discretions
as are reasonably incidental thereto.


 


9.2.         Duties
and Responsibilities.


 


(a)           No
Agent shall have any duties or responsibilities except those expressly set out
in this Common Agreement or in the other Loan Documents. Notwithstanding
anything to the contrary contained herein or in any Loan Document, no Agent
shall be required to take any action that is contrary to any Governmental Rule.


 


(b)           DOE,
and any subsequent Person acting as Loan Servicer under the Loan Documents,
shall comply with all requirements of the Applicable Regulations with respect
to servicing the Advances, including:


 


(i)            In
accordance with Section 609.10(d)(16) and Section 609.10(e)(3) of
the Applicable Regulations, the Loan Servicer, with the assistance of the
Collateral Agent, has taken and shall continue to take those actions


 


90

















 


necessary to perfect and maintain liens on assets
which are pledged as collateral pursuant to the terms of the Security
Documents;


 


(ii)           In
accordance with Section 609.10(f)(1) of the Applicable Regulations,
the Loan Servicer shall keep such records concerning the project as are
necessary for facilitating the effective and accurate audit and performance
evaluation of the Project pursuant to the Applicable Regulations and Program
Requirements;


 


(iii)          In
accordance with Section 609.10(g)(1) of the Applicable Regulations,
any assignment or transfer of the servicing, monitoring, tracking, and
reporting functions performed by the Loan Servicer must be approved by DOE in
writing in advance of such assignment; and


 


(iv)          In
accordance with Section 609.10(g)(2) of the Applicable Regulations,
for the purpose of identifying holders with the right to receive payment under
the DOE Guarantee, the Loan Servicer shall develop a procedure for tracking and
identifying holders of FFB Loans.


 


(c)           In
accordance with Section 609.10(e)(4) of the Applicable Regulations,
the Collateral Agent shall take such other actions as DOE may reasonably
require to provide for the care, preservation, protection, and maintenance of
all Collateral so as to enable the United States to achieve maximum recovery
upon default by Borrower on the Advances.


 


9.3.         Rights
and Obligations.


 


(a)           Each
Agent may:


 


(i)            assume,
absent actual knowledge or written notice to the contrary, that (A) any
representation made by any Project Participant in connection with any
Transaction Document is true; (B) no Event of Default or Potential Default
exists; (C) no Project Participant is in breach of or in default under its
obligations under any Transaction Document; and (D) any right, power,
authority or discretion vested herein upon any other Agent or Independent
Consultant has not been exercised;


 


(ii)           assume,
absent actual knowledge or written notice to the contrary, that any notice or
certificate given by any Project Participant or Independent Consultant has been
validly given by a Person authorized to do so and act upon such notice or
certificate unless the same is revoked or superseded by a further such notice
or certificate;


 


(iii)          assume,
absent actual knowledge or written notice to the contrary, that the address,
telecopy and telephone numbers for the giving of any


 


91

















 


written notice to any Person hereunder is that
identified in Schedule 11.1 until it has received from such Person a
written notice designating some other office of such Person to replace any such
address, or telecopy or telephone number, and act upon any such notice until
the same is superseded by a further such written notice;


 


(iv)          employ
at the expense of the Borrower in accordance with Section 11.17,
lawyers, accountants or other experts whose advice or services such Agent may
reasonably determine are necessary, expedient or desirable, and pay reasonable
and reasonably documented fees and expenses for the advice or service of any
such Person and may rely upon any advice so obtained; provided, that no
Agent shall be under any obligation to act upon such advice if it does not deem
such action to be appropriate;


 


(v)           rely
on any matters of fact that might reasonably be expected to be within the
knowledge of any Project Participant or any Independent Consultant upon a
certificate signed by or on behalf of such party;


 


(vi)          rely
upon any communication or document reasonably believed by it to be genuine;


 


(vii)         refrain
from acting or continuing to act in accordance with any instructions of the
Required Credit Parties to begin any legal action or proceeding arising out of
or in connection with any Transaction Document until it shall have received
such indemnity or security from the Borrower or such other Person (other than
DOE and FFB) as it may reasonably require (whether by payment in advance or
otherwise) for all costs, claims, losses, expenses (including reasonable legal
fees and expenses) and liabilities that it will or may expend or incur in
complying or continuing to comply with such instructions; and


 


(viii)        seek
instructions from the Required Credit Parties as to the exercise of any of its
rights, powers, authorities or discretions hereunder, and in the event that it
does so, it shall not be considered as having acted unreasonably when acting in
accordance with such instructions or, in the absence of any (or any clear)
instructions, when refraining from taking any action or exercising any right,
power or discretion hereunder.


 


(b)           Each
Agent shall:


 


(i)            except
where DOE has supplied such notice or document to such Agent, promptly inform
DOE of the contents of any notice or document that in its capacity as Agent it
received from or delivers to: (A) the Borrower; (B) Kahuku Holdings; (C) any
Project Participant; (D) the Collateral Agent; (E) any Independent
Consultant; or (F) any Governmental Authority;


 


92

















 


(ii)           promptly
notify DOE of the occurrence of any Event of Default or Potential Default of
which such Agent has written notice from any Person;


 


(iii)          except
as otherwise expressly provided in any Loan Document, perform its duties in
accordance with any instructions given to it by the Required Credit Parties,
which instructions shall be binding on all Credit Parties; and


 


(iv)          if
so instructed by the Required Credit Parties, refrain from exercising any
right, power, authority or discretion vested in it as an Agent hereunder or
under the other Loan Documents (other than rights arising under this Article 9
or Section 11.17).


 


9.4.         No
Responsibility for Certain Conduct.


 


(a)           In
connection with the Loan Documents, notwithstanding anything to the contrary
expressed or implied herein or in the other Loan Documents, no Agent shall:


 


(i)            be
bound to inquire as to (A) whether or not any representation made by any
other Person in connection with any Transaction Document is true; (B) the
occurrence or otherwise of any Event of Default or Potential Default; (C) the
performance by any other Person of its obligations under any of the Transaction
Documents; or (D) any breach of or default by any other Person of its
obligations under any of the Transaction Documents;


 


(ii)           be
bound to account to any Person for any sum or the profit element of any sum
received by it for its own account except as expressly provided under the Loan
Documents;


 


(iii)          be
bound to disclose to any Person any information relating to the Project or to
any Person if such disclosure would, or might in its opinion, constitute a
breach of any Governmental Rule or be otherwise actionable at the suit of
any Person; or


 


(iv)          be
under any fiduciary duties or obligation other than those for which express
provision is made in this Common Agreement or in any other Loan Document to
which such Person is a party.


 


(b)           No
Agent shall have any responsibility for the accuracy or completeness of any
information supplied by any Person (other than such Person) in connection with
the Project or for the legality, validity, effectiveness, adequacy or
enforceability of any Transaction Document or any other document referred to
herein or provided for herein or therein or for any recitals, statements,


 


93

















 


representations or warranties made by the Borrower
or any other Person contained in this Common Agreement or any other Transaction
Document or in any certificate or other document referred to or provided for
in, or received by such Agent, hereunder or thereunder. No Agent shall be
liable as a result of any failure by the Borrower or its Affiliates or any
Person party hereto or to any other Transaction Document (except such Agent) to
perform their respective obligations hereunder or under any other Transaction
Document or any document referred to or provided for herein or therein or as a
result of taking or omitting to take any action hereunder or in relation to any
Transaction Document, except to the extent of such Agent’s gross negligence or
willful misconduct.


 


(c)           Each
Agent may accept deposits from, lend money to and generally engage in any kind
of banking or other business with any Person.


 


(d)           It
is understood and agreed by each Credit Party (for itself and any Person
claiming through it) that it has itself been, and will continue to be, solely
responsible for making its own independent appraisal of, and investigations
into, the financial condition, creditworthiness, condition, affairs, status and
nature of each Project Participant and, accordingly, each such Credit Party
warrants to each Agent that it has not relied on and will not hereafter rely on
such Agent:


 


(i)            to
check or inquire on its behalf into the adequacy, accuracy or completeness or
any information provided by any Project Participant or Independent Consultant
in connection with any of the Transaction Documents or the transactions therein
contemplated (whether or not such information has been or is hereafter
circulated to such Project Participant or Independent Consultant by an Agent);
or


 


(ii)           to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any Project
Participant or Independent Consultant.


 


9.5.         Defaults.


 


No Agent shall be deemed to have knowledge or
notice of the occurrence of any Event of Default or Potential Default unless
such Agent has knowledge of such Event of Default or Potential Default or has
received a notice from a Project Participant, referring to this Common
Agreement, describing such Event of Default or Potential Default and stating that
such notice is a “notice of default.” If any Agent has knowledge of an Event of
Default or Potential Default or receives such a notice of default, such Agent
shall give prompt notice thereof to DOE, and DOE shall give prompt notice
thereof to each Credit Party and each Independent Consultant. Each Agent shall
take such action with respect to such Event of Default or Potential Default as
is provided in Article 8 of this Common Agreement; provided,
however, that unless and until such Agent shall have


 


94

















 


received such directions, it may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default or Potential Default as it shall deem
advisable and in the best interest of the Credit Parties.


 


9.6.         No
Liability.


 


No Agent, nor any of its officers, directors,
employees or agents shall be liable to any Project Participant or Independent
Consultant for any action taken or omitted under this Common Agreement or under
the other Loan Documents, or in connection therewith, except to the extent
caused by the gross negligence or willful misconduct of such Agent, as
determined by a court of competent jurisdiction in a final non-appealable
Governmental Judgment. Each Credit Party (for itself and any Person claiming
through it) hereby releases, waives, discharges and exculpates each Agent for
any action taken or omitted by such Agent under this Common Agreement or under
the other Loan Documents, or in connection therewith, except to the extent
caused by the gross negligence or willful misconduct of such Agent as
determined by a court of competent jurisdiction in a final non-appealable
Governmental Judgment.


 


9.7.         Fees
and Expenses of Agents.


 


(a)           The
Borrower shall be responsible for paying the fees and expenses of each Agent in
connection with the Project under all circumstances, pursuant to a separate
written agreement with each Agent, without recourse to DOE by such Agent, any
First Wind Entity, any Affiliate thereof or any other Person.


 


(b)           In
accordance with a letter agreement to be entered into between the Borrower and
each Agent, the Borrower shall (i) from time to time on demand by such
Agent, indemnify such Agent against any and all costs, claims, losses, expenses
(including reasonable legal fees and expenses) and liabilities, that such Agent
may incur in acting in its capacity as an Agent hereunder, other than by reason
of its own gross negligence or willful misconduct; and (ii) without
limitation of the foregoing, reimburse such Agent promptly upon demand for any
out-of-pocket expenses (including reasonable legal fees and expenses) incurred
by such Agent in connection with the preparation, execution, administration or
enforcement of, or services provided in respect of rights or responsibilities
under, the Transaction Documents.


 


(c)           All
payments or reimbursements under this Section 9.7 shall be due and
payable (i) not later than ten (10) Business Days after the Borrower’s
receipt of the Agent’s request therefor from time to time, and (ii) whether
or not this Common Agreement is terminated or any Advance is made.


 


95

















 


(d)           The
Borrower and each Agent expressly acknowledge and agree that:


 


(i)            DOE
shall not be financially liable to such Agent for any services rendered or
expenses incurred in connection with the Project under any circumstances
whatsoever, including whether any Advance occurs or under circumstances in
which the Borrower fails to pay such fees and expenses;


 


(ii)           The
Borrower shall acknowledge and pay all fees and expenses represented by
periodic invoices for services rendered by such Agent to DOE with respect to
the Project upon their periodic presentation thereof by such Agent, including
prior to or on the Financial Closing Date;


 


(iii)          While
the services provided by such Agent shall be rendered for the benefit of DOE
and the other Credit Parties in connection with the Project, the invoices of
such Agent shall be the sole responsibility of the Borrower, notwithstanding
that such Agent is an agent of DOE and the other Credit Parties; and


 


(iv)          The
Borrower specifically disclaims any implication of confidential, fiduciary or
other client relationship (including an attorney-client relationship) between any
First Wind Entity or any Affiliate thereof, and such Agent as a result of this Section 9.7
and shall not interfere with the relationship (including any attorney-client
relationship and the ability to terminate the agency relationship) between such
Agent and DOE and the other Credit Parties.


 


(e)          The
provisions of this Section 9.7 shall survive the termination of
this Common Agreement and the other Loan Documents.


 


9.8.         Resignation
and Removal.


 


(a)           Subject
to Section 9.9, any Agent may resign its appointment hereunder at
any time without providing any reason therefor by giving prior written notice
to that effect to each of the other parties hereto.


 


(b)           Subject
to Section 9.9, DOE may remove any Agent from its appointment
hereunder with or without cause by giving prior written notice to that effect
to each of the other parties hereto.


 


9.9.         Successor
Agents.


 


(a)           No
resignation or removal pursuant to Section 9.8 shall be effective until:


 


(i)            a
successor for such Agent is appointed in accordance with (and subject to) the
provisions of this Section 9.9;


 


96

















 


(ii)           the
resigning or removed Agent has transferred to its successor all of its rights
and obligations in its capacity as an Agent under this Common Agreement and the
other Loan Documents; and


 


(iii)          the
successor Agent has executed and delivered an agreement to be bound by the
terms of this Common Agreement and the other Loan Documents and to perform all
duties required of such Agent hereunder and under the other Loan Documents.


 


(b)           If
an Agent has given notice of its resignation pursuant to Section 9.8(a) or
if DOE gives each other Agent notice of removal of any Agent pursuant to Section 9.8(b),
or if the Required Credit Parties give the Loan Servicer notice of removal of
the Loan Servicer pursuant to Section 9.8(b), then a successor to
such Agent may be appointed by the Required Credit Parties (and, unless an
Event of Default or Potential Default has occurred and is continuing, with the
written consent of the Borrower, which consent shall not unreasonably be
withheld or delayed) during the 90-day period beginning on the date of such
notice in accordance with the terms of this Common Agreement but, if no such
successor is so appointed within ninety (90) days after the above notice, the
resigning or removed Agent may appoint such a successor. If a resigning or
removed Loan Servicer appoints a successor, such successor shall (i) be
authorized under all Governmental Rules to exercise corporate trust
powers, and (ii) be acceptable to the Required Credit Parties (and, unless
an Event of Default or Potential Default has occurred and is continuing, the
Borrower, approval by which shall not unreasonably be withheld or delayed); provided,
that if the Required Credit Parties and the Borrower, if applicable, do not
confirm such acceptance in writing within sixty (60) days following selection
of such successor by the resigning or removed Loan Servicer or otherwise
appoint a successor within such 60-day period, then the Required Credit Parties
and the Borrower, as the case may be, shall be deemed to have given such
acceptance and such successor shall be deemed appointed as the successor to
such resigning or removed Loan Servicer hereunder.


 


(c)           If
a successor to an Agent is appointed under the provisions of this Section 9.9,
then:


 


(i)            the
predecessor Agent shall be discharged from any further obligation hereunder
(but without prejudice to any accrued liabilities);


 


(ii)           the
resignation pursuant to Section 9.8(a) or removal pursuant to Section 9.8(b) of
the predecessor Agent notwithstanding, the provisions of this Common Agreement
shall inure to the predecessor Agent’s benefit as to any actions taken or
omitted to be taken by it under this Common Agreement and the other Loan Documents
while it was an Agent; and


 


97

















 


(iii)          the
successor Agent and each of the other parties hereto shall have the same rights
and obligations amongst themselves as they would have had if such successor Agent
had been a party hereto beginning on the date of this Common Agreement.


 


9.10.       Authorization.


 


Each Agent is hereby authorized by the Credit
Parties to execute, deliver and perform each of the Loan Documents to which
such Agent is or is intended to be a party.


