Exhibit 10.14


 


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.


 


SECOND
AMENDED AND RESTATED GUARANTY


 


SECOND AMENDED AND RESTATED GUARANTY, dated as of July 17,
2009 (as amended, modified or supplemented from time to time, this “Guaranty”),
made by FIRST WIND HOLDINGS, LLC (formerly known as UPC Wind Partners, LLC), a
Delaware limited liability company (the “Guarantor”).


 


This Guaranty amends and restates in its entirety the Amended and
Restated Guaranty dated as of December 12, 2008 made by the Guarantor in
favor of the Lender.


 


WITNESSETH:


 


WHEREAS, reference is hereby made
to that certain Fourth Amended and Restated Secured Promissory Note, of even
date herewith (as amended, supplemented, amended and restated or otherwise
modified from time to time, the “FWA Promissory Note”), by and between
First Wind Acquisition, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of the Guarantor (“FWA”) and HSH Nordbank AG,
New York Branch (“HSHN” or the “Lender”);


 


WHEREAS, reference is hereby made
to that certain Second Amended and Restated Secured Promissory Note, of even
date herewith (as amended, supplemented, amended and restated or otherwise
modified from time to time, the “FWA4 Promissory Note”), by and between
First Wind Acquisition IV, LLC a Delaware limited liability company and a
wholly-owned subsidiary of the Guarantor (“FWA4”) and HSHN;


 


WHEREAS, the Guarantor is the
direct parent of FWA and FWA4;


 


WHEREAS, it is a condition
precedent to the effectiveness of the FW Credit Facilities that the Guarantor
has executed and delivered this Guaranty; and


 


WHEREAS, the Guarantor will
directly and indirectly benefit from the consummation of the transactions
contemplated by the FW Credit Facilities and, accordingly, desires to execute
this Guaranty in order to satisfy the condition precedent set forth in the FW
Credit Facilities.


 


NOW, THEREFORE, in consideration of the
foregoing and other benefits accruing to the Guarantor, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby makes the
following representations and warranties to the Lender and hereby covenants and
agrees with the Lender as follows:


 


1.             Definitions.
Each capitalized term used and not otherwise defined herein shall have the
meaning assigned to such term (whether directly or by reference to another
agreement or document) in the FWA4 Promissory Note as in effect on the date
hereof (or as modified with the consent of the Secured Parties), and if not
defined therein, the UCC (as defined below). The Rules of Interpretation
set forth in the FWA4 Promissory Note, as applicable, are hereby incorporated
by reference as if fully set forth herein. In addition to the


 


1

















 


terms
defined in the FWA4 Promissory Note, the preamble and the recitals, the
following terms shall have the following respective meanings:


 


“Administrative Agent” shall have the meaning set forth in the
applicable FW Credit Facility.


 


“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 partnership or other ownership interests, by
contract or otherwise); provided, however, 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 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.


 


“AIMCO Credit Agreement” shall mean the Credit Agreement, dated
as of the date hereof, among CSSW, LLC, CSSW Holdings, LLC, the lenders from
time to time party thereto, and Wells Fargo, N.A., as administrative agent and
collateral agent.


 


“AIMCO Intercreditor Agreement” shall mean the Intercreditor
Agreement, dated as of the date hereof, among Wells Fargo, N.A. and HSHN.


 


“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 Recordkeeping 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.


 


“Basic Document” shall mean this Guaranty, the Holdings Loan
Agreement, the Security Agreements, the Consents, each Interest Rate Protection
Agreement, each Basic Document as defined under the corresponding FW Credit
Facility, and any other documents, agreements, or instruments entered into by
the Guarantor and the Obligors with the Lender or any Swap Counterparty in
connection with any of the foregoing.


 


“Borrower,” and collectively, “Borrowers” shall mean, as
applicable, FWA and FWA4; provided, however, that after the
occurrence of the Release Event, “Borrower” and “Borrowers” shall
mean only FWA4.


