Exhibit 10.49


 


CONSENT
AND AMENDMENT NO. 3

TO

FOURTH AMENDMENT AND RESTATED SECURED PROMISSORY NOTE


 


This CONSENT AND AMENDMENT
NO. 3 TO FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”)
dated as of March 2,2010 is entered into by and between FIRST WIND
ACQUISITION, LLC, a Delaware limited liability company (“Borrower”) and
HSH NORDBANK AG, NEW YORK BRANCH, (“HSHN” and, in its capacities as
lender (the “Lender”), as collateral agent (the “Collateral Agent”)
and as the administrative agent (the “Administrative Agent”), as
applicable).


 


RECITALS


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Fourth Amended and Restated Secured Promissory Note dated as of July 17,
2009 (the “Note”);


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Amendment No. 1 to Fourth Amended and Restated Secured Promissory
Note dated as of November 30, 2009;


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender entered into that
certain Amendment No. 2 to Fourth Amended and Restated Secured Promissory
Note dated as of December 22, 2009;


 


WHEREAS, Borrower and the
Administrative Agent, the Collateral Agent and the Lender wish to further amend
the Note as set forth hereunder;


 


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


 


AGREEMENT


 


Section 1.  Definitions.  Capitalized terms
used and not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Note and the principles of interpretation set
forth in Section 1(b) thereof shall apply herein.


 


Section 2.  Amendments To
Note.


 


(a)        A new definition of “Designated Turbines” shall
be added in appropriate alphabetical order and shall read as follows:


 


“Designated
Turbines” shall mean up to three (3) Turbines assigned to the Oakfield
Project that are designated by the Borrower in writing.


 

















 


(b)        A new definition of “FWH Major Capital Raise”
shall be added in appropriate alphabetical order and shall read as follows:


 


“FWH
Major Capital Raise” shall mean the closing of the initial public offering
of the common shares of First Wind Holdings (or the resulting parent entity
pursuant to a reorganization entered into in connection with such initial
public offering) or one or more equity or debt (junior to the Lenders, as
applicable to the borrowing entity, on terms substantially similar to those set
forth in the Parent Guaranty) financings closing on or after March 2, 2010
resulting in Net Cash Proceeds of $200,000,000 or more in the aggregate for all
such offerings or financings described above; provided that all Net Cash
Proceeds of such equity or junior debt financing are (i) received by First
Wind Holdings, and (ii) 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.


 


(c)        A new definition of “Milford II Project” shall
be added in appropriate alphabetical order and shall read as follows:


 


“Milford II
Project” shall mean an approximately 100 MW wind project located in Beaver
and Millard Counties, Utah and owned by Milford Wind Corridor Phase II, LLC.


 


(d)        A new definition of “New TSA” shall be added in
appropriate alphabetical order and shall read as follows:


 


“New TSA”
shall mean any agreement that creates a binding obligation of First Wind
Holdings or any of its majority-owned subsidiaries to purchase turbines,
whether such binding obligation is created by the exercise of an option under a
turbine supply agreement in existence as of March 2, 2010 or by the entry
into a new turbine supply agreement after such date.


 


(e)        A new definition of “New TSA Obligation” shall
be added in appropriate alphabetical order and shall read as follows:


 


“New TSA
Obligation” shall mean, with respect to any New TSA, (a) the sum of
the amounts actually paid by First Wind Holdings or its majority-owned
subsidiaries under the terms of such New TSA, and the binding obligations of
the Borrower or First Wind Holdings under, or guarantees by the Borrower or
First Wind Holdings of, such New TSA for the early termination thereof less (b) the
original principal amount of Indebtedness incurred (or for which a binding
commitment has been obtained) related to the purchase of such turbines and
without any recourse to the Borrower or First Wind Holdings.


 


(f)         The definition of “Release Event” is hereby
deleted in its entirety and replaced with the following:


 

















 


