Exhibit 10.10


 


EXECUTION  VERSION


 


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


 


Fourth Amended and Restated Secured Promissory Note


 


Dated as of July 17, 2009


 


by


 


First Wind Acquisition, LLC,


as Borrower


 


For the benefit of


 


HSH Nordbank AG,
New York Branch, 


Lender, Collateral Agent and Administrative Agent


 


and


 


The Lenders party hereto


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions and
  Interpretation

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.

  	
  The Loans

  	
  17

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Conditions  Precedent

  	
  23

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Representations

  	
  26

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Covenants

  	
  29

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Events of Default

  	
  39

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Expenses; Indemnification

  	
  42

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Security

  	
  43

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Governing Law; Submission
  to Jurisdiction

  	
  43

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Assignments

  	
  44

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Appointment of Agents

  	
  44

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Miscellaneous

  	
  46

  



 


Exhibits


 




	
  Exhibit A

  	
  –

  	
  Notice of Borrowing

  
	
  Exhibit B

  	
  –

  	
  Notice  of Extension

  
	
  Exhibit C-l

  	
  –

  	
  Withholding  Certificate  (Treaty)

  
	
  Exhibit C-2

  	
  –

  	
  Withholding  Certificate  (Effectively
  Connected)

  
	
  Exhibit C-3

  	
  –

  	
  Withholding  Certificate  (Portfolio
  Interest)

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
  –

  	
  Advance Rates

  
	
  Schedule  2

  	
  –

  	
  Appraisal Procedure

  
	
  Schedule 3

  	
  –

  	
  Collateral

  
	
  Schedule  4

  	
  –

  	
  List of Project Companies

  
	
  Schedule  5

  	
  –

  	
  List Material Project
  Documents

  
	
  Schedule  6

  	
  –

  	
  Insurance Requirements

  
	
  Schedule  7

  	
  –

  	
  Turbine Supply Documents

  
	
  Schedule 8

  	
  –

  	
  Material Liabilities  and Assets

  
	
  Schedule  9

  	
  –

  	
  Top-Up Amount Schedule

  
	
  Schedule  10

  	
  –

  	
  Post Closing Deliverables

  






 

















 


FOURTH AMENDED AND RESTATED


SECURED  PROMISSORY
NOTE


 




	
  $231,482,543

  	
   

  	
  July 17, 2009

  






 


For
value received, FIRST WIND ACQUISITION, LLC, a Delaware limited liability
company (“First Wind” or the “Borrower”), hereby unconditionally
promises to pay to the order of HSH NORDBANK AG, NEW YORK BRANCH, (the “Lender”,
and together with any other lenders added from time to time, the “Lenders”),
the aggregate principal amount of TWO HUNDRED THIRTY-ONE MILLION, FOUR HUNDRED EIGHTY-TWO
THOUSAND FIVE HUNDRED FORTY-THREE U.S. DOLLARS ($231,482,543) (or such other
amount as shall actually be advanced hereunder), together with all accrued and
unpaid interest at the Interest Rate (as defined below), on or prior to the
applicable Maturity Date (as defined below) pursuant to the provisions of this
Fourth Amended and Restated Secured Promissory Note (this “Note”).


 


The Borrower promises to pay interest on the outstanding principal
amount of each Loan advanced under this Note for the period from and including
the date of such advance to but excluding the date such advance shall be repaid
in full, at the applicable interest rate, as set forth in Section 2.2(b),
below. Any principal not repaid when due shall bear interest from and including
the date due to but excluding the date on which such amount is repaid in full
at a rate per annum equal to the Default Rate.


 


Accrued interest on the Loans shall be payable in accordance with Section 2.2(b) and
on the applicable Maturity Date; provided, however, that in the
event of any prepayment of any Loan, accrued interest on the principal amount
shall be payable in accordance with Section 2.5.


 


All payments under this Note shall be made in lawful money of the
United States, in immediately available funds and without set-off, deduction or
counterclaim. Any extension of time for the repayment of the principal
outstanding under this Note resulting from the due date falling on a
non-Business Day shall be included in the computation of interest.


 


The Borrower hereby waives presentment, notice of dishonor, protest and
any other notice or formality with respect to this Note except for such notice
as provided herein.


 


This Note amends and restates in its entirety the Third Amended and
Restated Secured Promissory Note dated December 12, 2008, by the Borrower,
in favor of the Lender as amended by that certain Amendment No. 1 to Third
Amended and Restated Secured Promissory Note, dated as of January 22,
2009, as further amended by that certain Amendment No. 2 to Third Amended
and Restated Secured Promissory Note, dated as of February 26, 2009, as
further amended by that certain Amendment No. 3 to Third Amended and
Restated Secured Promissory Note, dated as of March 30, 2009, and as
further amended by that certain Amendment No. 4 to Third Amended and
Restated Secured Promissory Note, dated as of April 22, 2009 (as so amended, the “Third Amended and
Restated Note”).


 


1

















 


1.             Definitions
and Interpretation.


 


(a)           Definitions.
The terms listed below shall be defined as follows:


 


“Administrative
Agent” shall mean HSH Nordbank AG, acting through its New York branch, in
its capacity as administrative agent for the Lenders under this Note.


 


“Advance
Rate” shall have the meaning assigned to such term in Schedule 1  hereto.


 


“Affiliate”
shall mean, as to any Person, any other Person which directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As
used in this definition, “control” (including, with its correlative
meanings, “controlled by” and “under common control with”) shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
membership or partnership or other ownership interests, by contract or
otherwise); provided, that, in any event, any Person which owns directly
or indirectly 30% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation or 30% or
more of the membership or partnership or other ownership interests of any other
Person (other than as a limited partner of such other Person) will be deemed to
control such corporation or other Person.


 


“Agents”
shall mean the Administrative Agent and the Collateral Agent.


 


“AIMCO
Intercreditor Agreement” shall mean that certain intercreditor agreement
dated as of the date hereof by and between HSHN and Alberta Investment
Management Corporation.


 


“AIMCO
Holdco” shall mean CSSW Holdings, LLC, a Delaware limited liability company.


 


“AIMCO
Issuer” shall mean CSSW, LLC, a Delaware limited liability company.


 


“Anti-Money
Laundering Laws” means any laws or regulations relating to money laundering
or terrorist financing, including, without limitation, the Bank Secrecy Act, 31
U.S.C. sections 5301 et seq.; the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56 (a/k/a the USA
PATRIOT Act); Laundering of Monetary Instruments, 18 U.S.C. section 1956;
Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity,
18 U.S.C. section 1957; the Financial Record keeping and Reporting of Currency
and Foreign Transactions Regulations, 31 C.F.R. Part 103; and any similar
laws or regulations currently in force or hereafter enacted.


 


“Applicable
Margin” shall mean 4.75%.


 


“Appraisal
Procedure” shall have the meaning assigned to such term in Schedule 2.


 


2

















 


“Appraised
Value” shall mean, with respect to any Turbine, the result of the
most-recently conducted Appraisal Procedure, as set forth in Schedule 2.


 


“Assignment and Agreement” shall mean that certain Assignment
and Agreement, dated as of March 6, 2006 between Exergy Development Group,
LLC, First Wind Holdings and GE.


 


“Base
Rate” shall mean, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
for such day plus 0.75% per annum. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, as the case may be.


 


“Base
Rate Loans” shall mean loans that accrue interest at interest rates based upon the Base
Rate.


 


“Basic
Documents” shall mean this Note, the Subordination Agreement, the Security
Agreements, the AIMCO Intercreditor Agreement, the Fee Letter, the Guarantees
and any other document or instrument now existing or hereafter entered into
that relates to any extensions of credit at any time made available by the
Lenders to the Borrower.


 


“Borrowing
Date” shall mean, in respect of any Loan, the date such Loan is made.


 


“Borrowing Notice” shall mean a borrowing notice to be delivered
by the Borrower to the Administrative Agent, substantially in the form of Exhibit A
attached hereto.


 


“Budget
Termination Event” shall mean the occurrence of all of the following: (a)(i) the
Release Event or (ii) pursuant to a request by the Borrower, the
Administrative Agent has provided written confirmation that the aggregate
outstanding amount of Loans under this Note and the FWA IV Note is equal to or
less than $50,000,000; and (b) no
Default or Event of Default shall have occurred and be continuing as of such
date.


 


“Business
Day” shall mean any day other than a Saturday, Sunday or any other day on
which commercial banks are authorized or required to close in New York, New
York.


 


“Change
of Control” shall mean an event or any series of events by which (a) First
Wind Holdings ceases to have the power, directly or indirectly, to vote or
direct the voting of membership interests carrying the voting rights to elect
the majority of the board of directors of the Borrower or (b) First Wind
Holdings ceases to own legally and beneficially at least 50% of the membership
or economic interests of the Borrower.


 


“COD” shall mean, with respect to any Project, the commercial
operation date of such Project, which shall be deemed to occur when at least 90% of the Turbines to be
installed at such Project have been installed (with installation and start-up
of the remaining Turbines being diligently pursued), energized, connected to
the grid and otherwise ready to generate electricity for commercial sale.


 


3

















 


“Code” shall mean
the United States Internal Revenue Code of 1986, as amended from time to
time, and any successor statute.


 


“Collateral”
shall mean all assets which are subject or required to become subject to the security
interests or liens granted by the Borrower, the Intermediate Holding Companies,
Corresponding Project Companies, and such other entities as set forth
in Schedule 4, as applicable, under any of the Security Agreements,
including, without limitation (a) all right, title and interest of the
Borrower and the Project Companies under the Material Project Documents, as set
forth on Schedule 5, then in effect with respect to the Projects, (b) the
Pledged Equity Interests, and (c) all permits then in effect with respect
to the Projects.


 


“Collateral
Agent” shall mean HSH Nordbank AG, acting through its New York branch, in
its capacity as collateral agent for the secured parties under the Security
Agreements.


 


“Commitment”
shall mean the Term Loan Commitment and the North Shore Loan Commitment.


 


“Commodity Hedge/Power Sales Agreement” shall mean any agreement
(including each confirmation entered into pursuant to a master agreement or
similar agreement) providing for any swap, cap, collar, put, call,
floor, future, option, spot, forward or credit sleeve, and any power
and/or capacity purchase or sale agreement, power transmission agreement,
ancillary services and capacity sales and purchase agreements, renewable energy
credit or other environmental attributes sale or purchase agreements, netting
agreement or similar agreement entered into in respect of any commodity, or any
energy management agreement, in all cases whether settled physically or
financially.


 


“Contract Price” shall mean the price for any Turbine or set of
Turbines, as applicable, as set forth under the Defined Contract Price in the
Turbine Supply Documents (as such Turbine Supply Documents were in effect on December 31,
2008) for such Turbine or Turbines; provided that upon repayment in full
of the Corresponding Term Loans for any Turbine(s), the Contract Price for such
Turbine(s) shall equal zero.


 


“Contributed Equity” shall mean, on any Top-Up Date, for each
Turbine, an amount, as shown on the Top-Up Schedule then in effect, equal to
the principal prepayments and repayments made since the Effective Date.


 


“Corresponding Project Company” shall mean, with respect to any
Turbine financed with Term Loans under this Note, any Project Company owning a
Project at which such Turbine is intended to be or has been installed, as set
out on the Top-Up Amount Schedule (as updated from time to time by the
Administrative Agent pursuant to the terms and provisions of this Note); provided
that a Project Company shall no longer be a Corresponding Project Company as
provided under Section 5(cc) or Section 5(x) upon
the indefeasible repayment in full of all Corresponding Term Loans (including
the principal of and all interest and fees on such Corresponding Term Loan) for
all Turbines installed or intended to be installed at such Project and the
release of such Corresponding Project Company, such Project and such Turbines
from the lien of the Security Agreements in accordance with their terms; provided,
further, that North Shore shall be a Corresponding Project Company for
purposes of this Note until the indefeasible


 


4

















 


repayment in full of the
North Shore Loan (including the principal of and all interest and fees on the North Shore Loan).


 


“Corresponding
Term Loans” shall mean, with respect to any Turbine, the Term Loans the
proceeds of which were used to finance in whole or in part the purchase of such
Turbine by the Borrower or the reimbursement of amounts paid to the
turbine supplier under the Turbine Supply Documents for such Turbine and
related services as described in the Turbine Supply Documents.


 


“Default”
shall mean any event that with the passage or time or giving notice would result in
an Event of Default.


 


“Default
Rate” shall mean, in respect of any amount not paid when due, the rate per
annum equal to the sum of the applicable interest rate set forth in Section 2.2(b)(i) plus
two percent (2.0%) per annum; provided that the Default Rate shall not
exceed the maximum rate of interest permitted to be charged in accordance with
applicable law.


 


“Defined
Contract Price” shall mean the price assigned to the term “Total Contract
Price” in the TPO No. 10 and the term “Contract Price” in the Turbine
Supply Documents set forth on Schedule 7, as applicable.


 


“Documentation”
shall have the meaning assigned to such term in Section 3.1(1). 


 


“Dollars”
and “$” shall mean lawful money of the United States of America. 


 


“Effective
Date” shall have the meaning assigned to such term in Section 3.1.


 


“Eligible
Qualified Projects” shall mean the Projects identified on Schedule 4,
as subject to change pursuant to Section 5(cc).


 


“Event
of Default” shall have the meaning assigned to such term in Section 6
of this Note.


 


“Federal
Funds Effective Rate” shall mean, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight federal funds transactions with members of the United States Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by it.


 


“Fee
Letter” shall mean the fee letter dated as of the date hereof between the Borrower and
the Lender (as amended, modified or supplemented from time to time).


 


“FEIN”
shall have the meaning assigned to such term in Section 3.1(1).


 


5

















 


“First
Wind Holdings” shall mean First Wind Holdings, LLC (formerly known as UPC
Wind Partners, LLC), a Delaware limited liability company.


 


“First
Wind Holdings Loan Agreement” shall mean the Letter of Credit and
Reimbursement Agreement, dated as of the date hereof, by and between First Wind
Holdings, as borrower, and HSHN as lender, arranger, issuing bank, collateral
agent and administrative agent (as amended, modified or supplemented from time
to time).


 


“FWA
IV” shall mean First Wind Acquisition IV, LLC, a Delaware limited liability
company.


 


“FWA
IV Note” shall mean that certain Second Amended and Restated Secured Promissory
Note, dated as of the date hereof, between FWA IV, as borrower, and HSHN, as
lender, administrative agent and collateral agent (as amended, modified and
supplemented and in effect
from time to time).


 


“GAAP”
shall mean generally accepted accounting principles in the United States,
consistently applied.


 


“GE”
shall mean General Electric Company, a New York corporation.


 


“GE
Consent” shall mean that certain Consent and Agreement, dated as of June 30,
2006, among GE, the Borrower and the Collateral Agent, as amended by that
certain Amendment to Consent and Agreement, dated as of September 20,
2007.


 


“Governmental
Approvals” shall mean (a) any authorizations, consents, approvals,
licenses, rulings, permits, tariffs, rates, certifications, filings, variances,
orders, judgments, decrees by or with a relevant governmental authority and (b) any
required notice to, any declaration of, or with, or any registration by, or
with, any relevant governmental authority.


 


“Governmental
Authority” shall mean any national, state, municipal, territorial, or local
government, any political subdivision thereof or any other governmental
department, commission, board, judicial, public, regulatory or statutory instrumentality,
authority, body, agency, bureau or entity, (including any zoning authority,
FERC and the New York State Public Service Commission), any of which has the
authority to bind a party at law or having jurisdiction over the Borrower, the
Project Companies.


 


“Guarantees”
shall mean each guaranty agreement described in Schedule 3.


 


“Holdback
Amount” shall mean, with respect to a Turbine or Turbine Supply Document (as
applicable), the product of (a) Value therefor and (b) the Holdback
Percentage.


 


“Holdback
Percentage” shall mean 2.686537%.


 


“HSHN” shall mean
HSH Nordbank AG, New York Branch.


 


“Indebtedness”
of any Person shall mean (a) indebtedness created, issued or incurred by
such Person for borrowed money (whether by loan or the issuance and sale of
debt


 


6

















 


securities
or the sale of property of such Person to another Person subject to an understanding
or agreement, contingent or otherwise, to repurchase such property of such
Person); (b) obligations of such Person to pay the deferred purchase or
acquisition price for any property of such Person; (c) any indebtedness of
others secured by a lien or other encumbrance on any property of such Person,
whether or not the respective indebtedness so secured has been assumed by such
Person; (d) all obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for the account of such Person (whether contingent or otherwise); (e) obligations
of such Person in respect of surety bonds or similar instruments (whether
contingent or otherwise); (f) obligations of such Person to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any property of such Person to the extent such obligations are required to be
classified and accounted for as a capital lease on a balance sheet of such
Person under generally accepted accounting principles applied on a consistent
basis (including Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board); and (g) indebtedness of others as
described in clauses (a) through (f) above in any manner guaranteed
by such Person or as to which such Person has an obligation substantially the
economic equivalent of a guarantee.


 


“Independent
Appraiser” shall mean DAI Management Consultants, Inc., or any other
independent and nationally recognized appraiser selected by the Administrative
Agent and, unless an Event of Default has occurred and is continuing, approved
by the Borrower.


 


“Independent
Engineer” shall mean Garrad Hassan America, Inc., or any other
independent and nationally recognized engineer selected by the Majority Lenders
and, unless an Event of Default has occurred and is continuing, approved by the
Borrower.


 


“Insurance Consultant”
shall mean Moore McNeil, LLC or its successor selected by the Majority
Lenders and, unless an Event of Default has occurred and is continuing,
approved by the Borrower.


 


“Interest
Payment Date” shall mean the last day of each Interest Period for any Loan. 


 


“Interest
Period” shall mean each period commencing on the Borrowing Date and ending
on the numerically corresponding day in the succeeding first, second or third
calendar month, as the Borrower may select, except that each Interest Period
that commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) no Interest Period for
any Loan may commence before and end after any date on which the Borrower is
obligated to make any payment of principal if, in order to make that payment,
the Borrower would be required to pay all or any part of such Loan prior to the
last day of that Interest Period and (ii) each Interest Period that would
otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day, unless such next succeeding Business Day falls in the
next succeeding calendar month, in which case such Interest Period shall end on
the next preceding Business Day.


 


“Interest Rate Protection Agreement” shall mean any interest
rate protection agreement entered into between the Borrower and HSHN.


 


7

















 


“Intermediate
Holding Companies” shall mean the subsidiaries of First Wind Holdings that
directly or indirectly own interests in any Corresponding Project Company.


 


“LIBO
Rate” shall mean, for each LIBO Rate Interest Period, a rate of interest
per annum, calculated on the basis of a 360 day year, equal to the simple
average (rounded upward, if necessary, to the nearest whole multiple of 1/100
of one percent) of the rates shown on USD- LIBOR setting as published on
Reuters / Telerate page 3750(or any substitute thereof) with respect to
the banks in the London interbank market named in the display as at 11:00 a.m.
(London, England time) on the second Business Day prior to the first day of the
relevant LIBO Rate Interest Period, for a deposit period comparable to the LIBO
Rate Interest Period, or if available from the Lenders, the rate per annum
equal to the rate quoted by the Lenders for Dollar deposits at or about 10:00 a.m.,
New York City time, on the Business Day to begin such LIBO Rate Interest Period
in the London interbank eurodollar market for delivery on such day for the
number of days comprised therein and in an amount comparable to the amount of
its LIBO Rate Loan to be outstanding during such LIBO Rate Interest Period.


 


“LIBO
Rate Interest Period” shall mean any of the one, two or three month periods
selected by the Borrower from time to time with respect to the LIBO Rate Loans
by delivery of a written notice to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, at least three (3) Business
Days prior to the commencement of such LIBO Rate Interest Period; provided, however, if the
Borrower does not notify the Administrative Agent of the next LIBO Rate
Interest Period for any LIBO Rate Loan by the date set forth herein, such LIBO
Rate Loan shall automatically continue as a LIBO Rate Loan with the same LIBO
Rate Interest Period expiring for such prior LIBO Rate Loan, but no later than
the Maturity Date; and, provided, further that (i) each LIBO
Rate Interest Period ending on a day other than a Business Day shall end on the
next succeeding Business Day unless such next succeeding Business Day occurs in
the next following calendar month, in which case such LIBO Rate Interest Period
shall end on the next preceding Business Day, and (ii) any LIBO Rate
Interest Period that would extend beyond the Maturity Date for such Loan shall
end on the relevant Maturity Date.


 


“LIBO
Rate Loans” shall mean Loans that accrue interest at interest rates based upon the LIBO
Rate.


 


“Loan”
shall mean the loans made to the Borrower by the Lenders evidenced by this
Note, collectively or individually, as appropriate.


 


“Majority
Lenders” shall mean any combination of Lenders party to this Note whose
collective Proportionate Share is greater than fifty percent (50%).


 


“Material
Adverse Effect” shall mean any event, condition or occurrence of whatever
nature that would result in a material adverse change in (a) the business,
results of operations, condition or financial condition of the Borrower or of
the Corresponding Project Companies taken as a whole, (b) the ability of
the Borrower or any Corresponding Project Company to perform its respective
obligations under the Basic Documents or Material Project


 


8

















 


Documents (other than with
respect to the Stetson II Project) to which such entity is a party, or (c) the
validity, priority and enforceability of the Lenders’ liens on the Collateral.