 


9.11.       Agent
as Lender.


 


With respect to its commitment to lend or
guarantee, the Advances made or guaranteed by it and any promissory notes
issued to or guaranteed by it, any Person serving as an Agent hereunder shall
have the same rights and powers under the Transaction Documents as any other
lender or guarantor and may exercise the same as though it were not an Agent.
The term “lender” or “lenders,” when used with respect to such Person, shall,
unless otherwise expressly indicated, include such Person in its individual
capacity. Any Agent and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of and generally engage in any kind of business
with any Person, without any duty to account therefor to the Credit Parties.


 


9.12.       Appointment
of Independent Consultants.


 


In connection with the Project, each Credit Party
hereby appoints the Lender’s Engineer to serve under the Loan Documents and
authorizes such Person to exercise such rights, powers, authorities and discretions
as are specifically delegated to it pursuant to the Lender’s Engineer Advisory
Agreement. By its execution of the Lender’s Engineer Advisory Agreement, the
Lender’s Engineer accepts its appointment and delegation.


 


ARTICLE 10 

REIMBURSEMENT AGREEMENT


 


10.1.       Reimbursement
Obligation.


 


If the Borrower defaults in any payment due to FFB
under the DOE Guaranteed Loan or otherwise under any FFB Funding Document, and
as a result of such payment default by the Borrower, DOE becomes obligated to
make any payments to FFB or otherwise makes any payments to FFB pursuant to the
DOE Guarantee (a “DOE Guarantee Payment”), the Borrower shall become
immediately obligated to reimburse DOE in an amount (the “DOE Guarantee
Payment Amount”) equal to the sum of (i) all DOE Guarantee Payments
paid by DOE to FFB, and (ii) all


 


98














 


costs or expenses incurred by DOE in connection
therewith, whether by payment to FFB or otherwise; provided, however,
that (x) any DOE Guarantee Payment shall not operate to satisfy the
Borrower’s obligations to FFB under the DOE Guaranteed Loan or otherwise under
the DOE Credit Facility Documents, and (y) to the extent of any DOE
Guaranteed Payment, DOE shall be deemed hereunder to have been granted a
participation in any or all of FFB’s rights under the Loan Documents and with
respect to the Collateral Security.


 


10.2.       Payments
and Computations.


 


10.2.1.     Interest.


 


The Borrower shall pay to DOE an amount (the “Borrower
Reimbursement Obligations”) equal to the sum of (i) the DOE Guarantee
Payment Amount, and (ii) interest on DOE Guarantee Payment Amount from the
date the DOE Guarantee Payment was paid or incurred by DOE under the DOE
Guarantee until payment in full by the Borrower to DOE of the DOE Guarantee
Payment Amount, at a rate of interest equal to the rate of interest in effect
under the FFB Note Purchase Agreement with respect to Overdue Amounts at the
time of the payment default by the Borrower.


 


10.2.2.     Method
of Payment.


 


The Borrower shall make each payment with respect
to Borrower Reimbursement Obligations hereunder (a “Borrower Reimbursement
Payment”), irrespective of any right of counterclaim or set-off, in Dollars
and in immediately available funds on or before the fifth (5th) Business Day
following a written demand by DOE to the Borrower indicating the DOE Guarantee
Payment Amount and the date it was paid or incurred by DOE, by wire transfer to
the following account, or to such other account as may be specified by DOE from
time to time:


 


U.S. Treasury Department

ABA No. 0210-3000-4 TREASNYC/CTR/BNF=D89000001 

OBI=LGPO Loan No. 1103 — Guarantee Reimbursement


 


10.2.3.     Taxes.


 


All Borrower Reimbursement Payments hereunder shall
be made in accordance with Section 3.1.2.


 


10.2.4.     Calculations.


 


All computations of interest or fees under this
Common Agreement shall be made by the Loan Servicer, on the same basis as
payments under the FFB Note Purchase Agreement.


 


99

















 


10.2.5.     Determinations.


 


Each determination of an amount of interest or fees
payable hereunder by the Loan Servicer shall be conclusive and binding for all
purposes, absent manifest error.


 


10.3.       Obligations
Absolute.


 


To the fullest extent permitted by law, the
Borrower Reimbursement Obligations are primary, absolute, irrevocable and
unconditional, and shall be paid strictly in accordance with the terms of this
Common Agreement under all circumstances whatsoever, including without
limitation the following circumstances, whether or not with notice to or the
consent of the Borrower:


 


(i)            the
occurrence, or the failure by DOE or any other Secured Party or any other
Person to give notice to the Borrower of the occurrence, of any Event of
Default or Potential Default under this Common Agreement or any default under
any of the other Loan Documents;


 


(ii)           the
extension of the time for performance of any obligations, covenants or
agreements of any Person under or arising out of any of the Loan Documents;


 


(iii)          the
existence of any claim set-off, counterclaim, defense or other rights of any
kind or nature which (A) the Borrower, DOE or any other Person may have at
any time against FFB or any transferee, or (B) the Borrower or any other
Person may have at any time against DOE, whether in connection with the Loan
Documents, the transactions contemplated therein or any unrelated transactions;


 


(iv)          any
failure, omission or delay on the part of (A) DOE to assert a defense to a
DOE Guarantee Payment Amount under the DOE Guarantee or to otherwise contest
the DOE Guarantee, or (B) DOE or any other Secured Party or the Borrower
to enforce, assert or exercise any other right, power or remedy conferred by
this Common Agreement or any of the Loan Documents;


 


(v)           the
taking or the omission on the part of DOE or any other Secured Party or the
Borrower of any other actions or remedies referred to in any of the Loan
Documents;


 


(vi)          the
compromise, settlement, release, modification, amendment (whether material or
otherwise) or termination of any or all of the obligations, conditions,
covenants or agreements of any Person in respect of any of the Loan Documents;


 


100

















 


(vii)         any
amendment or waiver of the payment, performance or observance of any of the
obligations, conditions, covenants or agreements of any Person contained in any
of the Loan Documents;


 


(viii)        the
exchange, surrender, substitution or modification of any security for any of
the Loan Documents;


 


(ix)           any
disability, incapacity or lack of powers, authority or legal personality of or
dissolution or change in the status of the Borrower or any other Person;


 


(x)            any
release, irregularity, invalidity, illegality, lack of genuineness,
unenforceability or modification affecting this Common Agreement, the DOE
Guarantee, the DOE Credit Facility Documents, or the other Loan Documents, or
the transactions contemplated hereby or thereby;


 


(xi)           the
voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets of, the marshaling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings which affect the Borrower or any
other Person party to any of the Loan Documents;


 


(xii)          the
release or discharge by operation of law of the Borrower from the performance
or observance or any obligation, covenant or agreement contained in any of the
Loan Documents;


 


(xiii)         any
statement or any other document presented under the DOE Guarantee proving to be
forged, fraudulent, invalid or insufficient in respect or any statement therein
being untrue or inaccurate in any respect whatsoever;


 


(xiv)        any
determination by a court or arbitrator, or any settlement of a disputed claim
by any party hereto or other Person, relating to this Common Agreement, the DOE
Guarantee, the DOE Credit Facility Documents, or the other Loan Documents, or
the transactions contemplated hereby or thereby;


 


(xv)         any
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any liabilities of the Borrower, suit or taking of
other action by DOE or any other Secured Party against any party liable
thereon; or


 


(xvi)        any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.


 


101

















 


10.4.       Security.


 


10.4.1.     Borrower
Reimbursement Obligations Secured


 


The parties expressly acknowledge that the
Collateral Security pledged under the Security Documents is pledged to secure
payment by the Borrower of the Borrower Reimbursement Obligations.


 


10.4.2.     Actions.


 


The Borrower expressly acknowledges that DOE is
free to litigate, settle or otherwise satisfy or discharge its obligation with
respect to any DOE Guarantee Payment Amount, and take any action under the
Security Documents or otherwise with respect to the Collateral Security, as it
may from time to time deem appropriate, and any failure by DOE to advise,
notify, or consult with the Borrower shall not be a defense to, or in any way
diminish, discharge or derogate from the Borrower Reimbursement Obligations
hereunder.


 


10.5.       DOE
Rights.


 


10.5.1.     Rights
Cumulative.


 


DOE’s right to reimbursement provided for in this Article 10
shall be in addition to, and not in limitation of, any other claims, rights or
remedies of subrogation, reimbursement, contribution, exoneration or
indemnification or similar claims, rights or remedies, whether arising under
contract, by statute, or otherwise that DOE may have from time to time.


 


10.5.2.     Subrogation.


 


Without limiting the generality of Section 10.5.1,
in accordance with Section 609.10(e)(2) of the Applicable
Regulations, upon any DOE Guarantee Payment DOE shall be subrogated to the
rights of FFB or any subsequent holder of the FFB Loan, including all related
Liens and Collateral.


 


10.6.       Further
Assurances.


 


The Borrower shall cooperate with DOE in connection
with the exercise of any of its rights under this Article 10 and
agrees, promptly upon request by DOE, to execute, acknowledge and deliver all
further instruments and documents, and take all such further acts as DOE may
reasonably request from time to time in order to carry out the purposes of this
Article 10 or to enable DOE to exercise and enforce its rights and
remedies hereunder.


 


102

















 


ARTICLE 11 

MISCELLANEOUS


 


11.1.       Addresses.


 


Any communications, including any notices, between
or among the parties to the Loan Document shall be given to the addresses
listed in Schedule 11.1. All notices or other communications required or
permitted to be given under the Loan Documents shall be in writing and shall be
considered as properly given (a) if delivered in Person, (b) if sent
by overnight delivery service for inland delivery or international courier for
international delivery, (c) in the event overnight delivery service or
international courier service is not readily available, if mailed by first
class mail (or airmail for international delivery), postage prepaid, registered
or certified with return receipt requested, (d) if sent by telecopy with
transmission verified or (e) if transmitted by electronic mail (with such
transmission verified). Notice so given shall be effective upon delivery to the
addressee, except that communication or notice so transmitted by telecopy or
other direct written electronic means shall be deemed to have been validly and
effectively given on the day (if a Business Day and, if not, on the next
following Business Day) on which it is validly transmitted if transmitted (with
such transmission verified) before 2:00 p.m., recipient’s time, and if
transmitted after that time, on the next following Business Day; provided,
however, that if any notice is tendered to an addressee and the delivery
thereof is refused by such addressee, such notice shall be effective upon such
tender. Any party shall have the right to change its address for notice under
any of the Loan Documents to any other location by giving prior written notice
to the other parties in the manner set forth hereinabove.


 


11.2.       Further
Assurances.


 


The Borrower shall fully cooperate with all Persons
as may be necessary to ensure that each Credit Party receives any notices due
to such Credit Party pursuant to the Transaction Documents. Each of the parties
agrees that money damages would not be a sufficient remedy for any breach of
this Section 11.2 and Section 6.23(b) and agrees
that in addition to all other remedies, any court or arbitrator may award
specific performance or other equitable relief as a remedy for any such breach.


 


11.3.       Delay
and Waiver.


 


No delay or omission in exercising any right,
power, privilege or remedy under this Common Agreement or any other Loan
Document, including any rights and remedies in connection with the occurrence
of an Event of Default or Potential Default shall impair any such right, power,
privilege or remedy of the Credit Parties, nor shall it be construed to be a
waiver of any right, power, privilege or remedy or of any breach or default, or
an acquiescence therein, or in any similar breach or default thereafter occurring,
nor shall any waiver of any single right, power, privilege or remedy, or of any
breach or default be deemed a waiver of any other right, power, privilege or
remedy or of any other breach or default therefore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
of the Credit Parties of any right,


 


103

















 


power, privilege or remedy including any rights and
remedies in connection with the occurrence of an Event of Default or Potential
Default or of any other breach or default under this Common Agreement or any
other Loan Document, or any waiver on the part of any of the Credit Parties of
any provision or condition of this Common Agreement or any other Transaction
Document, must be in writing and shall be effective only to the extent in such
writing specifically set forth. All rights, powers, privileges and remedies,
either under this Common Agreement or any other Loan Document or by law or
otherwise afforded to any of the Credit Parties, shall be cumulative and not
alternative and not exclusive of any other rights, powers, privileges and
remedies that such Credit Parties may otherwise have.


 


11.4.       Right
of Set-Off.


 


In addition to any rights now or hereafter granted
under Governmental Rules or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Credit Party is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final) and any other Indebtedness at
any time held or owing by such Credit Party (including by any branches and
agencies of such Credit Party wherever located) to or for the credit or the
account of the Borrower against and on account of the Secured Obligations and
liabilities of the Borrower to such Credit Party under this Common Agreement or
any other Loan Document.


 


11.5.       Amendment
or Waiver.


 


Except as otherwise provided herein, neither this
Common Agreement nor any of the terms hereof may be changed, waived, discharged
or terminated unless such change, waiver, discharge or termination is in
writing and signed by the Borrower, DOE, Loan Servicer and Collateral Agent.
Any amendment to or waiver of this Common Agreement or any of the terms hereof
that constitutes a ‘modification’ within the meaning set forth in Section 502(9) of
the Federal Credit Reform Act of 1990 and OMB Circular A-11 may be subject to
the availability to DOE of funds appropriated by the United States Congress to
meet an increase, if any, in the Credit Subsidy Cost.


 


11.6.       Entire
Agreement.


 


This Common Agreement, including any agreement,
document or instrument attached hereto or referred to herein, integrates all
the terms and conditions mentioned herein or incidental hereto and supersedes
all oral


 


104

















 


negotiations and prior agreements and
understandings of the parties hereto in respect to the subject matter hereof.


 


11.7.       Governing
Law.


 


This Common Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, Federal law and not the law of any state or
locality. To the extent that a court looks to the laws of any state to
determine or define the Federal law, it is the intention of the parties hereto
that such court shall look only to the laws of the State of New York without
regard to the rules of conflicts of laws.


 


11.8.       Severability.


 


In case any one or more of the provisions contained
in any Loan Document should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and the parties thereto
shall enter into good faith negotiations to replace the invalid, illegal or
unenforceable provision.


 


11.9.       Calculations.


 


All financial data submitted pursuant to this
Common Agreement and the other Loan Documents shall be prepared in accordance
with GAAP, and all financial ratio tests applicable to the Borrower shall be
based on definitions consistent with GAAP.


 


11.10.     Limitation
on Liability.


 


No claim shall be made by the Borrower or any of
its Affiliates against any Credit Party or any of their 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
or duty imposed by law), in connection with, arising out of or in any way
related to the transactions contemplated by this Common Agreement or the other
Transaction Documents or any act or omission or event occurring in connection
therewith; and the Borrower hereby waives, releases and agrees not to sue upon
any such claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.


 


11.11.     Waiver
of Jury Trial.


 


EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH,


 


105

















 


THIS COMMON AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH CREDIT
PARTY TO ENTER INTO THIS COMMON AGREEMENT AND THE OTHER LOAN DOCUMENTS.


 


11.12.     Consent
to Jurisdiction.


 


By execution and delivery of this Common Agreement,
the Borrower irrevocably and unconditionally:


 


(a)           submits
for itself and its property in any legal action or proceeding against it
arising out of or in connection with this Common Agreement or any other Loan
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of (i) the courts of
the United States of America for the District of Columbia, (ii) the courts
of the United States of America in and for the Southern District of New York, (iii) any
other federal court of competent jurisdiction in any other jurisdiction where
it or any of its property may be found, and (iv) appellate courts from any
of the foregoing;


 


(b)           consents
that any such action or proceeding may be brought in or removed to such courts,
and waives any objection, or right to stay or dismiss any action or proceeding,
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;


 


(c)           agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set
forth in Schedule 11.1 or at such other address of which DOE shall have been
notified pursuant thereto;


 


(d)           agrees
that nothing herein shall (i) affect the right of any Credit Party to
effect service of process in any other manner permitted by law or (ii) limit
the right of any Credit Party to commence proceedings against or otherwise sue
the Borrower or any other Person in any other court of competent jurisdiction
nor shall the commencement of proceedings in any one or more jurisdictions
preclude the commencement of proceedings in any other jurisdiction (whether
concurrently or not) if, and to the extent, permitted by the Governmental
Rules; and


 


(e)           agrees
that judgment against it in any such action or proceeding shall be conclusive
and may be enforced in any other jurisdiction within or without the U.S. by
suit on the judgment or otherwise as provided by law, a


 


106

















 


certified or exemplified copy of which judgment
shall be conclusive evidence of the fact and amount of the Borrower’s
obligation.