 


“Budget Termination Event” shall mean the occurrence of all of
the following: (a) (i) the Release Event or (ii) pursuant to request
by the Borrower, written confirmation from the Administrative Agent that the
aggregate outstanding amount of Loans under the FWA


 


2

















 


Promissory
Note and the FWA4 Promissory 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 (i) the Sponsors taken together cease 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
Guarantor or (ii) the Sponsors taken together cease to own legally and
beneficially at least 50% of the membership or economic interests of the
Guarantor.


 


“Cohocton Mini-Perm Financing Agreement” shall mean the
Financing Agreement, dated as of March 30, 2009, among New York Wind, LLC
and HSHN, as arranger, administrative agent and security agent, Norddeutsche
Landesbank Girozentrale, as arranger, and the lenders parties thereto.


 


“Cohocton Project” shall mean the wind generating facilities
with a nameplate capacity of approximately 125 megawatts located in the Town of
Cohocton, New York.


 


“Collateral” shall mean all assets which are subject or required
to become subject to the security interests or liens granted by the Guarantor
and the other Obligors, and such other entities as set forth in Schedule 2,
as applicable, under any of the Security Agreements.


 


“Collateral Agent” shall have the meaning set forth in the
applicable FW Credit Facility.


 


“Commodity Hedge Agreements” shall mean the Existing Commodity
Hedge Agreements and any other hedging agreement entered into from time to time
by any Project Company.


 


“Consents” shall mean any consent reasonably requested from time
to time by the Collateral Agent with respect to any Material Project Document
in a form and substance reasonably satisfactory to the Collateral Agent.


 


“Corresponding Term Loan” shall have the meaning set forth in
the applicable FW Credit Facility.


 


“D. E. Shaw Sponsor” shall mean D. E. Shaw MWP Acquisition
Holdings, L.L.C., a Delaware limited liability company.


 


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


 


“Demand” shall have the meaning set forth in Section 6(b) hereof.


 


3

















 


“Development Budget” shall mean the detailed budget for the
Guarantor and its subsidiaries that includes, among other things, all sources
and uses for the funds and expenditures necessary for the development of the
Eligible Qualified Projects and other required or permitted expenditures for
the Guarantor and its subsidiaries through December 31, 2010, which is
attached as Schedule 4 to this Guaranty, as may be amended pursuant to a
proposal by the Guarantor and approval by the Administrative Agent hereunder
(which approval shall be in the Administrative Agent’s sole discretion).


 


“Earmarked Expenditures” shall mean the specific expenditures
(each as to specific amount, purpose and timing) identified in the Development
Budget.


 


“Effective Date” shall mean the date hereof.


 


“Eligible Qualified Projects” shall mean the projects listed on Schedule
4 to the FWA Promissory Note and Schedule 4 to the FWA4 Promissory
Note; provided that, after the Release Event, “Eligible
Qualified Projects” shall include only the projects listed on Schedule 4
to the FWA4 Promissory Note.


 


“Eligible Qualified Project Company” shall mean a Project
Company which develops an Eligible Qualified Project; provided, that a
Project Company shall no longer be an Eligible Qualified Project Company upon
the indefeasible repayment in full of all Corresponding Term Loans, as defined
in the applicable FW Credit Facility (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 Eligible Qualified Project and the release
of such Eligible Qualified Project Company, such Eligible Qualified Project and
such Turbines from the lien of the Security Agreements in accordance with their
terms.


 


“Event of Default” shall (i) have the meaning assigned to
it in Section 6(a) hereof or (ii) have the meaning
assigned to it in the FW Credit Facilities.


 


“Excess Cash” shall mean, for any month, for any operating wind
power generating facility owned directly or indirectly by the Guarantor, an
amount equal to the cash operating profits and all other net cash amounts
received by any Obligor in respect of each such operating wind power generating
facility during such monthly period less an amount for a working capital
reserve equal to the aggregate budgeted operating expenditures for each such
facility for the next succeeding three (3) months.