 


“Material
Project Documents” shall mean each of the following project documents
executed and delivered with respect to a Project: (a) any Commodity Hedge
Agreement, (b) an interconnection agreement, (c) all necessary real
estate documents for the Project, (d) the Turbine Supply Agreements
(including the Turbine Supply Agreements assigned and transferred to any
Eligible Qualified Project), (e) a warranty agreement for the related
Project, (f) a service agreement for the related Project, (g) an
operations and maintenance agreement, and (h) any other project
documents, in the case of clauses (e), (f), (g) and (h) necessary for
the development, construction, ownership and operation of the Project,
including any power purchase agreements, balance of plant contracts or equity
capital contributions agreements.


 


“Maturity
Date” shall mean the Term Loan Maturity Date or North Shore Loan Maturity
Date, as applicable to each Loan type.


 


“Maximum
Debt Capacity” shall mean, on any Top-Up Date, for each Turbine or Turbine
Supply Document (as applicable), an amount, as shown in the Top-Up Schedule,
determined in accordance with the following formula:


 


(Value less Holdback Amount) multiplied by Advance Rate


 


“Members”
shall mean (a) D. E. Shaw MWP Acquisition Holdings, L.L.C., (b) Madison
Dearborn Capital Partners IV, L.P., and (c) UPC Wind Partners II, LLC,
each in its capacity as a member of First Wind Holdings on the date hereof,
including, in all cases, their respective successors and permitted assigns.


 


“Net
Cash Proceeds” shall mean (a) with respect to any Subject Disposition,
the aggregate cash proceeds actually received by First Wind Holdings and its
subsidiaries pursuant to such Subject Disposition net of (i) the costs
relating to such Subject Disposition (including, without limitation, sales
commissions, and legal, accounting, investment banking and other professional
fees, commissions and expenses), (ii) any portion of such proceeds
deposited in an escrow account pursuant to the documentation relating to such Subject
Disposition, (iii) taxes paid or reasonably estimated by First Wind
Holdings and its subsidiaries to be payable as a result thereof, (iv) amounts
required to be applied to the repayment of any Indebtedness secured by a
Permitted Lien on the asset subject to such Subject Disposition (including the
repayment of corresponding term loans including accrued interest and fees
thereon), (v) all money actually applied (or committed to be applied) to
repair, replace or reconstruct damaged property or property affected by a
casualty event or condemnation, all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or other
payments, and any amounts retained by or paid to parties having superior rights
to such proceeds, awards or other payments and (vi) any portion of any
such proceeds which First Wind Holdings and its subsidiaries determines in good
faith should be reserved for post-closing adjustments and indemnities; and (b) with
respect to any debt or equity financing, the aggregate cash proceeds actually
received by First Wind Holdings and its subsidiaries pursuant to such debt or
equity financing, net of (i) the costs relating to such financing
(including sales and underwriter’s


 


9














 


commission), (ii) the
repayment of corresponding term loans including accrued interest and fees
thereon, and (iii) with respect to any financing by a Project Company or
its immediate parent company, an amount for (A) a working capital reserve
equal to the aggregate budgeted operating expenditures for such Project Company
for the next succeeding three (3) months and (B) any reserves
required by the terms of contractual limitations under joint ventures with
non-Affiliates, tax equity documents or other financing arrangements in respect
of such Project Company.


 


“Net
Top-Up Amount” shall mean the net amount, positive or negative, of the
aggregate Top-Up Amounts for all Turbines under this Note and the FWA IV Note (as
shown on the Top-Up Schedule then in effect) as of any Top-Up Date.


 


“Non-Revenue
EOP Document” shall mean any contract, agreement, or document relating to
the ownership, development, construction, testing, operation, maintenance,
repair, insurance, management, administration or use of any of the Eligible
Qualified Projects, provided that the following shall not constitute
“Non-Revenue EQP Documents” hereunder: (a) the Turbine Supply Documents, (b) any
Commodity Hedge/Power Sales Agreement, and (c) any agreement in respect of
Indebtedness, including without limitation the First Wind Holdings Loan
Agreement and any agreement with respect to the Term Loans.


 


“North
Shore” shall mean Kahuku Wind Power, LLC (formerly known as North Shore Wind Power, LLC).


 


“North
Shore Intercompany Note” shall mean the Intercompany Note dated as of July 6,
2007, by North Shore Wind Power, LLC in favor of the Borrower in the principal
amount of $7,200,000.


 


“North
Shore Loan” shall
mean a Loan made under Section 2.3(b).


 


“North
Shore Loan Commitment” shall mean the commitment of the Lenders to make the North
Shore Loan to the Borrower under, and on the terms of, this Note up to the
aggregate amount of Seven Million Two Hundred Thousand Dollars ($7,200,000),


 


“North
Shore Loan Maturity Date” shall be the earlier to occur of: (a) any
date on which the owner of the North Shore Parcel sells, transfers,
hypothecates, pledges or otherwise disposes of the North Shore Parcel (other
than a sale, transfer, hypothecation, pledge or disposition pursuant to a
Permitted Lien), or (b) December 31, 2009; provided, that such
date may be extended up to a maximum of ninety (90) days if the Administrative
Agent is provided with a copy of a binding commitment (subject to typical
conditions contained in binding commitment letters) (on or before December 31,
2009) in respect of a sale or financing of the North Shore Parcel and the owner
of the North Shore Parcel is using diligent efforts to close such transaction.


 


“North
Shore Parcel” shall mean the approximately 506.853 acres of property
located in Koolanloa District, Kahuku Subdivision, City and County of Honolulu,
Island of Oahu, State of Hawaii, identified by Tax Map Key No. (1) 5-6-005-007.


 


10

















 


“North
Shore Purchase Price” shall mean the purchase price of the North Shore Parcel.


 


“Notice
of Extension” shall mean the written notice of extension substantially in the form of Exhibit B
attached hereto.


 


“Oakfield
Project” shall have the meaning assigned to such term in Schedule 4.


 


“Obligors” shall mean the Borrower, First Wind Holdings, the
Intermediate Holding Companies and each Corresponding Project Company.


 


“OFAC”
means the United States Department of Treasury Office of Foreign Assets Control.


 


“OFAC Laws” means any laws, regulations, and Executive Orders
relating to the economic sanctions programs administered by OFAC, including
without limitation, the International Emergency Economic Powers Act, 50 U.S.C.
sections 1701 et  seq.;
the Trading with the Enemy Act, 50 App. U.S.C. sections 1 et seq.;
and the Office of Foreign Assets Control, Department of the Treasury
Regulations, 31 C.F.R. Parts 500 et seq.
(implementing the economic sanctions programs administered by OFAC).


 


“OFAC SDN List” means the list of “Specially Designated
Nationals and Blocked Persons” maintained by OFAC.


 


“OFAC
Violation” has the meaning assigned to such term in Section 5(ee)(v) of
this Note.


 


“Original
Effective Date” shall mean July 3, 2007.


 


“Parent Guaranty” shall mean that certain Second Amended and
Restated Guaranty dated as of the date hereof, by First Wind Holdings in favor
of the Lender (as amended, modified or supplemented from time to time).


 


“Permitted
Indebtedness” shall mean (a) the Loan and other Indebtedness under the Basic
Documents; (b) the Indebtedness incurred under any of the Turbine Supply
Documents; (c) trade payables or other similar Indebtedness incurred in
the ordinary course of business;
(d) Indebtedness incurred under the Interest Rate Protection Agreements; (e)
intercompany loans to the Borrower by First Wind Holdings, provided in
each case that such loans are unsecured and are subordinated in all respects to
the Loan hereunder pursuant to an intercreditor agreement that is similar in
form and in substance to the Intercreditor Agreement; (f) Indebtedness of
the Borrower secured by second liens on Turbines that is at all times
subordinated to the Obligations on terms satisfactory to the Administrative
Agent in its sole discretion; provided, that subject to the
Administrative Agent’s approval, the Borrower may pay current interest thereon
on such terms acceptable to the Administrative Agent; (g) the financing of
any Eligible Qualified Project hereunder for which the Corresponding Term Loans
have been repaid in full and all excess proceeds of such financing, if any, are
distributed to First Wind Holdings, deposited in accounts subject to the lien
of the Security Agreements, as defined in the


 


11

















 


Parent Guaranty, and applied
in accordance with Section 3(d) thereunder; and (h) other
Indebtedness permitted under the Parent Guaranty.


 


“Permitted
Liens” shall mean (a) any liens created pursuant to the Basic Documents or
the Material Project Documents; (b) liens imposed by law for taxes that
are not yet due or that are being contested in good faith by the Borrower and
for which adequate reserves have been set aside therefor or that are
secured by a bond reasonably acceptable to the Administrative Agent; (c) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than ninety (90) days and which in the
aggregate would not exceed $100,000 or that are being contested in good faith by the
Borrower and for which adequate reserves have been set aside therefor or are
secured by a bond reasonably acceptable to the Administrative Agent; (d) pledges
and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or
regulations; (e) cash deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business; (f) liens arising solely by virtue of any statutory or
common law provision relating to banker’s liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; (g) easements, rights-of-way,
restrictions, defects or other exceptions to title or other similar
encumbrances incurred in the ordinary course of business which are not incurred
to secure Indebtedness or are pre-existing at the time the Borrower or
Corresponding Project Company obtains the real property rights associated
therewith, and which do not in any case detract from the value of the property
subject thereto or interfere with the ordinary conduct of business such
that it would have a Material Adverse Effect on the Borrower’s or Corresponding
Project Company’s ability to comply with its respective obligations
under the Basic Documents or Material Project Document, as applicable,
to which it is a party; (h) any liens, easements, zoning
restrictions, rights-of-way or similar encumbrances on real property comprising
the route for the transmission line for any project utilizing the Turbines, and
which do not in any case (i) detract from the value of the property subject
thereto or (ii) interfere with the ordinary conduct of the Borrower’s
business, in either case (i) or (ii), such that it would have a Material
Adverse Effect on the Borrower’s ability to comply with its obligations under
the Basic Documents to which it is a party; (i) any other liens, easements,
zoning restrictions, rights-of-way or similar encumbrances
on real property imposed by law or arising in the ordinary course of business
but that would not have a Material Adverse Effect on the Borrower’s ability to comply with its
obligations under the Basic Documents to which it is a party; (j) liens
arising out of judgments or awards that do not otherwise constitute an Event of
Default so long as an appeal or proceeding to review is being prosecuted in
good faith and for the payment of which adequate reserves have been set aside
or are secured by a bond reasonably acceptable to the Administrative Agent; (k) liens
junior to the liens created under the Security Agreements that are granted to
HSHN, in its capacity as Collateral Agent; and (1) liens on the Turbines
in connection with Indebtedness described in clause (f) of
the definition of “Permitted Indebtedness” that are at all times subordinated
to the liens created under the Security Agreements on terms reasonably
satisfactory to the Administrative Agent.


 


12

















 


“Person”
shall mean any individual, corporation, company, voluntary association,
partnership, joint venture, trust, unincorporated organization or government (or
any agency, instrumentality or political subdivision thereof).


 


“Pledged Equity Interests” shall mean all of the issued and
outstanding membership interests of First Wind Holdings in the Borrower, and
the issued and outstanding membership interests subject to the pledge
agreements set forth on Schedule 3.


 


“Prime
Rate” shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as Lender’s prime rate with respect to
extensions of credit made by it in the United States, each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.


 


“Project”
shall mean each project listed on Part II of Schedule 4.


 


“Project Company” shall mean, collectively or individually,
depending on the context, the single-purpose companies listed on Schedule 4,
formed and owned, directly or indirectly, by the Borrower for the development,
financing, construction, acquisition, ownership, operation and/or maintenance
of a Project.


 


“Project
Review” shall have the meaning assigned to such term in Section 5(aa)
of this Note.


 


“Proportionate Share” shall mean, with respect to any Lender,
the percentage of the outstanding Loans payable to such Lender plus the unused
Commitments of such Lender to the aggregate of the outstanding Loans plus the
unused Commitments.


 


“Prudent Utility Practices” shall mean those practices, methods,
equipment, specifications and standards of safety and performance, of which
there may be more than one, and as the same may change from time to time, as
are generally used by privately owned wind generated electric power generation
facilities, which in the exercise of reasonable judgment and in light of the
facts known at the time the decision was made, are considered good, safe and
prudent practices utilized in connection with the design, construction,
operation, maintenance, repair and use of wind generation electrical and other
equipment, facilities and improvements of such wind generated electric power generation
facilities, and are in accordance with applicable law and generally accepted
national standards of professional care, skill, diligence and competence
applicable to such practices, with commensurate standards of safety,
performance, dependability and efficiency.


 


“PTC” shall mean a renewable electricity production tax credit
provided for within the meaning of Section 45 of the Code or any successor
to such section


 


“PTC Expiration Date” shall have the meaning assigned to such
term in Section 5(aa).


 


“Qualified
Project” shall have the meaning assigned to such term in Section 5(aa).


 


13

















 


“Quarterly
Date” shall mean the last Business Day of each calendar quarter.


 


“Reduced
Advance Rate” shall have the meaning assigned to such term in Schedule 1.


 


“Release
Event” means the occurrence of all of the following: (i) the closing
of a Subject Disposition or one or more equity or debt (junior to the Lenders,
as applicable to the borrowing entity, in all respects) financings
resulting in Net Cash Proceeds of $75,000,000 or more in the aggregate for
all such transactions; provided, that all Net Cash Proceeds of such
Subject Disposition, project financing, or equity or junior debt financing are (x) received
by First Wind Holdings, and (y) deposited into accounts of First Wind
Holdings, subject to the liens granted by the security
agreements in respect of the First Wind Holdings Loan Agreement; and (ii) the
Administrative Agent shall have received a repayment in respect of outstanding
Corresponding Term Loans in an amount equal to $41,000,000 (which amount
shall be reduced on a pro rata basis in accordance with any repayment(s) of
Corresponding Term Loans (relative to the amount of the Term Loan Commitment as
of the Effective Date) that are received by the Administrative Agent subsequent
to the Effective Date hereof), upon which repayment the portion of the Term
Loan Commitment shall be terminated pursuant to Section 2.1(c)(ii).


 


“Rollins
Project” shall have the meaning assigned to such term in Schedule 4.


 


“Second
Amended and Restated Note” shall mean that certain Second Amended and Restated
Secured Promissory Note dated July 3, 2007, by the Borrower, in favor of
the Lender as amended by that certain Amendment No. 1 to Second Amended
and Restated Secured Promissory Note, dated as of August 22, 2007, as
further amended by that certain Amendment No. 2 to Second Amended and
Restated Secured Promissory Note, dated as of September 20, 2007, as
further amended by that certain Amendment No. 3 to Second Amended and Restated
Secured Promissory Note, dated as of September 26, 2007, as further
amended by that certain Amendment No. 4 to Second Amended and Restated
Secured Promissory Note, dated as of April 30, 2008, as
further amended by that certain Amendment No. 5 and Waiver to the Second Amended and
Restated Secured Promissory Note, dated as of May 14, 2008, further
amended by that certain Amendment No. 6 to Second Amended and Restated
Secured Promissory Note, dated as of June 11, 2008, as further amended by
that certain Amendment No. 7 to Second Amended and Restated Secured
Promissory Note, dated as of June 25, 2008 and as further amended by that
certain Amendment No. 8 to Second Amended and Restated Secured Promissory
Note, dated as of July 8, 2008 (the Second Amended and Restated Secured
Promissory Note,


 


“Security
Agreements” shall mean the security agreements identified in Schedule 3 hereto.


 


“Stetson I Project” shall mean the wind generating facility with
a nameplate capacity of 57 megawatts located in Washington and Penobscot
Counties, Maine owned by Evergreen Wind Power V, LLC.


 


“Stetson
II Project” shall have the meaning assigned to such term in Schedule 4.


 


14

















 


“Subject
Disposition” shall mean the sale, assignment, lease or other transfer or disposition of
all or substantially all of the assets of a Project for value except that none
of the following shall constitute a Subject Disposition: (a) any sale,
assignment, lease or other transfer or disposition of assets to First Wind
Holdings or its subsidiaries, and (b) any sale or other transfer or
disposition by way of casualty, loss, damage, destruction or other similar loss
or any taking by a Governmental Authority for public or quasi-public use under
the power of eminent domain, by reason of public improvement or condemnation or
in any other manner that displaces the owner of such assets.


 


“Subordination Agreement” shall mean that certain Subordination
Agreement, dated as of June 30, 2006, between the Lender and First Wind
Holdings.


 


“Term Loan” shall
mean a Loan made under Section 2.l(a).


 


“Term Loan Availability Period” shall mean the period from December 12,
2008 to but excluding the earlier of (a) the Term Loan Maturity Date
and (b) the date of termination of the Term Loan Commitment.


 


“Term
Loan Commitment” shall mean the commitment of the Lenders to make Term Loans to
the Borrower under, and on the terms of, this Note up to the aggregate amount
of Two Hundred Twenty-Four Million Two Hundred Eighty-Two Thousand Five Hundred
Forty-Three Dollars ($224,282,543).


 


“Term Loan Commitment Fee” shall mean an amount equal to fifty
percent (50%) of the Applicable Margin per annum on the average daily
unutilized portion of the Term Loan Commitment.


 


“Term
Loan Maturity Date” shall mean June 30, 2010.


 


“Third Amended and Restated Note” shall have the meaning
assigned to such term in the preamble to this Note.


 


“Title
Company” shall mean Title Guaranty of Hawaii, Inc.


 


“Title Policy” shall mean an ALTA mortgagee title insurance
policy in a form reasonably acceptable to the Administrative Agent or an
irrevocable, unconditional commitment to issue such policy (or, if the property
is in a state which does not permit the issuance of such ALTA policy, such form
as shall be permitted in such state and reasonably acceptable to the
Administrative Agent) issued by the Title Company with respect to the property
and insuring the lien of the mortgage.


 


“TMDCE” shall mean
the total Maximum Debt Capacity for all Turbine Supply Documents as of
the Effective Date.


 


“TMDCT” shall mean,
with respect to a Top-Up Date, the total Maximum Debt Capacity for
all Turbine Supply Documents as of such Top-Up Date.


 


“Top-Up
Amount” shall mean an amount equal to:


 


15

















 


TMDCE less TMDCT less the
Contributed Equity.


 


“Top-Up
Cap” shall mean, on each Quarterly Date, $20,000,000 (it being understood that
the Top-Up Cap shall be applied for all applicable calculations in respect of
this Note and the FWA IV Note in the aggregate).


 


“Top-Up
Date” shall mean each Quarterly Date after the Effective Date.


 


“Top-Up
Schedule” shall mean a schedule indicating for each Turbine financed under this Note
and the FWA IV Note, listed by Turbine Supply Document, (i) the relevant Turbine Supply
Document for each Turbine, (ii) the corresponding Eligible Qualified
Project to which such Turbine is dedicated, (iii) whether such Eligible
Qualified Project is a Qualified Project, (iv) the Contract Price for such
Turbine, (v) the most recent Appraised Value of such Turbine, (vi) the
then current Advance Rate or Reduced Advance Rate, as applicable, (vii) the
Maximum Debt Capacity, (viii) the Contributed Equity, and (ix) the
Top-Up Amount, The Top-Up Amount for each Turbine shall be aggregated and
netted together to calculate the Net Top-Up Amount and determine whether
the Top-Up Cap applies on any given Top-Up Date.


 


“TPO No. 10” shall
mean the Turbine Purchase Order No. 10, as described in further detail
on Schedule 7.


 


“Transfer”
shall mean any transfer, sale, lease, assignment, option, grant or similar
arrangement, whether effected directly or indirectly, by which ownership, title
or control of any Turbine, or of any rights or interests in or under any
Turbine Supply Document, is transferred, conveyed or assigned by the
Borrower or any Project Company, as applicable, including any agreement for
any future or conditional transfer, conveyance or assignment, to any other
Person (including any Affiliate of the Borrower or such Project Company).


 


“Turbines”
shall mean the wind turbine generators and related equipment purchased or to
be purchased under the Turbine Supply Documents and financed with Term Loans under this
Note.


 


“Turbine
Supply Documents” shall mean the documents as set out in Schedule 7.


 


“Type”
shall mean LIBO Rate Loans or Base Rate Loans, as applicable, each of which
constitutes a Type of Loans.


 


“USA
Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001, Public Law 107-56 (October 26, 2001), as amended.


 


“Value”
shall mean, with respect to a Turbine or Turbine Supply Document, the lower of
the Appraised Value and the Contract Price therefor.


 


“Withholding
Certificate (Effectively Connected)” shall have the meaning assigned to
such term in Section 2.9 of this Note.


 


16

















 


“Withholding
Certificate (Portfolio Interest)” shall have the meaning assigned to such term in Section 2.9
of this Note.


 


“Withholding
Certificate (Treaty)” shall have the meaning assigned to such term in Section 2.9
of this Note.


 


(b)           Certain Rules of
Interpretation.


 


In
this Note, unless otherwise indicated, the singular includes the plural and the
plural the singular; words importing any gender include the other
gender; references to statutes or regulations are to be construed as including
all statutory or regulatory provisions consolidating, amending or replacing the
statute or regulation referred to; references to “writing” include printing,
typing, lithography and other means of reproducing words in a tangible visible
form; the words “including,” “includes” and “include” shall be deemed to be
followed in each instance by the words “without limitation”; references to
articles, sections (or subdivisions of sections), exhibits, annexes
or schedules are to this Note; references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments, extensions
and other modifications to such agreements or instruments (without, however,
limiting any prohibition on any such amendments, extensions and
other modifications by the terms of this Note); and references to
Persons include their respective successors and permitted assigns and, in the
case of any government authorities, Persons succeeding to their respective
functions and capacities.