“Release Event”
means the occurrence of all of the following: (i) the closing after March 2,
2010 of (A) one or more corporate letter of credit facility(ies) the
aggregate binding commitment of which is $30,000,000 or more and each of which
facility is available for drawings of letters of credit for the benefit of all
of First Wind Holdings and its Affiliates (it being understood, however, that
any letter of credit facility that is solely available for specific projects or
Affiliates does not qualify under this clause (A), but a corporate letter of
credit facility that contains an availability sub limit with respect to certain
projects or Affiliates would qualify under this clause (A)) or (B) a
Subject Disposition or one or more equity or debt (junior to the Lenders, as
applicable to the borrowing entity, on terms substantially similar to those set
forth in the Parent Guaranty) financings resulting in Net Cash Proceeds of (I) prior
to repayment of the Corresponding Term Loans with respect to the Oakfield
Project, $75,000,000 or more in the aggregate for all such transactions and (II) on
and after the repayment of the Corresponding Term Loans with respect to the
Oakfield Project, $30,000,000 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 under this
clause (B) are (x) received by First Wind Holdings (or the resulting
parent entity pursuant to a reorganization entered into in connection with such
initial public offering), 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 such that, after giving effect to such repayment, the
aggregate outstanding principal amount of Corresponding Term Loans for each
Turbine is equal to or less than the applicable maximum loan amount per
kilowatt of capacity of each Turbine that may be outstanding as of the
immediately preceding applicable date as set forth in the applicable column on Schedule
11 entitled “Release Event.” Upon the repayment described in the prior
sentence, the corresponding portion of the Term Loan Commitment shall be
terminated pursuant to Section 2.l(c)(ii).


 


(g)        A new definition of “Term Loan Fee” shall be
added in appropriate alphabetical order and shall read as follows:


 


“Term Loan Fee”
shall mean an amount equal to the fee calculation based on the amount of total
outstanding Loans as of each specified date on Schedule 12.


 


(h)        The definition of “Term Loan Maturity Date” is
hereby deleted in its entirety and replaced with the following:


 


“Term Loan
Maturity Date” shall mean June 30, 2011.


 


(i)         Section 2.2(a) is hereby deleted in
its entirety and replaced with the following:


 

















 


(a)              Fees.


 


(i)            Term Loan Commitment Fee. The Term Loan Commitment Fee shall be (x) 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 (y) calculated
on the basis of a year of 360 days for the actual number of days elapsed.


 


(ii)           Term Loan Fee. The Term Loan Fee shall be paid in arrears by the
Borrower to the Administrative Agent for the account of each Lender pro rata, on each specified date during the Term Loan
Availability Period in accordance with Schedule 12.


 


(j)         Section 2.5(a)(i) and (ii) are
hereby deleted in their entirety and replaced with the following:


 


(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, except that the North Shore Loan may only be prepaid in
full and not in part.


 


(k)        Section 2.5(b)(ii) is hereby deleted
in its entirety and replaced with the following:


 


Maximum
Loan Balance.  On or before each date specified in the first
column of Schedule 11, the Borrower shall prepay Loans in an amount such
that, after giving effect to such prepayment, the aggregate outstanding
principal amount of the Corresponding Term Loans for each Turbine is equal to
or less than the applicable loan amount per kilowatt of capacity of each
Turbine as set forth in the applicable column on Schedule 11.


 


(l)         Section 5(h) is hereby deleted in its
entirety and replaced with the following:


 


Turbine
Supply Document.
(i) The Borrower, First Wind Holdings or any of its majority-owned
subsidiaries shall not enter into any New TSA wherein the New TSA Obligations
actually incurred exceed $15,000,000 in the aggregate at any given time for all
New TSAs; provided, however, that (A) after the occurrence
of either the FWH Major Capital Raise or Release Event, for every $1,000,000 of
New TSA Obligations that the Borrower or First Wind Holdings irrevocably incurs
or commits to incur in excess of $15,000,000, the Borrower shall make a
prepayment of the principal amount of the Corresponding Term Loans in an amount
equal to $5.00 per kilowatt of capacity of each Turbine and Schedule 11
shall be amended at such time by the parties to reflect a permanent reduction
in the maximum loan balance for each Turbine in an amount equal to such
prepayment amount, and (B) irrespective of whether the FWH Major Capital
Raise or Release Event has occurred, the restrictions contained in this clause (i) shall
automatically and permanently terminate if the aggregate outstanding principal
amount of the Corresponding Term Loans for each Turbine is equal to or less
than $450.00 per kilowatt of capacity of each Turbine; (ii) the Borrower
shall not (and the Borrower shall cause each 


 

















 


Corresponding Project
Company not to), without the prior written consent of the Administrative Agent,
cancel or terminate, or accept or consent to a cancellation or termination of,
any Turbine Supply Document to which it is a party, or (iii) the Borrower
shall not (and the Borrower shall cause each Corresponding Project Company not
to), without the prior written consent of the Administrative Agent, 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.


 


(m)       Section 5(r) is hereby deleted in its
entirety and replaced with the following:


 


(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, 2010, 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.


