Exhibit 10.1


 


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.


 


2009 OMNIBUS AGREEMENT


 


This
2009 OMNIBUS AGREEMENT (this “Agreement”), dated as of November 25, 2009, is
entered into by and among First Wind Energy, LLC (“FWE”), Niagara Wind Power,
LLC (“NWP”), New York Wind, LLC (“NYW”), First Wind Acquisition IV, LLC (“FW A
IV”), and First Wind Acquisition V, LLC (“FWA V”, and together with FWE, NWP,
NYW and FWA IV, collectively, or individually, as applicable, “First Wind”) on
the one hand, and Clipper Windpower, Inc. (“CWI”), Clipper Turbine Works, Inc.
(“CTW”), and Clipper Fleet Services, Inc. (“CFS” and, together with CWI and
CTW, “Clipper”) on the other hand. Each of First Wind and Clipper are sometimes
referred to hereafter as a “Party”, or collectively as the “Parties”.


 


WHEREAS,
First Wind Acquisition II, LLC entered into that certain Turbine Supply
Agreement (“Steel Winds TSA”) and Warranty Agreement (“Steel Winds Warranty
Agreement”) with CTW, each dated as of July 24, 2006, which Steel Winds TSA and
Steel Winds Warranty Agreement were assigned by First Wind Acquisition II, LLC
to Steel Winds Project LLC pursuant to that Assignment and Assumption Agreement
among First Wind Acquisition II, LLC, Steel
Winds Project LLC and CTW dated as of September 1, 2006, which Steel Winds TSA
and Steel Winds Warranty Agreement were further assigned by Steel Winds Project
LLC to NWP in connection with that certain letter dated June 1, 2007 from NWP
to Steel Winds Project LLC notifying Steel Winds Project LLC of NWP’s exercise
of its option to purchase development assets from Steel Winds Project LLC, and
CFS and First Wind O&M, LLC, as successor to UPC New York Wind O&M, LLC
(“First Wind O&M”), entered into that certain Turbine Operation,
Maintenance and Service Agreement dated as of July 24, 2006 (the “Steel Winds
O&M Agreement”, together with the Steel Winds TSA and the Steel Winds
Warranty Agreement, collectively referred to herein as the “Steel Winds Project
Documents”), all relating to the eight (8) Turbine wind project known as the “Steel
Winds Project”.


 


WHEREAS,
CTW and NYW (as successor to First Wind Acquisition III, LLC (“FWA III”)) are
parties to that certain Turbine Supply Agreement (“Cohocton TSA”) and Warranty
Agreement (“Cohocton Warranty”) relating to the fifty (50) Turbine wind project
known as the “Cohocton Project”.


 


WHEREAS,
CTW and FWA V entered into (i) that certain Turbine Supply
Agreement (“2009 TSA”) and Warranty Agreement (“2009 Warranty”) relating to the
purchase of thirty five (35) turbines, (ii) that certain Turbine Supply
Agreement (“2010 TSA”) and Warranty Agreement (“2010 Warranty”) relating to the
purchase of eighty (80) turbines, (iii) that certain Turbine Supply Agreement (“2011
TSA”) and Warranty Agreement (“2011 Warranty”) relating to the purchase of
forty (40) turbines, (iv) that certain Turbine Supply Agreement (“2012 TSA”)
and Warranty Agreement (“2012 Warranty”) relating to the purchase of fifty (50)
turbines and (v) that certain Turbine Supply Agreement (“2013 TSA”) and
Warranty Agreement (“2013 Warranty” and together with the Cohocton Warranty,
the 2009 Warranty, the 2010 Warranty, the 2011 Warranty and the 2012 Warranty,
the “Warranty Agreements”) relating to the purchase of sixty (60) turbines.


 


WHEREAS,
the Steel Winds Project Documents, the Cohocton TSA, the Warranty Agreements,
the 2009 TSA, the 2010 TSA, the 2011 TSA, the 2012 TSA, the 2013 TSA, each as
amended to date, shall be referred to herein as the “Project Documents”.


 

















 


WHEREAS,
on December 31, 2007, Clipper and FWE, NWP, First Wind O&M, FWA III and FWA IV entered into that
certain Settlement and Release Agreement (the “December 2007 Agreement”), on March
24, 2008, Clipper and FWE, NWP, First Wind O&M, FWA III, FWA IV, FWA V,
Canandaigua Power Partners, LLC and Canadaigua Power Partners II, LLC entered
into that certain Agreement (the “March 2008 Agreement”), and on December 30,
2008, Clipper and FWE, NWP, FWA III, FWA IV and FWA V entered into that certain
Omnibus Agreement (the “2008 Omnibus Agreement”, and together with the December
2007 Agreement and the March 2008 Agreement, the “Settlement Agreements”).


 


WHEREAS,
the Parties desire to enter into the following agreements with respect to the
Settlement Agreements, the Project Documents and the Projects.


 


NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto hereby agree as follows:


 


ARTICLE I


PAYMENTS


 


1.1           Agreements
Regarding 2009 TSA Payment Obligations.


 


(a)           2009 TSA (Hawaii
Turbines).  FWA V and CTW have been
in discussions with respect to twelve (12) Turbines (as defined in the 2009
TSA) contemplated to be delivered with respect to a First Wind project to be
located in Oahu, Hawaii (the “Hawaii Turbines”). As set forth in the new
Payment Schedule to the 2009 TSA attached hereto in Schedule I, FWA V shall,
subject to Section 3.1 herein with respect to the execution and delivery of the
***** (as defined below) into escrow, pay to CTW ***** ($*****)
on December 4, 2009 (the “Contingent Hawaii Turbine Payment”) which payment
shall be applied to the Hawaii Turbines only. Subject to Section 3.1 herein,
the balance of the payments owing with respect to the Hawaii Turbines after the
Contingent Hawaii Turbine Payment is made in the amount of ***** ($*****), plus
any amounts applicable to additional equipment options ordered by FWA V (the “Remaining
Hawaii Turbine Payments”) shall be due and payable to Clipper on March 15, 2010.


 


(b)           2009
TSA (Non-Hawaii Turbines).  With respect to
the other twenty-three (23) Turbines (as defined in the 2009 TSA) subject to
the 2009 TSA (the “Non-Hawaii Turbines”), as set forth in the new Payment
Schedule to the 2009 TSA attached hereto in Schedule I, FWA V’s next payment to
CTW in the amount of ***** ($*****) with respect to the Non-Hawaii Turbines,
shall be due on February 15, 2011.


 


1.2           2010 TSA.


 


(a)           In the event that
Clipper fails to refund to First Wind ***** ($*****) (the “Refund Amount”), if
required pursuant to Section 2.4(c) of the 2008 Omnibus Agreement, on or before
January 10, 2011 (the “Refund Default”), Clipper agrees that the Later Turbines
Payment shall be reduced by


 


2

















 


the amount of the unpaid
Refund Amount, and, pursuant to Section 2.4(c) of the 2008 Omnibus Agreement,
the 2010 TSA shall terminate without any further action of the parties thereto.


 


(b)           The Payment Schedule to the 2010 TSA
is hereby amended and replaced with the new applicable Payment Schedule for the
2010 TSA as set forth in Schedule I. As set forth in
the new Payment Schedule to the 2010 TSA, FWA V’s next payment to CTW under the
2010 TSA in the amount of ***** ($*****) shall be due
on January 15, 2011.


 


1.3           Project Turbine
Availability Warranty Payments and Other Payments.


 


(a)           Steel Winds
Project.  The Parties agree that the
full amount of the Turbine Availability Warranty Payments payable by CTW to NWP
under the Steel Winds Warranty Agreement (i) for the Warranty Period Year ended
May 31, 2008 the remaining payment is ***** (the “Remaining
2008 Warranty Payment”, together with the Warranty Pre-Payment, the “2008
Warranty Payment”) and (ii) for the Warranty Period Year ended May 31, 2009 is
$***** (the “2009 Warranty Payment”). The Remaining 2008
Warranty Payment and the 2009 Warranty Payment shall be paid by CTW to NWP on March
10, 2010. In the event that such amounts are not paid by CTW to NWP, the
Parties agree that FWA V may offset such amounts against the amounts payable by
FWA V to CTW on March 15, 2010 set forth in the Payment Schedule to the 2009
TSA attached hereto in Schedule I. First Wind
acknowledges that it has received to date $***** (the “Warranty
Pre-Payment”) of the Turbine Availability Warranty Payment applicable to the
Warranty Period Year ended May 31, 2008. Furthermore, the Parties agree that
pursuant Section 1.3(b) of the 2008 Omnibus Agreement only $***** of the 2008
Warranty Payment shall be deemed to have been made for purposes of calculating
the limitations of liability with respect to the Turbine Availability Warranty
Payments and the aggregate amount of liquidated damages payable under Section 7.2
of the Steel Winds Warranty Agreement.


 


(b)           Cohocton Project.  The Parties agree that the full amount of the
Turbine Availability Warranty Payments payable by CTW to NYW under the Cohocton
Warranty for the first six months of the current Warranty Period Year is ***** ($*****) (the “First
Half Warranty Payments”). The First Half Warranty Payments, as well as any
undisputed additional Turbine Availability Warranty Payment amounts payable
under the Cohocton Warranty for the last six months of this current Warranty
Period Year, shall be paid by CTW to NYW on March 10, 2010. In the event that
such amounts are not paid by CTW to NYW, the Parties agree that FWA V may
offset such amounts against the amounts payable by FWA V to CTW on March 15, 2010
set forth in the Payment Schedule to the 2009 TSA attached hereto in Schedule I.


 


1.4           2011 TSA, 2012
TSA and 2013 TSA.


 


(a)           With respect to the ***** ($*****) in the
aggregate already paid through the date of this Agreement by FWA V under the
2011 TSA, the 2012 TSA and the 2013 TSA (the “Prior Payments”), the Parties
agree that such Prior Payments shall be re-allocated such that two-thirds of
the Prior Payments shall be allocated with respect to all forty (40) of the
Turbines under the 2011 TSA


 


3

















 


and with respect to
thirty-five (35) of the Turbines under the 2012 TSA, on a pro rata basis. The
remaining one-third of the Prior Payments shall be allocated to fifteen (15)
Turbines under the 2012 TSA and to all sixty (60) Turbines under the 2013 TSA,
on pro rata basis. The Payment Schedules to the 2011 TSA, the 2012 TSA and the
2013 TSA are hereby amended and replaced with the new applicable Payment
Schedule reflecting the reallocation of payments described in this Section 1.4(a)
as set forth in Schedule I.


 


(b)           The Parties agree that upon request
from Clipper, the 2009 TSA, the 2010 TSA, the 2011 TSA, the 2012 TSA, the 2013 TSA
and the Turbine Supply Agreement relating to the sixteen (16) Turbine project
entered into between CTW and FWA IV (the “Sheffield TSA”), shall be amended (or
amended and restated, as may be agreed upon by the Parties) by removing the
commissioning and completion obligations of Clipper (and the corresponding
milestone payment obligations of First Wind) from such Project Documents and
separate commissioning services agreements, in form and substance reasonably
satisfactory to the Parties, shall be executed with respect to the applicable
Project Documents. The Purchase Price and Payment Schedules under each
applicable Project Document shall be adjusted accordingly and such prices and
payments shall be reflected in the commissioning services agreement entered
into with respect to such Project Document.


 


(c)           Subject to Section 1.2(a) above, on January
15, 2011, First Wind shall make a payment of ***** (the “Later Turbines Payment”)
to Clipper in respect of the 2011 TSA, the 2012 TSA and the 2013 TSA (collectively,
the “Later TSAs”). Such payment shall be applied pro rata to each such Project
Document as reflected in the Payment Schedules for each such Project Document
set forth in Schedule I such that two-thirds of the Later Turbines Payments
shall be allocated with respect to all forty (40) of the Turbines to be
delivered under the 2011 TSA and with respect to the first thirty-five (35) of
the Turbines under the 2012 TSA scheduled to be delivered, on a pro rata basis.
The remaining one-third of the Later Turbines Payments shall be allocated to
the last fifteen (15) Turbines to be delivered under the 2012 TSA and to all
sixty (60) Turbines to be delivered under the 2013 TSA, on a pro rata basis.


 


1.5           Turbine Payments.  Each Payment Schedule to the 2009 TSA, the 2010
TSA, the 2011 TSA, the 2012 TSA and the 2013 TSA is hereby amended and replaced
with the new applicable Payment Schedule for such Project Document set forth in
Schedule I. The payments contemplated in Schedule I are required to be made by
First Wind only upon the satisfaction of the relevant milestones and in
accordance with the terms and conditions set forth in each applicable Project
Document.


 


ARTICLE II


PROJECT DOCUMENT AND PROJECT OBLIGATIONS


 


2.1           ***** through December 31, 2010.
Notwithstanding the right of First Wind under the applicable Project Documents *****
pursuant to the terms of such Project Documents (e.g., pursuant to Section 14.6
of the 2009 TSA and Exhibit G thereto), First Wind agrees that it shall not
exercise any such rights under any Project Document on or before December 31,
2010; provided, that, the parties acknowledge and agree that this prohibition
on the exercise of rights under the applicable


 


4

















 


***** provisions
under the Project Documents does not affect the parties’ remaining rights and
obligations under the applicable Project Documents.. After December 31, 2010,
First Wind shall have the right to exercise the ***** provisions set
forth in Section 14.6 or 14.7 (including the application of Exhibit G *****, as
applicable, in each applicable Project Document) taking into account the new
Delivery Schedule for the Turbines under each applicable Project Schedule set
forth in Schedule II.


 


2.2           2009 TSA.  The Delivery Schedule set forth in Exhibit L
to the 2009 TSA is hereby amended and replaced with the new Delivery Schedule
for the 2009 TSA set forth in Schedule II..


 


2.3           2010 TSA.  After December 31, 2010 and on or before January
15, 2011, First Wind shall have the right to ***** the purchase
of any Turbine pursuant to Section 14.6 
of the 2010 TSA, and no further ***** shall be
required in connection with an exercise of such *****.  In the event that First Wind does not
exercise its ***** pursuant to Section 14.6  of the 2010 TSA prior to January 15, 2011,
First Wind and Clipper shall agree upon the Delivery Schedule with respect to
the Turbines under the 2010 TSA based upon the delivery periods then available
as provided by Clipper.  Upon the
agreement between the Parties with respect to the Delivery Schedule for the
Turbines under the 2010 TSA, the milestone payment due dates in the Payment
Schedule for the 2010 TSA shall be adjusted accordingly, if required.


 


2.4           2011 TSA, 2012
TSA and 2013 TSA.


 


(a)           The Delivery
Schedule set forth in Exhibit L to each of the 2011 TSA, the 2012 TSA and the
2013 TSA is hereby amended and replaced with the new Delivery Schedule
applicable to each respective Project Document set forth in Schedule II.


 


(b)           The ***** set forth in Exhibit G to
each of the 2011 TSA, the 2012 TSA and the 2013 TSA is hereby, upon the payment
of the Later Turbines Payment (including payment of such amount taking into
account the reduction of the Refund Amount pursuant to Section 1.2(b)), amended
as follows: (i) no further ***** shall be required in connection with an
exercise of the ***** pursuant to Section 14.7 of
the applicable Later TSA up until twelve (12) months prior to the first date of
Delivery of the first Major Turbine Component (as compared to ***** for the period
between fifteen (15) and twelve (12) months prior to the first date of Delivery
of the first Major Turbine Component (as set forth in the ***** prior to this
amendment)) and (ii) no further ***** shall be required in connection with an
exercise of the ***** pursuant to Section 14.7 of
the 2011 TSA until January 15, 2011.


 


ARTICLE III


ADDITIONAL AGREEMENTS


 


3.1           Condition Precedent to Hawaii
Turbine Payments.  If a Strategic
Investment (as defined in Schedule III attached hereto) in Clipper has
not been announced by December 4, 2009, *****, CWI shall have deposited into
escrow with a


 


5

















 


mutually acceptable escrow
agent (the “Escrow Agent”) the following: ***** For each day
after December 4, 2009 that the ***** has not been
placed into escrow, FWA V’s obligation *****. 
FWA V shall ***** on the day immediately following the day the ***** is placed in
escrow.  For the avoidance of doubt,
Clipper’s obligation to Deliver the Hawaii Turbines shall not be excused or
delayed as a result of Clipper’s delay in making an announcement of the
Strategic Investment or a delay in the delivery into escrow of the ***** *****, in each
case by December 4, 2009.


 


3.2           Release of *****.  The escrow agreement governing the
maintenance and release of ***** shall provide for the release of the *****
pursuant to the terms set forth on Schedule IV attached hereto (subject
to requirements of the Escrow Agent).


 


3.3           Termination of Agreement.  In the event that (a) the ***** is not
finalized and deposited with the Escrow Agent and (b) the ***** is not made, in
each case, on or before December 10, 2009, provided that Clipper has provided
written confirmation reasonably satisfactory to First Wind providing First Wind
(i) ***** and (ii) the right to defer the *****, in each
case, through December 17, 2009 (and with at least 7 days to ***** and defer *****
after the receipt of such written confirmation),*****


 


3.4           Payment Schedules and Delivery
Schedules.  The Parties agree that
the Payment Schedule and Delivery Schedule attached to this Agreement shall be
revised to be consistent with the format of such schedules (the “Revised
Schedules”) as previously set forth in the applicable Project Documents.  Clipper shall use commercially reasonable
efforts to provide to First Wind the Revised Schedules within 15 days after the
execution of this Agreement.


 


ARTICLE IV


REPRESENTATIONS AND WARRANTIES


 


4.1           Representations of all Parties.  Each Party represents and warrants to the
other Parties that (a) such Party is an organization duly organized, validly
existing and in good standing under the laws of the state of its organization
and is qualified to do business in each jurisdiction it is required to be by
applicable law, (b) the execution, delivery and performance of this Agreement
by such Party has been duly authorized by all necessary corporate or limited
liability company action, as applicable, on the part of such Party and does not
and will not require the consent of any trustee or holder of any indebtedness or
other obligation of such Party


 


6

















 


or any other party to any
other agreement with such Party other than any consents already obtained, (c) this
Agreement has been duly executed and delivered by such Party and constitutes
the legal, valid and binding obligation of such Party enforceable against it in
accordance with its terms, except to the extent limited by bankruptcy,
insolvency or other similar laws relating to the rights of creditors, or by
general principles of equity, and (d) no governmental authorization, approval,
order, license, permit, franchise or consent, and no registration, declaration
or filing with any governmental authority is required on the part of such Party
in connection with the execution, delivery or performance of this Agreement.


 


ARTICLE V


MISCELLANEOUS


 


5.1           Entire Agreement; Defined Terms.  This Agreement contains the entire
understanding of the Parties relating to the subject matter hereof and
supersedes all prior written or oral and all contemporaneous oral agreements
and understandings relating to the subject matter hereof.  Any terms not otherwise defined in this
Agreement shall have the meaning as defined in the Project Documents.  Except as amended hereby, all the terms and
conditions in all Project Documents shall remain in full force and effect.  Each Party agrees to keep the terms and
provisions of this Agreement and all materials and information that each Party
receives pursuant hereto or in connection herewith in the
strictest confidence and not to disclose any of the foregoing to any party
other than the respective lenders, investors, potential lenders or investors,
attorneys, accountants, affiliates, officers and directors of each Party or as
such Party may be required by law, court order or in any litigation to
disclose.


 


5.2           No Third Party Beneficiary.  This Agreement is made for the sole benefit
of the Parties hereto and their respective successors, executors and permitted
assigns, and nothing contained herein, express or implied, is intended to or
shall confer upon any other person any third-party  beneficiary right or any other legal or
equitable rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.


 


5.3           Governing Law.  This Agreement will be governed by and
construed and interpreted in accordance with the substantive laws of the State
of New York, without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the laws of a jurisdiction
other than New York.


 


5.4           Neutral Construction.  The Parties hereto agree that this Agreement
was negotiated fairly between them at arms’ length and that the final terms of
this Agreement are the product of the Parties’ negotiations.  Each party represents and warrants that it
has sought and received legal counsel of its own choosing with regard to the
contents of this Agreement and the rights and obligations affected hereby.  The Parties hereto agree that this Agreement
shall be deemed to have been jointly and equally drafted by them, and that no
provisions of this Agreement should be construed against either party on the
grounds that such party drafted or was more responsible for drafting such
provision.