 


2.             The Loans


 


2.1           Commitment


 


(a)           Term Loan. The
Lenders agree to make one or more Term Loans to the Borrower at any time during
the Term Loan Availability Period in accordance with the terms of this Note,
subject to the satisfaction or waiver of the conditions precedent set forth in Section 3,
up to an aggregate principal amount equal to the Term Loan Commitment.
Subject to the foregoing:


 


(i)            for any borrowing made, the amount
of such borrowing shall equal the product of (A) the Turbine Supply
Document installment to be paid with such Term Loan and (B) the percentage
equal to the Advance Rate for such Turbine;


 


(ii)           RESERVED; and


 


(iii)          immediately after any borrowing, the
principal amount of the Corresponding Term Loans for a Project shall not
exceed the portion of the Commitment that corresponds to such Project as set
forth on the attached Schedule 11; provided that upon any permitted
reallocation of the Turbines hereunder, the portion of the Commitment that
corresponds to such reallocated Turbines shall automatically and concurrently
transfer to the Project to which the Turbines have been reallocated.


 


17

















 


(b)           Reborrowings.
Except as set forth in this Section 2.l(b), amounts repaid under
this Note may not be reborrowed. Subject to Section 2.l(a) (but
excluding clauses (i) and (ii) thereof) and the satisfaction or
waiver of the conditions precedent set forth in Section 3, the
Borrower shall be entitled to reborrow, on any Top-Up Date, Term Loans in the
amount equal to the Net Top-Up Amount if such amount is negative; provided
that any amounts repaid under Section 2.5(a) may not be reborrowed.
Notwithstanding the provisions of Section 5(a), the proceeds of
such reborrowed loans may be distributed by the Borrower to First Wind Holdings
on that Borrowing Date for further application in accordance with Section 7(d) of
the First Wind Holdings Loan Agreement, as applicable.


 


(c)           Change in Commitment


 


(i)            The Borrower shall
have the right to terminate or reduce the aggregate unused amount of the
Commitment at any time upon not less than three (3) Business Days’ prior
notice to the Administrative Agent (which shall promptly notify the Lenders
thereof) of each such termination or reduction, which notice shall specify the
effective date of such termination or reduction and the amount of any such
reduction, and shall be irrevocable and effective only upon receipt by the
Administrative Agent; provided, that, in order to change the Commitment under this Section 2.1(c),
the Borrower must demonstrate to the reasonable satisfaction of the
Administrative Agent that it holds sufficient liquidity to perform all of its
remaining obligations under each Basic Document and each Turbine Supply
Document to which it is a party, or that the Members have provided an equity
funding commitment, reasonably satisfactory to the Administrative Agent, to
cover any such liquidity shortfall. The portion of the Commitment, once
terminated or reduced under this Section 2.l(c)(i), may not be
reinstated.


 


(ii)           Except for the
Borrower’s rights under Section 2.l(b), concurrently with the
repayment in full of the Corresponding Term Loans (including all accrued
interest and fees) for any Project hereunder, the portion of the Term Loan
Commitment that corresponds to such Project as set forth on the attached Schedule
11 shall automatically be cancelled. Concurrent with the occurrence of the
Release Event, the portion of any Term Loan Commitment that is repaid at such
time shall automatically be terminated. The portion of the Term Loan
Commitment, once terminated or reduced under this Section 2.l(c)(ii),
may not be reinstated.


 


2.2          Fees;
Interest; Yield Protection. The Borrower shall pay to the
Administrative Agent for the account of the Arranger the bank fees as required
pursuant to the Fee Letter. The Administrative Agent shall provide Borrower
with a notice setting out the amount of any fees and interest to be paid
(together, in the case of interest, with a calculation of the derivation of
such amount promptly after the relevant LIBO Rate is determined) prior to the
relevant Interest Payment Date on which such payment is to be made.


 


(a)           Term Loan Commitment Fees.
The Term Loan Commitment Fee shall be (i) paid in arrears
by the Borrower to the Administrative Agent for the account of each Lender pro rata, on each Quarterly Date during the Term Loan
Availability Period and on the Maturity Date, as applicable, and (ii) calculated
on the basis of a year of 360 days for the actual number of days elapsed.


 


18














 


(b)           Interest Provisions.


 


(i)           The Borrower shall pay to
the Administrative Agent for the account of the Lenders interest on the unpaid
balance of all Loans until the Maturity Date, at the following rate per annum (x) the
LIBO Rate (as in effect from time to time) plus the Applicable Margin,
or (y) the Base Rate plus the Applicable Margin. Interest with
respect to LIBO Rate Loans shall be payable on the basis of a year of 360 days
for the actual number of days elapsed and interest with respect to Base Rate Loans
shall be payable on the basis of a year of 365 days for the actual number of
days elapsed. Following the receipt of notice from the Administrative Agent of
the occurrence of an Event of Default and as long as such Event of Default is
continuing, the interest payable by the Borrower on all Loans then outstanding
will be equal to the Default Rate.


 


(ii)           All interest accrued
pursuant to Section 2.2(b)(i) shall be due and payable to the
Administrative Agent for the account of the Lenders as follows: (A) with
respect to the LIBO Rate Loans: (i) at the end of each LIBO Rate Interest
Period and (ii) on the Maturity Date, and (B) with respect to the
Base Rate Loans: (i) on each Quarterly Date and (ii) on the Maturity
Date.


 


(iii)            The Borrower shall have the
right, upon delivery of a three (3) Business Days’ prior written notice
thereof to the Lender, to convert Loans of one Type into Loans of another Type
or to continue Loans of the same Type, subject to Section 2.2(c), provided,
however, that, upon the occurrence and during the continuance of an
Event of Default, the Lender may suspend the Borrower’s right to borrow any
LIBO Rate Loans, to convert any Base Rate Loan into a LIBO Rate Loan and/or to
continue any LIBO Rate Loans, and all LIBO Rate Loans then outstanding shall be
automatically converted (on the last day of each respective LIBO Rate Interest
Period) into Base Rate Loans.


 


(c)           Yield Protection.


 


(i)            If, on or before the first
day of any LIBO Rate Interest Period for any LIBO Rate Loan, any Lender determines
that (A) the LIBO Rate for such LIBO Rate Interest Period cannot be
adequately and reasonably determined due to the unavailability of funds in, or
other circumstances affecting, the London interbank market, (B) the LIBO
Rate for such Loans does not adequately and fairly reflect the cost of making
or maintaining the Loans to such Lender, or (C) deposits in Dollars in the
London interbank market are not available to such Lender in the ordinary course
of business in sufficient amounts to make such LIBO Rate Loans, then, upon the
delivery of a written notice describing such conditions to the Borrower, the
Borrower shall convert such Loans held by such Lender to Base Rate Loans on the
last day of the then current LIBO Rate Interest Period.


 


(ii)           If, after the date of this
Note, the adoption or change in any applicable law or a change in the
application or requirements thereof (whether such change occurs in accordance
with the terms of such applicable law or as a result of an amendment) makes it
illegal or unlawful for any Lender to make or maintain any LIBO


 


19

















 


Rate
Loan, then, upon the delivery of a written notice describing such conditions to
the Borrower, (A) the Borrower’s right to request, and such Lender’s
obligation to make, any LIBO Rate Loans shall be suspended for as long as such
condition remains in effect, and (B) in the event such Lender notifies the
Borrower that such Lender may not lawfully continue to fund and maintain such
LIBO Rate Loans, the Borrower shall, at the request of such Lender, at the end of the then current LIBO
Rate Interest Period, convert such Loans into Base Rate Loans.


 


(iii)          If, after the date of this
Note, any change in laws applicable to any Lender (A) subjects such Lender
to any tax, duty or other charges with respect to Loans or changes the basis of
taxation with respect to repayment of the Loans (other than taxes, duties or
other charges or changes in the basis of taxation on the overall net income of
such Lender), (B) imposes any additional reserve, special deposit or other
similar requirements for reserves held by the Lender with respect to the Loans
(without duplication of any requirement under Section 2.2(c)(iii)(C)),
(C) affects the amount of capital required to be maintained by such Lender
with respect to the Loans or Commitments, or (D) otherwise increases the
cost to such Lender of making, renewing and maintaining any Loan or any
Commitment, then the Borrower shall, from time to time, upon demand of such
Lender (accompanied by a certificate from such Lender setting forth in
reasonable detail the incurred costs), absent manifest error, pay to such
Lender additional amounts sufficient to reimburse or compensate such Lender for
such additional costs.


 


2.3           Maturity
Date.


 


(a)           Term
Loan. The aggregate outstanding principal amount of the Term Loan hereunder
shall be due and payable on the Term Loan Maturity Date and shall accrue interest as set
forth in this Note.


 


(b)           North
Shore Loan. The North Shore Loan has been fully disbursed under
the Second Amended and Restated Note and, as of the date of this Note, the
outstanding principal amount is seven million two hundred thousand Dollars
($7,200,000). The outstanding amount of the North Shore Loan (including
principal, and interest, fees and expenses in respect of the North Shore Loan)
is due and payable on the North Shore Loan Maturity Date.


 


2.4
          Borrowing Notice. To request a
Loan, the Borrower shall submit a completed Borrowing Notice and all documents
required as conditions precedent pursuant to Section 3 hereof by
12:00 noon New York time at least two (2) Business Days prior to the requested date
of borrowing of such Loan, unless a shorter period is otherwise agreed to by
the Administrative Agent.


 


2.5           Prepayments.


 


(a)           Optional. The Borrower
shall have the right to make optional prepayments of the outstanding principal
of the Loan at any time and in any amount to the Administrative Agent for the
account of each Lender, subject to the following:


 


20

















 


(i)            the amount of
any prepayment made to satisfy the conditions of the Release Event shall be
applied on a pro rata basis to the outstanding Corresponding Term Loans as of
the date of such prepayment; and


 


(ii)           the North Shore
Loan may only be prepaid in full and not in part.


 


The Borrower shall give the
Administrative Agent notice of any such optional prepayment by 12:00 noon New
York time on the Business Day prior to the date of such proposed prepayment
(which date shall be a Business Day); provided, that if such date
specified in such notice as the prepayment date is not the Interest Payment
Date for any such LIBO Rate Loans to be prepaid, the Borrower shall be
obligated to pay any and all breakage fees or costs incurred by the Administrative
Agent in connection with any such optional prepayment upon receiving a demand
from the Administrative Agent (accompanied by a certificate from the
Administrative Agent setting forth in reasonable detail such breakage fees and
costs), which shall be conclusive absent manifest error. Unless otherwise
provided in this Section 2.5(a), prepayments made pursuant to this Section 2.5(a) shall
be applied first to accrued and unpaid interest of the North Shore Loan, second
to the outstanding principal of the North Shore Loan, third to the accrued and
unpaid interest of the Term Loans and fourth to the principal of the Term
Loans. The principal amounts prepaid under this Section 2.5 may not
be reborrowed.


 


(b)           Mandatory Prepayments.


 


(i)            [Reserved.]


 


(ii)           Quarterly Top-Up. Within five (5) Business
Days after each Top-Up Date occurring on or after December 15, 2009, the
Borrower shall prepay Loans in an amount equal to the portion of the Net Top-Up
Amount (if such amount is positive) as of such Top-Up Date. The Top-Up Schedule
shall be delivered to the Administrative Agent five (5) Business Days
prior to the Top-Up Date. The amount of any prepayment pursuant to this Section 2.5(b)(ii) shall
be allocated to the respective Corresponding Term Loans for the relevant
Turbines unless the total amount of such prepayments being made such date is
less than the Net Top-Up Amount, in which case the amount of such prepayment
shall be applied to the outstanding Corresponding Term Loans in such manner
as the Administrative Agent, in its sole discretion, may determine.
The Administrative Agent shall give the Borrower prompt notice of how each
prepayment under this Section 2.5(b)(ii) was applied to the
outstanding Corresponding Term Loans in respect of each Turbine.


 


(iii)          Turbine Transfers. In the event
that any Turbine is Transferred or erected at any Project, the Corresponding
Term Loans applicable to such Turbine shall become immediately due and payable,
together with all interest and fees thereon.


 


(iv)         [Intentionally
Omitted]


 


(v)          Application of Payments. Prepayments
made pursuant to this Section 2.5(b) shall be applied first,
to accrued and unpaid interest with respect to the applicable Term Loan, and
second, to the outstanding principal amount of the applicable Term Loan
otherwise payable on the applicable Maturity Date. For the avoidance of


 


21

















 


doubt,
proceeds of any financing in connection with Turbines supplied under the
Turbine Supply Documents shall be used to prepay the Term Loans under this Section 2.5(b).


 


2.6           Scheduling
of Payments. The Borrower authorizes the Administrative Agent to
record the date and amount of the Loans made by each Lender and of each
repayment or prepayment of principal thereunder, and the Borrower agrees that all
such notations shall constitute prima facie
evidence of the matters noted in the absence of manifest error. No failure to make any
such notations, nor any errors in making any such notations, shall affect the
validity of the Borrower’s obligations to repay the full unpaid principal amount
of the Loan.


 


2.7           Extension
of Interest Periods. Upon the expiration of an Interest Period on any
Loan, the Borrower may extend such Interest Period by giving the Administrative
Agent a Notice of Extension at least three (3) Business Days’ prior to
such extension, which shall include an option to elect a different
Interest Period duration. If the Borrower fails to give timely notice of an
election to continue such Loan, such Loan shall be continued automatically for
an Interest Period of one month’s duration at the end of the applicable
Interest Period with respect thereto. Notwithstanding any other provision of
this Note, the Borrower shall not be entitled to request, or elect to continue,
any Loan if the Interest Period requested would end after the applicable
Maturity Date.


 


2.8           [Intentionally
Omitted]


 


2.9           Withholding
Certificates. The Administrative Agent, on the Original Effective
Date, and each Lender, upon becoming a Lender hereunder, and each Person to
which any Lender grants a participation (or otherwise transfers its interest in
this Note), agrees that it will deliver, as soon as commercially practicable,
to the Borrower and the Administrative Agent (and the Administrative Agent
agrees that it will deliver to the Borrower) (i) in the case of the
Administrative Agent, Form W-8IMY (together with any withholding statement
required by applicable law) in respect of amounts to be received for or on
account of the Lenders and Form W-8ECI in respect of amounts to be
received for its own account; (ii) in the case of a Lender or Person that
is a United States person (as defined in Section 7701(a)(30) of the Code),
a copy of a United States Internal Revenue Service Form W 9; or (iii) in
the case of a Lender or Person that is not a United States person, a duly
completed and executed letter in the form of Exhibit C-l, Exhibit C-2
or Exhibit C-3 (Forms of “Withholding Certificate (Treaty)”,
“Withholding Certificate (Effectively Connected)” and “Withholding
Certificate (Portfolio Interest)”) as appropriate, and two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, certifying in each
case that the Administrative Agent or Lender is entitled to receive payments
under this Note without deduction or withholding of any United States federal
income or withholding taxes and including, in each case, a U.S. taxpayer
identification number (“TIN”) if required by such form or otherwise
necessary to obtain the benefits being claimed. Each Lender which delivers to
the Borrower and the Administrative Agent a Form W-8BEN or W-8ECI pursuant
to the preceding sentence further undertakes to deliver to the Borrower and to
the Administrative Agent further copies of said letter and Form W-8BEN or
W-8ECI, or successor applicable forms, or other manner of certification or
procedure, as the case may be, on or before the date that any such letter or form
expires or becomes obsolete or within a reasonable time after gaining


 


22

















 


knowledge of the occurrence
of any event requiring a change in the most recent letter and forms previously
delivered by it to the Borrower and the Administrative Agent, and such
extensions or renewals thereof as may reasonably be requested by the Borrower
or the Administrative Agent, certifying in the case of a Form W-8BEN or
W-8ECI that such Lender is entitled to receive payments under this Note and
the other Basic Documents without deduction or withholding of any United
States federal income or withholding taxes, unless in any such cases an event (including any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent a Lender from duly completing and
delivering any such letter or form with respect to it and such Lender
advises the Borrower that it is not capable of receiving payments without any
deduction or withholding of United States federal income or withholding tax. In
the event that any Lender fails or is unable to satisfy the provisions of this Section 2.9,
the Borrower, the Administrative Agent and such Lender shall cooperate
to find another Person to be substituted for such Lender in the
manner provided in Section 10 hereof.


 


3.            Conditions Precedent.


 


3.1          Effective Date. This Note
shall be effective and shall supersede the Third Amended and Restated Note on
and from the date, not later than July 17, 2009, on which each of the
following conditions precedent are satisfied by the Borrower (or waived by the
Administrative Agent and the Majority Lenders), and in the case of any
documents, schedules or certificates described below, are delivered in form and
substance reasonably satisfactory to the Agents and the Majority Lenders (the “Effective
Date”):


 


(a)           receipt by the
Administrative Agent of this Note, which shall be duly authorized, executed and
delivered by the Borrower;


 


(b)          receipt by the
Administrative Agent of certificates signed by authorized officers of each Obligor,
attaching the certificates of formation, other organizational documents, good
standing certificates and incumbency certificates, each as in effect on the
Effective Date, or certifying whether and how the certificates of formation,
organizational documents and incumbency certificates have changed since those
delivered on December 12, 2008 and resolutions regarding the
authorization, execution and delivery of each Basic Document to which such
Person is a party;


 


(c)           receipt by the
Administrative Agent of all Collateral listed on Schedule 3;


 


(d)          except to the extent
previously delivered, receipt by the Administrative Agent of (i) the Basic
Documents and (ii) executed copies of each Turbine Supply Document,
certified by the Borrower as true, correct and complete in all material
respects and in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders;


 


(e)           receipt by the
Administrative Agent of opinions of counsel to the Borrower, AIMCO Issuer,
AIMCO Holdco and each Person that shall become an Obligor as of the Effective
Date in such form and addressing such matters as the Administrative Agent may
reasonably request;


 


23

















 


(f)            each
representation and warranty set forth in Section 4 shall be true
and correct in all material respects as of the Effective Date (or if such
representation and warranty relates solely to an earlier date, as of such
date);


 


(g)           creation and perfection of
all security interests in, pledges of and liens with respect to the Collateral
required to be delivered as of the Effective Date, which shall have attached
and shall constitute valid and enforceable first-priority liens on the
Collateral (subject to Permitted
Liens);


 


(h)           receipt by the
Administrative Agent of evidence reasonably satisfactory to it that all
financing statements and other instruments or documents necessary to be filed
in accordance with the Security Agreements have been filed or will be filed in
connection with the funding of the Loans;


 


(i)            the Administrative Agent
shall have received UCC search reports of a recent date before the Effective
Date with respect to each Person that shall become an Obligor as of the
Effective Date, satisfactory to it, for each of the jurisdictions in which the
UCC financing statements are intended to be filed in respect of the Collateral.
The Administrative Agent shall have received litigation and docket search
reports of a recent date before the Effective Date with respect to each Person
that shall become an Obligor as of the Effective Date, satisfactory to the
Administrative Agent and the Lenders, for each of the jurisdiction in which
such Obligor has a main place of business;


 


(j)            receipt by the Administrative
Agent of the most recently available unaudited financial statements (to include
a balance sheet and an income and expense statement) of the Borrower dated as
of March 31, 2009, in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders and certified by an authorized officer of
the Borrower that such financial statements fairly present, in all material
respects, the financial position of the Borrower as at the date thereof;


 


(k)           the fees described in Section 2.2
that are due and payable on the Effective Date shall have been paid to HSHN
on or prior to the Effective Date, in full, in immediately available funds;


 


(l)            in order for HSHN to comply
with the requirements under Title III of the USA Patriot Act, each Person that
shall become an Obligor as of the Effective Date shall provide to the
Administrative Agent certain information or supporting documentation
(collectively, “Documentation”) requested by the Administrative Agent as
of the Effective Date. HSHN shall, as required by the USA Patriot Act, verify
and record any Documentation provided by such Obligor to validate such Obligor’s
identity. Documentation that may be requested from such Obligor may include,
but is not limited to, a Federal Employer Identification Number (“FEIN”),
a certificate of good standing to validate such Obligor’s corporate existence,
a certificate of incumbency to authenticate the management of such Obligor, and
other government issued certified documents to validate such Obligor’s
authorization to conduct business;


 


(m)          no Default or
Event of Default shall have occurred and be continuing;


 


24

















 


(n)                                 the Agents and
the Lenders shall have been reimbursed for the reasonable out-of-pocket costs,
expenses and charges due and payable pursuant to Section 7(a) to
the extent previously invoiced; and


 


(o)                                 the Borrower
has repaid all Corresponding Term Loans in respect of the Stetson I Project
under the Third Amended and Restated Note.