 


“Existing Commodity Hedge Agreements” shall mean, collectively or
individually, depending on the context, (i) the Master Agreement, dated as
of August 21, 2007, between New York Wind, LLC and Credit Suisse Energy
LLC, and all associated Schedules, Annexes and Confirmations thereto, as
amended by that certain First Amendment to ISDA Master Agreement dated as of August 20,
2008 and that certain Second Amendment to ISDA Master Agreement dated as of December 11,
2008, as amended by that certain Third Amendment to ISDA Master Agreement dated
as of March 27, 2009, (ii) the Commodity Swap Confirmation, dated as
of September 20, 2006, between Niagara Wind Power, LLC and Morgan Stanley
Capital Group, Inc., and all associated Schedules, Annexes and Confirmations
thereto, and (iii)


 


4

















 


the
ISDA Master Agreement, dated as of June 11, 2008, between Stetson
Holdings, LLC and Constellation Energy Commodities Group, Inc., and all
associated Schedules, Annexes and Confirmations thereto.


 


“FERC” shall mean the Federal Energy Regulatory Commission.


 


“First Wind Holdings Pledge Agreement” shall mean the Amended
and Restated Pledge and Security Agreement, dated as of December 12, 2008,
by and between the Guarantor and HSHN, as amended by the Global Amendment to
Guaranty and Security Agreements, Guaranty and Pledge Agreements, Pledge
Agreements and Pledge and Security Agreement, dated as of February 26,
2009, and the Second Global Amendment to Guaranty and Security Agreements,
Guaranty and Pledge Agreements, Pledge Agreements, and Pledge and Security
Agreement, dated as of the date hereof, and as further amended from time to
time.


 


“FW Credit Facility” and collectively, “FW
Credit Facilities” shall mean, as applicable, the FWA Promissory Note and
the FWA4 Promissory Note; provided, however, that after the
occurrence of the Release Event, “FW Credit Facility” and “FW Credit
Facilities” shall mean only the FWA4 Promissory Note.


 


“FWA” shall have the meaning set forth in the recitals hereto.


 


“FWA Guaranteed Obligations” shall mean any and all obligations,
indebtedness, liabilities, and other obligations of FWA (including, but not
limited to, all such obligations in respect of principal, interest (including
post-petition interest), fees, indemnities, costs and other expenses, whether
due after acceleration or otherwise and whether incurred before or after the
bankruptcy of FWA), of whatever nature and however evidenced, owed to the
Secured Parties under or pursuant to the FWA Promissory Note, the Commodity
Hedge Agreements and/or each other Basic Document, in each case, direct or
indirect, primary or secondary, fixed or contingent, now or hereafter arising
out of or relating to any such document.


 


“FWA Promissory Note” shall have the meaning set forth in the
recitals hereto.


 


“FWA4” shall have the meaning set forth in the recitals hereto.


 


“FWA4 Guaranteed Obligations” shall mean any and all
obligations, indebtedness, liabilities, and other obligations of FWA4
(including, but not limited to, all such obligations in respect of principal,
interest (including post-petition interest), fees, indemnities, costs and other
expenses, whether due after acceleration or otherwise and whether incurred
before or after the bankruptcy of FWA4), of whatever nature and however
evidenced, owed to the Secured Parties under or pursuant to the FWA4 Promissory
Note, the Commodity Hedge Agreements and/or each other Basic Document, in each
case, direct or indirect, primary or secondary, fixed or contingent, now or
hereafter arising out of or relating to any such document.


 


“FWA4 Promissory Note” shall have the meaning set forth in the
recitals hereto.


 


“FWA5 Turbine Supply Agreements” shall mean those certain
Turbine Supply


 


5

















 


Agreements,
dated as of December 31, 2007, by and between UPC Wind Acquisition V, LLC
and Clipper Turbine Works, Inc.


 


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


 


“Government” shall mean the United States of America and its
departments and agencies.


 


“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 Guarantor or its subsidiaries.


 


“Guaranteed Obligations” shall mean, in the aggregate, the FWA
Guaranteed Obligations and the FWA4 Guaranteed Obligations; provided, however,
that immediately upon the occurrence of the Release Event, the Guarantor’s
guarantee of the FWA Guaranteed Obligations shall terminate and this Guaranty
shall no longer be enforceable against the Guarantor with respect to the FWA
Guaranteed Obligations.