 


11.13.     Successors
and Assigns.


 


(a)           The
provisions of this Common Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.


 


(b)           The
Borrower may not assign or otherwise transfer any of its rights or obligations
under this Common Agreement or under any Transaction Document without the prior
written consent of DOE.


 


(c)           FFB
may assign any or all of its rights, benefits and obligations under the Loan
Documents and with respect to the Collateral Security to any financial
institution in accordance with the provisions of the DOE Credit Facility
Documents.


 


(d)           The
Borrower or its agent shall maintain a register for the recordation of the
names and addresses of the Lenders and the principal amounts of the Advances
owing to each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, and the Borrower, any Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender for all purposes of this Agreement, notwithstanding notice to the
contrary. The register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


11.14.     Participations.


 


FFB may from time to time sell or otherwise grant
participations in any or all of its rights and obligations under the Loan
Documents and with respect to the Collateral Security without the consent of
the Borrower. In such case, Borrower and any Agent shall continue to deal
exclusively with FEB and the provisions of this Agreement shall apply as if no
such participation had been sold or granted.


 


11.15.     Reinstatement.


 


This Common Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Borrower’s obligations hereunder, or any part thereof, is,
pursuant to Governmental Rules, rescinded or reduced in amount, or must
otherwise be restored or returned by any Credit Party. In the event that any
payment or any part thereof is so rescinded, reduced, restored or returned,
such obligations shall be reinstated and deemed


 


107

















 


reduced only by such amount paid and not so
rescinded, reduced, restored or returned.


 


11.16.     No
Partnership; Etc.


 


The Credit Parties and the Borrower intend that the
relationship between them shall be solely that of creditor and debtor. Nothing
contained in this Common Agreement or in any other Loan Document shall be
deemed or construed to create a partnership, tenancy-in-common, joint tenancy,
joint venture or co-ownership by, between or among the Credit Parties and the
Borrower or any other Person. The Credit Parties shall not be in any way
responsible or liable for the indebtedness, losses, obligations or duties of
the Borrower or any other Person with respect to the Project or otherwise. All
obligations to pay real property or other taxes, assessments, insurance
premiums, and all other fees and Periodic Expenses arising from the ownership,
operation or occupancy of the Project and to perform all obligations under the
agreements and contracts relating to the Project shall be the sole
responsibility of the Borrower.


 


11.17.     Payment
of Costs and Expenses.


 


(a)           (i)            The Borrower shall, whether or not the transactions herein contemplated
are consummated, pay or reimburse, without duplication: all reasonable and
reasonably documented out-of-pocket costs and expenses of each Credit Party
(including all commissions, charges, costs and expenses for the conversion of
currencies and all other costs, charges and expenses, including all fees and
Periodic Expenses of the legal counsel, consultants and advisors for any of the
foregoing) made, paid, suffered or incurred in connection with (A) the
translation, negotiation, preparation, execution and delivery and, where
appropriate, authentication, registration and recordation of this Common
Agreement, the other Transaction Documents and any other documents and
instruments related hereto or thereto (including legal opinions), and (B) the
authentication, registration, translation and recordation (where appropriate)
of any of the Transaction Documents and the delivery of the evidences of
Indebtedness relating to the Advances and the disbursements thereof.


 


(ii)           The
Borrower shall also pay or reimburse, without duplication, all reasonable and
reasonably documented out-of-pocket costs and expenses of each Credit Party
(including all commissions, charges, costs and expenses for the conversion of
currencies and all other costs, charges and expenses including all fees and
Periodic Expenses of the legal counsel, consultants and advisors for any of the
foregoing) made, paid, suffered or incurred in connection with (A) any
amendment or modification to, or the protection or preservation of any right or
claim under, or consent or waiver in connection with, this Common Agreement or
any other Transaction Document, any such other document or instrument related
hereto or thereto or any Collateral Security, and


 


108














 


(B) the administration, preservation in full
force and effect and enforcement (including with respect to a work out) of this
Common Agreement, the other Transaction Documents and any other documents and
instruments referred to herein or therein (including the fees and disbursements
of counsel for each Credit Party and travel costs), and (C) the fees and
expenses of the Lender’s Engineer and other Independent Consultants from time
to time retained pursuant to the Loan Documents.


 


(b)                                 The
Borrower shall, whether or not the transactions herein contemplated are
consummated, (i) indemnify each of the Credit Parties (each an “Indemnified
Person” and, collectively, the “Indemnified Parties”) and each of
its respective officers, directors, employees, representatives, attorneys and
agents from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding or inquiry (whether or not such Indemnified
Person is a party thereto) related to the entering into and performance of any
Transaction Document or the disbursement of, or use of the proceeds of, any
Advance or the consummation of any transactions contemplated herein or in any
Transaction Document, including the fees and Periodic Expenses of counsel
selected by such Indemnified Person incurred in connection with any such
investigation, litigation or other proceeding or in connection with enforcing
the provisions of this Section 11.17 (but excluding any such
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements to the extent incurred by
reason of the gross negligence or willful misconduct of the Indemnified Person
or its officers, directors, employees, representatives, attorneys or agents, as
the case may be, as determined pursuant to a final, non-appealable judgment by
a court of competent jurisdiction) (collectively, “Indemnity Claims”).


 


(c)                                  Without
limitation to the provisions of Section 11.17(b) above, the
Borrower agrees to defend, indemnify and hold harmless each Indemnified Person
and each of its respective directors, officers, shareholders, agents,
employees, participants, successors and assigns, from and against any and all
Claims.


 


(d)                                 All
sums paid and costs incurred by any Indemnified Person with respect to any
matter indemnified hereunder shall bear interest at the Late Charge Rate
applicable to their respective Advance from the date the Borrower receives
notice thereof from such Indemnified Person, until reimbursed by the Borrower,
and all such sums and costs shall be added to the Secured Obligations and be
secured by the Security Documents and shall be immediately due and payable on
demand. Each such Indemnified Person shall promptly notify the Borrower in a
timely manner of any such amounts payable by the Borrower hereunder, provided
that any failure to provide such notice shall not affect the Borrower’s
obligations under this Section 11.17.


 


109

















 


(e)                                  Each
Indemnified Person within ten (10) days after the receipt by it of notice
of the commencement of any action for which indemnity may be sought by it, or
by any Person controlling it, from the Borrower on account of the agreements
contained in this Section 11.17, shall notify the Borrower in
writing of the commencement thereof, but the failure of such Indemnified Person
to so notify the Borrower of any such action shall not release the Borrower
from any liability that it may have to such Indemnified Person.


 


(f)                                    To
the extent that the undertaking in the preceding clauses of this Section 11.17
may be unenforceable because it is violative of any law or public policy, the
Borrower shall contribute the maximum portion that it is permitted to pay and
satisfy under Governmental Rules to the payment and satisfaction of such
undertakings.


 


(g)                                 The
provisions of this Section 11.17 shall survive foreclosure under
the Security Documents and satisfaction or discharge of the Secured
Obligations, and shall be in addition to any other rights and remedies of any
Indemnified Person.


 


(h)                                 Any
amounts payable by the Borrower pursuant to this Section 11.17
shall be payable within the later to occur of (i) ten (10) Business
Days after the Borrower receives an invoice for such amounts from any
applicable Indemnified Person, and (ii) five (5) Business Days prior
to the date on which such Indemnified Person expects to pay such costs on
account of which the Borrower’s indemnity hereunder is payable, and if not paid
by such applicable date shall bear interest at the Late Charge Rate from and
after such applicable date until paid in full.


 


(i)                                     The
Borrower shall be entitled, at its expense, to participate in the defense
thereof provided that such Indemnified Person shall have the right to retain
its own counsel, at the Borrower’s expense, and such participation by the
Borrower in the defense thereof shall not release the Borrower of any liability
that it may have to such Indemnified Person. Any Indemnified Person against
whom any Claim is made shall be entitled, after consultation with the Borrower
and upon consultation with legal counsel wherein such Indemnified Person is
advised that such Claim is meritorious, to compromise or settle any such Claim.
Any such compromise or settlement shall be binding upon the Borrower for
purposes of this Section 11.17.


 


(j)                                     Upon
payment of any Claim by the Borrower pursuant to this Section 11.17,
the Borrower, without any further action, shall be subrogated to any and all
claims that such Indemnified Person may have relating thereto, and such
Indemnified Person shall at the request and expense of the Borrower cooperate
with the Borrower and give at the request and expense of the Borrower 


 


110

















 


such further assurances as are necessary or
advisable to enable the Borrower vigorously to pursue such claims.


 


(k)                                  Notwithstanding
any other provision of this Section 11.17, the Borrower shall not
be entitled to any (i) notice, (ii) participation in the defense of (iii) consent
rights with respect to any compromise or settlement, or (iv) subrogation
rights, in each case except as otherwise provided for pursuant to this Section with
respect to any action, suit or proceeding against the Borrower, the Project
Operator, Kahuku Holdings or the Sponsor.


 


11.18.              Counterparts.


 


This Common Agreement may be executed in one or
more duplicate counterparts and when signed by all of the parties shall
constitute a single binding agreement.


 


111

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Common Agreement to be executed and delivered by their respective officers
or representatives hereunto duly authorized as of the date first written above.


 


 


	
  KAHUKU WIND POWER, LLC

  	
   

  
	
   

  	
   

  
	
  By: Kahuku Holdings, LLC, its Member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Robert S. Schauer

  	
   

  
	
  Name: 

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Common Agreement to be executed and delivered by their respective officers
or representatives hereunto duly authorized as of the date first written above.


 


	
  U.S. DEPARTMENT OF ENERGY,

  	
   

  
	
  as Credit Party

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ illegible

  	
   

  
	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  U.S. DEPARTMENT OF ENERGY,

  	
   

  
	
  as Loan Servicer

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ illegible

  	
   

  
	
  Its:

  	
   

  	
   

  



 

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Common Agreement to be executed and delivered by their respective officers
or representatives hereunto duly authorized as of the date first written above.


 


	
  MIDLAND LOAN SERVICES, INC.,

  	
   

  
	
  as Collateral Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Bradley J. Hauger

  	
   

  
	
  Name: 

  	
  Bradley J. Hauger

  	
   

  
	
   

  	
  Senior Vice President

  	
   

  
	
  Its:

  	
  Servicing Officer

  	
   

  



 

















 


Exhibits to Common
Agreement


 


	
  A

  	
  Definitions

  
	
   

  	
   

  
	
  Al

  	
  Project Costs and Financial Plan

  
	
   

  	
   

  
	
  A2

  	
  Definition of Project Completion

  
	
   

  	
   

  
	
  A3

  	
  Definition of DOE Requirements

  
	
   

  	
   

  
	
  A4

  	
  Davis-Bacon Provisions for Davis-Bacon Act
  Covered Contracts

  
	
   

  	
   

  
	
  B

  	
  Rules of Interpretation

  
	
   

  	
   

  
	
  C1

  	
  Form of Borrower Certificate (Initial
  Closing)

  
	
   

  	
   

  
	
  C2

  	
  Form of Borrower Certificate (Quarterly
  Approval Date)

  
	
   

  	
   

  
	
  Dl

  	
  Form of Lenders’ Engineer Certificate
  (Initial Closing)

  
	
   

  	
   

  
	
  D2

  	
  Form of Lenders’ Engineer Certificate
  (Quarterly Approval Date)

  
	
   

  	
   

  
	
  El

  	
  Form of Sponsor’s Certificate (Initial
  Closing)

  
	
   

  	
   

  
	
  E2

  	
  Form of Sponsor’s Certificate (Quarterly
  Approval Date)

  
	
   

  	
   

  
	
  E3

  	
  Form of Kahuku Holdings LLC Certificate
  (Initial Closing)

  
	
   

  	
   

  
	
  E4

  	
  Form of Kahuku Holdings LLC Certificate
  (Quarterly Approval Date)

  
	
   

  	
   

  
	
  Fl

  	
  Form of Insurance Advisor Certificate
  (Initial Closing)

  
	
   

  	
   

  
	
  F2

  	
  Form of Insurance Advisor Certificate
  (Quarterly Approval Date)

  
	
   

  	
   

  
	
  GI

  	
  Form of Collateral Agent Certificate
  (Initial Closing)

  
	
   

  	
   

  
	
  G2

  	
  Form of Collateral Agent Certificate
  (Quarterly Approval Date)

  
	
   

  	
   

  
	
  G3

  	
  Form of Collateral Agent Certificate
  (Advance)

  
	
   

  	
   

  
	
  H

  	
  Form of Sponsor’s Certificate (Advance)

  
	
   

  	
   

  
	
  I

  	
  Form of Financial Officer Certificate
  (Initial Closing)

  
	
   

  	
   

  
	
  J

  	
  Form of Construction Progress Report

  
	
   

  	
   

  
	
  K

  	
  Form of Project Operator Certificate (Initial
  Closing)

  
	
   

  	
   

  
	
  L

  	
  [Reserved]

  
	
   

  	
   

  
	
  M

  	
  Form of Master Advance Notice

  
	
   

  	
   

  
	
  N

  	
  Form of Drawstop Notice

  
	
   

  	
   

  
	
  O1

  	
  Form of Monthly Reporting Certificate

  
	
   

  	
   

  
	
  O2

  	
  Form of Quarterly Reporting Certificate

  
	
   

  	
   

  
	
  P

  	
  Form of Project Completion Certificate

  



 














 


Exhibit A


to Common
Agreement


 


DEFINITIONS


 


“Accelerated Equity Contribution” As defined
in the Equity Funding Agreement.


 


“Account Control Agreement” Any and all
agreements pursuant to which a Secured Party obtains control of a deposit
account or a securities account within the meaning of Section 9-104 or Section 8-106,
respectively, of the Uniform Commercial Code of any applicable jurisdiction, to
secure the Secured Obligations, including that certain Account Control
Agreement by and among the Collateral Agent, as that bank at which the deposit
account is maintained, the Collateral Agent, as Secured Party, and Borrower.


 


“Account Proceeds” As defined in the
Collateral Agency Agreement.


 


“Achievement of Battery Completion”
Achievement of “Commissioning Completion” and “Substantial Completion,” as each
term is defined under the Battery Purchase Agreement.


 


“Action” Any (i) action, suit, or
proceeding of or before any Governmental Authority, (ii) investigation by
a Governmental Authority or (iii) arbitral proceeding.


 


“Additional Project Documents” All of the
contracts necessary for or material to the construction and operation of the
Project entered into by the Borrower subsequent to the Financial Closing Date.


 


“Administrative Services Agreement” The
Administrative Services Agreement by and between the Project Operator and
Kahuku Power Partners, LLC.


 


“Advance” An advance or a borrowing of the
DOE Guaranteed Loan made pursuant to the Common Agreement and the DOE Credit
Facility Documents.


 


“Advance Conditions Precedent” As defined in
Section 4.3.


 


“Advance Date” A Business Day on which FFB
makes an Advance in accordance with Article 2.


 


“Advance Schedule” A schedule detailing the
expected dates and amounts of proposed Advances and Equity Contributions to
fund Project Costs, prepared 


 

















 


by the Borrower and certified by the Lenders’
Engineer, as amended from time to time in accordance with Section 6.8(c).


 


“Affiliate” As to any Person, any other
Person that directly or indirectly Controls, or is under common Control with,
or is Controlled by, such Person; provided, however, that in any
event and for all purposes of the Loan Documents, the Sponsor, Kahuku Holdings
or any Affiliate thereof shall be deemed an “Affiliate” of the Borrower.


 


“Agents” Collectively, the Loan Servicer and
the Collateral Agent.


 


“ALTA Survey” The ALTA survey prepared by
ControlPoint Surveying, Inc. with respect to the Project Site.


 


“Anticipated Financial Completion Date” September 30,
2011.


 


“Anticipated Operational Completion Date” March 31,
2011.


