Exhibit
10.51


 


EXECUTION VERSION


 


AMENDMENT
NO. 4

TO

SECOND AMENDED AND RESTATED GUARANTY


 


This AMENDMENT NO. 4 TO
SECOND AMENDED AND RESTATED GUARANTY (this “Amendment”), dated as of March 23,
2010, is entered into by and between First Wind Holdings, LLC, a Delaware
limited liability company (“FWH”) and HSH Nordbank AG, New York Branch (“HSHN”).


 


RECITALS


 


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


 


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


 


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


 


WHEREAS, FWH and HSHN
entered into that certain Amendment No. 3 to Second Amended and Restated
Guaranty, dated as of March 2, 2010; and


 


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


 


NOW, THEREFORE, in
consideration of the foregoing and mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:


 


AGREEMENT


 


Section 1.              Definitions.  Capitalized
terms used and not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Guaranty Agreement.


 


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


 

















 


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


 


“Permitted Indebtedness”
shall mean (a) the Indebtedness under the Basic Documents; (b) Outstanding
HSH Loans and other Indebtedness permitted under the terms of the Outstanding
HSH Loans; (c) “Permitted Indebtedness” (as defined in any FW Credit
Facility) and the financing of any Eligible Qualified Project under a FW Credit
Facility for which the Corresponding Term Loans (as defined in such FW Credit
Facility) have been repaid in full and all excess proceeds of such financing,
if any, are distributed to the Guarantor and deposited in accounts subject to
the lien of the Security Agreements; (d) the guarantees and the loans
entered into prior to the Effective Date as listed on Schedule 5, each
of which is subordinated in all respects to the Guaranteed Obligations; (e) any
refinancings, replacements, refundings, renewals or extensions of the Indebtedness
described in clauses (a) through (d) above and this clause (e); provided,
that the amount of such Indebtedness is not increased at the time of such
refinancing, replacement, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder; (f) trade
payables or other similar Indebtedness incurred in the ordinary course of
business if paid when due (taking into account any grace periods) and in any
event within 90 days after the date of the relevant invoice; (g) intercompany
loans between any Project Company or wholly-owned (direct or indirect) subsidiary
of the Guarantor and the Guarantor, between the Guarantor and FWA or FWA4, or
between wholly-owned (direct or indirect) subsidiaries of the Guarantor; provided,
in each case that such loans are unsecured and are subordinated in all respects
to the Outstanding HSH Loans pursuant to an intercreditor agreement that is
similar in form and in substance to the Intercreditor Agreement; (h) a
guarantee by the Guarantor for certain limited indemnification obligations in
connection with the Agreement for Purchase of Membership Interests, dated as of
January 31, 2008, among UPC New York Wind 2, LLC (n/k/a New York Wind II,
LLC), UPC New York Wind 3, LLC (n/k/a New York Wind III, LLC) and Lehman First
Wind Holdings LLC (as successor in interest to Lehman Brothers Holdings Inc., a
Delaware corporation) in an amount not exceeding $20,000,000; and (i) (x) Indebtedness
in respect of capital lease obligations and purchase money obligations and
renewals, refinancings and extensions thereof, for fixed or capital assets and (y) customary


 


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indemnities in connection
with sales by the Guarantor and its Subsidiaries otherwise permitted hereunder,
provided that the aggregate amount of all such Indebtedness in clauses
i(x)-(y) herein at any one time outstanding shall not exceed $25,000,000
and shall at all times be subordinated to the Guaranteed Obligations on
subordination terms substantially similar to those set forth on Schedule 8;
(j) Indebtedness of the Guarantor in an aggregate amount not to exceed at
any time the positive difference between Minimum Members’ Equity and
$600,000,000; provided, that such Indebtedness shall be subordinated by
terms substantially similar to those set forth on Schedule 8 by its
terms; (k) Indebtedness incurred under the AIMCO Credit Agreement,
including without limitation the Undertaking Agreement, dated as of the date
hereof, entered into by the Guarantor and Wells Fargo, N.A.; (l) Indebtedness
incurred with respect to (1) the transfer of certain letters of credit for
the Mars Hill Project and the Steel Winds Project to the related Project
Companies or other Affiliates in accordance with the terms of the Holdings Loan
Agreement, including without limitation any guarantee by the Guarantor of such
letters of credit and (2) the establishment of a corporate letter of
credit facility in an amount up to $50,000,000 by the Guarantor or an
Affiliate, including without limitation any guarantee by the Guarantor in
respect of such letter of credit facility; provided, that such
Indebtedness shall be subordinated by terms substantially similar to those set
forth on Schedule 9 by its terms; and (m) Indebtedness incurred
under Indemnity Agreement, dated as of December 22, 2009, by the Guarantor
in respect of certain indemnity obligations arising out of a Government Grant
Disallowance Event (as defined in the Financing Agreement, dated as of December 22,
2009, between Stetson Holdings, LLC, BNP Paribas, as Joint Lead Arranger,
Administrative Agent, Security Agent and Issuing Bank, and HSH Nordbank, AG,
acting through its New York Branch).