 


3.2                                 Loans. The obligation
of the Lenders to make any disbursements under this Note is subject to the
satisfaction by the Borrower, or waiver by the Administrative Agent and the
Majority Lenders, of each of the following conditions precedent on or before
each Borrowing Date, in the case of any documents, schedules or certificates
described below, in form and substance reasonably satisfactory to the Agents
and the Majority Lenders:


 


(a)           receipt by the
Administrative Agent of a Borrowing Notice for each such advance duly executed
and delivered by the Borrower;


 


(b)           Immediately after giving
effect to the intended use of such Term Loan the conditions of Section 2.l(a) have been
satisfied;


 


(c)           that, immediately after
giving effect to, and to the intended use of, such advance: (i) no Default
or Event of Default has occurred and is continuing and (ii) the
representations and warranties made by the Borrower in this Note and the other
Basic Documents in effect as of the date of such advance are true and complete
in all material respects on and as of the date of such advance with the
same force and effect as if made on and as of that date (unless expressly
stated to have been made as of an earlier date);


 


(d)           each Basic
Document and each Turbine Supply Document delivered pursuant to this Section 3.2(d) to
which the Borrower or any Corresponding Project Company is a party shall be in
full force and effect and shall constitute a legally valid and binding
obligation of the Borrower and each Corresponding Project Company, enforceable
against such Persons in accordance with its respective terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors’ rights
generally and the application of general principles of equity;


 


(e)           no Material
Adverse Effect shall have occurred and be continuing since the date of this Note;


 


(f)            the Agents and the Lenders
shall have been reimbursed for the reasonable out-of-pocket costs, expenses and
charges due and payable pursuant to Section 7(a); and


 


(g)           insurance
complying with the requirements of Schedule 6 shall be in full force and
effect and the Administrative Agent shall have received certified copies of all
policies evidencing such insurance (or a binder, commitment or certificates
signed by the insurer or a broker authorized to bind the insurer), in form and
substance reasonably satisfactory to the Administrative Agent and the Lenders.


 


25

















 


4.             Representations.


 


The
Borrower represents and warrants to the Administrative Agent and each Lender as of the
date hereof that:


 


(a)           It is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite power and authority to
carry on its business as now conducted. 
It has all requisite limited liability company power and authority to (i) execute
and deliver each Basic Document and each Turbine Supply Document to which it is
a party, (ii) grant to the Collateral Agent on behalf of the Lenders
a first-priority  security interest in the
Collateral (subject to the Permitted Liens), and (iii) perform all of its
obligations under each Basic Document and each Turbine Supply Document to which
it is a party.


 


(b)           The execution and delivery
by it of each Basic Document and of each Turbine Supply Document to which it is
a party and the performance by it of all of its obligations hereunder and
thereunder: (i) will not violate or be in conflict with any term or
provision of (A) any applicable law (including, without limitation, any
applicable usury or similar laws), or (B) any judgment, order, writ,
injunction, decree or consent of any court or other judicial authority
applicable to it or its property; (ii) will not violate, be in conflict or
inconsistent with, result in a breach of, or constitute a default (with or
without the giving of notice or the passage of time or both) under, any term or
provision of any document, agreement or instrument to which it is a party, such
that there would be a Material Adverse Effect on the Borrower’s ability to
comply with its obligations under the Basic Documents to which it is a party;
and (iii) except as specifically contemplated by the Basic Documents or
the Turbine Supply Documents, will not result in the creation or imposition of
any lien upon any of the assets and properties of the Borrower or any other Obligor.


 


(c)           Each of the Basic Documents
and the Turbine Supply Documents to which the Borrower is a party constitutes a
legal, valid and binding obligation of the Borrower, enforceable against it in
accordance with its respective terms and provisions, except as such
enforceability may be affected by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting creditors rights generally and the application
of general principles of equity.  Each
such Basic Document and the Turbine Supply Document has been duly authorized,
executed and delivered by the Borrower.


 


(d)          No consent, approval or
authorization of, or registration, declaration or filing with, any governmental
authority or any other Person is required for the due and valid execution,
delivery and performance by the Borrower of the Basic Documents and the Turbine
Supply Documents to which it is a party, other than those consents, approvals
or authorizations of, or registrations, declarations or filings with, such
governmental authorities or such other Persons that have been made or obtained
on or prior to the Original Effective Date or that is not required on or prior
to the Original Effective Date.


 


(e)           There are no actions, suits,
proceedings or investigations by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any Corresponding Project Company that
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.  The


 


26

















 


Borrower is not in default
with respect to any judgment, order, writ, injunction, decree or consent of any
court or other judicial authority applicable to it or its property that would
result in a Material Adverse Effect on the Borrower’s ability to comply with
its obligations under the Basic Documents to which it is a party.


 


(f)            It has filed, or has caused to be filed
on behalf of itself, all federal, state and local tax returns that
it is required to file, and has paid, or has caused to be paid, all taxes that it is required
to pay to the extent due or, to the extent not so paid, has established
adequate reserves for the payment thereof as required by GAAP.


 


(g)           The financial statements
delivered by the Borrower pursuant to Section 3.l(j) fairly
present, in all material respects, its respective financial position, as of the
date thereof.


 


(h)           Neither the Borrower nor any
Corresponding Project Company has conducted any business other
than (i) the business contemplated by the Basic Documents and the Turbine Supply
Documents, (ii) the entrance into and performance of its obligations under
this Note and the Interest Rate Protection Agreements and (iii) the
performance of the activities contemplated by Section 5(a). Neither
the Borrower nor any Corresponding Project Company has any Indebtedness other
than Permitted Indebtedness. All material liabilities and assets of the Borrower are
set forth on Schedule 8 and it is not a party to nor bound by any
material contract other than the Basic Documents and the Turbine Supply
Documents.


 


(i)            It has good
title to all of its real property and good title to all of its personal
property and assets except to the extent there would be no Material Adverse
Effect on the Borrower’s ability to comply with its obligations under the Basic
Documents to which it is a party, and none of its assets or properties is
subject to any liens or other encumbrances, other than Permitted Liens.


 


(j)            All of the
Turbine Supply Documents in effect as of the Effective Date are set forth on
Schedule 7.


 


(k)           It is in
compliance with all applicable laws, except to the extent that any
non-compliance would not result in a Material Adverse Effect. To the Borrower’s
knowledge, there are no facts or circumstances that could reasonably be
expected to constitute a material violation of any applicable environmental
law, or give rise to any material claim, thereunder with respect to the
Borrower or the Turbines that could reasonably be expected to have a Material Adverse Effect.


 


(l)            Neither the
Borrower nor any Corresponding Project Company is in violation of any
environmental law with respect to the relevant proposed project site for which
the Turbines may be delivered or has any liability under applicable
environmental law with respect to such relevant project site that in each case
could reasonably be expected to have a Material Adverse Effect. There are no
claims or investigations pending, or to the Borrower’s knowledge, threatened by
any Governmental Authority of or against the Borrower and/or any Corresponding
Project Company under any applicable environmental law that could reasonably be
expected to have a Material Adverse Effect. To the knowledge of the Borrower,
none of the


 


27














 


Borrower
and/or any Corresponding Project Company or any subcontractor of any such
Person has used, released, discharged, generated, manufactured, stored or
disposed of any hazardous substances in, on or under the relevant proposed
project site for which the Turbines may be delivered that that could reasonably
be expected to have a Material Adverse Effect.


 


(m)          Neither the Borrower
nor any Corresponding Project Company is subject to regulation under the
Employee Retirement Income Security Act of 1974, as amended.


 


(n)           The Borrower is not
an investment company or a company controlled by an investment company within
the meaning of the Investment Company Act of 1940, as amended.


 


(o)           To its knowledge, it
has provided to the Administrative Agent no written information in respect of
this Note or any other Basic Document, which contains a material misstatement
of fact or that omits to state any material fact necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, in each case when such information is taken as a whole; provided,
that with respect to projected financial information (the “Projections”),
the Borrower represents only that such information was prepared in good faith
based upon reasonable assumptions at the time the Projections were prepared and
delivered to the Administrative Agent and the Projections are not to be viewed
as facts and that actual results during the period or periods covered by the
Projections may differ from such Projections.


 


(p)           Neither the Borrower
nor First Wind Holdings: (i) has admitted in writing its inability to pay
its debts as its debts become due; (ii) has made an assignment for the
benefit of creditors, or petitioned or applied to any tribunal for the
appointment of a custodian, receiver or trustee for its or a substantial part
of its assets; (iii) has commenced any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation; (iv) has
had any such petition filed, or any such proceeding commenced against it, in
which an adjudication is made or order for relief is entered or which remains undismissed
for a period of sixty (60) days; (v) has had a receiver, custodian or
trustee appointed for all or a substantial part of its property; or (vi) has
taken any action effectuating, approving or consenting to any of the events
described in clauses (i) through (v).


 


(q)           The Borrower is a
direct, wholly-owned subsidiary of First Wind Holdings.  The Borrower has no Subsidiaries.


 


(r)            All policies of
insurance held currently by the Borrower are set forth in Schedule 6 and are in
full force and effect; all premiums due thereon have been paid and, except with respect to
policies that have been replaced with other policies in compliance with this
Note, no notice from any insurer or its representative as to any cancellation
or reduction or other change in coverage has been received by the Borrower or
any Corresponding Project Company.


 


(s)           No Default or Event of Default has
occurred and is continuing.


 


(t)            Subject to Schedule
10, each lien created and perfected under the Collateral Documents in favor
of the Collateral Agent, on behalf of the Lenders, is and has been


 


28

















 


perfected as of each date
this representation is made or deemed made and shall constitute a valid and
enforceable first-priority lien on the Collateral that is subject to such lien
(subject to Permitted Liens). All filings and recordings,
re-filings or re-recordings necessary to perfect and maintain the
perfection and priority of the interest, title or liens of the Collateral Agent
(acting on behalf of the Lenders), subject to Permitted Liens, have been made
as required by the Basic Documents.


 


(u)          The representations
and warranties of the Borrower and each Corresponding Project Company contained
in the Basic Documents and the Turbine Supply Documents to which each such
Person is a party other than this Note are, as of the time made or deemed made
thereunder, true and correct in all material respects.


 


(v)           No event, condition or occurrence of
whatever nature has occurred that would constitute a Material
Adverse Effect since the Effective Date.


 


(w)          Neither Borrower,
nor, to the Borrower’s knowledge, any persons or entities holding any legal
or beneficial interest whatsoever in Borrower (whether directly or indirectly) (i) appear
on the OFAC SDN List; (ii) are included in, owned by, controlled by,
acting for or on behalf of, providing assistance, support, sponsorship, or services
of any kind to, or otherwise associated with any of the persons or
entities referred to or described in the OFAC SDN List; or (iii) have
conducted business with or engaged in any transaction with any person or entity named on
any of the OFAC SDN List or any person or entity included in, owned by, controlled by,
acting for or on behalf of, providing assistance, support, sponsorship, or
services of any kind to, or otherwise associated with any of the persons or
entities referred to or described in the OFAC SDN List.


 


(x)           On the Original
Effective Date, with respect to the North Shore Loans, the aggregate principal
amount of all North Shore Loans did not exceed 90% of the North Shore Purchase Price.


 


5.            Covenants.  The Borrower hereby covenants and agrees that
until the repayment in full of the Corresponding Term Loans and any other amounts
owing hereunder other than indemnities, the Borrower shall, unless
the Administrative Agent (at the direction of the Majority Lenders) waives
such compliance in writing, perform all of the covenants set forth in this Section 5:


 


(a)          Use of
Proceeds; Expenditures. 
Subject to Section 2.l(b), the Borrower shall not use
the proceeds of the Term Loans for any purpose other than the purchase of the
Turbines by the Borrower and/or reimbursement of amounts paid to the turbine
supplier under the Turbine Supply Documents for the purchase of the Turbines
and related services described in the Turbine Supply
Documents.


 


(b)          Additional
Information.  The Borrower
shall promptly provide such information regarding any Project utilizing
the Turbines, and the financial affairs of the Borrower or First Wind
Holdings as shall be reasonably requested by the Administrative Agent; provided that if any
such requested information is not in the possession of the Borrower, the


 


29

















 


Borrower shall only be
obligated to use commercially reasonable efforts to obtain such requested
information from third parties.


 


(c)           Books and Records.  The Borrower shall keep and maintain the
books of account and the financial records for itself and each Corresponding
Project Company at its address identified on the signature pages to this
Note in accordance with GAAP.  The
Administrative Agent shall have the right, upon reasonable advance notice to
the Borrower and at reasonable times during the Borrower’s usual business
hours, to audit, examine and make copies of the books of account and other
records of the Borrower and each Corresponding Project Company as applicable, and
to discuss the financial condition and business of the Borrower or such other
Person with its respective authorized representatives.  The Administrative Agent may exercise such
rights through any employee of the Administrative Agent or through any independent
public accountant, legal counsel, the Independent Engineer or any other
consultant acting on behalf of the Administrative Agent; provided, that
such Persons shall agree and comply with the confidentiality obligations set
forth in Section 12(j).


 


(d)           Indebtedness.  The Borrower shall not incur (or permit any
Corresponding Project Company to incur) any Indebtedness except for Permitted
Indebtedness.


 


(e)           Liens.  Borrower shall not incur, create, assume or
suffer to exist or permit the Corresponding Project Companies to create, assume
or suffer to exist any liens or other encumbrances (except for Permitted Liens)
upon (i) the Turbines or any Turbine Supply Document or (ii) any of
its other properties or assets that, in the case of the foregoing clause (ii),
could reasonably be expected to have a Material Adverse Effect.


 


(f)            Existence; Purpose. 
Except as otherwise expressly permitted under this Note or the other
Basic Documents, the Borrower shall (i) maintain and preserve its
existence as a Delaware limited liability company and shall cause each
Corresponding Project Company to maintain and preserve its existence as a
limited liability company in the jurisdiction of its organization; and (ii) engage
only in the business of the purchasing, transporting, financing and/or
ownership of Turbines to be utilized in the development, construction and
operation of wind energy generation projects (and business reasonably
incidental thereto), and cause each Corresponding Project Company to engage
only in the business of the development, construction, financing and/or
ownership of the relevant Project.


 


(g)           Contractual
Obligations.  So long as a
Turbine Supply Document is included in the Collateral, the Borrower shall (i) perform,
and shall cause the relevant Corresponding Project Company to perform, all of
its respective material contractual obligations under such Turbine Supply
Documents and (ii) maintain and preserve (and cause such Corresponding
Project Company to maintain and preserve) all of such Person’s material rights
under such Turbine Supply Document.  The
Borrower shall cause each Corresponding Project Company to pay and perform all
of its respective material contractual obligations, in each case, unless the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


(h)           Turbine
Supply Document.  The Borrower
shall not (and shall cause each Corresponding Project Company not to), without
the prior written consent of the Administrative Agent, (i) enter into any
new Turbine Supply Document, (ii) cancel or terminate,


 


30

















 


or
accept or consent to a cancellation or termination of, any Turbine Supply
Document to which it is a party, or (iii) amend, supplement or modify in
any material respect, or enter into any material amendment, supplement or
modification to, any Turbine Supply Document to which it is a party.  The Borrower shall provide the Administrative
Agent promptly after execution thereof by the Borrower or any Corresponding
Project Company, as applicable, with copies of each Turbine Supply Document and
any amendment or other modification or waiver of compliance with any Turbine
Supply Document.


 


(i)            Maintenance of Property.


 


(i)            The Borrower shall (and
shall cause each Corresponding Project Company to) maintain or
cause to be maintained all property, including the Turbines, in good working
order and condition in accordance with Prudent Utility Practices, ordinary wear
and tear excepted (if the Turbines are transported and stored with due care and
are not installed, erected or placed in use and if such wear and tear would not
reasonably be expected to have a Material Adverse Effect on the value of the
Turbines after taking into account proceeds of insurance received or expected
to be received). The Borrower shall, upon delivery of the Turbines to the
Borrower, maintain care, custody and control thereof in a reasonably safe and
secure location, using commercially reasonable efforts to protect such Turbines
from damage, harm, waste, rust, theft, vandalism or other loss.


 


(ii)           Within ten (10) Business
Days after the last day of each calendar month, the Borrower shall provide, or
cause to be provided, to the Administrative Agent a report in respect of each
Turbine in storage at such time, including the precise location of the Turbine
and payment details in respect of the storage location, the destination Project
of the Turbine, the procedures implemented to safeguard the Turbine from
damage, harm, waste, rust, theft, vandalism or other loss, performance and
status of maintenance performed since the last report provided, and the status,
if any, of any violation in respect of such Turbine under the
applicable Turbine Supply Document and warranty coverage.


 


(j)            Compliance with Laws. 
The Borrower shall and shall cause each Corresponding Project Company to
comply with (i) laws, including all environmental laws, applicable to the
Borrower and each Corresponding Project Company and (ii) all permits
applicable to the Borrower, all laws, including all environmental laws,
applicable to the Borrower and each Corresponding Project Company, unless, in
any case, (i) or (ii), the failure to do so would not reasonably be
expected to have a Material Adverse Effect. 
Each Corresponding Project Company shall obtain and maintain each permit
reasonably necessary for the activities occurring at the related Project,
unless the failure to do so would not reasonably be expected to have a Material
Adverse Effect.


 


(k)           Liquidation;
Dissolution.  The Borrower
shall not liquidate or dissolve (or permit any Corresponding Project Company to
liquidate or dissolve) or combine, merge or consolidate (or permit any
Corresponding Project Company to combine, merge or consolidate) with or into
any other entity.


 


31

















 


(l)            Transfer of Membership Interests.  The Borrower shall not cause, make, suffer to
exist, permit or consent to any creation, sale, assignment or transfer of (i) any
direct ownership interests of First Wind Holdings in the Borrower; or (ii) any
direct or indirect ownership interests of the Borrower or First Wind Holdings
in any Corresponding Project Company, except, in each case, with the Majority
Lenders’ prior written consent; provided, however, that solely
with respect to the assignment or transfer set forth in sub-clause (ii) above,
no consent of the Majority Lenders shall be required for transfers of interests
in a Corresponding Project Company if all Corresponding Term Loans (including
all principal, interests and fees) in respect of Turbines
installed or to be installed at the Project owned by such Corresponding Project Company
have been repaid in full.


 


(m)          Organizational Changes.  The Borrower shall not, nor shall it permit
any Corresponding Project Company to, (i) change its limited liability
company structure or its jurisdiction of organization without the Majority
Lenders’ prior written consent, such consent not to be unreasonably withheld or
delayed, nor (ii) change its fiscal year without the Majority Lenders’
prior written consent, such consent not to be unreasonably withheld or delayed


 


(n)          Notice
Requirements.  The Borrower
shall promptly, upon acquiring knowledge or notice or giving notice, as the case
may be, give written notice (and deliver the documents or reports, as
applicable, that are the subject of such notices) to the Administrative Agent
of: 


 


(i)           any litigation,
investigation or proceeding pending or, to the knowledge of Borrower,
threatened against the Borrower or any Corresponding Project Company if such
litigation, investigation or proceeding would reasonably be expected to have a Material Adverse Effect;


 


(ii)          any notice of a
material violation of any law by the Borrower or any Corresponding Project
Company for which Loans have been made;


 


(iii)         any Default or Event of Default;


 


(iv)         any casualty, damage
or loss, whether or not insured, to the Turbines through fire, theft, other
hazard or casualty, if such casualty, damage or loss would reasonably be
expected to have a Material Adverse Effect;


 


(v)          any notice of default
or claim of force majeure under any Turbine Supply Documents, if such default
or claim could reasonably be expected to have a Material Adverse Effect;


 


(vi)         any other event,
condition or occurrence that would reasonably be likely to result in a Material
Adverse Effect;


 


(vii)        any material adverse
change, or any event or circumstance that would reasonably be likely to change
the status of any Project as a Qualified Project, together with an update to
the most recent Project Review relating to such Project; and


 


32

















 


(viii)        any change in the name of the Borrower
or any Corresponding Project Company. 


 


(o)           Investments; Sale of
Assets. Other than as permitted under Section 5(x), the
Borrower shall not, without the prior written consent of the Administrative
Agent, (i) make an investment in any of its Affiliates, except any
investment in First Wind Holdings in connection with any investment in Kahuku
Wind Power, LLC in connection with the North Shore Intercompany Note, (ii) transfer,
sell, lease or assign any of its property to any of its Affiliates, or (iii) enter
into any contract or agreement under which it incurs liabilities to any of its
Affiliates, except (A) the North Shore Intercompany Note and (B) administrative
services agreements or other similar types of agreements entered into in the
ordinary course of business and upon fair and reasonable terms no less
favorable to the Borrower than it would obtain in a comparable arm’s length
transaction with a party not an Affiliate of the Borrower. Additionally,
Borrower must give Administrative Agent notice of any transactions with any
Affiliate of the Borrower or First Wind Holdings and copies of all relevant documents
in connection therewith.


 


(p)           Insurance.
Until all its obligations under this Note and the other Basic Documents have
been fully discharged, the Borrower shall obtain and maintain in full force and
effect insurance coverages as set forth in Schedule 6 and approved by
the Insurance Consultant. The Borrower shall comply with, and shall timely pay
all premiums for, all insurance requirements set forth on Schedule 6 and
upon the renewal thereof, shall provide the Administrative Agent with copies of
all insurance certificates and insurance policies verifying such coverage.


 


(q)           Beneficiary.
The Borrower shall promptly inform the Administrative Agent (by written notice
with sufficient copies for the Lenders) (i) if it, or a wholly owned
subsidiary of First Wind Holdings, is not or ceases to be the beneficiary of
the Loans made or to be made hereunder and (ii) of any new beneficiary
(other than First Wind Holdings or its wholly owned subsidiary) of the
Loans made or to be made hereunder, which notice shall include such new
beneficiary’s name and address.