 


“Anticipated Physical Completion Date” February 28,
2011.


 


“Anticipated Project Completion Date” October 31,
2011.


 


“Applicable Margin” As defined in the DOE
Credit Facility Documents.


 


“Applicable Regulations” The final
regulations with respect to Title XVII, at 10 CFR Part 609, and any other
applicable regulations from time to time promulgated to implement Title XVII.


 


“Application” The Loan Guarantee Application
of the Borrower for a DOE Guarantee under Title XVII.


 


“Approved Construction Changes” As defined
in Section 6.8.


 


“Approved Pre-Closing Equity Credit” The sum
of (i) the appraised value of the Project Site, and (ii) an amount
designated in the Development Costs Statement as contributed to the Borrower
and approved by DOE for application to the Base Equity Commitment in accordance
with Section 2.4.2.


 


“Approved Pre-Closing Equity Credit Balance”
As of any date, the amount of the Approved Pre-Closing Equity Credit less
the aggregate amount of Equity Contributions allocated from the Approved
Pre-Closing Equity Credit.


 


“Asset Pledge Documents” As defined in Section 4.1.1.


 


“Authorized Official” With respect to any
Person, (i) the President, the Vice President, the Treasurer, the
Assistant Treasurer, the Senior Vice President 


 


2

















 


of Asset Management, or any other Financial Officer
of such Person, and (ii) with respect to the Borrower, the Operator,
Kahuku Holdings and the Sponsor, only those individuals holding any of the
foregoing positions whose name appears on a certificate of incumbency delivered
concurrently with the execution of the Common Agreement, as such certificate of
incumbency may be amended from time to time to identify names of the
individuals then holding such offices and the capacity in which they are
acting.


 


“Availability Period” The period from the
Financial Closing Date thin and including January 28, 2012.


 


“Bankruptcy Law” Any insolvency,
reorganization, moratorium or similar law for the general relief of debtors in
any relevant jurisdiction.


 


“Base Case Projections” A projection of
operating results for the Project over a period ending no sooner than twelve
(12) fiscal months after the Maturity Date, showing on a basis consistent with
the Operating Plan, the Operating Forecast, and the Transaction Documents at a
minimum the Borrower’s good faith projections based on assumptions that were
believed by the Borrower to be reasonable as of the date made, as of the
Initial Advance Date or such later date as of which such Base Case Projections
have been revised, of revenues, expenses, cash flow, Debt Service Coverage
Ratios and sources and uses of revenues over the forecast period, as updated
from time to time in accordance with Section 6.1(r).


 


“Base Equity” As defined in the Equity
Funding Agreement.


 


“Base Equity Commitment” The obligation of
the Equity Investor under the Equity Funding Agreement to fund (i) 21% of
all Eligible Base Project Costs, and (ii) 100% of all Ineligible Base
Project Costs, in an aggregate minimum amount of $34,176,826.


 


“Base Project Costs” The Borrower’s estimate
as of the Financial Closing Date of Total Project Costs, in the aggregate
amount of $151,507,794 (which includes $6,923,208 of budgeted Contingencies).


 


“Battery” The battery energy storage system
purchased by the Borrower under the Battery Purchase Agreement.


 


“Battery O&M Agreement” The Service and
Maintenance Agreement between Borrower and Battery Operator, dated as of May 21,
2010.


 


“Battery Operator” Xtreme Power, Inc.,
a corporation organized and existing under the laws of Delaware.


 


3

















 


“Battery Purchase Agreement” The Equipment
Purchase and Installation Agreement between Borrower and Battery Supplier,
dated as of November 24, 2009, as amended by Change Order No. 1,
dated as of May 21, 2010, as further amended by Amendment No. 1 to
Equipment Purchase and Installation Agreement, dated June 23, 2010, and
each other agreement entered into by such parties pursuant to the Battery
Purchase Agreement, including that certain Three-Party Escrow Service Agreement
among Borrower, Battery Supplier and Iron Mountain Intellectual Property
Management, Inc., as escrow agent, dated as of May 21, 2010, but
excluding the Battery O&M Agreement.


 


“Battery Replacement Reserve” As defined in
the Collateral Agency Agreement.


 


“Battery Replacement Reserve Account” As
defined in the Collateral Agency Agreement.


 


“Battery Supplier” Xtreme Power, Inc.,
a corporation organized and existing under the laws of Delaware.


 


“Biological Opinion” The No Jeopardy
Biological Opinion issued by the U.S. Fish and Wildlife Services, dated as of May 13,
2010.


 


“Borrower” Kahuku Wind Power, LLC, a limited
liability company organized and existing under the laws of Delaware.


 


“Borrower Certificate” A certificate
executed by an Authorized Official of the Borrower that is (i) with
respect to any certificate delivered pursuant to Section 4.1, dated
as of the Financial Closing Date and substantially in the form attached as Exhibit C1,
(ii) with respect to any certificate delivered pursuant to Section 4.2,
dated as of the Periodic Approval Date and substantially in the form attached
as Exhibit C2, (iii) a Master Advance Notice delivered
pursuant to Section 4.3, substantially in the form attached as Exhibit M,
(iv) delivered as a condition precedent to Project Completion, or (v) with
respect to any other certification to be made by the Borrower pursuant to any
Loan Document, addressing such matters as are specified in such Loan Document.


 


“Borrower Reimbursement Obligations” As
defined in Section 10.2.1.


 


“Borrower Reimbursement Payment” As defined
in Section 10.2.2.


 


“Borrower’s Accountant” Ernst &
Young LLP, or such other firm of independent public accountants as may be
appointed by the Borrower pursuant to Section 6.2(e).


 


4

















 


“Business Day” Any day other than a
Saturday, Sunday or any other day on which either FFB or the Federal Reserve
Bank of New York are not open for business.


 


“Buy American Provisions” means Section 1605
of Title XVI of Division A of the Recovery Act, 2 C.F.R. Sections 176.140 and
176.160, and the OMB Implementing Guidance, and, in each case, any amendment,
supplement or successor thereto, including any relevant regulation or guidance
which may be issued by DOE.


 


“Capital Expenditures” All expenditures that
should be capitalized in accordance with GAAP.


 


“Capital Lease” Any lease of (or other
agreement conveying the right to use) property, real or personal, which would
be required, in accordance with GAAP, to be capitalized and accounted for as a
capital lease on a balance sheet of the lessee.


 


“Cash Flow Available for Debt Service” For
any period, the sum determined in accordance with GAAP for such period of (i) net
income, plus (ii) depreciation, amortization, deferred taxes and
other non-cash expenses, to the extent deducted in determining net income, minus
(iii) any increases in working capital from the previous period, plus
(iv) any decreases in working capital from the previous period, plus
(v) any interest and fees paid, to the extent deducted in determining net
income, minus (vi) Capital Expenditures.


 


“Cash Grant” The cash grant in lieu of
electricity production credits under Section 45 of the Internal Revenue
Code and energy credits under Section 48 of the Internal Revenue Code from
the U.S. Department of the Treasury under Section 1603 of the Recovery Act
(or any successor program) with respect to construction of the Project.


 


“Change of Control” Any change such that,
prior to the Project Completion Date, the Sponsor fails to own a minimum of 92%
of the Equity Interests of Kahuku Holdings, and after the Project Completion
Date, Sponsor fails to own a minimum of 51% of the Equity Interests of Kahuku
Holdings.


 


“Change of Law” Any change in any
Governmental Rule or the application or requirements thereof, or required
or directed compliance by any Person with any request or directive (whether or
not having the force of law but if not having the force of law, being of a type
with which they customarily comply) of any Governmental Authority issued after
the Financial Closing Date.


 


“Change Orders” With respect to any
Construction Contract, as defined in such Construction Contract.


 


5

















 


“Collateral” The Collateral Security granted
to the Collateral Agent under the Security Documents.


 


“Collateral Agency Agreement” The Collateral
Agency Agreement dated as of the Financial Closing Date, among the Borrower,
the Collateral Agent, the Loan Servicer and DOE.


 


“Collateral Agent” Midland Loan Services, Inc.,
as appointed in the Collateral Agency Agreement.


 


“Collateral Agent Certificate” A certificate
executed by an Authorized Official of the Collateral Agent that is (i) with
respect to any certificate delivered pursuant to Section 4.1, dated
as of the Financial Closing Date and substantially in the form attached as Exhibit G1,
(ii) with respect to any certificate delivered pursuant to Section 4.2,
dated as of the Periodic Approval Date and substantially in the form attached
as Exhibit G2, (iii) with respect to any certificate delivered
pursuant to Section 4.3, dated as of the Requested Advance Date and
substantially in the form attached as Exhibit G3, (iv) delivered
as a condition precedent to Project Completion, or (v) with respect to any
other certification to be made by the Collateral Agent pursuant to any Loan
Document, addressing such matters as are specified in such Loan Document.


 


“Collateral Security” All real or personal
property, assets, revenues, and equity interests, whether now existing or
hereinafter acquired, that are subject to or are intended to be or become
subject to the security interest or lien granted by any of the Security
Documents.


 


“Commencement of Construction” The
occurrence of the following: (i) the Borrower has completed all
pre-construction engineering and design, has received all necessary licenses,
permits and local and national environmental clearances, has engaged all
contractors and ordered all essential equipment and supplies as, in each case,
can reasonably be considered necessary so that physical construction of the
Project may begin (or, if previously interrupted or suspended, resume) and
proceed to completion without foreseeable interruption of material duration, and
(ii) such physical construction (including, at a minimum, excavation for
foundations or the installation or erection of improvements) at the Project
Site has begun (or resumed).


 


“Common Agreement” The Common Agreement,
dated as of the Financial Closing Date, among the Borrower, DOE, Loan Servicer
and the Collateral Agent, to which this Exhibit A is appended. The
Common Agreement constitutes the “Loan Guarantee Agreement” referred to in the
Applicable Regulations.


 


“Comptroller General” The Comptroller General
of the United States.


 


6

















 


“Construction Budget” The Construction
Budget delivered by the Borrower to each Credit Party pursuant to Section 4.1.4(v),
as amended from time to time by Approved Construction Changes pursuant to Section 6.8(c),
setting forth total Project Costs and a detailed budget (each by category on an
aggregate basis) to design, develop, construct, and start up the Project
through the Project Completion Date (inclusive of the cost of all Punch List
Items) under the Construction Contracts.


 


“Construction Change” As defined in Section 6.8.


 


“Construction Contractor” Each of (i) the
Project Construction Contractor, and (ii) any material subcontractor under
any Construction Contract.


 


“Construction Contracts” Each of (i) the
Project Construction Contract, and (ii) any material subcontract under the
Project Construction Contract.


 


“Construction Documents” As defined in Section 4.1.2.


 


“Construction Notice to Proceed” With
respect to each Construction Document, as defined in such Construction
Document.


 


“Construction Period” The period prior to
the Project Completion Date.


 


“Construction Progress Report” A
construction progress report prepared monthly by the Borrower, which shall
include (i) a detailed assessment of the progress of construction to date
in comparison with the Construction Budget and Project Milestone Schedule then
in effect for such monthly period (along with an explanation of material
delays, if any) and the expected progress of construction, (ii) Contingencies
used or reasonably expected to be used, (iii) any events that have
occurred or are reasonably expected to occur that would materially affect the
construction schedule, (iv) a description and explanation of any material
casualty losses, and (v) material disputes between the Borrower and any
Person.


 


“Construction Work” With respect to each
Construction Document, as defined in such Construction Document.


 


“Contingencies” The line item for “Contingency”
included in the Construction Budget.


 


“Contingent Obligation” As to any Person,
any obligation of such Person with respect to any Indebtedness (“primary
obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including any obligation of such Person,
whether or not contingent, as a guarantee or otherwise; (i) for the
purchase, payment or discharge of any such primary obligation; (ii) to
purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor, including the
obligation 


 


7

















 


to make take-or-pay or similar payments; (iii) to
advance or supply funds; (iv) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor; (v) to purchase property, securities or services
primarily for the purpose of assuring the holder of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation; (vi) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof, including with respect to
letter of credit obligations, swap agreements, foreign exchange contracts and
other similar agreements (including agreements relating to derivative
instruments); provided, however, that the term “Contingent
Obligation” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.


 


“Control” (including, with its correlative
meanings, “controlled by” and “under common control with”) as used with respect
to any Person, means possession, directly or indirectly, of the power to direct
or cause the direction of management or policies of such Person (whether
through ownership of voting securities or partnership or other ownership
interests, by contract, or otherwise); provided, however, that in any event and
for all purposes of the Loan Documents, any Person that owns directly or
indirectly 10% or more of the securities having ordinary voting powers for the
election of directors or other applicable governing body of another Person (but
excluding limited partnership interests and tax equity investors) shall be
deemed to Control such other Person.


 


“Corrupt Practices Laws” (i) the
Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95-213, §§101-104), as
amended, and (ii) any equivalent U.S. or foreign Governmental Rule.


 


“Cost Overrun” Any Project Cost in excess of
the Base Project Cost (excluding the Contingencies) amount budgeted therefor in
the relevant line item of the Construction Budget as in effect on the Financial
Closing Date (after taking into account any reallocations (other than from
Contingencies) among line items permitted pursuant to Section 6.8(b)).


 


“Covered Taxes” As defined in Section 3.1.2.


 


“Credit Parties” DOE, the Collateral Agent,
FFB and the Loan Servicer.


 


“Credit Subsidy Cost” As defined in §609.2
of the Applicable Regulations.


 


8

















 


“Davis-Bacon Act” Subchapter IV of Chapter
31 of Part A of Subtitle II of Title 40 of the United States Code,
including and as implemented by the regulations set forth in Parts 1, 3 and 5
of title 29 of the Code of Federal Regulations.


 


“Debarment Regulations” (i) The
Government-wide Debarment and Suspension (Non-procurement) regulations (Common
Rule), 53 Fed. Reg. 19204 (May 26, 1988), (ii) Subpart 9.4
(Debarment, Suspension, and Ineligibility) of the Federal Acquisition
Regulations, 48 C.F.R. 9.400 - 9.409, and (iii) the revised
Government-wide Debarment and Suspension (Non-procurement) regulations (Common
Rule), 60 Fed. Reg. 33037 (June 26, 1995).


 


“Debt Collection Improvement Act” The Debt
Collection Improvement Act of 1996, as amended from time to time.


 


“Debt Service” With respect to any
computation period, the sum of (i) scheduled principal, interest expense
and financing fees to be paid under the DOE Credit Facility Documents during
such period, (ii) other fees and amounts paid or scheduled to be payable
to any Credit Party during such period, and (iii) all other payments with
respect to other Indebtedness for Borrowed Money of the Borrower.


 


“Debt Service Coverage Ratio” With respect
to any computation period, the ratio of (i) Cash Flow Available for Debt
Service for such period, to (ii) Debt Service for such period.


 


“Debt Service Payment Account” As defined in
the Collateral Agency Agreement.


 


“Debt Service Reserve” As defined in Section 6.17.


 


“Debt Service Reserve Account” As defined in
the Collateral Agency Agreement.


 


“Debt Service Reserve Requirement” As of the
earlier to occur of (a) the last Quarterly Payment Date prior to the
anticipated occurrence of Operational Completion and (b) the date of the
final Advance pursuant to the Common Agreement and the DOE Credit Facility
Documents, and as of each Quarterly Payment Date thereafter, an amount equal to
the amount of Debt Service due on the immediately succeeding two (2) Quarterly
Payment Dates.


 


“Debt-to-Equity Contribution Ratio” The
ratio of (a) amounts outstanding under the DOE Guaranteed Loan and other
Indebtedness for Borrowed Money (excluding the principal amount of Permitted
Subordinated Loans outstanding) to (b) Equity Contributions in respect of
Eligible Project Costs.


 


9

















 


“Deed of Trust” The Construction and
Permanent Deed of Trust with Assignment of Rents and Fixture Filing made by the
Borrower, as trustor, in favor of Title Company as trustee, and the Collateral
Agent, as beneficiary, pursuant to which the Borrower grants for the benefit of
DOE a collateral security interest in its right to the Project Site.


