Exhibit 10.7


 


EXECUTION VERSION


 


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS AGREEMENT. THE REDACTIONS ARE INDICATED WITH FIVE ASTERISKS (“*****”). A
COMPLETE VERSION OF THIS AGREEMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


ENERGY MANAGEMENT SERVICES AGREEMENT


 


BY AND AMONG


 


EVERGREEN WIND POWER, LLC


 


AND


 


NEW BRUNSWICK POWER GENERATION CORPORATION


 

















 


	
  ARTICLE
  1. DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.0

  	
  Definitions

  	
   

  	
  1

  
	
  1.1

  	
  Other
  Defined Terms

  	
   

  	
  8

  
	
  1.2

  	
  Rules of
  Construction

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  2. CONDITIONS PRECEDENT; TERM

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  2.0

  	
  Conditions
  Precedent of Buyer

  	
   

  	
  10

  
	
  2.1

  	
  Conditions
  Precedent of Seller

  	
   

  	
  10

  
	
  2.2

  	
  Closing

  	
   

  	
  11

  
	
  2.3

  	
  Term

  	
   

  	
  11

  
	
  2.4

  	
  Commercial
  Operation Date

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  3. PURCHASE OF ENERGY BY BUYER

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  3.0

  	
  Sale
  and Purchase Obligations

  	
   

  	
  12

  
	
  3.1

  	
  Deliveries

  	
   

  	
  12

  
	
  3.2

  	
  Delivered
  Electricity Price

  	
   

  	
  12

  
	
  3.3

  	
  Test
  Energy Price

  	
   

  	
  12

  
	
  3.4

  	
  Delivery
  Costs

  	
   

  	
  12

  
	
  3.5

  	
  Delivery
  Minimum

  	
   

  	
  13

  
	
  3.6

  	
  NERC
  Tags

  	
   

  	
  13

  
	
  3.7

  	
  Delivery
  to ISO-NE

  	
   

  	
  13

  
	
  3.8

  	
  Scheduling
  Fee

  	
   

  	
  14

  
	
  3.9

  	
  RECs

  	
   

  	
  14

  
	
  3.10 

  	
  Capacity
  Value

  	
   

  	
  14

  
	
  3.11 

  	
  Rates
  and Charges Not Subject to Review

  	
   

  	
  14

  
	
  3.12 

  	
  Costs
  and Charges

  	
   

  	
  14

  
	
  3.13

  	
  Title
  and Risk of Loss

  	
   

  	
  15

  
	
  3.14 

  	
  Standard
  of Operation

  	
   

  	
  15

  
	
  3.15 

  	
  Operating
  Procedures

  	
   

  	
  15

  
	
  3.16 

  	
  Outages

  	
   

  	
  16

  
	
  3.17 

  	
  Electricity
  Output Communications

  	
   

  	
  16

  
	
  3.18 

  	
  Power

  	
   

  	
  16

  
	
  3.19 

  	
  Taxes

  	
   

  	
  16

  
	
  3.20 

  	
  Exclusive
  Nature of Agreement

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  4. REPRESENTATIONS AND WARRANTIES

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  4.0

  	
  Representations
  and Warranties

  	
   

  	
  17

  
	
  4.1

  	
  Specified
  Authorizations

  	
   

  	
  18

  
	
  4.2 

  	
  No
  Immunity

  	
   

  	
  18

  
	
  4.3

  	
  No
  Other Representations and Warranties

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  5. EVENTS OF DEFAULT AND termination; REMEDIES and early TERMINATION

  	
   

  	
  18

  



 


i

















 


	
  5.0

  	
  Events of Default

  	
   

  	
  18

  
	
  5.1

  	
  Events of Termination

  	
   

  	
  20

  
	
  5.2

  	
  Early Termination

  	
   

  	
  20

  
	
  5.3

  	
  Survival

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6. BILLING AND PAYMENT; RECORDS

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  6.0

  	
  Billing and Payment

  	
   

  	
  22

  
	
  6.1

  	
  Interest on Late Payments

  	
   

  	
  22

  
	
  6.2

  	
  Disputed Amounts

  	
   

  	
  22

  
	
  6.3

  	
  Records

  	
   

  	
  22

  
	
  6.4

  	
  Currency

  	
   

  	
  22

  
	
  6.5

  	
  Audit

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7. ASSIGNMENT; BINDING EFFECT

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  7.0 

  	
  Assignment

  	
   

  	
  24

  
	
  7.1

  	
  Binding Effect

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8. FORCE MAJEURE; INDEMNITY; LIMITATION OF LIABILITY

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  8.0 

  	
  Force Majeure

  	
   

  	
  24

  
	
  8.1

  	
  Indemnification

  	
   

  	
  25

  
	
  8.2

  	
  Limitations of Remedies, Liability and Damages

  	
   

  	
  25

  
	
  8.3

  	
  Duty to Mitigate

  	
   

  	
  25

  
	
  8.4

  	
  Interruption

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9. FINANCIAL ASSURANCES

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  9.0

  	
  Credit Support

  	
   

  	
  26

  
	
  9.1

  	
  Increases or Reductions in Credit Support

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10. CONFIDENTIALITY

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  10.0 

  	
  Confidentiality

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11. NOTICES AND ADDRESS FOR PAYMENT 

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  11.0 

  	
  Notices

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12. DISAGREEMENTS

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  12.0 

  	
  Negotiations

  	
   

  	
  31

  
	
  12.1 

  	
  Arbitration

  	
   

  	
  31

  
	
  12.2 

  	
  Settlement Discussions

  	
   

  	
  32

  
	
  12.3 

  	
  Preliminary Injunctive Relief

  	
   

  	
  33

  
	
  12.4 

  	
  Confidential Proceedings

  	
   

  	
  33

  
	
  12.5 

  	
  Submission to Jurisdiction

  	
   

  	
  33

  



 


ii

















 


	
  ARTICLE 13. MISCELLANEOUS

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  13.0

  	
  Entirety

  	
   

  	
  33

  
	
  13.1

  	
  Choice of Law

  	
   

  	
  33

  
	
  13.2

  	
  Non-Waiver

  	
   

  	
  33

  
	
  13.3

  	
  Headings; Attachments

  	
   

  	
  34

  
	
  13.4

  	
  Counterparts

  	
   

  	
  34

  
	
  13.5

  	
  Forward Contract

  	
   

  	
  34

  
	
  13.6

  	
  Other

  	
   

  	
  34

  



 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  SCHEDULE A 

  	
  Delivered Electricity Price

  
	
  SCHEDULE B 

  	
  Minimum Delivered Electricity Amount 

  
	
  SCHEDULE C 

  	
  Scheduling Fee

  
	
  SCHEDULE D 

  	
  Exposure Amount Calculation

  
	
  SCHEDULE E

  	
  Initial Mass Hub Index

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A 

  	
  Operating Procedures

  
	
  EXHIBIT B 

  	
  Form of Initial Seller LC

  
	
  EXHIBIT C 

  	
  Form of Initial Buyer LC

  
	
  EXHIBIT D

  	
  Form of Assignment Agreement

  



 


iii

















 


ENERGY MANAGEMENT SERVICES AGREEMENT


 


This Energy Management Services Agreement is entered into as of the
31st day of July, 2006, by and between Evergreen Wind Power, LLC, a Delaware
limited liability company with principal offices located c/o UPC Wind
Management, LLC, 100 Wells Ave., Suite 201, Newton, MA, USA (“Seller”),
and New Brunswick Power Generation Corporation, a corporation created under the
Business Corporations Act of New Brunswick, having its head office at 515 King
Street, P.O. Box 2040, Fredericton, New Brunswick, Canada (“Buyer”).


 


RECITALS


 


1.             Seller
is the operator of a wind generation facility that is located on the Premises
(as defined below) owned by Seller.


 


2.             Buyer
wishes to purchase and Seller wishes to sell electric energy from the Facility
delivered to the Delivery Point (as defined below) in accordance with the terms
herein.


 


3.             Buyer
wishes to transfer energy produced by the Seller to the New England market.


 


AGREEMENT


 


NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, Buyer and Seller agree as follows:


 


ARTICLE 1.



 DEFINITIONS


 


1.0          Definitions.  As used in this Agreement, the following terms
shall have the respective meanings set forth below.


 


“Acceptable
Financial Institution” means a United States commercial bank or
foreign commercial bank with a United States office, with a minimum of one
billion U.S. dollars capital and surplus, in each case with a credit rating of
at least A- by S&P or A3 by Moody’s.


 


“Affiliate”
means any Person that directly or indirectly Controls, is Controlled by, or is
under common Control with the Person in question.


 


“Agreement”
means this Energy Management Services Agreement, including all Schedules and
Exhibits attached hereto.


 


“Affected
Party” means the party declaring a Force Majeure event as set forth
in Section 8.0.


 

















 


“Business
Day” means a day on
which Federal Reserve member banks in New York, New York are open for business.


 


“Buyer
Credit Support” means
the Initial Buyer LC or any replacement credit support provided by Buyer pursuant
to Article 9, as such Initial Buyer LC or replacement credit support is
reduced or increased pursuant to Article 9.


 


“Buyer
Electricity Index”
shall mean the ***** used to calculate the Buyer Exposure Amount pursuant to
Schedule D attached hereto. An example of the Buyer Electricity Index is
included as Schedule D attached hereto.


 


“Buyer
Exposure Amount”
means, at any given time, the amount determined in accordance with Part I
of Schedule D attached hereto. A sample calculation of the Buyer Exposure
Amount is also set forth in Part I of Schedule D.


 


“Capacity
Value” shall mean all
credits or value associated to the forced or unforced capacity of the Facility.


 


“COD
Deadline” shall mean July 31,
2007, except that the COD Deadline shall be extended day for day for any
extension of the Scheduled Commercial Operation Date pursuant to the definition
thereof.


 


“Commercial
Operation Date” means
2 days after the Seller provides written notice to the Buyer that all of the
following conditions have been satisfied: (i) the Interconnection
Agreement has been executed and delivered, (ii) all Turbines at the
Facility have been installed and are able to generate Excess Electricity, and (iii) a
third party engineer has certified that the Facility is complete and ready for
commercial operation and all related facilities and rights have been completed
or obtained, including such facilities and rights contemplated by the
Interconnection Agreement, to allow regular operation.


 


“Construction
Delay Damages” means,
for any given calculation period from the Scheduled Commercial Operation Date
until the Commercial Operation Date, *****. For the avoidance of doubt, for any
given calculation period from the Scheduled Commercial Operation Date until the
Commercial Operation Date, *****.


 


“Control” means the possession or ownership, directly
or indirectly, of the following: (a) in the case of (i) a
corporation, 50% or more of the outstanding voting securities thereof, (ii) a
limited liability company, partnership, limited partnership or joint venture,
the right to 50% or more of the distributions therefrom (including liquidating
distributions), (iii) a trust or estate, 50% or more of the beneficial
interest therein or (iv) any other entity, 50% or more of the


 


2

















 


economic or beneficial interest therein; and (b) the
power or authority, through the ownership of voting securities, by agreement or
otherwise, to direct the management, activities or policies of the applicable
Person. The terms “Controlled by” and “under common Control with” have correlative meanings.


 


“Costs” means any brokerage fees,
commissions and other transactional costs and expenses reasonably incurred by a
party either as a result of terminating any hedges, forward energy or attribute
sales or other risk management agreements and/or entering into new arrangements
to replace this Agreement (following the early termination thereof) or the
deliveries of electricity that were to have been made hereunder, and, in the
case of an Event of Default, reasonable legal costs incurred by the
Non-Defaulting Party in enforcing its rights under this Agreement.


 


“Credit Support” means Buyer Credit Support and/or Seller
Credit Support.


 


“Credit Support Calculation Date” means the last Business Day of any calendar
quarter and, if applicable, any interim Margin Call Date or interim Credit
Support Reduction Date occurring during any calendar quarter, whether such
Margin Call Date or Credit Support Reduction Date, as the case may be, is declared
by the Seller or the Buyer pursuant to the
applicable definitions thereof.


 


“Credit Support Reduction Date” means any Business Day on which (a) the
sum of the Baseline Buyer Credit Support Amount plus the applicable Seller Exposure Amount on such
Business Day is less than the Buyer Credit Support posted on such Business Day
by $***** or more or (b) the sum of the Baseline
Seller Credit Support Amount plus the
applicable Buyer Exposure Amount on such Business Day is less than the Seller
Credit Support posted on such Business Day by $***** or more.


 


“Creditworthy Affiliate” means an affiliate of a party with an
Investment Grade credit rating.


 


“Current Mass Hub Index” means the Mass Hub Index determined on any
given Credit Support Calculation Date.


 


“Defaulting Party” means, in the case of an Event of Default,
the party that is in default under Section 5.0.


 


“Default Rate” means the lesser of (a) Interest Rate plus three percent (3%) or (b) the
maximum rate permitted by applicable law.


 


“Deficient Electricity” means, commencing on the Commercial
Operation Date, the difference between actual Delivered Electricity during a
calendar quarter and the Minimum Delivered Electricity Amount for that calendar
quarter, if the amount of Delivered Electricity during a calendar quarter is
less than the Minimum Delivered Electricity Amount for that calendar quarter.


 


“Deficient Electricity Price” shall mean, during any calendar quarter, the
arithmetic average of the FHMC Prices during such calendar quarter as posted on
the NBSO’s Website,


 


3

















 


which such value shall then be converted into US Dollars using the
arithmetic average of the daily exchange rates during such quarter (as posted
by on the NBSO’s Website).


 


“Delivered
Electricity” means all of the Excess Electricity delivered to the
Delivery Point over the System. The Delivered Electricity amount shall not
exceed the Nameplate Capacity of the Facility less losses to the Delivery
Point.


 


“Delivery
Point” means any point where the MPS and New Brunswick Power
Transmission Corporation high-voltage transmission facilities interconnect on
the Maine – New Brunswick border.


 


“Evergreen”
means Evergreen Wind Power, LLC, a Delaware limited liability company, its
successors and assigns.


 


“Excess
Electricity” means all of the electricity generated at the Facility
by means of wind generation other than that needed for the operation of the
Facility.


 


“Exposure
Amount” means the Buyer Exposure Amount or the Seller Exposure
Amount.


 


“Facility”
means the wind electric generation facility owned by Seller and located at the
Premises.


 


“FERC”
means the Federal Energy Regulatory Commission and its predecessor and
successor agencies.


 


“FHMC
Price” means the “Final Hourly Marginal Cost,” as published on the
NBSO Website.


 


“Force
Majeure” means an event not anticipated as of the Effective Date,
which is not within the reasonable control of the party affected thereby, and
which by the exercise of due diligence the affected party is unable to overcome
or obtain or cause to be obtained a commercially reasonable substitute
therefore. Force Majeure includes, but is not restricted to: failure of
transmission facilities; acts of God; fire; explosion; civil disturbance;
sabotage; action or restraint by court order or public or government authority,
so long as the affected party has not applied for or assisted in the
application for, and has opposed where and to the extent reasonable, such
government action; provided that none of the following shall constitute an
event of Force Majeure: (a) the loss of Buyer’s markets nor Buyer’s
inability economically to use or resell energy purchased hereunder; (b) the
Buyer’s inability economically to procure necessary transmission capacity; (c) the
loss or failure of Seller’s ability to sell energy to a market at a more
advantageous price; or (d) the Seller’s inability economically to procure
necessary transmission capacity. A Force Majeure as defined in this Agreement
that affects a contractor or supplier to a party, with the effect that the party cannot perform
its obligations hereunder, shall be deemed to be a Force Majeure for the
affected party hereunder.


 


“Forced
Outage” shall mean an unplanned component failure or other condition
that requires the Facility (or portion thereof) to be removed from service
immediately, within six hours, or before the end of the next weekend.


 


4

















 


“Initial Mass Hub Index” means the series of electricity prices set
forth in Schedule E attached hereto.


 


“Interconnection Agreement” means the FERC large generator
interconnection agreement executed by MPS and Evergreen, dated as of April 14,
2006.


 


“Interconnection Facilities” means all the facilities installed for the
purpose of interconnecting the Facility to the System and owned by Seller,
including, but not limited to all transformers and associated equipment, relay
and switching equipment, and safety equipment.


 


“Interest Rate” means, on any date, the lesser of (a) the per annum rate of
interest equal to the prime lending rate as may from time to time be published
in the Wall Street Journal under “Money Rates,” or (b) the maximum rate
permitted by applicable law.


 


“Investment Grade” means, with respect to any Person, a credit rating (i.e., the rating assigned to an entity’s unsecured, senior long-term debt
obligations) by S&P or Moody’s of at least BBB- by S&P or Baa3 by Moody’s.


 


“ISA”
means the Northern Maine Independent System Administrator, or its successor. 


 


“ISO-NE” means the New England Independent System Operator.


 


“LMP”
means locational marginal price.


 


“Maine Zone” means the load zone for the area in Maine included in ISO-NE as
further defined by Market Rule 1 of the ISO-NE tariff.


 


“Maintenance Outage” means the removal of the Facility from service to perform work on
specific components that can be deferred beyond the end of the next weekend,
but requires the Facility to be removed from service before the next Planned
Outage. Maintenance Outages may occur any time during the year, have flexible
start dates, and may or may not have predetermined durations.


 


“Margin Call Date” means any Business Day on which (a) the sum of the Baseline Buyer
Credit Support Amount plus the applicable Seller Exposure Amount on such
Business Day exceeds by $***** or more the Buyer Credit Support posted on
such Business Day or (b) the sum of the Baseline Seller Credit Support
Amount plus the applicable Buyer Exposure Amount on such
Business Day exceeds by $***** or more the Seller Credit Support posted on
such Business Day.


 


“Market Delivery Point” means the delivery point at which Buyer
sells or transfers title to Delivered Electricity to an Affiliate or third
party.


 


“Mass Hub” means the specific set of pre-defined nodes in Massachusetts for which
an LMP is calculated by ISO-NE, as further defined in Market Rule 1 of the
ISO-NE tariff.