 


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


 


“Unit Redemption
Agreement” shall mean that certain Unit Redemption Agreement, dated as of April 28,
2006, between UPC Wind Partners II and the Guarantor, as amended by the
Amendment Agreement to Unit Redemption Agreement, dated as of December 12,
2008, and as further amended by the Amendment Agreement No. 2 to Unit Redemption
Agreement, dated as of March 18, 2010.”


 


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(b)           The words “clause (B) of the final proviso” in
the definition of “UPC Release Event” shall be deleted and replaced with “clause
(x)”.


 


Section 3.              Legal Effect.  This
Amendment shall become effective as of the date hereof.  This Amendment constitutes the entire
agreement between the parties hereto with respect to the matters dealt with
herein.  All previous documents,
undertakings and agreements, whether verbal, written or otherwise, between the
parties hereto with respect to the subject matter of the Amendment, are hereby
cancelled and superseded and shall not affect or modify any of the terms or
obligations set forth in this Amendment.


 


Section 4.              Miscellaneous.


 


(a)           Reference to and Effect on the Guaranty Agreement.  Except
as expressly set forth herein, the Guaranty Agreement as specifically amended
by this Amendment shall remain unchanged and in full force and effect and
hereby is ratified and confirmed.  FWH
acknowledges that this Amendment does not constitute any commitment to provide
any additional loans or other extensions of credit, any future waiver or
forbearance, or any additional extensions of time for the repayment of any
debt.  In consideration for the
commitments contained in the Guaranty Agreement as amended by this Amendment,
FWH agrees and covenants that it will not claim that any current or prior
action or course of conduct by HSHN with respect to any Events of Default that
have occurred or may hereafter occur, constitutes an agreement or obligation to
continue such action or course of conduct in the future.  FWH acknowledges that HSHN has not made any
commitments, undertakings, waivers or amendments except as expressly set forth
in this Amendment.


 


(b)           Governing Law, Etc.  This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York (without regard to conflict of laws provisions thereof
other than Section 5-1401 of the New York General Obligations Law).  FWH hereby irrevocably and unconditionally
submits to the non-exclusive jurisdiction of any state or federal court sitting
in the County of New York, State of New York over any suit, action or
proceeding arising out of or relating to this Amendment Service of process by
HSHN in any such dispute shall be binding on FWH if sent to the FWH by
registered or certified mail, at the address specified on the signature page of
this Amendment.  FWH agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction.


 


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EACH PARTY WAIVES ANY RIGHT
IT MAY HAVE TO JURY TRIAL IN ANY ACTION RELATED TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


NO CLAIM SHALL BE MADE BY
ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR
AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS,
EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR IS BASED ON CONTRACT, TORT,
DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR
IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT OR ANY
ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.


 


(c)           Counterparts and Facsimile or Electronic Mail
Execution.  This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.  Delivery of an
executed counterpart of this Amendment by facsimile or by electronic mail shall
be equally as effective as delivery of an original executed counterpart of this
Amendment.  Any party delivering an executed
counterpart of this Amendment by facsimile or by electronic mail also shall
deliver an original executed counterpart of this Amendment, but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment.


 


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IN WITNESS WHEREOF, the
Parties have caused this Amendment to be duly executed and delivered as of the
day and year first above written.


 


	
   

  	
  FIRST WIND HOLDINGS, LLC,
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael U. Alvarez

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
  HSH NORDBANK AG, NEW YORK
  BRANCH,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David Watson

  	
   

  
	
   

  	
  Name: 

  	
  David Watson

  	
   

  
	
   

  	
  Title: 

  	
  Vice President 

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York
  Branch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name: 

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, NY
  Branch