 


“Development Costs” All reasonable out-of
pocket expenses related to the Project that have been incurred and paid to
third-parties prior to the date specified in the Development Costs Statement by
the Borrower, the Sponsor or any Affiliate of the Sponsor in the development of
the Project, including equipment deposits and any preliminary construction work
under any limited notice to proceed issued prior to the Financial Closing Date,
but not including technology development costs, general administrative and
overhead costs or other Ineligible Project Costs.


 


“Development Costs Statement” The statement,
in form and substance satisfactory to DOE, summarizing the amount of
Development Costs incurred prior to the Initial Advance Date that, subject to
the requirements of Section 4.1.4(vi), and together with the
appraised value of the Project Site, will comprise the Approved Pre-Closing
Equity Credit.


 


“Direct Agreements” As defined in Section 4.1.1.


 


“Disbursement Account” As defined in the
Collateral Agency Agreement.


 


“Disclosure Letter” The disclosure letter
dated as of the Financial Closing Date delivered by the Borrower to DOE and
containing certain schedules of information required pursuant to the Common
Agreement.


 


“Distribution Preconditions” The
satisfaction of each of the following conditions:


 


(i)                                     the
Borrower has made at least four (4) scheduled principal repayments of the
DOE Guaranteed Loan;


 


(ii)                                  the
Historical Debt Service Coverage Ratio for the previous rolling twelve (12)
month period is at least 1.30 to 1.00 and the Projected Debt Service Coverage
Ratio in respect of the subsequent rolling twelve (12) month period is at least
1.30 to 1.00, and Borrower has provided a certificate confirming such
compliance;


 


(iii)                               the
Borrower at the same time applies the Excess Cash Prepayment Amount to the
prepayment of the DOE Guaranteed Loan in accordance with Section 3.4.3(a)(ix);
and


 


10






 










 


(iv)                              The
Borrower at the same time applies the Prepayment Price in an amount equal to
the amount of such Restricted Payment to the voluntary prepayment of the DOE
Guaranteed Loan, with such Prepayment Price allocated to the prepayment of
principal in the maximum possible amount when taken together with any
associated make-whole premiums or discounts (it being understood that (x) if
there is an associated premium, the principal amount prepaid would be less than
the Prepayment Price, and (y) if there is an associated discount, the
principal amount prepaid would be greater than the Prepayment Price).


 


“DOE” The U.S. Department of Energy, an
agency of the United States of America, acting by and through the Secretary of
Energy, as guarantor of the Advances made under the DOE Credit Facility
Documents.


 


“DOE Credit Facility Agent” The Loan
Servicer, acting in its capacity as agent for the FFB.


 


“DOE Credit Facility Commitment” The
commitment of FFB to make Advances to the Borrower pursuant to the terms of the
FFB Note Purchase Agreement in an aggregate principal amount not to exceed the “Maximum
Principal Amount” specified in the FFB Promissory Note, which must be an
amount not greater than the “Loan Commitment Amount” set forth in the
FFB Note Purchase Agreement, which is the aggregate principal amount of all
Advances that may be made by FFB under the DOE Credit Facility Documents.


 


“DOE Credit Facility Commitment Termination Date”
In accordance with the DOE Credit Facility Documents, the earliest of (i) the
first date on which the aggregate amount of the Advances disbursed thereunder
equals the amount of the DOE Credit Facility Commitment, (ii) the Final
Advance Date, and (iii) the date of termination in whole of DOE Credit
Facility Commitment.


 


“DOE Credit Facility Documents” As defined
in Section 4.1.1(b).


 


“DOE Credit Facility Fees” All fees payable
by the Borrower or the Sponsor to DOE or the FFB under the Common Agreement,
the DOE Credit Facility Documents and related side letters, including the fees
payable pursuant to Section 3.5.


 


“DOE Guarantee” The guarantee provided by
DOE for the benefit of FFB pursuant to the DOE Credit Facility Documents.


 


“DOE Guarantee Payment” As defined in Section 10.1.


 


“DOE Guarantee Payment Amount” As defined in
Section 10.1.


 


11

















 


“DOE Guaranteed Loan” The loan provided
pursuant to the DOE Credit Facility Documents, and as the context requires, the
principal amount of such loan outstanding from time to time.


 


“DOE Maintenance Fee” A maintenance fee in
respect of DOE’s administrative expenses in servicing and monitoring the
Project and the Loan Documents during the construction, startup, commissioning
and operation of the Project in an amount per year equal to $30,000 for the
first year, escalating 1.50% each subsequent year over the term of the DOE
Guaranteed Loan, payable each year in advance commencing on the Financial
Closing Date.


 


“DOE Modification Fee” A fee payable to DOE
in the event that the Project experiences technical, financial, legal or other
events which require DOE to incur time or expenses (including third-party
expenses) beyond standard monitoring and administration of the Loan Documents,
reimbursing DOE in full for such amounts as DOE reasonably determines are its
additional internal administrative costs, any costs associated in reviewing
whether such events would alter the Credit Subsidy Cost, and related fees and
expenses of its independent consultants and outside legal counsel, to the
extent that such third parties are not paid directly by or on behalf of the
Borrower.


 


“DOE Requirements” The requirements and
conditions of the Applicable Regulations set forth on Exhibit A3.


 


“Dollars” or “$” The lawful currency
of the United States of America.


 


“Drawstop Notice” as defined in Section 2.4.2(b).


 


“Eligible Base Project Costs” The portion of
Base Project Costs that are Eligible Project Costs, estimated as of the
Financial Closing Date to be in the aggregate amount of $151,507,794 (which for
avoidance of doubt, includes approximately $6,923,208 of budgeted
Contingencies).


 


“Eligible Project Costs” Those portions of
Project Costs that are eligible for funding as “Project Costs” as defined in
the Applicable Regulations.


 


“Employee Benefit Plan” (i) All “employee
benefit plans” (as defined in Section 3(3) of ERISA) other than any
Multiemployer Plans which are or at any time have been maintained or sponsored
by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate has ever made, or been obligated to make, contributions or with
respect to which the Borrower or any ERISA Affiliate has incurred any material
liability or obligation, (ii) all Pension Plans, and (iii) all
Qualified Plans.


 


12

















 


“Endangered Species Act” 16 U.S.C. §§ 1531
et seq., as amended from time to time.


 


“Engineering Agreements” Civil
Engineering/Design Consulting Services Agreement by and between First Wind
Energy, LLC and M&E Pacific, Inc., dated as of July 15, 2008, and
Electrical Engineering/Design Consulting Services Agreement by and between UPC
Wind Management, LLC and Electrical Consultants, Inc., dated as of December 27,
2007.


 


“Engineering Contractor” Each of M&E
Pacific, Inc. and Electrical Consultants, Inc., in its respective
capacity as engineering contractor under the applicable Engineering Agreement.


 


“Environmental Claim” Any and all
obligations, liabilities, losses, administrative, regulatory or judicial
actions, suits, demands, decrees, claims, liens, judgments, notices of
noncompliance or violation, investigations (excluding routine inspections),
proceedings, clean-up, removal or remedial actions or orders, or damages
(foreseeable and unforeseeable, including consequential and punitive damages),
penalties, fees, out-of-pocket costs, expenses, disbursements, attorneys’ or
consultants’ fees, relating in any way to any violation of Environmental Law or
any violation of any Governmental Approval issued under any such Environmental
Law including (a) any and all Indemnity Claims by any Governmental
Authority for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any
and all Indemnity Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Substances, the violation or alleged violation of any
Environmental Law or Governmental Approval issued thereunder, or arising from
alleged injury or threat of injury to health, safety or the environment.


 


“Environmental Laws” Any Governmental Rule in
effect as of the Financial Closing Date or thereafter, and in each case as
amended, regulating, relating to or imposing obligations, liability or
standards of conduct concerning (A) the use of the Project Site or the
condition thereof; or (B) pollution, protection of human or animal health
or the environment or Releases or threatened Releases of pollutants,
contaminants, chemicals, radiation or industrial, toxic or hazardous substances
or wastes, including Hazardous Substances, or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
recycling, disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes, including
Hazardous Substances.


 


“Equipment Purchase Agreement” Purchase and
Services Agreement by and between Borrower and Harris Stratex Networks
Operating Corporation, dated 


 


13

















 


as of August 19, 2009, as amended by Amendment
No. 1 to Purchase and Services Agreement, dated as of July 8, 2010.


 


“Equity Commitments” The Base Equity
Commitment and the Overrun Equity Commitment.


 


“Equity Contribution Account” As defined in
the Collateral Agency Agreement.


 


“Equity Contributions” The aggregate equity
(or Permitted Subordinated Loans) contributed as Base Equity and Overrun
Equity, less the aggregate amount of any
Restricted Payments.


 


“Equity Documents” As defined in Section 4.1.1(c).


 


“Equity Funding Account” As defined in the
Collateral Agency Agreement.


 


“Equity Funding Agreement” The Equity
Funding Agreement dated as of the Financial Closing Date, among the Borrower,
Kahuku Holdings, the Collateral Agent, the Loan Servicer and DOE.


 


“Equity Interests” Any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) the common or preferred
equity or equity or preference share capital of a Person, including partnership
interests and limited liability company interests.


 


“Equity Investor” Kahuku Holdings.


 


“Equity Owner” With respect to any Person,
another Person holding Equity Interests in such first Person.


 


“Equity Pledge Agreement” The Equity Pledge
Agreement to be entered into by Kahuku Holdings and the Collateral Agent under
which Kahuku Holdings pledges all of the Equity Interests in the Borrower.


 


“Equity Pledge Documents” As defined in Section 4.1.1.


 


“ERISA” The Employee Retirement Income
Security Act of 1974 of the United States, as amended from time to time, and
the regulations promulgated, and any publicly available rulings issued,
thereunder.


 


“ERISA Affiliate” As applied to Borrower,
means (i) any corporation that is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which Borrower is a member, (ii) any trade or business
(whether or not incorporated) that is a member of a group of 


 


14

















 


trades or business under common control within the
meaning of Section 414(c) of the Internal Revenue Code or Section 4001(b) of
ERISA of which Borrower is a member, (iii) any member of an affiliated
service group within the meaning of Section 414(m) and (o) of
the Internal Revenue Code of which Borrower, any corporation described in
clause (i) above or any trade or business described in clause (ii) above
is a member.


 


“ERISA Event” means (a) a reportable
event as defined in Section 4043 of ERISA and the regulations issued under
such Section with respect to a Pension Plan, excluding, however, such
events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of
ERISA that it be notified within thirty (30) days of the occurrence of such
event; (b) the applicability of the requirements of Section 4043(b) of
ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, to any Pension Plan where an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such plan within the following thirty (30) days; (c) a
withdrawal by the Borrower or an ERISA Affiliate from a Pension Plan or the
termination of any Pension Plan resulting in liability under Sections 4063 or
4064 of ERISA; (d) the withdrawal of the Borrower or an ERISA Affiliate in
a complete or partial withdrawal (within the meaning of Sections 4203 and 4205
of ERISA) from any Multiemployer Plan if there is any potential liability
therefore, or the receipt by the Borrower or an ERISA Affiliate of notice from
any Multiemployer Plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, (e) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Sections
4041 or 4041A of ERISA of an Employee Benefit, or the commencement of
proceedings by the PBGC to terminate, a Pension Plan or Multiemployer Plan; (f) the
imposition of liability on the Borrower or an ERISA Affiliate pursuant to
Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (g) the failure by the Borrower or an ERISA Affiliate to make any
required contribution to an Employee Benefit Plan, or the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of
the Internal Revenue Code) or the failure to make by its due date a required installment
under Section 430(j) of the Internal Revenue Code with respect to any
Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (h) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; (i) the imposition of any material liability under
Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or an ERISA Affiliate; (j) an
application for a funding waiver under Section 302 of ERISA with respect
to any Pension Plan; (k) the imposition of any lien on any of the rights,
properties or 


 


15

















 


assets of the Borrower or an ERISA Affiliate, or
the posting of a bond or other security by of such entities, in either case
pursuant to Title I or IV of ERISA or to Sections 412, 430 or 436 of the
Internal Revenue Code; (l) the making of any amendment to any Pension Plan
that could directly result in the imposition of a lien or the posting of a bond
or other security; (m) the occurrence of a nonexempt prohibited
transaction (within the meaning of Section 4975 of the IRC or Section 406
of ERISA) involving the assets of an Employee Benefit Plan; or (n) the
final determination that a Qualified Plan’s qualification or tax exempt status
should be revoked.


 


“Event of Default” Any of the events
described in Section 8.1.


 


“Event of Force Majeure” Any event,
circumstance or condition in the nature of force majeure that would entitle any
Project Participant to any abatement, postponement, or other relief from any of
its contractual obligations under any Project Document to which such Person is
party, including with respect to FFB an “Uncontrollable Cause” as defined in
the FFB Note Purchase Agreement.


 


“Event of Loss” Any event that causes any
portion of the Project or any other property of the Borrower to be damaged,
destroyed or rendered unfit for normal use for any reason whatsoever, including
through a failure of title or any loss of such property.


 


“Excess Cash Prepayment Amount” An amount
equal to twenty-five percent (25%) of each Restricted Payment, which is applied
as a prepayment of the DOE Guaranteed Loan in accordance with Section 3.4.


 


“FFB” The Federal Financing Bank, a body
corporate and instrumentality of the United States of America.


 


“FFB Advance Request” A request for an
Advance delivered to FFB pursuant to the FFB Note Purchase Agreement.


 


“FFB Advance Request Approval Notice” An “Advance
Request Approval Notice” as defined in the FFB Note Purchase Agreement, signed
by DOE.


 


“FFB Loans” The loans made by FFB pursuant
to the DOE Credit Facility Documents.


 


“FFB Loan Transfer” Any transfer pursuant to
the FFB Note Purchase Agreement of all or any part of the promissory note
evidencing the FFB Loans.


 


“FFB Note Purchase Agreement” The Note
Purchase Agreement dated as of the Financial Closing Date, among the Borrower,
FFB and DOE.


 


16

















 


“FFB Program Financing Agreement” The
Program Financing Agreement, dated as of September 2, 2009, entered into
between FFB and DOE.


 


“FFB Promissory Note” The Promissory Note to
be entered into by the Borrower in favor of FFB and guaranteed by DOE.


 


“Final Advance Date” The “Last Day for an
Advance” as set forth in the DOE Credit Facility Documents.


 


“Financial Closing Date” The date on which
all the conditions set forth in Section 4.1 have been satisfied or,
in the sole discretion of the applicable Credit Parties, waived.


 


“Financial Officer” With respect to any
Person, General Manager, any director, the chief financial officer, the
Controller, the Treasurer or any Assistant Treasurer, any Vice
President-Finance or any other Vice President with significant responsibility
for the financial affairs of such Person.


 


“Financial Officer Certificate” A
certificate executed by an Financial Officer of the Borrower, Kahuku Holdings,
the Sponsor or the Project Operator, as the case may be, that is (i) with
respect to any certificate delivered pursuant to Section 4.1, dated
as of the Financial Closing Date and substantially in the form attached as Exhibit I,
(ii) delivered as a condition precedent to Project Completion, or (iii) with
respect to any other certification to be made by a Financial Officer pursuant
to any Loan Document, addressing such matters as are specified in such Loan
Document.


 


“Financial Plan” The financial plan attached
as Exhibit A1, as updated in accordance with Section 4.1.4,
setting forth all sources of funds needed to pay Total Project Costs, including
the DOE Guaranteed Loan, Base Equity, Overrun Equity and letters of credit.


 


“Financial Statements” With respect to any
Person, such Person’s quarterly or annual balance sheet and statements of
income, retained earnings, and cash flow for such fiscal period, together with
all notes thereto and, except for the first fiscal year, with comparable
figures for the corresponding period of its previous fiscal period, each
prepared in Dollars and in accordance with GAAP (except for the absence of
footnotes and normal year-end adjustments in the case of unaudited financial
statements), it being agreed that for purposes of the Loan Documents (i) the
Financial Statements of the Sponsor shall be prepared on a consolidated basis
(including the Borrower and the Operator), (ii) separate Financial
Statements of the Borrower shall be prepared and delivered, and
(iii) separate Financial Statements of the Operator shall not be prepared.


