Exhibit 10.54


 


Execution
Version


 


EQUITY
FUNDING AGREEMENT


 


dated
as of July 26, 2010


 


among


 


KAHUKU WIND POWER, LLC, as Borrower


 


KAHUKU HOLDINGS, LLC, as Equity Investor


 


U.S. DEPARTMENT OF ENERGY (acting through its Loan
Guarantee Program Office),


as
Guarantor and Loan Servicer


 


and


 


MIDLAND LOAN SERVICES, INC.,


as
Collateral Agent


 


Kahuku Wind Project


Oahu, Hawaii


 

















 


EQUITY FUNDING AGREEMENT


 


This EQUITY FUNDING
AGREEMENT (this “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) KAHUKU HOLDINGS, LLC,
a limited liability company organized and existing under the laws of Delaware,
as the Equity Investor, (iii) the U.S.
DEPARTMENT 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”), (iv) DOE,
acting through its Loan Guarantee Program Office, as the Loan Servicer, and (v) MIDLAND LOAN SERVICES, INC., a
corporation formed and existing under the laws of Delaware, as the Collateral
Agent.


 


W I T N E S S E T H:


 


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


 


WHEREAS, the Equity Investor
is the sole Equity Owner of the Borrower;


 


WHEREAS, the Equity Investor
will receive substantial direct and indirect benefits from the development of
the Project, and such development is dependent upon the Equity Investor making
the Equity Contributions provided for herein.


 


WHEREAS, the Equity Investor
has arranged for its obligations under this Agreement to be supported by one or
more Equity Investor Letters of Credit.


 


WHEREAS, the Equity Investor
desires to execute this Agreement to satisfy the conditions set forth in the
Loan Documents.


 


NOW, THEREFORE, in
consideration of the promises contained herein and other benefits to the Equity
Investor, the receipt and sufficiency of which are hereby acknowledged, the
Equity Investor hereby covenants and agrees with the Borrower, DOE, Loan
Servicer and the Collateral Agent for the benefit of the Secured Parties as
follows:


 


Section 1.   Definitions.


 


All capitalized terms used
but not otherwise defined herein shall have the respective meanings given to such
terms in Exhibit A of the Common Agreement. The Rules of
Interpretation set forth in Exhibit B of the Common Agreement shall govern
this Agreement. In addition, as used herein:


 


“Accelerated Equity
Contribution” shall have the meaning set forth in Section 2.1(e).


 


“Agreement” shall
have the meaning set forth in the preamble.


 


“Base Equity” shall
mean the aggregate amount of Equity Contributions required to be made to the
Borrower by or on behalf of the Equity Investor in respect of the Base Equity


 


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Commitment.


 


“Borrower” shall have
the meaning set forth in the preamble.


 


“Closing Date” means
the date of this Agreement.


 


“Collateral Agent”
shall have the meaning set forth in the preamble.


 


“Common Agreement”
shall mean that certain Common Agreement, dated as of the Closing Date between,
among others, the Borrower, DOE, the Loan Servicer and the Collateral Agent.


 


“Equity Commitment”
shall mean the aggregate sum of (x) the Base Equity Commitment (including
100% of Ineligible Base Project Costs), plus
(y) the Overrun Equity Commitment.


 


“Equity Contribution”
shall have the meaning set forth in Section 2.1.


 


“Equity Contribution
Account” shall have the meaning set forth in the Collateral Agency
Agreement.


 


“Equity Investor”
shall have the meaning set forth in the preamble.


 


“Equity Investor LC”
shall mean an unconditional, irrevocable, direct-pay, letter of credit provided
by the Equity Investor pursuant to Section 2.2 that is denominated
in Dollars, that is issued in favor of the Collateral Agent (on behalf of the
Secured Parties) 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:


 


(A)          the initial expiration date thereof
shall be at least twelve (12) months beyond the date of issuance, and shall be
renewed (or replaced with another Equity Investor LC) at least thirty (30) days
prior to its expiration (which renewal period shall be for at least twelve (12)
months);


 


(B)           upon any failure to renew such Equity
Investor LC at least thirty (30) days prior to such expiration date, or if the
issuer of such Equity Investor LC 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);


 


(C)           there shall be no conditions to any
drawing thereunder other than the submission of a drawing request substantially
in the form attached to such Equity Investor LC; and


 


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(D)          no agreement, instrument or document
executed in connection with such Equity Investor LC 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.