 


(r)            Annual Financial Statements. The Borrower shall provide to
the Administrative Agent as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, First Wind Holdings and
their respective subsidiaries, the audited balance sheet and related
consolidated statements of income, operations and cash flows of the Borrower,
First Wind Holdings and their respective subsidiaries, as of the end of and for
such year, setting forth in each case in comparative form of the figures for
the previous fiscal year, all reported on by an independent public accountant
of recognized national standing (in respect of all time periods subsequent to
the year ending December 31, 2009, without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
income, operations and cash flows of the Borrower, First Wind Holdings and
their respective subsidiaries, in accordance with GAAP consistently applied.


 


(s)           Quarterly
Financial Statements. The Borrower shall provide to the Administrative
Agent as soon as available and in any event within 45 days after the end of
each


 


33

















 


of the first three quarterly
fiscal periods of each fiscal year of the Borrower, unaudited consolidated
statements of income, operations and cash flows of the Borrower, First Wind
Holdings and their respective subsidiaries, for such period and for the period
from the beginning of the respective fiscal year to the end of such period, and
the related consolidated balance sheet at the end of such period, setting forth
in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year accompanied by a certificate
of an authorized officer of the Borrower and First Wind Holdings,
respectively, which certificate shall state that such financial condition and
results of income, operations and cash flows of the Borrower, First Wind
Holdings and their respective subsidiaries, were prepared in accordance with
GAAP, consistently applied, as at the end of and for such period (subject to
normal year-end audit adjustments).


 


(t)            North Shore Parcel Mortgage. Within thirty (30) days after a
request from the Administrative Agent (acting at the direction of the Majority
Lenders) the Borrower shall cause Kahuku Wind Power, LLC to (a) grant a
mortgage on the North Shore Parcel, in form and substance reasonably acceptable
to the Administrative Agent, (b) deliver to the Administrative Agent a
Title Policy issued by the Title Company and dated as of the date on which the
mortgage is delivered pursuant to Section 5(t)(a) above. The Title
Policy shall (i) provide coverage in an amount equal to 100%
of the North Shore Loan, (ii) insure the Administrative Agent that
the mortgage creates a valid, first priority lien on the North Shore Parcel,
free and clear of all exceptions from coverage other than Permitted Liens and
standard exceptions and exclusions from coverage (as modified by the terms of
any endorsements), (iii) contain the endorsements and affirmative
coverages as the Administrative Agent may reasonably request to the extent
available in Hawaii, and (iv) name the Administrative Agent as the
insured. Administrative Agent shall have also received evidence that (A) all
premiums in respect of such title policy have been paid and (B) all
appropriate releases or discharges of encumbrances necessary for
the delivery of the Title Policy have been delivered for recording and (c) deliver
to the Administrative Agent an updated survey for the North Shore Parcel. The
survey shall reflect the same legal description contained in the Title Policy
provided pursuant to Section 5(t)(b) above and shall include, among
other things, a metes and bounds description or such other description as is
required by the Title Company, of the real property compromising part of the
North Shore Parcel. The Surveyors seal shall be affixed to the survey.


 


(u)          Taxes.
The Borrower shall pay, and shall cause each Corresponding Project Company to
pay, all taxes that such Person is required to pay to the extent due; provided,
however, that the Borrower and each Corresponding Project Company, as
applicable, shall not be obligated to pay such taxes to the extent any of them
is contesting the validity or amount of any such tax by appropriate proceedings
as long as such Person has established adequate reserves for the payment
thereof as and to the extent required by GAAP.


 


(v)          [Intentionally Omitted]


 


(w)          Warranties.
The Borrower shall cause each Corresponding Project Company to obtain and
maintain extended warranties under the Turbine Supply Documents for all
Turbines with a duration of not less than 24 months from the expected COD for
such Turbines, so long as such warranty coverage is available on commercially
reasonable terms, or, if not available on commercially reasonable terms,
warranties for such lesser period as are


 


34

















 


obtainable
on commercially reasonable terms. Any Turbine for which the warranty coverage
falls below 24 months from the expected COD for such Turbine shall be
reappraised in accordance with the Appraisal Procedures (a copy of which
appraisal shall be promptly provided to the Borrower by the Administrative
Agent), taking into account the diminished value resulting from such lessened
warranty coverage, and the Corresponding Term Loan for such Turbine shall be
subject to mandatory prepayment on the subsequent Top-Up Date based on such
reappraisal pursuant to Section 2.5(b)(i), if applicable.


 


(x)           Turbines.
The Borrower shall not Transfer any Turbines or any of its rights or interests
in or under any Turbine Supply Documents to any Person, other than: (i) to
the Collateral Agent pursuant to the Security Agreements, (ii) subject to
this Section 5(x), to an Eligible Qualified Project Company or a
Qualified Project Company, and then only upon a prepayment of the Corresponding
Term Loans as contemplated by Section 2.5(b)(ii), or (iii) to
a third party, but only upon the prepayment in full of the Corresponding Term
Loans as contemplated by Section 2.5(b)(ii); provided, in
any event, that such allowed Transfer of Turbines with respect to any Project
or Turbine Supply Document must include all of the Turbines associated with
such Project or Turbine Supply Document, as applicable, and prepayment of all
Corresponding Term Loans for such Turbines. The Borrower shall not, and shall
not allow any Corresponding Project Company to, erect, install, assemble,
remove from storage or project sites, transport (provided that transportation
of the Turbine from the manufacturer to a project site is expressly permitted)
or take any other actions or fail to take any action that would reasonably be
likely to reduce the value or marketability of any such Turbines financed under
the Loan (including storage of Turbines in any material manner or for any
period that would reasonably be likely to result in a material loss or
diminishment of such Turbine’s warranty) at any project site (including a
project site of any Affiliate of the Borrower) or that could materially impair
the lien of the Security Agreements.


 


(y)           Interest
Rate Protection Agreements. The Borrower shall perform each of its
obligations under Interest Rate Protection Agreements to which it is a party,
except, in the case solely of obligations other than for payment of money, if
such failure perform such non-payment obligations under such Interest Rate
Protection Agreements would not reasonably be expected to cause a Material
Adverse Effect.


 


(z)           Non-Revenue EQP Documents.
The Borrower shall not (and shall cause each Corresponding Project
Company not to), without the prior written consent of the Administrative Agent,
(i) enter into any new Non-Revenue EQP Document that causes the Borrower
or such Corresponding Project Company, as applicable, to have $15,000,000 or more of increased exposure
over the life of such new contract, or (ii) amend, supplement or modify in
any material respect, or enter into any material amendment, supplement or
modification to, any Non-Revenue EQP Document to which it is a party, that
causes the Borrower or such Corresponding Project Company, as applicable, to
have $3,000,000 or more of
increased exposure over the life of such amendment, supplement or modification,
as applicable. The Borrower shall provide the Administrative Agent promptly
after execution thereof by the Borrower or any Corresponding Project Company,
as applicable, with copies of each Non-Revenue EQP Document and any amendment
or other modification or waiver of compliance with any Non-Revenue EQP
Document.


 


35

















 


(aa)         Qualified Project
Determination. The Borrower shall deliver to the Administrative
Agent a periodic desktop fatal flaw review (each, a “Project Review”)
for all Eligible Qualified Projects from time to time as and when the Borrower
desires to designate an Eligible Qualified Project as a Qualified Project (as
defined below); provided, that the Oakfield Project and Rollins Project
or the Stetson II Project and Rollins Project (and no others) may be submitted
together for consideration as a single Qualified Project; provided, further,
that upon any such combined submission, the Rollins Project may not subsequently
be re-submitted with the Oakfield Project (if it was submitted previously with
the Stetson II Project) or the Stetson II Project (if it was submitted
previously with the Oakfield Project); provided, further, that if
submitted together, the subsequent financing of either the Oakfield Project or
the Rollins Project separately resulting in the repayment in full of its
respective Corresponding Term Loans and the release of the Corresponding
Project Company hereunder, the remaining Project must be re-submitted by
the Borrower to the Administrative Agent for consideration as a Qualified
Project. Until receipt of such Project Reviews with respect to any Eligible
Qualified Project and determination by the Administrative Agent that a Project
is a Qualified Project, on each Top-Up Date, the Reduced Advance
Rate shall be applied for Turbines allocated to such Eligible Qualified Project


 


(i)           a written review by
the Independent Engineer including, but not limited to, a confirmation of the
potential viability, from a wind and technology point of view, of the wind
electrical generating project proposed by the Borrower to be a Qualified
Project (it being agreed that if a third-party desktop wind analysis has not
been completed, or if such analysis has been prepared in respect of a
different turbine layout, then the Independent Engineer may utilize the
Borrower’s internal wind analysis in connection with the preparation of the written review
hereunder. To the extent, however, that a third-party desktop wind analysis has
been prepared for a Project site, such analysis must be presented to the
Independent Engineer in conjunction with the Borrower’s internal wind study;


 


(ii)          a pro-forma cash flow
forecast demonstrating to the Administrative Agent’s reasonable satisfaction
that such proposed wind electrical generating project is economically viable;


 


(iii)         a detailed report
setting forth the proposed real estate plan for the wind electrical generating
project proposed by the Borrower to be a Qualified Project; and


 


(iv)         a detailed report as
to the permitting and interconnection plan for the wind electrical generating
project proposed by the Borrower to be reviewed hereunder.


 


If the Project Review demonstrates to the Majority Lenders’ and the
Administrative Agent’s reasonable satisfaction (in consultation with the
Independent Engineer) that such Eligible Qualified Project could (x) reasonably
achieve construction completion (taking into account the likelihood of such
Project obtaining adequate construction financing but not taking into account any adverse
effect thereon associated with Clipper being the manufacturer of Turbines
included in such Project), qualify for PTCs and begin selling power at least
sixty (60) days prior to the then-current expiration date (the “PTC Expiration
Date”) for PTCs under the Code, (y) benefit from tax benefits similar
to or better than the PTCs then applicable, taking into account the PTC


 


36














 


Expiration
Date, or (z) is otherwise economically viable without PTC benefits, such
Project shall be deemed a Qualified Project (a “Qualified Project”).


 


The
Administrative Agent shall provide notice to the Borrower within fifteen (15)
Business Days after the receipt of any Project Review of its
determination or a detailed description of the changes that the Administrative
Agent and the Majority Lenders determine are reasonably necessary for such
Eligible Qualified Project to qualify as a Qualified Project. The Borrower may
resubmit an updated Project Review for reconsideration under this Section 5(aa).
The resulting Advance Rates or Reduced Advance Rates, as the case may be, shall
apply for purposes of determining the Top-Up Amount for Top-Up Dates.


 


(bb)          Qualified
Project Status. The Borrower shall provide monthly updates to
Project Reviews and project progress updates for all Eligible Qualified
Projects, respectively, and shall (i) promptly notify Administrative Agent
of any adverse changes with respect to the most recently provided Project
Review (including any delays and project cost increases) for a Qualified
Project to the extent such Qualified Project would no longer reasonably be
expected to be a Qualified Project and (ii) promptly respond to inquiries
by the Administrative Agent as to the status of any Qualified Project
(including any potential delays and project cost increases) of each Qualified
Project. If the Administrative Agent is notified or reasonably determines that
any Qualified Project could no longer reasonably be expected to be a Qualified
Project, such project will immediately cease to be a “Qualified Project” under
the Loan and the Advance Rate, to the extent it is then in effect, shall be
automatically reduced to the applicable Reduced Advance Rate. Without limiting
the generality of the foregoing, promptly upon obtaining knowledge or notice
thereof, but in no event later than five (5) Business Days thereafter, the
Borrower shall provide the Administrative Agent with written notice of any
delay in (or the occurrence of any other event with respect to) a Qualified
Project to the extent such Qualified Project would no longer reasonably be
expected to complete construction and qualify for PTCs that are necessary to
the economic viability of the Qualified Project at least sixty (60) days prior
to the PTC Expiration Date applicable to such Qualified Project. Additionally,
the Borrower shall, promptly, but in no event later than ten (10) Business
Days, respond to inquiries by the Administrative Agent as to the status of the
development and construction schedule (including any potential delays and
project cost increases) of each Qualified Project. If (I) the Administrative
Agent is notified pursuant to this Section 5(bb), or otherwise
reasonably determines based on consultation with the Independent Engineer, that
any Qualified Project for which PTC benefits are necessary to the economic
viability of the Project would no longer reasonably be expected to achieve
construction completion and qualify for PTCs at least sixty (60) days prior to
the PTC Expiration Date applicable to such Qualified Project, such project will
immediately cease to be a “Qualified Project” hereunder, and the Administrative
Agent shall promptly notify the Borrower of any such determination made under
this clause (I), and (II) if the Borrower disagrees with any determination
by the Administrative Agent and/or the Independent Engineer that a Qualified
Project would no longer reasonably be expected to remain a Qualified Project,
the Borrower shall promptly, but in any event within ten (10) days, notify
the Administrative Agent of such disagreement, and the parties hereby agree to
submit the issue to R.W. Beck (or such other third party engineering firm as
the Borrower and Administrative Agent may agree). If R.W. Beck (or such other
third party engineering firm as the Borrower and the Administrative Agent may
agree) agrees with the determination of the Administrative Agent


 


37

















 


and/or
the Independent Engineer, such determination shall stand and the applicable
Project shall no longer be a Qualified Project as of the date of the
Administrative Agent’s determination. If R.W. Beck (or such other third party
engineering firm as the Borrower and the Administrative Agent may agree)
disagrees with the determination of the Administrative Agent and/or the
Independent Engineer, such determination shall be overturned and the applicable
project shall remain a Qualified Project. Whatever determination is made by R.W.
Beck (or such other third party engineering firm as the Borrower and
the Administrative Agent may agree) shall be final and binding as to the
parties’ respective rights and obligations under this Section 5(bb).
R.W. Beck (or such other third party engineering firm as the Borrower and the
Administrative Agent may agree) shall have thirty (30) days to make its
determination as to whether the applicable project is or is not a Qualified
Project from the date R.W. Beck (or such other third party engineering firm as
the Borrower and the Administrative Agent may agree) is retained to make such
determination; provided, however, that to the extent that R.W.
Beck (or such other third party engineering firm as the Borrower and
the Administrative Agent may agree) is unable to make a determination as set
forth in this Section 5(bb) within such thirty (30) day period, the
determination of the Administrative Agent and/or the Independent Engineer shall
stand and the applicable project shall no longer be a Qualified Project (unless
reinstated as a Qualified Project pursuant to resubmission thereof (which may
not occur more than once per calendar quarter) pursuant to Section 5(aa).


 


(cc)           Turbine Reallocation. Subject to the
Turbine Supply Documents, the Borrower may request a reallocation of any
Turbine to any specified Eligible Qualified Project, Qualified Project or other
single purpose project company owned directly or indirectly by the Borrower
(which project shall become an Eligible Qualified Project and which project
company shall become a Corresponding Project Company hereunder), subject to the
approval of the Majority Lenders and the Administrative Agent, and upon such
approval, the Top-Up Amount Schedule shall be updated accordingly to reflect
such change. A Project shall no longer be considered an Eligible Qualified
Project or Qualified Project hereunder (and its project company shall no longer
be a Project Company or Corresponding Project Company hereunder) if it no
longer has Corresponding Term Loans hereunder. A reallocation pursuant to this Section 5(cc)
shall not be
considered a Transfer under Section 5(x).


 


(dd)         Turbine Appraisal. Prior to each
Top-Up Date, with respect to each Turbine for which Corresponding Term Loans
have been made, the Administrative Agent may instruct the Independent Appraiser
to prepare an appraisal of such Turbine (at the Borrower’s cost) in accordance
with the Appraisal Procedure; provided, that no Turbine may be the
subject of an appraisal more than once per calendar quarter under this Section 5(dd).
The appraisal shall be the basis for determining the Appraised Value of such
Turbine for all purposes of this Note. The Administrative Agent shall deliver a
copy of the appraisal and notice of the Top-Up Amount to the Borrower no fewer
than five (5) Business Days before such Top-Up Date.


 


(ee)         Compliance with Anti-Money
Laundering and OFAC Laws.


 


(i)            Borrower shall comply at all
times with the requirements of all Anti-Money Laundering Laws.


 


38

















 


(ii)            Borrower shall provide
Lender any information regarding Borrower, its Affiliates, and its Subsidiaries
necessary for Lender to comply with all Anti-Money Laundering Laws. 


 


(iii)          Borrower shall comply at all
times with the requirements of all OFAC Laws. 


 


(iv)          Borrower shall not, and
shall cause its Affiliates and Subsidiaries and any persons or entities holding
any legal or beneficial interest whatsoever therein (whether directly or
indirectly) not to, conduct business with or engage in any transaction with any
person or entity named in the OFAC SDN List or any person or entity included
in, owned by, controlled by, acting for or on behalf of, providing assistance,
support, sponsorship, or services of any kind to, or otherwise associated with
any of the persons or entities referred to or described in the OFAC SDN List. 


 


(v)           If Borrower obtains actual
knowledge or receives any written notice that Borrower, any Affiliate,
Subsidiary or any person or entity holding any legal or beneficial interest
whatsoever therein (whether directly or indirectly) is named on the OFAC SDN
List (such occurrence, an “OFAC Violation”), Borrower shall immediately
(i) give written notice to Lender of such OFAC Violation, and (ii) comply with
all applicable laws with respect to such OFAC Violation (regardless of whether
the party included on the OFAC SDN List is located within the jurisdiction of
the United States of America), including the OFAC Laws, and Borrower hereby
authorizes and consents to Lender’s taking any and all steps Lender deems
necessary, in its sole discretion, to comply with all applicable laws with
respect to any such OFAC Violation, including the requirements of the OFAC Laws
(including the “freezing” and/or “blocking” of assets and reporting such action
to OFAC). Upon Lender's request from time to time, Borrower shall deliver a
certification confirming its compliance with the covenants set forth in this Section
5(ee)(v). 


 


(ff)           Post-Closing
Obligations. It shall deliver the items listed on Schedule 10
by the dates set forth therein, each duly executed and delivered by the parties
thereto and in form and substance reasonably satisfactory to the Administrative
Agent. The parties acknowledge that the failure of the Borrower to deliver any
item listed on Schedule 10 shall not, in and of itself, constitute a
Material Adverse Effect. 


 


6.             Events
of Default. The occurrence of any of the following events,
conditions or circumstances shall constitute an event of default under this
Note (each, an “Event of Default”): 


 


(a)           The Borrower
shall fail to pay (i) any principal amount of any Loans made under this Note
when due and payable; (ii) any interest accrued on the Loans or any fee in
respect of the Loans within three (3) Business Days after the date on which
such interest or fee becomes due and payable under this Note; (iii) any other
amount payable by the Borrower hereunder or any termination or other payment
under any Interest Rate Protection Agreement within ten (10) days after any
such other amount or payment becomes due and payable and notice thereof is
given to the Borrower; 


 


39

















 


(b)           Any representation or
warranty made by any party (other than the Lenders, the Administrative Agent or
the Collateral Agent) in any Basic Document to which it is a party, or in any
certificate furnished pursuant to any such document, shall prove to have been
incorrect in any material respect as of the date made (unless such
representation or warranty expressly relates only to an earlier date), and in
each case, any adverse effect of such incorrect misrepresentation or warranty
is not eliminated or addressed to the reasonable satisfaction of the
Administrative Agent within a period of thirty (30) days after receipt of notice
by such Person;


 


(c)           The Borrower
shall fail to perform or observe any of the covenants set forth in Sections
5(a), (b), (c), (d,) (e), (f), (h), (k), (l), (m), (n), (o), (r), (s), (t),
(x), (y), (aa), (bb) and (ee);


 


(d)           The Borrower
shall fail to perform or observe any of its other covenants or obligations
under this Note or any of its obligations contained in any Basic Document
(other than as set forth in clause (a) or (c) above) to which it is a
party and, in each case, such failure shall continue unremedied for a
period of thirty (30) days after receipt of notice or actual knowledge thereof by such
Person, if such failure can reasonably be remedied within such thirty (30) day
period as long as the Borrower is using diligent efforts to remedy such failure
and, in the case of breach only of the covenants set out in Sections
5(g) or 5(j), such failure shall continue unremedied for an additional
period of sixty (60) days after the conclusion of such thirty (30) day cure
period, if such failure can reasonably be remedied within such additional sixty
(60) day period as long as the Borrower is using diligent efforts to remedy
such failure;


 


(e)           FWA IV Default. Before the Release Event has occurred,
an “Event of Default” (or other similar event or condition allowing
the lenders to accelerate the relevant loans) shall have occurred under the FWA
IV Note; provided, that to the extent an Event of Default hereunder has
occurred solely due to an Event of Default under the FWA IV Note, the Event of
Default hereunder shall be deemed cured automatically and concurrently with the
cure of the Event of Default under the FWA IV Note in accordance
with the terms thereof.