 


“Mass Hub Index” means the forward flat (around-the-clock) day-ahead LMP prices for
NEPOOL for the remainder of the Term as provided by ICAP Energy LLC or any
successor or


 


5

















 


replacement thereto agreed to by the Parties.
An example of the NEPOOL Index is shown in Schedule E attached hereto.


 


“MEPCO” means the Maine Electric Power
Company, its successors and assigns. 


 


“Month” means one calendar month.


 


“Moody’s” means Moody’s Investors
Service, Inc.


 


“MPS” means Maine Public Service
Company, its successors and assigns.


 


“MW” means megawatt.


 


“MWh” means megawatt hour.


 


“Nameplate Capacity Rating” of the
Facility shall be up to 42.0 MW.


 


“NBP” means the New Brunswick Power
Generation Corporation, its successors and assigns.


 


“NBSO” means the New Brunswick System
Operator, its successors and assigns.


 


“NBSO Website” means http://www.nbso.ca/en/,
or any replacement website used by the NBSO.


 


“NEPOOL” means the New England Power
Pool.


 


“NERC Tags” means certificates
evidencing delivery of electricity pursuant to the standards set forth by the
North American Electric Reliability Council, as such may be amended from time
to time.


 


“Non-Affected Party” means, in the
case of a Force Majeure, the party that is not declaring such Force Majeure.


 


“Non-Defaulting Party” means, in the
case of an Event of Default, the party that is not the Defaulting Party.


 


“Person” shall mean any individual,
entity, corporation, general or limited partnership, limited liability company,
joint venture, estate, trust, association or other entity or governmental
authority.


 


“Planned Outage” means the removal of
the Facility from service to perform work on specific components that is
scheduled well in advance and has a predetermined start date and duration
(e.g., annual overhaul, inspections or testing).


 


“PPSA” means the Personal Property
Security Act of New Brunswick.


 


“Premises” shall mean the real
property where the Facility is located in, Mars Hill, Aroostook County, Maine.


 


6














 


“Prudent
Utility Practice” means any of the practices, methods and acts required or
approved by the ISA or engaged in or approved by a significant portion of the
electric utility industry in the same general geographic location as the
Facility during the relevant time period, or any of the practices, methods and
acts which, in the exercise of reasonable judgment in light of the facts known
at the time the decision was made, could have been expected to accomplish the
desired result at a reasonable cost consistent with good business practices,
reliability, safety and expedition.  “Prudent
Utility Practice” is not intended to be limited to the optimum practice, method
or act to the exclusion of all others, but rather to be acceptable practices,
methods or acts generally accepted in the general geographic location of the
Facility.


 


“RECs”
means Renewable Energy Certificates.


 


“Renewable Energy Certificates” means any credits, credit
certificates or similar environmental or “green” energy attributes such as
those for greenhouse gas reduction, or the generation of green power or
renewable energy, created by any governmental agency and/or independent
certification board or group generally recognized in the electric power
generation industry, and generated by or associated with the Facility, but
specifically excluding any and all state and federal production tax credits,
investment tax credits and any other tax credits which are or will be generated
by the Facility.


 


“Requirement of Law” means any federal, state, provincial and
local law, statute, regulation, rule, code or ordinance enacted, adopted,
issued or promulgated by any federal, state, provincial, local or other
governmental authority or regulatory body (including those pertaining to
electrical, building, zoning, environmental and occupational safety and health
requirements).


 


“Scheduled Commercial Operation Date” means March 31, 2007,
except that the Scheduled Commercial Operation Date shall be extended to the
extent necessary to compensate for any delay in the occurrence of the
Commercial Operation Date caused by (a) a Force Majeure event or (b) an
act, error or omission of Buyer.


 


“Seller Credit Support” means the Initial Seller LC or any
replacement credit support provided by Seller pursuant to Article 9, as
such Initial Seller LC or replacement credit support is reduced or increased
pursuant to Article 9.


 


“Seller Electricity Index” shall mean the ***** used to calculate the Seller Exposure Amount pursuant to Schedule D
attached hereto.  An example of the Seller
Electricity Index is included as Schedule D attached hereto.


 


“Seller Exposure Amount” means, at any given time, the amount
determined in accordance with Part II of Schedule D attached hereto.  A sample calculation of the Seller Exposure
Amount is also set forth in Part II of Schedule D.


 


“S&P”
means Standard and Poor’s Corporation.


 


“Specified Authorizations” means, collectively: (i) authorization
from FERC to make wholesale sales of energy, capacity and ancillary services at
market-based rates pursuant to Section 205 of the Federal Power Act; and (ii) authorization
from the United States Department


 


7

















 


of
Energy to transmit electric energy from the United States to Canada pursuant to
Section 202(e) of the Federal Power Act.


 


“Specified Notices” mean, collectively, the following notices to
FERC: (i) a Notice of Self-Certification of Exempt Wholesale Generator
Status; and (ii) a Notice of Self-Certification of Status as a Qualifying
Small Power Production Facility.


 


“System” means the electric transmission system owned by MPS, or
its successor, and administered by the ISA, or its successor.


 


“Terminating Party” means the party, subject to Section 5.2(a) or
5.2(b), that declares an event of early termination upon either an Event of
Default or an Event of Termination.  In
the case of an Event of Default, the Non-Defaulting Party is the Terminating
Party.  In the case of an Event of
Termination with a single Affected Party, the Non-Affected Party is the Terminating
Party.  In the case of an Event of
Termination with two Affected Parties, either Party may be the Terminating
Party.


 


“Threshold Amount” means USD $*****.


 


“Transaction Documents” means, collectively, the Agreement, the
Assignment Agreement, the Buyer Credit Support and the Seller Credit Support.


 


“Turbines” means the General Electric 1.5 MW wind turbine
generators at the Facility.


 


“UCC” means the Uniform Commercial Code as in effect in the
State of New York.


 


“Unsatisfactory” means, with respect to any Person, a credit
rating (i.e., the rating assigned to an entity’s unsecured,
senior long-term debt obligations) below Investment Grade, or a lack of credit
rating for such Person by S&P or Moody’s.


 


1.1             Other
Defined Terms. The
following terms shall have the meanings defined for such terms in the Sections
set forth below:


 


	
  Defined Term

  	
   

  	
  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Alternate”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Assignment
  Agreement”

  	
   

  	
  2.1(d)

  	
   

  
	
  “Authorized
  Representative”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Bankruptcy
  Code”

  	
   

  	
  13.5(a)

  	
   

  
	
  “Baseline
  Buyer Credit Support Amount”

  	
   

  	
  9.0(b)

  	
   

  
	
  “Baseline
  Seller Credit Support Amount”

  	
   

  	
  9.0(a)

  	
   

  
	
  “Buyer”

  	
   

  	
  Preamble

  	
   

  
	
  “Canadian
  Bankruptcy Act”

  	
   

  	
  13.5(b)

  	
   

  
	
  “Closing”

  	
   

  	
  2.2

  	
   

  
	
  “Confidential
  Business Information”

  	
   

  	
  10.0

  	
   

  
	
  “Daily
  Production Schedule”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Delivery
  Costs”

  	
   

  	
  3.4

  	
   

  
	
  “Delivered
  Electricity Price”

  	
   

  	
  3.2

  	
   

  



 


8

















 


	
  “Effective Date”

  	
   

  	
  2.3

  	
   

  
	
  “Event of Default”

  	
   

  	
  5.0

  	
   

  
	
  “Initial Buyer LC”

  	
   

  	
  9.0(b)

  	
   

  
	
  “Initial Seller LC”

  	
   

  	
  9.0(a)

  	
   

  
	
  “Liabilities”

  	
   

  	
  8.1(a)

  	
   

  
	
  “Minimum Delivered Electricity Amount”

  	
   

  	
  3.5(a)

  	
   

  
	
  “Operating Procedures”

  	
   

  	
  3.15

  	
   

  
	
  “Scheduling Deadline”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Scheduling Fee”

  	
   

  	
  3.8

  	
   

  
	
  “Seller”

  	
   

  	
  Preamble

  	
   

  
	
  “Term”

  	
   

  	
  2.3

  	
   

  
	
  “Termination Amount”

  	
   

  	
  5.2(c)

  	
   

  
	
  “Transmission Curtailment Event”

  	
   

  	
  8.4

  	
   

  



 


1.2           Rules of Construction. Unless the context otherwise requires:


 


(a)           Words
singular and plural in number shall be deemed to include the other and pronouns
having masculine or feminine gender shall be deemed to include the other.


 


(b)           Any
reference in this Agreement to any Person includes its successors and assigns
and, in the case of any government authority, any Person succeeding to its
functions and capacities.


 


(c)           Unless
otherwise indicated, any reference in this Agreement to any Article, Section,
Schedule or Exhibit means and refers to the Article or Section contained
in, or Scheduled or Exhibit attached to, this Agreement.


 


(d)           Other
grammatical forms of defined words or phrases have corresponding meanings.


 


(e)           Unless
otherwise indicated, a reference to a document or agreement, including this
Agreement, includes a reference to that document or agreement as novated,
amended, supplemented or restated from time to time.


 


(f)            Unless
otherwise indicated, a reference to a Requirement of Law includes a reference
to that Requirement of Law as amended, modified, supplemented, extended or
restated from time to time.


 


(g)           The
terms “include,” “includes” and “including” shall be deemed to be followed by
the words “without limitation.”


 


(h)           The
words “hereof,” “herein,” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.


 


9

















 


ARTICLE 2.


 


CONDITIONS PRECEDENT; TERM


 


2.0           Conditions Precedent of Buyer. Buyer’s
obligations under this Agreement shall be conditioned upon the satisfaction, at
the Closing, of each of the following conditions:


 


(a)           Agreement.  Buyer shall have received this Agreement,
executed and delivered by one or more duly authorized officers of Seller;


 


(b)           Closing Certificate.  Buyer shall have received a closing
certificate, executed and delivered by one or more duly authorized officers of
Seller, certifying that all representations and warranties made by Seller in
the Transaction Documents are true and correct in all material respects on and
as of the date hereof, except for representations and warranties expressly
stated to relate to a specific earlier date, in which case such representations
and warranties were true and correct in all material respects as of such
earlier date; and


 


(c)           Initial Seller LC.  The Initial Seller LC in substantially the
form of Exhibit B hereto shall have been issued to the Buyer.


 


Seller shall use commercially
reasonable efforts to cause the conditions described in this Section 2.0
to be satisfied as promptly as practicable and in no event later than five (5) Business
Days after the date of this Agreement.


 


2.1           Conditions Precedent of
Seller. Seller’s obligations under this Agreement shall be
conditioned upon the satisfaction, at the Closing, of each of the following
conditions:


 


(a)             Agreement.  Seller shall have received this Agreement,
executed and delivered by one or more duly authorized officers of Buyer;


 


(b)             Closing
Certificate.  Seller shall have received
a closing certificate, executed and delivered by one or more duly authorized
officers of Buyer, certifying that all representations and warranties of Buyer
made in the Transaction Documents are true and correct in all material respects
on and as of the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects
as of such earlier date;


 


(c)             Initial Buyer LC.  The Initial Buyer LC in substantially the
form of Exhibit C hereto shall have been issued to the Seller;


 


(d)             Assignment
Agreement.  One or more duly
authorized officers of Buyer shall have executed and delivered an assignment
agreement in favor of Seller, substantially in the form of Exhibit D
hereto, pursuant to which Buyer assigns to Seller certain transmission rights
over the transmission facilities that NBSO controls (the “Assignment
Agreement”);


 


(e)             Filings,
Registrations and Recordings.  The
Seller shall ensure that each document (including, without limitation, any UCC
financing statement or PPSA financing statement) required by the Assignment
Agreement or otherwise reasonably requested by the Seller to be filed,
registered or recorded in order to create in favor of the Seller a perfected
security interest on the collateral described therein, prior and superior in
right to any other Person, shall be in proper form for filing, registration or
recordation;


 


10

















 


(f)            Legal Opinion.  Buyer
shall have delivered to Seller a customary opinion of counsel relating, among
other things, to the enforceability of the security interests created pursuant
to the Assignment Agreement, and otherwise in a form reasonably acceptable to
Seller and its counsel; and


 


(g)           Notice to NBSO.  At
the time of Closing, Buyer shall have provided the NBSO with a copy of the
executed Assignment Agreement and shall have received an acknowledgement from
the NBSO of its receipt of the Assignment Agreement and its concurrence with
its terms.  Buyer shall have provided
such acknowledgement to Seller, in such form as shall be reasonably requested
by Seller.


 


Buyer shall use commercially
reasonable efforts to cause the conditions described in this Section 2.1
(other than subsection (e) hereof) to be satisfied as promptly as
practicable and in no event later than five (5) Business Days after the
date of this Agreement.


 


2.2           Closing. The closing of the transactions
contemplated by this Agreement (the “Closing”) shall be held on the
Effective Date.


 


2.3           Term. The term of this Agreement
(the “Term”) shall begin on the date (the “Effective Date”) upon which the parties shall have
caused (or waived) the conditions precedent in Sections 2.0 and 2.1 to be
satisfied and shall, unless sooner terminated as provided herein, end at 11:59 p.m.
on December 31, 2011.  The
termination of this Agreement shall be without prejudice to all rights and
obligations of the parties accrued under this Agreement prior to such
termination.  Notwithstanding the
foregoing or anything to the contrary set forth herein, the terms and
conditions of Section 2.0, Section 2.1, the first sentence of Section 9.0(a) and
the first sentence of Section 9.0(b), in each case, shall become fully
effective and binding on the parties (as applicable) on the date of this
Agreement.


 


2.4           Commercial Operation Date. Seller shall
take all commercially reasonable steps to ensure that the Commercial Operation
Date is no later than the Scheduled Commercial Operation Date.  If the Commercial Operation Date does not
occur until after the Scheduled Commercial Operation Date, the Seller shall pay
to Buyer Construction Delay Damages for each day that the Commercial Operation
Date is delayed beyond the Scheduled Commercial Operation Date.  In no event will the aggregate amount of
Construction Delay Damages paid by the Seller to Buyer exceed ***** dollars (US$*****).  In the event that the Commercial Operation
Date does not occur by the COD Deadline, Buyer shall be entitled to terminate
this Agreement by giving Seller prior written notice of ten (10) Business
Days.  Payment of Construction Delay
Damages shall be Buyer’s sole and exclusive remedy for any failure to achieve
the Commercial Operation Date by the Scheduled Commercial Operation Date, and
the right to terminate (as set forth in this Section 2.4) shall be Buyer’s
sole and exclusive remedy for any failure to achieve the Commercial Operation
Date by the COD Deadline.  THE
PARTIES AGREE THAT BUYER MAY BE SUBSTANTIALLY DAMAGED IN AMOUNTS THAT MAY BE
DIFFICULT OR IMPOSSIBLE TO DETERMINE IN THE EVENT THAT SELLER FAILS TO ACHIEVE
THE COMMERCIAL OPERATION DATE BY THE SCHEDULED COMMERCIAL OPERATION DATE.
THEREFORE, THE PARTIES HAVE AGREED ON SUMS THAT THE PARTIES AGREE ARE
REASONABLE AS LIQUIDATED DAMAGES FOR THE DAMAGE IDENTIFIED IN THE PRECEDING


 


11

















 


SENTENCE,
AND IT IS FURTHER UNDERSTOOD AND AGREED THAT PAYMENT OF SUCH SUMS IS IN LIEU OF
ACTUAL DAMAGES FOR SUCH FAILURE. SELLER HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY DEFENSE AS TO THE VALIDITY OF ANY LIQUIDATED DAMAGES IN
THIS AGREEMENT ON THE GROUNDS THAT SUCH LIQUIDATED DAMAGES ARE VOID AS
PENALTIES.


 


ARTICLE 3.




PURCHASE OF ENERGY BY BUYER


 


3.0           Sale and Purchase
Obligations. Commencing on the Commercial Operation Date and for the
remainder of the Term and subject to the provisions hereof, Seller shall sell
and deliver, or cause to be delivered, and Buyer shall purchase and receive, or
cause to be received, all Delivered Electricity.  Buyer shall be under no obligation to
purchase any Delivered Electricity generated by means other than the Facility
(other than balancing power purchased by the Seller from the NBSO).


 


3.1           Deliveries. Delivery of all
energy sold and purchased hereunder shall be made at the Delivery Point.


 


3.2           Delivered Electricity Price. For all
Delivered Electricity delivered to the Delivery Point on and after the
Commercial Operation Date, Buyer shall pay the Seller a price for all Delivered
Electricity (and all balancing
power purchased by the Seller from the NBSO) (the “Delivered Electricity Price”). 
The Delivered Electricity Price is set forth in Schedule A
attached hereto.  Seller shall also pay
Buyer a Scheduling Fee as set forth in Section 3.8 below.


 


3.3           Test Energy Price. For all
Delivered Electricity delivered to the Delivery Point before the Commercial
Operation Date, the Buyer shall pay the Seller a price equal to the product of (a) ***** multiplied by (b) the
Keswick real-time LMP as determined by ISO-NE for the same hours.  Seller shall also pay Buyer a Scheduling Fee
as set forth in Section 3.8 below.


 


3.4           Delivery Costs. Buyer shall be
responsible for all transmission arrangements associated with moving Delivered
Electricity from the Delivery Point to the location where the Buyer ultimately
sells or transfers ownership of the Delivered Electricity, and Buyer shall be
responsible for all associated Delivery Costs. 
The term “Delivery Costs”
shall include actual tariff and related direct costs associated with moving
Delivered Electricity from the Delivery Point to the location where the Buyer
ultimately sells or transfers ownership of the Delivered Electricity.  The applicable tariffs and related costs
shall include, without limitation, the NBSO tariff, MEPCO tariff, ISO-NE
tariff, and Transenergie tariff (Quebec). 
The applicable tariff and related direct costs include, but are not
limited to, transmission tariff rates, losses, and ISA administrative charges,
but will not include administrative, labor, or other costs.  Delivery Costs shall not include MPS tariff
or ISA tariff costs which will be the responsibility of the Seller.  Delivery Costs shall not include energy
imbalance costs assessed by NBSO which will be the responsibility of the Seller.  Buyer shall document and record all Delivery
Costs and make available to Seller upon request.