 


“Equity Investor Support Period”
shall mean the period between the Closing Date and the Termination Date.


 


“Forward Equity
Commitment” shall mean an amount equal to the Base Equity Commitment
pursuant to the Financial Plan less the
Approved Pre-Closing Equity Credit, in each case in effect as of the Closing
Date.


 


“Overrun Equity”
shall mean the aggregate amount of Equity Contributions required to be made to
the Borrower by or on behalf of the Equity Investor in respect of the Overrun
Equity Commitment.


 


“Termination Date”
shall mean the earlier to occur of (a) the date on which all Equity
Contributions required to be made hereunder have been made, or (b) the
occurrence of Operational Completion under the Common Agreement.


 


Section 2.   Equity Commitments.


 


2.1   Equity Contributions.


 


(a)       Notwithstanding any
provision to the contrary expressly contained in the Borrower’s Organizational
Documents or herein, the Equity Investor hereby irrevocably and unconditionally
agrees to make cash contributions of capital to the Borrower in an aggregate
amount not to exceed the Equity Commitment at the times and for the purposes
set forth below (collectively, the “Equity Contribution”).


 


(b)       Base Equity
Commitment. The Equity Investor shall make Equity Contributions to pay for
Eligible Base Project Costs in respect of the Base Equity Commitment on or
prior to the date that is nine (9) Business Days prior to each Requested
Advance Date, in an amount such that, after giving effect to all Advances to be
made on such Requested Advance Date and any Approved Pre-Closing Equity Credit
Balance, the Debt-to-Equity Contribution Ratio is not more than 79:21. The
Equity Investor’s obligation to make Equity Contributions in respect of the
Base Equity Commitment may be satisfied upon direction by the Equity Investor
to the Collateral Agent to draw on its Equity Investor LC and payment with such
funds of the applicable Equity Contribution to the Borrower.


 


(c)       Ineligible Base
Project Costs. The Equity Investor shall make Equity Contributions in
respect of Ineligible Base Project Costs on or prior to the date that is three
(3) Business Days after receipt by the Equity Investor of written notice
of amounts in the Construction Budget that have been applied to Ineligible Base
Project Costs (which notice Borrower shall provide to Collateral Agent, the
Loan Servicer and


 


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the Equity Investor not
later than two (2) Business Days after the Borrower has Knowledge of the
occurrence thereof), in an amount equal to 100% of such Ineligible Base Project
Costs.


 


(d)       Overrun Equity
Commitment. The Equity Investor shall make Equity Contributions to pay for
Overrun Project Costs as and when due under the Project Documents up to the
Overrun Equity Commitment on or prior to any date after (i) the Advances
have been drawn in the full amount available under the DOE Credit Facility
Documents, and (ii) the Contingencies have been fully utilized. The Equity
Investor’s obligation to make Equity Contributions in respect of the Overrun
Equity Commitment may be satisfied upon direction by the Equity Investor to the
Collateral Agent to draw on its Equity Investor LC and payment with such funds
of the applicable Equity Contribution to the Borrower.


 


(e)       Accelerated Equity
Contribution. The Equity Investor shall make a payment in lieu of Equity
Contributions (the “Accelerated Equity Contribution”), immediately (and
in any event within two (2) Business Days) upon receipt from the
Collateral Agent of written notice of the occurrence an Event of Default, prior
to the occurrence of Operational Completion, and exercise of remedies under the
Loan Documents, in an amount equal to the balance of the undrawn Base Equity
Commitment and all amounts of the Overrun Equity Commitment. The Borrower and
the Equity Investor hereby instruct the Collateral Agent, upon the Collateral
Agent’s receipt of an Accelerated Equity Contribution or in the event of a draw
by the Collateral Agent on the Equity Investor LC pursuant to this Section 2.1(e),
to apply such amount to the payment of Project Costs, as and when they become
due, in accordance with the Transaction Documents.


 


2.2           Equity Investor LCs.


 


(a)           The Equity Investor shall cause to be
established and maintained in full force and effect, on the Closing Date and
throughout the Equity Investor Support Period, an Equity Investor LC in an
amount equal to the Forward Equity Commitment plus
the Overrun Equity Commitment less
the aggregate amount of any Equity Contributions made by the Equity
Investor and less any amount of
cash collateral posted in lieu of the Equity Investor LC.