 


5.5           Severability.  In the event that any one or more of the
provisions or parts of a provision contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect in any
jurisdiction, such invalidity, illegality or unenforceability


 


7

















 


shall not affect any other
provision or part of a provision of this Agreement or any other jurisdiction,
but this Agreement shall be reformed and construed in any such jurisdiction as
if such invalid or illegal or unenforceable provision or part of a provision
had never been contained herein and such provision or part shall be reformed so
that it would be valid, legal and enforceable to the maximum extent permitted
in such jurisdiction, provided that any such reform or construction does
not affect the economic or legal substance of the transactions contemplated
hereby in a manner adverse to any party.


 


5.6           Heading; Construction.  The descriptive headings of the Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.


 


5.7           Expenses.  Each party shall be responsible for the
payment of its own costs and expenses (including reasonable attorneys’ fees) in
connection with the preparation, execution and delivery of this Agreement.  Nevertheless, in any action or proceeding to
enforce this Agreement, the prevailing party shall be entitled to payment of
its reasonable costs and expenses (including reasonable attorneys’ fees).


 


5.8           Counterparts.  This Agreement may be executed in one or more
counterparts for the convenience of the Parties hereto, each of which shall be
deemed an original and all of which together will constitute one and the same
instrument.  This Agreement shall be
effective upon delivery of original signature pages or facsimile or electronic
mail copies thereof.


 


5.9           Further Actions.  Upon the terms and subject to the conditions
set forth in this Agreement, the Parties hereto shall each use their respective
commercially reasonable efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, and to assist and cooperate with the
other Parties hereto in doing, all things necessary, proper or advisable under
applicable laws to consummate the transactions contemplated hereby.  First Wind and Clipper shall, from time to
time after the delivery and execution of this Agreement, at the request of
either Party, execute and deliver stand-alone agreements or amendments as the
requesting Party may reasonably request to evidence the agreement or agreements
made under this Agreement with respect to a particular Project Document or
particular Project Documents.  In
connection with, and promptly following the execution of, this Agreement, the
parties have agreed to execute the following stand-alone amendments: an
amendment to the Sheffield TSA and to the turbine supply agreement applicable
to the six turbines delivered for the Milford wind project and planned for
installation during 2010, to provide for separate commissioning obligations.


 


5.10         Dispute Resolution.  Any controversy, claim or dispute between the
Parties arising out of or related to this Agreement which cannot be settled
amicably by the Parties, shall be submitted for binding arbitration in
accordance with the provisions contained herein and in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“Rules”).
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction.  The arbitrator
shall determine all questions of fact and law relating to any controversy,
claim or dispute hereunder, including but not limited to whether or not any
such controversy, claim or dispute is subject to the arbitration provisions
contained herein.  Any Party desiring
arbitration shall serve on the other Party and the New York Office of the
American Arbitration Association, in accordance with the Rules, its Notice of
Intent to Arbitrate (“Notice”). The Parties shall agree on an arbitrator, and
if the Parties cannot agree upon an


 


8

















 


arbitrator within ten (10) days
after the date of the Notice, the arbitrator shall be selected in accordance
with the Rules. The arbitration proceedings are hereby declared to be
self-executing, and it shall not be necessary to petition a court to compel
arbitration. All arbitration proceedings shall be held in New York, New York.
The Parties agree to bear their own costs associated with any required travel
to and from New York. Notice of the demand for arbitration shall be filed in
writing with the other Party to this Agreement and with the American
Arbitration Association. The demand for arbitration shall be made within a
reasonable time after the controversy, claim or dispute has arisen, and in no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of limitations.


 


9

















 


IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first written above.


 


	
  CLIPPER TURBINE WORKS, INC.

  	
   

  	
  CLIPPER FLEET SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Robert Gates

  	
   

  	
  By: 

  	
  /s/ Robert Gates

  
	
  Name: 

  	
  Robert Gates

  	
   

  	
  Name: 

  	
  Robert Gates

  
	
  Title: 

  	
  Senior Vice President

  	
   

  	
  Title: 

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CLIPPER WINDPOWER, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Robert Gates

  	
   

  	
   

  	
   

  
	
  Name: 

  	
  Robert Gates

  	
   

  	
   

  	
   

  
	
  Title: 

  	
  Senior Vice President

  	
   

  	
   

  	
   

  



 


[Signature Page to Agreement]


 

















 


	
  NEW YORK WIND, LLC

  	
   

  	
  FIRST WIND ACQUISITION IV,
  LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Michael Alvarez

  	
   

  	
  By: 

  	
  /s/ Michael Alvarez

  
	
  Name: 

  	
  Michael Alvarez

  	
   

  	
  Name: 

  	
  Michael Alvarez

  
	
  Title: 

  	
  Vice President

  	
   

  	
  Title: 

  	
  : Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FIRST WIND ACQUISITION V, LLC

  	
   

  	
  FIRST WIND ENERGY, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Michael Alvarez

  	
   

  	
  By: 

  	
  /s/ Michael Alvarez

  
	
  Name: 

  	
  Michael Alvarez

  	
   

  	
  Name: 

  	
  Michael Alvarez

  
	
  Title: 

  	
  Vice President

  	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NIAGARA WIND POWER, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ Michael Alvarez

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Michael Alvarez

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 


[Signature Page to Agreement]


 















 


Schedule
I


 


PAYMENT
SCHEDULE


 


	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
  2009
  Hawaii Turbines - C96

  	
   

  	
  12

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
									



 


	
  Milestone

  	
   

  	
  Approximate

  Months prior to

  Delivery of first

  Major Turbine

  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  % of

  Purchase

  Price

  	
   

  	
  Cumulative % of

  Purchase Price

  	
   

  	
  Payment Amount

  (thousands)

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  December 31, 2007

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  March 14, 2008

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
  12

  	
   

  	
  June 13, 2008

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #3

  	
   

  	
  6

  	
   

  	
  December 4, 2009

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #4

  	
   

  	
  6

  	
   

  	
  December 4, 2009

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #5

  	
   

  	
   

  	
   

  	
  March 15, 2010

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Calendar Date Payment per Section 1.1 (a) of 2009
  Omnibus Agreement

  	
   

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  August 9, 2010

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due upon
  completion of milestone

  	
   

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  July 5, 2010

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


 


EXHIBIT
B2 

PAYMENT SCHEDULE


 


	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
  2009 Non-Hawaii Turbines - C96

  	
   

  	
  23

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase
  Price to be adjusted by CCI as described in Exhibit B1

  	
   

  
									



 


	
  Milestone

  	
   

  	
  Approximate

  Months prior to

  Delivery of first

  Major Turbine

  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  % of

  Purchase

  Price

  	
   

  	
  Cumulative % of

  Purchase Price

  	
   

  	
  Payment Amount

  (thousands)

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  December 31, 2007

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  March 14, 2008

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
   

  	
   

  	
  June 13, 2008

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #3 

  	
   

  	
   

  	
   

  	
  February 15, 2011 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Calendar Date Payment per Section 1.1 (b) of
  2009 Omnibus Agreement 

  	
   

  
	
  Progress Payment #4 - *****

  	
   

  	
   

  	
   

  	
  September 19, 2011 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone 

  	
   

  
	
  Progress Payment #5 - *****

  	
   

  	
   

  	
   

  	
  November 28, 2011 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone 

  	
   

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  January 2, 2012 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


 















 


PAYMENT
SCHEDULE


 


2010 TSA Turbines - C96


 


Deliveries shown in March of
following year for illustration purposes only;


Actual Delivery Schedule
subject to “*****” per Section 2.4 (b) of 2008 Omnibus Agreement:


2011A Turbines: ***** after “*****”


2012A Turbines: ***** after “*****”


2011A Turbines: ***** after “*****”


 


Delivery Schedule subject to
available Delivery periods as provided by Clipper per Section 2.3 of 2009
Omnibus Agreement; Payment Schedules to be shifted accordingly


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2011A Turbines - C96

  	
   

  	
  40

  	
   

  	
   $

  	
  *****

  	
   

  	
  Purchase Price to be adjusted by
  CCI as described in Exhibit B1

  
										



 


	
   

  	
   

  	
  Approximate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months prior to

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Delivery of first

  	
   

  	
   

  	
   

  	
  % of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Major Turbine

  	
   

  	
   

  	
   

  	
  Purchase

  	
   

  	
  Cumulative % of

  	
   

  	
  Payment Amount

  	
   

  	
   

  
	
  Milestone

  	
   

  	
  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  Price

  	
   

  	
  Purchase Price

  	
   

  	
  (thousands)

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #3

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Additional Credit

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #4

  	
   

  	
   

  	
   

  	
  January 15, 2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Calendar Date Payment per Section 1.2 (b) of
  2009 Omnibus Agreement

  
	
  Progress Payment #5

  	
   

  	
  6

  	
   

  	
  September 12, 2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due 6
  months prio to Delivery of first Major Turbine Component

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  March 12, 2012 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone; 

  Delivery of First Major Turbine Component ***** “*****” as per Section 2.4 (b) of
  2008 Omnibus Agreement 

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  May 21, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  
	
  Progress Payment #8 - *****

  	
   

  	
   

  	
   

  	
  June 25, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2012A Turbines - C96

  	
   

  	
  30

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase Price to be adjusted by
  CCI as described in Exhibit B1

  
										



 


	
   

  	
   

  	
  Approximate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months prior to

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Delivery of first

  	
   

  	
   

  	
   

  	
  % of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Major Turbine

  	
   

  	
   

  	
   

  	
  Purchase

  	
   

  	
  Cumulative % of

  	
   

  	
  Payment Amount

  	
   

  	
   

  
	
  Milestone

  	
   

  	
  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  Price

  	
   

  	
  Purchase Price

  	
   

  	
  (thousands)

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Additional Credit

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  
	
  Progress Payment #3

  	
   

  	
  12

  	
   

  	
  March 18, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due 12
  months prio to Delivery of first Major Turbine Component

  
	
  Progress Payment #4

  	
   

  	
  6

  	
   

  	
  September 18, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due 6
  months prio to Delivery of first Major Turbine Component

  
	
  Progress Payment #5 - *****

  	
   

  	
   

  	
   

  	
  March 18, 2013 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone; 

  Delivery of First Major Turbine Component *****
  after “*****” as per Section 2.4 (b) of 2008 Omnibus Agreement 

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  May 27, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  July 1, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  



 















 


PAYMENT SCHEDULE


 


	
   

  	
   

  	
   

  	
   

  	
  Purchase
  Price

  	
   

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
  2013A Turbines - C96

  	
   

  	
  10

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase
  Price to be adjusted by CCI as described in Exhibit B1

  	
   

  
									



 


	
  Milestone

  	
   

  	
  Approximate

  Months
  prior to

  Delivery
  of first

  Major
  Turbine

  Component

  	
   

  	
  Payment
  Due Date

  	
   

  	
  % of

  Purchase

  Price

  	
   

  	
  Cumulative
  % of

  Purchase
  Price

  	
   

  	
  Payment
  Amount

  (thousands)

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #3 

  	
   

  	
  12

  	
   

  	
  March 17, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due 12
  months prior to Delivery of first Major Turbine Component

  	
   

  
	
  Progress Payment #4 

  	
   

  	
  6

  	
   

  	
  September 17, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due 6
  months prior to Delivery of first Major Turbine Component

  	
   

  
	
  Progress Payment #5 - *****

  	
   

  	
   

  	
   

  	
  March 17, 2014

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone; 

  Delivery of First Major Turbine Component *****
  after “*****” as per Section 2.4 (b) of 2008 Omnibus Agreement

  	
   

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  May 26, 2014

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  June 30, 2014

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


 


PAYMENT SCHEDULE


 


	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  	
   

  
	
  Project
  and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
  2011 Turbines - C96

  	
   

  	
   

  	
   

  	
  10

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase Price to be adjusted by CCI as described in
  Exhibit B1

  	
   

  
											



 


	
  Milestone

  	
   

  	
  Approximate

  Months
  prior to

  Delivery
  of first

  Major
  Turbine

  Component

  	
   

  	
  Payment
  Due Date

  	
   

  	
  % of

  Purchase

  Price

  	
   

  	
  Cumulative % of

  Purchase Price

  	
   

  	
  Payment Amount

  (thousands)

  	
   

  	
   

  	
   

  
	
  Down
  Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress
  Payment #1

  	
   

  	
   

  	
   

  	
  January 15,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress
  Payment #2

  	
   

  	
   

  	
   

  	
  January 15,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress
  Payment #3

  	
   

  	
  6

  	
   

  	
  February 28,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress
  Payment #4 - *****

  	
   

  	
   

  	
   

  	
  August 29,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
  Progress
  Payment #5 - *****

  	
   

  	
   

  	
   

  	
  November 7,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
  Progress
  Payment #6 - *****

  	
   

  	
   

  	
   

  	
  December 12,
  2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


 















 


	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2012
  Turbines - C96

  	
   

  	
  20

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase Price to be adjusted by
  CCI as described in Exhibit B1

  	
   

  
									



 


	
   

  	
   

  	
  Approximate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months prior to

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Delivery of first

  	
   

  	
   

  	
   

  	
  % of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Major Turbine

  	
   

  	
   

  	
   

  	
  Purchase

  	
   

  	
  Cumulative % of

  	
   

  	
  Payment Amount

  	
   

  	
   

  	
   

  
	
  Milestone

  	
   

  	
  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  Price

  	
   

  	
  Purchase Price

  	
   

  	
  (thousands)

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  January 15, 2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
  12

  	
   

  	
  August 27, 2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #3

  	
   

  	
  6

  	
   

  	
  February 27, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #4 - *****

  	
   

  	
   

  	
   

  	
  August 27, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
  Progress Payment #5 - *****

  	
   

  	
   

  	
   

  	
  November 5, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due upon
  completion of milestone

  	
   

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  December 10, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due upon
  completion of milestone

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


*****


*****


PAYMENT SCHEDULE


 


	
   

  	
   

  	
   

  	
   

  	
  Purchase Price

  	
   

  	
   

  	
   

  
	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
  (thousands)

  	
   

  	
  Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2013 Turbines - C96

  	
   

  	
  20

  	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase
  Price to be adjusted by CCI as described in Exhibit B1

  	
   

  
									



 


	
   

  	
   

  	
  Approximate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months prior to

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Delivery of first

  	
   

  	
   

  	
   

  	
  % of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Major Turbine

  	
   

  	
   

  	
   

  	
  Purchase

  	
   

  	
  Cumulative % of

  	
   

  	
  Payment Amount

  	
   

  	
   

  	
   

  
	
  Milestone

  	
   

  	
  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  Price

  	
   

  	
  Purchase Price

  	
   

  	
  (thousands)

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  January 15, 2011

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
  12

  	
   

  	
  September 2, 2012

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #3

  	
   

  	
  6

  	
   

  	
  March 2, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
	
  Progress Payment #6 - *****

  	
   

  	
   

  	
   

  	
  September 2, 2013

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due
  upon completion of milestone

  	
   

  
	
  Progress Payment #7 - *****

  	
   

  	
   

  	
   

  	
  November 11, 2013 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due upon
  completion of milestone 

  	
   

  
	
  Progress Payment #8 - *****

  	
   

  	
   

  	
   

  	
  December 16, 2013 

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  Payment Due Date is estimated, actual payment due upon
  completion of milestone 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 


Notes


*****


*****


*****


 















 


Schedule
II


 


Schedules
below assume standard C96, 80m tower unless by modified by Change Order


 


First Wind - 2009 Hawaii Component Availability
Schedule - 12 Turbines


 


12 total: 3 per week, weeks
23 through week 26 of 2010


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mar-10

  	
   

  	
  April

  	
   

  	
  May

  	
   

  	
  June

  	
   

  	
  July

  	
   

  	
  August

  	
   

  	
  September

  
	
  Week #

  	
   

  	
  10

  	
   

  	
  11

  	
   

  	
  12

  	
   

  	
  13

  	
   

  	
  14

  	
   

  	
  15

  	
   

  	
  16

  	
   

  	
  17

  	
   

  	
  18

  	
   

  	
  19

  	
   

  	
  20

  	
   

  	
  21

  	
   

  	
  22

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  
	
  Date

  	
   

  	
  3/1

  	
   

  	
  3/8

  	
   

  	
  3/15

  	
   

  	
  3/22

  	
   

  	
  3/29

  	
   

  	
  4/5

  	
   

  	
  4/12

  	
   

  	
  4/19

  	
   

  	
  4/26

  	
   

  	
  5/3

  	
   

  	
  5/10

  	
   

  	
  5/17

  	
   

  	
  5/24

  	
   

  	
  5/31

  	
   

  	
  6/7

  	
   

  	
  6/14

  	
   

  	
  6/21

  	
   

  	
  6/28

  	
   

  	
  7/5

  	
   

  	
  7/12

  	
   

  	
  7/19

  	
   

  	
  7/26

  	
   

  	
  8/2

  	
   

  	
  8/9

  	
   

  	
  8/16

  	
   

  	
  8/23

  	
   

  	
  8/30

  	
   

  	
  9/6

  	
   

  	
  9/13

  	
   

  	
  9/20

  	
   

  	
  9/27

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2009 Non-Hawaii Component Availability
Schedule - 23 Turbines


 


23 total: 3 per week, weeks
36 through week 43 of 2011


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-11

  	
   

  	
  Jul-11

  	
   

  	
  Aug-11

  	
   

  	
  Sep-11

  	
   

  	
  Oct-11

  	
   

  	
  Nov-11

  	
   

  	
  Dec-11

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  5/30

  	
   

  	
  6/6

  	
   

  	
  6/13

  	
   

  	
  6/20

  	
   

  	
  6/27

  	
   

  	
  7/4

  	
   

  	
  7/11

  	
   

  	
  7/18

  	
   

  	
  7/25

  	
   

  	
  8/1

  	
   

  	
  8/8

  	
   

  	
  8/15

  	
   

  	
  8/22

  	
   

  	
  8/29

  	
   

  	
  9/5

  	
   

  	
  9/12

  	
   

  	
  9/19

  	
   

  	
  9/26

  	
   

  	
  10/3

  	
   

  	
  10/10

  	
   

  	
  10/17

  	
   

  	
  10/24

  	
   

  	
  10/31

  	
   

  	
  11/7

  	
   

  	
  11/14

  	
   

  	
  11/21

  	
   

  	
  11/28

  	
   

  	
  12/5

  	
   

  	
  12/12

  	
   

  	
  12/19

  	
   

  	
  12/26

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  3

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2010 deferred to 2011-2013 Component
Availability Schedule (further described in 2.4 of 2008 Omnibus Agreement) - 80
Turbines


 


2011A  Turbines - 40 Total


Delivery of First Major Turbine Component *****” as per Section 2.4
(b) of 2008 Omnibus Agreement


Subject to available Delivery periods as provided by Clipper
per Section 2.3 of 2009 Omnibus Agreement


 


2012A  Turbines - 30 Total


Delivery of First Major Turbine Component *****” as per Section 2.4
(b) of 2008 Omnibus Agreement


Subject to available Delivery periods as provided by Clipper
per Section 2.3 of 2009 Omnibus Agreement


 


2013A  Turbines - 10 Total


Delivery of First Major Turbine Component *****” as per Section 2.4
(b) of 2008 Omnibus Agreement


Subject to available Delivery periods as provided by Clipper
per Section 2.3 of 2009 Omnibus Agreement


 


First Wind - 2011 Component Availability Schedule - 10
Turbines


 


10 total; 4 per week starting
week 36 through week 38 of 2011


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-11

  	
   

  	
  Jul-11

  	
   

  	
  Aug-11

  	
   

  	
  Sep-11

  	
   

  	
  Oct-11

  	
   

  	
  Nov-11

  	
   

  	
  Dec-11

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  5/30

  	
   

  	
  6/6

  	
   

  	
  6/13

  	
   

  	
  6/20

  	
   

  	
  6/27

  	
   

  	
  7/4

  	
   

  	
  7/11

  	
   

  	
  7/18

  	
   

  	
  7/25

  	
   

  	
  8/1

  	
   

  	
  8/8

  	
   

  	
  8/15

  	
   

  	
  8/22

  	
   

  	
  8/29

  	
   

  	
  9/5

  	
   

  	
  9/12

  	
   

  	
  9/19

  	
   

  	
  9/26

  	
   

  	
  10/3

  	
   

  	
  10/10

  	
   

  	
  10/17

  	
   