 


12

















 


3.5             Delivery Minimum.


 


(a)           Beginning on the Commercial Operation Date, other
than for events of Force Majeure or Transmission Curtailment Events, in the
event the Delivered Electricity amount is less than the applicable volumes
shown in Schedule B (the “Minimum
Delivered Electricity Amount”) in any calendar quarter, Seller will reimburse Buyer
an amount equal to the product of the Deficient Electricity amount and the Deficient
Electricity Price.


 


(b)           Notwithstanding the above, the maximum aggregate
amount Seller shall reimburse Buyer for Deficient Electricity during any
calendar quarter shall be ***** dollars (US $*****).


 


(c)           Payment of the amounts set forth in this Section 3.5
shall be Buyer’s sole and exclusive remedy for any failure by Seller to produce
and deliver the Minimum Delivered Electricity Amount in any calendar quarter.  THE PARTIES AGREE THAT BUYER MAY BE SUBSTANTIALLY
DAMAGED IN AMOUNTS THAT MAY BE DIFFICULT OR IMPOSSIBLE TO DETERMINE IN THE
EVENT THAT SELLER FAILS TO DELIVER THE MINIMUM DELIVERED ELECTRICITY AMOUNT IN
ANY CALENDAR QUARTER. THEREFORE, THE PARTIES HAVE AGREED ON SUMS THAT THE
PARTIES AGREE ARE REASONABLE AS LIQUIDATED DAMAGES FOR THE DAMAGE IDENTIFIED IN
THE PRECEDING SENTENCE, AND IT IS FURTHER UNDERSTOOD AND AGREED THAT PAYMENT OF
SUCH SUMS IS IN LIEU OF ACTUAL DAMAGES FOR SUCH FAILURE. SELLER HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DEFENSE AS TO THE VALIDITY OF ANY
LIQUIDATED DAMAGES IN THIS AGREEMENT ON THE GROUNDS THAT SUCH LIQUIDATED
DAMAGES ARE VOID AS PENALTIES.


 


3.6             NERC Tags. Buyer agrees to
generate and/or transfer all NERC Tags necessary for and associated with the
delivery of the Delivered Electricity into ISO-NE. Any NERC Tags and associated
rights shall remain the property of the Seller at all times, and Seller shall
have the right to sell, assign or transfer such NERC Tags and associated rights
at Seller’s sole discretion.


 


3.7             Delivery to ISO-NE.


 


(a)           Buyer shall deliver any Delivered Electricity into
ISO-NE (unless otherwise directed by Seller and approved by Buyer), including
Delivered Electricity produced prior to the Commercial Operation Date.  If Buyer fails to deliver any Delivered
Electricity to ISO-NE for any reason (other than as a result of a Transmission
Curtailment Event), then Buyer shall indemnify and reimburse Seller for any
direct costs, damages and/or alternative compliance payments, including
electrical energy, REC and/or Capacity Value lost revenue.  Other than a Transmission Curtailment Event,
lack of available transmission capacity shall not excuse performance under this
Section.  Upon request, Seller shall provide
Buyer with a reasonable estimate (if prior to such non-delivery) or written
evidence (if subsequent to such non-delivery) of any damages, costs, payments,
credits, or lost electrical energy, REC and/or Capacity Value revenue to be
reimbursed hereunder.  Buyer shall
reimburse Seller for all such amounts in the Month following the non-delivery,
upon written request from Seller.


 


13

















 


(b)           Buyer shall ensure that
no other energy deliveries to ISO-NE scheduled by Buyer are treated under more
favorable terms.


 


3.8           Scheduling Fee.
The Buyer shall deduct from amounts otherwise due Seller hereunder an amount as
set forth in Schedule C for each MWh of Delivered Electricity (the “Scheduling
Fee”).  Subject to a pro rata
reduction in the case of a Force Majeure occurring during the applicable
calendar quarter, the Minimum Scheduling Fee for each calendar quarter of the
year will be US$*****.  Partial periods
will be pro-rated.  Notwithstanding the
foregoing, if a Transmission Curtailment Event precludes Buyer from delivering
Delivered Electricity through New Brunswick to ISO-NE, then for the duration of
the Transmission Curtailment Event, Buyer shall not be entitled to a Scheduling
Fee and the Minimum Scheduling Fee shall be reduced pro rata to reflect the
duration of the Transmission Curtailment Event(s) during the applicable
calendar quarter.


 


3.9           RECs. All RECs generated by the
Facility shall remain the property of the Seller and are specifically excluded
from the scope of Buyers’ purchase obligations hereunder.  Seller shall have the right to sell, assign
or transfer such RECs at Seller’s sole discretion.  Buyer agrees to use all commercially
reasonable efforts to assist Seller in demonstrating delivery of Delivered Electricity
to ISO-NE for the purpose of creating associated RECs, including, but not
limited to, producing relevant reports, certifications and releasing data.


 


3.10         Capacity Value. All Capacity Value available in
connection with the Facility shall remain the property of the Seller and is
specifically excluded from the scope of Buyer’s purchase obligations hereunder.  Seller shall have the right to sell, assign
or transfer such Capacity Value at Seller’s sole discretion.


 


3.11         Rates and Charges Not Subject to Review. The rates and
charges for services specified in this Agreement shall remain in effect for the
Term, and shall not be subject to change for any reason, including regulatory
review, absent agreement of the parties. 
Absent the agreement of both parties to any proposed change of rates,
the standard of review for changes to any section of this Agreement specifying
the rate(s) or other material economic terms and conditions agreed to by
the parties herein, whether proposed by a party, a non-party or FERC acting
sua sponte, shall be the “public interest” standard of review set forth in United
Gas Pipe Line Co., v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal
Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956).  The parties, for themselves and their
successors and assigns, (i) agree that this “public interest” standard
shall apply to any proposed changes in any other documents, instruments and
other agreements executed or entered into by the parties in connection with
this Agreement and (ii) hereby expressly and irrevocably waive any rights
they can or may have to the application of any other standard of review,
including the “just and reasonable” standard.


 


3.12         Costs and Charges. Seller shall be responsible for all costs
or charges imposed in connection with the delivery of Excess Electricity to the
Delivery Point, subject to Section 3.4. 
Buyer shall be responsible for all costs or charges imposed in
connection with the Delivered Electricity delivered under this Article 3
at and from the Delivery Point, subject to Section 3.4


 


14

















 


3.13       Title and Risk of Loss. Seller shall be
deemed to be in exclusive control of, and responsible for, any damage or injury
caused by, Delivered Electricity delivered under this Article 3 prior to
delivery at the Delivery Point; and Buyer shall be deemed to be in exclusive
control of, and responsible for, any damages or injury caused by, Delivered
Electricity delivered hereunder at and from the Delivery Point.  Seller shall have exclusive right, title and
interest in the Delivered Electricity sold to Buyer and warrants that it will
deliver Delivered Electricity to Buyer under this Article 3 free and clear
of all liens, claims and encumbrances.  Title
to and risk of loss of all Delivered Electricity delivered under this Article 3
shall transfer from Seller to Buyer upon delivery of the Delivered Electricity
to Buyer at the Delivery Point.


 


3.14       Standard of Operation. Seller shall
operate the Facility in accordance with (i) the applicable practices,
methods, acts, guidelines, standards and criteria of FERC and the ISA and any
successors to the functions thereof; (ii) all applicable Requirements of
Law; and (iii) Prudent Utility Practice. 
Seller will obtain all certifications, permits, licenses and approvals
necessary to construct, operate and maintain the Facility and to perform its
obligations under this Agreement during the Term.  Seller will be responsible for the
coordination and synchronization of the Facility’s equipment with the System,
and shall be solely responsible for any damage that may occur as a direct
result of Seller’s improper coordination or synchronization of such equipment
with the System.


 


3.15       Operating Procedures. The operating
procedures attached hereto as Exhibit A (the “Operating Procedures”)
establish the protocols under which the parties will perform their respective
obligations under this Agreement and include procedures concerning the
following: (1) the method of day-to-day communications; (2) the
method of providing output forecasts and scheduling, both day ahead and
intraday; (3) key personnel lists for Seller and Buyer; (4) Forced
Outage and Planned Outage reporting; (5) optimization for Seller of
Delivered Energy sales; and (6) assessing changes in the New Brunswick and
New England energy markets.  Buyer and
Seller agree to amend and update the Operating Procedures from time to time to
reflect the actual operation of the Facility.


 


15

















 


3.16           Outages.


 


(a)           Maintenance Outages.  If
during the Term Seller needs to schedule a Maintenance Outage of the Facility
which will effect more then *****
of the Nameplate Capacity Rating, Seller shall, at least 3 days prior to such
outage, notify Buyer of such proposed Maintenance Outage and the parties shall
plan such outage of capacity to mutually accommodate the reasonable
requirements of Seller and service obligations of Buyer.  Notice of a proposed Maintenance Outage shall
include the expected start date of the outage, the amount of capacity of the
Facility that will not be available and the expected completion date of the
outage, and shall be given to Buyer at the time the need for the Maintenance
Outage is determined by Seller.  Buyer
shall promptly respond to such notice and may request reasonable modifications
in the schedule for the outage.  Seller
shall use all reasonable commercial efforts to comply with such a request to
reschedule a Maintenance Outage.  Seller
shall notify Buyer of any subsequent changes in such capacity not available to
Buyer or any subsequent changes in such Maintenance Outage completion date.  As soon as practicable, any such
notifications given orally shall be confirmed in writing.


 


(b)           Planned Outages.  The
Buyer and Seller agree that Seller will use commercially reasonable efforts to
ensure that no Planned Outages occur between the dates of December 1st and February 28th during the Term.  Seller shall notify Buyer quarterly of its
Planned Outage schedule.


 


(c)           Forced Outages.  Seller
shall promptly provide to Buyer an oral report of a Forced Outage which has
effected more then ***** of the
Nameplate Capacity Rating of the Facility, which report shall include the
amount of the capacity of the Facility that will not be available because of
such Forced Outage and the expected return date of such capacity, and shall
update such report as necessary to advise Buyer of changed circumstances.  As soon as practicable, all such oral reports
shall be confirmed in writing.


 


3.17           Electricity Output
Communications. Seller will provide telemetering equipment and
facilities capable of transmitting the following information with respect to
the Facility to Buyer and to the control center of Buyer and will operate such
equipment when requested by Buyer:


 


(i)            Excess Electricity;
and


 


(ii)           Delivered Electricity.


 


3.18         Power.  All Delivered Electricity
delivered by Seller to the Delivery Point (a) shall be in the form of
three-phase alternating current having a nominal frequency of sixty cycles per
second and a harmonic content consistent with the requirements of the Institute
of Electrical and Electronic Engineers Standard No. 519 and a voltage content
consistent with guidelines with respect to the System, and (b) shall be in
material compliance with all requirements in the Interconnection Agreement.


 


3.19           Taxes. Seller shall be responsible
for all existing and any new sales, use, excise, ad valorem, and any other
similar taxes, imposed or levied by any federal, state, provincial or local
governmental agency on the Delivered Electricity sold and delivered under this Article 3


 


16

















 


before the delivery of such
Delivered Electricity to the Delivery Point. 
Buyer shall be responsible for all existing and any new sales, use,
excise, ad valorem, and any other similar taxes, imposed or levied by any
federal, state, provincial or local government agency on the Delivered
Electricity sold and delivered under this Article 3 upon and after the
delivery of such Delivered Electricity to the Delivery Point.  For the avoidance of doubt Buyer shall be
responsible for any harmonized sales tax and any goods and services tax.  Each party shall indemnify, release, defend
and hold harmless the other party from and against any and all liability for
taxes imposed or assessed by any taxing authority with respect to the Delivered
Electricity sold, delivered and received hereunder that are the responsibility
of the first party pursuant to this Section 3.19.


 


3.20           Exclusive Nature of
Agreement. The relationship between the Buyer and Seller with respect
to energy produced by the Facility for the Term of this Agreement is exclusive.  As long as Buyer is not in default of this
Agreement and as long as there is not a Force Majeure or Transmission
Curtailment Event that impacts a party’s ability to perform under this
Agreement, the Seller shall not sell or make energy available from the Facility
to any other Person (except for balancing power that is sold to the NBSO).  If Buyer is in default of this Agreement or
if there is a Force Majeure or Transmission Curtailment Event that impacts a
party’s ability to perform under this Agreement, Seller shall be entitled to
sell or make energy available from the Facility to any other Person.


 


ARTICLE 4.


 


REPRESENTATIONS AND WARRANTIES


 


4.0             Representations and
Warranties. As a material inducement to execution of this Agreement,
each party hereby represents and warrants to the other party that:


 


(a)           It is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation, and is qualified to conduct its business in all jurisdictions
necessary to perform its obligations hereunder;


 


(b)           The execution, delivery
and performance of this Agreement are within its powers, have been duly
authorized by all necessary action and do not violate any of the terms or
conditions in its governing documents or any agreement to which it is a party,
or any law, rule, regulation, order, writ, judgment, decree or other legal or
regulatory determination applicable to such party;


 


(c)           This Agreement
constitutes a legal, valid and binding obligation of such party, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws affecting creditor’s rights generally, and with
regard to equitable remedies, to the discretion of the court before which
proceedings to obtain same may be pending;


 


(d)           There are no
bankruptcy, insolvency, reorganization, receivership or other arrangement
proceedings pending or being contemplated by it, or to its knowledge threatened
against it;


 


17














 


(e)                                  To such party’s
knowledge, there are no actions, proceedings, judgments, rulings or orders,
issued by or pending before any court or other governmental body that would
materially adversely affect its ability to perform this Agreement; and


 


(f)                                    Except for the
Specified Authorizations and the Specified Notices in the case of Seller, no
consent, approval or authorization of, or registration, filing or declaration
with, any federal, provincial or state governmental authority or other
regulatory agency (which has not been received, waived or satisfied as of the
date hereof), as the case may be, or other person is required for the valid
execution and delivery by such party of this Agreement, the consummation by
such party of the transactions contemplated thereby or compliance by such party
with the terms and provisions thereof.


 


4.1                                 Specified Authorizations.
Seller will obtain, at its sole cost and expense, the Specified
Authorizations and issue the Specified Notices, in each case, on or before the
Commercial Operation Date. Upon procuring the Specified Authorizations and
providing the Specified Notices, Seller will promptly notify Buyer.


 


4.2                                 No Immunity. Buyer warrants and covenants that
with respect to its contractual obligations hereunder and performance thereof,
it will not claim immunity on the grounds of sovereignty or similar grounds
with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction
of any arbitral panel or court (including an arbitral panel or court located
outside the jurisdiction of its organization), (c) relief by way of
injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution
or enforcement of any judgment.


 


4.3                                 No Other Representations and
Warranties. Each party acknowledges that it has entered into this
Agreement in reliance upon only the representations and warranties set forth in
this Agreement, and that no other representations or warranties have been made
by the other party with respect to the subject matter hereof.


 


ARTICLE
5.


 


EVENTS
OF DEFAULT AND TERMINATION; REMEDIES AND EARLY TERMINATION


 


5.0                                 Events of Default. The following
occurrences shall constitute “Events
of Default” (except to the extent caused by a Force Majeure or a
Transmission Curtailment Event):


 


(a)                                  Failure by a party to
make any payment required hereunder or under any other Transaction Document
when due if such failure is not remedied within ten (10) Business Days
after receipt by the Defaulting Party of written notice of such failure,
provided that if the payment in question is the subject of a good faith
dispute, such payment may be paid into an independent
escrow account pursuant to Section 6.2 (pending resolution of such
dispute);


 


(b)                                 Failure by a party to
perform any other material obligation hereunder or under any other Transaction
Document and such failure is not remedied within thirty (30) days after receipt
by the Defaulting Party of written notice of such failure by the Non-Defaulting
Party; provided that, with written notice from such Defaulting Party such
thirty (30) day period shall be extended by an additional ninety (90) days as
shall be necessary for the Defaulting Party


 


18

















 


to
cure such failure and as long as (i) such default is subject to cure
within such additional period, (ii) the Defaulting Party commences such
cure within the thirty day period after receipt of the written notice by the
Non-Defaulting Party and is at all times thereafter diligently and continuously
proceeding to cure such failure and (iii) if the Buyer is the Defaulting
Party, the security interests granted pursuant to the Assignment Agreement
would not be impaired by such an extension;


 


(c)                                  Any representation or warranty made by a
party pursuant to Article 4 or in any other Transaction Document shall
have been false in any material respect when made;


 


(d)                                 The Buyer’s acts or omissions cause the
security interest created under the Assignment Agreement to cease to be
enforceable and of the same effect and priority purported to be created
thereunder;


 


(e)                                  A party:


 


(i)                                     commences a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other similar
law or consents to the filing of a petition to such effect or to the appointment
of or taking possession by a custodian, receiver or similar official of such
party of all or substantially all its property or assets, or admits in writing
its inability to pay its debts generally as they become due, or takes corporate
action in furtherance of any such action, or is the subject of an entry by a
court having jurisdiction of a decree or order for relief in an involuntary
case or proceeding under any such law or a decree or order making such an
appointment; or


 


(ii)                                  takes advantage of any law or governmental
regulation relating to bankruptcy or insolvency in any jurisdiction; or


 


(iii)                               has a receiver or receiver manager or a court
appointed official appointed for all or substantially all of its property or
assets; or


 


(iv)                              makes an assignment or attempted
assignment  for the benefit of its creditors, subject to
a party’s rights to make a permitted assignment pursuant to Section 7.0 or


 


(v)                                 institutes any proceedings for the cessation
of its business or corporate existence; or


 


(vi)                              consolidates, reorganizes, reincorporates or
reconstitutes into or as, amalgamates with, or merges into or with, or transfers substantially all of its assets to another entity and either


 


a.                                       the resulting or surviving entity fails to
assume all of such party’s obligations hereunder by operation of law or
pursuant to an agreement reasonably satisfactory to the other party; or


 


b.                                      the resulting or surviving entity’s
creditworthiness is, in the reasonable opinion of the Non-Defaulting Party,
materially weaker than that of the transferring entity immediately prior to
such action;


 


19

















 


(vii)                           has any governmental authority or other third
party seize, expropriate or confiscate all or a substantial part of its
property or assets.