 


(f)            The Borrower, or (if it
would be reasonably likely to result in a Material Adverse Effect) any Turbine
supplier under any Turbine Supply Document, or, until the occurrence of the
Release Event, First Wind Holdings: (i) shall admit in writing its
inability to pay its debts as its debts become due; (ii) shall make an
assignment for the benefit of creditors, or petition or apply to any tribunal
for the appointment of a custodian, receiver or trustee for its or a
substantial part of its assets; (iii) shall commence any proceeding under
any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution
or liquidation; (iv) shall have had any such petition filed, or any such
proceeding shall have been commenced against it, in which an adjudication is
made or order for relief is entered or which remains undismissed for a period
of sixty (60) days; (v) shall have had a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (vi) shall
take any action effectuating, approving or consenting to any of the events
described in clauses (i) through (v);


 


(g)           The Borrower or, until the
occurrence of the Release Event, First Wind Holdings shall dissolve or for any
reason cease to be in existence;


 


40

















 


(h)           Unless as a result of the
acts or omissions of the Administrative Agent and subject to
Section 3(b) of the Parent Guaranty, (i) the Lenders or the
Collateral Agent, any Security Agreement shall fail to provide the Collateral
Agent with security interests in and to the Collateral intended to be created
thereby, cease to be in full force and effect, or is declared null and void and
the Borrower shall fail to execute such additional security agreements as may
be requested by the Administrative Agent or the Collateral Agent to remedy such
event; or (ii) the validity or enforceability of any Security Agreement is
contested in a legal proceeding by any party to such Security
Agreement, other than the Administrative Agent, the Lenders or the Collateral
Agent;


 


(i)            Except as
permitted under this Note, any failure by the Borrower to have good title to
all of its real property and good title to all of its personal property and
assets, which failure would have a Material Adverse Effect on the Borrower’s
ability to comply with its obligations under the Basic Documents to which it is
party;


 


(j)            The incurrence of any
liability under any applicable environmental law which could reasonably be
expected to have a Material Adverse Effect if such liability shall continue
unremedied for a period of five (5) days after receipt of notice, or
actual knowledge, thereof by the Borrower, or, if such liability cannot
reasonably be remedied within such five (5) day period but is capable of
being remedied as long as the Borrower is using diligent efforts to remedy such
liability for a period of sixty (60) days after receipt of notice, or actual
knowledge thereof, by the Borrower;


 


(k)           A Change of Control shall
occur and be continuing;


 


(l)            Any permit required to be
obtained or maintained by the Borrower under any Turbine Supply Documents shall
be revoked or cancelled by the issuing governmental authority having
jurisdiction, or any such permit shall otherwise fail to be in full force and
effect, or the Borrower shall fail to comply with any such permit, in each
case, which revocation, cancellation or failure would reasonably be expected to
have a Material Adverse Effect, and in each case, if any adverse effect of such
revocation, cancellation or failure is not remedied to the reasonable
satisfaction of the Lenders within sixty (60) days after receipt of notice
thereof by such
Person;


 


(m)          A final judgment or
judgments shall be entered against the Borrower or any Corresponding Project
Company, by a court of competent jurisdiction in an aggregate amount of not
less than $150,000, other than (i) a judgment which is fully covered
by a posted bond or discharged within thirty (30) days after its entry, or
(ii) a judgment, the execution of which is effectively stayed within
thirty (30) days after its entry but only for thirty (30) days after the date
on which such stay is terminated or expires; or


 


(n)           Any Turbine Supply Documents
shall cease for any reason to be in full force and effect; or any default by
the Borrower, any Corresponding Project Company or any Turbine supplier shall
occur under any Turbine Supply Document (after giving effect to all applicable
cure periods in such Turbine Supply Document) and such default would be
reasonably likely to result in a Material Adverse Effect.


 


41

















 


Upon
the occurrence and during the continuation of an Event of Default, the
Administrative Agent (acting at the direction of Majority Lenders), may, by
notice to the Borrower, declare the unpaid principal amount of the Loan,
accrued interest thereon and all other amounts payable under this Note due and
payable, whereupon the same shall become and be forthwith due and payable
without presentment, demand, protest or further notice or other formalities of
any kind, all of which are hereby expressly waived by the Borrower; provided
that in the case of an Event of Default described in clause (e) above, the
unpaid principal amount of the Loan, accrued interest and other amounts payable
under this Note shall be immediately due and payable.


 


7.             Expenses; Indemnification.


 


(a)           The Borrower agrees to
reimburse the Administrative Agent, each Lender and the Collateral Agent within
thirty (30) days following demand for all documented, reasonable out-of-pocket
costs, expenses and charges including, without limitation, due diligence expenses,
travel expenses, fees and charges of legal counsel, consultants and advisors to
the Lenders, the Administrative Agent and the Collateral Agent and other
expenses, in each case to the extent documented, reasonable, out-of-pocket and
incurred by the Administrative Agent, any Lender or the Collateral Agent, as
applicable, in connection with (i) the negotiation, performance or
enforcement (including in any work-out, restructuring or bankruptcy proceeding)
of this Note or any other Basic Document or (ii) the defense or
prosecution of any rights of the Administrative Agent, any Lender or the
Collateral Agent hereunder. The Administrative Agent, each Lender and the
Collateral Agent shall provide reasonable support for any costs, expenses
and/or charges at the Borrower’s reasonable request and shall obtain approval
from the Borrower (which shall not be unreasonably withheld or delayed) prior
to incurring any unusual and extraordinary expenses. The foregoing amounts
incurred in connection with the negotiation of this Note and the other Basic
Documents may be funded with the Loans.


 


(b)           The Borrower agrees to
indemnify and hold the Administrative Agent, each Lender and the Collateral
Agent together with its respective directors, officers, employees, agents and
consultants harmless from and against all claims, damages, losses, liabilities,
costs, deficiencies and documented expenses and damages, including, without
limitation, investigative costs, settlement costs and reasonable legal,
accounting or other expenses for investigating or defending against any actions
or threatened actions (collectively, the “Losses”), arising out of or in
connection with (i) the execution or delivery of each Basic Document,
including this Note, and the performance by any Person of its obligations under
such Basic Documents, (ii) the making of the Loans and (iii) the use
of the proceeds of any Loan, and any prospective claim, litigation,
investigation or proceeding related to any of the foregoing, but excluding, in
each case, any such Losses incurred by reason of bad faith, gross negligence or
willful misconduct of any Person indemnified hereunder. The Administrative
Agent, any Lender and/or the Collateral Agent, as applicable, shall promptly
notify the Borrower of any claim under this Section 7(b). The
Borrower may elect to assume the defense of any action, proceeding or dispute
with a third party in respect of which a claim is to be made under this Section 7(b);
provided, however, that if the Borrower assumes control of the
defense of any such action, proceeding or dispute, the Borrower shall not agree
or conclude any settlement that affects the Administrative Agent, any Lender or
the Collateral Agent without the prior written approval of the Administrative
Agent,


 


42

















 


each
Lender or the Collateral Agent, as applicable (such approval not to be
unreasonably withheld). In the event the Borrower assumes control of the
defense of any such action, proceeding or dispute, the Borrower shall not be
liable to the Administrative Agent, any Lender or the Collateral Agent for any
legal fees and expenses of additional counsel incurred by the Administrative
Agent, any Lender or the Collateral Agent in connection with such defense; provided,
however, that each of the Administrative Agent, the Lenders and the
Collateral Agent shall have the right to employ its own counsel whose
reasonable legal fees and expenses shall be indemnified by the Borrower if
(A) there is or could reasonably be expected to be a conflict of interest
between the Administrative Agent, any Lender or the Collateral Agent, as
applicable, and the Borrower in connection with the defense of such action,
proceeding or dispute, or (B) there is a specific defense available to the
Administrative Agent, each Lender or the Collateral Agent, as applicable, which
is different from or additional to those available to the Borrower, or
(C) it is reasonably necessary to protect the interests of the
Administrative Agent, each Lender or the Collateral Agent, as applicable, to
the extent such interests differ from the interests of the Borrower.


 


8.             Security. The Borrower’s
obligations under this Note are secured by the Collateral.


 


9.             Governing Law; Submission to
Jurisdiction. This Note 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). The Borrower agrees that any legal action or
proceeding arising out of or relating to this Note or any other Basic Document,
or any legal action or proceeding to execute or otherwise enforce any judgment
obtained against the Borrower, for breach hereof or thereof, or against any of
its properties, may be brought in the courts of the State of New York sitting
in New York County or the United States District Court for the Southern
District of New York by the Administrative Agent or on behalf of any Lender, as
the Administrative Agent may elect. The Borrower hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of such courts for
purposes of any such legal action or proceeding. Service of process by the
Administrative Agent in any such dispute shall be binding on the Borrower if
sent to the Borrower by registered or certified mail, at the addresses
specified on the signature page of this Note. The Borrower agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction.


 


THE  PARTIES  HERETO  WAIVE  ANY RIGHT  THEY  MAY  HAVE  TO JURY TRIAL IN ANY ACTION  RELATED  TO THIS NOTE, ANY OTHER  BASIC DOCUMENT OR THE TRANSACTIONS  CONTEMPLATED  HEREBY  OR THEREBY. IN ADDITION, THE BORROWER  HEREBY  IRREVOCABLY  WAIVES  TO THE FULLEST  EXTENT PERMITTED  BY LAW, ANY OBJECTION WHICH IT MAY  NOW OR HEREAFTER  HAVE TO THE LAYING  OF VENUE OF ANY SUIT, ACTION  OR PROCEEDING  ARISING  OUT OF OR RELATING  TO THIS  NOTE  OR ANY  OTHER BASIC  DOCUMENT  EXECUTED  IN CONNECTION  HEREWITH  OR THEREWITH  BROUGHT  IN THE  COURTS  OF THE STATE OF
NEW  YORK  OR THE UNITED  STATES  DISTRICT  COURT  FOR THE SOUTHERN  DISTRICT  OF NEW YORK, AND ANY CLAIM  THAT  ANY SUCH SUIT, 


 


43

















 


ACTION  OR PROCEEDING  BROUGHT  IN ANY SUCH
COURT  HAS BEEN BROUGHT  IN AN INCONVENIENT  FORUM.


 


10.           Assignments. This Note
shall be binding on, and shall inure to the benefit of each of the Borrower,
the Administrative Agent, the Collateral Agent, the Lenders and their respective
successors and permitted assigns; provided, that the Borrower may not
assign or transfer its rights or obligations under this Note without the prior
written approval of the Administrative Agent (with consent in writing from the
Majority Lenders); and provided, further, that the Lenders may
not assign or otherwise transfer their rights and obligations under this Note or the Loan to
any other Person without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld, delayed or conditioned) unless
(i) such assignment or transfer is to an Affiliate of any Lender or
(ii) an Event of Default has occurred and is continuing, in each such case
consent of the Borrower is not necessary. Any such Person to whom any Lender
assigns its rights pursuant to this Section 10 shall then become
vested with all the rights granted to such Lender under this Note
and with respect to the Loan. Upon such assignment or transfer, such Lender
shall provide to the Borrower the name, address and contact information of the
permitted assignee or transferee.


 


11.          Appointment
of Agents.


 


(a)           Appointment, Powers and
Immunities.


 


(i)             Each Lender
hereby appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Basic Documents with such powers as are
expressly delegated to the Administrative Agent by the terms of this Note and
the other Basic Documents, together with such other powers as are reasonably incidental  thereto.   


 


(ii)           Each  Lender hereby
appoints and authorizes  the Collateral Agent to act as its agent
hereunder  and under the other Basic Documents  with such powers as are expressly
delegated to the Collateral Agent by the terms of this Note and the other Basic
Documents, together with such other powers as are reasonably incidental
thereto.


 


(b)            Duties,
Responsibilities, Powers and Immunities of Agents.


 


The
Agents shall not have any duties or obligations except those expressly set
forth herein and in the other Basic Documents to which they are party. Without
limiting the generality of the foregoing, (a) each Agent shall be subject
to any fiduciary or other implied duties, regardless of whether an Event of
Default has occurred and is continuing, (b) no Agent shall have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Basic Documents that each Agent is required to exercise in writing by the
Majority Lenders or any other Agent, and (c) except as
expressly set forth herein and in the other Basic Documents, no Agent shall have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to First Wind Holdings or any of its subsidiaries that is
communicated to or obtained by the Person serving as an Agent or any of its
Affiliates in any capacity. No Agent shall be liable for any action taken or
not taken by it in the absence of its own gross negligence or willful


 


44

















 


misconduct. No Agent shall
be deemed to have knowledge of any Event of Default unless and until written
notice thereof is given to such Agent by the Borrower, the Lenders or any other
Agent. No Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Note or any other Basic Document, (ii) the contents
of any certificate, report or other document delivered hereunder or thereunder
or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness
or genuineness of this Note, any other Basic Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
herein or therein, other than to confirm receipt of items expressly required to
be delivered to any Agent.


 


Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it in good faith
to be genuine and to have been signed or sent by the proper Person. Each Agent
may also rely upon any statement made to it orally or by telephone and believed
by it in good faith to be made by the proper Person, and shall not incur any
liability for relying thereon. Each Agent may consult with legal counsel,
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


Each Agent may resign at any time by notifying the Lenders, any other
Agent, the Borrower and First Wind Holdings at least seven (7) days in
advance. Any Agent may be removed involuntarily only for a material breach of
its duties hereunder or under the other Basic Documents or for gross negligence
or willful misconduct as determined by a final non-appealable judgment of a
court of competent jurisdiction only upon the affirmative vote of the Majority
Lenders (excluding such Agent from such vote and such Agent’s Loans and Commitments
from the amounts used to determine the Majority Lenders). Upon any such
resignation or removal, the Lenders shall have the right to appoint a
successor, which successor shall (unless an Event of Default shall have
occurred and be continuing) be subject to approval by the Borrower (such
approval not to be unreasonably withheld, conditioned or delayed). The Agent’s
resignation shall not be effective until a successor shall have been appointed
by the Majority Lenders and shall have accepted such appointment. If no
successor has accepted appointment as Agent by the date that is thirty (30)
days following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of the Agent hereunder until such
time, if any, as the Lenders appoint a successor Agent as provided for above.
Upon the acceptance of its appointment as the Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring
Agent, shall be discharged from its duties and obligations hereunder (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After an Agent’s resignation hereunder, the provisions of this Section 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.


 


45














 


12.           Miscellaneous.


 


(a)            The provisions of this Note are intended to be
severable. If for any reason any provision of this Note shall be held invalid
or unenforceable in whole or in part in any jurisdiction, such provision shall,
as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions thereof in any
jurisdiction.


 


(b)          No
amendment, modification or supplement to any provision of this Note shall be
effective unless the same shall be in writing and signed by the Borrower, the
Administrative Agent (with the consent in writing of the Majority Lenders) (or,
after any assignment contemplated by Section 10, other holder
hereof) and, solely with respect to any amendment, modification or
supplement that would adversely affect the rights of the Collateral Agent, the
Collateral Agent (with the consent in writing of the Majority Lenders); provided,
however, that no such amendment, modification or supplement
shall, without the consent of all Lenders:


 


(i)            extend
the maturity of any Loan or reduce the principal amount thereof, or reduce this
Note or change the time of payment of interest due on any Loan;


 


(ii)            reduce the amount or extend the payment date
for any amount due under this Note;


 


(iii)          increase
the amount of Commitments of any Lender under this Note; 


 


(iv)          reduce
or change the time or amount of payment of any fee due or payable hereunder or
under any Basic Document;


 


(v)           reduce
the percentage specified in the definition of Majority Lenders; 


 


(vi)          permit
the Borrower to assign its rights under this Note except  as provided  in Section  10;


 


(vii)         amend this Section 12(b);
or


 


(viii)        release
any collateral from any Lien of any Security Agreement or allow the release of
any funds from any account held under any Security Agreement except as
expressly provided in, or otherwise permitted by, the Basic Documents.


 


(c)           The waiver of any
breach of any of the provisions of this Note shall not be construed to be a
waiver of any subsequent breach or default of the same or other provisions. No
waiver of any of the provisions of this Note shall be valid or binding unless
set forth in writing and duly executed by the Person against whom enforcement
of the waiver is sought and the Majority Lenders (or the Administrative Agent
with the consent in writing of the Majority Lenders). No failure on the part of
the Administrative Agent to exercise, and no delay in


 


46

















 


exercising, any right
hereunder shall operate as a waiver thereof or preclude any other or further exercise
thereof or the exercise of any other right.


 


(d)           The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.


 


(e)           Unless otherwise
agreed in writing, notices shall be given to the Administrative Agent, the
Lenders and the Borrower at their respective addresses set forth on the
signature pages to this Note. Notices under this Note shall be effective
(i) when personally delivered to a party hereto, upon receipt as
shown by messenger receipt, (ii) when mailed to such addressee, upon
receipt of a signed confirmation from such addressee, or (iii) when sent
to such addressee by facsimile, upon receipt of the addressor’s facsimile
machine confirmation or other verifiable electronic receipt.


 


(f)            The provisions of Sections
7 and 9 of this Note shall survive the repayment of the Loan.


 


(g)           The Administrative
Agent and each Lender shall have no claims of any kind or nature with respect
to the transactions contemplated by this Note and the other Basic Documents other
than (i) claims against the Borrower or First Wind Holdings, in each case
as set forth in or pursuant to each Basic Document to which such Person,
respectively, is a party; (ii) claims against any Affiliate
of the Borrower that after the date of this Note enters into a Basic Document
as set forth in or pursuant to each Basic Document to which such Affiliate is a
party (any Person described in the foregoing clauses (i) or
(ii) shall be hereinafter referred to as a “Borrower Party”);
and (iii) claims for fraud, willful misconduct or under express
indemnities against any Person. Other than claims for fraud, willful misconduct
or under express indemnities against any Person, the Administrative Agent
and each Lender shall have no claims of any kind or nature with respect to
the transactions contemplated by this Note and the other Basic Documents
against any Affiliate of the Borrower that is not a Borrower Party or against
any officer, member (other than a member that is a Borrower Party), director or
employee, in such capacity, of the Borrower or any Affiliate of the Borrower,
or any of its or their properties or assets.


 


(h)           This Note and any
agreement, document or instrument attached hereto or referred to herein
integrate all the terms and conditions mentioned herein or incidental hereto
and supersede all oral negotiations and prior writings with respect to the
subject matter hereof.


 


(i)            This Note may be
executed in one or more facsimile counterparts, each of which shall be deemed
to be an original, but all of which together will constitute one and the same agreement.


 


(j)            The Administrative Agent, each Lender and the Collateral
Agent agree to keep confidential, in accordance with its customary procedures
for handling confidential information of this nature, any non-public
information supplied to it by the Borrower in relation to the Turbine Supply
Documents, the Governmental Approvals, the Borrower or First Wind Holdings; provided
that such information does not include information that (i) was publicly 


 


47

















 


known or  otherwise known to it prior to the time of such
disclosure and (ii) subsequently becomes publicly known
through no act or omission by it or any Person acting on its behalf.


 


(k)           The
Guaranty of and security interest in the Collateral provided by a Corresponding
Project Company pursuant to its Security Agreement, Mortgages, Consents and other security
documents shall be terminated and released (and the Guaranty of and Collateral provided by any
of its Intermediate Holding Companies that is an obligor or guarantor under a
financing of such Corresponding Project Company that is permitted by this Note
shall be terminated and released) upon the occurrence of either of the
following: (a) repayment in full of all Corresponding Term Loans
therefor (including the principal of and all interest and fees on such
Corresponding Term Loans), whether pursuant to Sections 5(l) or 5(x)
of the this Note or otherwise; or (b) the reallocation of all
Turbines that were allocated to the Corresponding Project Company’s Project to
any other project in accordance with the terms of Section 5(cc) of
this Note. The Collateral Agent agrees to promptly deliver and file (or cause
to be delivered and filed) any and all documents and instruments necessary or
reasonably required in order to effect the above-described termination
and release.


 


(l)            To the extent that
HSHN fails to pay any time deposits or certificates of deposit issued by HSHN
to First Wind Holdings or its subsidiaries in full at maturity, First Wind
Holdings and its subsidiaries (without duplication) shall be entitled to setoff
any and all such unpaid amounts against any Obligations due to HSHN, in its
capacity as a Lender, under the Basic Documents (as defined in each of the
First Wind Holdings Loan Agreement, this Note and the FWA IV Note) as and in
such manner as determined by First Wind Holdings, and to the extent of such
setoff, HSHN’s obligations with respect to the time deposits or certificates of
deposit shall be reduced and deemed satisfied.