  	
  10/24

  	
   

  	
  10/31

  	
   

  	
  11/7

  	
   

  	
  11/14

  	
   

  	
  11/21

  	
   

  	
  11/28

  	
   

  	
  12/5

  	
   

  	
  12/12

  	
   

  	
  12/19

  	
   

  	
  12/26

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2012 Component Availability Schedule - 20
Turbines


 


20 total; 4 per week starting
week 36 through week 40 of 2012


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-12

  	
   

  	
  Jul-12

  	
   

  	
  Aug-12

  	
   

  	
  Sep-12

  	
   

  	
  Oct-12

  	
   

  	
  Nov-12

  	
   

  	
  Dec-12

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  5/28

  	
   

  	
  6/4

  	
   

  	
  6/11

  	
   

  	
  6/18

  	
   

  	
  6/25

  	
   

  	
  7/2

  	
   

  	
  7/9

  	
   

  	
  7/16

  	
   

  	
  7/23

  	
   

  	
  7/30

  	
   

  	
  8/6

  	
   

  	
  8/13

  	
   

  	
  8/20

  	
   

  	
  8/27

  	
   

  	
  9/3

  	
   

  	
  9/10

  	
   

  	
  9/17

  	
   

  	
  9/24

  	
   

  	
  10/1

  	
   

  	
  10/8

  	
   

  	
  10/15

  	
   

  	
  10/22

  	
   

  	
  10/29

  	
   

  	
  11/5

  	
   

  	
  11/12

  	
   

  	
  11/19

  	
   

  	
  11/26

  	
   

  	
  12/3

  	
   

  	
  12/10

  	
   

  	
  12/17

  	
   

  	
  12/24

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2013 Component Availability Schedule - 20
Turbines


 


20 total; 4 per week starting
week 36 until week 40 of 2013


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-13

  	
   

  	
  Jul-13

  	
   

  	
  Aug-13

  	
   

  	
  Sep-13

  	
   

  	
  Oct-13

  	
   

  	
  Nov-13

  	
   

  	
  Dec-13

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  6/3

  	
   

  	
  6/10

  	
   

  	
  6/17

  	
   

  	
  6/24

  	
   

  	
  7/1

  	
   

  	
  7/8

  	
   

  	
  7/15

  	
   

  	
  7/22

  	
   

  	
  7/29

  	
   

  	
  8/5

  	
   

  	
  8/12

  	
   

  	
  8/19

  	
   

  	
  8/26

  	
   

  	
  9/2

  	
   

  	
  9/9

  	
   

  	
  9/16

  	
   

  	
  9/23

  	
   

  	
  9/30

  	
   

  	
  10/7

  	
   

  	
  10/14

  	
   

  	
  10/21

  	
   

  	
  10/28

  	
   

  	
  11/4

  	
   

  	
  11/11

  	
   

  	
  11/18

  	
   

  	
  11/25

  	
   

  	
  12/2

  	
   

  	
  12/9

  	
   

  	
  12/16

  	
   

  	
  12/23

  	
   

  	
  12/30

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2014 Component Availability Schedule - 50
Turbines


 


50 total; 4 per week starting
week 36 through week 48 of 2014


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-14

  	
   

  	
  Jul-14

  	
   

  	
  Aug-14

  	
   

  	
  Sep-14

  	
   

  	
  Oct-14

  	
   

  	
  Nov-14

  	
   

  	
  Dec-14

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  6/2

  	
   

  	
  6/9

  	
   

  	
  6/16

  	
   

  	
  6/23

  	
   

  	
  6/30

  	
   

  	
  7/7

  	
   

  	
  7/14

  	
   

  	
  7/21

  	
   

  	
  7/28

  	
   

  	
  8/4

  	
   

  	
  8/11

  	
   

  	
  8/18

  	
   

  	
  8/25

  	
   

  	
  9/1

  	
   

  	
  9/8

  	
   

  	
  9/15

  	
   

  	
  9/22

  	
   

  	
  9/29

  	
   

  	
  10/6

  	
   

  	
  10/13

  	
   

  	
  10/20

  	
   

  	
  10/27

  	
   

  	
  11/3

  	
   

  	
  11/10

  	
   

  	
  11/17

  	
   

  	
  11/24

  	
   

  	
  12/1

  	
   

  	
  12/8

  	
   

  	
  12/15

  	
   

  	
  12/22

  	
   

  	
  12/29

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


First Wind - 2015 Component Availability Schedule - 50
Turbines


 


50 total; 4 per week starting
week 36 until week 48 of 2015


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jun-15

  	
   

  	
  Jul-15

  	
   

  	
  Aug-15

  	
   

  	
  Sep-15

  	
   

  	
  Oct-15

  	
   

  	
  Nov-15

  	
   

  	
  Dec-15

  
	
  Week #

  	
   

  	
  23

  	
   

  	
  24

  	
   

  	
  25

  	
   

  	
  26

  	
   

  	
  27

  	
   

  	
  28

  	
   

  	
  29

  	
   

  	
  30

  	
   

  	
  31

  	
   

  	
  32

  	
   

  	
  33

  	
   

  	
  34

  	
   

  	
  35

  	
   

  	
  36

  	
   

  	
  37

  	
   

  	
  38

  	
   

  	
  39

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  53

  
	
  Date

  	
   

  	
  6/1

  	
   

  	
  6/8

  	
   

  	
  6/15

  	
   

  	
  6/22

  	
   

  	
  6/29

  	
   

  	
  7/6

  	
   

  	
  7/13

  	
   

  	
  7/20

  	
   

  	
  7/27

  	
   

  	
  8/3

  	
   

  	
  8/10

  	
   

  	
  8/17

  	
   

  	
  8/24

  	
   

  	
  8/31

  	
   

  	
  9/7

  	
   

  	
  9/14

  	
   

  	
  9/21

  	
   

  	
  9/28

  	
   

  	
  10/5

  	
   

  	
  10/12

  	
   

  	
  10/19

  	
   

  	
  10/26

  	
   

  	
  11/2

  	
   

  	
  11/9

  	
   

  	
  11/16

  	
   

  	
  11/23

  	
   

  	
  11/30

  	
   

  	
  12/7

  	
   

  	
  12/14

  	
   

  	
  12/21

  	
   

  	
  12/28

  
	
  Deliveries
  per Week

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  4

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1














 


Schedule III


Strategic Investment


 


A
“Strategic Investment” shall include any of the following:


 


*****


 

















 


Schedule IV


 


Escrow Instructions


 


1.
Upon the occurrence at any time of any one of the following (collectively, the
“Release Events”), the Escrow Agent shall release the ***** and the ***** to
Clipper:


 


(a)
receipt by the Escrow Agent of an announcement by Clipper of a Strategic
Investment, or


 


(b)
confirmation received by the Escrow Agent from Clipper of Clipper’s ***** to
First Wind of at least ***** Million Dollars, or at least ***** Million Dollars
if the ***** Turbine Payments have been paid by First Wind to Clipper, of paid
components or paid purchase orders for components, or work in progress with
respect to the ***** Turbines (such ***** to be in form and substance
reasonably satisfactory to First Wind, and to provide for the use by Clipper of
all such components in connection with Clipper’s Delivery to First Wind of the *****
Turbines), or


 


(c)
(i) the payment by Clipper to the Escrow Agent of the amount of the *****
Turbine Payment, and if paid by First Wind to Clipper, the ***** Turbine
Payments (for payment to First Wind upon ***** to Clipper), (ii) confirmation
received by the Escrow Agent from Clipper of Clipper’s agreement with First
Wind to pay to First Wind any and all other amounts paid by First Wind to
Clipper for the purchase of the ***** Turbines within thirty (30) days
following the release of the ***** to Clipper (and in the event that Clipper
does not pay to First Wind the amounts contemplated in this clause (c), First
Wind shall have the right to offset such amounts under clause (ii) not
paid by Clipper against any payment obligation under any *****), and (iii) confirmation
received by the Escrow Agent from Clipper of the release by Clipper of all
obligations of First Wind related to the purchase of the ***** Turbines under
the 2009 TSA, or


 


(d)
confirmation received by the Escrow Agent from Clipper of the issuance of a
guarantee, in form and substance reasonably satisfactory to First Wind, by a
company with a BBB- (S&P) or Baa3 (Moody’s) rating in favor of First Wind
that secures the delivery of the ***** Turbines no later than 60 days following
the last delivery date applicable to the ***** Turbines as set forth in the
applicable *****.


 


(e)
confirmation received by the Escrow Agent from Clipper of the Delivery of the *****
Turbines to First Wind, or


 


(f)
confirmation received by the Escrow Agent from Clipper that payment of the *****
Turbine Payment was not made by First Wind to Clipper within five (5) calendar
days following the date that the ***** was deposited into escrow.


 


2.
If one of the Release Events has not occurred on or before December 31,
2010, the Escrow Agent shall release the ***** to First Wind. *****.


 


3.
The escrow agreement shall allow for litigation as the means of dispute
resolution with respect to any disputes thereunder.


 






 










 


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.


 


Execution Copy


 


TURBINE SUPPLY AGREEMENT


 


BY AND BETWEEN


 


UPC WIND ACQUISITION V, LLC


 


AND


 


CLIPPER TURBINE WORKS, INC.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
  DEFINITIONS AND RULES OF INTERPRETATION

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Rules of Interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  SUPPLY AND OTHER OBLIGATIONS OF SUPPLIER

  	
  2

  
	
  2.1

  	
  Supply and Commissioning Obligations

  	
  2

  
	
  2.2

  	
  Permits; Governmental Requirements

  	
  3

  
	
  2.3

  	
  Purchaser’s Right to Inspect

  	
  3

  
	
  2.4

  	
  Subcontractors

  	
  3

  
	
  2.5

  	
  Safety

  	
  4

  
	
  2.6

  	
  Independent Contractor

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  PURCHASE PRICE AND PAYMENT

  	
  4

  
	
  3.1

  	
  Purchase Price

  	
  4

  
	
  3.2

  	
  Taxes

  	
  4

  
	
  3.3

  	
  Progress Payments

  	
  4

  
	
  3.4

  	
  Punch List Retainage

  	
  5

  
	
  3.5

  	
  Purchaser’s Credit Support

  	
  5

  
	
  3.6

  	
  Warranty Agreement

  	
  5

  
	
  3.7

  	
  Operations and Maintenance Service Agreement

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  DUTIES AND OBLIGATIONS OF PURCHASER

  	
  5

  
	
  4.1

  	
  Purchaser’s Obligations

  	
  5

  
	
  4.2

  	
  Cooperation with Supplier; Purchaser’s
  Representative

  	
  7

  
	
  4.3

  	
  Permits; Governmental Requirements

  	
  7

  
	
  4.4

  	
  Safety

  	
  7

  
	
  4.5

  	
  Intellectual Property Rights: Licenses and
  Obligations

  	
  7

  
	
  4.6

  	
  Transfer

  	
  9

  
	
  4.7

  	
  Access to Information

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  COMMENCEMENT, DELIVERY AND SHIPMENT

  	
  9

  
	
  5.1

  	
  Commencement

  	
  9

  
	
  5.2

  	
  Shipping Arrangements

  	
  10

  
	
  5.3

  	
  Delivery Schedule

  	
  10

  
	
  5.4

  	
  Designated Delivery Locations

  	
  10

  
	
  5.5

  	
  Delay Delivery Damages

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  FINAL ASSEMBLY WORK, INSTALLATION WORK,
  COMMISSIONING WORK AND PROJECT COMPLETION

  	
  11

  
	
  6.1

  	
  Final Assembly Work and Turbine Installation

  	
  11

  
	
  6.2

  	
  Commissioning

  	
  11

  
	
  6.3

  	
  Project Completion

  	
  12

  
	
  6.4

  	
  Purchaser Delays

  	
  12

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
  ARTICLE 7

  	
  FORCE MAJEURE EVENTS

  	
  12

  
	
  7.1

  	
  Excused Performance

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  CHANGE ORDERS

  	
  13

  
	
  8.1

  	
  Change Order

  	
  13

  
	
  8.2

  	
  Change Order Process

  	
  13

  
	
  8.3

  	
  No Change

  	
  13

  
	
  8.4

  	
  Scope Changes Caused by a Force Majeure Event

  	
  14

  
	
  8.5

  	
  Scope Changes Caused by Events within the Control of
  Purchaser

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  LIMITATION OF LIABILITY

  	
  14

  
	
  9.1

  	
  Supplier Not Responsible for Purchaser’s Work

  	
  14

  
	
  9.2

  	
  Overall Limitation of Liability

  	
  14

  
	
  9.3

  	
  Consequential Damages

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  TITLE AND RISK OF LOSS; INSURANCE

  	
  15

  
	
  10.1

  	
  Title to Supply Items

  	
  15

  
	
  10.2

  	
  Risk of Loss

  	
  15

  
	
  10.3

  	
  Insurance

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  REPRESENTATIONS AND WARRANTIES OF SUPPLIER

  	
  19

  
	
  11.1

  	
  Due Organization; Good Standing

  	
  19

  
	
  11.2

  	
  Due Authorization

  	
  19

  
	
  11.3

  	
  Execution and Delivery

  	
  19

  
	
  11.4

  	
  Governmental Approvals

  	
  19

  
	
  11.5

  	
  Supply Items; Services

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
  20

  
	
  12.1

  	
  Due Organization; Good Standing; Qualified To Do
  Business

  	
  20

  
	
  12.2

  	
  Due Authorization

  	
  20

  
	
  12.3

  	
  Execution and Delivery

  	
  20

  
	
  12.4

  	
  Governmental Approvals

  	
  20

  
	
  12.5

  	
  Project Site

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  MUTUAL INDEMNITY

  	
  21

  
	
  13.1

  	
  Mutual Indemnity

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  DEFAULT; CURE; REMEDIES

  	
  21

  
	
  14.1

  	
  Default by Supplier

  	
  21

  
	
  14.2

  	
  Purchaser’s Remedies

  	
  21

  
	
  14.3

  	
  Default by Purchaser

  	
  22

  
	
  14.4

  	
  Supplier’s Remedies

  	
  22

  
	
  14.5

  	
  Cancellation Due to a Force Majeure Event

  	
  22

  
	
  14.6

  	
  Surviving Obligations

  	
  23

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
  ARTICLE 15

  	
  DISPUTE RESOLUTION

  	
  23

  
	
  15.1

  	
  Procedure

  	
  23

  
	
  15.2

  	
  Qualifications of Arbitrators; Expenses

  	
  26

  
	
  15.3

  	
  Performance During Dispute

  	
  26

  
	
  15.4

  	
  Consolidation

  	
  26

  
	
  15.5

  	
  Language

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
  GENERAL PROVISIONS

  	
  26

  
	
  16.1

  	
  Waiver

  	
  26

  
	
  16.2

  	
  Successors and Assigns

  	
  26

  
	
  16.3

  	
  Permitted Assignments

  	
  26

  
	
  16.4

  	
  Notices

  	
  27

  
	
  16.5

  	
  Governing Law

  	
  28

  
	
  16.6

  	
  Amendments

  	
  28

  
	
  16.7

  	
  Attachments Incorporated

  	
  28

  
	
  16.8

  	
  Entire Agreement

  	
  28

  
	
  16.9

  	
  Confidentiality

  	
  28

  
	
  16.10

  	
  Counterparts

  	
  29

  
	
  16.11

  	
  English Language Documents

  	
  29

  
	
  16.12

  	
  Severability

  	
  29

  
	
  16.13

  	
  Headings

  	
  29

  
	
  16.14

  	
  Agreement Revisions

  	
  29

  



 


iii

















 


Exhibits


 


	
  Appendix I

  	
   

  	
  Definitions

  
	
  Exhibit A

  	
   

  	
  Ancillary Parts and Equipment

  
	
  Exhibit B

  	
   

  	
  Payment Schedule

  
	
  Exhibit C

  	
   

  	
  Spare Parts

  
	
  Exhibit D

  	
   

  	
  Turbine Installation Manual

  
	
  Exhibit E

  	
   

  	
  Foundation Loads Document

  
	
  Exhibit F

  	
   

  	
  Turbine Component Storage Requirements

  
	
  Exhibit G

  	
   

  	
  Termination Schedule

  
	
  Exhibit H

  	
   

  	
  Supplier’s Major Turbine Component Suppliers

  
	
  Exhibit I

  	
   

  	
  Supplier Account

  
	
  Exhibit J

  	
   

  	
  Guaranty

  
	
  Exhibit K

  	
   

  	
  Transferee Agreement and Acknowledgment

  
	
  Exhibit L

  	
   

  	
  Delivery Schedule

  
	
  Exhibit M

  	
   

  	
  Commissioning Certificate

  
	
  Exhibit N

  	
   

  	
  Project Completion Certificate

  
	
  Exhibit O

  	
   

  	
  Commissioning and Start-Up Procedures

  
	
  Exhibit P

  	
   

  	
  Final Assembly Work

  
	
  Exhibit Q

  	
   

  	
  Project Site

  
	
  Exhibit R

  	
   

  	
  Supplier Permits

  
	
  Exhibit S

  	
   

  	
  Turbine Specifications

  
	
  Exhibit T

  	
   

  	
  Completion Schedule

  
	
  Exhibit U

  	
   

  	
  SCADA System Specifications

  
	
  Exhibit V

  	
   

  	
  SCADA System Installation Manual

  



 


i

















 


TURBINE SUPPLY AGREEMENT


 


THIS TURBINE SUPPLY AGREEMENT (the “Agreement” or the “Supply Agreement”)
is made and entered into and effective as of December 31, 2007 by and
between CLIPPER TURBINE WORKS, INC., a Delaware corporation (“Supplier”), and
UPC WIND ACQUISITION V, LLC, a Delaware limited liability company with a place
of business c/o UPC Wind Management, LLC, 85 Wells Ave., Suite 305,
Newton, MA 02459 (“Purchaser”). Supplier and Purchaser are sometimes referred
to, individually, as a “Party” or, collectively, as the “Parties”.


 


RECITALS


 


WHEREAS, Purchaser desires to purchase, and Supplier desires to sell
thirty five (35) Clipper Windpower 2.5 MW “C-96” series wind turbine generators
(each a “Turbine” and collectively, the “Turbines”), each consisting of the
Major Turbine Components and Ancillary Parts and Equipment (as set forth in Exhibit A
hereto). Additionally, Purchaser, in connection with its purchase of the
Turbines, desires to purchase and Supplier desires to provide the Commissioning
Work (as defined in Appendix I hereto), all on the terms and subject to
the conditions set forth herein.


 


WHEREAS, Purchaser shall incorporate the Turbines into an 87.5 MW wind
power project being developed by Purchaser to be located at a single project
site within the state of Hawaii (the “Project”).


 


NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, Supplier and Purchaser, intending to
be legally bound, hereby agree as follows:


 


AGREEMENT


 


ARTICLE 1


 


DEFINITIONS
AND RULES OF INTERPRETATION


 


1.1       Definitions. For
purposes of the Turbine Supply Documents and all schedules, exhibits and
attachments thereto, and in addition to the definitions elsewhere in this
Agreement and the other Turbine Supply Documents, the terms listed in Appendix
I hereto shall have the respective meanings assigned to such terms in Appendix
I hereto, which is incorporated herein and made a part hereof.


 


1.2       Rules of
Interpretation. In this Agreement: (a) references to Sections and to
Exhibits are, unless otherwise indicated, to Sections of and Exhibits to this
Agreement; (b) the headings to Sections and Articles of this Agreement are
for ease of reference only and shall not in any way affect its construction or
interpretation; (c) the masculine gender shall include the feminine and
neuter and the singular number shall include the plural, and vice versa, and
references to persons shall include individuals, bodies corporate,
unincorporated associations, companies and partnerships; and


 


1

















 


(d) references
to Parties in this Agreement shall be deemed to include references to their
successors and permitted assigns.