 


5.1                                 Events of Termination. The following occurrence shall constitute an
Event of Termination: failure of either party to substantially perform its
obligations under this Agreement on account of Force Majeure for a period
exceeding 180 days.


 


5.2                                 Early Termination.


 


(a)                                  Upon the occurrence of, and during the
continuation of, an Event of Default, the Non-Defaulting Party (as the
Terminating Party) may terminate this Agreement by written notice to the other
party designating the date of early termination and delivered to the Defaulting
Party no less than ten (10) days before such early termination date.


 


(b)                                 Upon the occurrence of, and during the
continuation of, an Event of Termination,


 


(i)                                     Either


 


a.                                       in the event of one Affected Party, the
Non-Affected Party (as the Terminating Party), or


 


b.                                      in the event of two Affected Parties, either
party (as the Terminating Party), 


 


in either case, may terminate this Agreement by notice to the other
party designating the date of early termination and delivered to the other
party no less than ten (10) days before such early termination date.


 


(c)                                  In the event of an early termination of this
Agreement pursuant to Section 5.2(b), no Termination Amount shall be
payable by either party. In the event of an early termination of this Agreement
pursuant to Section 5.2(a), the applicable Terminating Party shall
calculate in good faith an amount (if any) to be received by it as a result of
the termination of this Agreement (the “Termination Amount”) equal to:


 


(i)                                     If the Buyer is the Terminating Party, the
then-applicable Buyer Exposure Amount plus any Costs
incurred by the Buyer; and


 


(ii)                                  If the Seller is the Terminating Party, the
then-applicable Seller Exposure Amount plus any  Costs incurred by the Seller.


 


(d)                                 The other Party shall pay the Terminating
Party an amount equal to the applicable Termination Amount, together with
interest at the Default Rate from the early termination date until the date of
payment. The Terminating Party shall calculate such amount as of the early termination
date or promptly thereafter, and promptly notify the other party of the
Termination Amount showing in reasonable detail how such amount was calculated.
The owing party shall pay the Terminating Party the required amount within 30
Business Days of notification of the Termination Amount. For the avoidance of
doubt, in the event of an early


 


20

















 


termination of this Agreement pursuant to
Section 5.2(a), the Defaulting Party shall not be entitled to receive any
Termination Amount.


 


(e)                                  In the event of an early termination of this
Agreement pursuant to Section 5.2(a), the Terminating Party may exercise
and enforce each and all of the rights and remedies available to it under this
Agreement and, in accordance with Article 9, the applicable Credit Support provided by the other party. In addition, in the event of an early termination of this Agreement
pursuant to Section 5.2(a), if the Terminating Party is the Seller, Seller
may exercise and enforce, in any order, (i) each and all of the rights and
remedies available to a secured party under the UCC, the PPSA or other
applicable law and (ii) each and all of the rights and remedies available
to it under the Assignment Agreement.


 


(f)                                    In the event of a termination of this
Agreement, the parties’ respective obligations under this Agreement shall
terminate (other than those obligations which expressly are to be
performed after termination or which survive termination pursuant to
Section 5.3 hereof).


 


(g)                                 (i) In the event of a termination of this Agreement, each party shall pay to the other all
amounts due the other under this Agreement for all periods prior to
termination.


 


(ii)                                  The amounts due pursuant to subsection
(i) shall be paid within thirty (30) days of the billing date for such
charges plus interest thereon from the date of early termination until the date
paid. Interest shall be calculated at,


 


a.                                       in the case of an Event of Default, the
Default Rate, or


 


b.                                      in the case of an Event of Termination, the
Interest Rate


 


(iii)                               The amounts payable under this
Section 5.2 shall constitute the only amounts due upon the termination of
this Agreement by either party, and no party shall be required to pay any
amounts upon termination in excess of the amounts specified in this
Section 5.2. The right to terminate this Agreement and recover the amounts
and exercise the rights specified in this Section 5.2 shall constitute the
sole and exclusive remedies of the parties in the event of an early termination
of this Agreement as a result of an Event of Default or Event of Termination.


 


(h)                                 THE PARTIES AGREE THAT THE
NON-DEFAULTING PARTY MAY BE SUBSTANTIALLY DAMAGED IN AMOUNTS THAT MAY BE
DIFFICULT OR IMPOSSIBLE TO DETERMINE IN THE EVENT THAT THIS AGREEMENT IS
TERMINATED AS A RESULT OF AN EVENT OF DEFAULT PRIOR TO THE END OF THE SCHEDULED
TERM. THEREFORE, THROUGH THE CALCULATION OF THE TERMINATION AMOUNT AS SET FORTH
HEREIN, THE PARTIES HAVE AGREED ON SUMS THAT THE PARTIES AGREE ARE REASONABLE
AS LIQUIDATED DAMAGES FOR THE DAMAGE IDENTIFIED IN THE PRECEDING SENTENCE, AND
IT IS FURTHER UNDERSTOOD AND AGREED THAT PAYMENT OF SUCH SUMS IS IN LIEU OF
ACTUAL DAMAGES FOR SUCH FAILURE. EACH PARTY HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY DEFENSE AS TO THE VALIDITY OF ANY TERMINATION
AMOUNT IN THIS


 


21

















 


AGREEMENT ON THE GROUNDS THAT SUCH
LIQUIDATED DAMAGES ARE VOID AS PENALTIES.


 


5.3                                 Survival.  The expiration or termination of this Agreement shall be without
prejudice to all rights and obligations of the parties accrued under this
Agreement prior to the date of such expiration or termination. The provisions
of Sections 3.12, 3.19, 4.2, 4.3, 5.2, 6.2, 6.3, 6.4, 6.5, 8.1, 8.2, 8.3, 8.4,
9.1(f) and Articles 10, 12 and 13 shall survive the termination of this
Agreement.


 


ARTICLE
6.


 


BILLING
AND PAYMENT; RECORDS


 


6.0                                 Billing and Payment. Each Month during the Term, Buyer shall send
to Seller a statement setting forth the total amount due for Delivered
Electricity delivered to Buyer during the immediately preceding Month, the
quantity of Delivered Electricity that was delivered to Buyer during such
Month, and any other amounts due to Seller or to Buyer under this Agreement. In
the event that Buyer fails to send Seller such a statement in any given Month,
Seller shall be entitled to prepare such statement and deliver it to Buyer.
Payments pursuant to invoices due from either party shall be due on or before
the latter of the twentieth (20th) day of each Month, or tenth (10th) day after
receipt of the invoice or, if such day is not a Business Day, then on the next
Business Day. Payment shall be made by wire transfer to the other party’s
account.


 


6.1                                 Interest on Late Payments. Amounts not paid when due shall accrue
interest from, and including, the due date to, and excluding, the date of
payment at the Default Rate.


 


6.2                                 Disputed Amounts. If either party, in good faith, disputes any
amount due pursuant to a statement rendered hereunder, such party shall (i) notify
the other party of the specific basis for the dispute, (ii) pay that
portion of the statement that is undisputed on or before the due date and (iii) pay
into an independent escrow account (in accordance with escrow arrangements
reasonably acceptable to the parties) the portion of the statement in dispute,
pending resolution of such dispute. Any dispute notice shall be provided within
one year of the date of the invoice in which the error first occurred. If any
amount disputed by such party is determined to be due the other party through
arbitration in accordance with Section 12.1, or if the parties resolve the
payment dispute, the amount due shall be paid out of escrow within five (5) days
of such determination or resolution, along with interest accrued at the Default
Rate from the date due until the date paid.


 


6.3                                 Records. Each party shall keep and maintain all
records as may be necessary or useful in performing or verifying any
calculations made pursuant to this Agreement, or in verifying such party’s
performance hereunder. All such records shall be retained by each party for at
least three calendar years following the calendar year in which such records
were created.


 


6.4                                 Currency. All amounts set forth in this Agreement are
denominated in US dollars, and all payments under this Agreement shall be made
in US dollars.


 


22

















 


6.5                                 Audit.


 


(a)                                  Each party, through
an internationally-recognized accounting firm (reasonably acceptable to the
other party), shall have the right, at its sole expense and during normal
business hours, to examine and copy the records of the other party to the
extent reasonably necessary to verify the accuracy of any statement, charge or
computation made hereunder or to verify the other party’s performance of its
obligations hereunder. Upon request, each party shall provide to the other
party statements evidencing the quantities of energy delivered at the Delivery
Point and delivered to ISO-NE (or other Market Delivery Point). If any
statement is found to be inaccurate, a corrected statement shall be issued and
any amount due thereunder will be promptly paid and shall bear interest
calculated at the Default Rate from the date of the overpayment or underpayment
to the date of receipt of the reconciling payment. Notwithstanding the above,
no adjustment shall be made with respect to any statement or payment hereunder
unless a party questions the accuracy of such payment or statement within one
year after the date of such statement or payment.


 


(b)                                 In addition, Seller
will provide to Buyer from time to time the following information with respect
to the Facility:


 


(i)                                     The manufacturers’
guidelines and recommendations for maintenance of the Facility equipment;


 


(ii)                                  A report
summarizing the results of maintenance performed during each Planned Outage and
any Forced Outage, and upon request of Buyer any of the technical data obtained
in connection with such maintenance; and


 


(iii)                               From the start of
construction of the Facility but before the Commercial Operation Date, a
monthly progress report stating the percentage completion of the Facility and a
brief summary of construction activity during the prior Month.


 


(iv)                              A report
summarizing the operating results from the Facility.


 


(v)                                 A report detailing
the upcoming Maintenance and Planned Outages.


 


(c)                                  Upon reasonable
prior notice (in light of the circumstances) and subject to the safety rules and
regulations of Seller, Seller will provide Buyer and its authorized agents,
employees and inspectors with reasonable access to the Premises and the
Facility: (i) for the purpose of reading or testing metering equipment, (ii) in
connection with the operation and maintenance of the Interconnection
Facilities, (iii) to provide tours of the Facility to customers and other
guests of Buyer, and (iv) for other reasonable purposes at the reasonable
request of Buyer.


 


23

















 


ARTICLE
7.


 


ASSIGNMENT;
BINDING EFFECT


 


7.0                                 Assignment.


 


(a)                                  Neither party shall
assign this Agreement or any of its rights or obligations hereunder without the
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Seller may,
without the consent of Buyer, assign this Agreement or the accounts, revenues
or proceeds hereof in connection with any financing or other financial
arrangements in accordance with subsection (b) below.


 


(b)                                 Seller may assign,
pledge or mortgage its rights hereunder for security of any indebtedness and (i) upon
giving notice to the Buyer of such assignment, pledge or mortgage, (A) the
assignee, pledgee or mortgagee shall be entitled to exercise all rights and
remedies it may have with respect to this Agreement without the further consent
of the Buyer, to receive a copy of any notice given by the Buyer or the Seller
pursuant to the terms hereof, and to deliver any notice permitted under this
Agreement on the Seller’s behalf, and (B) the Buyer shall be entitled to
assume the due authority of the assignee, pledgee or mortgagee in taking any
action or authorizing any notice without the necessity of independently
reviewing the assignment, pledge, mortgage, or other security instrument
delivered by the Seller to the assignee, pledgee or mortgagee and to accept
performance by the assignee, pledgee or mortgagee of any duty or obligation of
the Seller hereunder, and (ii) upon giving the Buyer a copy of a trustee’s
deed, deed in lieu of foreclosure, or other instrument pursuant to which the
assignee, pledgee, mortgagee, or other party acquires legal title to this
Agreement, (A) the assignee, pledgee, mortgagee, or other party shall
assume the Seller’s duties and obligations hereunder, provided that the
liability of any such assignee, pledgee or mortgagee under this Agreement
following such assumption shall be limited to its interests under the
Agreement, and (B) Buyer shall accept the assignee, pledgee, mortgagee, or
other party as the successor to the Seller under the Agreement. At the request
of Seller, Buyer agrees to execute and deliver a consent in a form reasonably
acceptable to the party(ies) providing financing to the Seller.


 


7.1                                 Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective successors and
permitted assigns.


 


ARTICLE
8.


 


FORCE
MAJEURE; INDEMNITY; LIMITATION OF LIABILITY


 


8.0                                 Force Majeure. If either party
is rendered unable by Force Majeure to carry out, in whole or in part, its
obligations under this Agreement, then, during the pendency of such event of
Force Majeure, but for no longer period, the obligations of the Affected Party
(other than the obligation to make payments hereunder when due) shall be
suspended to the extent required. The Affected Party shall (a) endeavor to
give the other Party oral notice as soon as reasonably practicable following
such event of Force Majeure and, in any case, give the other Party written
notice within 48 hours of the commencement of the Force Majeure event, with
details to be


 


24

















 


supplied within 3 Business Days after the commencement of the Force
Majeure event further describing the particulars of the occurrence of the Force
Majeure event, and (b) take all reasonable steps to remedy the cause of
the Force Majeure with all reasonable dispatch; provided, however, that this
provision shall not require Seller to deliver, or Buyer to receive, Delivered
Electricity at points other than the Delivery Point. Notwithstanding the
foregoing, in no event will any Force Majeure event extend this Agreement
beyond its Term.


 


8.1                                 Indemnification.


 


(a)                                  Each party shall
indemnify and hold harmless the other party and its officers, directors, agents
and employees from and against any and all claims, demands, actions, losses,
liabilities, expenses (including reasonable legal fees and expenses), suits and
proceedings of any nature whatsoever for personal injury, death or property
damage to each other’s property or facilities or personal injury, death or
property damage to third parties (collectively “Liabilities”) caused by the breach or gross negligence
or willful misconduct of the indemnifying party that arise out of or are in any
manner connected with the performance of this Agreement except to the extent
such injury or damage is attributable to the gross negligence or willful
misconduct or breach of this Agreement by the party seeking indemnification
hereunder.


 


(b)                                 Without limiting the
foregoing, Buyer shall indemnify Seller from all Liabilities related to
Delivered Electricity once sold and delivered to Buyer at the Delivery Point
and Seller shall indemnify Buyer for all Liabilities related to Delivered
Electricity prior to its delivery by Seller at the Delivery Point.


 


(c)                                  Any fines, penalties
or other costs incurred by either party or such party’s agents, employees or
subcontractors for non-compliance by such party, its agents, employees or
subcontractors with the Requirements of Law will not be reimbursed by the other
party but will be the sole responsibility of such non-complying party.


 


8.2                                 Limitations of Remedies,
Liability and Damages. The parties agree that the remedies
and measures of damages provided in this Agreement satisfy the essential
purposes hereof and, where this Agreement expressly provides for an exclusive
remedy in favor of any party for breach, default or failure to perform
hereunder, such remedy shall constitute the sole and exclusive remedy of the
non-breaching party for the liabilities of such breaching party arising out of
or in connection with this Agreement, notwithstanding any remedy otherwise available
at law or in equity. If no measure of damages or other remedy is expressly
provided herein, the obligor’s liability shall be limited to direct actual
damages only, which direct actual damages shall be the sole and exclusive
remedy and all other remedies or damages at law or in equity are waived. Except
where this Agreement provides for an exclusive remedy, neither party shall be
liable for consequential, incidental, punitive, exemplary or indirect damages,
lost profits or other business interruption damages, whether such damages are
allowed or provided by statute, in tort, under this Agreement, under any indemnity provision or otherwise.


 


8.3                                 Duty to Mitigate. Each party
agrees that it has a duty to mitigate damages and covenants that it will use
commercially reasonable efforts to minimize any damages it may incur as a
result of the other party’s default or non-performance of this Agreement.


 


25

















 


8.4                                 Interruption. MPS, ISA, NBSO, or MEPCO may physically interrupt
or curtail the physical flow of energy from the Facility to the Delivery Point or from the Delivery Point to
Market Delivery Point (individually a “Transmission Curtailment Event”),
provided, however, that a
Transmission Curtailment Event shall not be deemed to occur (a) with
respect to the flow of energy between the Facility and the Delivery Point if
the interruption or curtailment arose from or was attributable to Seller’s
acts, errors or omissions, and (b) with respect to the flow of energy
between the Delivery Point and the Market Delivery Point if the interruption or curtailment arose from or was
attributable to Buyer’s acts, errors or omissions. Each Party shall use
commercially reasonable efforts to limit the negative impact of any such
Transmission Curtailment Event on the other Party. The Parties shall convene a
meeting within 5 Business Days to review their actions. In the event any such
Transmission Curtailment Event presents an opportunity to maximize the value of
sales of Delivered Electricity, each party shall use commercially reasonable
efforts to take advantage of any such opportunity.


 


ARTICLE 9.


 


FINANCIAL ASSURANCES


 


9.0                                 Credit Support.


 


(a)                                  On or before the date that is five (5) Business
Days after the date of this Agreement, Seller shall provide to Buyer or arrange
for the provision of, in the form of Exhibit B, an irrevocable letter of
credit from an Acceptable Financial Institution (the “Initial Seller LC”) in an amount equal to $***** (the “Baseline Seller Credit
Support Amount”). The Baseline
Seller Credit Support Amount assumes an amount of Costs equal to $***** but is based on a Buyer Exposure Amount equal to zero (0). Except as
otherwise provided in this Article 9, Seller shall maintain or arrange for
the maintenance of the Initial Seller LC in effect for the remainder of the
Term, provided that at any time Seller may replace or cause to be replaced the
Initial Seller LC (or any subsequent Seller Credit Support) with (i) cash,
(ii) a replacement irrevocable letter of credit from an Acceptable
Financial Institution in substantially the form of the Initial Seller LC, (iii) a
guarantee from a Creditworthy Affiliate in form and substance reasonably
satisfactory to Buyer, or (iv) some combination of the foregoing, in each
case, for a value equivalent to the Seller Credit Support being replaced.