 


“Guarantor” shall have the meaning set forth in the preamble
hereto.


 


“Guaranty” shall have the meaning set forth in the preamble
hereto.


 


“Holdings Loan Agreement” shall mean that certain Letter of
Credit and Reimbursement Agreement, dated as of the date hereof, by and between
the Guarantor and HSHN.


 


“HSHN” shall have the meaning set forth in the recitals hereto.


 


“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 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


 


6

















 


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.


 


“Indemnified Party” has the meaning assigned to such term in Section 12(a).


 


“Independent Engineer” shall have the meaning set forth in the
applicable FW Credit Facility.


 


“Intercreditor Agreement” shall mean that certain Intercreditor
Agreement, dated of October 17, 2007, as amended from time to time,
between HSHN, the D. E. Shaw Sponsor and Madison Dearborn Sponsor.


 


“Interest Rate Protection Agreement” shall mean, collectively or
individually, depending on the context, any ISDA Master Agreement between Borrower
and each Swap Counterparty and all associated Schedules, Annexes and
Confirmations thereto, and any other interest rate swap, cap, collar or floor
agreement or foreign exchange agreement or similar arrangement between the
Borrower and any Swap Counterparty providing for the transfer or mitigation of
interest risks either generally or under specific contingencies and in form and
substance reasonably satisfactory to the Collateral Agent.


 


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


 


“Investment” shall mean (a) the acquisition (whether for
cash, property, services, securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other person or any agreement to make any such acquisition (including
any “short sale” or any sale of any securities at a time when such securities
are not owned by the person entering into such short sale); (b) the making
of any deposit with, or advance, loan or other extension of credit to, any
other person (including the purchase of property from another person subject to
an understanding or agreement, contingent or otherwise, to resell such property
to such person, but excluding any such advance, loan or extension of credit
having a term not exceeding 90 days representing the purchase price of services
or goods sold by such person in the ordinary course of business); (c) the
entering into of any guarantee of, or other contingent obligation with respect
to, indebtedness or other liability of any other person and (without
duplication) any amount committed to be advanced, lent or extended to such
person or (d) the entering into of any Commodity Hedge Agreement.


 


“Kahuku Project” shall mean an approximately 30 MW wind project
located on the North Shore of Oahu, Hawaii, owned by Kahuku Wind Power, LLC.


 


“Lender” shall have the meaning set forth in the recitals
hereto.


 


“Liquidity Forecast” shall have the meaning set forth in Section 3(e) hereof.


 


7

















 


“Loans” shall have the meaning set forth in the applicable FW
Credit Facility.


 


“Longfellow Project” shall mean an approximately 40 MW wind
project located in Rumford, Maine owned by Longfellow Wind, LLC.


 


“Madison Dearborn Sponsor” shall mean Madison Dearborn Capital
Partners IV, L.P., a Delaware limited partnership.


 


“Mars Hill Project” shall mean the wind
generating facility with a nameplate capacity of 42 MW wind project located in
Mars Hill, Maine.


 


“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 Guarantor, the Borrowers or their respective subsidiaries that are
parties to Security Agreements, taken as a whole, (b) the ability of the
Guarantor, each Borrower and each subsidiary thereof that is party to a
Security Agreement to perform its obligations under the Basic Documents to
which such entity is a party, or (c) the validity, priority or
enforceability of the liens on the Collateral granted pursuant to the Security
Agreements.


 


“Material Project Documents” shall mean each of the following
project documents executed and delivered with respect to an Eligible Qualified
Project: (a) any Commodity Hedge Agreement, (b) an interconnection
agreement, (c) all necessary real estate documents for the Eligible
Qualified Project, (d) the Turbine Supply Documents (including the Turbine
Supply Documents assigned and transferred to any Eligible Qualified Project, (e) a
warranty agreement, (f) a service agreement, (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 Eligible Qualified Project,
including any power purchase agreements, balance of plant contracts or equity
capital contribution agreements, but excluding any documents executed and
delivered in connection with the financing of an Eligible Qualified Project as
set forth in the definition of “Permitted Indebtedness” herein.