 


(n)        Section 5(w) is hereby deleted in its
entirety and replaced with the following:


 


(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 obtainable on commercially reasonable terms. In respect of
any Turbine whose outstanding warranty term is less than 24 months from the
expected COD for such Turbine, the Borrower shall, within five (5) Business
Days after such outstanding warranty term falls below 24 months, prepay the
Corresponding Term Loans related to such Turbine in an amount such that, after
giving effect to such prepayment, the aggregate outstanding principal amount of
the Corresponding Term Loans for such Turbine is equal to or less than the
applicable loan amount per kilowatt of capacity of such Turbine that may be
outstanding as of the immediately preceding applicable date as set forth in the
applicable column on Schedule 11.


 

















 


(o)        Sections 5(aa) and 5(bb) are hereby deleted in
their entirety and each Project is hereby deemed to be a Qualified Project for
all purposes under the Note.


 


(p)        Section 5(dd) is hereby deleted in its
entirety and replaced with the following:


 


Turbine
Appraisal.
Prior to each Quarterly Date occurring after March 31,2010, 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 and more than two times over any
twelve (12) consecutive month period under this Section 5(dd). The
Administrative Agent shall deliver a copy of the appraisal to the Borrower no
fewer than five (5) Business Days before such Quarterly Date.


 


(q)        Section 12(k)(a) is hereby deleted in
its entirety and replaced with 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(1) or 5(x) of the this Note or otherwise,
provided that the Guaranty of and security interest in each Designated
Turbine shall be terminated and released upon repayment in full of the
Corresponding Term Loan for such Designated Turbine;


 


(r)         Schedule 11 is hereby deleted in its entirety
and replaced with the schedule attached hereto as Exhibit A.


 


(s)        Exhibit B hereto shall be added as new Schedule 12 to the Note.


 


Section 3.  Consent.  The Administrative
Agent and Lenders hereby consent to the amendment of that certain Milford II
Turbine Supply Agreement the terms of which shall be similar in all material
respects with the terms set forth on Exhibit C attached hereto,
which is entered into in connection with the transfer of the Turbines allocated
to the Oakfield Project to the Milford II Project in accordance with Section 5(x) of
the Note.


 


Section 4.  Fees.  Notwithstanding
anything to the contrary contained in the fee letter between the parties dated December 12,
2008 and the fee letter between the parties dated July 17, 2009,
(collectively, the “Fee Letters”), each party acknowledges and agrees
hereunder that all fees pursuant to the Fee Letters that have not yet been paid
shall be due and payable by the Borrower on or before June 30, 2010.


 


Section 5.  Legal Effect.  This Amendment
shall become effective upon satisfaction, or waiver by HSHN, of each of the
following conditions:


 


(a)        Receipt by HSHN of a copy of all turbine supply
agreements entered into by First Wind Acquisition V, LLC and any and all other
turbine supply agreements in connection with which First Wind Holdings has any
actual or contingent payment or guarantee commitments; and


 

















 


(b)        Execution and delivery of this Amendment.


 


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


 


Section 6.   Miscellaneous.


 


(a)        Reference to and Effect on Note and Other Basic
Documents.
Except as expressly set forth herein, the Note and the other Basic Documents as
specifically amended by this Amendment shall remain unchanged and in full force
and effect and are hereby ratified and confirmed. The Borrower acknowledges
that neither this Amendment nor any extension of the Maturity Date constitute
any commitment to provide any additional loans or other extensions of credit,
any future waiver or forbearance, or any additional extensions of time for the
repayment of any debt. In consideration for the commitments and extensions of
credit contained in the Note as amended by this Amendment, the Borrower agrees
and covenants that it will not claim that any current or prior action or course
of conduct by the Lender, the Administrative Agent or the Collateral Agent with
respect to any failure of the Borrower to repay its Loans or other obligations
by the Maturity Date (without giving effect to this Amendment), or any related
Event of Default which has occurred or may hereafter occur, constitutes an
agreement or obligation to continue such action or course of conduct in the
future. The Borrower acknowledges that the Lender, the Administrative Agent and
the Collateral Agent have not made any commitments, undertakings. waivers or
amendments in respect of the Basic Documents except as expressly set forth in
this Amendment.


 


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


 


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


 


NO CLAIM SHALL BE MADE BY
ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR
AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS,
EMPLOYEES, 


 

















 


ATTORNEYS OR AGENTS FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE
CLAIM THEREFOR IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN
CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT OR ANY ACT OR OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO
SUE UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED
TO EXIST IN ITS FAVOR.


 


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


 


[Remainder of page intentionally
left blank.]