 


(b)                                 On or before the date that is five (5) Business
Days after the date of this Agreement, Buyer shall provide to Seller, in the
form of Exhibit C, an irrevocable letter of credit from an Acceptable
Financial Institution (the “Initial Buyer LC”) in an amount equal to $***** (the “Baseline Buyer Credit Support Amount”). The Baseline Buyer Credit Support Amount
assumes an amount of Costs equal to $***** but is based on a
Seller Exposure Amount equal to zero (0). Except as otherwise provided in this Article 9,
Buyer shall maintain the Initial Buyer LC in effect for the remainder of the
Term, provided that at any time Buyer may replace the Initial Buyer LC (or any
subsequent Buyer Credit Support) with (i) cash, (ii) a replacement
irrevocable letter of credit from an Acceptable Financial Institution in
substantially the form of the Initial Buyer LC, (iii) a guarantee from a
Creditworthy Affiliate in form and substance reasonably satisfactory to Seller,
or (iv) some combination of the foregoing, in each case, for a value
equivalent to the Buyer Credit Support being replaced.


 


26














 


(c)           The Credit Support posted or caused to be
posted by a party may be drawn by the other party if the party posting the
Credit Support has (i) failed to pay any undisputed amounts due under this
Agreement (or failed to pay disputed amounts into an independent escrow account
as required by Section 6.2, pending resolution of the dispute) within ten (10) days
after such amounts are due or (ii) failed to pay any amount disputed and
found to be due under Article 12 within ten (10) days after such
party’s receipt of notice resolving such dispute. If the Credit Support posted
or caused to be posted by either party is drawn pursuant to this Section 9.0(c),
the party posting or causing the posting of such Credit Support shall have the
obligation to replenish or arrange the replenishment of the Credit Support to
the amount required pursuant to Section 9.1 within ten (10) days
after receipt of notice that the Credit Support has been drawn.


 


(d)           In the event that the Credit Support posted
or caused to be posted by a party is in the form of a letter of credit, such
letter of credit may be drawn by the beneficiary if such letter of credit is
due to expire within thirty (30) days and the
party providing such letter of credit has failed to deliver or cause to be
delivered to the other party an extended or replacement letter of credit (or
alternative replacement Credit Support in the form specified in Sections 9.0(a) or
9.0(b), as the case may be) meeting the requirements of this Agreement. In the
event that the Credit Support posted or caused to be posted by a party is drawn
pursuant to this Section 9.0(d), the party drawing on such Credit Support
shall hold such amounts in trust as cash collateral and may use such cash
collateral, or any portion thereof, for the purposes described in Section 9.0(c);
provided, however, that if the other party shall thereafter replace or cause to
be replaced such cash collateral with replacement Credit Support meeting the
requirements of this Agreement, the party holding such cash collateral shall
return the cash collateral, or any remaining portion thereof, to the other
party as soon as practicable.


 


9.1           Increases or Reductions in Credit Support.


 


(a)           On each Credit Support Calculation Date, each
party shall review (i) the credit rating of the other party (if any), and (ii) the
amount of the Credit Support posted by the other party as compared to the
applicable Exposure Amount as of such Credit Support Calculation Date.


 


(b)           If on any Credit Support Calculation Date,
Buyer determines, acting reasonably, Seller’s creditworthiness to be
Unsatisfactory, then Buyer may continue to require that Seller Credit Support
be provided, and Seller agrees to provide such Seller Credit Support, in an
amount equal to the applicable Baseline Seller Credit Support Amount plus the applicable
Buyer Exposure Amount. If on any Credit Support Calculation Date, Seller
determines, acting reasonably, Buyer’s creditworthiness to be Unsatisfactory,
then Seller may continue to require that Buyer Credit Support be provided, and
Buyer agrees to provide such Buyer Credit Support, in an amount equal to the
Baseline Buyer Credit Support Amount plus the applicable Seller Exposure Amount.
However, if either party’s credit rating is determined to be Investment Grade,
then the other party shall return any undrawn Credit Support to such party
within five (5) Business Days after such determination.


 


(c)           If on any Credit Support Calculation Date, (i) the
sum of the applicable Baseline Seller Credit Support Amount plus the applicable
Buyer Exposure Amount is greater


 


27

















 


than the amount of Seller Credit Support and
the amount of such difference exceeds the Threshold Amount, then Buyer may by
written notice require that, within five (5) Business Days, Seller
increase the amount of Seller Credit Support provided, and Seller agrees to
provide such increased Seller Credit Support, by the amount the applicable
Baseline Seller Credit Support Amount plus
the applicable Buyer
Exposure Amount exceeds the amount of Seller Credit Support then-posted. Any
incremental Seller Credit Support required from Seller may be in the form of (i) cash,
(ii) an irrevocable letter of credit from an Acceptable Financial
Institution in substantially the
form of the Initial Seller LC, (iii) a guarantee from a Creditworthy
Affiliate in form and substance reasonably satisfactory to Buyer, or (iv) some
combination of the foregoing, in each case, for a value equivalent to the
Seller Credit Support being provided. Alternatively, if on any Credit Support
Calculation Date, the sum of the applicable Baseline Seller Credit Support
Amount plus the
applicable Buyer Exposure Amount is less than the amount of Seller Credit
Support (by more than the Threshold Amount), then Seller shall be entitled to
reduce the amount of Seller Credit Support provided by the amount such Seller
Credit Support exceeds the sum of the applicable Baseline Seller Credit Support
Amount plus the
applicable Buyer Exposure Amount, and Buyer shall cooperate with Seller as
necessary to return or modify the undrawn Seller Credit Support no longer
required within five (5) Business Days.


 


(d)           If on any Credit Support Calculation Date, (i) the sum of the
applicable Baseline Buyer Credit Support Amount plus
the applicable Seller
Exposure Amount is greater than the amount of Buyer Credit Support and the
amount of such difference exceeds the Threshold Amount, then Seller may by
written notice require that, within five (5) Business Days, Buyer increase
the amount of Buyer Credit Support provided, and Buyer agrees to provide such
increased Buyer Credit Support, by the amount the applicable Baseline Buyer
Credit Support Amount plus the applicable Seller Exposure Amount exceeds
the amount of Buyer Credit Support then-posted. Any incremental Buyer Credit
Support required from Buyer may be in the form of (i) cash, (ii) an
irrevocable letter of credit from an Acceptable Financial Institution in
substantially the form of the Initial Buyer LC, (iii) a guarantee from a
Creditworthy Affiliate in form and substance reasonably satisfactory to Seller,
or (iv) some combination of the foregoing, in each case, for a value
equivalent to the Buyer Credit Support being provided. Alternatively, if on any
Credit Support Calculation Date, the sum of the applicable Baseline Buyer
Credit Support Amount plus the applicable Seller Exposure Amount is less
than the amount of Buyer Credit Support (by more than the Threshold Amount),
then Buyer shall be entitled to reduce the amount of Buyer Credit Support provided
by the amount such Buyer Credit Support exceeds the sum of the applicable
Baseline Buyer Credit Support Amount plus the applicable Seller Exposure Amount, and
Seller shall cooperate with Buyer  as necessary  to return or modify the undrawn  Buyer Credit Support no longer required within five (5) Business Days.


 


(e)           If at any time, the credit rating of a financial institution providing
Credit Support in the form of a letter of credit no longer qualifies as an
Acceptable Financial Institution or the credit rating of an Affiliate providing
Credit Support in the form of a guarantee no longer qualifies as a Creditworthy
Affiliate, then in either case the party posting such Credit Support shall
provide replacement Credit Support in the form specified in Sections 9.0(a) or
9.0(b), as the case may be.


 


(f)            Each party shall return to the other party,
as applicable, any undrawn Credit Support on or before the date that is the
later of (i) thirty (30) days after the date of


 


28

















 


termination
of this Agreement, and (ii) five (5) Business Days after the date on
which the party providing the Credit Support has paid the other party all
amounts owed to such party under this Agreement.


 


ARTICLE 10.


 


CONFIDENTIALITY


 


10.0         Confidentiality.  The parties agree that the
parties’ proposals and negotiations prior to the date hereof concerning this Agreement, the terms of this Agreement, and the actual charges billed to
Buyer or Seller under this Agreement, constitute the confidential business
information (“Confidential Business Information”) of both parties. Except as set forth herein,
Seller and Buyer each agree to hold such Confidential Business Information
wholly confidential. Such Confidential Business Information may only be used by
the parties for purposes related to the approval, administration or enforcement
of this Agreement and for no other purpose.


 


Each party agrees not to disclose
Confidential Business Information to any other person (other than its
Affiliates, counsel, consultants, lenders (including prospective lenders),
equity investors (including potential equity investors), employees, officers
and directors), without the prior written consent of the other party, provided
that either party may disclose Confidential Business Information, if such
disclosure is required by law or pursuant to an order of a court or regulatory
agency or in order to enforce this Agreement or to seek approval of this
Agreement. In the event a party is required by law or by a court or regulatory agency
to disclose Confidential Business Information, such party shall to the extent
possible notify the other party at least three (3) Business Days in
advance of such disclosure.


 


Each party agrees that violation of the terms
of Article 10 constitutes irreparable harm to the other, and that the
harmed party may seek any and all remedies available to it at law or in equity,
including but not limited to injunctive relief.


 


ARTICLE 11.


 


NOTICES AND ADDRESS FOR PAYMENT


 


11.0         Notices.  All notices, requests, statements or payments shall be made
to the addresses set out below. Notices required to be in writing shall be
delivered by letter, facsimile or other documentary form. Notice by facsimile
or hand delivery shall be deemed to have been received by the close of the
Business Day during which the notice is received or hand delivered. Notice by
overnight mail or courier shall be deemed to have been received upon delivery
as evidenced by the delivery receipt. A party may change its address by
providing notice of same in accordance herewith:


 


	
  To Buyer:

  	
   

  	
  515 King Street

  
	
   

  	
   

  	
  P. O. Box 2040

  
	
   

  	
   

  	
  Fredericton, New Brunswick

  
	
   

  	
   

  	
  Canada

  
	
   

  	
   

  	
  E3B 5G4

  
	
   

  	
   

  	
  Attn: Rick McGivney

  



 


29

















 


	
  to Seller:

  	
   

  	
  Evergreen Wind Power, LLC

  
	
   

  	
   

  	
  c/o UPC Wind Management, LLC

  
	
   

  	
   

  	
  100 Wells Ave., Suite 201

  
	
   

  	
   

  	
  Newton, MA 02459

  



 


(a)           All
amounts due Seller under this Agreement must be sent via United States mail to
the address specified below:


 


	
   

  	
   

  	
  Evergreen Wind Power, LLC

  
	
   

  	
   

  	
  c/o UPC Wind Management, LLC

  
	
   

  	
   

  	
  100 Wells Ave., Suite 201

  
	
   

  	
   

  	
  Newton, MA 02459

  



 


or (ii) wire transfer to the following Account:


 


	
   

  	
   

  	
  Maine Wind Partners, LLC

  
	
   

  	
   

  	
  Bank of America

  
	
   

  	
   

  	
  ABA:

  	
  026 009 593

  
	
   

  	
   

  	
  Account:

  	
  0046 0490 2995

  



 


(b)           All
amounts due Buyer under this Agreement must be sent via United States mail to
the address specified below:


 


	
   

  	
   

  	
  515 King Street

  
	
   

  	
   

  	
  P. O. Box 2040

  
	
   

  	
   

  	
  Fredericton, New Brunswick

  
	
   

  	
   

  	
  Canada

  
	
   

  	
   

  	
  E3B 5G4

  
	
   

  	
   

  	
  Attn: Rick McGivney

  



 


or (ii) wire transfer to the following Account:


 


	
   

  	
   

  	
  DESTINATION:

  	
  CHASUS33

  
	
   

  	
   

  	
  (IBK)

  	
  JP Morgan Chase

  
	
   

  	
   

  	
   

  	
  NEW YORK, NY

  
	
   

  	
   

  	
   

  	
  ABA 021000021

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PAY TO BANK:

  	
  ROYCCAT2

  
	
   

  	
   

  	
  (BBK)

  	
  ROYAL BANK OF

  
	
   

  	
   

  	
   

  	
  CANADA

  
	
   

  	
   

  	
   

  	
  TORONTO, ONTARIO

  
	
   

  	
   

  	
   

  	
  UID 055253

  



 


30

















 


	
   

  	
   

  	
  BENEFICIARY:

  	
  00884 4001178

  
	
   

  	
   

  	
  (BNF)

  	
  NEW BRUNSWICK

  
	
   

  	
   

  	
   

  	
  POWER

  
	
   

  	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  	
  ATTENTION:

  
	
   

  	
   

  	
   

  	
  GENERATION

  



 


(c)           The
address or addressee to which notices or invoices shall be mailed may be
changed from time to time by either party by notice served as hereinabove
provided.


 


ARTICLE 12.


 


DISAGREEMENTS


 


12.0         Negotiations.  The
parties shall attempt in good faith to resolve all disputes arising out of or
related to or in connection with this Agreement promptly by negotiation, as
follows. Any party may give the other party written notice of any dispute not
resolved in the normal course of business. Executives of both parties at levels
one level above the personnel who have previously been involved in the dispute
shall meet at a mutually acceptable time and place within ten (10) days
after delivery of such notice, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the
dispute. If the matter has not been resolved within thirty (30) days from the
referral of the dispute to senior executives, or if no meeting of senior
executives has taken place within fifteen (15) days after such referral, either
party may initiate arbitration as provided hereinafter. All negotiations
pursuant to this clause are confidential.


 


12.1         Arbitration.


 


(a)           If the negotiation
process provided for in Section 12.0 has not resolved the dispute, the
dispute shall be decided by binding arbitration in the City of New York, New
York in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (except as expressly provided otherwise herein). The
arbitration shall be governed by the United States Arbitration Act (9 U.S.C. §
1 et  seq.), and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
This agreement to arbitrate and any other agreement or consent to arbitrate
entered into in accordance herewith will be specifically enforceable under the
prevailing arbitration law of any court having jurisdiction. Notice of demand
for arbitration must be filed in writing with the other party to this
Agreement. The demand must be made within a reasonable time after dispute has
arisen. In no event may the demand for arbitration be made if the institution
of legal or equitable proceedings based on such dispute is barred by the applicable
statute of limitations. Any arbitration may be consolidated with any other
arbitration proceedings between the parties commenced under this Section 12.1.
The results of the arbitration shall be binding, and the award of the
arbitrator shall be specifically enforceable in a court of competent
jurisdiction.


 


31

















 


(b)           Either party may commence the arbitration by giving to the other
written notice in sufficient detail of the existence and nature of any dispute
proposed to be arbitrated. The parties shall attempt to agree on a person with
respect to the matter at issue to serve as arbitrator. If the parties cannot
agree on an arbitrator within ten (10) days of such notice, each shall
then appoint one individual to serve as an arbitrator within 30 days of such
notice and the two (2) thus appointed shall select a third arbitrator to
serve as chairman of the panel of arbitrators; and such three (3) arbitrators
shall determine all matters by majority vote; provided however, if the two (2) arbitrators
appointed by the parties are unable to agree upon the appointment of the third
arbitrator within ten (10) days after their appointment, both shall give
written notice of such failure to agree to the parties, and, if the parties
fail to agree upon the selection of such third arbitrator within five (5) days
of such notice, then either of the parties upon written notice to the other may
require such appointment from, and pursuant to the rules of, the American
Arbitration Association for commercial arbitration. Any arbitrator appointed
shall be a present or former executive of an electric utility, or private power
company, or an attorney, in each case with substantial experience in electric
power purchase agreements. Prior to appointment, each arbitrator shall agree to
conduct such arbitration in accordance with the terms of this Agreement.


 


(c)           The parties shall have sixty (60) calendar days after appointment of
all arbitrators to perform discovery and present evidence and argument to the
arbitrators. During that period, the arbitrators shall be available to receive
and consider all such evidence as is relevant and, within reasonable limits due
to the restricted time period, to hear as much argument as is feasible, giving
a fair allocation of time to each party to the arbitration. The arbitrators
shall use all reasonable means to expedite discovery and to sanction
noncompliance with reasonable discovery requests or any discovery order. The
arbitrators shall not consider any evidence or argument not presented during
such period and shall not extend such period except by the written consent of
both parties. At the conclusion of such period, the arbitrators shall have
forty-five (45) calendar days to reach a determination.


 


(d)           The arbitrators shall have the right only to interpret and apply the
terms and conditions of this Agreement and to order any remedy allowed by this
Agreement, but may not change any term or condition of this Agreement, deprive
either party of any right or remedy expressly provided hereunder, or provide
any right or remedy that has been excluded hereunder.


 


(e)           The arbitrators shall give a written decision to the parties stating
their findings of fact, conclusions of law and order, and shall furnish to each
party a copy thereof signed by them within five (5) calendar days from the
date of their determination. Each party shall pay the cost of the arbitrator or
arbitrators, with respect to those issues as to which they do not prevail, as
determined by the arbitrator or arbitrators.


 


12.2         Settlement
Discussions.  The
parties agree that no statements of position or offers of settlement made in
the course of the dispute process described in this Article 12 above will
be offered into evidence for any purpose in any litigation or arbitration
between the parties, nor will any such statements or offers of settlement be
used in any manner against either party in any such litigation or arbitration.
Further, no such statements or offers of settlement shall constitute an admission
or waiver of rights by either party in connection with any such litigation


 


32

















 


or arbitration. At the request of either party, any such statements and
offers of settlement, and all copies thereof, shall be promptly returned to the
party providing the same.