 


“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.


 


“Minimum Members’ Equity” shall mean, for purposes of Section 3
and clause (j) in the definition of “Permitted Indebtedness” hereunder, as
of the date of measurement, the aggregate amount of cash contributed to the
Guarantor by its members as equity contributions since April 28, 2006, minus the aggregate amount of all
Restricted Payments issued by Guarantor to the members since April 28,
2006; provided, however, that any capital contributions made to
the Guarantor by PIP3PX FirstWind LLC Ltd. and PIP3GV FirstWind LLC Ltd. shall
be excluded from such calculations hereunder.


 


“Net Cash Proceeds” shall mean (a) with respect to any
Subject Disposition, the aggregate cash proceeds actually received by the
Guarantor and its subsidiaries pursuant to such


 


8

















 


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 the Guarantor 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 under
the FWA Promissory Note and FWA4 Promissory Note, as applicable, 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 the Guarantor 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 the Guarantor and its subsidiaries
pursuant to such debt or equity financing, net of (i) the costs relating
to such financing (including sales and underwriter’s commission), (ii) the
repayment of Corresponding Term Loans under the FWA Promissory Note and the
FWA4 Promissory Note (as defined therein), as applicable, including accrued
interest and fees thereon, (iii) the repayment of all obligations under
the Cohocton Mini-Perm Financing Agreement or the Stetson I Project Financing
Agreement, as applicable, including accrued interest and fees thereon, (iv) the
repayment of Term Loans under the AIMCO Credit Agreement, as defined and to the
extent required thereunder, and (v) 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.


 


“Obligor” shall mean (a) prior to the occurrence of the
Release Event, the Guarantor, the Borrowers and each subsidiary thereof that is
party to a Security Agreement, and (b) on and after the occurrence of the
Release Event, the Guarantor, FWA4 and each Eligible Qualified Project Company
that is party to a Security Agreement.


 


“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.


 


9














 


“OFAC Violation” has the meaning assigned to such term in Section 3(s)(v) of
this Guaranty.


 


“Original Effective Date” shall mean December 12, 2008.


 


“Outstanding HSH Loans” shall mean the FW Credit Facilities and
all other Indebtedness extended by HSHN to the Borrowers or any Affiliates of
the Borrowers to the extent that HSHN is a lead arranger or an administrative
agent with respect thereto and any guarantee of the foregoing.


 


“Permitted Indebtedness” shall mean (a) the Indebtedness
under the Basic Documents; (b) Outstanding HSH Loans and other
Indebtedness permitted under the terms of the Outstanding HSH Loans; (c) “Permitted
Indebtedness” (as defined in any FW Credit Facility) and the financing of any
Eligible Qualified Project under a FW Credit Facility for which the
Corresponding Term Loans (as defined in such FW Credit Facility) have been
repaid in full and all excess proceeds of such financing, if any, are
distributed to the Guarantor and deposited in accounts subject to the lien of
the Security Agreements; (d) the guarantees and the loans entered into
prior to the Effective Date as listed on Schedule 5, each of which is
subordinated in all respects to the Guaranteed Obligations; (e) any
refinancings, replacements, refundings, renewals or extensions of the
Indebtedness described in clauses (a) through (d) above and this
clause (e); provided, that the amount of such Indebtedness is not
increased at the time of such refinancing, replacement, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder; (f) trade payables or other similar Indebtedness incurred in
the ordinary course of business if paid when due (taking into account any grace
periods) and in any event within 90 days after the date of the relevant
invoice; (g) intercompany loans between any Project Company or
wholly-owned (direct or indirect) subsidiary of the Guarantor and the
Guarantor, between the Guarantor and FWA or FWA4, or between wholly-owned
(direct or indirect) subsidiaries of the Guarantor; provided, in each
case that such loans are unsecured and are subordinated in all respects to the
Outstanding HSH Loans pursuant to an intercreditor agreement that is similar in
form and in substance to the Intercreditor Agreement; (h) a guarantee by
the Guarantor for certain limited indemnification obligations in connection
with the Agreement for Purchase of Membership Interests, dated as of January 31,
2008, among UPC New York Wind 2, LLC (n/k/a New York Wind II, LLC), UPC New
York Wind 3, LLC (n/k/a New York Wind III, LLC) and Lehman First Wind Holdings
LLC (as successor in interest to Lehman Brothers Holdings Inc., a Delaware
corporation) in an amount not exceeding $20,000,000; and (i) (x) Indebtedness
in respect of capital lease obligations and purchase money obligations and
renewals, refinancings and extensions thereof, for fixed or capital assets and (y) customary
indemnities in connection with sales by the Guarantor and its Subsidiaries
otherwise permitted hereunder, provided that the aggregate amount of all
such Indebtedness in clauses i(x)-(y) herein at any one time outstanding shall
not exceed $25,000,000 and shall at all times be subordinated to the Guaranteed
Obligations on terms reasonably satisfactory to the Administrative Agent; (j) Indebtedness
of the Guarantor in an aggregate amount not to exceed at any time the positive
difference between Minimum Members’ Equity and $600,000,000;