 


ARTICLE 2


 


SUPPLY AND
OTHER OBLIGATIONS OF SUPPLIER


 


2.1       Supply and
Commissioning Obligations. Purchaser hereby agrees to purchase and, subject
to the terms and provisions hereof, Supplier agrees to supply and Deliver as
provided in Subsections (a) and (b) below, the Supply Items and
related Services for the Turbines. With respect to the Supply Items and related
Services, following Purchaser’s submittal to Supplier of the Down Payment, and
subject to the compliance by Purchaser with the terms hereof, Supplier agrees
to do the following respecting the Supply Items and Services:


 


(a)         supply,
pack, and Deliver, in accordance with wind industry practice and commercially
reasonable shipping carrier requirements and in an economic manner consistent
with wind industry practices, all Supply Items, the SCADA System and all
related components and parts (other than foundations, foundation bolts, pad
mount transformers and collection lines, communication lines and related
equipment to be supplied by Purchaser) necessary to install and commission wind
turbine generators in the quantity set forth above that are capable of
performing to the Turbine Specifications (the “Supply Obligations”);


 


(b)        perform
the Commissioning Work, as described in Section 6.2 below.


 


2.1.1           Failure to
Timely Deliver Down Payment. If Purchaser fails to deliver to Supplier the
Down Payment on or before the Down Payment Date, then Purchaser’s right to
purchase and Supplier’s obligation to sell and Deliver the Supply Items and
related Services shall terminate at the option of Supplier and be of no further
force or effect, provided that Supplier shall first give Purchaser five (5) days
written notice to afford Purchaser the opportunity to correct its performance.


 


2.1.2           Spare Parts.


 


(a)         During
the Warranty Period, Supplier shall maintain an inventory of spare parts at
such location and consisting of such spare parts as Supplier, in its sole
discretion, shall determine necessary for the timely operation and maintenance
of the Turbines during the Warranty Period (the “Necessary Spare Parts
Inventory”). The list of spare parts proposed by Supplier is attached hereto as
Exhibit C. It is the intention of the parties that the Necessary
Spare Parts Inventory be used and maintained during the Warranty Period in
order for Supplier to fulfill its obligations under the OMS Agreement and the
Warranty Agreement.


 


(b)        Purchaser
may purchase such additional spare parts, at Purchaser’s sole expense, and
maintain such additional spare parts on the Project Site, at Purchaser’s sole
expense; provided that such spare parts are available from Supplier without
unreasonably impacting Supplier’s production of turbines.


 


2

















 


(c)         Within
six (6) months of the date of final payment by Purchaser to Supplier of
the Purchase Price, Supplier shall place into escrow with an escrow agent to be
agreed upon between the parties, subject to an escrow agreement to be agreed
between the parties, drawings (the “Spare Parts Drawings”) necessary for
Purchaser to make or have made any spare parts for the Turbines whose
manufacture are subject to intellectual property rights of Supplier. Pursuant
to the terms of the agreed upon escrow agreement, Purchaser shall be provided
access to the Spare Parts Drawings only if and when Supplier is unable to
provide necessary spare parts for the Turbines to Purchaser due to a default
under Section 14.1(i), (ii), (iii) or (iv) under this
Agreement.


 


2.1.3           SCADA System.
Purchaser shall purchase the SCADA System from Supplier (exclusive of any fiber
optic lines or other communication lines) for an amount equal to ***** Dollars ($*****). The price of the SCADA System is included
in the Purchase Price.


 


2.1.4           [Intentionally
Left Blank].


 


2.1.5           Other Items.
Supplier has provided Purchaser with: the Turbine Installation Manual, a copy
of which is set forth on Exhibit D; the Foundation Loads Document,
a copy of which is set forth on Exhibit E; and the Turbine
Component Storage Requirements, a copy of which is set forth on Exhibit F.
No later than ten (10) days prior to the anticipated Commissioning of the
first Turbine, Supplier shall provide to Purchaser the OMS Manual. Concurrently
with the execution of this Agreement, Supplier and Purchaser shall deliver to
the other Party the Warranty Agreement and the OMS Agreement, duly executed by
each Party. At Purchaser’s request and at Purchaser’s cost, within twelve (12)
months of Commissioning of the last Turbine, Supplier shall provide to
Purchaser a location specific site suitability certificate from Germanischer
Lloyd.


 


2.2       Permits; Governmental
Requirements. Supplier shall secure and pay for all Supplier Permits
required for the Delivery of the Supply Items to the Designated Delivery
Location. Purchaser shall cooperate with Supplier in obtaining the Supplier
Permits. Supplier shall have no obligation to obtain any Purchaser Permit;
provided Supplier shall cooperate with Purchaser in Purchaser’s efforts to
obtain and comply with Purchaser Permits. Supplier shall comply with all
Governmental Requirements applicable to the performance of its obligations
hereunder.


 


2.3       Purchaser’s Right to
Inspect. Supplier shall permit Purchaser, upon ten (10) days prior
written notice to Supplier, to inspect the Turbines and to visit Supplier’s
Turbine manufacturing and assembly facilities for such purpose, subject in all
cases to Supplier’s confidentiality requirements and reasonable safety
precautions, and so long as such inspection and presence does not unreasonably
interfere with or delay the completion or Delivery of the Turbines or Supplier’s
performance of its obligations hereunder.


 


2.4       Subcontractors.
Supplier may retain such Subcontractors as in Supplier’s reasonable judgment
may be necessary to complete Supplier’s duties and obligations under this
Agreement. Supplier shall be solely responsible to pay its Subcontractors and
the use of any Subcontractor shall not limit Supplier’s obligations hereunder.
The list of Supplier’s Major Turbine Component suppliers is set forth on Exhibit H.
Supplier agrees that it will not use any Major Turbine


 


3

















 


Components not listed on Exhibit H.
without Purchaser’s advance written consent, such consent not to be
unreasonably withheld, conditioned or delayed.


 


2.5       Safety. Until any Supply Item has
been Delivered, Supplier shall take reasonable steps to protect each Supply
Item against damage, destruction or theft, and shall ensure that all Supplier
Insurance covering the Turbines remains in full force and effect prior to
Delivery.


 


2.6       Independent Contractor. In
performing its duties and obligations under this Agreement, Supplier shall, at
all times, act in the capacity of an independent contractor, and shall not in
any respect be deemed (or act as) an agent of Purchaser for any purpose or
reason whatsoever. Supplier shall have no responsibility for any of Purchaser’s
Work hereunder.


 


ARTICLE 3


 


PURCHASE PRICE AND PAYMENT


 


3.1       Purchase Price. For the Supply
Items, SCADA System and Services, Purchaser shall pay to Supplier ***** Dollars ($*****) (the “Purchase Price”).
Purchaser shall pay to Supplier on the date of this Agreement (the “Down
Payment Date”) a non-refundable amount equal to ***** percent (*****%) of the
Purchase Price (the “Down Payment”). All payments to be made under this
Agreement by Purchaser to Supplier shall be made in immediately available funds
to the Supplier account set forth in Exhibit I. The Purchase Price
is subject to adjustment by Change Order as provided in this Agreement.


 


3.2       Taxes. Supplier shall be
responsible for (a) all federal and state income taxes payable by Supplier
in connection with its net income, (b) all taxes in connection with the
import of any Supply Item into the United States, and (c) any business
license or fees arising in connection with Supplier’s business in any State.
Purchaser shall be responsible for all sales and use tax and any other federal,
state or local taxes imposed on the sale or use of the Supply Items and any
services provided hereunder (collectively “Taxes”).


 


3.3       Progress Payments.


 


3.3.1           The remaining amount of the Purchase
Price shall be paid by the Purchaser to the Supplier pursuant to the Payment Schedule
set forth on Exhibit B attached hereto (the “Payment Schedule”).
Upon completion of each of the milestones for the Project set forth on Exhibit B
attached hereto, the corresponding portion of the Purchase Price shall be due
and payable to Supplier as set forth on Exhibit B attached hereto
(each, a “Progress Payment”).


 


(a)       Purchaser shall pay the Down Payment and
each Progress Payment to Supplier in United States Dollars and in immediately
available funds to the account of Supplier, identified on Exhibit I.
Should Purchaser fail to make any Progress Payment when due, in addition any
other remedy available to Supplier under this Agreement, or otherwise, (i) Supplier
may enforce the Guaranty as set forth in Section 3.5 pursuant to
its terms; (ii) such overdue amount shall bear interest until paid in full
at the Default Rate, and (iii) Supplier may,


 


4

















 


without prejudice to any
other rights or remedies it may have under this Agreement, stop its performance
hereunder until the overdue amount and interest thereon is paid in full.


 


(b)  Provided that Supplier has duly performed or
is reasonably performing its obligations hereunder and irrespective of any
other term of this Agreement, and provided that any delay in obtaining the
Project Completion Certificate within six (6) months after Delivery of the
last Major Turbine Component by Supplier for the Project is not caused solely
by Supplier or any of Supplier’s Affiliates or subcontractors, one hundred
percent (100%) of the Purchase Price, subject to the retention of the
applicable Punch List Retainage, shall be paid by Purchaser to Supplier no
later than six months after Delivery of the last Major Turbine Component by
Supplier for the Project.


 


3.4       Punch List Retainage. In
delivering the Project Completion Certificate as provided in Section 6.3
below hereunder, Supplier shall include an estimated cost to complete each item
of Punch List Work (200% of such estimated costs being the “Punch List
Retainage”). The Progress Payment corresponding to delivery of the Project
Completion Certificate shall be decreased by an amount, if any, which is equal
to the Punch List Retainage, and upon the completion of any item of Punch List
Work to the reasonable satisfaction of Purchaser, Purchaser shall immediately
pay Supplier the Punch List Retainage that was retained by Purchaser for such
item of Punch List Work.


 


3.5       Purchaser’s Credit Support.
Purchaser shall, concurrently with the delivery by Purchaser of the Down
Payment, deliver to Supplier a guaranty from its parent company (the “Guaranty”)
in substantially the form attached hereto as Exhibit J.


 


3.6       Warranty Agreement. The Parties
acknowledge that, concurrent with the execution of this Agreement, the Parties
shall enter into the Warranty Agreement. The cost of the first two (2) years
of warranty coverage under the Warranty Agreement is included in the Purchase
Price.


 


3.7       Operations and Maintenance Service
Agreement. Concurrent with the execution of this Agreement, Affiliates of
the Purchaser and Supplier shall execute an OMS Agreement whereby Supplier, an
Affiliate of Supplier, or a contractor designated by Supplier and approved by
Purchaser (the “Contractor”), shall provide operation and maintenance service
to the Project. Pursuant to the terms of the OMS Agreement, the cost for the
first two (2) years of OMS Services (other than Additional OMS Services)
is included in the Purchase Price.


 


ARTICLE 4


 


DUTIES AND OBLIGATIONS OF PURCHASER


 


4.1       Purchaser’s Obligations. Purchaser
agrees to perform the following, all on the terms and subject to the conditions
of this Agreement:


 


4.1.1           Payment. Purchaser shall make
the Down Payment, all Progress Payments and any other payments due Supplier
under this Agreement when due and shall be responsible for and promptly pay all
Taxes.


 


4.1.2           Purchaser’s Work. Purchaser
shall, at its sole cost and expense, be solely responsible for all work
necessary for the development, construction, completion and operation


 


5

















 


of the Project (other
than the Delivery of Supply Items and the performance of the Services by
Supplier) and for the installation and operation of the Turbines, which work
(herein “Purchaser’s Work”) shall include the following:


 


(a)        Site Suitability and Access. Purchaser
shall ensure that the Project Site is suitable for installation of the Turbines
in accordance with the Turbine Specifications and Turbine Installation Manual
and shall ensure that Supplier has continuous unfettered physical access to the
Project Site during normal business hours during the performance of its
Commissioning Work;


 


(b)       Acceptance and Shipment of Supply
Items. Upon Supplier’s Delivery of any Supply Item to its respective
Designated Delivery Location, Purchaser shall, unless otherwise agreed by the
Parties, within five (5) days after notice from Supplier and at such date
and time set forth in Supplier’s notice, pick up the Supply Item at its
Designated Delivery Location, and ship, install or store such Supply Item at
the Project Site. Purchaser shall be responsible for any reasonable costs
incurred by Supplier due to Purchaser’s delay in promptly picking up and
transporting off site any Supply Item upon its Delivery within said five (5) day
period. Purchaser shall be solely responsible for shipment and insurance of
each Supply Item once picked up;


 


(c)        Storage. Purchaser shall ensure
that adequate staging, lay down and storage areas for the Supply Items are
available and maintained at the Project Site and shall store and maintain the
Supply Items pending installation in accordance with the Turbine Component
Storage Requirements set forth on Exhibit F;


 


(d)       Tower Foundations. Purchaser shall
investigate the Project Site and its soil conditions and shall design and
construct the Tower Foundations in accordance with Supplier’s Tower Foundation
Requirements;


 


(e)        Turbine and SCADA System Installation.
Purchaser shall perform the Turbine Installation Work and the installation of
the SCADA System, all in strict accordance with the Turbine Specifications, the
Turbine Installation Manual and the SCADA System Installation Manual; and shall
(i) notify Supplier of Purchaser’s proposed schedule for all such work; (ii) coordinate
such work with Supplier’s Commissioning Work for the Turbines; and (iii) complete
the Installation Work in such a manner so that a team of two technicians can
complete the Commissioning of each Turbine within a period not to exceed three
and a half (3 1/2) Business Days, without interruption or delay on a continuous
basis until all Turbines have been Commissioned;


 


(f)        Construction of Project.
Purchaser shall (i) perform the Final Assembly Work which is set forth in Exhibit P
hereto (ii) perform all civil works (including roads, grading, maintenance
facilities, meteorological towers and other items); (iii) perform all
electrical works (including collection lines, Electrical Infrastructure,
Transmission Facilities, Interconnection Facilities and other items); (iv) provide
and install a remote terminal unit and cabling to the Substation,
meteorological towers, and communications lines for the SCADA System to the
Substation; and (v) provide any other items required for the operation of
the Project; and


 


6














 


(g)       Commissioning Responsibilities.
Purchaser shall ensure that at all times during Commissioning Work, each
Turbine shall have a continuous supply of electricity from the grid, and that
Purchaser’s utility will accept electricity generated by such Turbine. During
Commissioning, Purchaser shall provide assistance, including equipment,
electricians and mechanics, as may be reasonably required by Supplier to
address any out of scope impacts on the completion of Commissioning. Purchaser
shall arrange for the provision of full grid power to each Turbine to ensure
completion of the Commissioning Work for each Turbine.


 


4.1.3           Other Items. On or before the
date that is thirty (30) days prior to the date of Delivery of the first Major
Turbine Component for the Project, Purchaser shall provide Supplier with
notification of the anticipated date that Purchaser will energize the
substation for the Project.


 


4.2       Cooperation with Supplier; Purchaser’s
Representative. Purchaser shall cooperate with Supplier and, if applicable,
shall cause its EPC Contractor and any other contractors engaged by Purchaser
with respect to the Project (herein, “Purchaser’s Contractors”), to cooperate
with Supplier, all in connection with Supplier’s performance of its obligations
hereunder. Purchaser shall promptly provide Supplier with a schedule of the
names and contact information for all of Purchaser’s Contractors and shall
update such schedule periodically. Purchaser designates Scott Rowland as its
representative (“Purchaser’s Representative”) in dealing with Supplier with
respect to this Agreement.


 


4.3       Permits; Governmental Requirements.
Purchaser shall secure and pay for all Purchaser Permits, including any permits
required for the delivery of Supply Items from the Designated Delivery Location
to the Project Site. Supplier shall cooperate with Purchaser in obtaining
Purchaser’s Permits. Purchaser shall have no obligation to obtain any Supplier
Permit; provided that, Purchaser shall cooperate with Supplier in Supplier’s
efforts to obtain Supplier Permits. Purchaser shall comply with all
Governmental Requirements applicable to the performance of Purchaser’s Work.


 


4.4       Safety. Upon Delivery of any
Supply Item to its Designated Delivery Location, Purchaser shall take
reasonable steps, and shall ensure that the EPC Contractor and the Purchaser’s
Contractors take reasonable steps, to protect any such Supply Item against
damage or theft.


 


4.5       Intellectual Property Rights: Licenses
and Obligations.


 


4.5.1           Patents. Supplier hereby
grants to Purchaser under Supplier’s patent rights, only the non-exclusive
right to use the Supply Items provided to Purchaser under this Agreement.
Supplier expressly reserves all other patent rights, including, without
limitation, the right to make, use, sell, offer for sale and import other
products identical to or similar to the Supply Items. Other than the rights
granted herein with respect to the Supply Items, Supplier expressly reserves
all other patent rights, and Purchaser shall not have the right under Supplier’s
patent rights to make, use, sell, offer for sale, or import any products or
methods that infringe Supplier’s patents or to sublicense any of the foregoing
rights.


 


7

















 


4.5.2           Trade Secrets. Purchaser
acknowledges that the technical, operation and maintenance, and other
information it receives in connection with the Supply Items (including, without
limitation, any and all firmware, software, Turbine Specifications, SCADA
System Specifications, installation and operation and maintenance procedures,
know-how and similar items) constitute trade secret information that is
proprietary to Supplier. Supplier hereby grants to Purchaser under Supplier’s
trade secret rights, the non-exclusive right to use such trade secrets only in
the installation and operation and maintenance of the Supply Items. Supplier
further grants to Purchaser under Supplier’s trade secret rights, the
non-exclusive right to disclose such trade secrets to a third party only as
necessary for the financing, installation and operation and maintenance of the
Supply Items provided such third party executes a written agreement obligating
it to maintain the confidentiality of the trade secret information and to
return all copies of such trade secret information received and prohibiting
reverse engineering, disassembly, and decompilation of any of the trade secret
information. Other than the rights granted herein with respect to the Supply
Items, Supplier expressly reserves all other trade secret rights. Purchaser
agrees to maintain all such trade secret information in strict confidence and
shall not disclose such trade secret information to any third party except in
accordance with this Section 4.5.2. The obligations of
confidentiality herein shall survive termination or expiration of this
Agreement.


 


4.5.3           Copyrights. Purchaser
acknowledges that the technical, operation and maintenance, and other
information it receives in connection with the Supply Items (including, without
limitation, any and all firmware, software, Turbine Specifications, SCADA
System Specifications, installation and operation and maintenance procedures,
descriptions of know-how and similar written items) constitute copyrightable
material. Supplier hereby grants to Purchaser under Supplier’s copyrights, the
non-exclusive right to copy and use such copyrighted materials only in the
installation and operation and maintenance of the Supply Items. Supplier
further grants to Purchaser under Supplier’s copyrights, the non-exclusive
right to copy the copyrightable materials and distribute such to a third party
only as necessary for the installation and operation and maintenance of the
Supply Items, provided such third party executes a written agreement obligating
it to return all copies of such copyrightable materials received, prohibiting
any further copying or distribution of such copyrightable materials, and
prohibiting reverse engineering, disassembly and decompilation of any of the
copyrightable materials. Other than the rights granted herein with respect to
the Supply Items, Supplier expressly reserves all other copyright rights.
Purchaser shall not have the right to sublicense any of the Supplier’s
copyright rights or the right to create derivative works of any of the
copyrightable materials. Purchaser shall not reverse engineer, disassemble or
decompile any of the copyrightable materials.


 


4.5.4           Trademarks and Service Marks.
Purchaser shall not have any rights in any trademarks or service marks, whether
registered or not, that are owned or controlled by Supplier. Purchaser shall
not utilize any trademark or service mark that is substantially similar to any
trademarks or service marks owned or controlled by Supplier. Purchaser may
reference only those trademarks or service marks owned by Supplier in its
written materials; provided that, such reference clearly denotes that such is a
trademark or service mark and is owned by Supplier.


 


4.5.5           Transfer of Title in Supply Items.
Should Purchaser transfer title in any of the Supply Items to a third party,
the licenses provided in this Section 4.5 shall run with such
Supply Items, provided such third party executes a Transferee Agreement and
Acknowledgment, in the form attached hereto as Exhibit K,
acknowledging Supplier’s ownership in the respective


 


8

















 


Intellectual Property
Rights and obligating itself to all of the same prohibitions and restrictions
with respect to Supplier’s Intellectual Property Rights described in this Section 4.5.
Purchaser acknowledges that the Supply Items may be subject to the export
control laws and regulations of the United States of America and agrees to
comply with all such laws and regulations regarding any export of any of the
Supply Items.


 


4.5.6           Ownership and Injunctive Relief.
All Intellectual Property Rights owned or controlled by Supplier shall remain
the exclusive property of Supplier and nothing herein shall be construed as a
sale, lease, loan, or transfer of any of such Intellectual Property Rights.
Purchaser shall derive no rights, title or interest therein except as expressly
set forth in this Agreement. Any technical information concerning the Supply
Items that Purchaser acquires or develops in connection with the ownership or
operation of the Turbines shall be the property of Supplier. Further, Purchaser
acknowledges that a breach of the confidentiality provisions in this Agreement
may cause Supplier irreparable harm and damage that may not be recoverable at
law and that Purchaser shall be entitled to obtain injunctive relief in
addition to any other rights or remedies Purchaser may have.