 


12.3         Preliminary Injunctive
Relief.  Nothing in this Article 12 shall preclude,
or be construed to preclude, the resort by either party to a court of competent
jurisdiction solely for the purposes of securing a temporary or preliminary
injunction to preserve the status quo or avoid irreparable harm pending
arbitration pursuant to this Article 12.


 


12.4         Confidential Proceedings.  The
fact that either party has invoked the provisions of this Article 12, the
arbitration proceedings and related communications, and the decision of the
arbitrators shall all be considered Confidential Business Information subject
to Article 10 hereof, and the arbitrators shall make no disclosure of any
confidential information that would not be permitted by a party under Article 10.


 


12.5         Submission to Jurisdiction.  Each
party hereby irrevocably consents to the non-exclusive jurisdiction of the
United States District Court of the Southern District of New York and the
courts of New York State sitting in the Borough of Manhattan in New York City,
in each case, for any action or proceeding filed by the other party (a) to
enforce any award or decision of any arbitration panel duly appointed under
this Agreement to resolve any dispute between the parties, and (b) regarding
any matter or issue that an arbitration panel declines to hear, and each party
waives any objection which it may now or hereafter have regarding the choice of
such forum, whether based on personal jurisdiction, venue, forum non conveniens
or on any other grounds. Buyer and Seller irrevocably consent to the service of
process outside of the territorial jurisdiction of such courts by mailing
copies thereof
by registered or certified mail, postage prepaid, to Buyer’s or Seller’s,
as the case may be, last known address as shown in this Agreement with the same
effect as if such party were a resident of the State of New York and had been
lawfully served in such State. Nothing in this Agreement shall affect the right
to service of process in any other manner permitted by law. THE PARTIES HEREBY
WAIVE ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY CONTROVERSY, DISPUTE OR
CLAIM UNDER THIS AGREEMENT.


 


ARTICLE 13.


 


MISCELLANEOUS


 


13.0         Entirety.  This
Agreement and the Schedules and Exhibits hereto constitute the entire agreement
between the parties and supersede any prior or contemporaneous agreements or
representations of the parties affecting the same subject matter.


 


13.1         Choice of Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any principles of conflicts of law
other than Section 5-1401 of the New York General  Obligations
Law.


 


13.2         Non-Waiver.  No
waiver by either party hereto of any one or more defaults by the other party in
the performance of any of the provisions of this Agreement shall be construed
as a waiver of any other default or defaults whether of a like kind or
different nature.


 


33

















 


13.3         Headings; Attachments.  The headings used for the
sections and articles herein are for convenience and reference purposes only
and shall in no way affect the meaning or interpretation of the provisions of
this Agreement. Any and all attachments referred to in this Agreement are, by
such reference, incorporated herein and made a part hereof for all purposes.


 


13.4         Counterparts.  This Agreement may be executed in
two counterparts, each of which is an original and all of which constitute one
and the same instrument.


 


13.5         Forward Contract.


 


(a)           Without limiting the applicability of any other provision of Title 11
of the United States Code (as amended, the “Bankruptcy Code”),
the Parties acknowledge and agree that (i) this Agreement constitutes a “forward
contract” as defined in Section 101 (25) of the Bankruptcy Code; (ii) Purchaser
and Seller are “forward contract merchants” within the meaning of Section 101
(26) of the Bankruptcy Code; (iii) that the rights of the Parties under
the termination provisions of this Agreement will constitute contractual rights
to liquidate transactions hereunder; (iv) that any payment related thereto
will constitute a “settlement payment” as defined in Section 101 (51A) of
the Bankruptcy Code; and (v) that the Parties are entitled to the rights
under, and protections afforded by, Sections 362, 546, 556, and 560 of the
Bankruptcy Code.


 


(b)           Without limiting the applicability of any other provision of the
Bankruptcy and Insolvency Act (Canada) (as amended, the “Canadian Bankruptcy Act”), the Parties acknowledge and agree that (i) this Agreement
constitutes an “eligible financial contract” as defined in Section 65.1(8) of
the Canadian Bankruptcy Act; (ii) that the rights of the Parties under the
termination provisions of this Agreement may be used to calculate the net
termination value within the meaning of Section 65.1(8) of the
Canadian Bankruptcy Act; and (iii) that the Parties are entitled to the
rights under, and protections afforded by Section 65.1 of the Canadian
Bankruptcy Act.


 


13.6         Other.  This Agreement (i) shall not be altered
or amended except by an instrument in writing executed by authorized
representatives of the parties; (ii) does not confer any rights upon any
person other than the parties and their respective successors and permitted
assigns; and (iii) may be performed by Seller through the use of agents
and subcontractors (but such use  shall not relieve Seller of any obligation hereunder). Any provision of
this Agreement which is prohibited or unenforceable in a specific situation in
any jurisdiction shall not affect the validity or enforceability of (a) that
provision in another situation or in any other jurisdiction, or (b) the
other provisions of this Agreement if such other provisions could then continue
to conform with the purposes of this Agreement and the terms and requirements
of applicable law. The parties shall execute and deliver all documents and
perform all further acts that may be reasonably necessary to effectuate the
provisions of this Agreement.


 


* * Signature Page to Follow * *


 


34

















 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set out above. This Agreement shall not become effective as to either party
unless and until executed  by both parties.


 


 


	
   

  	
   

  	
  EVERGREEN WIND POWER,

  
	
   

  	
   

  	
  LLC, as SELLER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul Gaynor

  
	
   

  	
   

  	
  Name:

  	
  PAUL GAYNOR

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NEW BRUNSWICK POWER

  
	
   

  	
   

  	
  GENERATION CORPORATION,

  
	
   

  	
   

  	
  as BUYER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daryl Bishop

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael Gorman

  
	
   

  	
   

  	
  Name:

  	
  MICHAEL GORMAN

  
	
   

  	
   

  	
  Title:

  	
  VP.—Legal

  
							



 


Signature
Page to Energy Management Services Agreement


 














 


SCHEDULE A


 


DELIVERED ELECTRICITY PRICE


 


	
  Delivery Year

  	
   

  	
  Delivered Electricity Price (US$ /MWh)

  	
   

  
	
  2006

  	
   

  	
  *****

  	
   

  
	
  2007

  	
   

  	
  *****

  	
   

  
	
  2008

  	
   

  	
  *****

  	
   

  
	
  2009

  	
   

  	
  *****

  	
   

  
	
  2010

  	
   

  	
  *****

  	
   

  
	
  2011

  	
   

  	
  *****

  	
   

  



 

















 


SCHEDULE B


 


MINIMUM
DELIVERED ELECTRICITY AMOUNT


 


	
  Calendar Quarter

  	
   

  	
  Minimum Delivered Electricity Amount

  	
   

  
	
  January-March

  	
   

  	
  *****
  MWh

  	
   

  
	
  April-June

  	
   

  	
  *****
  MWh

  	
   

  
	
  July-September

  	
   

  	
  *****
  MWh

  	
   

  
	
  October-December

  	
   

  	
  *****
  MWh

  	
   

  
	
  Annual Total

  	
   

  	
  *****
  MWh

  	
   

  



 

















 


SCHEDULE C


 


SCHEDULING FEE


 


	
  Delivery Year

  	
   

  	
  Scheduling Fee (US$ /MWh)

  	
   

  
	
  2006

  	
   

  	
  *****

  	
   

  
	
  2007

  	
   

  	
  *****

  	
   

  
	
  2008

  	
   

  	
  *****

  	
   

  
	
  2009

  	
   

  	
  *****

  	
   

  
	
  2010

  	
   

  	
  *****

  	
   

  
	
  2011

  	
   

  	
  *****

  	
   

  



 

















 


SCHEDULE D


 


EXPOSURE AMOUNT CALCULATION


 


Part I


 


Determination of the Buyer Exposure Amount


 


The
Buyer Exposure Amount shall be calculated as the product of (a) the difference
between the ***** starting in the second quarter of calendar year 2007 and for
the remainder of the Term. The resulting amount shall be rounded upwards for
any fractional amount to the next $10,000. If the Buyer Exposure Amount is
determined to be a negative number, the Buyer Exposure Amount shall be deemed
to be zero (0).


 


Sample Calculation of the Buyer Exposure
Amount


 


For
example, if there are eight calendar quarters remaining in the Term, and the
Initial Mass Hub Index and the current Mass Hub Index are:


 


	
   

  	
   

  	
   

  	
   

  	
  A

  	
   

  	
   

  	
   

  	
  B

  	
   

  	
  B–A

  	
   

  	
   

  	
   

  
	
  Quarter

  	
   

  	
  Initial

  Mass Hub

  Index

  ($ /MWh)

  	
   

  	
  Initial

  Mass Hub

  Index less

  *****%

  ($ /MWh)

  	
   

  	
  Current

  Mass Hub

  Index

  ($ /MWh)

  	
   

  	
  Buyer

  Electricity

  Index

  ($ /MWh)

  	
   

  	
  Difference

  ($ /MWh)

  	
   

  	
  Minimum

  Delivered

  Electricity

  Amount

  (MWh)

  	
   

  
	
  Q110

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q210

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q310

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q410

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q111

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q211

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q311

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q411

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  



 


Then the Buyer Exposure Amount
shall be calculated as:


 


(***** * *****) + (***** * *****)
+ (***** * *****) + (***** * *****) + (***** * *****) + (***** * *****) + (*****
* *****) + (***** * *****) = US$*****,


 


which is then rounded to US$*****.


 

















 


Part II


 


Determination of Seller Exposure Amount


 


The Seller Exposure Amount shall be calculated as the product of (a) the
difference between *****
starting in the second quarter of calendar year 2007 and for the remainder of
the Term. The resulting amount shall be rounded upwards for any fractional
amount to the next $10,000. If the Seller Exposure Amount is determined to be a
negative number, the Seller Exposure Amount shall be deemed to be zero (0).


 


Sample Calculation of the Seller Exposure Amount


 


For example, if there are eight calendar quarters remaining in the
Term, and the current Mass Hub Index is:


 


	
   

  	
   

  	
  C

  	
   

  	
   

  	
   

  	
  D

  	
   

  	
  C-D

  	
   

  	
   

  	
   

  
	
  Quarter

  	
   

  	
  Delivered

  Electricity

  Price

  ($/MWh)

  	
   

  	
  Current

  Mass Hub

  Index

  ($/MWh)

  	
   

  	
  Seller

  Electricity

  Index

  ($/MWh)

  	
   

  	
  Difference

  ($/MWh)

  	
   

  	
  Minimum

  Delivered

  Electricity

  Amount

  (MWh)

  	
   

  
	
  Q110

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q210

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q310

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q410

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q111

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q211

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q311

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Q411

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  



 


Then the Seller Exposure Amount shall be calculated as:


 


(***** * *****) + (***** * *****) + (***** * *****) + (***** * *****) +
(***** * *****) + (***** * *****) + (***** * *****) + (***** * *****) =
US$*****,


 


which is then rounded to US$*****


 

















 


SCHEDULE E


 


INITIAL MASS HUB INDEX


 


	
  Calendar Quarter

  	
   

  	
  Price (US$/MWh)

  	
   

  
	
  Q207

  	
   

  	
  *****

  	
   

  
	
  Q307

  	
   

  	
  *****

  	
   

  
	
  Q407

  	
   

  	
  *****

  	
   

  
	
  Q108

  	
   

  	
  *****

  	
   

  
	
  Q208

  	
   

  	
  *****

  	
   

  
	
  Q308

  	
   

  	
  *****

  	
   

  
	
  Q408

  	
   

  	
  *****

  	
   

  
	
  Q109

  	
   

  	
  *****

  	
   

  
	
  Q209

  	
   

  	
  *****

  	
   

  
	
  Q309

  	
   

  	
  *****

  	
   

  
	
  Q409

  	
   

  	
  *****

  	
   

  
	
  Q110

  	
   

  	
  *****

  	
   

  
	
  Q210

  	
   

  	
  *****

  	
   

  
	
  Q310

  	
   

  	
  *****

  	
   

  
	
  Q410

  	
   

  	
  *****

  	
   

  
	
  Q111

  	
   

  	
  *****

  	
   

  
	
  Q211

  	
   

  	
  *****

  	
   

  
	
  Q311

  	
   

  	
  *****

  	
   

  
	
  Q411

  	
   

  	
  *****

  	
   

  



 


For the remainder of the Term, when
calculating exposure amounts, quarterly prices shall be determined by the
hourly-weighted average of daily prices, if available, or if daily prices are
not available, monthly prices, in either case of both peak and off-peak
mid-market prices as appropriate. Mid-market prices shall be the arithmetic
average of offer and bid prices. For example, if the appropriate
broker-provided prices are:


 


	
  Month

  	
   

  	
  Peak/Off-

  Peak

  	
   

  	
  Hours in

  Period

  	
   

  	
  Bid Price

  ($/MWh)

  	
   

  	
  Offer Price

  ($/MWh)

  	
   

  	
  Mid-Price

  ($/MWh)

  	
   

  
	
  January

  	
   

  	
  Peak

  	
   

  	
  336

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  January

  	
   

  	
  Off-Peak

  	
   

  	
  408

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  February

  	
   

  	
  Peak

  	
   

  	
  320

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  February

  	
   

  	
  Off-Peak

  	
   

  	
  352

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  March

  	
   

  	
  Peak

  	
   

  	
  368

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  March

  	
   

  	
  Off-Peak

  	
   

  	
  376

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
  Total Hours

  	
   

  	
  2160

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Then
the price to be used for this quarter shall be calculated as: *****


 

















 


EXHIBIT A


 


OPERATING PROCEDURES


 


1.                                       For
each Day during the Term, Seller shall advise Buyer in writing by fax or
electronic mail or internet posting of the anticipated Delivered Electricity by
the Facility for each hour of each such Day based upon the Seller’s good faith
estimates (the “Daily Production
Schedule”) on or before 10:00 o’clock a.m. Atlantic Prevailing
Time on the day preceding such Day. The Seller authorizes the Buyer to schedule
transmission service with transmission providers (either utilizing the firm
transmission capacity reserved by the Buyer, or, if such capacity has not been
reserved or is insufficient, interruptible transmission service obtained by the
Buyer) between the Delivery Point and the Market Delivery Point and to re-sell
the Delivered Electricity purchased under this Agreement into ISO-NE at the
Market Delivery Point based on the Seller’s Daily Production Schedules.


 


2.                                       The
Seller may request changes to a Daily Production Schedule after it is delivered
to the Buyer. Provided such request is made at least 120 minutes prior to the
deadline for the Buyer to adjust its nominations and schedules with
transmission providers, ISO-NE and other system operators based on the then
prevailing market rules, policies, tariffs, procedures and protocols of such
entities (the “Scheduling Deadline”),
the Buyer will revise such nominations and schedules in accordance with the
Seller’s request and the Daily Production Schedule shall be adjusted
accordingly.


 


3.                                       If
the Seller’s request to change its Daily Production Schedule is made less than
90 minutes prior to the Scheduling Deadline, the Buyer will use reasonable
efforts in the circumstances to adjust its nominations and schedules with
Transmission Providers, ISO-NE and other system operators and if it is able to
do so, the Daily Production Schedule shall be adjusted accordingly


 


4.                                       Authorized Representatives. As a means of
securing effective cooperation and interchanges of information and of providing
consultation on a prompt and orderly basis between the parties in connection
with various administrative, commercial and technical issues which may arise
during the performance of this Agreement, the Operating Procedures also provide
that both parties appoint an authorized representative (with respect to each
party, the “Authorized Representative”)
and may appoint an alternate (with respect to each party, the “Alternate”) to act in its
Authorized Representative’s absence. The Authorized Representatives and
Alternates shall be managers well-experienced with regard to matters relating
to the implementation of the parties’ rights and obligations under this
Agreement with full authority to act for and on behalf of the parties
appointing them. Each party will notify the other in writing of its Authorized
Representative and Alternate and these appointments will remain in full force
and effect until written notice of substitution is delivered to the other
party.


 

















 


The
Authorized Representatives (and/or the Alternates) shall meet on a regular
basis, but no more frequently than semi-annually during the Term. Such meetings
may be conducted in person or via telephone or other electronic means, as the
Parties may agree. During these meetings, the Parties shall specifically
discuss any changes in the New Brunswick and New England energy markets that
may impact the calculation of damages and costs payable under Section 3.7
of this Agreement in the case of a non-delivery of Delivered Electricity into
1SO-NE.


 


5.                                       Scheduling and Settlement.


 


a.                             Since the scheduling of energy is required by
NBSO, ISA, MPS, NBP, MEPCO, Transenergie (Quebec), and ISO-NE, (i) the
Seller will provide to the Buyer a forecast, day ahead and at regular intraday
intervals pursuant to these Operating Procedures, as well as provide metering
information pursuant to Article 3 of this Agreement, (ii) each
party shall designate Authorized Representatives to communicate hereunder with
regard to scheduling and related matters, and (iii) Buyer will be
responsible for arranging for the scheduling of Delivered Electricity to be
sold and delivered. The Buyer will schedule the Delivered Electricity pursuant
to the tariff, market rules and the operating procedures of each transmission
provider(s)/administrator(s) and/or market administrator(s), as applicable.
Each party shall comply with the applicable operating policies, criteria and/or
guidelines of FERC and any regional or subregional reliability council.


 


b.                            Buyer shall indemnify and make whole Seller
for any increased costs or loss of revenue, including but not limited to
imbalancing costs incurred by Seller or loss of electrical energy, REC and/or
Capacity Value revenue caused by Buyer’s scheduling errors.