 


(b)           The Collateral Agent shall draw on
the Equity Investor LC (i) upon direction by the Equity Investor to the
Collateral Agent to draw on its Equity Investor LC in accordance with Section 2.1(b) or
Section 2.1(d), as applicable, or (ii) as directed by DOE,
upon the failure of the Equity Investor to make an Equity Contribution when
due; provided, that the Collateral Agent may draw on the Equity Investor
LC only in such amount as is then needed to satisfy the amount of the required
Equity Contribution.


 


(c)           Notwithstanding anything herein to
the contrary, the Collateral Agent shall draw on the Equity Investor LC in the
amount of the sum of the entire Equity Commitment applicable to the Equity
Investor in the event that, during the Equity Investor Support Period, (i) the
Equity Investor LC is set to expire within thirty (30) days


 


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and has not been replaced by
the Equity Investor with an Equity Investor LC meeting the criteria set forth
herein, or (ii) the issuer of the Equity Investor LC no longer meets the
criteria set forth herein and the Equity Investor LC has not been replaced by
the Equity Investor within twenty (20) Business Days with an Equity Investor LC
meeting the criteria set forth herein.


 


(d)           The Borrower and the Equity Investor
hereby instruct the Collateral Agent, upon the Collateral Agent’s receipt of
Equity Contributions made pursuant to Section 2.1 or in the event
of a draw by the Collateral Agent on the Equity Investor LC hereunder in
connection with Equity Contributions to be made pursuant to Section 2.1,
to deposit such amounts in the Equity Funding Account.


 


(e)           Promptly upon deposit of any Equity
Contribution into the Equity Funding Account, but in no event later than two
(2) Business Days after such deposit, the Collateral Agent shall (i) deliver
to the issuer of the Equity Investor LC all reduction certificates or other
information necessary to reduce the amount of the Equity Investor LC by the
amount of any Equity Contribution made by the Equity Investor pursuant Sections
2.1 or 2.2, and (ii) if the Equity Commitment has been
satisfied in full in accordance with the terms of this Agreement, return the
Equity Investor LC to the Equity Investor.


 


2.3           Obligations.


 


(a)           The obligations of the Equity
Investor hereunder are absolute, irrevocable and unconditional, and shall not
be affected by (i) any breach by the Borrower, the Equity Investor or any
other Person in the performance or observance of any of its agreements or
covenants hereunder or under any Transaction Document, (ii) the bankruptcy
or insolvency of the Borrower, the Equity Investor or any other Person, or
(iii) the execution, delivery or performance by the Borrower or the Equity
Investor of, or the exercise of any remedies of the Collateral Agent or any
Secured Party under the Transaction Documents. The obligations of the Equity
Investor hereunder shall not be subject to any abatement, reduction,
limitation, impairment, termination, setoff, defense, counterclaim or
recoupment whatsoever or any right to any thereof, and shall not be released,
discharged or in any way affected by any reorganization, of any Person, or by
the occurrence of any breach or default or the omission of any action, under or
referred to in any of the Transaction Documents, or any modification of, or
lack of priority or perfection of, or exercise of remedies with respect to any
security for the obligations and shall be satisfied only by the Equity Investor
making the Equity Contributions in accordance with Section 2.1
hereof or the draw by the Collateral Agent upon the Equity Investor LC, or a
combination thereof.


 


(b)           The Equity Investor waives:


 


(i) Any
right (except as shall be required by applicable law and cannot be waived) to
require the Collateral Agent or any Secured Party to: (i) proceed against
the Borrower, any guarantor thereof or any other party;


 


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(ii) proceed against or
exhaust any security held from the Borrower, any guarantor thereof or any other
party; or (iii) pursue any other remedy whatsoever;


 


(ii)   Any defense based on or arising out of any
defense of the Borrower, any guarantor thereof or any other party other than
payment in full of the Secured Obligations, including, any defense that may
arise by reason of the incapacity, lack of power or authority, death,
dissolution, merger, termination or disability of the Equity Investor, Borrower
or any other party, the unenforceability of the Secured Obligations or any part
thereof from any cause, the failure of the Collateral Agent or any Secured
Party to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of the Equity Investor, Borrower or any
other Person, or the cessation from any cause of the liability of the Borrower
other than payment in full of the Secured Obligations;