 


“First Principal Payment Date” March 28,
2012.


 


17

















 


“First Wind Entity” The Borrower, the
Sponsor, Kahuku Holdings, the Project Operator, the administrator under the
Administrative Services Agreement, and each of their respective successors and
assigns.


 


“Fiscal Year” The accounting year of the
Borrower beginning on January 1 and ending the following December 31.


 


“Foreign Asset Control Regulations” The
United States Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 C.F.R.
Subtitle B, Chapter V, as amended), or any ruling issued thereunder or any
enabling legislation or Presidential Executive Order granting authority
therefore.


 


“GAAP” Generally accepted accounting
principles in the United States of America in effect from time to time
including, where appropriate, generally accepted auditing standards, including
the pronouncements and interpretations of appropriate accountancy
administrative bodies (including the Financial Accounting Standards Board and
any predecessor and successor thereto), applied on a consistent basis both as
to classification of item and amounts, it being understood that unaudited
financial statements will not include footnotes and will be subject to normal
year-end adjustments.


 


“Governmental Approval” Any approval,
consent, authorization, license, permit, order, certificate, qualification,
waiver, exemption, or variance, or any other action of a similar nature, of or
by a Governmental Authority, including any of the foregoing that are or may be
deemed given or withheld by failure to act within a specified time period.


 


“Governmental Authority” Any federal, state,
county, municipal, or regional authority, or any other entity of a similar
nature, exercising any executive, legislative, judicial, regulatory, or
administrative function of government.


 


“Governmental Judgment” With respect to any
Person, any judgment, order, decision, or decree, or any action of a similar
nature, of or by a Governmental Authority having jurisdiction over such Person
or any of its properties.


 


“Governmental Rule” With respect to any
Person, any statute, law, rule, regulation, code, or ordinance of a Governmental
Authority having jurisdiction over such Person or any of its properties.


 


“Grant Proceeds Account” As defined in the
Collateral Agency Agreement.


 


18

















 


“Guaranteed Operational Completion Date” June 30,
2011; provided, that such date may be adjusted to the extent of any
extension to the “Guaranteed Commercial Operations Date” (as defined under the
Power Purchase Agreement) granted in writing by the Output Purchaser under the
Power Purchase Agreement as the result of an Event of Force Majeure, but shall
not, in any event, be adjusted beyond the date that is seventeen (17) months
after the Financial Closing Date.


 


“Guaranteed Physical Completion Date” May 31,
2011; provided, that such date may be adjusted to the extent of any
extension to the “Guaranteed  Commercial Operations Date” (as defined
under the Power Purchase Agreement) granted in writing by the Output Purchaser
under the Power Purchase Agreement as the result of an Event of Force Majeure,
but shall not, in any event, be adjusted beyond the date that is sixteen (16)
months after the Financial Closing Date.


 


“Guaranteed Project Completion Date” February 29,
2012.


 


“Hazardous Substance” Any hazardous or toxic
substances, chemicals, materials, pollutants or wastes defined, listed,
classified or regulated as such in or under any Environmental Laws, including (i) any
petroleum or petroleum products (including gasoline, crude oil or any fraction
thereof), flammable explosives, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam insulation and
polychlorinated biphenyls; (ii) any chemicals, materials or substances
defined as or included in the definition of “hazardous substances,” “hazardous
wastes,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of
similar import, under any applicable Environmental Law; and (iii) any
other chemical, material or substance, import, storage, transport, use or
disposal of, or exposure to or Release of which is prohibited, limited or
otherwise regulated under any Environmental Law.


 


“Hedging Agreement” Any agreement or
instrument (including a cap, swap, collar, option, forward purchase agreement
or other similar derivative instrument) relating to the hedging of any interest
under any Indebtedness.


 


“Historical Debt Service Coverage Ratio”
With respect to any computation period, the quotient of: (i) actual Cash
Flow Available for Debt Service for such period; divided by (ii) the
aggregate actual amount of Debt Service for such period.


 


“Improvements” The buildings, fixtures and
other improvements to be situated on the Project Site.


 


“Indebtedness” As to any Person, and at any
date, means, without duplication, (i) all Indebtedness for Borrowed Money
of such Person; (ii) all obligations of such Person evidenced by bonds,
debentures, notes, letters of credit, 


 


19

















 


or other similar instruments; (iii) all
obligations of such Person to purchase securities (or other property) that
arise out of or in connection with the sale or acquisition of the same or
similar securities (or property); (iv) all obligations of such Person
issued, undertaken or assumed as the deferred purchase price of property or
services other than trade credit in the ordinary course of business; (v) all
obligations of such Person under leases that are or should be, in accordance
with GAAP, recorded as Capital Leases in respect of which such Person is
liable; (vi) all deferred obligations of such Person to reimburse any bank
or other Person in respect of amounts paid or advanced under a letter of credit
or other instrument; (vii) the currently available amount of all surety
bonds, performance bonds, letters of credit or other similar instruments issued
for the account of such Person; (viii) all liabilities secured by (or for
which the holder of such liabilities has an existing right, contingent, or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such liabilities; (ix) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
property acquired by such Person (even though the rights and remedies of the
seller or bank under such agreement in the event of any default are limited to
repossession or sale of such property); (x) obligations pursuant to any
agreement to purchase materials, supplies or other property if such agreement
provides that payment shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered; (xi) all
obligations in respect of any Hedging Agreement or similar arrangement between
such Person and a financial institution providing for the transfer or
mitigation of interest risks either generally or under specific contingencies
(but without regard to any notional principal amount relating thereto); and (xii) all
Contingent Obligations of such Person with respect to Indebtedness of the types
specified in clauses (i) through (xi) above.


 


“Indebtedness for Borrowed Money” As to any
Person, without duplication, (i) all indebtedness (including principal,
interest, fees, and charges) of such Person for borrowed money or for the
deferred purchase price of property or services (other than any deferral (x) in
connection with the provision of credit in the ordinary course of business by
any trade creditor or utility or (y) of any amounts payable under the
Project Documents) or (ii) the aggregate amount required to be capitalized
under any Capital Lease under which such Person is the lessee.


 


“Indemnified Person” As defined in Section 11.17.


 


“Indemnity Claims” As defined in Section 11.17.


 


“Independent Consultants” Collectively, the
Lenders’ Engineer, Milbank, Tweed, Hadley & McCloy LLP as legal counsel to DOE, Boston Pacific Company, Inc. as
market advisor to DOE, and any other advisor or consultant retained by the


 


20






 










 


Credit Parties with the consent of the Borrower,
not to be unreasonably withheld; for the avoidance of doubt, “Independent
Consultant” does not include the Insurance Advisor.


 


“Independent Wind Resource Consultant Report”
A report issued by Garrad Hassan America Inc. delivered on or before the
Initial Advance Date pursuant to Section 4.1.11.


 


“Ineligible Base Project Costs” The portion
of Base Project Costs that are Ineligible Project Costs, estimated as of the
Financial Closing Date to be zero.


 


“Ineligible Project Costs” Those portions of
Project Costs that are not Eligible Project Costs, including Ineligible Base
Project Costs and Overrun Project Costs.


 


“Initial Advance Date” The date on which the
initial Advance under the DOE Credit Facility Documents is made following
confirmation by each applicable Credit Party that the conditions precedent to
the initial Advance under the Common Agreement have been satisfied or waived.


 


“Initial Conditions Precedent” As defined in
Section 4.1.


 


“Insolvency Proceedings” Any bankruptcy,
insolvency, liquidation, company reorganization, restructuring, controlled
management, suspension of payments, scheme of arrangement, appointment of
provisional liquidator, receiver or administrative receiver, notification,
resolution, or petition for winding up or similar proceeding, under any
applicable Law, in any jurisdiction and whether voluntary or involuntary.


 


“Insurance Advisor” William Gallagher
Associates, acting as insurance broker for the Borrower and the Sponsor, or any
successor insurance advisor or expert appointed by the Borrower and acceptable
to DOE.


 


“Insurance Advisor Certificate” A
certificate executed by an Authorized Official of the Insurance Advisor that is
(i) with respect to any certificate delivered pursuant to Section 4.1,
dated as of the Financial Closing Date and substantially in the form attached
as Exhibit F1, (ii) with respect to any certificate delivered
pursuant to Section 4.2, dated as of the Periodic Approval Date and
substantially in the form attached as Exhibit F2, or (iii) delivered
as a condition precedent to Project Completion, or (iv) with respect to
any other certification to be made by the Insurance Advisor pursuant to any
Loan Document, addressing such matters as are specified in such Loan Document.


 


“Intellectual Property Rights” Any and all
rights in, arising out of, or associated with the following, whether now or
hereafter existing, created,


 


21

















 


acquired or held: (i) all U.S., international
and foreign patents and patent applications and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part
thereof; (ii) all trade secret rights; (iii) all copyrights or other
rights associated with works of authorship, including all copyright
registrations and applications for copyright registration, renewals and
extensions thereof, and all other rights corresponding thereto throughout the
world; (iv) all mask work rights, mask work registrations and applications
therefor, and any equivalent or similar rights in semiconductor masks, layouts,
architectures or topology; (v) all rights in industrial designs and any
registrations and applications therefor throughout the world; (vi) all
rights to trade names, logos, trademarks. and service marks, including
registered trademarks and service marks and all applications to register
trademarks and service marks throughout the world; (vii) all rights to any
databases and data collections throughout the world; (viii) all moral and
economic rights of authors and inventors, however denominated, throughout the
world; and (ix) any similar or equivalent rights to any of the foregoing
anywhere in the world.


 


“Intended Prepayment Date” The date
specified in a Prepayment Election Notice on which the Borrower intends to
prepay all or part of an Advance in accordance with the terms of the Common
Agreement and the DOE Credit Facility Documents.


 


“Intercompany Project Documents” Each
agreement between the Borrower and the Sponsor or any Sponsor Affiliate,
including the Administrative Services Agreement and the Project O&M
Agreement.


 


“Interconnection Requirements Study” The
Interconnection Requirements Study, dated January 14, 2010, prepared by
Electric Power Systems Inc.


 


“Internal Revenue Code” The United States
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references
to the Internal Revenue Code are to the Internal Revenue Code as in effect at
the Financial Closing Date and any subsequent provisions of the Internal
Revenue Code, amendatory thereof, supplemental thereto or substituted therefor.


 


“Investment” For any Person: (i) the
acquisition (whether for cash, property, services or securities or otherwise)
or holding of Equity Interests, bonds, notes, debentures, partnership or other
ownership interests or other securities of or in any other Person; (ii) the
making of any deposit with, or advance, loan or other extension of credit to,
any other Person or any guarantee of, or other Contingent Obligation with
respect to, any Indebtedness or other liability of any other Person and
(without duplication) any amount committed to be advanced, lent or extended to
any other Person; and (iii) the acquisition of any similar property, right
or interest of or in any other Person.


 


22

















 


“Investment Company Act” The United States
Investment Company Act of 1940, as amended from time to time.


 


“Kahuku Holdings” Kahuku Holdings LLC, a
limited liability company organized and existing under the laws of Delaware.


 


“Kahuku Holdings Certificate” A certificate
executed by an Authorized Official of Kahuku Holdings that is (i) with
respect to any certificate delivered pursuant to Section 4.1, dated
as of the Financial Closing Date and substantially in the form attached as Exhibit E3,
(ii) with respect to any certificate delivered pursuant to Section 4.2,
dated as of the Periodic Approval Date and substantially in the form attached
as Exhibit E4, (iii) delivered as a condition precedent to
Project Completion, or (iv) with respect to any other certification to be
made by Kahuku Holdings pursuant to any Loan Document, addressing such matters
as are specified in such Loan Document.


 


“Knowledge” With respect to the Borrower,
the actual knowledge of the Principal Persons or any knowledge that should have
been obtained by any of the Principal Persons upon reasonable investigation and
inquiry.


 


“Land Documents” As defined in Section 4.1.2(a).


 


“Late Charge” Interest on any Overdue Amount
calculated at the Late Charge Rate in accordance with the DOE Credit Facility
Documents.


 


“Late Charge Rate” The interest rate
applicable from time to time under the DOE Credit Facility Documents with
respect to Overdue Amounts.


 


“Lease” Any agreement that would be
characterized under GAAP as an operating lease.


 


“Lenders’ Engineer” R.W. Beck, as
engineering advisor to DOE.


 


“Lenders’ Engineer Advisory Agreement” The
letter agreement with Lenders’ Engineer.


 


“Lenders’ Engineer Certificate” A
certificate executed by an Authorized Official of the Lenders’ Engineer that is
(i) with respect to any certificate delivered pursuant to Section 4.1,
dated as of the Financial Closing Date and substantially in the form attached
as Exhibit D1, (ii) with respect to any certificate delivered
pursuant to Section 4.2, dated as of the Periodic Approval Date and
substantially in the form attached as Exhibit D2, (iii) delivered
as a condition precedent to Project Completion, or (iv) with respect to
any other certification to be made by the Lenders’ Engineer pursuant to any
Loan Document, addressing such matters as are specified in such Loan Document.


 


23

















 


“Lenders’ Engineer Report” A report or reports
of the Lenders’ Engineer delivered (i) on or before the Initial Advance
Date, as to matters set forth in Section 4.1.11, and (ii) on
or before the Project Completion Date as to matters set forth in the definition
of Project Completion.


 


“Lien” Any lien (statutory or other),
pledge, mortgage, charge, security interest, deed of trust, assignment,
hypothecation, title retention, fiduciary transfer, deposit arrangement,
easement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of an
asset, whether or not filed, recorded or otherwise perfected or effective under
applicable law, as well as the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset, (including any conditional sale or other title
retention agreement, any Capital Lease having substantially the same economic
effect as any of the foregoing, or any preferential arrangement having the
practical effect of constituting a security interest with respect to the
payment of any obligation with, or from the proceeds of, any asset or revenue
of any kind).


 


“Loan Documents” The Common Agreement, the
DOE Credit Facility Documents, the Equity Documents, the Subordination
Documents, the Security Documents, and any documents and agreements delivered
in connection therewith that are agreed in writing by DOE and the Borrower to
be Loan Documents, but in all cases excluding any Project Documents.


 


“Loan Servicer” DOE, acting through its Loan
Guarantee Program Office in such capacity in accordance with the terms of this
Agreement.


 


“Loss Proceeds” All proceeds (other than any
proceeds of business interruption insurance, advance loss of profit insurance,
and proceeds covering liability of the Borrower to third parties) resulting
from an Event of Loss.


 


“Loss Proceeds Account” As defined in the
Collateral Agency Agreement.


 


“Major Maintenance Reserve” As defined in
the Collateral Agency Agreement.


 


“Major Maintenance Reserve Account” As
defined in the Collateral Agency Agreement.


 


“Major Project Participant” The Borrower,
Kahuku Holdings, the Sponsor, the Project Construction Contractor, the Turbine
Supplier, the Battery Supplier, the Output Purchaser, each Operator and each of
their respective successors and assigns.


 


24

















 


“Major Project Participant Certificate” A
certificate executed by an Authorized Official of the applicable Major Project
Participant that is (i) with respect to any certificate delivered pursuant
to Section 4.1, dated as of the Financial Closing Date and
substantially in the form attached as Exhibit L, or
(ii) delivered as a condition precedent to Project Completion, or (v) with
respect to any other certification to be made by a Major Project Participant
pursuant to any Loan Document, addressing such matters as are specified in such
Loan Document.


 


“Master Advance Notice” A request for an
Advance delivered by the Borrower pursuant to Section 2.3.1,
substantially in the form attached as Exhibit M.