 


4.5.7           Government Rights. Any and all
computer software and related documentation provided as part of the Supply
Items are “commercial items” as that term is defined at 48 C.F.R. 2.01 (October 1995)
comprising “commercial computer software” and “commercial computer software
documentation” as used in 48 C.F.R. 12.212 (September 1995) and other
applicable acquisition regulations and are provided to the U.S. Government only
as a commercial item and subject to the terms and conditions and all
restrictions set forth in this Agreement as applicable to such computer
software and related documentation. Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202 (June 1995), all U.S. Government users and licensees
acquire the software and its related documentation with only those rights
applicable to such software and related documentation as set forth in this Section 4.5.


 


4.6       Transfer. Purchaser covenants and
agrees that it will not sell, lease or otherwise transfer the Turbines or any
part thereof unless Purchaser first obtains and delivers to Supplier a
Transferee Agreement and Acknowledgment, executed by the proposed transferee.
Notwithstanding anything else contained herein, Purchaser may assign in whole
or in part its rights under this Agreement to an Affiliate upon notice to
Supplier.


 


4.7       Access to Information. From the
date of this Agreement through the end of the fifteenth (15th) year after
Project Completion, Purchaser shall provide to Supplier prompt access to all
technical, operational and maintenance and other information it receives or
collects in connection with its operating the Turbines. The collection of all
such data shall be at the reasonable expense of Supplier. All information provided
by Purchaser hereunder shall be subject to the provisions of Section 16.9.


 


ARTICLE 5


 


COMMENCEMENT, DELIVERY AND SHIPMENT


 


5.1       Commencement. Subject to Section 2.1.1,
Supplier shall commence performance of its obligations under this Agreement on
the Down Payment Date. In addition to Supplier’s other


 


9

















 


rights and remedies
hereunder, if any payment due under this Agreement is not timely made by
Purchaser, the delinquent payment amount shall accrue interest at the Default
Rate.


 


5.2       Shipping Arrangements. All Supply
Items shall be delivered Ex Works at the Designated Delivery Locations. For
purposes of this Agreement, each individual Supply Item and the SCADA System
shall be deemed “Delivered” and Supplier shall have satisfied its delivery
arrangements with respect thereto, when Supplier makes available such Supply
Item and SCADA System at its Designated Delivery Location for pick up by
Purchaser, provided however, that Purchaser may not take custody and control of
the said Supply Item until the applicable Progress Payment has been made by
Purchaser and received by Supplier. Purchaser shall be responsible for all
loading and shipment of the Supply Items and SCADA System from their respective
Designated Delivery Locations to the Project Site and shall pay for all costs
and expenses incurred by Purchaser related thereto, including the costs of
maintaining insurance on such Supply Item and SCADA System during shipment of
such Supply Item and SCADA System from its respective Designated Delivery
Location to the Project Site.


 


5.3       Delivery Schedule. The Supply
Items shall be Delivered to their Designated Delivery Locations in accordance
with the Delivery Schedule attached as Exhibit L (the “Delivery
Schedule”); provided however, that Supplier shall use commercially reasonable
efforts to work with Purchaser to revise the Delivery Schedule as necessary
considering Supplier’s manufacturing schedules and Purchaser’s Project
requirements. Delivery dates in the Delivery Schedule will be deemed met so
long as the Supply Items are delivered to the Designated Delivery Locations on
or before the date for such delivery set forth in the Delivery Schedule;
provided that, Supplier shall have the right to Deliver the Supply Items up to
one (1) month earlier than provided for in the Delivery Schedule. The
SCADA System shall be delivered at a Designated Delivery Location mutually
agreed by the Parties following the installation of the first Turbine at the
Project Site by Purchaser.


 


5.4       Designated Delivery Locations.
Unless otherwise agreed in writing by the Parties, Supplier shall Deliver the
Supply Items as follows: (i) Turbine Nacelle, Turbine Controller, Turbine
hub and Ancillary Parts and Equipment at Supplier’s factory near Cedar Rapids,
Iowa, (ii) the Turbine Blades at such location or warehouse facility as
Supplier may direct near Houston, Texas, or at another mutually agreed upon
location, provided any costs associated with such other mutually agreed
location be borne by Purchaser, and (iii) the Towers at the manufacturing
facility located in Chattanooga, Tennessee, or at such other domestic location
as Supplier may specify at any point prior to three (3) months from the
Delivery date set forth in the Delivery Schedule. Each of the foregoing
locations is referred to herein as a “Designated Delivery Location.”


 


5.5       Delay Delivery Damages. The
Parties acknowledge that Purchaser will suffer damages that will be difficult
to ascertain if Purchaser fails to Deliver any Major Turbine Component within
thirty (30) days of the applicable date of Delivery set forth in the Delivery
Schedule. Consequently, the Parties agree that Supplier will pay Purchaser, if
any Major Turbine Component is Delivered thirty (30) days or more late and such
delay was not due to any Force Majeure Event or breach by Purchaser of any of
its obligations under this Agreement, the following amount as liquidated
damages: For each full day after the first thirty (30) days following the date
that the Delivery of such Major Turbine Component is delayed beyond the date
specified in the Delivery Schedule, an amount equal to $***** per Turbine per day for the first fifteen (15) days after


 


10

















 


delay payments become
payable, an amount equal to $*****
per day for the next fifteen (15) days, and an amount equal to $***** per day thereafter (the “Delay
Delivery Damages”); provided that, in no event shall the aggregate Delay
Delivery Damages payable hereunder exceed ***** percent (*****%)
of the pro-rata portion of the Purchase Price applicable to the Turbine for
which such delayed Major Turbine Component is a component. It is understood and
acknowledged by the Parties that if more than one Major Turbine Component
applicable to a Turbine is delivered late, the liquidated damages applicable to
the Turbine will not exceed $*****
per day (for the first 15 days after delay payments become payable), $***** per day (for the next 15 days of
delay payments), and $***** per
day (for delay payments thereafter), as applicable. The Parties acknowledge and
agree that the Delay Delivery Damages set forth above are a reasonable estimate
of the damages Purchaser will suffer because of late Delivery of any Major
Turbine Component and that, therefore, the Delay Delivery Damages set forth
herein shall be Purchaser’s sole and exclusive remedy with respect to such
Delivery delays.


 


ARTICLE 6


 


FINAL ASSEMBLY WORK, INSTALLATION
WORK, 

COMMISSIONING WORK AND PROJECT COMPLETION


 


6.1       Final Assembly Work and Turbine Installation.
Purchaser shall complete the Final Assembly Work with respect to all Turbines
in conformance with the procedures and requirements set forth in Exhibit P,
and shall complete the Installation Work with respect to all Turbines in
accordance with the Installation Procedures and, subject to Section 5.3
above, within the period of time set forth on the Completion Schedule.


 


6.2       Commissioning. Commissioning of
the Turbines shall be conducted as follows:


 


6.2.1           Advance Completion Notice. No
less than thirty (30) days prior to the date Purchaser expects Supplier to
commence the Commissioning Work, Purchaser shall provide Supplier with written
notice (the “Advance Completion Notice”) of Purchaser’s anticipated completion
date of the Installation Work and the date on which Supplier shall commence the
Commissioning Work (which date shall be no later than the date that Supplier is
obligated to commence the Commissioning Work as set forth in the Completion
Schedule). Purchaser shall use commercially reasonable efforts to schedule
Turbine Installation for all Turbines in the Project so that Supplier can
complete the Commissioning of each Turbine without interruption or delay on a
continuous basis until all the Turbines have been Commissioned.


 


6.2.2           Turbine Installation Inspection.
Following completion of the Installation Work with respect to any Turbine,
Purchaser shall deliver a written notice of completion to Supplier (an “Installation
Completion Notice”) and Supplier shall examine each Turbine in accordance with
the Installation Procedures and the Turbine Installation Manual. If the Turbine
fails to conform to the standards contained in the installation inspection
procedures set forth in the Turbine Installation Manual, then it shall be
deemed not properly installed, and Supplier shall promptly so notify Purchaser.
Purchaser shall then promptly take all required action to complete the
Installation Work for all Turbine(s) failing the installation inspection
procedures.


 


11

















 


6.2.3           Commissioning Work. Supplier
shall perform the Commissioning Work for the Turbines in accordance with the
Commissioning and Start-Up Procedures and the Completion Schedule, subject to
any adjustment in the completion of the Commissioning Work, pursuant to Section 5.3
hereof, due to Supplier’s early Delivery of the Supply Items (provided,
however, that Supplier’s obligation to Complete the Commissioning Work by such
time set forth on the Completion Schedule shall be extended to the extent of
Purchaser’s delay in completing the Installation Work). Upon completion of the
Commissioning of each Turbine, Supplier shall issue to Purchaser a
commissioning certificate for such Turbine in the form attached hereto as Exhibit M
(each a “Commissioning Certificate”). Within five (5) days after receipt
of a Commissioning Certificate, Purchaser shall either approve such
Commissioning Certificate or deliver to Supplier written notice of any work
remaining to be completed by Supplier (the “Punch List Work”). If Purchaser
fails to deliver such notice within such five (5) day period, the
Commissioning Certificate will be deemed approved by Purchaser.


 


6.3       Project Completion. Within five (5) days
after the delivery by Supplier to Purchaser of a Commissioning Certificate for
the Project’s final Turbine, Supplier shall also deliver to Purchaser a
completion certificate for all Turbines in the Project (the “Project Completion
Certificate”), in the form attached hereto as Exhibit N, together
with a list of any remaining Punch List Work on any Turbine, a schedule for
completing the Punch List Work and an estimate of the cost of each item of
Punch List Work. Supplier shall thereafter promptly complete all Punch List
Work.


 


6.4       Purchaser Delays. In the event
that any of the actions of Purchaser, the EPC Contractor or any of Purchaser’s
Contractors cause a delay in the performance by Supplier of the Commissioning
Work, Purchaser shall pay Supplier its actual documented costs directly
attributable to such delay, including wages, lodging and meals.


 


ARTICLE 7


 


FORCE
MAJEURE EVENTS


 


7.1       Excused Performance. If either
Party is rendered wholly or partially unable to perform its obligations (other
than payment obligations) under this Agreement due to the occurrence of a Force
Majeure Event, such Party will be excused from the affected performance
obligation (other than payment obligations), provided that:


 


(a)        the affected Party gives the other Party
notice describing the particulars of the occurrence, including an estimate of
its expected duration and probable impact on the affected Party’s obligations
hereunder, such notice shall be given promptly after becoming aware of the
occurrence of the Force Majeure Event, and, in no event more than seven (7) days
after the affected Party becomes aware or should reasonably have been aware of
such occurrence;


 


(b)       the affected Party shall continually
exercise all commercially reasonable efforts to mitigate the effect of such
Force Majeure Event, remedy its inability to perform, and limit damages to the
other Party and shall promptly resume its


 


12

















 


performance when the
Force Majeure Event no longer impacts its ability to perform, and shall give
the other Party prompt notice of its intent to resume such performance;


 


(c)        the
suspension of a Party’s performance affected by the Force Majeure Event shall
be of no greater scope and of no longer duration than is reasonably required by
the Force Majeure Event;


 


(d)       no
liability of either Party which arose before the occurrence of the Force
Majeure Event shall be excused as a result of the occurrence thereof; and


 


(e)        no
Force Majeure Event shall relieve any Party from performing those of its
obligations that are not materially affected by the Force Majeure Event.


 


ARTICLE 8


 


CHANGE ORDERS


 


8.1       Change Order. The
term “Change Order” as used herein shall mean a written instrument signed by
Purchaser and Supplier, stating their mutual agreement upon any of the
following: (i) a change in the fabrication or features of the Turbines
(such as adding Federal Aviation Administration lighting or a cold weather
package); (ii) a change in the Delivery Schedule or Completion Schedule; (iii) a
change in the Commissioning Work; (iv) a change in the number of or
location of Project sites; or (v) an adjustment in the Purchase Price
(collectively “Scope Changes”).


 


8.2       Change Order Process.
Purchaser may request Scope Changes within the general scope of this Agreement
consisting of additions, deletions, or other revisions. If Purchaser so desires
to request Scope Changes, it shall submit a change request to Supplier in
writing. Within ten (10) Business Days after its receipt of any such
request, Supplier shall submit a detailed proposal to Purchaser stating (a) the
increase or decrease, if any, in the Purchase Price which would result from
such change, and (b) the effect, if any, upon the Delivery Schedule or
Completion Schedule by reason of such proposed change. Purchaser shall have
five (5) days from receipt of Supplier’s detailed proposal to accept or
reject in writing Supplier’s proposal in relation to the requested change. If
Purchaser agrees with Supplier’s proposal, Purchaser and Supplier shall execute
a Change Order reflecting the requested Scope Changes and proposed adjustments,
if any, in the Purchase Price and the Delivery Schedule or Completion Schedule.
In the event Purchaser disagrees with Supplier’s proposal, Purchaser shall
promptly so notify Supplier, following which the Parties shall negotiate in
good faith a solution which is satisfactory to both Purchaser and Supplier.
Should Purchaser fail to respond to Supplier in writing within the foregoing
five (5) day period, Purchaser shall be deemed to have withdrawn its
requested change.


 


8.3       No Change.
Notwithstanding anything to the contrary contained in this Agreement, Supplier
shall not be obligated to proceed with any Scope Changes requested by Purchaser
unless and until a Change Order is executed by the Parties in relation to such
change. Further, Supplier shall not be required to implement a requested Scope
Change by Purchaser if the implementation of such change would, in Supplier’s
reasonable opinion, likely impair Supplier’s ability to achieve any


 


13

















 


of the performance
guarantees, warranties or covenants set forth in this Agreement, the OMS
Agreement, and/or the Warranty Agreement.


 


8.4       Scope Changes Caused by a Force
Majeure Event. If a Force Majeure Event occurs that materially adversely
affects Supplier’s performance of all or a portion of the sale and Delivery
obligations hereunder or if such a Force Majeure Event causes any of the
Commissioning Work to be temporarily or permanently prevented, Supplier shall
be entitled to a Change Order reflecting such impact of such Force Majeure
Event, including an extension in Supplier’s time for performance for such delay
to the extent Supplier’s performance is actually delayed. In the case of a
Force Majeure Event, Supplier must notify Purchaser of Supplier’s intent to
request a Change Order (the “Notice of Intention”) within thirty (30) Business
Days of the Force Majeure Event. Supplier shall submit to Purchaser a draft
Change Order outlining, with reasonable specificity, the requested Scope
Changes within ten (10) Business Days after the Notice of Intention is
delivered to Purchaser.


 


8.5       Scope Changes Caused by Events within
the Control of Purchaser. If Purchaser, EPC Contractor or any of Purchaser’s
Contractors causes an event that materially adversely affects Supplier’s performance
of all or a portion of the sale and Delivery obligations hereunder or if such
event causes the Commissioning Work to be temporarily or permanently prevented,
Supplier shall be entitled to a Change Order reflecting such impact of such
event, including (i) an extension in Supplier’s time for performance for
such delay to the extent Supplier’s performance is actually delayed, and (ii) an
increase in the Purchase Price with respect to such additional cost to the
extent such delay is caused solely by Purchaser, EPC Contractor or any of
Purchaser’s Contractors. In the case of such a Purchaser caused event, Supplier
must notify Purchaser of Supplier’s intent to request a Change Order (the “Notice
of Intention”) within thirty (30) Business Days of the Purchaser caused event.
Supplier shall submit to Purchaser a draft Change Order outlining, with
reasonable specificity, the requested Scope Changes within ten (10) Business
Days after the Notice of Intention is delivered to Purchaser.


 


ARTICLE 9


 


LIMITATION OF LIABILITY


 


9.1       Supplier Not Responsible for Purchaser’s
Work. Notwithstanding anything to the contrary set forth herein, Supplier
shall not have any responsibility for (a) Project Site selection,
permitting or Turbine siting within the Project Site; (b) the design,
supply or construction of Tower foundations; (c) the assembly, erection
and installation of the Turbines or the SCADA System; (d) the design,
assembly, erection and installation of any other element of the Project, (e) obtaining
rights required by the Project to sell or transmit its electrical output, or (f) any
other element of Purchaser’s Work, all of which are expressly the
responsibility of Purchaser.


 


9.2       Overall Limitation of Liability.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall Supplier, its parent company, Affiliates and agents be liable,
alone or in the aggregate, to Purchaser for any damages, claims, demands,
suits, causes of action, losses, costs, expenses and/or liabilities related in
any manner to this Agreement, the Warranty Agreement and the OMS Agreement in
excess of an amount equal to ***** percent (*****%) of the Purchase Price,
regardless of whether such liability arises out of breach of contract,
guarantee or warranty, tort, product liability, indemnity, contribution, strict
liability or any other legal theory;


 


14

















 


provided, however, the
preceding limitation of liability shall not apply to, and no credit shall be
issued against such liability for, (a) Supplier’s indemnity obligations
set forth in Section 13.1 solely as they relate to claims by third
Parties for bodily injury or property damage, or (b) the fraud or willful
misconduct of Supplier.


 


9.3       Consequential Damages.
Notwithstanding anything to the contrary contained in this Agreement and except
as set forth in the last sentence of this Section, Purchaser and Supplier waive
all claims against each other (and against each other’s parent company,
Affiliates, contractors, subcontractors, consultants, vendors, suppliers and
agents) for any consequential, incidental, indirect, special, exemplary or
punitive damages (including, but not limited to, loss of actual or anticipated
profits, revenues or product; loss by reason of shutdown or non-operation;
increased expense of operation, borrowing or financing; loss of use or
productivity; or increased cost of capital), and regardless of whether any such
claim arises out of breach of contract or warranty, tort, product liability,
indemnity, contribution, strict liability or any other legal theory. Any
consequential, incidental, indirect, special, exemplary or punitive damages
incurred by Supplier or Purchaser in relation to a third Party shall, for all
purposes of this Agreement, be deemed consequential, incidental, indirect,
special, exemplary or punitive damages in relation to any claim brought by
Supplier or Purchaser against the other Party to this Agreement. Any liquidated
damages payable by Supplier under this Agreement shall not be deemed consequential,
incidental, indirect, or special damages for purposes of this Agreement.


 


ARTICLE 10


 


TITLE AND RISK OF LOSS; INSURANCE


 


10.1     Title to Supply Items. Title to any
Supply Item shall transfer to the Purchaser upon (i) the Delivery of such
Supply Item to its Designated Delivery Location and (ii) Purchaser’s
payment of and Supplier’s receipt of, the applicable Progress Payment.


 


10.2     Risk of Loss. Supplier shall bear
the risk of loss and damage with respect to any Supply Item (including each
individual Major Turbine Component) until Delivery of such Supply Item to its
Designated Delivery Location. In performing the Commissioning Work, Supplier
shall be deemed a contractor of Purchaser performing the Services on Supply
Items then owned by Purchaser. Upon the Delivery of any Supply Item to its
Designated Delivery Location, care, custody and control of, and risk of loss or
damage to, such Supply Item shall thereupon transfer to the Purchaser.


 


10.3     Insurance. Supplier and Purchaser
shall maintain the following insurance while this Agreement is in effect:


 


10.3.1         Supplier Insurance.


 


Supplier shall carry and
maintain or cause to be carried and maintained, at all times during the Term of
this Agreement, insurance coverage with limits as set forth in this Section (the
“Supplier Insurance”).


 


15

















 


Marine
Cargo Insurance


 


All
property and interests of every kind and description (including materials,
equipment, machinery and spares) intended for the Project or subsequent
operations while in transit by land, air and/or sea. All Risks of physical loss
or damage from a cause not excluded but including war, strikes, riots and civil
commotions and terrorism while in transit, on a continuous open cover basis.
Increased cost of working - the additional expenditure necessarily and
reasonably incurred for the purpose of avoiding or reducing delay which,
without such expenditure would have taken place.