 


[Signature page follows]


 


48

















 


	
     

  	
  FIRST WIND ACQUISITION,
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn Lim

  
	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  First Wind Acquisition,
  LLC

  
	
   

  	
  c/o First Wind Energy, LLC

  
	
   

  	
  85 Wells Avenue, Suite 305

  
	
   

  	
  Newton, MA 02459

  
	
   

  	
  Attention: President

  
	
   

  	
  Facsimile: (617) 964-3342

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  
	
   

  	
  85 Wells Avenue, Suite 305

  
	
   

  	
  Newton, MA 02459

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Facsimile: (617) 964-3342

  



 

















 


Agreed and accepted:


 


HSH NORDBANK AG, NEW YORK BRANCH, 


as Administrative Agent and
Collateral Agent


 


	
  By:

  	
  /s/ Brian T. Caldwell

  	
   

  
	
   

  	
  Name:

  	
  Brian T. Caldwell

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, NY Branch

  	
   

  



 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York,  New York 10169-0005

  
	
  Attention:

  	
  Energy - Portfolio Management

  
	
  Telephone:

  	
  212 407 6044 (David Watson)

  
	
  Facsimile:

  	
  212-407-6807

  



 


with a copy to:


 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York,  New York 10169-0005

  
	
  Attention:

  	
  General Counsel

  
	
  Telephone:

  	
  (212) 407-6142

  
	
  Facsimile:

  	
  (212) 407-6811

  



 

















 


Agreed and accepted:


 


HSH NORDBANK AG, NEW YORK BRANCH, 


as Lender


 


	
  By:

  	
  /s/ Tony K. Muoser

  	
   

  
	
   

  	
  Name:

  	
  Tony K. Muoser

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  HSH Nordbank AG, NY Branch

  	
   

  



 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York,  New York 10169-0005

  
	
  Attention:

  	
  Energy - Portfolio Management

  
	
  Telephone:

  	
  212 407 6044 (David Watson)

  
	
  Facsimile:

  	
  212-407-6807

  



 


with a copy to:


 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York,  New York 10169-0005

  
	
  Attention:

  	
  General Counsel

  
	
  Telephone:

  	
  (212) 407-6142

  
	
  Facsimile:

  	
  (212) 407-6811

  



 














 


Exhibit A


Notice of Borrowing


 


[Date]


 


TO:                           HSH NORDBANK
AG, NEW YORK BRANCH (the “Administrative Agent”) 


 


FROM:                                First Wind
Acquisition, LLC (the “Borrower”)


 


RE:                             Borrowing
Notice


 


Reference
is made to the Fourth Amended and Restated Secured Promissory Note, dated as of
[     ], 2009 (the “Note”), between the
Borrower and the Lenders.  Capitalized
terms used and not defined herein shall have the meanings given to them in this
Note.


 


The
Borrower hereby requests a disbursement of a Term Loan pursuant to Section 2.4
of this Note and makes the following certifications:


 


(1)                                  The requested
disbursement date (a Business Day) is [                     ],
200  .


 


(2)                                  The amount of
the requested disbursement is $[                     ],
and such amount is now due under the [specify Turbine Supply Document].  A copy of the relevant invoice and other supporting
documentation evidencing that such payment is due under such Turbine Supply Document are
attached.


 


(3)                                  Interest
Periods(1) and amounts to be allocated thereto:


 


	
  (a)    One month

  	
   

  	
  $

  	
   

  	
   

  
	
  (b)    Two months

  	
   

  	
  $

  	
   

  	
   

  
	
  (c)    Three months

  	
   

  	
  $

  	
   

  	
   

  



 


(4)                                  The
Administrative Agent shall disburse the requested disbursement to the [TURBINE
SUPPLIER] [on behalf of the Borrower] [Borrower in reimbursement for amounts
previously paid, other than from proceeds of Term Loans, by the Borrower to the
[TURBINE SUPPLIER] via wire transfer to the following account at [ACCOUNT
INFORMATION].


 


(5)                                 The Borrower
certifies hereby that (a) each condition precedent set forth in Section 3
of this Note to the requested disbursement has been satisfied or waived as of
the date hereof and will be satisfied or waived as of the date of the
requested disbursement and (b) after giving effect to the
requested disbursement, the Borrower is in compliance with Section 2.l(a) of
the Note.


 


(6)                                 The Borrower
certifies hereby that each Basic Document and each Turbine Supply Document to
which it is a party is in full force and effect as of the date of such
disbursement and has not been amended, modified or supplemented without the
consent of the Administrative Agent and the Majority Lenders.


 






(1)  If no
Interest Period is specified, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.


 

















 


(7)                                  The Borrower
certifies hereby that each representation and warranty made by it in Section 4
of this Note is true and correct as of the date of such disbursement (unless
such representation and warranty relates only to an earlier date).


 


(8)                                  The Borrower
certifies hereby that no Default or Event of Default has occurred and is continuing as
of the Borrowing Date.


 

















 


IN
WITNESS WHEREOF, the undersigned executes this Borrowing Notice on the date first set forth
above.


 


 


	
   

  	
  FIRST WIND ACQUISITION,
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit B


 


Notice of Extension


 


[Date]


 


TO:                           HSH NORDBANK
AG, NEW YORK BRANCH (the “Administrative Agent”)


 


FROM:                                FIRST Wind
Acquisition, LLC (the “Borrower”)


 


RE:                             Notice of
Extension


 


Reference
is made to the Fourth Amended and Restated Secured Promissory Note, dated as of
[     ], 2009 (the “Note”), between the
Borrower and the Lenders.  Capitalized
terms used and not defined herein shall have the meanings given to them in this
Note.


 


The
Borrower hereby requests an extension of the following [Term][North Shore] Loan
made on [INSERT DATE] as follows:


 


(1)                                 Total amount of
Loan to be extended      $[                     ].


 


(2)                                 Interest
Periods(2) and amounts to be allocated thereto (amounts must total (1)):


 


	
  (a)    One
  month

  	
   

  	
  $

  	
   

  	
   

  
	
  (b)    Two months

  	
   

  	
  $

  	
   

  	
   

  
	
  (c)    Three months

  	
   

  	
  $

  	
   

  	
   

  



 


(3)                                  The Borrower
certifies hereby that each Basic Document to which it is a party is in full force and effect
as of the date of such disbursement.


 


(4)                                  The Borrower
certifies hereby that each representation and warranty made by it in Section 4
of this Note is true and correct as of the date of such disbursement (unless
such representation and warranty relates only to an earlier date).


 


(5)                                  The Borrower
certifies hereby that no Default or Event of Default has occurred and is
continuing as of the Borrowing Date.


 






(2)  If no
Interest Period is specified, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.


 

















 


IN
WITNESS WHEREOF, the undersigned executes this Notice of Extension on the date first set forth
above.


 


 


	
   

  	
  FIRST WIND ACQUISITION,
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit C-1


 


WITHHOLDING CERTIFICATE (TREATY)


 


Date:
[             ]


 


First Wind Acquisition, LLC as
Borrower


 


Attention: [                                  ]


 


In
connection with the Fourth Amended and Restated Secured Promissory Note, dated
as of [     ], 2009, among First Wind Acquisition,
LLC, a Delaware limited liability company (“Borrower”), HSH Nordbank AG, New York Branch (“HSHN”)
(the “Lender”) (as amended, modified and supplemented
and in effect from time to time, the “Note”), the undersigned hereby
certifies, represents and warrants that [        ]
is a [        ] and is currently exempt
from, or is subject to a reduced rate of [        ]%
in lieu of, any U.S. Federal Withholding tax otherwise imposed on amounts paid
to it from United States sources under this Note, by virtue of compliance with
the provisions of the Income Tax Convention between the United States and [        ]·


 


The
undersigned (a) is a [        ]
organized under the laws of [        ]
whose registered business is managed or controlled in [        ], (b) [does not have a permanent establishment or
fixed base in the United States] [does have a permanent establishment or fixed
base in the United States, but the Note is not effectively connected with such
permanent establishment or fixed base], and (c) is the beneficial owner of the interest
income to be received from its share arising under the Financing
Agreement.


 


We
enclose two signed copies of Form W-8BEN of the U.S. Internal Revenue
Service, certifying that the undersigned is entitled to claim the tax treaty
benefit with respect to U.S. withholding on payments under the Financing
Agreement.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 

















 


Exhibit C-2


 


WITHHOLDING CERTIFICATE (EFFECTIVELY CONNECTED)


 


Date:
[            ]


 


First Wind Acquisition, LLC
as Borrower


 


Attention: [                              ]


 


In
connection with the Fourth Amended and Restated Secured Promissory Note, dated
as of [     ], 2009, among First Wind Acquisition,
LLC, a Delaware limited liability company (“Borrower”), HSH Nordbank AG,
New York Branch (“HSHN”) (the “Lender”) as amended, modified and
supplemented and in effect from time to time, the “Note”), the
undersigned hereby certifies, represents and warrants that[                              ] is entitled to
exemption from withholding tax on payments to it under the provisions of Section 1441(c)(1) or
1442 of the Internal Revenue Code of 1986, as amended, of the United States of
America, relating to income which is effectively connected with the conduct of
a trade or business within the United States.


 


We
enclose two signed copies of Form W-8ECI of the U.S. Internal Revenue
Service.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 

















 


Exhibit C-3


 


WITHHOLDING CERTIFICATE (PORTFOLIO INTEREST)


 


Date: [                ]


 


First Wind Acquisition, LLC
as Borrower


 


Attention: [                                ]


 


In
connection with the Fourth Amended and Restated Secured Promissory Note, dated
as of [     ], 2009, among First Wind Acquisition,
LLC, a Delaware limited liability company (“Borrower”), HSH Nordbank AG, New York Branch
(“HSHN”) (the “Lender”) (as amended, modified and supplemented
and in effect from time to time, the “Note”), the undersigned hereby
certifies, represents and warrants that the undersigned: (a) is a
corporation organized under the laws of [                                ] whose
registered business is managed or controlled in [                                ], (b) does
not have a permanent establishment or fixed base in the United States or
otherwise conduct a trade or business in the United States to which the Financing
Agreement or income therefrom is effectively connected, (c) is the
beneficial owner of the interest income which arises from its share of the
interest income arising from this Note, (d) does not own an equity
interest in the Borrower of 10% or more, directly or indirectly, taking into
account the ownership rules specified in Section 871(h)(3)(B) and
(C) of the Internal Revenue Code of 1986, as amended (the “Code”), (e) is
not a related party to the Borrower, taking into account the rules of
Section 864(d)(4) of the Code, and (f) is not a bank that has entered into
this Note in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of
the Code.


 


We
enclose two signed copies of Form W-8BEN.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 














 


Schedule 1


 


Advance Rates


 


	
  Advance Rates:

  	
   

  	
  GE Turbines

  	
   

  	
   

  
	
   

  	
   

  	
  KWP II

  	
   

  	
  *****

  
	
   

  	
   

  	
  Oakfield

  	
   

  	
  *****

  
	
   

  	
   

  	
  Rollins

  	
   

  	
  *****

  
	
   

  	
   

  	
  Stetson II

  	
   

  	
  *****

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reduced Advance Rates

  	
   

  	
  GE Turbines

  	
   

  	
   

  
	
   

  	
   

  	
  KWP II

  	
   

  	
  *****

  
	
   

  	
   

  	
  Oakfield

  	
   

  	
  *****

  
	
   

  	
   

  	
  Rollins

  	
   

  	
  *****

  
	
   

  	
   

  	
  Stetson II

  	
   

  	
  *****

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Upon occurence of the
  Release Event:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advance Rates:

  	
   

  	
  GE Turbines

  	
   

  	
   

  
	
   

  	
   

  	
  KWP II

  	
   

  	
  *****

  
	
   

  	
   

  	
  Oakfield

  	
   

  	
  *****

  
	
   

  	
   

  	
  Rollins

  	
   

  	
  *****

  
	
   

  	
   

  	
  Stetson II

  	
   

  	
  *****

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reduced Advance Rates

  	
   

  	
  GE Turbines

  	
   

  	
   

  
	
   

  	
   

  	
  KWP II

  	
   

  	
  *****

  
	
   

  	
   

  	
  Oakfield

  	
   

  	
  *****

  
	
   

  	
   

  	
  Rollins

  	
   

  	
  *****

  
	
   

  	
   

  	
  Stetson II

  	
   

  	
  *****

  



 

















 


Schedule 2


 


Appraisal Procedure


 


A Fair Market Value (“FMV”)
appraisal shall be performed by the Appraiser in accordance with the Appraisal
Foundation’s Uniform Standards of Professional Appraisal Practice
(“USPAP”) and subject to the Appraisal Procedure described below.


 


Appraisal Procedure


 


When requested by the
Administrative Agent (but not more than once per calendar quarter), the Appraiser shall
perform a FMV appraisal of the Turbines. Although the Appraiser must consider all three
approaches to value (the Replacement Cost Approach, Sales Comparison Approach,
and Income Capitalization Approach), as required and defined under USPAP, it is
mutually acknowledged that the Income Capitalization Approach is not appropriate
in this circumstance because the Turbines and the Corresponding Project
Companies at no time constitute a cash flow-generating entity and since the wind
turbine machinery comprising the Turbines consists entirely of uninstalled
machinery and equipment that cannot be considered part of a “going concern” at the time of
the Appraisal.


 


The value of the Turbines
shall be determined as the lesser of the values produced by the Replacement
Cost Approach and the Sales Comparison Approach, assuming, in both Approaches,
payment in full and delivery of the Turbines.


 


In
performing the Replacement Cost Approach, the Appraiser shall consider only
turbines from manufacturers of comparable industry stature (“Comparable
Manufacturers”) in assessing equipment of equivalent
functional utility, with due consideration to capacity and future operational
costs. In performing the Sales Comparison Approach, the Appraiser shall only consider equipment
from Comparable Manufacturers. If, in the Appraiser’s judgment, insufficient
data exist regarding recent transactions of equipment from Comparable
Manufacturers, the Appraiser shall, in a manner consistent with formal
appraisal procedure, adjust the sales comparison indicator of value to
reflect differences between the transacted values of equipment from Comparable
Manufacturers and transacted values of equipment from other manufacturers.
The determination of Comparable Manufacturers shall be based on
industry market share and installed base, degree and
creditworthiness of warranty coverage, and the performance characteristics of
the Equipment.


 


As
part of the Reconciliation of Value Indications, the Appraiser shall report
the Value of the Equipment as a single dollar value. Although a range
of values may be referenced in the appraisal report, only the single dollar
value reported as the Equipment’s Value shall be deemed the conclusion of the
Appraisal. The single dollar value should represent the value of the most probable price
within the range of values.


 

















 


Schedule 3


 


Collateral


 


An Amended and Restated
Pledge and Security Agreement, duly executed by First Wind Holdings, LLC
in favor of the Collateral Agent;


 


An Amended and Restated
Guaranty and Security Agreement, duly executed by Windfarm Prattsburgh, LLC, in
favor of the Collateral Agent;


 


An
Amended and Restated Guaranty and Pledge Agreement, duly executed by Hawaii
Holdings, LLC, in favor of the Collateral Agent;


 


A Guaranty and Security
Agreement, duly executed by Kaheawa Wind Power II, LLC, in favor of the
Collateral Agent;


 


A Guaranty and Pledge
Agreement, duly executed by First Wind Maine Holdings, LLC, in favor of the
Collateral Agent;


 


A Guaranty and Security
Agreement, duly executed by Stetson Wind II, LLC, in favor of the Collateral
Agent;


 


A Guaranty and Security
Agreement, duly executed by Evergreen Wind Power II, LLC, in favor of the
Collateral Agent;


 


A Guaranty and Security
Agreement, duly executed by Evergreen Wind Power III, LLC, in favor of the
Collateral Agent;


 


An Amended and Restated
Guaranty and Security Agreement, duly executed by First Wind Acquisition, LLC,
in favor of the Collateral Agent;


 


The Security Agreements as
defined in the FWA IV Note;


 


A
Pledge Agreement, duly executed by New York Wind III, LLC, in favor of the
Collateral Agent; and


 


A Second Lien Guaranty and
Pledge Agreement, duly executed by CSSW Holdings, LLC and CSSW, LLC , in favor
of the Collateral Agent.


 

















 


Schedule 4


 


I.
LIST  OF
PROJECT COMPANIES


 


·                 Stetson Wind II, LLC


·                 Windfarm
Prattsburgh, LLC


·                 Kaheawa Wind Power II, LLC


·                 Evergreen Wind
Power II, LLC


·                 Evergreen Wind
Power III, LLC


 


II. List of Projects


 


·                 Rollins
Project: the wind generating facility with a nameplate capacity of 60 megawatts
located in Penobscot County, Maine owned by Evergreen Wind Power III, LLC.


 


·                 Oakfield
Project: the wind generating facility with a nameplate capacity of 49 megawatts
located in Oakfield, Maine owned by Evergreen Wind Power II, LLC.


 


·                 Stetson II
Project: the wind generating facility with a nameplate capacity of 25 megawatts
located in Washington County, Maine owned by Stetson Wind II, LLC.


 


·                 KWP II Project:
the wind generating facility with a nameplate capacity of 21 megawatts located
in Maui, Hawaii owned by Kaheawa Wind Power II, LLC.


 


·                 Prattsburgh
Project: the wind generating facility with a nameplate capacity of 54 megawatts
located in Prattsburgh, New York and Italy, New York owned by Windfarm
Prattsburgh, LLC.


 


III. LIST OF
ELIGIBLE QUALIFIED PROJECTS


 


·                 Rollins Project


·                 Oakfield
Project


·                 Stetson II
Project


·                 KWP II Project


 

















 


Schedule 5


 


Material Project Documents


 


1.                                      Interconnection
Agreement, dated as of July 12, 2004, as amended, between New York State
Electric and Gas Corporation and Windfarm Prattsburgh, LLC.


 


2.                                      New York State
Energy Research and Development Authority (“NYSERDA”) Agreement No. 10069,
dated as of March 8, 2007, between NYSERDA and Windfarm Prattsburgh, LLC,
as modified by that Modification No. 1, dated as of October 29, 2008.


 


3.                                      Agreement No. 7363,
dated as of December 19, 2002 between NYSERDA and Windfarm Prattsburgh,
LLC.


 


4.                                      Logistics
Services Agreement, dated as of October 31, 2008, between First Wind
Energy, LLC and Transgroup Worldwide Logistics.


 


5.                                      Transformer
Letter Agreement, dated as of March 15, 2007, between First Wind Holdings,
LLC, as Buyer, and Virginia Transformer Corp, as Seller, along with Standard
Warranty Agreement.


 

















 


Schedule 6


 


Insurance Requirements


 


[List of Insurance Provided.]


 






 










 


	
  Client#:
  1480

  	
  FIRSTWIN

  
	
  ACORD  TM CERTIFICATE OF LIABILITY INSURANCE

  	
  DATE
  (MM/DD/YYYY)

  03/02/09

  
	
  PRODUCER

  	
  THIS
  CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
  UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER
  THE COVERAGE AFFORDED BY THE POLICIES BELOW.

  
	
  William Gallagher Associates

  
	
  Insurance Brokers, Inc.

  
	
  470 Atlantic Avenue

  
	
  Boston, MA 02210

  	
   

  	
   

  
	
   

  	
  INSURERS
  AFFORDING COVERAGE

  	
  NAIC
  #

  
	
  INSURED

  	
   

  	
  INSURER
  A: Federal Insurance Company

  	
  20281

  
	
   

  	
  First
  Wind Acquisition, LLC

  	
  INSURER
  B: Arch Insurance Company

  	
  11150

  
	
   

  	
  First
  Wind Energy, LLC

  	
  INSURER
  C: Lloyd’s Of London/JLT Solutions

  	
  15792

  
	
   

  	
  85
  Wells Avenue, Suite 305

  	
  INSURER
  D:

  	
   

  
	
   

  	
  Newton,
  MA 02459

  	
  INSURER
  E:

  	
   

  
	
  COVERAGES

  
	
  THE POLICIES OF
  INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE
  POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION
  OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE
  MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE
  POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
  CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN
  REDUCED BY PAID CLAIMS.

  
	
   

  
	
  INSR

  LTR

  	
   

  	
  ADD’L

  INSRD

  	
   

  	
  TYPE
  OF INSURANCE

  	
   

  	
  POLICY
  NUMBER

  	
   

  	
  POLICY EFFECTIVE

  DATE
  (MM/DD/YY)

  	
   

  	
  POLICY EXPIRATION

  DATE
  (MM/DD/YY)

  	
   

  	
  LIMITS

  
	
  A

  	
   

  	
   

  	
   

  	
  GENERAL
  LIABILITY

  	
   

  	
  37112840

  	
   

  	
  02/15/09

  	
   

  	
  02/15/10

  	
   

  	
  EACH
  OCCURRENCE

  	
  $1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  x COMMERCIAL GENERAL LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  DAMAGE
  TO RENTED PREMISES (Ea occurrence)

  	
  $1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o CLAIMS MADE 

  	
  x OCCUR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MED
  EXP (Any one person)

  	
  $10,000

  
	
   

  	
   

  	
   

  	
   

  	
  o  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PERSONAL
  & ADV INJURY

  	
  $1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  GENERAL
  AGGREGATE

  	
  $2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  GEN’L AGGREGATE
  LIMIT APPLIES PER:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PRODUCTS
  - COMP/OP AGG

  	
  $2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o POLICY

  	
  o PROJECT

  	
  o LOC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  COMBINED
  SINGLE LIMIT

  	
  $1,000,000

  
	
  A

  	
   

  	
   

  	
   

  	
  AUTOMOBILE LIABILITY

  	
   

  	
  73539135

  	
   

  	
  03/01/09

  	
   

  	
  03/01/10

  	
   

  	
  (Ea
  accident)

  	
   

  
	
  A

  	
   

  	
   

  	
   

  	
  x ANY AUTO 

  	
   

  	
  73525609

  	
   

  	
  03/01/09

  	
   

  	
  03/01/10

  	
   

  	
  BODILY INJURY

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o ALL OWNED AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (Per
  person)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o SCHEDULED AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  BODILY
  INJURY

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  x HIRED AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (Per
  accident)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  x  NON-OWNED AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PROPERTY
  DAMAGE

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (Per
  accident)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AUTO
  ONLY - EA ACCIDENT

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  GARAGE LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OTHER
  THAN

  	
  EA ACC

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o ANY AUTO

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AUTO
  ONLY:

  	
  AGG

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
   

  	
   

  	
  EXCESS/UMBRELLA
  LIABILITY

  	
   

  	
  79833689

  	
   

  	
  02/15/09

  	
   

  	
  02/15/10

  	
   

  	
  EACH
  OCCURRENCE

  	
  $25,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  x OCCUR 

  	
  o CLAIMS MADE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AGGREGATE

  	
  $25,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o DEDUCTIBLE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o RETENTION

  	
  $ $0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WORKERS
  COMPENSATION AND EMPLOYERS’ LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WC STATUTORY

  LIMITS

  	
  OTHER

  	
   

  
	
   

  	
   

  	
  ANY
  PROPRIETOR/PARTNER/EXECUTIVE 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  E.L.
  EACH ACCIDENT

  	
  $

  
	
   

  	
   

  	
  OFFICER/MEMBER
  EXCLUDED?