 


“Material Adverse Effect” As of any date of
determination, any event, condition or occurrence of whatever nature that would
result in a material adverse change in (a) the business, results of operations
or condition (financial or otherwise) of the Borrower, the Sponsor or Kahuku
Holdings that affects the ability of such entity to meet its material
obligations under the Transaction Documents to which it is a party in a timely
manner during the term of the DOE Guaranteed Loan; (b) the ability of the
Borrower, the Sponsor or Kahuku Holdings to perform its respective material
obligations under the Project Documents to which it is a party; or (c) with
respect to the Transaction Documents, the validity or priority of DOE’s or FFB’s
(as applicable) security interests in, and liens on, the Collateral and the
continued effectiveness and enforceability of the Transaction Documents.


 


“Material Project Documents” Each of the
following documents:


 


(i)            the
Power Purchase Agreement;


 


(ii)           the
Turbine Supply Agreements;


 


(iii)          the
Turbine O&M Agreement;


 


(iv)          the
Turbine Warranty Agreement;


 


(v)           the
Battery Purchase Agreement;


 


(vi)          the
Battery O&M Agreement;


 


(vii)         the
Transformer Agreement; and


 


(viii)        the
Land Documents.


 


“Maturity Date” June 28, 2028.


 


25

















 


“Monthly Reporting Certificate” A
certificate executed by an Authorized Official of the Borrower delivered
pursuant to Section 6.1(a), substantially in the form attached as Exhibit O1.


 


“Monthly Reporting Package” The items
specified in Section 6.1(a) as being delivered quarterly under
cover of a Monthly Reporting Certificate.


 


“Moody’s” Moody’s Investors Service, Inc.,
so long as it is a rating agency.


 


“Multiemployer Plan” means a “multiemployer
plan” (within the meaning of Section 3(37) of ERISA) which the
Borrower or any ERISA Affiliate contributes to or participates in, or with
respect to which the Borrower or any ERISA Affiliate has any material liability
or other obligation (whether accrued, absolute, contingent or otherwise).


 


“O&M Agreements” Each of the Project
O&M Agreement, Turbine O&M Agreement, the Battery O&M Agreement and
the Administrative Services Agreement.


 


“OFAC” The Office of Foreign Assets Control
of the United States Department of the Treasury.


 


“OMB” The Office of Management and Budget of
the Executive Office of the President of the U.S.


 


“OMB Implementing Guidance” The OMB’s
Initial Implementing Guidance for the Recovery Act, M-09-10 (February 18,
2009), Updated Implementing Guidance for the Recovery Act, M-09-15 (April 3,
2009), Updated Implementing Guidance for the Recovery Act, M-09-21 (June 22,
2009) and, in each case, any amendment, supplement or successor thereto.


 


“Operating Costs” For any period after the
Project Completion Date with respect to which such Operating Costs are being
calculated, all amounts paid (or projected to be paid) for the administration,
management, and operation and maintenance of the Project, including: (i) amounts
payable under the O&M Agreements; (ii) Capital Expenditures; (iii) premiums
and other costs related to the maintenance of Required Insurance; and (iv) taxes
of the Borrower.


 


“Operating Documents” As defined in Section 4.1.2(c).


 


“Operating Forecast” The periodic forecast
prepared by the Borrower (on an aggregate and month-by-month basis) in
connection with the operation of the Project, and delivered from time to time
pursuant to Section 6.1(r), which (i) shall be the Borrower’s
good faith projections at such time taking into account all facts and
circumstances then existing and assumptions believed by the Borrower to be


 


26

















 


reasonable on the date made, complete, fair and
accurate estimates of all Operating Revenues reasonably expected to be received
and all Operating Costs (by category) reasonably expected to be incurred, (ii) shall
reflect Debt Service due during each period, and pro forma Cash Flow Available
for Debt Service projections for each period, (iii) shall include such
other information as may be reasonably requested by DOE or the Lenders’
Engineer, and (iv) shall be prepared on a basis consistent from period to
period, and consistent with the Operating Plan, in sufficient detail to permit
meaningful comparisons, and shall include a statement of the assumptions on
which it is based.


 


“Operating Period” The period from the
Project Completion Date to the date on which the Secured Obligations are repaid
in full.


 


“Operating Plan” The periodic operating plan
for the Project prepared by the Borrower in connection with the operation of
the Project, and delivered from time to time pursuant to Section 6.1(r),
which (i) shall describe the Project’s operating plan for the relevant
period, (ii) shall summarize changes in the Project’s maintenance plan in
accordance with the O&M Agreements, including the Project’s program for
spare parts, inventory management, supply management, (iii) shall include
such other information as may be reasonably requested by DOE or the Lenders’
Engineer, and (iv) shall be prepared on a basis consistent from period to
period, and consistent with the Operating Forecast, in sufficient detail to
permit meaningful comparisons, and include a statement of the assumptions on
which it is based.


 


“Operating Revenues” All cash receipts (or
projected receipts) of the Borrower deposited in the Project Accounts,
including revenues from: (i) the sales under the Power Purchase Agreement;
(ii) proceeds from business interruption and delay in start-up insurance
policies; (iii) liquidated damages payable under the Project Agreements
(net of liquidated damages owing, if any, under any Project Agreement); (iv) delay
liquidated damages payable under any Construction Contract; and (v) interest
and other income earned and received on the Project Accounts; provided, however,
that Operating Revenues shall not include proceeds (x) from casualty and
event of loss insurance; (y) that are applied to a mandatory prepayment
pursuant to Section 3.4.3; and (z) from any drawdown on the
Overrun Equity Facility.


 


“Operational Completion” Satisfaction of the
elements described in the clauses (A) and (B) of the definition of
Project Completion.


 


“Operational Completion Date Extension” As
defined in Section 8.1(s)(i)(B)(1).


 


“Operations Report” The monthly report in
connection with the operation of the Project prepared by and on behalf of the
Borrower pursuant to Section


 


27

















 


6.1(a)(ii),
which shall include (i) an assessment of the Project’s performance in
comparison with the Operating Forecast and Operating Plan then in effect for
such monthly period, (ii) basic data relating to the operation of the
Project, (iii) pricing information, (iv) unusual maintenance
activity, (v) material casualty losses, and (vi) material disputes
between the Borrower and any Person.


 


“Operators” Each of the Project Operator,
Turbine Operator and the Battery Operator.


 


“Organizational Documents” With respect to
any Person, its charter, articles of incorporation and by-laws, memorandum and
articles of association, statute, partnership agreement, limited liability
company agreement or similar instruments that are required to be registered or
lodged in the place of organization of such Person and that establish the legal
personality of such Person.


 


“Output Purchaser” Hawaiian Electric
Company, acting as purchaser and otherwise as set forth under the Power
Purchase Agreement.


 


“Overdue Amount” Any amount owing under the
FFB Promissory Note that is not paid when and as due.


 


“Overrun Equity” As defined in the Equity
Funding Agreement.


 


“Overrun Equity Commitment” The obligation
of the Equity Investor under the Equity Funding Agreement to fund Overrun
Project Costs not to exceed $8,000,000 in the aggregate and costs of design,
engineering, startup and commissioning, until the occurrence of Operational
Completion, funded as set forth in the Equity Funding Agreement.


 


“Overrun Project Costs” All Total Project
Costs in excess of Base Project Costs , whether Eligible Project Costs or
Ineligible Project Costs, and including (i) costs associated with the
design, engineering, financing, construction, startup and commissioning of the
Project, (ii) amounts arising from timing differences in disbursement of
cash to pay expenses and receipt of cash associated with revenues prior to
Project Completion, (iii) the required funding of reserve accounts (to the
extent not funded with the proceeds of Advances), and (iv) any other
amounts required to achieve Project Completion or otherwise incurred prior to
the Project Completion Date, to be funded (x) first, from Contingencies,
and (y) thereafter, with respect to all Cost Overruns in excess of the
amount of Contingencies, from Overrun Equity and, with DOE’s consent, as
provided in the Sponsor Guarantee.


 


“PBGC” means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its functions under
ERISA.


 


28

















 


“Pension Plan” means an employee benefit
plan (as defined in Section 3(3) of ERISA) other than a Multiemployer
Plan (1) that is or was at any time maintained or sponsored by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
has ever made, or was obligated to make, contributions, and (ii) that is
or was subject to Section 412 of the Internal Revenue Code, Section 302
of ERISA or Title IV of ERISA


 


“Periodic Expenses” All of the following
amounts from time to time due under or in connection with the Loan Documents: (i) all
recordation and other costs, fees and charges in connection with the execution,
delivery, filing, registration, or performance of the Transaction Documents or
the perfection of the security interests in the Collateral Security, (ii) all
fees charges, and expenses of any Independent Consultants, legal counsel,
accountants, and other advisors to the Credit Parties, and (iii) all other
fees, charges, expenses and other amounts from time to time due under or in
connection with the Loan Documents.


 


“Permitted Indebtedness” Indebtedness set
forth in Section 7.1(a)-(f).


 


“Permitted Investments” (i) Direct
obligations of the United States of America (including obligations issued or
held in book-entry form on the books of the Department of the Treasury of the
United States of America) or obligations, the timely payment of principal and
interest of which is fully guaranteed by the United States of America maturing
not more than 180 days from the date of the creation thereof; (ii) obligations,
debentures, notes or other evidence of Indebtedness issued or guaranteed by any
agency or instrumentality of the United States maturing not more then 180 days
from the date of the creation thereof; (iii) interest-bearing demand or
time deposits (including certificates of deposit) that are held in banks with a
general obligation rating of not less than A- by S&P or the equivalent
rating by Moody’s, or if not so rated, secured at all times, in the manner and
to the extent provided by law, by collateral security described in clauses (i) or
(ii) of this definition, of a market value of no less than the amount of
moneys so invested maturing not more than 180 days from the date of the
creation thereof; (iv) commercial paper rated (on the date of acquisition
thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively
(or an equivalent rating by another nationally recognized credit rating agency
of similar standing if neither of such corporations is then in the business of
rating commercial paper), maturing not more than ninety (90) days from the date
of creation thereof; (v) money market funds, so long as such funds are
rated Aaa by Moody’s and AAA by S&P; and (vi) any advances, loans or
extensions of credit or any stock, bonds, notes, debentures or other securities
as DOE, acting pursuant to the Common Agreement, may from time to time approve.


 


“Permitted Leases” Leases of office space,
office equipment or motor vehicles with respect to which the aggregate lease
payments do not exceed $200,000 per Fiscal Year.


 


29

















 


“Permitted Liens” (i) The rights and
interests of the Secured Parties as provided in the Transaction Documents; (ii) Liens
for any tax, assessment or other governmental charge not yet due, or being
diligently contested in good faith and by appropriate proceedings timely
instituted, so long as (A) such proceedings shall not involve any danger
of the sale, forfeiture or loss of the Project, or any easements, as the case
may be, title thereto or any interest therein and shall not interfere with the
use or disposition of the Project or any easements; and (B) such tax,
assessment or other governmental charge is not more than sixty (60) days
delinquent; and (C) a bond, adequate reserves or other security acceptable
to DOE has been posted or provided in such manner and amount as to assure DOE
that any taxes, assessments or other charges determined to be due will promptly
be paid in full when such contest is determined; (iii) Liens in favor of
materialmen, workers or repairmen, or other like Liens arising in the ordinary
course of business or in connection with the construction of the Project,
either for amounts not yet due or for amounts being diligently contested in
good faith and by appropriate proceedings timely instituted so long as (x) such
proceedings shall not involve any danger of the sale, forfeiture or loss of any
part of the Project, or any easements, as the case may be, title thereto or any
interest therein and shall not interfere with the use or disposition of the
Project, or any easements, and (y) a bond or other security acceptable to
DOE has been posted or provided in such manner and amount as to assure DOE that
any amounts determined to be due will promptly be paid in full when such
contest is determined, and (iv) Liens identified in the ALTA Survey as of
the Financial Closing Date and acceptable to DOE; (v) zoning, entitlement,
building and other land use regulations imposed by Governmental Authorities
having jurisdiction over the Project Site which do not and will not materially
impair the use, development or operation by Borrower of the Project Site for
its intended purpose; (vi) covenants, conditions, restrictions, easements
and other similar matters of record as of the Financial Closing Date affecting
title to the Project Site, which are acceptable to DOE and do not and will not
materially impair the use, development or operation by the Borrower of the
Project Site for its intended purpose; (vii) any other Lien affecting the
Project Site the existence of which does not and will not materially impair the
use, development or operation by the Borrower of the Project Site for its
intended purpose; (viii) Liens securing judgments for the payment of money
not constituting an Event of Default under Section 8.1(1) or
securing appeal or other surety bonds related to such judgments; and (ix) deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business; provided, however,
that, notwithstanding the foregoing, Permitted Liens shall not include any Lien
on any Pledged Equity Interests other than the rights and interests of the
Secured Parties pursuant to the Equity Pledge Documents.


 


30














 


“Permitted Subordinated Loans” Any
subordinated loans made by the Equity Investor to the Borrower in lieu of
purchase of Equity Interests, on the terms and conditions set forth in the
Equity Funding Agreement.


 


“Person” Any individual, firm, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization, Governmental Authority, committee,
department, authority or any other body, incorporated or unincorporated,
whether having distinct legal personality or not.


 


“Pledged Equity Interests” The Equity
Interests of the Borrower, all of which are subject to the security interests
created by the Equity Pledge Documents.


 


“Potential Default” An event that, with the
giving of notice or passage of time or both, would become an Event of Default.


 


“Power Purchase Agreement” The Power
Purchase Agreement between the Borrower and the Output Purchaser.


 


“Prepayment Election Notice” Written
notification delivered by the Borrower of any intended prepayment of all or
part of any Advance, as specified in the FFB Promissory Note.


 


“Prepayment Price” With respect to any
Advance, the price paid by the Borrower to the Holder for the prepayment of
such Advance as specified in the FFB Promissory Note.


 


“Principal Payment Date” The First Principal
Payment Date and each Quarterly Payment Date occurring after the First
Principal Payment Date, or in each case if not a Business Day, the next
Business Day.


 


“Principal Persons” Any officer, director,
owner, key employee or other Person with primary management or supervisory
responsibilities with respect to the Borrower or the Project Operator, or any
other Person (whether or not an employee), who has critical influence on or
substantive control over the Project, and each of their respective successors
and assigns.


 


“Principal Project Documents” The Land
Documents, the Construction Documents,” and the Operating Documents.


 


“Program Requirements” (i) the
provisions of Title XVII and the Applicable Regulations, and (ii) all DOE
and FFB legal and financial requirements, policies, and procedures applicable
to the Title XVII program from time to time.


 


31

















 


“Prohibited Jurisdiction” Any country or
jurisdiction, from time to time, that is the subject of sanctions or
restrictions promulgated or administered by any federal Governmental Authority
of the United States.


 


“Prohibited Person” Any Person or entity
that is or ever has been:


 


(i)            named,
identified or described on the list of “Specially Designated Nationals and
Blocked Persons” (Appendix A to 31 CFR chapter V) as published by OFAC at its
official website, http://www.treas.gov/offices/enforcement/ofac/sdn/, or at any
replacement website or other replacement official publication of such list;


 


(ii)           named,
identified or described on any other blocked persons list, designated nationals
list, denied persons list, entity list, debarred party list, unverified list,
sanctions list or other list of individuals or entities with whom United States
persons may not conduct business, including lists published or maintained by
OFAC, lists published or maintained by the U.S. Department of Commerce, or
lists published or maintained by the U.S. Department of State.


 


(iii)          debarred
or suspended from contracting with the United States Government or any agency
or instrumentality thereof;


 


(iv)          debarred,
suspended, proposed for debarment with a final determination pending, declared
ineligible or voluntarily excluded (as such terms are defined in any of the
Debarment Regulations) from contracting with any United States federal
government department or any agency or instrumentality thereof or otherwise
participating in procurement or nonprocurement transactions with any United
States federal government department or agency pursuant to any of the Debarment
Regulations;


 


(v)           indicted,
convicted or had a Governmental Judgment rendered against it for any of the
offenses listed in any of the Debarment Regulations;


 


(vi)          subject
to United States or multilateral economic or trade sanctions in which the
United States participates;


 


(vii)         owned
or Controlled by, or acting on behalf of, any governments, corporations,
entities or individuals that are subject to United States or multilateral
economic or trade sanctions in which the United States participates;


 


(viii)        acted
on behalf of any Person listed above; or


 


(ix)           an
Affiliate if a Person listed above.