 






 










 


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


 


	
   

  	
  FIRST WIND 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

  



 

















 


	
  HSH NORDBANK AG, NEW YORK
  BRANCH, 

  as a Lender, Collateral Agent and Administrative Agent 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ David Watson

  	
   

  
	
   

  	
  Name:

  	
  David Watson

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  HSH Nordbank AG,

  New York Branch

  	
   

  



 


 


	
  By:

  	
  /s/ Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  HSH Nordbank AG,

  New York 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) 407-6152

  	
   

  
	
  Facsimile:

  	
  (212) 407-6811

  	
   

  
					



 

















 


Exhibit A


 


Schedule 11


 


Maximum Outstanding Loan per kw


 


	
   

  	
   

  	
  No Release Event

  or FWH Major Capital Raise

  	
   

  	
  Release Event

  No FWH Major Capital

  Raise

  	
   

  	
  FWH Major Capital Raise

  with or

  without Release Event

  	
   

  
	
  in $/kw

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  
	
  As of [closing]

  	
   

  	
  $

  	
  1,100

  	
   

  	
  $

  	
  950

  	
   

  	
  $

  	
  1,038

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  750

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,050

  	
   

  	
  $

  	
  925

  	
   

  	
  $

  	
  1,038

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  625

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  750

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,025

  	
   

  	
  $

  	
  900

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  0

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,025

  	
   

  	
  $

  	
  900

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  675

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  0

  	
   

  
	
  January 15, 2011

  	
   

  	
  $

  	
  975

  	
   

  	
  $

  	
  875

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  300

  	
   

  	
  $

  	
  0

  	
   

  
	
  April 15, 2011

  	
   

  	
  $

  	
  850

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  0

  	
   

  
	
  May 15, 2011

  	
   

  	
  $

  	
  567

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  333

  	
   

  	
  $

  	
  267

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  233

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 15, 2011

  	
   

  	
  $

  	
  283

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  133

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  117

  	
   

  	
  $

  	
  83

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 30, 2001

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  



 


Maximum Outstanding Loan per kw for lack of full 24 month 

warranty coverage


 


	
   

  	
   

  	
  No Release Event

  or FWH Major Capital Raise

  	
   

  	
  Release Event

  No FWH Major Capital

  Raise

  	
   

  	
  FWH Major Capital Raise

  with or

  without Release Event

  	
   

  
	
  in $/kw

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  	
  Rollins

  	
   

  	
  KWPII

  	
   

  	
  Oakfield

  	
   

  
	
  As of [closing]

  	
   

  	
  $

  	
  1,100

  	
   

  	
  $

  	
  950

  	
   

  	
  $

  	
  1,038

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  750

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,050

  	
   

  	
  $

  	
  925

  	
   

  	
  $

  	
  1,038

  	
   

  	
  $

  	
  700

  	
   

  	
  $

  	
  625

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  550

  	
   

  	
  $

  	
  450

  	
   

  	
  $

  	
  750

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  875

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  575

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  475

  	
   

  	
  $

  	
  375

  	
   

  	
  $

  	
  0

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  875

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  575

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  425

  	
   

  	
  $

  	
  325

  	
   

  	
  $

  	
  0

  	
   

  
	
  January 15, 2011

  	
   

  	
  $

  	
  975

  	
   

  	
  $

  	
  825

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  600

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  350

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  0

  	
   

  
	
  April 15, 2011

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  650

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  300

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  150

  	
   

  	
  $

  	
  0

  	
   

  
	
  May 15, 2011

  	
   

  	
  $

  	
  467

  	
   

  	
  $

  	
  400

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  233

  	
   

  	
  $

  	
  167

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  133

  	
   

  	
  $

  	
  67

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 15, 2011

  	
   

  	
  $

  	
  183

  	
   

  	
  $

  	
  150

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  67

  	
   

  	
  $

  	
  33

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  17

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
  June 30, 2001

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  



 

















 


Exhibit B


 


Schedule 12


 


	
  Date

  	
   

  	
  Term Loan Fee

  
	
   

  	
   

  	
   

  
	
  March 2, 2010

  	
   

  	
  1.00% of outstanding balance of Term Loans *

  
	
  March 31, 2010

  	
   

  	
  0.00% of outstanding balance of Term Loans *

  
	
  June 30, 2010

  	
   

  	
  0.25% of outstanding balance of Term Loans *

  
	
  September 30, 2010

  	
   

  	
  0.50% of outstanding balance of Term Loans *

  
	
  December 31, 2010

  	
   

  	
  0.75% of outstanding balance of Term Loans *

  
	
  March 31, 2011

  	
   

  	
  1.00% of outstanding balance of Term Loans *

  



 






*   For purposes of calculating the Term Loan Fee, the amounts in
respect of the North Shore Loan and Corresponding Term Loans for the Oakfield
Project shall not be included in the calculation of Term Loans.


 

















 


Exhibit C


 


Amendment