 


c.                             Buyer shall use commercially reasonable
efforts to transfer any and all ISO-NE settlement account data or other data
necessary to create RECs in the NEPOOL GIS system for the Seller’s account for
all Delivered Electricity delivered to ISO-NE. From time to time, a third party
may be necessary to transfer such settlement account data or other data. At
Seller’s reasonable request, Buyer shall enter into an agreement with such
third party in order to create RECs in the NEPOOL GIS system for the Seller’s
account for all Delivered Electricity delivered to ISO-NE. During the Term,
Buyer agrees to take any further reasonable action involving ISO-NE or the
NEPOOL GIS or otherwise to ensure that the entire amount of RECs which Seller receives or is credited (or
should receive or be credited)
through generation at the Facility and/or as owner of the Facility will be
deposited into Seller’s NEPOOL GIS account and, in no event, shall Buyer take
any action which would or could cause such RECs to be issued to any other party
or transferred to any account other than Seller’s account within the NEPOOL
GIS, except in accordance with the foregoing provisions of this paragraph.


 

















 


EXHIBIT B


 


FORM OF INITIAL SELLER LC


 

















 


230 Park Avenue

New York, New York 10169-0005

Telephone: (212) 407-6000

Telecopy: (212) 407-6133


 


	
  Irrevocable Standby Letter of Credit No.:

  	
   

  	
  [SB             ]

  	
   

  	
   

  
	
  Date of Issue:

  	
   

  	
  [        ,
  2006]

  
	
  Currency and Amount:

  	
   

  	
  [                  ]

  
	
  Expiration Date:

  	
   

  	
  [                  ]

  
	
  Place of Expiry:

  	
   

  	
  At our office

  



 


	
  BENEFICIARY: New Brunswick Power 

  Generation Corporation

  	
   

  	
  APPLICANT: UPC Wind Partners, LLC

  



 


Dear Madam or Sir:


 


We hereby establish for the account of UPC Wind
Partners, LLC, a Delaware limited liability company (“Applicant”), our
Irrevocable Standby Letter of Credit (this “Letter of Credit”) in your
favor for an amount of [USD $[           ]
([             
dollars,
United States currency). Applicant has advised us that this Letter of Credit is
issued in connection with that certain Energy Management Services Agreement
dated as of [              ,
2006]
by and among New Brunswick Power Generation Corporation, a corporation created
under the Business Corporations Act of New Brunswick (“Beneficiary”) and
Evergreen Wind Power, LLC, a Delaware limited liability company and
wholly-owned subsidiary of Applicant (as amended or restated from time to time,
the “Agreement”). This Letter of Credit (i) shall become effective
immediately for the term of one (1) year and shall expire at our counters
in New York on
[           , 2007] at
[               a.m./p.m.]
(the “Expiration Date”), and (ii) is subject to the following:


 


1.                                       Funds under this
Letter of Credit shall be made available to Beneficiary against its draft drawn
on us in the form of Annex I hereto, dated the date of presentation,
accompanied by (a) a certificate in the form of Annex 2 hereto,
appropriately completed and purporting to be signed by an authorized officer of
Beneficiary, and (b) the original of this Letter of Credit (the “Accompanying
Documents”) and presented at our office located at 230 Park Avenue, New
York, New York 10169, Attention: Loan Operations (or at any other office which
may be designated by us by written notice delivered to you). A presentation
under this Letter of Credit may be made only on a day, and during hours of 9:00
AM and 5:00 PM, New York time in which such office is open for business (a “Business
Day”). If we receive your draft and the Accompanying Documents at such
office on any Business Day, all in strict conformity with the terms and
conditions of this Letter of Credit, we will honor the same by making payment
in accordance with your payment instructions on the third succeeding Business
Day after presentation. If the amount of the drawing, together with all
previous drawings pursuant to this Letter of Credit, is less than the aggregate
amount of this Letter of Credit, we will return this Letter of Credit to you
with a notation of the remaining amount available hereunder.


 

















 


2.                                  Absent occurrence
of events (i), (ii) and (iii) of Clause 3 below, the Expiration Date
of this Letter of Credit may be extended without amendment for periods of one
(1) year from its present Expiration Date, or any future Expiration Date,
if Applicant provides us with a written request for renewal at least ninety
(90) days prior to any Expiration Date unless at least sixty (60) days prior to
any Expiration Date we send Applicant and you notice by registered mail, return
receipt requested, or courier service or hand delivery at your above address
that we elect not to consider the Expiration Date of this Letter of Credit
extended for any such additional period. In no event shall the Expiration Date
extend beyond [                 ].


 


3.                                  This Letter of
Credit terminates upon the earliest to occur of (i) our receipt of a
notice in the form of Annex 3 hereto purporting to be signed by an authorized
officer of Beneficiary, accompanied by this Letter of Credit for cancellation,
(ii) our honoring of one or more drafts presented hereunder in an
aggregate amount equal to the amount of this Letter of Credit, and
(iii) our close of business at our aforesaid office on the Expiration
Date, or if the Expiration Date is not a Business Day, then on the preceding
Business Day, this Letter of Credit shall be surrendered to us by you.


 


4.                                  This Letter of
Credit is not transferable and, except as otherwise expressly stated herein, is
subject to the Uniform Customs and Practice for Documentary Credits (1993
revision), International Chamber of Commerce Publication No. 500.


 


5.                                  This Letter of
Credit sets forth in full our undertaking, and such undertaking shall not in
any way be modified, amended, amplified, or limited by reference to any
document, instrument, or agreement referred to herein, except for Annexes 1, 2
and 3 hereto and the notices referred to herein; and any such reference shall
not be deemed to incorporate herein by reference any document, instrument, or
agreement except as provided in this paragraph 5.


 


6.                                  Communications with
respect to this Letter of Credit shall be in writing and shall be addressed to
us at the address referred to in paragraph 1 above, and shall specifically
refer to this Letter of Credit No. [SB              ].


 


Very truly yours,


HSH NORDBANK AG, NEW YORK BRANCH


 


 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title:

  



 














 


ANNEX 1


TO LETTER
OF CREDIT NO. [SB                  ]


 


Draft under Irrevocable Standby Letter of
Credit No. [SB                   ]
(“Letter of Credit”)


 


[ Month,
Day, Year ]


 


On [third business day next succeeding
date of presentation]


 


Pay  to New Brunswick Power Generation
Corporation, having its head office in the City of Fredrickton, New Brunswick,
Canada USD $                           
[not to exceed amount available to be drawn]


 


[insert any
wire instructions]


 


For value received and charge to account of
Letter of Credit No. [SB                      ]
of HSH Nordbank AG, New York Branch, 230 Park Avenue, New York, New York
10169-0005.


 


 


	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 

















 


ANNEX 2


TO LETTER
OF CREDIT NO. [SB                  ]


 


Drawing under Irrevocable Standby Letter of
Credit No. [SB                   ]


 


The undersigned, a duly authorized officer of New
Brunswick Power Generation Corporation (“Beneficiary”), hereby certifies
on behalf of Beneficiary to HSH Nordbank AG, New York Branch with reference to
the Irrevocable Standby Letter of Credit No. [SB               
] (the “Letter of Credit”) issued for the account of UPC Wind
Partners, LLC (“Applicant”), that:


 


1)                                     CHOOSE ONE


 


(a)                            pursuant to Section 9.0(c)(i) of
that certain Energy Management Services Agreement dated as of [              ,
2006] by and among Beneficiary and Evergreen Wind Power, LLC (“Evergreen”),
a wholly-owned subsidiary of Applicant (as amended or restated from time to
time, the “Agreement”), Beneficiary is entitled to draw under the Letter
of Credit due to the fact that Evergreen has failed to pay an undisputed amount
due under the Agreement within ten (10) days after such amount was due;


 


(b)                           pursuant to
Sections 6.2 and 9.0(c)(i) of the Agreement, Beneficiary is entitled to
draw under the Letter of Credit due to the fact that Evergreen has failed to
pay a disputed amount into an independent escrow account, pending resolution of
the dispute, within ten (10) days after such amount was due;


 


(c)                            pursuant to Section 9.0(c)(ii)
of the Agreement, Beneficiary is entitled to draw under the Letter of Credit
due to the fact that Evergreen has failed to pay an amount disputed and found
to be due under Article 12 of the Agreement within ten (10) days
after Evergreen’s receipt of notice resolving such dispute;


 


(d)                           pursuant to Section 9.0(d),
the Credit Support posted by Applicant is due to expire within thirty (30) days
and the Applicant has failed to deliver or cause to be delivered to Beneficiary
an alternative replacement Credit Support as specified in Sections 9.0(a) or
9.0(b); or


 


(e)                            the Expiration Date
of the Letter of Credit will occur no more than thirty (30) days after the date
of this certificate, and the Applicant has not provided a replacement letter of
credit in form and substance as required by the Agreement in an amount required
pursuant to the Agreement.


 


2)                                     by presenting this
certificate and the accompanying sight draft, Beneficiary is requesting that
payment in the amount of $                     
as specified on said draft, be made under the Letter of Credit by wire transfer
or deposit of funds into the account specified on said draft;


 

















 


3)                                     the amount specified on the sight draft
accompanying this certificate does not exceed the amount to which Beneficiary
is entitled to draft under said Section [9.0(c)(i)/ 9.0(c)(ii)] of the
Agreement;


 


4)                                     Beneficiary, on or prior to the date hereof,
has transmitted by facsimile (with receipt confirmed) a copy of this
certificate to Applicant, to the attention of President at facsimile number
(617) 964-3342 or such number as has been designated by Applicant in a written
notice delivered to us, and has deposited, postage-prepaid, another copy hereof
with a reputable overnight delivery courier service for delivery overnight to
Applicant at the following address:


 


UPC
Wind Partners, LLC


c/o
UPC Wind Management, LLC


100
Wells Avenue, Suite 201


Newton,
MA 02459


Attn:
President


 


All
capitalized terms used herein which are defined in the above-referenced Letter
of Credit have the same meanings when used herein.


 


In
witness whereof, Beneficiary has caused this certificate to be duly executed
and delivered by its duly authorized officer as of the date and year written
below.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 

















 


ANNEX 3


TO LETTER OF CREDIT NO. [SB                  ]


 


Notice of surrender of Irrevocable Standby Letter of
Credit No. [SB                   ]


 


	
  Date: 

  	
   

  	
   

  	
   

  



 


HSH Nordbank AG, New York Branch 


230 Park Avenue


New York, New York 10169


Attention: Loan Administration


 


Re:    Letter of Credit No. [SB                   ]
issued for the account of UPC Wind Partners, LLC (“Applicant”).


 


 


Ladies and Gentlemen: 


 


We refer to your above-mentioned Irrevocable Standby
Letter of Credit (the “Letter of Credit”). The undersigned hereby
surrenders the Letter of Credit to you for cancellation as of the date hereof.
No payment is demanded of you under this Letter of Credit in connection with
this surrender.


 


Very truly yours,


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 

















 


EXHIBIT C


 


FORM OF INITIAL BUYER LC


 

















 


ISSUING BANK: ROYAL BANK OF CANADA, NEW YORK, N.Y.


 


	
  Irrevocable Standby Letter of Credit No.:

  	
   

  	
   

  
	
  Date of issue:

  	
   

  	
   

  
	
  Expiration Date:

  	
   

  	
  1 year from issue date 

  
	
  Place of Expiry:

  	
   

  	
  At our office specified below

  
	
   

  	
   

  	
   

  
	
  Beneficiary:

  	
   

  	
   

  
	
  Evergreen Wind Power, LLC

  	
   

  	
   

  
	
  c/o
  UPC Wind Management, LLC

  	
   

  	
   

  
	
  100 Wells
  Ave., Suite 201

  	
   

  	
   

  
	
  Newton,
  MA 02459

  	
   

  	
   

  



 


We hereby issue this Irrevocable Standby Letter of Credit
(this “Letter of Credit”) for the account of and on behalf of NEW BRUNSWICK
POWER GENERATION CORPORATION, 515 KING STREET, P.O. BOX 2040 , FREDERICTON
, NEW BRUNSWICK, CANADA , E3B 5G4, ( the “Applicant” ) in favour of EVERGREEN
WIND POWER LLC , (“the Beneficiary”) in an amount equal to USD [                          
(
                     
U.S. dollars only ), available against presentation of the following document(s):


 


1.              The original
of this Letter of Credit.


 


2.              Beneficiary’s certificate
purportedly signed by an authorized signing officer representing Evergreen Wind
Power, LLC specifying the amount claimed and certifying the Beneficiary is
entitled to draw under this Letter of Credit pursuant to the terms and
conditions set forth in that certain Energy Management Services Agreement
entered into as of the                   
day of July, 2006, by and between the Beneficiary and the Applicant.


 


Partial drawing(s) permitted.


 


If presentation of a drawing is made in compliance with the
terms and conditions hereof on a Business Day at our counters at or before
10:00 a.m., New York, New York time, we shall honor such drawing on the
same Business Day. If a demand is presented in compliance with the terms and
conditions hereof at our counters after 10:00 a.m., New York, New York,
time, we shall honor such drawing on the next Business Day. For the purposes of
this section, Business Day means a day, other than a Saturday or Sunday, on
which commercial banks are not authorized or required to be closed in New York,
New York.


 


The following additional terms and conditions apply:


 


This Letter of Credit shall expire with our close of business
at 5:00 p.m., New York, New York time, on ( 1 year from issue date) ,
unless extended as hereinafter provided.


 

















 


ASSIGNMENT OF TRANSMISSION RIGHTS


 


THIS ASSIGNMENT OF TRANSMISSION RIGHTS (as amended, modified, supplemented, restated
or replaced from time to time, this “Assignment Agreement”), dated as of                        ,
2006, made by NEW BRUNSWICK POWER GENERATION CORPORATION, a corporation under
the laws of the Province of New Brunswick (the “Assignor”), in favour of EVERGREEN WIND POWER, LLC, a
Delaware limited liability company (the “Assignee”) (together with any successor(s) thereto).


 


W I T N E S S E T H:


 


WHEREAS:


 


A.                                   Assignee is developing, financing,
constructing, owning and operating a wind generation facility (the “Facility”)
located on Mars Hill Mountain and the surrounding areas of Mars Hill, Aroostook
County, Maine;


 


B.                                     Assignor has transmission rights in the form
of long-term firm point-to-point transmission service from the New Brunswick
System Operator (“NBSO”) to allow the transmission of electric power
over the transmission facilities that NBSO controls (the “Grid”) from
New Brunswick to the point of interconnection between the NBSO controlled Grid
and the transmission facilities that the Maine Electric Power Company (“MEPCO”) controls (the “Interconnection
Point”);


 


C.                                     Assignor and Assignee have entered into that
certain Energy Management Services Agreement, dated as of the date hereof (as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms, the “EMSA”), pursuant to which, among
other things, Assignor has agreed to purchase electric energy from Assignee at
the EMSA Delivery Point and transmit such energy through the Interconnection
Point and into the ISO-NE system; and


 


D.                                    As a condition precedent to Assignee entering
into its obligations under the EMSA, Assignee requires that Assignor shall have
executed and delivered this Assignment Agreement as security for Assignor’s
obligations pursuant to the EMSA and to ensure in the event of an Event of Default
that Assignee shall have access to electricity transmission rights sufficient
to allow Assignee to deliver electricity from the Facility to the Interconnection Point (and ultimately,
pursuant to separate contractual arrangements, to ISO-NE) as contemplated by
the EMSA;


 


NOW THEREFORE for good and valuable consideration the
receipt of which is hereby acknowledged, and in order to induce the Assignee to
enter into the EMSA, the Assignor agrees, for the benefit of the Assignee, as
follows:


 

















 


ARTICLE 1 -  DEFINITIONS


 


1.01                           Certain Terms. The following terms when used in this Assignment Agreement, including its preamble and recitals, shall
have the following meanings
(such definitions to be equally
applicable to the singular and plural forms thereof):


 


(a)                                  “Assignee” has the meaning given in
the preamble to this Assignment Agreement.


 


(b)                                 “Assignor” has the meaning given in
the preamble to this Assignment Agreement.


 


(c)                                  “EMSA” has the meaning given in the recitals
to this Assignment Agreement.


 


(d)                                 “EMSA Delivery Point” means the
delivery point at which Assignor takes title and risk of loss to the power sold
from Assignee to Assignor as specified in the EMSA.


 


(e)                                  “Event of Default” means any event of
default described in Article 5 of the EMSA in respect of which the
Assignor is the Defaulting Party.


 


(f)                                    “Grid” has the meaning given in the recitals
to this Assignment Agreement.


 


(g)                                 “Interconnection Point” has the
meaning given in the recitals to this Assignment Agreement.


 


(h)                                 “MEPCO” has the meaning given in the recitals
to this Assignment Agreement.


 


(i)                                     “NBSO” has the meaning given in the recitals
to this Assignment Agreement.


 


(j)                                     “OATT” means the Open Access
Transmission Tariff issued by the NBSO effective May 1, 2005 as the same
may be amended, modified, supplemented, restated or replaced from time to time.


 


(k)                                  “Transmission Rights” means rights
given by the Transmission Service Agreement as described in Schedule “A” hereto
(a true copy of which is annexed hereto as Schedule A-1) as the same may be amended,
supplemented, restated or replaced from time to time and all rights and
benefits related thereto as described in Section 2.01.


 


(l)                                     “Transmission Service Agreement” means
that certain Long-Term Firm Point-to-Point Transmission Service Agreement dated
as of July 21, 2006 by and between the NBSO and the Assignor (a true copy
of which is annexed hereto as Schedule A-1).


 














 


1.02                          EMSA
Definitions. Unless otherwise
defined herein or the context otherwise requires, capitalized terms used in
this Assignment Agreement, including its preamble and recitals, have the
meanings ascribed thereto in the EMSA.


 


1.03                          PPSA
Definitions. Unless otherwise
defined herein or in the EMSA or the context otherwise requires, terms for
which meanings are provided in the Personal Property Security Act (New Brunswick) are used in this Assignment Agreement,
including its preamble and recitals, with such meanings.