 


10

















 


provided, that all such
Indebtedness shall at all times be subordinated to the Guaranteed Obligations
on terms reasonably satisfactory to the Administrative Agent; (k) Indebtedness
incurred under the AIMCO Credit Agreement, including without limitation the
Undertaking Agreement, dated as of the date hereof, entered into by the
Guarantor and Wells Fargo, N.A.; and (l) Indebtedness incurred with
respect to the transfer of certain letters of credit for the Mars Hill Project
and the Steel Winds Project to the related Project Companies or other
Affiliates in accordance with the terms of the Holdings Loan Agreement,
including without limitation any guarantee by the Guarantor of such letters of
credit.


 


“Permitted Investments” shall mean (i) Government
Investments, (ii) time deposits or certificates of deposit issued by HSHN
(or where the certificates are collateral secured by securities of the type
described in item (i) of this definition and held by a third party as
escrow agent or custodian, of a market value of not less than the amount of the
certificates of deposit so secured, including interest, but this collateral is
not required to the extent the certificates of deposit are insured by an agency
of the Government); (iii) repurchase agreements when collateralized by
securities of the type described in item (i) of this definition and held
by a third party as escrow agent or custodian, of a market value not less than
the amount of the repurchase agreement so collateralized, including interest;
money market funds that invest solely in obligations of the United States (iv) its
agencies and instrumentalities, and having a rating by Standard &
Poor’s Rating Services, of AAAm-G or AAA-m or if rated by Moody’s Investor’s
Service having a rating of Aaa; (v) collateralized investment agreement or
other contractual agreements with corporations, financial institutions or
national associations within the United States, provided that the senior
long-term debt of such corporations, institutions or associations is rated AAA
by Standard & Poor’s Corporation or Aaa by Moody’s Investor’s Service;
(vi) Interest Rate Protection Agreements; (vii) the Existing
Commodity Hedge Agreements; (viii) investments allowed under Section 3(z);
(ix) other Investments permitted under the terms of the Loans; (x) accounts
controlled by an account control agreement in a form and substance approved by
the Administrative Agent and subject to the lien of the Security Agreements;
(xi) Investments by the Guarantor and its subsidiaries in direct or indirect
wholly-owned subsidiaries of the Guarantor; and (xii) capital contributions or
acquisitions of membership interests by the Guarantor or any subsidiary of the
Guarantor in entities in existence as of the Effective Date that are not direct
or indirect wholly-owned subsidiaries of the Guarantor to the extent permitted
in the Development Budget.