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  E.L.
  DISEASE - EA EMPLOYEE

  	
  $

  
	
   

  	
   

  	
  If
  yes, describe under SPECIAL PROVISIONS below

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  E.L.
  DISEASE - POLICY LIMIT

  	
  $

  
	
  A

  	
   

  	
  OTHER Com
  Property

  	
   

  	
  37113152

  	
   

  	
  11/18/08

  	
   

  	
  11/18/09

  	
   

  	
  See
  Description Section

  	
   

  
	
  B

  	
   

  	
  Aircraft
  Llab.

  	
   

  	
  11NOA5916901

  	
   

  	
  09/14/08

  	
   

  	
  09/14/09

  	
   

  	
  See
  Description Section

  	
   

  
	
  C

  	
   

  	
  BAR

  	
   

  	
  WI090676

  	
   

  	
  02/15/08

  	
   

  	
  02/15/10

  	
   

  	
  See
  Description Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DESCRIPTION
  OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT /
  SPECIAL PROVISIONS

  
	
  Commercial
  Property Policy #37113152

  
	
  Project
  Entity: Kaheawa Wind Power II, LLC

  
	
  Blanket Limit: $25,000,000

  
	
  Deductible: $25,000 except Earthquake
  and Flood: $50,000

  
	
  (See
  Attached Descriptions)

  
	
   

  
	
  CERTIFICATE
  HOLDER

  	
  CANCELLATION

  
	
   

   

  HSH-Nordbank
  AG, New York Branch

  as
  Administrative Agent

  Attn:
  Energy Portfolio

  230
  Park Avenue

  New
  York, NY 10169-0005

  	
  SHOULD
  ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION  DATE THEREOF,
  THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE
  CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO
  OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.

   

  AUTHORIZED
  REPRESENTATIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACORD
  25 (2001/08) 1 of 3 

  	
  #S135326/M135324

  	
  MCL

  	
  ® ACORD CORPORATION 1988

  
																										



 


1






 










 


IMPORTANT


 


If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must
be endorsed. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).


 


If SUBROGATION IS WAIVED, subject to the terms and conditions of the
policy, certain policies may require an endorsement. A statement on this
certificate does not confer rights to the certificate holder in lieu of such
endorsement(s).


 


DISCLAIMER


 


The Certificate of Insurance on the reverse side of this form does not
constitute a contract between the issuing insurer(s), authorized representative
or producer, and the certificate holder, nor does it affirmatively or
negatively amend, extend or alter the coverage afforded by the policies listed
thereon.


 


2

















 


DESCRIPTIONS (Continued from Page 1)


 


Non-Owned
Aviation Policy# 11NOA5916901 


Limit of
Liability: $25,000,000


 


INSURER D:


World Wide
Transit Policy #OMC3H549425002


Limit of
Liability: $15,000,000 per conveyance


Deductible:
$10,000 each and every loss


Delay in
Start Up: $48,762,000 (W/R/T Milford Wind Corridor Phase I, LLC) or as declared


on a per
project basis


Deductible:
20 days each and every loss


 


Builders
Risk and Operational Policy #WI090676


Project
Entity: Milford Wind Corridor Phase I, LLC


Construction
Property Damage: $352,980,903


Transmission &
Distribution Lines Construction Property Damage: $64,231,211


Delay
In.Start Up: $48,762,000


Operational
Property Damage/Machinery Breakdown: $312,513,886


Transmission &
Distribution Lines Operational Property Damage: $64,231,211


Operational
Business Interruption: $48,762,000


Project
Entity: Windfarm Prattsburgh, LLC


Construction
Property Damage: $115,501,320


Delay in
Start Up: $20,077,000


Operational
Property Damage/Machinery Breakdown: $118,349,000


Operational
Business Interruption: $20,077,000


Offsite
Property Construction Property Damage and DSU Sublimit: $52,861,660


Project
Entity: Evergreen Wind Power V, LLC (Stetson Mountain)


Operational
Property Damage/Machinery Breakdown: $114,227,000


Operational
Business Interruption: $27,177,000


Deductibles:


Section 4:
$75,000 each and every occurrence or series of occurrences per the attached


Section 5:
30 continuous days for Bl and Extra Expense per the attached


Sublimits
applicable to policy: see attached


 


Agents and
Lenders are included as Additional Insureds, provided Waiver of Subrogation and
Coverage is Primary and Non Contributory with regard to all listed policies as
stated in the Third Amended and Restated Secured Promissory Note.


 


Administrative
Agent has been added as sole Loss Payee in accordance with Schedule 6 of the
Third Amended and Restated Secured Promissory Note


 


60 days notice of cancellation or reduction in coverage
is provided except for 10 days for nonpayment of premium


 


3

















 


Schedule 7


 


Turbine Supply Documents


 


[Subject to confirmation]


 


1.               Contract for
the Sale of Power Generation Equipment and Related Services (2008 SLE Turbines), dated
as of the 26th day of September, 2007, between General Electric
Company, as Seller, and First Wind Acquisition, LLC, as Buyer, as
amended by that 2008 Turbine Sale Agreement Amendment No. 1,
dated as of the 29th day of February, 2008. (702737 Rollins)


 


2.               Contract for the Sale of Power Generation
Equipment and Related Services (2008 1.5sle Turbines), dated as of June 27,
2006, between First Wind Acquisition, LLC, as Buyer, and General Electric
Company, as Seller, as amended by that Notice #: 2007-GE-J3XU5-01 dated as of June 29,
2007, as amended by that External Change Order No. 2, dated as of the 10th day of March, 2008, as amended by that
External Change Order No. 3, dated as of the 25th day of June,
2008, as amended by that Change Order No. A, dated as of the 8th day of July, 2008, and as amended by that
External Change Order No. 4, dated as of the 26th day of September, 2008. (1-J3XU5 (Stetson II/Oakfield))


 


3.               Contract for
the Sale of Power Generation Equipment and Related Services (2008 1.5se
Turbines), dated as of June 27, 2006, between First Wind Acquisition,
LLC, as Buyer, and General Electric Company, as Seller, as amended by that
Notice #: 2007-GE-501001-01 dated as of June 29, 2007, as amended by that
External Change Order No. 2, dated as of the 11th day of March, 2008, as amended by that
External Change Order No. 3, dated as of the 25th day of June, 2008, as amended by that Change
Order No. A, dated as of the 8th day of July,
2008, and as amended by that External Change Order No. 5, dated as of the 13th day of October, 2008 (501001 (Kaheawa II))


 


4.               Contract for
the Sale of Power Generation Equipment and Related Services (Ten Unit
Project), dated as of June 4, 2007, between First Wind Acquisition, LLC, as
Buyer, and General Electric Company, as Seller, as amended by that  Scope Change Order Form 01 dated as of  September 7, 2007, as amended by that 2008 Turbine
Sale Agreement Amendment No. 1., dated as of the 29th day of February, 2008, as amended by
that External Change Order No. 2, dated as of the 25th day of June, 2008, as amended by that Change Order No. A,
dated as of the 8th day of July, 2008, and as amended by that External Change
Order No. 3, dated as of the 24th day of
September, 2008. (700857 (Rollins/Oakfield))


 


5.               Turbine Purchase Order No. 10
(“TPO No. 10”) dated March 6, 2006 between Exergy Development Group, LLC, as Buyer, and
General Electric Company, as Turbine Supplier, as assigned to
First Wind Acquisition, LLC pursuant to that certain Assignment and Agreement
dated March 6, 2006 between Exergy Development Group, LLC, First Wind Acquisition, LLC (formerly UPC Wind
Acquisition, LLC) and General Electric Company, as further amended
by that certain First Amendment to Turbine Purchase


 

















 


Order No. 10
dated as of March 21, 2006, as further amended by that certain Second
Amendment to Turbine Purchase Order No. 10 dated as of September 14,
2006, as amended by that Scope Change Order Form 01 dated as of August 14,
2007, as amended by that Scope Change Order Form 02 dated September 7,
2007, and as amended by that Scope Change Order Form 02 – Revision 1 dated
September 26, 2007. (Prattsburgh I)


 


a.               Master Turbine Supply Agreement dated June 28,
2004 between Exergy Development Group, LLC, as Buyer, and GE Wind
Energy, LLC, as Turbine Supplier (only to the extent it applies to TPO No. 10),
as assigned to First Wind Acquisition, LLC pursuant to that certain Assignment
and Agreement dated March 6,
2006 between Exergy Development Group, LLC, First Wind Acquisition, LLC
(formerly UPC Wind Acquisition, LLC) and General Electric Company.
(Prattsburgh I)


 


6.               Master Warranty Agreement, dated June 25,
2004, between Exergy Development Group, LLC, as Buyer, and GE Wind Energy, LLC,
as Turbine Supplier (only to the extent it applies to TPO No. 5,
No. 6, No. 7, No. 8, No. 10). (Mars Hill and Prattsburgh)


 


7.               Operations and Maintenance
Agreement, dated as of February 11, 2005, between General Electric
Company, as Operator, and Kaheawa Wind Power, LLC, as Owner. (KWP)


 


8.               Amended and Restated
Contract for the Sale of Power Generation Equipment and Related Services
(Prattsburgh II), dated as of June 4, 2007, between First Wind Acquisition, LLC, as Buyer, and General
Electric Company, as Seller, as amended by that Scope Change Order Form 01
dated as of August 14, 2007, and as amended by that Change Order No. A,
dated as of the 8th day of July, 2008. (1-J3XTQ (Oakfield))


 


9.               Turbine Purchase Order No. 10 (“TPO No. 10”)
dated March 6, 2006 between Exergy Development Group, LLC, as Buyer, and
General Electric Company, as Turbine Supplier, as assigned to First Wind
Acquisition, LLC pursuant to that certain Assignment and Agreement dated March 6,
2006 between Exergy Development Group, LLC, First Wind Acquisition, LLC
(formerly UPC Wind Acquisition, LLC) and General Electric Company, as further
amended by that certain First Amendment to Turbine Purchase Order No. 10
dated as of March 21, 2006, as further amended by that certain Second
Amendment to Turbine Purchase Order No. 10 dated as of September 14,
2006, as amended by that Scope Change Order Form 01 dated as of August 14,
2007, as amended by that Scope Change Order Form 02 dated September 7,
2007, and as amended by that Scope Change Order Form 02 – Revision 1 dated
September 26, 2007. (Oakfield


 


10.         Master Turbine Supply
Agreement dated June 28, 2004 between Exergy Development Group, LLC, as
Buyer, and GE Wind Energy, LLC, as Turbine Supplier (only to the extent it applies to TPO No. 10), as
assigned to First Wind Acquisition, LLC pursuant to that certain Assignment and
Agreement dated March 6, 2006 between Exergy Development Group, LLC, First
Wind Acquisition, LLC (formerly UPC Wind Acquisition, LLC) and General Electric
Company. (Oakfield)


 

















 


Schedule 8


 


Material Liabilities and Assets


 


Please refer to the financial statements of
Borrower as of March 31, 2009 and Schedule [11] to the
First Wind Holdings Loan Agreement.


 

















 


Schedule 9


 


Top-Up Amount Schedule


 


[Attached]


 















 


Schedule 9
Top Up Schedule


 


	
  Project

  	
   

  	
  Contract

  	
   

  	
  QP

  Determination

  	
   

  	
  Vendor

  	
   

  	
  WTG Type

  	
   

  	
  # WTGs

  	
   

  	
  MWs

  	
   

  	
  Contract Price

  	
   

  	
  Holdback

  Percentage

  	
   

  	
  Holdback Amount

  	
   

  	
  Adjusted Value

  	
   

  	
  Advance Rate

  	
   

  	
  Maximum Debt

  Capacity

  	
   

  
	
  KWP
  II

  	
   

  	
  702001

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SE

  	
   

  	
  14

  	
   

  	
  21

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  351-503664 (TPO #10)

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  28

  	
   

  	
  42

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  1-J3XTQ

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  9

  	
   

  	
  13.5

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  700857

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  34

  	
   

  	
  51

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Stetson
  II

  	
   

  	
  J3XU5

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  17

  	
   

  	
  25.5

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Rollins

  	
   

  	
  351-702737

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  40

  	
   

  	
  60

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Wind Acq 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  142

  	
   

  	
  213

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  224,282,543

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Winds II

  	
   

  	
  TSA-6

  	
   

  	
  QP

  	
   

  	
  Clipper

  	
   

  	
  C96

  	
   

  	
  6

  	
   

  	
  15

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Sheffield

  	
   

  	
  Sheffield

  	
   

  	
  QP

  	
   

  	
  Clipper

  	
   

  	
  C96, C93

  	
   

  	
  16

  	
   

  	
  40

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Total Wind Acq IV

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  22

  	
   

  	
  55

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  43,063,720

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Less:

  	
   

  	
  Less:

  	
   

  	
  Equals

  	
   

  
	
  Appraised Value

  	
   

  	
  Contract
  Value

  	
   

  	
  “Value”

  	
   

  	
  Holdback

  Percentage

  	
   

  	
  Holdback

  Amount

  	
   

  	
  Adjusted
  Value

  	
   

  	
  Advance
  Rate

  	
   

  	
  “TMDC(T)”

  	
   

  	
  “TMDC(E)”

  	
   

  	
  “TMDC(T)”

  	
   

  	
  Contributed

  Equity

  	
   

  	
  Top
  Up

  Requireme

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  224,282,543

  	
   

  	
  224,282,543

  	
   

  	
  224,282,543

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  43,063,720

  	
   

  	
  43,063,720

  	
   

  	
  43,063,720

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


	
  Current Top Up Cap

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JNet Top Up Amount

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






 










 


Schedule 10


 


Post-Closing Deliverables


 


1.            Accounts.
On or before January 15, 2009, Holdings shall deliver (or cause to be
delivered) to the Collateral Agent written evidence that all accounts of
Holdings or its subsidiaries currently maintained at Bank of America
are either covered by one or more account control agreements in form and
substance reasonably satisfactory to the Collateral Agent or that such accounts have been closed and moved
to Citibank, N.A. (“Citibank”) and are covered by one or more account control
agreements in form and substance similar to the account control agreement(s) (in relation to
accounts of Holdings and certain of its subsidiaries) entered into by the Collateral
Agent, Holdings and Citibank on or before the Effective Date, or in such other form as the Collateral Agent may approve,
providing for the perfection of the Collateral Agent’s security interest in all
deposit accounts constituting part of the Collateral under, and subject to, the Amended
Documents.


 


2.            Mortgages. On
or before the applicable date set forth in the chart contained in Section 4
below, each Project
Company shall deliver (or cause to be delivered) to the Collateral Agent a fully executed
(except for the Collateral Agent) Mortgage in favor of the Collateral Agent (each
of which mortgage
shall be in form and substance suitable for recordation in the applicable jurisdiction),
and each such Mortgage shall be recorded, as follows:


 


(a)


 


(b)          with respect to each Project, one or more Mortgages shall
be recorded on (i) the site(s) on which Turbines will be erected on the earlier to occur
of (A) the date of erection of the Turbines thereon and (B) the date
specified in the below chart and (ii) the remaining real property rights
on or before the date for recording specified in the below chart; provided
further that, with respect to the property rights described only in the
foregoing clause (ii), none of Holdings or its affiliates shall be obligated to
make any payment to any such counterparty (other than covering legal fees,
filing fees and other transaction costs in the Borrower’s sole discretion) to
induce such counterparty to enter into such security arrangement.


 


3.             Title Insurance.
The Borrower shall deliver to the Agent a copy of any title reports with
respect to the interest of Holdings or any applicable Project Company in each
project site as soon as reasonably practicable after receipt of the same by the
Borrower or the applicable Project Company. On or before (a) December 31,
2008, in connection with the sites on which Turbines are in such types and amounts as may be reasonably
required giving due regard for the development stage of the Project and the
amount of the obligations secured thereby.


 


4.             Consents to
Assignment. On or before the date set forth in the chart in Section 4
below, each Project
Company shall deliver a fully executed (except for the Collateral Agent)
Consent (which Consent shall be in form and substance reasonably satisfactory
to the Collateral Agent in light of the types of Consents entered into for
projects of this type) for each Material Project Document to which such
Project Company is a party that is:


 

















 


(a)          a power
purchase, renewable energy credit sales or other revenue agreement,


(b)          an
interconnection agreement,


(c)          the Turbine
Supply Documents,


(d)          a balance of
plant construction agreement,


(e)          a substation
transformer purchase agreement, and


(f)          
a payment in lieu of taxes agreement;


 


provided, that (x) the time period set forth in the
below chart shall be extended for such additional period as may be reasonably necessary to
obtain the signature of the counterparty to such Consent so long as the Project
Company is using diligent and commercially reasonable efforts to
satisfy this requirement, (y) promptly (but in any event within ten (10) Business
Days) after receipt of comments from any such counterparty requesting
modifications to the Consent, the Collateral Agent shall respond with
counterproposals thereto and (z) notwithstanding any of the foregoing in
this Section 2, none of the Project Company nor any of its Affiliates
shall be obligated to make any payment to any such counterparty to induce such
counterparty to enter into such Consent.


 


5.             Chart of Time
Periods. The following is the chart containing the delivery dates for the
deliverables referenced in Sections 2 and 3 above. The deliverables are
required in connection with the Financing Agreement (as defined in the Omnibus
Agreement) stated in parentheses.


 


	
  Type
  of Basic Document, Project and Financing Agreement

  	
   

  	
  Delivery Date

  
	
  Execution
  and delivery of the Mortgage(s) for the Stetson II Project (FWA Note)

  	
   

  	
  12/31/08

  
	
  Execution
  and delivery of Mortgage(s) for the Rollins Project (FWA Note)

  	
   

  	
  12/31/08

  
	
  Execution
  and delivery of Mortgage(s) for the Oakfield Project (FWA Note)

  	
   

  	
  12/31/08

  
	
  Execution
  and delivery of Mortgage(s) for the Sheffield Project (WA IV)

  	
   

  	
  2/28/09

  
	
  Execution
  and delivery of Mortgage(s) for the Steel Winds II Project (WA IV)

  	
   

  	
  9/15/09

  
	
  Consents
  for Sheffield and Steel Winds II (WA IV)

  	
   

  	
  9/15/09

  
	
  Recordation
  of Mortgage(s) for Rollins, Oakfield, Stetson II, Sheffield, Steel Winds
  II (FWA Note)

  	
   

  	
  Prior to erection  of any Turbines at the applicable Project site, or upon an Event of Default at

  



 

















 


	
   

  	
   

  	
  Agent’s election

  
	
  Recordation
  of any other Mortgage(s) not previously recorded

  	
   

  	
  Upon an Event of Default at Agent’s election

  
	
  Mortgage
  for KWP II (FWA Note)

  	
   

  	
  No Mortgage will be given

  
	
  Consents
  for Rollins (FWA Note)

  	
   

  	
  N/A

  
	
  Consents
  for Stetson II (FWA Note)

  	
   

  	
  N/A

  
	
  Consents
  for Oakfield (FWA Note)

  	
   

  	
  N/A

  
	
  Consents
  for KWP II (FWA Note)

  	
   

  	
  N/A

  



 

















 


Schedule
11


 


Loan
Capacity


 


[Attached]


 

















 


Schedule 11 - Loan Capacity


 


	
  Project

  	
   

  	
  Contract

  	
   

  	
  Vendor

  	
   

  	
  WTG Type

  	
   

  	
  #

  WTGs

  	
   

  	
  MWs

  	
   

  	
  Maximum
  Loan

  Amount

  	
   

  
	
  KWP II

  	
   

  	
  702001

  	
   

  	
  GE

  	
   

  	
  1.5 SE

  	
   

  	
  14

  	
   

  	
  21

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  351-503664 (TPO #10)

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  28

  	
   

  	
  42

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  1-J3XTQ

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  9

  	
   

  	
  13.5

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  700857

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  34

  	
   

  	
  51

  	
   

  	
  *****

  	
   

  
	
  Stetson II

  	
   

  	
  J3XU5

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  17

  	
   

  	
  25.5

  	
   

  	
  *****

  	
   

  
	
  Rollins

  	
   

  	
  351-702737

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  40

  	
   

  	
  60

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Wind Acq I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  142

  	
   

  	
  213

  	
   

  	
  224,282,543

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Winds II

  	
   

  	
  TSA-6

  	
   

  	
  Clipper

  	
   

  	
  C96

  	
   

  	
  6

  	
   

  	
  15

  	
   

  	
  *****

  	
   

  
	
  Sheffield

  	
   

  	
  Sheffield

  	
   

  	
  Clipper

  	
   

  	
  C96, C93

  	
   

  	
  16

  	
   

  	
  40

  	
   

  	
  *****

  	
   

  
	
  Total Wind Acq IV

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  22

  	
   

  	
  55

  	
   

  	
  43,063,720