 


ARTICLE 2 -  ASSIGNMENT


 


2.01                          Assignment. Upon and subject to the terms, conditions
and provisions herein contained, the Assignor hereby unconditionally and
irrevocably grants a security interest in and assigns, transfers and sets over
to and in favour of the Assignee, as collateral security for its benefit, as
and by way of a fixed and specific assignment and security interest in all of
its right, title, estate and interest in, to, under and in respect of:


 


(a)                                 the Transmission Rights, and all benefits,
powers and advantages of the Assignor to be derived therefrom and all
covenants, obligations and agreements of the parties thereunder and otherwise
to enforce the rights of the Assignor thereunder in the name of the Assignor;


 


(b)                                all instruments, documents, writings, papers,
books, books of account and other records relating to the Transmission Rights;
and


 


(c)                                 all revenues and other moneys now due and
payable or hereafter to become due and payable to the Assignor thereunder or in
connection therewith by the other parties to the Transmission Rights or
receivable by the Assignor pursuant to or in connection with the Transmission
Rights,


 


to
be held by the Assignee for the benefit of the Assignee as general and
continuing security for the performance payment and satisfaction of all
obligations of the Assignor under the EMSA.


 


2.02                          Notice
to NBSO. The Assignor and Assignee
mutually agree to execute and deliver to the NBSO the Notice of Assignment of
Transmission Rights in the form annexed hereto as Schedule “B” promptly after
execution of this Assignment
Agreement by both parties and to execute such further notices, documents or
assurances as may be necessary
or desirable under the OATT.


 


2.03                          Consents. The Assignor agrees that it will, upon the
request of the Assignee, use all commercially reasonable efforts to obtain and
provide any additional consent or acknowledgement required to permit the
Transmission Rights to be assigned hereunder.


 


2.04                          Performance
of Obligations. Until notice is
given to the NBSO following an Event of Default, the Assignor covenants to
observe and enforce the terms,


 

















 


covenants, conditions and obligations to be observed
and enforced by the Assignor pursuant to the Transmission Service Agreement
which grants the Transmission Rights.


 


2.05                          No Liability. Nothing herein
contained shall render the Assignee, its respective agents, directors,
officers, employees or any other Persons for whom the Assignee is at law
responsible, liable to any Person for the fulfilment or non-fulfilment of the
obligations, covenants and agreements, including but not limited to the payment
of any moneys thereunder or in respect thereto, of the Assignor under the
Transmission Service Agreement which grants the Transmission Rights.
Notwithstanding the foregoing, the Assignor hereby indemnifies and agrees to
save and hold harmless the Assignee and its respective directors, officers and
employees from and against any and all claims, demands, actions, causes of
action, losses, suits, damages and costs whatsoever of any Person arising
directly or indirectly from or out of the Transmission Service Agreement which
grants the Transmission Rights.


 


2.06                           Notice:
Registration. Upon the occurrence of an Event of Default, the Assignee shall have the
right to advise the NBSO of the Assignee’s exercise of its rights under this
Assignment Agreement or give notice thereof to the NBSO. The Assignee shall
also have the right at any time and without notice to the Assignor to cause
this Assignment Agreement or notice thereof to be registered or filed in any
place or office where the Assignee or its counsel deem advisable or necessary.


 


2.07                          Performance Until
Default and Attorney of the Assignor. The Assignor hereby irrevocably appoints
the Assignee the Assignor’s attorney-in-fact, with effect following the
occurrence of an Event of Default, with full authority in the place and stead
of the Assignor and in the name of the Assignor or otherwise, from time to time
in the Assignee’s discretion, to take any action and to execute any instrument
which the Assignee may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation, (i) to exercise
any of the rights, powers, authority and discretions which, under the terms of
the Transmission Service Agreement which grants the Transmission Rights, could
be exercised by the Assignor with respect thereto, (ii) to ask, demand,
collect, sue for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Transmission Rights, (iii) to receive, endorse, and collect any drafts or
other instruments, documents and chattel paper, in connection with clause (ii),
and (iv) to file any claims or take any action or institute any
proceedings which the Assignee may deem necessary or desirable for the exercise
of the Transmission Rights or otherwise to enforce the rights of the Assignor
with respect to any of the Transmission Rights, all of which is consented to by
the Assignor. The Assignor hereby acknowledges, consents and agrees that the
power of attorney granted pursuant to this Section is irrevocable and
coupled with an interest.


 


2.08                          Dealing with the
Transmission Rights. Until the occurrence of an Event of Default, the
Assignor shall be entitled to deal with the Transmission Rights and


 

















 


collect
and receive all monies payable to the Assignor under or in connection with the
Transmission Rights in the ordinary course of its business and to enforce all
of the benefits, advantages and powers thereunder as though this Agreement had
not been made.


 


2.09                          Termination,
Surrender, Alteration, Etc. Without
the prior written consent of the Assignee, which consent shall not be
unreasonably withheld or delayed, the Assignor covenants and agrees that it
shall not nor shall it agree at any time to (a) terminate, forfeit or
cancel the Transmission Rights, (b) amend or modify the Transmission
Rights in any material respect, (c) waive any failure of any party thereto
to perform any material obligation thereunder or (d) suffer or permit
anything allowing any party to terminate the Transmission Rights or any of
them.


 


2.10                          Notice
of Default. The Assignor shall
cause notice to be given to the Assignee of any material default by the
Assignor in any way relating to the Transmission Rights promptly upon becoming
aware of the occurrence of such default, but in all events, if the Assignor is
aware of any default that could give rise to the right of NBSO to terminate
such Transmission Service Agreement, in sufficient time to afford the Assignee
a reasonable opportunity to cure any such default before NBSO has any right to
terminate the Transmission Rights by reason of such default; but nothing herein
shall obligate the Assignee to cure any such default.


 


ARTICLE 3 -  REPRESENTATIONS AND
COVENANTS


 


3.01                          Representations. The Assignor represents and warrants to the
Assignee that:


 


(a)                                 the Assignor has provided the Assignee with a
true and complete copy of the Transmission Service Agreement which grants the
Transmission Rights;


 


(b)                                the Transmission Service Agreement is a valid
and subsisting agreement, in full force and effect and unmodified and there are
no defaults thereunder by the Assignor or any other party thereto;


 


(c)                                 as at the date hereof the Transmission
Service Agreement constitutes the entire agreement between the Assignor and
NBSO in respect of the Transmission Rights;


 


(d)                                it is organized, validly existing and in good
standing under the laws of New Brunswick and has the right, power and authority
to enter into the Transmission Service Agreement and this Assignment Agreement
and to perform its obligations thereunder and hereunder;


 


(e)                                 every notice, authorization, approval, order
and consent necessary for the execution, delivery and performance by it of this
Assignment Agreement and the assignment of Transmission Rights hereunder has
been obtained and is in full force and effect, unamended, at the date hereof;


 

















 


(f)                                   each of the Transmission Service Agreement
and this Assignment Agreement has been duly executed and delivered by it and is
a valid and binding obligation of it enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency and other laws of
general application limiting the enforceability of creditors’ rights generally and
to the fact that specific performance, injunction and other equitable remedies
are available only in the discretion of the court; and


 


(g)                                it has not granted to any other Person rights
in respect of the Transmission Rights which are to the same effect as any of
the rights granted herein.


 


3.02                          Further
Assurances. The Assignor hereby
covenants and agrees with the Assignee that it shall from time to time and at
all times hereafter upon written request so to do, make, do, execute and
deliver or cause to be made, done, executed and delivered all such further
acts, deeds, assurances and things as may be reasonably required by the
Assignee for more effectually implementing and carrying out the true intent and
meaning of this Agreement. The Assignor will ensure that the representations
and warranties set forth in Section 3.01 will be true and correct at all
times.


 


3.03                          Opinion. The Assignor agrees to provide to the
Assignee at the time of execution of this Assignment of Agreement a legal
opinion of its counsel, duly authorized to practice in New Brunswick opining as
to the matters set out in section 3.01 (d), (e) and (f).


 


ARTICLE 4 -  DEFAULT


 


4.01                          Rights
of Assignee Upon a Default.
Whenever an Event of Default shall have occurred that has not been waived under
the EMSA, without limiting the rights of the Assignee under or pursuant to this
Assignment Agreement, the EMSA, or otherwise provided by applicable law, the
Assignee shall be entitled and shall have the authority:


 


(a)                                 to renew, amend or otherwise deal with the
Transmission Rights on such terms as it may deem appropriate;


 


(b)                                to perform, at the Assignor’s expense any and
all obligations or covenants of the Assignor and take all benefit of the
Assignor under the Transmission Service Agreement which grants the Transmission
Rights;


 


(c)                                 without limiting the generality of Section 4.01(a) hereof,
to deal with the Transmission Rights to the same extent as the Assignor could
do;


 


(d)                                to take possession of and collect the
revenues and other moneys of all kinds payable to the Assignor in respect of
the Transmission Rights and pay therefrom all reasonable expenses and charges,
the payment of which may be necessary to preserve and protect the Transmission
Rights; and


 

















 


(e)                                 to exercise any other or additional rights or
remedies in respect of the Transmission Rights granted to Assignee under any
other provision of this Assignment Agreement or any related agreement, or
exercisable by a secured party under the Personal Property Security Act (New Brunswick) or under any other applicable law.


 


4.02                          Exercise of Powers.
Where any discretionary powers hereunder are vested in the Assignee, the same
may be exercised by an officer or manager.


 


ARTICLE 5 -  GENERAL


 


5.01                          No Release. This Assignment
Agreement shall remain in full force and effect without regard to, and the
obligations of the Assignor shall not be affected or impaired by:


 


(a)                                 any amendment, modification, replacement of
or addition or supplement to the EMSA or the Transmission Service Agreement; or


 


(b)                                any exercise or non-exercise of any right,
remedy, power or privilege in respect of this Assignment Agreement, the
Transmission Service Agreement or the EMSA; or


 


(c)                                 any waiver, consent, extension, indulgence or
other action, inaction or admission under or in respect of this Assignment
Agreement, the Transmission Service Agreement or the EMSA; or


 


(d)                                any default by the Assignor under, or any
invalidity or unenforceability of, or any limitation of the liability of the
Assignor or on the method or terms of payment under, or
any irregularity or other defect in the EMSA or the Transmission Service
Agreement; or


 


(e)                                 any merger, consolidation or amalgamation of
the Assignor into or with any other Person; or


 


(f)                                   any insolvency, bankruptcy, liquidation,
reorganization, arrangement, composition, winding-up, dissolution or similar
proceeding involving or affecting the Assignor.


 


5.02                          No Partnership.
Nothing herein contained shall be deemed or construed by the parties hereto or
by any third party as creating the relationship of partnership or of joint
venture among the Assignor and the Assignee it being understood and agreed that
none of the provisions herein contained or any acts of any of the Assignee or
of the Assignor, shall be deemed to create any relationship between any of the
Assignee and the Assignor other than the relationship of assignee and assignor.


 


5.03                          Time of Essence.
Time shall be of the essence of this Assignment Agreement.


 

















 


5.04                          Waiver. No consent or waiver, express or implied, by the Assignee to
or of any breach or default by the Assignor in performance of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by the Assignor hereunder. Failure
on the part of the Assignee to complain of any act or failure to act of the
Assignor or to declare the Assignor in default, irrespective of how long such
failure continues, shall not, by itself, constitute a waiver by such Assignee
of its rights hereunder.


 


5.05                          Counterparts. This Assignment Agreement may be
executed in any number of separate counterparts, each of which shall be deemed
an original and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.


 


5.06                          Enforcement. Assignor agrees to pay on demand to Assignee all costs and
expenses incurred by Assignee (including the fees and disbursements of counsel)
in connection with Assignee’s enforcement, protection or preservation of any of
its rights or claims under this Assignment Agreement, in the manner prescribed
herein and in the EMSA.


 


ARTICLE 6 -  MISCELLANEOUS PROVISIONS


 


6.01                          Document. This Assignment Agreement is executed pursuant to the EMSA and
shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof.


 


6.02                          Amendments, etc. No amendment to or waiver of any
provision of this Assignment Agreement nor consent to any departure by the
Assignor herefrom shall in any event be effective unless the same shall be in writing
and signed by the Assignee, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it is
given.


 


6.03                          Addresses for Notices. Any notice or communication to be
given under this Assignment Agreement to the Assignee or the Assignor shall be
effective if given in accordance with the provisions of the EMSA as to the
giving of notice to each, and the Assignee and the Assignor may change their
respective address for notices in accordance with the said provisions.


 


6.04                          Section Captions. Section captions used in this
Assignment Agreement are for convenience of reference only, and shall not
affect the construction of this Agreement.


 


6.05                          Severability.
Wherever possible, each provision of this Assignment Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Assignment Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.


 

















 


6.06                          Conflicts. In the
event of any conflict between the provisions hereunder and the provisions of
the EMSA then, notwithstanding anything contained herein, the provisions
contained in the EMSA shall prevail and the provisions of this agreement will
be deemed to be amended to the extent necessary to eliminate such conflict. If
any act or omission of the Assignor is expressly permitted under the EMSA but
is expressly prohibited hereunder, such act or omission shall be permitted. If
any act or omission is expressly prohibited hereunder, but the EMSA does not
expressly permit such act or omission, or if any act is expressly required to
be performed hereunder but the EMSA does not expressly relieve the Assignor
from such performance, such fact shall not constitute a conflict between the
applicable provisions hereunder and the provisions of the EMSA.


 


6.07                          Assignment. Neither party shall assign this Assignment Agreement or any of its
rights or obligations hereunder without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Assignee may, without the consent of Assignor,
assign this Assignment Agreement or any of its rights or interest hereunder in
connection with any financing or other financial arrangements as follows:
Assignee may assign, pledge or mortgage its rights hereunder for security of
any indebtedness and (i) upon giving notice to the Assignor of such
assignment, pledge and mortgage, (A) the assignee, pledgee or mortgagee
shall be entitled to exercise all rights and remedies it may have with respect
to this Assignment Agreement without the further consent of the Assignor, to
receive a copy of any notice given by the Assignor or the Assignee pursuant to
the terms hereof, and to deliver any notice permitted under this Assignment
Agreement on the Assignee’s behalf, and (B) the
Assignor shall be entitled to assume the due authority of the assignee, pledgee
or mortgagee in taking any action or authorizing any notice without the
necessity of independently reviewing the assignment, pledge, mortgage, or other
security instrument delivered by the Assignee to the assignee, pledgee or
mortgagee and to accept performance by the assignee, pledgee or mortgagee of
any duty or obligation of the Assignee, and (ii) upon giving the Assignor
a copy of a trustee’s deed, deed in lieu of foreclosure, or other instrument
pursuant to which the assignee, pledgee, mortgagee, or other party acquires
legal title to this Assignment Agreement, (A) the assignee, pledgee,
mortgagee, or other party shall assume the Assignee’s duties and obligations
hereunder, provided that the liability of any such assignee, pledgee or
mortgagee under this Assignment Agreement following such assumption shall be
limited to its interests under the Assignment Agreement, and (B) Assignor
shall accept the assignee, pledgee, mortgagee, or other party as the successor
to the Assignee under the Assignment Agreement. At the request of the Assignee,
the Assignor agrees to execute and deliver a consent in a form reasonably
acceptable to the party(ies) providing financing to the Assignee.


 

















 


6.08                          Governing
Law. This Assignment Agreement
shall be governed by and construed in accordance with the internal laws of the
Province of New Brunswick and the federal laws of Canada applicable therein.


 


IN WITNESS WHEREOF the parties hereto have duly executed this
Assignment Agreement on the date first written above.


 


 


	
   

  	
   

  	
   

  	
  NEW BRUNSWICK POWER

  
	
   

  	
   

  	
   

  	
  GENERATION CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  EVERGREEN WIND POWER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
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SCHEDULE A


 


TRANSMISSION RIGHTS


 


Forty-two (42) megawatts of long-term firm point-to-point transmission
service available under the Transmission Service Agreement.


 

















 


SCHEDULE A-1


 


TRUE COPY OF TRANSMISSION SERVICE AGREEMENT


 


See
attached.


 

















 


SCHEDULE B


 


NOTICE OF ASSIGNMENT OF TRANSMISSION RIGHTS


 


[DATE]


 


New
Brunswick System Operator


77
Canada Street


Fredericton,
New Brunswick E3B 5G4


 


Attention:
Kevin Roherty, Secretary & General Counsel


 


Dear
Mr. Roherry:


 


Re:                              Notice of Assignment of Transmission Service
under that certain Service Agreement dated as of July 21, 2006 by and
between NBSO and NBPGC covering 60 megawatts of long-term firm point-to-point
transmission service from New Brunswick to the Maine Electric Power Company
(“MEPCO”) Interface (the “Service Agreement”)


 


New
Brunswick Power Generation Corporation (“NBPGC”) and Evergreen Wind Power, LLC
(“Assignee”) hereby notify the New Brunswick System Operator (the “NBSO”) of
the assignment of 42 megawatts of transmission service covered by the Service
Agreement from NBPGC to Assignee, as collateral security for obligations
pursuant to an Energy Management Services Agreement dated the         day
of               ,
2006 (the “EMSA”), in accordance with Section 23 of the New Brunswick
System Operator Open Access Transmission Tariff (“OATT”).


 


Upon
delivery to the NBSO of a Notice of Default by Assignee in respect of NBPGC’s
duties or obligations under the EMSA, the Assignee will assume the obligations
including scheduling and payment obligations from NBPGC for this assigned
transmission.


 


This
notice is given pursuant to Section 23.1 of OATT.


 


	
  EXECUTED:

  	
   

  	
  EXECUTED:

  
	
   

  	
   

  	
   

  
	
  NEW BRUNSWICK POWER

  	
   

  	
  EVERGREEN WIND POWER, LLC

  
	
  GENERATION CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  (Print/Type)

  	
   

  	
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  Title

  	
   

  	
   

  	
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  Date

  	
   

  
	
   

  	
   

  	
   

  
	
  ACCEPTED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NEW BRUNSWICK SYSTEM OPERATOR

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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