 


Property


 


At
all times the Supplier’s factory premises, plant, machinery, raw materials and
finished stocks all related to and comprising the Project under a property
insurance in an amount equal to the full replacement value of the above named
items for “all risks” of physical loss or damage including, but not limited to,
coverage for earth movement, flood, windstorm, earthquake, sabotage, terrorism,
riots, civil commotion, testing, boiler and machinery, transit and off-site
storage. The policy may contain separate sub limits and deductibles subject to
insurance company underwriting guidelines. Deductibles under the policy shall
not exceed $100,000 per occurrence, except for deductibles for natural
catastrophe peril, which shall not exceed five percent (5%) of the insured loss


 


Increased
cost of working - the additional expenditure necessarily and reasonably
incurred for the purpose of avoiding or reducing delay which, without such
expenditure would have taken place.


 


Workers Compensation


 


Coverage
shall comply with any statutory obligation imposed by Workers Compensation,
Occupational Disease Laws, or similar laws, including where applicable, the
United States Longshoremen’s and Harbor Workers’ Act, the Federal Employers’
Liability Act and the Jones Act. Employers’ Liability insurance shall have
limits of not less than $1,000,000 per accident, $1,000,000 disease-policy
limit and $1,000,000 disease-each employee.


 


Commercial General Liability


 


Insurance
providing coverage for bodily injury, property damage and personal/advertising
injury with a combined single limit of not less than $1,000,000 per occurrence
and $2,000,000 aggregate. The policy shall include contractual liability and
any testing operations coverage.


 


16














 


a.                          Automobile
Liability - Insurance for owned, non-owned and hired automobiles with a
limit of not less than $1,000,000 per occurrence.


 


b.                         Excess  liability -
Insurance with a minimum limit of $10,000,000 per occurrence and annual
aggregate.


 


c.                          Evidence and Scope of
Insurance - Supplier shall
provide Purchaser with a copy of insurance original certificates evidencing the
insurance coverages required and shall provide replacement certificates of
insurance within five (5) days of any renewal of the required insurance.


 


All
such insurance policies shall:


 


(i) name
Purchaser for their respective rights and interests in respect of the Project
as additional insured (except in the case of worker’s compensation insurance);


 


(ii) provide
Purchaser with 30 days’ prior written notice of non-renewal, cancellation of,
or significant modification to, any of such policies (except that such notice
period will be 10 days in case of non-payment of premiums); and


 


(iii) the
insurance certificates provided to Purchaser shall indicate that the insurance
policies have been endorsed as noted above. All policies shall be written by
one or more insurance companies authorized to do business in USA and be rated
BBB+ or higher by A.M. Best.


 


Term and Modification of Insurance


 


If
the designated coverage, or relatively comparable coverage, are unavailable on
reasonable commercial terms, Supplier will provide Purchaser detailed
information as to the maximum amount of available coverage that it is able to
purchase and will be required to obtain Purchaser’s consent as to the adequacy
of said coverage under the circumstances at the time, which consent shall not
be unreasonably withheld or delayed.


 


10.3.2          Purchaser Insurance.


 


Purchaser
shall carry and maintain or cause to be carried and maintained, at all times
during the Term of this Agreement, insurance coverage with limits as set forth
in this Section.


 


17

















 


Builder’s
All Risk Insurance


 


At all times during
construction, the Purchaser’s Project will be under a builder’s all risk
insurance in an amount equal to the full replacement value of the Project for “all
risks” of physical loss or damage including, but not limited to, coverage for
earth movement, flood, windstorm, earthquake, sabotage, terrorism, riots, civil
commotion, testing, boiler and machinery, transit and off-site storage. The
policy may contain separate sub limits and deductibles subject to insurance
company underwriting guidelines. Deductibles under the policy shall not exceed $100,000
per occurrence, except for deductibles for natural catastrophe peril, which
shall not exceed five percent (5%) of the insured loss


 


Increased cost of working
- the additional expenditure necessarily and reasonably incurred for the
purpose of avoiding or reducing delay which, without such expenditure would
have taken place.


 


Workers
Compensation


 


Coverage shall comply
with any statutory obligation imposed by Workers Compensation, Occupational
Disease Laws, or similar laws, including where applicable, the United States
Longshoremen’s and Harbor Workers’ Act, the Federal Employers’ Liability Act
and the Jones Act. Employers’ Liability insurance shall have limits of not less
than $1,000,000 per accident, $1,000,000 disease-policy limit and $1,000,000 disease-each
employee.


 


Commercial
General Liability


 


Insurance providing
coverage for bodily injury, property damage and personal/advertising injury
with a combined single limit of not less than $1,000,000 per occurrence and
$2,000,000 aggregate. The policy shall include contractual liability and any
testing operations coverage.


 


a.          Automobile Liability - Insurance for owned,
non-owned and hired automobiles with a limit of not less than $1,000,000 per
occurrence.


 


b.         Excess liability - Insurance with a minimum
limit of $10,000,000 per occurrence and annual aggregate.


 


c.          Evidence and Scope of Insurance


 


Purchaser shall provide Supplier with a copy of insurance original
certificates evidencing the insurance coverages required and shall provide
replacement certificates of insurance within five (5) days of any renewal
of the required insurance.


 


All
such insurance policies shall:


 


18

















 


(i)  name
Supplier for their respective rights and interests in respect of the Project as
additional insured (except in the case of worker’s compensation insurance);


 


(ii) provide Supplier with 30 days’ prior
written notice of non-renewal, cancellation of, or significant modification to,
any of such policies (except that such notice period will be 10 days in case of
non-payment of premiums); and


 


(iii) The insurance certificates provided to
Supplier shall indicate that the insurance policies have been endorsed as noted
above. All policies shall be written by one or more insurance companies
authorized to do business in USA and be rated BBB+ or higher by A.M. Best.


 


Term and Modification of Insurance


 


If
the designated coverage, or relatively comparable coverage, are unavailable on
reasonable commercial terms, Purchaser will provide Supplier detailed
information as to the maximum amount of available coverage that it is able to
purchase and will be required to obtain Supplier’s consent as to the adequacy
of said coverage under the circumstances at the time, which consent shall not
be unreasonably withheld or delayed.


 


ARTICLE 11


 


REPRESENTATIONS
AND WARRANTIES OF SUPPLIER


 


Supplier
hereby represents and warrants to Purchaser as follows:


 


11.1     Due Organization; Good
Standing. Supplier is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and qualified to conduct
business in the states where it does business.


 


11.2     Due Authorization.
The execution, delivery and performance of this Agreement by Supplier have been
duly authorized by all necessary corporate action on the part of Supplier and
do not and will not require the consent of any trustee or holder of any
indebtedness or other obligation of Supplier or any other Party to any other
agreement with Supplier.


 


11.3     Execution and Delivery.
This Agreement has been duly executed and delivered by Supplier. This Agreement
constitutes the legal, valid and binding obligation of Supplier, enforceable
against Supplier in accordance with its terms, except to the extent that its
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by principles of equity.


 


11.4     Governmental Approvals.
No governmental authorization, approval, order, license, permit, franchise or
consent, and no registration, declaration or filing with any Governmental
Authority is required on the part of Supplier in connection with the execution,
delivery and performance of this Agreement, except those which have already
been obtained or which Supplier anticipates will be timely obtained in the
ordinary course of performance of this Agreement.


 


19

















 


11.5     Supply Items; Services.
The Supply Items and the SCADA System to be delivered hereunder shall be
designed and fit for the purpose of generating electric power when operated in
accordance with the Turbine Specifications, the OMS Manual, Prudent Electrical
Industry Practices and Prudent Wind Industry Practices. The Supply Items and
SCADA System shall be new and unused and shall be free from Defects and free
from defects in title. The Services shall be performed in a competent, diligent
manner in accordance with Prudent Wind Industry Practices, Supplier’s
manufacturers’ written requirements and applicable Governmental Requirements.


 


ARTICLE 12


 


REPRESENTATIONS
AND WARRANTIES OF PURCHASER


 


Purchaser
represents and warrants to Supplier as follows:


 


12.1     Due Organization; Good
Standing; Qualified To Do Business. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, and qualified to conduct business in the states where it
does business.


 


12.2     Due Authorization.
The execution, delivery and performance of this Agreement by Purchaser have
been duly authorized by all necessary action on the part of Purchaser in
accordance with Purchaser’s organizational documents and do not and will not
require the consent of any trustee or holder of any indebtedness or other
obligation of Purchaser or any other Party to any other agreement with
Purchaser.


 


12.3     Execution and Delivery.
This Agreement has been duly executed and delivered by Purchaser. This
Agreement constitutes the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except to the
extent that its enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally or by principles of equity.


 


12.4     Governmental Approvals.
No governmental authorization, approval, order, license, permit, franchise or
consent, and no registration, declaration or filing with any Governmental
Authority is required on the part of Purchaser in connection with the
execution, delivery and performance of this Agreement, except those which have
already been obtained or which Purchaser anticipates will be timely obtained in
the ordinary course of performance of this Agreement.


 


12.5     Project Site. On or
prior to the date that Supplier is to provide any services relating to the
Project at the Project Site, Purchaser shall have obtained the right and
authority to have such work performed on the Project Site. To the knowledge of
Purchaser, after the completion of reasonable due diligence on the Project
Site, the Project Site is free of all hazardous or dangerous materials or
substances. All information concerning the Project Site and the wind flow
across the Project Site heretofore delivered to Supplier by Purchaser is true,
complete and correct in all material respects.


 


20

















 


ARTICLE 13


 


MUTUAL
INDEMNITY


 


13.1       Mutual Indemnity.
Each of Supplier and Purchaser agree to defend, indemnify and hold each other,
and each other’s lenders, parent companies, Affiliates, officers, directors,
agents and employees, harmless from and against any claims, losses, damages and
liabilities (including, but not limited to, reasonable attorneys’ fees and
court costs, but excluding consequential damages) on account of any claim by a
third Party for bodily injury or property damage against the indemnified Party
to the extent caused by the negligent act or omission, or willful misconduct
of, or breach of this Agreement by, the indemnifying Party or the indemnifying
Party’s employees, contractors, subcontractors or agents, in connection with
the performance of their respective obligations under this Agreement.


 


ARTICLE 14


 


DEFAULT;
CURE; REMEDIES


 


14.1     Default by Supplier.
Supplier shall be in default under this Agreement should any one or more of the
following events or conditions arise or exist:


 


(i)            Supplier becomes
insolvent, or generally does not pay its debts as they become due, or admits in
writing its inability to pay its debts, or makes a general assignment for the
benefit of creditors; or


 


(ii)           Insolvency,
receivership, reorganization, or bankruptcy proceedings are commenced by or
against Supplier and, in the case of any such involuntary proceeding, that is
not dismissed or stayed within sixty (60) days after it is commenced; or


 


(iii)          Supplier fails, for
any reason, other than failure of Purchaser to make payments to Supplier when
obligated in accordance with this Agreement, to make any undisputed payments
required to be made by Supplier to Purchaser, which failure continues for ten (10) Business
Days after notice of such non-payment; or


 


(iv)          Supplier is in
material default of any term or provision of this Agreement or has materially
failed to perform its obligations under this Agreement, and such breach or failure
continues for thirty (30) Business Days following receipt of written notice
from Purchaser to cure such breach or failure; provided, however, if such
failure cannot with due diligence be remedied by Supplier within such thirty
(30) Business Days period, and Supplier shall have diligently prosecuted the
remedying of such failure within such thirty (30) Business Days, such period
shall be extended by such additional time period as may be reasonably required
by Supplier to cure such failure.


 


14.2     Purchaser’s Remedies.
In the event Supplier is in default pursuant to Section 14.1, and
said default is not timely cured within the time periods set forth above,
Purchaser, in addition to those rights and remedies that may be available to
Purchaser at law or in equity, and subject to Section 9.2 of this
Agreement, shall have the right to terminate this Agreement by written notice
to Supplier; provided however, that amounts applicable to Supply Items
delivered or services


 


21

















 


performed by Supplier
through the date of termination of this Agreement shall be paid by Purchaser to
Supplier.


 


14.3     Default by Purchaser. Purchaser
shall be in default under this Agreement should any one or more of the
following events or conditions arise or exist:


 


(i)            Purchaser or Guarantor becomes
insolvent, or generally does not pay its debts as they become due, or admits in
writing its inability to pay its debts, or makes a general assignment for the
benefit of creditors; or


 


(ii)           Insolvency, receivership,
reorganization or bankruptcy proceedings are commenced by or against Purchaser
or Guarantor and, in the case of any such involuntary proceeding, that is not
dismissed or stayed within sixty (60) days after it is commenced; or


 


(iii)          Purchaser fails to timely pay to
Supplier any required payment under this Agreement when due, including failure
to timely provide any Down Payment or any Progress Payment, which failure
continues for ten (10) days after written notice of failure to make payment
has been received by Purchaser from Supplier; or


 


(iv)          Purchaser fails to perform any
material term or provision of this Agreement, including failure to timely
provide the Guaranty to Supplier, and such failure continues for thirty (30)
Business Days following receipt of written notice from Supplier to cure such
failure; provided, however, if such failure cannot with due diligence be
remedied by Purchaser within such thirty (30) Business Day period, and
Purchaser shall have diligently prosecuted the remedying of such failure within
such thirty (30) Business Days, such period shall be extended by such
additional time period as may be reasonably required by Purchaser to cure such
failure; or


 


(v)           The revocation or other termination
of the Guaranty by Guarantor, or the breach by Guarantor of any material term
or provision of the Guaranty, including any payment obligation thereunder,
which breach continues for a period of ten (10) days after written notice
of such breach has been received by Guarantor from Supplier.


 


14.4     Supplier’s Remedies. In the event
that Purchaser is in default pursuant to Section 14.3, and said
default is not timely cured within the time periods set forth above, Supplier,
in lieu of any rights and remedies that may be available to Supplier at law or
in equity, shall have the right to terminate this Agreement by written notice
to Purchaser, which termination shall be effective upon delivery of Supplier’s
notice to Purchaser. Within three (3) Business Days of the effective date
of such termination, Purchaser shall pay to Supplier the liquidated damages set
forth on the termination schedule attached hereto as Exhibit G (“Termination
Schedule”), which shall constitute Supplier’s exclusive remedy, and Supplier
shall have no right to damages or compensation for such termination other than
payment of the liquidated damages set forth on the Termination Schedule.


 


14.5     Cancellation Due to a Force Majeure
Event. If Supplier is entirely prevented from performing its obligations
hereunder for a period of one-hundred eighty (180) consecutive days as a result
of the occurrence of a Force Majeure Event suffered by Supplier, then Supplier
may cancel, without additional liability, any then remaining unperformed
portion of this Agreement, upon


 


22

















 


not less than thirty (30)
Business Days’ prior written notice to the Purchaser; provided, however, that
nothing in this Section 14.5 shall relieve or excuse Supplier from
its obligations under Article 7 of this Agreement in respect of the
occurrence of a Force Majeure Event or relieve either Party from any payment
obligation that has accrued as of the date of cancellation or prior thereto;
provided further, however, that any payment obligations of Purchaser shall be
reduced by the amount of funds received by Supplier, if any, in connection with
the resale of any Turbines or Turbine components sold that are applicable to
such payment obligations of Purchaser, and, if following such reduction,
Purchaser is owed a refund of some portion of the Purchase Price from Supplier,
Supplier shall refund to Purchaser the applicable amount of Purchase Price
previously paid to Supplier within thirty (30) days of such termination.


 


14.6     Termination for Convenience. The
Purchaser shall have the right to terminate this Agreement for convenience with
respect to any Turbine until title to such Turbine has passed to Purchaser.
Such termination shall be effective upon the later to occur of (i) delivery
to Supplier of written notice of termination and (ii) receipt by Supplier
of liquidated damages in the amount on a per Turbine basis with respect to such
Turbine in accordance with the Termination Schedule attached to this Agreement
as Exhibit G.


 


14.7     Surviving Obligations. Cancellation
or expiration of all or any portion of this Agreement (a) shall not
relieve Purchaser of its obligations with respect to the confidentiality of
Supplier’s proprietary information as set forth in Section 4.5 of
this Agreement, or either Party of its confidentiality obligations as set forth
in Section 16.9 of this Agreement, (b) shall not relieve
either Party of any obligation hereunder which expressly or by implication
survives termination hereof, and (c) except as otherwise provided in any
provision of this Agreement expressly limiting the liability of either Party,
shall not relieve either Purchaser or Supplier of any obligations or
liabilities for loss or damage to the other Party arising out of or caused by
acts or omissions of such Party prior to the effectiveness of such termination
or arising out of such termination, and shall not relieve Supplier of its
obligations as to portions of the items supplied or other services hereunder
already supplied or performed or of obligations assumed by Supplier prior to
the date of termination. This Article shall survive the termination or
expiration of this Agreement.


 


ARTICLE 15


 


DISPUTE RESOLUTION


 


15.1     Procedure. In the event a dispute,
controversy or claim (herein, a “dispute”) arises between Purchaser and
Supplier relating to this Agreement, the aggrieved Party shall promptly provide
written notification of the dispute to the other Party within ten (10) days
after such dispute arises and the Parties shall resolve such dispute as
provided herein:


 


15.1.1         Executives Meeting. A meeting
shall be held between the Parties, attended by representatives of the Parties
with decision-making authority regarding the dispute, to attempt in good faith
to negotiate a resolution of the dispute. Such meeting shall be held in
Carpinteria, California within thirty (30) days after a notice of dispute has
been delivered under Section 15.1 above.


 


23

















 


15.1.2         Independent Engineer’s Decision.
If the dispute involves a technical issue, within ten (10) days after such
meeting, the Parties have not resolved the dispute, either Party shall submit
the dispute to the Independent Engineer for a non-binding determination,
together with such information in support of their position as may be relevant,
which information will simultaneously be sent to the other Party. The
Independent Engineer may hold separate meetings with each Party or call a joint
meeting of the Parties, to be held in Carpinteria, California. The Independent
Engineer shall, within thirty (30) days after such request for a determination,
issue a non-binding decision. Any Party which does not wish to comply with such
decision shall promptly provide written notification of its intention to the
other Party within five (5) days of such decision. The Parties shall meet
in Chicago, Illinois within twenty (20) days of such notice to attempt, in good
faith, to negotiate a final resolution to the dispute. Any Party which does not
wish to comply with such decision shall within ten (10) days after the
date of such meeting submit the dispute to arbitration within twenty (20) days
after the date of such decision to arbitration in accordance with Section 15.1.3
below. The Parties shall share equally the costs of the Independent Engineer.


 


15.1.3         Arbitration.


 


(a)           If the Parties are not successful in
resolving a dispute, controversy or claim pursuant to Sections 15.1.1
and 15.1.2, above, then such dispute shall be resolved through binding
arbitration to take place in Chicago, Illinois. The Parties agree to conduct all
arbitration proceedings in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. This Section 15.1.3 is
governed by the Federal Arbitration Act.


 


(b)           A Party desiring to submit to
arbitration any such dispute, controversy or claim shall furnish its demand for
arbitration in writing to the other Party or Parties thereto, which demand
shall contain a brief statement of the matter in controversy, as well as a list
containing the names of three (3) suggested arbitrators from the list of
arbitrators maintained by the American Arbitration Association (the “AAA List”)
from which list, or from other sources, all of the Parties shall choose one (1) mutually
acceptable arbitrator. If the Parties are unable to agree upon the identity of
a single arbitrator, within ten (10) days from the receipt of such demand,
the Purchaser and the Supplier shall each (collectively, the “Arbitrating
Parties”), within a period of five (5) additional days, name from the
AAA List one (1) arbitrator by written notice to the other Arbitrating Party or
Parties. Within ten (10) days after this notice, the two (2) arbitrators
so named shall choose a third arbitrator. If any Arbitrating Party fails to
name an arbitrator within the specified five (5) day period or if the two
arbitrators chosen by the Arbitrating Parties fail to select a third arbitrator
within the ten (10) day period, then either Arbitrating Party, on behalf of and
on notice to the other Arbitrating Party or Parties, may request appointment by
the American Arbitration Association in accordance with its rules then
prevailing of the required additional arbitrator or arbitrators so that there
shall be a panel of three (3) arbitrators. If the American Arbitration
Association should fail to appoint the necessary arbitrator or arbitrators
within fifteen (15) days after such request is made, then either Arbitrating
Party may apply, on notice to the other Arbitrating Party or Parties, to a
court of competent jurisdiction for the appointment of such necessary
additional arbitrators. Each of the arbitrator or arbitrators chosen or
appointed pursuant to


 


24

















 


this Section 15.1.3(b) shall
be a person having at least ten (10) years experience in the United States
in the legal profession and shall not be a past or present officer, director or
employee of, or have any material interest in, any Arbitrating Party or any
Affiliate of an Arbitrating Party. All discovery, including the right to take
depositions and interrogatories, shall be permitted in the time and manner
provided by the then applicable Federal Rules of Civil Procedure. The
Arbitrating Parties shall be entitled to reasonable discovery prior to the
arbitration hearing, and the arbitrator or arbitrators, as the case may be,
shall have the power upon application of any Arbitrating Party to make all
appropriate orders for discovery from the other Arbitrating Party, including
discovery of documents, responses to interrogatories, and depositions. The
scope, time and manner of discovery, including all document discovery, are to
be in accordance with the U.S. Federal Rules of Civil Procedure.
Notwithstanding the foregoing, discovery allowed each of the Arbitrating
Parties shall not exceed: (i) five (5) party depositions; (ii) three (3) nonparty
depositions; (iii) three (3) depositions of any experts selected to
give opinions in the arbitration (as well as the production of any documents
relied upon by such experts); and (iv) fifteen (15) interrogatories (with
each subpart counted as a separate interrogatory). Discovery shall not include
requests for admissions. No deposition shall last more than two (2) days
in length. Further, all discovery must, without exception, be completed within
one hundred twenty (120) days from the date the arbitration panel is appointed.
Any documents that are not produced to the other Arbitrating Party prior to the
termination of this 120-day discovery period may not be offered into evidence
at the arbitration hearing unless such production shall not prejudice the
non-producing Arbitrating Party as determined by the arbitrator or arbitrators,
as the case may be. Likewise, any witnesses who have not been produced for
deposition, despite a request from the other side, may not testify or submit
affidavits at the arbitration hearing.