 


(iii) 
Any defense based upon an election of remedies by the Collateral Agent or any
Secured Party, including an election to proceed by non-judicial rather than
judicial foreclosure, which destroys or otherwise impairs the subrogation
rights of the Equity Investor or the right of the Equity Investor to proceed
against Borrower or another person for reimbursement, or both;


 


(iv) 
Any defense based on any offset against any amounts which may be owed by any
person to the Equity Investor for any reason whatsoever;


 


(v)   Any defense (including failure of
consideration, breach of warranty, statute of frauds, statute of limitations,
accord and satisfaction and usury), setoff or counterclaim which may at any
time be available to or asserted by Borrower under the Common Agreement or any
Loan Document;


 


(vi) 
Any duty on the part of the Collateral Agent or any Secured Party to disclose
to the Equity Investor any facts it may now or hereafter know about Borrower,
regardless of whether any such Person has reason to believe that any such facts
materially increase the risk beyond that which the Equity Investor intends to
assume, or have reason to believe that such facts are unknown to the Equity
Investor, or have a reasonable opportunity to communicate such facts to the
Equity Investor, since the Equity Investor acknowledges that it is fully
responsible for being and keeping informed of the financial condition of
Borrower and of all circumstances bearing on the risk of non-payment of any
Secured Obligation;


 


(vii) Any
defense based on any change in the time, manner or place of any payment or
performance under, or in any other term of, the Common Agreement, any other
Loan Document, or any other amendment, renewal, extension, acceleration,
compromise or waiver of or any consent or departure from the terms of the
Common Agreement or any other Loan Document;


 


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(viii) Any
right to assert the bankruptcy or insolvency of Borrower or any other person as
a defense hereunder or as the basis for rescission hereof and any defense
arising because of any Secured Party’s election, in any proceeding instituted
under the Bankruptcy Law, of the application of Section 1111(b)(2) of
the Bankruptcy Law;


 


(ix)  
Any defense based upon any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Law; and


 


(x)   Except
as otherwise expressly provided in this Agreement, notice of acceptance of this
Agreement and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Collateral Agent or any Secured Party against, and any other notice to,
any party liable thereon (including the Equity Investor, the Borrower or any
guarantor thereof).


 


(c)   Notwithstanding
any payment or payments made by the Equity Investor under Section 2.1
hereof, the Equity Investor shall not be entitled nor subrogated to any of the
rights of the Collateral Agent or any Secured Party against the Borrower or in
respect of the Collateral held by the Collateral Agent until the satisfaction in
full of the obligations of the Borrower under the Loan Documents.
Notwithstanding the preceding sentence, if any amount shall be paid to the
Equity Investor on account of such subrogation rights at any time prior to the
date the obligations of the Borrower under the Loan Documents are satisfied in
full, such amount shall be held by the Equity Investor in trust for the
Collateral Agent and the Secured Parties, segregated from other funds of the
Equity Investor and shall be promptly turned over to the Collateral Agent in
the exact form received by the Equity Investor (duly endorsed by the Equity
Investor to the Collateral Agent, if required), to be applied against the
obligations of the Borrower under the Loan Documents, whether matured or
unmatured, in accordance with the Loan Documents.


 


Section 3.               Consent and Agreement.


 


(a)           The Equity Investor acknowledges
receipt of the Security Agreement and consents in all respects to the
collateral assignment thereunder (subject to the terms thereof) of all of the
Borrower’s right, title and interest in, to and under this Agreement and the
Equity Investor LC, including all of the Borrower’s rights to receive payments
or other contributions under or with respect to this Agreement and all payments
and other contributions due and to become due to the Borrower under or with
respect to this Agreement, whether as contractual obligations, damages or
otherwise.