 


32

















 


“Project” The 30 megawatt nameplate capacity
wind generation project located in the town of Kahuku on the north end of the
island of Oahu, Hawaii to be developed, designed, constructed and operated by
or on behalf of the Borrower, including twelve (12) 2.5 MW Clipper Liberty wind
turbines and related structures, facilities and parts (including turbine
towers, pad-mounted transformers, feeder lines, lightning arrestors, switches,
CMS, meteorological towers), all structures or improvements erected on the
Project Site, all alterations thereto or replacements thereof, all fixtures,
attachments, appliances, equipment, machinery and other articles attached
thereto or used in connection therewith and all parts which may from time to
time be incorporated or installed in or attached thereto, all contracts and
agreements for the purchase or sale of commodities or other personal property
related thereto, all real or personal property owned or leased related thereto,
and all other real and tangible and intangible personal property leased or
owned by the Borrower and placed upon or used in connection with the generation
of electricity upon the Project Site.


 


“Project Accounts” As defined in the
Collateral Agency Agreement.


 


“Project Completion” As set forth on Exhibit A2.


 


“Project Completion Date” The date on which
all the conditions for Project Completion have been met, as certified by DOE in
writing.


 


“Project Construction Contract” The Balance
of Plant Construction Contract by and between Borrower and the Project
Construction Contractor, dated as of July 9, 2010.


 


“Project Construction Contractor” RMT Inc.,
a corporation organized and existing under the laws of the State of Wisconsin.


 


“Project Costs” All costs incurred by the
Borrower to acquire title or use rights to the Project Site and to develop,
finance and construct the Project, including (i) amounts payable under the
Construction Contracts and the other Construction Documents; (ii) fees and
expenses payable under the DOE Credit Facility Documents prior to the end of
the relevant Availability Period; (iii) principal and interest repayments
on the DOE Guaranteed Loan occurring prior to the Project Completion Date; (iv) costs
to acquire title or use rights to the Project Site, necessary easements and
other real property interests; (v) costs and expenses of legal,
engineering, accounting, construction management and other advisors or
Independent Consultants incurred in connection with the development or
construction of the Project; (vi) fees, commissions and expenses payable
to the Credit Parties at or prior to the Initial Advance Date; (vii) Development
Costs to the extent permitted to be paid under the Loan Documents and approved
by DOE in accordance with Section 4.1.4; (viii) construction
insurance premiums for coverage obtained prior to the Project Completion Date; (ix) the
Borrower’s labor 


 


33

















 


costs and general and administration costs prior to
the Project Completion Date; (x) costs incurred under the O&M
Agreements and mobilization costs included in the Base Case Projections, in
each case prior to the Project Completion Date; and (xi) such other costs
or expenses approved by the Credit Parties after consultation with the Lenders’
Engineer and such other Independent Consultants as they may deem necessary.


 


“Project Documents” The Principal Project
Documents and the Additional Project Documents.


 


“Project Milestone Schedule” The schedule of
significant development and construction milestones delivered in accordance
with Section 4.1.4(iv), as amended from time to time by Approved Construction
Changes pursuant to Section 6.8(c).


 


“Project O&M Agreement” The Project
O&M Agreement between Borrower and Project Operator, dated as of May 26,
2010.


 


“Project Operator” First Wind O&M, LLC,
a limited liability company organized and existing under the laws of Delaware.


 


“Project Operator Certificate” A certificate
executed by an Authorized Official of the Project Operator that is (i) with
respect to any certificate delivered pursuant to Section 4.1, dated
as of the Financial Closing Date and substantially in the form attached as Exhibit K1,
(ii) delivered as a condition precedent to Project Completion, or (iii) with
respect to any other certification to be made by the Project Operator pursuant
to any Loan Document, addressing such matters as are specified in such Loan
Document.


 


“Project Participant” Any party to a
Principal Project Document, and any party to a Loan Document other than the
Credit Parties.


 


“Project Plans” Project plans satisfactory
to DOE for the design, development, financing, construction, implementation,
operation and management of the Project, including updates and supplements to
information submitted in response to “Attachment B” to the Instructions for
Application for Loan Guarantee.


 


“Project Revenue Account” As defined in the
Collateral Agency Agreement.


 


“Project Site” The real property located in
the town of Kahuku on the north shore of the island of Oahu, Hawaii, and any
other land, in each case necessary for the Project.


 


34

















 


“Projected Debt Service Coverage Ratio” As
of any date of determination, the quotient of: (i) Cash Flow Available for
Debt Service for such period; divided by (ii) the aggregate amount of Debt
Service scheduled for such period, in each case based on amounts projected in
the Base Case Projections.


 


“Public Utility Holding Company Act” or “PUHCA”
The United States Public Utility Holding Company Act of 2005, as amended from
time to time.


 


“Punch List Items” Items listed on the
construction punchlist in respect of each of the Project Construction Contract,
the Turbine Supply Agreement, the Turbine Commissioning Agreement and the
Battery Purchase Agreement, which are approved by DOE (in consultation with the
Lenders’ Engineer).


 


“Qualified Plan” means an employee benefit
plan (as defined in Section 3(3) of ERISA) other than a Multiemployer
Plan (i) that is or was at any time maintained or sponsored by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
has ever made, or was ever obligated to make, contributions, and (ii) that
is intended to be tax-qualified under Section 401(a) of the Internal
Revenue Code.


 


“Quarterly Approval Date” As defined in Section 4.2.


 


“Quarterly Approved Advance Schedule” With
respect to Advances under the DOE Credit Facility Documents, an updated Advance
Schedule submitted by the Borrower from time to time and deemed approved upon
satisfaction of all corresponding Periodic Conditions Precedent.


 


“Quarterly Conditions Precedent” As defined
in Section 4.2.


 


“Quarterly Payment Date” Each March 28,
June 28, September 28 and December 28, or if not a Business Day,
the next Business Day.


 


“Quarterly Reporting Certificate” A
certificate executed by an Authorized Official of the Borrower delivered
pursuant to Section 6.1, substantially in the form attached as Exhibit O2.


 


“Quarterly Reporting Package” The items
specified in Section 6.1 as being delivered quarterly under cover
of a Quarterly Reporting Certificate.


 


“Rating Agency” Fitch Ratings, Ltd.


 


“Recovery Act” The American Recovery and
Reinvestment Act of 2009, P.L. No. 111-5.


 


“Register” As defined in Section 11.13.


 


35

















 


“Release” Disposing, discharging, injecting,
spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping,
emptying, seeping, placing and the like, into or upon any land or water or air,
or otherwise entering into the environment.


 


“Requested Advance Date” As defined in the
FFB Note Purchase Agreement.


 


“Required Consents” As defined in Section 5.10.


 


“Required Insurance” Insurance coverage for
the Project satisfying the requirements set forth in Schedule 6.3(b).


 


“Required Credit Parties” DOE, acting alone.


 


“Reserve Letter of Credit” An unconditional,
irrevocable, direct-pay, letter of credit that is denominated in Dollars, that
is issued in favor of the Collateral Agent by a bank with a branch or
representative office in New York, New York, or Connecticut and that is
organized under or is licensed as a branch or agency under the laws of the
United States or any state thereof that (i) has outstanding unguaranteed
and unsecured long-term Indebtedness that is rated “A-” or better by S&P
and/or “A3” or better by Moody’s (and, if the applicable rating is “A-” by
S&P or “A3” by Moody’s, such rating is not on negative watch) and that is
otherwise acceptable to DOE, and (ii) meets each of the following
requirements and is otherwise in form and substance satisfactory to DOE in its
sole discretion:


 


(i)            the
initial expiration date thereof shall be at least twelve (12) months beyond the
date of issuance, and shall automatically renew upon its expiration (which
renewal period shall be for at least twelve (12) months) unless, at least
forty-five (45) days prior to any such expiration, the issuer shall provide the
Collateral Agent with a notice of non-renewal of such letter of credit;


 


(ii)           upon
any failure to renew such Reserve Letter of Credit at least thirty (30) days
prior to such expiration date, or if the issuer of such Reserve Letter of Credit
shall fail to meet the requirements with respect thereto the entire face amount
thereof shall be drawable by the Collateral Agent (unless the Collateral Agent
shall have received a replacement letter of credit meeting the conditions
herein imposed or amounts shall have been deposited in the applicable Project
Account such that the amount on deposit therein, when aggregated with the face
amount available to be drawn under any applicable Reserve Letter of Credit then
outstanding (other than such Reserve Letter of Credit that is not to be renewed
or that no longer meets the criteria) is equal to the amount required to be on
deposit in such Project Account);


 


36

















 


(iii)          such
Reserve Letter of Credit shall additionally be drawable in all cases in which
the Collateral Agency Agreement provides for a transfer of funds from the
applicable Project Account, and there shall be no conditions to any drawing
thereunder other than the submission of a drawing request substantially in the
form attached to such Reserve Letter of Credit; and


 


(iv)          no
agreement, instrument or document executed in connection with such Reserve
Letter of Credit shall provide the issuer thereof or any other Person with any
claim against the Borrower, the Collateral Agent, the Loan Servicer or any
other Secured Party, or against any Collateral Security, whether for costs of
maintenance, reimbursement of amounts drawn under such letter of credit or
otherwise.


 


“Restricted Payments” As defined in Section 7.10.


 


“Secured Obligations” All amounts owing to
the Secured Parties under the Loan Documents, including (i) all loans,
advances, debts, liabilities, and obligations, howsoever arising, owed by the
Borrower under the DOE Credit Facility Documents or otherwise to the Credit
Parties (whether or not evidenced by any note or instrument and whether or not
for the payment of money), direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, pursuant to any of the Transaction
Documents, including all principal, interest, fees and Periodic Expenses
chargeable to the Borrower and payable by the Borrower hereunder or thereunder;
(ii) any and all sums advanced by any Agent or any other Secured Party in
order to preserve the Collateral Security or preserve the Secured Parties’
security interest in the Collateral Security; (iii) any amounts payable by
the Borrower under Section 3.1.2, Section 10.1, Section 11.17
or otherwise under the Loan Documents in respect of indemnity obligations; and (iv) in
the event of any proceeding for the collection or enforcement of the
obligations after an Event of Default shall have occurred and be continuing,
the expenses of retaking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral Security, or of any
exercise by any Credit Party of its rights under the Security Documents,
together with any Periodic Expenses, including attorney’s fees and court costs.


 


“Secured Parties” DOE, FFB and the Collateral
Agent, as their respective interests may appear.


 


“Security Agreement” The Security Agreement
dated as of the Financial Closing Date, between the Borrower and the Collateral
Agent.


 


“Security Documents” As defined in Section 4.1.1(d).


 


37

















 


“Solvency Certificate” Certificate from the
Chief Financial Officer or Treasurer of the Borrower certifying that the
Borrower is solvent as of the Financial Closing Date.


 


“Sponsor” First Wind Holdings, LLC, a
limited liability company organized and existing under the laws of Delaware.


 


“Sponsor Certificate” A certificate executed
by an Authorized Official of the Sponsor that is (i) with respect to any
certificate delivered pursuant to Section 4.1, dated as of the
Financial Closing Date and substantially in the form attached as Exhibit E1,
(ii) with respect to any certificate delivered pursuant to Section 4.2,
dated as of the Periodic Approval Date and substantially in the form attached
as Exhibit E2, (iii) delivered as a condition precedent to
Project Completion, or (iv) with respect to any other certification to be
made by the Sponsor pursuant to any Loan Document, addressing such matters as
are specified in such Loan Document.


 


“Sponsor Guarantee” A guarantee issued by
the Sponsor to DOE guaranteeing the obligations of the Borrower in an amount
not to exceed $10,000,000 through the Project Completion Date, including the
Borrower’s obligation to cause Operational Completion to occur on or before the
Guaranteed Operational Completion Date and the Project Completion Date to occur
on or before the Guaranteed Project Completion Date.


 


“Sponsor Support Agreement” The Sponsor
Support Agreement dated as of the Financial Closing Date among the Sponsor, the
Collateral Agent, DOE, the Loan Servicer and the Borrower.


 


“Sponsor’s Accountant” The firm of
independent public accountants acting as Borrower’s Accountant, in its capacity
as accountant to the Sponsor.


 


“Standard & Poor’s” or “S&P”
Standard & Poor’s Ratings’ Group, a division of McGraw-Hill Inc., a
New York corporation, so long as it is a rating agency.


 


“Subordination Agreement” One or more
subordination agreements, if any, pursuant to which all Indebtedness and
certain other payment obligations from the Borrower to the Sponsor are
subordinated to the Secured Obligations, and in form and substance satisfactory
to each Credit Party.


 


“Subordination Documents” As defined in the
Equity Funding Agreement.


 


“Taxes” All taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority,
including any interest, penalties or additions thereto imposed in respect
thereof.


 


38

















 


“Technology” Regardless of form, any
invention (whether or not patentable or reduced to practice), discovery,
information, work of authorship, articles of manufacture, machines, methods,
processes, models, procedures, protocols, designs, diagrams, drawings,
documentation, flow charts, network configurations and architectures, schematics,
specifications, concepts, data, databases and data collections, algorithms,
formulas, know-how, and techniques, software code, including all source code,
object code, firmware, development tools and application programming interfaces
(APIs), tools, materials, marketing and development plans, and other forms of
technology and all media on which any of the foregoing is recorded.


 


“Third-Party Materials Supply Agreements”
Any materials supply agreements entered into from time to time, each between
the Borrower and various suppliers, pursuant to which such suppliers will
supply to the Borrower certain supplies required to operate the Project.


 


“Title Company” Title Guaranty of Hawaii, Inc.


 


“Title XVII” Title XVII of the Energy Policy
Act of 2005, Pub. L. 109-58, as amended by Section 406 of Div A of Title
IV of Pub. L. 111-5, as may be amended from time to time.


 


“Total Funding Available” The aggregate of
all funds that are (i) undrawn but committed, or reasonably expected to be
available, under the DOE Credit Facility Documents and the Base Equity
Commitments, (ii) received or receivable delay payments and Loss Proceeds,
(iii) amounts standing to the credit of the Project Revenue Account and
the Disbursement Account, and (iv) all unused Overrun Equity Commitments
and any other unused equity funding that is committed or reasonably expected to
be available.


 


“Total Project Costs” The total amount of
Project Costs required for completion of the Project.


 


“Transaction Documents” The Project
Documents and the Loan Documents.


 


“Transformer Agreement” The Equipment
Purchase Agreement between Borrower and Hyundai Corporation USA.


 


“Turbine Commissioning Agreement” The Wind
Turbine Commissioning Agreement by and between the Borrower and the Turbine
Supplier, dated as of May 20, 2010, as amended by Amendment No. 1 to
Wind Turbine Commissioning Agreement, dated as of June 28, 2010.


 


39

















 


“Turbine O&M Agreement” The Turbine
Operation, Maintenance and Service Agreement by and between the Borrower and
the Turbine Operator, dated as of May 20, 2010.


 


“Turbine Operator” Clipper Windpower, Inc.


 


“Turbine Supplier” Clipper Windpower, Inc.


 


“Turbine Supply Agreement” The Turbine
Supply Agreement by and between the Borrower and the Turbine Supplier, dated as
of May 20, 2010.


 


“Turbine Supply Documents” Each of the
Turbine Supply Agreement and the Turbine Commissioning Agreement.


 


“Turbine Warranty Agreement” The Warranty
Agreement by and between Borrower and Turbine Supplier, dated as of May 20,
2010.


 


“Uniform Commercial Code” The Uniform
Commercial Code of the jurisdiction, the law of which governs the document in
which such term is used.


 


“U.S.” The United States of America.


 


“USA Patriot Act” Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Pub. L. 107-56).


 


40