 


(c)           The arbitrator or arbitrators, as the
case may be, shall render his, her or their decision, in the latter case upon
the concurrence of at least two (2) of their number, as soon as possible
but no later than thirty (30) days after the conclusion of any hearings before
such arbitrator or arbitrators, as the case may be, unless such 30-day period
is extended by the arbitrator or arbitrators, as the case may be. The decision
and award shall in either case be in writing and counterpart copies of such
decision shall be delivered to each of the Arbitrating Parties. Such decision
shall be based solely upon the written arguments and contentions, evidence and
legal authorities, submitted by each Arbitrating Party. In rendering such
decision and award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this Agreement. Any award rendered shall be final and
conclusive upon the parties and a judgment on any such award may be entered in
any court having jurisdiction, state or federal, having jurisdiction. No
arbitration proceeding shall be commenced after the date when institution of
legal or equitable proceedings based upon such subject matter would be barred
by the applicable statute of limitations. Notwithstanding anything to the
contrary contained in this section or elsewhere in this Agreement, provisional
injunctive or other provisional equitable relief may be sought by the parties
without first submitting the subject dispute to arbitration so long as
injunctive relief is otherwise warranted by applicable law.


 


25














 


15.2     Qualifications of Arbitrators; Expenses.


 


(a)           The arbitrators in the arbitration
proceeding provided for in this Article 15 shall be individuals
experienced in the energy construction industry and competent to pass on the
matter presented for arbitration.


 


(b)           Supplier, on the one hand, and
Purchaser, on the other, shall share equally the compensation and expenses of
the arbitrators as well as all fees imposed by the AAA. Supplier and Purchaser
shall be responsible for their own costs and legal fees, if any.
Notwithstanding the foregoing, a majority of the arbitrators shall be empowered
to award the prevailing Party its costs, expenses and/or legal fees.


 


15.3     Performance During Dispute. While
any controversy, dispute or claim arising out of or relating to this Agreement
is pending, Purchaser and Supplier shall continue to perform their obligations
hereunder notwithstanding such controversy, dispute or claim.


 


15.4     Consolidation. No arbitration
arising under this Agreement shall include, by consolidation, joinder or any
other manner, any person or entity not a Party to this Agreement, unless (a) such
person or entity is substantially involved in a common question of fact or law,
(b) the presence of such person or entity is required if complete relief
is to be accorded in the arbitration, and (c) such person or entity has
consented to such inclusion.


 


15.5     Language. All arbitration
proceedings shall be conducted in the English language.


 


ARTICLE 16


 


GENERAL PROVISIONS


 


16.1     Waiver. No delay or omission by the
Parties hereto in exercising any right or remedy provided for herein shall
constitute a waiver of such right or remedy nor shall it be construed as a bar
to or waiver of any such right or remedy on any future occasion.


 


16.2     Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the
successors and permitted assigns of Supplier and Purchaser. Except as set forth
herein, neither Supplier nor Purchaser may assign, convey or transfer this
Agreement, in whole or in part, except upon the prior written consent of the
other Party hereto, which consent shall not be unreasonably withheld, and any
such purported transfer or assignment shall be null and void. Notwithstanding
any permitted assignment hereunder, the assignor shall remain liable to the
other Party for all duties and responsibilities hereunder unless affirmatively
recited by the other Party.


 


16.3     Permitted Assignments.
Notwithstanding Section 16.2 above, (i) either Party may
transfer or assign its rights, benefits and obligations under this Agreement to
an Affiliate; provided, that if requested by Purchaser, Supplier shall execute
and deliver a guaranty of the performance hereunder by such an assignee, (ii) Purchaser
may assign its rights, benefits and obligations under this Agreement to any
purchaser of the Project; provided, that Purchaser may not transfer or assign
this Agreement in whole or in part to a wind turbine design or manufacturing
competitor of Supplier without the prior written consent of Supplier, which
consent may be withheld in Supplier’s sole discretion and which may be
conditioned upon the creditworthiness of the purchaser, (iii) Supplier is


 


26

















 


authorized to subcontract
any portion of its duties under this Agreement to a third party or to delegate
its obligations hereunder, in the ordinary course of its business, without
reducing the scope of Supplier’s undertakings, obligations, and commitments to
Purchaser, provided that Supplier agrees that it will not use any supplier for
any Major Turbine Components not listed on Exhibit H without
Purchaser’s advance written consent, such consent not to be unreasonably
withheld, conditioned or delayed, and (iv) a Party, without the consent of
the other Party, may assign its interest in this Agreement to a lender,
collateral trustee, security trustee or similar entity as collateral security
for any financing entered into by the assigning Party, including a lease
financing. The non-assigning Party shall, upon fifteen (15) days’ prior written
request from the assigning Party, execute a consent containing customary terms
and conditions, to any such collateral assignment. Further, notwithstanding Section 16.2
above, Purchaser shall have the right to assign no less than all of its rights,
duties and obligations under the Turbine Supply Documents to any third party,
subject to, and conditioned upon, the prior written consent of Supplier, which
shall not be unreasonably withheld, conditioned, or delayed; provided however
that any such assignment is conditioned upon the receipt of a guarantee for the
benefit of Supplier of the performance of the contract obligations, including
payment security, in a form acceptable to Supplier, in its sole and absolute
discretion. Any such assignment to a third party also shall be subject to the
following: (i) prior to the effectiveness of such assignment, the third
party assignee shall agree to revisions to the Turbine Supply Documents as
determined by Supplier to be reasonably necessary, to effect the purchase and
installation of the Turbines by the third party assignee at a project site to
be determined between Supplier and any such third party assignee, (ii) the
third party assignee shall assume all of the duties, obligations, restrictions
and covenants of Purchaser under the Turbine Supply Documents, as revised, (iii) any
monies or other consideration received by, or otherwise payable to, Purchaser
from the third party assignee in connection with such assignment, in excess of
the Down Payment and any Progress Payments actually paid by Purchaser to
Supplier, other than the reasonable actual documented expenses incurred by
Purchaser in connection with the assignment of the Turbine Supply Documents to
the third party, shall be paid to Supplier and (iv) Purchaser shall pay to
Supplier all of Supplier’s costs associated with such assignment from Purchaser
to the third party assignee, including but not limited to all of Supplier’s
costs (including reasonable legal fees) incurred in connection with the
revision of the Turbine Supply Documents, within thirty (30) days of receipt of
an applicable invoice from Supplier.


 


16.4     Notices.


 


(a)           Any notice required or authorized to
be given hereunder or any other communications between the Parties provided for
under the terms of this Agreement shall be in writing (unless otherwise
provided) and shall be served personally or by reputable express courier
service or by facsimile transmission addressed to the relevant Party at the
address stated below or at any other address notified by that Party to the
other as its address for service. Any notice so given personally shall be
deemed to have been served on delivery, any notice so given by express courier
service shall be deemed to have been served two (2) Business Days after
the same shall have been delivered to the relevant courier, and any notice so
given by facsimile transmission shall be deemed to have been served on
dispatch. As proof of such service it shall be sufficient to produce a receipt
showing personal service, the receipt of a reputable courier company showing
the correct address of the addressee or an activity report of the sender’s
facsimile


 


27

















 


machine
showing the correct
facsimile number of the Party on whom notice is served and the correct number
of pages transmitted.


 


(b)          The Parties’ addresses for service are:


 


	
   

  	
  To Purchaser:

  	
   

  	
  UPC Wind Acquisition V,
  LLC

  
	
   

  	
   

  	
   

  	
  c/o UPC Wind
  Management, LLC

  
	
   

  	
   

  	
   

  	
  85 Wells Ave.,
  Suite 305

  
	
   

  	
   

  	
   

  	
  Newton, MA 02459

  
	
   

  	
  Attn:

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  (617) 964-3342

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  (617) 964 3340

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  To Supplier:

  	
   

  	
  Clipper Turbine
  Works, Inc.

  
	
   

  	
   

  	
   

  	
  6305 Carpinteria
  Avenue, Suite 300

  
	
   

  	
   

  	
   

  	
  Carpinteria, California
  93013

  
	
   

  	
   

  	
   

  	
  Attn:

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  805.899.1115

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  805.690.3275

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  Chadbourne &
  Parke LLP

  
	
   

  	
   

  	
   

  	
  350 South Grand Avenue,
  Suite 3300

  
	
   

  	
   

  	
   

  	
  Los Angeles, CA 90071

  
	
   

  	
   

  	
   

  	
  Attn:

  	
  Edward W. Zaelke

  
	
   

  	
   

  	
   

  	
  Facsimile: 

  	
  213.622.9865

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  213.892.1000

  



 


16.5     Governing Law. This
Agreement and all matters arising hereunder or in connection herewith shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of law principles.


 


16.6     Amendments. This
Agreement may be modified or amended only by an instrument in writing signed by
the Parties hereto.


 


16.7     Attachments
Incorporated. The preamble and recitals of this Agreement, and the Exhibits
attached hereto, are hereby incorporated into and made a part of this
Agreement.


 


16.8     Entire Agreement.
The terms and conditions set forth herein, together with those set forth on all
Exhibits attached hereto, constitute the complete statement of the agreement
between Supplier and Purchaser relating to the subject matter hereof. No prior
statement or correspondence shall modify or affect the terms and conditions
hereof. Prior representations, promises, warranties or statements by Supplier
or Purchaser, or by any agent or employee of Supplier or Purchaser, that differ
in any way from the terms and conditions hereof shall be given no effect.


 


16.9     Confidentiality.
Each Party agrees to keep the terms and provisions of this Agreement and all
materials and information that each receives pursuant hereto or in connection
herewith or in connection with the Project in the strictest confidence and not
to disclose any of the foregoing to any party other than the respective
lenders, investors, attorneys, accountants, Affiliates,


 


28

















 


officers
and directors of each Party or as such Party may be required by law, court
order or in any litigation to disclose. This Section 16.9 shall
survive the termination of this Agreement. Notwithstanding the foregoing,
Supplier shall be entitled to announce by press release or other means that it
has agreed to furnish the Turbines for the Project. The Parties agree that,
with respect to press releases concerning the Project, they will endeavor to
cooperate and share information with one another so that the Parties are
identified, to the extent practicable in press releases regarding the Project.
Supplier and Purchaser will each provide copies of all press releases issued
regarding the Project to the other. Furthermore, the restrictions of this Section 16.9
shall not prohibit or restrict Supplier from using or disclosing the
availability and performance data from the Project in connection with its
sales, maintenance and other internal purposes; provided, however, that no
specific reference shall be made to the Project in connection with the
disclosure of such data.


 


16.10   Counterparts. This
Agreement may be executed by the Parties in one or more counterparts, all of
which taken together, shall constitute one and the same instrument. The
exchange of copies of this Agreement and of signature pages by facsimile
transmission shall constitute effective execution and delivery of this
Agreement as to the Parties and may be used in lieu of the original Agreement
for all purposes (and such signatures of the parties transmitted by facsimile
shall be deemed to be their original signatures for all purposes).


 


16.11   English Language
Documents. Any document, manual, certificate or notice required or
authorized to be given hereunder for the operation of the Project shall be
provided in the English language.


 


16.12   Severability. In
case any provision in this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not be affected.


 


16.13   Headings. The
headings and captions used in this Agreement are inserted for reference and
convenience only and the same shall not limit or construe the sections,
articles or paragraphs to which they apply or otherwise affect the
interpretation thereof.


 


16.14   Agreement Revisions.
Following the execution of this Agreement by the Parties, if either Party
requests a change to the Agreement in order to (i) correct any
inconsistency contained within the Agreement or among the Turbine Supply
Documents or (ii) clarify any ambiguities in the Agreement to reflect the
intent of the Parties, then the Parties agree to work in good faith to amend
the language of the Agreement to conform to any such requested change.


 


29

















 


IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the duly authorized representatives of Purchaser and Supplier as of the date
first written above.


 


 


	
   

  	
   

  	
  CLIPPER
  TURBINE WORKS, INC.,

  
	
   

  	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UPC
  WIND ACQUISITION V, LLC, 

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Paul Gaynor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Paul
  Gaynor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


[Signature Page to Turbine 

Supply Agreement]


 

















 


IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the duly authorized representatives of Purchaser and Supplier as of the date
first written above.


 


	
   

  	
   

  	
  CLIPPER
  TURBINE WORKS, INC.,

  
	
   

  	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Robert Gates

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Gates

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice Pres

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UPC
  WIND ACQUISITION V, LLC, 

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


[Signature Page to Turbine 

Supply Agreement]


 

















 


APPENDIX I


 


DEFINITIONS


 


“Additional Cost Event” means (a) an Emergency, (b) a Force
Majeure Event or an Operating Force Majeure Event, (c) damage caused by an
act or omission of the Owner or a third party (other than an Affiliate,
Subcontractor or other agents or designees of the Operator) which is required
to be repaired in order for the Turbines to be operated and maintained in
accordance with the standard set forth in this Agreement, or (d) the
receipt by the Operator of a written request from the Owner for the Operator’s
performance of Additional OMS Services.


 


“Affiliate” means, with respect to any Party, any Person or entity
which, directly or indirectly, is in control of, or is controlled by, or is
under common control with such Party or any Subsidiary of such Party. For the
purposes of this definition, control of a Party shall mean the power, direct or
indirect, (a) to vote in excess of fifty percent (50%) or more of the
securities having ordinary voting power for the election of directors, (b) to
direct or cause the direction of the management and policies of such Party,
whether by contract or otherwise.


 


“After Tax Value” means an amount equal to the sum of any payment,
credit or other original amount (the “Original Amount”) plus an amount that
will cause the recipient to retain a sum equal to the Original Amount after
federal income taxes at the highest marginal rate are or would be imposed on
the After Tax Value.


 


“Agreement” means the Supply Agreement, the Warranty Agreement or the
OMS Agreement, as the context requires.


 


“Ancillary Parts and Equipment” means those ancillary parts, materials
and equipment listed in Exhibit A to the Supply Agreement, which
are typically required, together with the Major Turbine Components, to form a
Turbine.


 


“Annual Windsystem Availability” or “AWA” has the meaning given in Exhibit A
to the Warranty Agreement.


 


“Availability” has the meaning given in Exhibit A to the
Warranty Agreement.


 


“Available Hours” has the meaning given in Exhibit A to the
Warranty Agreement.


 


“Average Nominal Measured Energy” or “ANME” has the meaning given in Exhibit C
to the Warranty Agreement.


 


“AWA Period Revenue” shall have the meaning given in Exhibit A
to the Warranty Agreement.


 


“Base Hours” has the meaning given in Exhibit A to the
Warranty Agreement.


 


“Business Days” means Monday through Friday of each week, except
holidays in which commercial banks in the United States are required or
permitted to close.


 


 


I-1

















 


“Change in Law” means, after the date hereof, the enactment,
modification or repeal or any Governmental Requirements, or any change in the
interpretation of any Governmental Requirements by any Governmental Authority
or court of law, that materially affects Supplier’s schedule for performing any
of its obligations hereunder; provided a change in applicable tax law shall not
constitute a “Change in Law” hereunder.


 


“Commencement Date” means the date upon which the Supplier shall have
timely received the entirety of (a) the Down Payment, (b) the Parent
Guaranty, and such other fees as may be applicable.


 


“Commissioning” or “Commissioning Work” means the installation
inspection, field commissioning and acceptance testing, and controller power-up
test, and start-up work to be conducted by Supplier under the Supply Agreement,
for each Turbine, in accordance with the Commissioning and Start-Up Procedures.


 


“Commissioning and Start-Up Procedures” means the field commissioning
and acceptable testing and start-up test and inspection procedures set forth on
Exhibit O of the Supply Agreement.


 


“Commissioning Certificate” means a certificate issued by Supplier to
Purchaser, in the form attached as Exhibit M to the Supply
Agreement, following completion of Commissioning of each Turbine.


 


“Complete” or “Completion” shall mean, with respect to any Turbine, that
(i) all Turbine Components have been delivered to the Project Site and
installed in accordance with the Installation Procedures, (ii) Purchaser
has completed the necessary terminations and connections of the collection
lines and the SCADA communication lines into the controller in the base of the
Turbine Tower using the collection lines and SCADA communication lines supplied
by Purchaser, and (iii) the Turbine has been Commissioned.


 


“Completion Schedule” shall mean the schedule for the completion by
Supplier and Purchaser, as applicable, of Turbine installation and
Commissioning as set forth in Exhibit T to the Supply Agreement.


 


“CPI” shall mean the Consumer Price Index for the United States City
Average, All Urban Consumers (CPI-U), All Items (base index year
1982-1984=100), as published by the United States Department of Labor, Bureau
of Labor Statistics.


 


“Default Rate” means a per annum rate of interest equal to the lesser of
(a) the maximum rate permitted by law and (b) twelve percent (12%)
per annum.


 


“Defect” means a defect in any part or component of a Turbine covered
under the Standard Warranty that causes such part or component to fail during
the Warranty Period. A component is deemed to have “failed” only when it either
(i) breaks, or (ii) ceases to perform the operation for which it was
designed, intended or installed; provided, however, that normal wear and tear
shall not constitute failure.


 


I-2

















 


“Delivery” or “Delivered” means when a Supply Item is made available by
Supplier for pickup by Purchaser at its respective Designated Delivery
Location, provided however, that Purchaser may not take custody and control of
the said Supply Item until the applicable Progress Payment has been made by
Purchaser and received by Supplier.


 


“Delivery Schedule” shall mean the schedule as set forth in Exhibit L
to the Supply Agreement for the Delivery by Supplier of the Supply Items to the
Designated Delivery Locations.


 


“Designated Delivery Location” shall have the meaning given in Section 5.4
of the Supply Agreement.


 


“Down Payment” shall have the meaning given in Section 3.1
of the Supply Agreement.


 


“Down Payment Date” shall have the meaning given in Section 3.1
of the Supply Agreement.


 


“Effective Date” shall mean the date of the Supply Agreement.


 


“Electrical Infrastructure” means the pad mounted transformers, feeder
lines, high voltage feeder lines, switches and all other related facilities
owned by Purchaser through which the electrical power generated by the Turbine
is transferred from the point of connection at the Turbine Controller to the
Interconnection Facilities.


 


“Emergency” means an event occurring at the Project Site, or the
Maintenance and Spare Parts Facility or any adjoining property that poses
actual or imminent risk of serious personal injury or material physical damage
to the Project, or parts thereof, requiring immediate preventative or remedial
action.


 


“Environmental Laws” means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, environmental release or threatened environmental
release of any Hazardous Substance or to health and safety matters, including
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act, as
the same may be amended from time to time, 42 U.S.C. §§ 6901 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Clean Air Act, 42 U.S.C.
§§ 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 3803 et seq.; the
Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq.; the Emergency Planning
and the Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. §§ 1801 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; and any state and
local counterparts or equivalents, in each case as amended from time to time.