 


(b)           The Equity Investor acknowledges and
agrees, for the benefit of the Secured Parties, that, pursuant to and in accordance
with the Loan Documents, following the occurrence and during the continuation
of an Event of Default, the Collateral Agent (acting for the benefit of the
Secured Parties and otherwise in accordance with the Collateral Agency
Agreement) and any permitted assignee or


 


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designee thereof shall be
entitled to exercise any and all rights of the Borrower under this Agreement in
accordance with the terms hereof (in its own name or in the name of the Borrower),
and the Equity Investor shall comply in all respects with such exercise.
Without limiting the generality of the foregoing, following the occurrence and
during the continuation of an Event of Default, the Collateral Agent and any
assignee or designee thereof shall have, pursuant and subject to the terms of
such Loan Documents, the full right and power to enforce directly against the
Equity Investor all of its obligations under this Agreement and otherwise to
exercise all remedies hereunder and to make all demands and give all notices
and make all requests required or permitted to be made by the Borrower (in its
own name or in the name of the Borrower) under this Agreement; provided,
however, that the Equity
Investor’s obligations hereunder shall not increase as a result of any such
exercise of remedies.


 


Section 4.               Representations and Warranties
of the Equity Investor. The Equity Investor makes the following
representations and warranties as to itself for the benefit of each Secured
Party, as a Secured Party represented by the Collateral Agent herein:


 


(a)       Equity Investor is a
limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware. The Equity Investor has all requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Equity Investor has been duly authorized by all necessary limited liability
company action on the part of the Equity Investor.


 


(b)       Neither the execution
and delivery by the Equity Investor of this Agreement, the compliance by the
Equity Investor with the terms hereof, conflicts with, results in a breach of
or constitutes a default under (i) any of the terms, conditions or provisions
of the Organizational Documents or other applicable corporate documents of the
Equity Investor, (ii) any applicable law, or (iii) any of the terms
and conditions of, or results in the creation or imposition of, or the
obligation to create or impose, any lien (except Permitted Liens pursuant to
the Common Agreement) upon any of the property or assets of the Equity Investor
pursuant to the terms of any other Loan Document or any agreement or instrument
to which the Equity Investor is a party or by which it or any of its property
or assets is bound.


 


(c)       This Agreement is the
legal, valid and binding obligation of the Equity Investor enforceable against
the Equity Investor in accordance with its terms, except as enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditor’s rights and general
principles of equity (regardless of whether enforceability is considered in law
or in equity).


 


(d)       No consent of any other
Person and no Governmental Approval is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement or
the taking of any action by the Equity Investor as contemplated herein.


 


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(e)       There is no action, suit
or proceeding at law or in equity by any Person or any arbitration or any
administrative or other proceeding by or before, or, to the knowledge of the
Equity Investor, any investigation by, any Governmental Authority pending or,
to the knowledge of the Equity Investor, threatened against or affecting the
Equity Investor or any of its properties or rights which questions or
challenges the legality or validity of or seeks damages in connection with this
Agreement or any action taken or to be taken by the Equity Investor pursuant to
this Agreement or in connection with the transactions contemplated hereby.


 


(f)        No steps have been
taken or legal proceedings started by or against it and, to its knowledge, no
such action has been threatened against it for its bankruptcy, winding-up,
dissolution or reorganization of or for the appointment of a receiver, trustee
or similar officer with respect to it or any of its property.


 


Section 5.   Miscellaneous.


 


5.1           No Waiver; Cumulative Remedies.
No failure or delay on the part of the Collateral Agent or any other Secured
Party in exercising any right, power or privilege hereunder and no course of
dealing between the Equity Investor and the Collateral Agent or any other
Secured Party shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Collateral Agent or any other Secured Party would otherwise have. No notice to
or demand on the Equity Investor in any case shall entitle the Equity Investor
to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Collateral Agent or any other Secured
Party to any other or further action in any circumstances without notice or
demand.


 


5.2           Amendments. None of the terms
and conditions of this Agreement may be amended, supplemented, modified or
waived, nor may any consent under or with respect to such terms and conditions
be granted, unless each of the parties hereto agrees thereto in writing.


 


5.3           Notices. All notices and other
communications provided for hereunder shall be provided pursuant to each
party’s address specified opposite its name on Schedule 5.3, or to such
other address as may be designated by any party in a written notice to each
other party hereto.


 


5.4           Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
all future holders of the obligations of the Borrower under the Loan Documents
and their respective successors and assigns.


 


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5.5   GOVERNING LAW; WAIVER OF JURY TRIAL;
CONSENT TO JURISDICTION.


 


(a)                      THIS 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.


 


(b)                     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, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS.


 


(c)                      BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE EQUITY INVESTOR IRREVOCABLY AND
UNCONDITIONALLY:


 


(i)   SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING AGAINST IT ARISING OUT OF OR IN CONNECTION WITH THIS
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;


 


(ii)   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;


 


(iii) 
 AGREES THAT SERVICE OF PROCESS IN ANY
SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY


 


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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 5.3 OR AT
SUCH OTHER ADDRESS OF WHICH EACH OTHER PARTY SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO;


 


(iv) 
 AGREES THAT NOTHING HEREIN SHALL
(I) AFFECT THE RIGHT OF ANY PARTY TO EFFECT SERVICE OF PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR (II) LIMIT THE RIGHT OF ANY PARTY TO
COMMENCE PROCEEDINGS AGAINST OR OTHERWISE SUE THE EQUITY INVESTOR 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


 


(v) 
 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 CERTIFIED OR EXEMPLIFIED COPY OF WHICH JUDGMENT
SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND AMOUNT OF THE BORROWER’S OBLIGATION.


 


5.6           Headings Descriptive. The
headings of the several Sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.


 


5.7           No Third Party Beneficiaries.
The agreements of the parties hereto are solely for the benefit of the
Borrower, the Collateral Agent and the Secured Parties and their respective
successors and assigns and no Person (other than the parties hereto and such
Secured Parties) shall have any rights hereunder.


 


5.8           Survival. All agreements,
statements, representations and warranties made by the Equity Investor herein
or in any certificate or other instrument delivered by the Equity Investor or
on its behalf under this Agreement shall be considered to have been relied upon
by the Secured Parties and shall survive the execution and delivery of this
Agreement and the other Loan Documents regardless of any investigation made by
the Secured Parties or on their behalf until the obligations of the Borrower
under the Loan Documents shall have been paid in full.


 


5.9           Severability. In case any
provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.


 


11

















 


5.10         Independent Obligations. The Equity
Investor’s obligations under this Agreement are independent of those of the
Borrower.


 


5.11         Reinstatement. This Agreement
and the obligations of the Equity Investor hereunder shall continue to be
effective or be automatically reinstated, as the case may be, if and to the
extent that for any reason any amount received by (a) the Borrower
pursuant to Section 2.1, or (b) the Secured Parties in respect
of the obligations of the Borrower under the Loan Documents, is rescinded,
disgorged or reduced in amount, or must otherwise be restored or returned by
the Borrower, or any Secured Party, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as if such payment had not been
made, and the Equity Investor agrees that it will indemnify the Collateral
Agent and its successors and assigns, on demand for all reasonable costs and
expenses (including reasonable fees of counsel) incurred by the Collateral
Agent and its successors and assigns in connection with any such rescission, reduction
or restoration.


 


5.12         Counterparts. This Agreement may
be executed in any number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the same
instrument.


 


5.13         Entire Agreement. This
Agreement, together with any other agreement or instrument executed in
connection herewith, is intended by the parties hereto as a final expression of
their agreement as to the matters covered hereby and is intended as a complete
and exclusive statement of the terms and conditions thereof.


 


5.14         Collateral Agency Agreement.
Whenever reference is made in this Agreement to any action by, consent,
designation, specification, requirement or approval of, notice, request or
other communication from, or other direction given or action to be undertaken
or to be (or not to be) suffered or omitted by the Collateral Agent, or to any
amendment, waiver or other modification of this Agreement to be executed (or
not to be executed) by the Collateral Agent, or to any election, decision,
opinion, acceptance, use of judgment, expression of satisfaction or other
exercise of discretion, rights or remedies to be made (or not to be made) by
the Collateral Agent, it is understood that in all cases the Collateral Agent
shall be acting, giving, withholding, suffering, omitting, making or otherwise
undertaking and exercising the same (or shall not be undertaking and exercising
the same) as directed in accordance with the Collateral Agency Agreement. This
provision is intended solely for the benefit of the Collateral Agent and its
successors and permitted assigns and is not intended to and will not entitle
the other parties hereto to any defense, claim or counterclaim under or in
relation to any Loan Document, or confer any rights or benefits on any party
hereto.


 


[The remainder of this page intentionally left
blank.]


 


12

















 


IN WITNESS WHEREOF, the
parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.


 


 


KAHUKU
HOLDINGS, LLC


 


as Equity Investor


 


	
  By: 

  	
  /s/ Paul Gaynor

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: 

  	
  Paul Gaynor

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  President

  	
   

  



 


SIGNATURE PAGE TO


EQUITY FUNDING AGREEMENT


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.