 


“EPC Contract” means that certain agreement(s), if any, by and between
Purchaser and EPC Contractor(s), for the erection of the Turbine and the
design, supply, construction, installation and commissioning of (i) crane
pads, laydown areas, temporary construction roads


 


I-3

















 


and storage yards, (ii) permanent
roads, Turbine foundations and transformer foundations, (iii) the
Electrical Infrastructure, (iv) the SCADA System, including communication
lines, (v) any control and operation and maintenance buildings and
facilities (vi) and other civil and electrical elements and other work for
the Project.


 


“EPC Contractor(s)”
means such person or entity selected by Purchaser as principal contractor for
performing work under the EPC Contract.


 


“Escrow Agent”
means such party as agreed upon by Supplier and Purchaser to serve as the escrow
agent.


 


“FAA” means the
Federal Aviation Administration.


 


“Final Assembly
Work” shall mean the final assembly work for the completion of Turbine
component assembly, as set forth in Exhibit P to the Supply
Agreement, prior to the installation of the Turbine.


 


“Financing
Documents” means the financing agreement, by and among the Purchaser or one of
its Affiliates, and the lenders or other financial institutions from time to
time party thereto by which the Purchaser or one of its Affiliates intends to
raise capital to finance the construction of the Project.


 


“Force Majeure
Event” means any event beyond the reasonable control of the Party affected
which materially affects its performance hereunder, including, without
limitation: war, hostilities, insurrection, riot, vandalism or other public
disorder or civil disturbance; terrorism; perils at sea, acts of God, fire,
hurricanes, tornadoes (including tornado watches or warnings for the Project
Site issued by the National Weather Service), mudslides, hail, earthquakes,
lightning, other extreme weather conditions, and, during Commissioning or
repairs, wind in excess of fifteen (15) meters per second or that would make
necessary lifting unsafe, but only for so long as such winds persist;
expropriation or confiscation; strikes, lockouts or other labor disputes;
perils at sea; or unforeseen delays in transportation or shipping, including
with respect to roadways, harbors, ports and other transportation and shipping
infrastructure; any Change in Law; or damage to any part of Supplier’s
factories or assembly plants, or the factories or assembly plants of its
Subcontractors. Force Majeure Events shall include those Force Majeure Events
experienced by any of Supplier’s Subcontractors in circumstances where Supplier
is not able to reasonably reallocate the work of that Subcontractor to an
alternative vendor.


 


“Germanischer
Lloyd” means Germanischer Lloyd Windenergie GMBH.


 


“Germanischer
Lloyd Turbine Certification”, “GL Certificate” or “GL Certified” means a
certification of the Turbine to be issued by Germanischer Lloyd.


 


“Governmental
Authority” means the government or any federal, state, municipal or other
political subdivision in which the Project is located, or any other
governmental or political subdivision thereof exercising jurisdiction over the
Project or, with respect to their rights and obligations hereunder or, with
respect to the Project, the Parties, including all agencies and
instrumentalities of such governments and political subdivisions.


 


I-4














 


“Governmental
Requirements” means all laws, statutes, codes, rules, regulations, orders, and
decrees of any Governmental Authority in effect on the date hereof, including
all authorizations, consents, registrations, exemptions, Permits and licenses
with or from any Governmental Authority, applicable to the Project or, with
respect to their rights and obligations hereunder or with respect to the
Project, the Parties.


 


“Guarantor” means
UPC Wind Partners, LLC as guarantor under that certain Guaranty to be entered
into between Supplier and UPC Wind Partners, LLC.


 


“Hazardous
Substances” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Independent
Engineer” means Garrad Hassan, Germanischer Lloyd, the National Renewable
Energy Laboratory, or Global Energy Concepts, or such other independent
engineer as mutually agreed.


 


“Installation
Procedures” means the procedures for the proper (i) assembly, erection and
installation of the Towers on the Turbine foundations supplied by Purchaser, (ii) grouting
of the Turbines to the Tower foundations and tightening of all bolts using the
appropriate torque; (iii) assembly, erection and installation of the
Turbine Nacelles and Turbine Blades upon the Towers as specified in the Turbine
Specifications, Prudent Wind Industry Practices and Prudent Electrical Industry
Practices; (iv) installation and testing of the Turbine electrical cables,
communication cables, and control panels within the Turbine, and (v) connection
of the cables from each Turbine Nacelle to the main circuit breaker within the
ground controllers, all in accordance with the Turbine Installation Manual.


 


“Installation Work”
means the work required pursuant to the Installation Procedures to assemble,
erect and install the Turbines.


 


“Intellectual
Property Rights” means and refers to all patents, copyrights, trademarks,
service marks, trade secrets and all similar and related intellectual property
rights protected under any statutes, laws, codes, rules or regulations and
any licenses and other rights obtained by Supplier or its Affiliates from third
parties.


 


“Interconnection
Facilities” means all the land rights, materials, equipment and facilities to
be installed by Purchaser for the purpose of interconnecting the Turbines to
the Project’s substation so as to permit the delivery of electrical energy
generated by the Turbines to the interconnection point within the Project’s
substation, which shall include, but shall not be limited to, electrical interconnection,
switching, metering, relaying, communication and safety equipment.


 


“Lenders” shall
mean those lenders providing financing for the Project.


 


“Maintenance and
Spare Parts Facility” means the location from which Operator will perform the
OMS Services.


 


I-5

















 


“Major Turbine
Components” means the Turbine Nacelle, Turbine Controller, Turbine hub, Turbine
Blades and Tower for each Turbine, as such items are more particularly
described in the Turbine Specifications.


 


“Nominal Expected
Energy” or “NEE” has the meaning given in Exhibit C of the Warranty
Agreement.


 


“Nominal Measured
Energy” or “NME” has the meaning given in Exhibit C of the Warranty
Agreement.


 


“OMS Agreement”
means that certain Operation and Maintenance Service Agreement, executed or to
be executed between Supplier (or an Affiliate of Supplier) and Purchaser (or an
Affiliate of Purchaser) of even date herewith, pursuant to which Supplier (or
an Affiliate of Supplier) will operate, maintain and service the Turbines.


 


“OMS Manual” means
the detailed operations, and maintenance service manual for the Turbines
supplied to Purchaser by Supplier, together with any future updates and
supplements thereto provided by Supplier.


 


“Operating Force
Majeure Events” means any event beyond the reasonable control of Supplier or
Operator, as applicable, including, without limitation, (i) war,
hostilities, insurrection, riot, vandalism or other public disorder or civil
disturbance; acts of God, fires, hurricanes, thunder storms (including thunder
storm watches or warnings declared for the area including the Project Site by
the National Weather Service), tornadoes (including tornado watches or warnings
declared for the area including the Project Site by the National Weather
Service), mudslides, hail, earthquakes, lightning (including lightning blade
strikes), or explosions; expropriation or confiscation, strikes, lockouts or
other labor disputes, a Change in Law; epidemic or quarantine; damage or
obstruction to any part of the Project caused by persons other than Supplier,
its Affiliates or their respective Subcontractors; a condition at the Site that
would not reasonably have been discovered by a project supplier comparable in
experience to Supplier conducting a competent and diligent visual inspection, (ii) wind
velocity at a constant speed or in gusts such that a reasonably prudent
professional qualified operator engaged in the business of performing routine
maintenance on wind energy generation facilities comparable to the Project
owned by it, acting for the advancement and protection of its own economic
interests, would not make the required repair at such time due to risks to
persons or property, (iii) with respect to the Turbines, any conditions at
the Project Site that are either outside the operating parameters or standards
for an IEC Class IIB wind turbine, as published as of the Effective Date
by the IEC, or outside the operating parameters or standards for the Turbine,
as set forth in the Turbine Specifications, which operating parameters or
standards may include, without limitation, conditions involving ambient
temperatures or wind speed and/or turbulence at the air density at the Project
Site, (iv) delays caused by inclement weather within the vicinity of the
Project Site and affecting the operation of the Project to the extent that such
inclement weather is materially greater than that normally experienced for the
time of year and locality and (v) unavailability of the grid for any
reason not caused by Supplier. The failure to provide Interconnection
Facilities that are energized and operational in a manner that will permit the
transmission and sale of


 


I-6

















 


power from a Turbine and
related Electrical Infrastructure shall be deemed an Operating Force Majeure
Event with respect to such Turbine until such time as the Interconnection
Facilities are provided and sufficiently operational with respect to each such
Turbine.


 


“Operator” shall
mean the person or entity hired by Project Manager to operate the Project
pursuant to the OMS Agreement.


 


“Party” and “Parties”
has the meaning given in the Preamble to the Supply Agreement.


 


“Permit” means any
valid waiver, exemption, variance, franchise, permit, authorization, license or
similar order, of or from any federal, state, county, municipal, local,
regional, or other governmental body, instrumentality, agency, authority, court
or other body having jurisdiction over the matter in question.


 


“Power Curve”
means the energy values produced by the Turbines at the various wind speed
bands set forth in Exhibit C-2 of the Warranty Agreement.


 


“Power Curve
Warranty Buydown” means any payment made pursuant to Section 3.3(c) of
the Warranty Agreement.


 


“Progress Payment”
shall have the meaning given in Section 3.3 of the Supply
Agreement.


 


“Project” has the
meaning given in the Recitals of the Supply Agreement.


 


“Project
Completion” shall occur upon the Completion of the Turbines.


 


“Project
Completion Certificate” shall mean a certificate, in the form attached as Exhibit N
to the Supply Agreement, delivered by Supplier to Purchaser following
Completion of Commissioning of the Turbines.


 


“Project Site”
means the site described in Exhibit O of the Supply Agreement.


 


“Proven Power Curve
Percentage” or “PPCP” shall have the meaning given in Exhibit B to
the Warranty Agreement.


 


“Prudent
Electrical Industry Practices” means those practices, methods, standards and
acts (including those engaged in or approved by a significant portion of the
power industry for similar facilities in the United States) that at a
particular time in the exercise of good judgment would have been expected to
comply with Governmental Requirements, and to promote safety, environmental
protection, economy and expedition.


 


“Prudent Wind
Industry Practices” means standards and practices that are widely accepted by
the wind energy industry for wind projects of this size and that are prudently
applied and reasonably anticipated and intended to maximize output and productivity
of the Turbines, consistent with their intended design lives.


 


I-7

















 


“PTC Benefits”
means the tax credits that Purchaser may be eligible to claim for the
production of renewable energy by the Project in accordance with Section 45
of the United States Internal Revenue Code, as in effect as of the date of this
Agreement.


 


“Purchaser”
includes the named Purchaser identified in the Preamble to the Supply Agreement
and its successors and permitted assigns.


 


“Purchaser Permits”
mean all Permits required in connection with the development, construction,
ownership and operation of the Project, other than the Supplier Permits.


 


“SCADA System”
means a supervisory control and data acquisition system, including a central
computer and related software, whether supplied and installed by Supplier or by
a third party, as more particularly described in the SCADA System
Specifications.


 


“SCADA System
Installation Manual” means the manual attached to the Supply Agreement as Exhibit V.


 


“SCADA System
Specifications” means those specifications set forth on Exhibit U
to the Supply Agreement, pertaining to the SCADA System.


 


“Services” shall
mean the Commissioning Work.


 


“Site Agreements”
means any agreement between Purchaser, Project Manager, Supplier or Operator,
and any third party, with respect to the operation or maintenance of the
Project.


 


“Subcontractors”
means such subcontractors, consultants or suppliers which in the Supplier’s
reasonable judgment may be necessary to complete Supplier’s duties and
obligations under the Supply Agreement.


 


“Supplier”
includes the named Supplier identified in the Preamble to the Supply Agreement
and its successors and permitted assigns.


 


“Supplier Permits”
means the Supplier Permits listed on Exhibit R to the Supply
Agreement.


 


“Supply Agreement”
means the Turbine Supply Agreement dated as of December 31, 2007 by and
between Supplier and Purchaser and any amendments thereto.


 


“Supply Items”
means, collectively, the Major Turbine Components and Ancillary Parts and
Equipment.


 


“Supply
Obligations” means Supplier’s obligations under the Supply Agreement to (i) supply
Purchaser the Supply Items and (ii) provide Purchaser certain services in
connection with the Supply Items, including (a) supplying, packing,
shipping and Delivering all Supply Items to their Designated Delivery
Locations; (b) at Purchaser’s request, providing a technical adviser to be
present at the Project Site during Turbine Installation; and (c) performing
the Commissioning Work.


 


I-8

















 


“Testing Engineer”
means Garrad Hassan Germanischer Lloyd, the National Renewable Energy
Laboratory, or Global Energy Concepts, or such other independent engineer as
mutually agreed.


 


“Tower” means each
77.4 meter steel tubular tower component of a Turbine having a hub height of
approximately eighty meters (80 m) (measured from the base of such tower to the
center of the Turbine hub) upon which a Turbine Nacelle shall be mounted,
including all ladders, platforms, internal lighting, safety equipment, and all
parts and assemblies necessary for a complete turbine tower, all as further
described in the Turbine Specifications.


 


“Tower Foundation
Requirements” means Supplier’s requirements for the foundation upon which the
Towers are to be erected (which shall specify foundation loads, bolt
configuration, cable configuration and grounding requirements).


 


“Transferee
Agreement and Acknowledgement” means the Agreement and Acknowledgement executed
by Owner and delivered to Supplier in the form attached hereto as Exhibit K
to this Agreement.


 


“Transmission
Facilities” mean the underground and/or overhead distribution, collection and
transmission lines; underground and/or overhead control, communications and
radio relay systems and telecommunications equipment; energy storage
facilities; interconnection and/or switching facilities, circuit breakers,
transformers; cables, wires, fiber, conduit, footings, foundations, towers,
poles, crossarms, guy lines and anchors, and any related or associated
improvements, fixtures, facilities, appliances, machinery and equipment.


 


“Turbine” has the
meaning given in the Recitals to the Supply Agreement.


 


“Turbine Blade”
means a turbine blade component of a Turbine (each Turbine shall have three (3) Turbine
Blades).


 


“Turbine Component
Storage Requirements” means Supplier’s standard requirements for storage and
maintenance of Turbine Components pending installation.


 


“Turbine
Controller” means the circuit breaker and controller equipment for each Turbine
as further described in the Turbine Specifications.


 


“Turbine
Installation Manual” means Supplier’s detailed manual for the Installation
Work.


 


“Turbine Nacelle”
means the turbine nacelle component of a Turbine, including gearbox, generators,
blade pitch controls, brakes, hydraulic systems, lightning protection system,
and nacelle yaw controls, and associated control and ancillary equipment.


 


“Turbine
Specifications” means those specifications set forth in Exhibit S
to the Supply Agreement pertaining to the Turbines.


 


“Turbine Supply
Documents” means, collectively, the Supply Agreement, the Warranty Agreement,
the OMS Agreement and all other agreements, documents or other instrument


 


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executed and delivered by
the Parties hereto in connection with the supply, installation (if applicable)
and maintenance of the Turbines.


 


“Warranted Power
Curve Percentage” or “WPCP” has the meaning given in Exhibit B to
the Warranty Agreement.


 


“Warranties” means
the Standard Warranty, the Availability Warranty, the Power Curve Warranty, the
Sound Warranty, and the IP Warranty given hereunder.


 


“Warranty
Agreement” means that certain warranty agreement by and between Supplier and
Purchaser of even date herewith, pursuant to which Supplier makes certain
covenants and warranties to Purchaser with respect to the Major Turbine
Components supplied pursuant to this Agreement.


 


“Warranty Period
Year” means, for the Turbines, the period beginning on the earlier of (a) the
date of Project Completion, or (b) six (6) months after the last
Major Turbine Component is Delivered to Purchaser, and ending exactly twelve
(12) months thereafter, and each of the following four (4) twelve (12)
month periods thereafter; provided, however that the last of such periods shall
not extend beyond the end of the Warranty Period.


 


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EXHIBIT J


 


Guaranty


 


This GUARANTY (this “Guaranty”)
is made as of
              
2007, by UPC WIND PARTNERS, LLC, a Delaware limited liability company having a
primary place of business at c/o UPC Wind Management, LLC, 85 Wells Avenue, Suite 305,
Newton, MA 02459 (“Guarantor”), and CLIPPER TURBINE WORKS, INC., a Delaware
corporation having a primary place of business at 6305 Carpinteria Avenue,
Carpinteria, California 93103 (“Seller”). Guarantor and Seller are referred to
herein collectively as the “Parties” and individually as a “Party”. Unless
otherwise defined in this Guaranty, all capitalized terms used in this Guaranty
shall have the meanings ascribed thereto in the Contract (as defined below).


 


RECITALS:


 


WHEREAS,
UPC Wind Acquisition V, LLC (“Buyer”) and Seller entered into that certain
Turbine Supply Agreement dated as of December 31, 2007 (the “Contract”), for
the delivery of thirty five (35) wind turbines, ancillary equipment and certain
related services;


 


WHEREAS,
Guarantor is the owner of all the membership interests of Buyer and Guarantor
is willing to enter into this Guaranty to satisfy Purchaser’s obligation to
deliver a Guaranty required pursuant to the Contract on the terms and
conditions set forth below; and


 


WHEREAS,
Seller is willing to accept this Guaranty in satisfaction of Buyer’s obligation
to deliver a Guaranty required pursuant to the Contract on the terms and
conditions set forth below.


 


NOW,
THEREFORE, in consideration of the premises and mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:


 


1.        Pursuant to the terms and conditions of
this Guaranty, Guarantor, as a primary obligor and not merely as a surety,
hereby unconditionally and irrevocably guarantees to Seller the prompt payment
in full of each Payment (as defined below). If (a) Buyer receives from
Seller an invoice for a payment (each, a “Payment”) pursuant to the Contract
and; (b) Buyer fails to pay such Payment to Seller in full when due in
accordance with the requirements of the Contract; and (c) Seller makes
written demand upon Guarantor for payment of the amount of such Payment not so
paid by Buyer; Guarantor hereby agrees that it shall pay, or cause to be paid,
to Seller on or prior to the date that is five (5) Business Days following
Guarantor’s receipt of such demand (such date, the “Last Payment Date”) the
balance of such Payment that has not been paid by Buyer to Seller. Guarantor
shall have sufficient funds on or prior to the Last Payment Date to satisfy
Guarantor’s obligations under this Guaranty. If Guarantor pays to Seller any
amount of such Payment due and payable pursuant to the terms and conditions of
this Guaranty, Buyer’s payment obligations with respect to such Payment arising
under the Contract (such obligations, the “Obligations”) shall be deemed satisfied
to the extent of the amount of any such payment, and Buyer shall have no
further obligations to Seller pursuant to the Contract with respect to the
payment of such amount of such Payment. All payments made by Guarantor pursuant
to this Guaranty shall be made without any deduction, offset, counterclaim or
setoff of any kind. All existing and future indebtedness of, or other
obligations owed by, Buyer to Guarantor is hereby subordinated to all
obligations of Buyer to Seller under the Contract. Guarantor hereby
unconditionally and irrevocably waives and relinquishes, to the maximum extent
permitted by


 


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applicable law, all
rights and remedies accorded to sureties or guarantors and agrees not to assert
or take advantage of such rights or remedies.


 


2.        Seller acknowledges and agrees that the
current maximum amount of all Payments that may be payable under the Contract
(which may only be increased pursuant to a Change Order) (and the maximum
amount of Guarantor’s obligations in connection with and/or arising under this
Guaranty) is equal to ***** Dollars ($*****).


 


3.        This Guaranty shall terminate and be of
no further effect upon the earliest of (a) payment in full of the
Obligations under the Contract; and (b) the mutual agreement of Guarantor
and Seller.


 


4.        This Guaranty shall be binding upon, and
shall inure to the benefit of, the Parties hereto and their respective
successors and permitted assigns; provided, however, that neither Party may
pledge, assign or otherwise transfer any of its rights or obligations under
this Guaranty without the prior written consent of the other Party, and any
such attempted pledge, assignment or transfer shall be null and void ab initio.


 


5.        THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).


 


[Signature Page Follows]


 


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IN WITNESS
WHEREOF, the Parties hereto have caused this Guaranty to be executed by their
respective authorized representatives as of the date first written above.


 


	
  UPC
  WIND PARTNERS, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  CLIPPER TURBINE WORKS,
  INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


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