 


 


KAHUKU WIND
POWER, LLC


 


	
  By:

  	
  Kahuku Holdings, LLC, its
  Member

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Robert S. Schauer

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


SIGNATURE PAGE TO


EQUITY FUNDING AGREEMENT


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.


 


 


MIDLAND
LOAN SERVICES, INC.


 


as Collateral Agent


 


	
  By:

  	
  /s/
  Bradley J. Hauger

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:
  

  	
  Bradley
  J. Hauger

  	
   

  
	
   

  	
  Senior
  Vice President

  	
   

  
	
  Its: 

  	
  Servicing Officer

  	
   

  



 


SIGNATURE PAGE TO


EQUITY FUNDING AGREEMENT


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.


 


 


U.S.
DEPARTMENT OF ENERGY,


as
Loan Servicer


 


	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


SIGNATURE PAGE TO


EQUITY FUNDING AGREEMENT


 

















 


Schedule 5.3


 


ADDRESSES


 




	
  If to Equity Investor:

  	
   

  
	
   

  	
  Kahuku Holdings, LLC

  c/o First Wind Energy, LLC

  179 Lincoln Street,
  Suite 500

  Boston, MA 02111

  Attn: Secretary

  Email: elim@firstwind.com

  Telephone: (617) 960-2888

  Facsimile: (617) 964-3342

  
	
   

  	
   

  
	
   

  	
  with copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  179 Lincoln Street,
  Suite 500

  Boston, MA 02111

  Attn: Project Finance

  Email:
  mordway@firstwind.com

  Telephone: (617) 960-2888

  Facsimile: (617) 964-3342

  
	
   

  	
   

  
	
  If to Borrower:

  	
   

  
	
   

  	
  Kahuku Wind Power, LLC

  c/o Kahuku Holdings, LLC

  c/o First Wind Energy, LLC

  179 Lincoln Street,
  Suite 500

  Boston, MA 02111

  Attn: Secretary

  Email: elim@firstwind.com

  Telephone: (617) 960-2888

  Facsimile: (617) 964-3342

  
	
   

  	
   

  
	
   

  	
  with copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  179 Lincoln Street,
  Suite 500

  Boston, MA 02111

  Attn: Project Finance

  Email:
  mordway@firstwind.com

  Telephone: (617) 960-2888

  Facsimile: (617) 964-3342

  






 

















 




	
  If to Collateral Agent:

  	
   

  
	
   

  	
  Midland Loan
  Services, Inc.

  10851 Mastin,
  Suite 700

  Overland Park, KS

  Attention: President

  Facsimile: (913) 253-9709

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Midland Loan
  Services, Inc.

  10851 Mastin,
  Suite 700

  Overland Park, KS

  Attention: General Counsel

  Facsimile: (913) 253-9709

  
	
   

  	
   

  
	
  If to DOE:

  	
   

  
	
   

  	
  United States Department
  of Energy

  Loan Guarantee Program

  1000 Independence Ave., SW

  Washington, D.C. 20585

  Attn: Portfolio Director

  Email:
  lpo.portfolio@hq.doe.gov

  
	
   

  	
   

  
	
   

  	
  with copies to:

  
	
   

  	
   

  
	
   

  	
  United States Department
  of Energy

  Loan Guarantee Program

  1000 Independence Ave., SW

  Washington, D.C. 20585

  Attn: Monique Fridell

  Email:
  monique.fridell@hq.doe.gov

  Telephone: (202) 586-8336

  Facsimile: (202) 586-7366

  
	
   

  	
   

  
	
   

  	
  United States Department
  of Energy

  Loan Guarantee Program

  1000 Independence Av., SW

  Washington, D.C. 20585

  Attn: Kimberly Heimert

  Email:
  kimberly.heimert@hq.doe.gov

  Telephone: (202) 287-5683

  Facsimile: (202) 450-8483

  






 

















 




	
   

  	
  Milbank, Tweed,
  Hadley & McCloy LLP

  601 S. Figueroa St., 30th
  Fl.

  Los
  Angeles, CA 90017

  Attn:
  Allan Marks

  Email: amarks@milbank.com

  Telephone: (213) 892-4000

  Facsimile: (213) 629-5063