 


“Permitted Liens” shall mean (a) any liens created pursuant
to the Basic Documents, the Material Project Documents or as required under any
FW Credit Facility; (b) liens imposed by law for taxes that are not yet
due or that are being contested in good faith by the Guarantor 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 have a Material Adverse Effect or that are being contested
in good faith by the Guarantor 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


 


11

















 


(including
letters of credit) 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 Guarantor
or its subsidiaries 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 the Guarantor’s business such that it
would have a Material Adverse Effect; (h) any liens, easements, zoning
restrictions, rights-of-way or similar encumbrances on real property comprising
the route for the transmission line for any Eligible Qualified 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 Guarantor’s business, in either case (i) or (ii), such that
it would have a Material Adverse Effect; (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 that would not
have a Material Adverse Effect; (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 securing
Outstanding HSH Loans granted to HSHN, acting in its capacity as collateral
agent or lender with respect thereto, or otherwise permitted under the terms of
the Outstanding HSH Loans; (l) liens on the assets of the Guarantor
securing Indebtedness set forth in clause (f) under Permitted
Indebtedness; (m) pledges or security agreements entered into prior to the
Effective Date; (n) as required in connection with a financing of any
Eligible Qualified Project under a FW Credit Facility for which the
Corresponding Term Loans (as defined in the applicable FW Credit Facility) have
been repaid in full; (o) as required in connection with any other
permitted financing of a project owned by the Guarantor or any subsidiary of
the Guarantor if the Net Cash Proceeds of such financing are distributed to
Guarantor and deposited in accounts subject to the lien of the Security
Agreements and applied in accordance with Section 3(d), as
applicable; (p) liens securing Collateral as defined under the AIMCO
Intercreditor Agreement; or (q) liens securing any reimbursement
obligations with respect to letters of credit for the Mars Hill Project and the
Steel Winds Project in accordance with the terms of the Holdings Loan
Agreement.


 


“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 the issued and
outstanding membership interests described in the Pledge Agreements set forth
on Schedule 2.


 


“Project” shall have the meaning set forth in the applicable FW
Credit Facility.


 


“Project Company” shall mean collectively or individually,
depending on the context, the single-purpose companies listed on Schedule 1
hereto, formed and owned, directly


 


12

















 


or
indirectly, by Guarantor for the development, financing, construction,
acquisition, ownership, operation and/or maintenance of an Eligible Qualified
Project; provided that, after the
occurrence of the Release Event, “Project Company” shall only include the
Project Companies as defined in the FWA4 Promissory Note.


 


“Prudent Utility Practice” 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.


 


“PTCs” means federal tax credits, federal tax attributes, and
other federal tax benefits under Section 45 of the Code arising from the
ownership and operation of a Project.


 


“PUHCA” shall mean the Public Utility Holding Company Act of
2005 and all rules and regulations adopted thereunder.


 


“Release Event” shall have the meaning set forth in the
applicable FW Credit Facility.


 


“Restricted Payment” shall mean any of the following:


 


(a)           (i) any dividend or distribution (in cash,
property or obligations) on, or any other payment or distribution on account
of, or any payment for, or any purchase, redemption, retirement or other
acquisition, directly or indirectly of, any ownership interests in the
Guarantor (except (A) any such dividend or distribution in respect of
taxes owed in respect to tax distributions not to exceed $2,000,000 in the
aggregate and (B) any UPC Wind Partners II Redemption Payment); (ii) any
option or warrant for the purchase or acquisition of any such ownership
interests or (iii) the setting apart of any money for a sinking or other
analogous fund for any of the foregoing; and


 


(b)           (i) any payment (in cash, property or
obligations) with respect to principal or interest on, or any other payment or
distribution on account of, or any payment for, the purchase, redemption,
retirement or other acquisition of, any subordinated debt, except for payments
of current interest as may be permitted in connection with subordinated debt
with a third party permitted under this Agreement pursuant to the applicable
intercreditor or subordination agreement approved by the Administrative Agent;
or (ii) the setting apart of any money for a sinking or other analogous
fund for any of the foregoing.


 


“Secured Parties” shall mean the Collateral Agent, the
Administrative Agent and


 


13

















 


the
Lender, each as defined under the applicable FW Credit Facilities.


 


“Security Agreements” shall mean the security agreements
executed from time to time as set forth on Schedule 2, as each may be
amended, supplemented or otherwise modified from time to time.


 


“Special Projects” shall mean (i) the Kahuku Project, (ii) the
Longfellow Project and (iii) the Milford II Project.


 


“Sponsors” shall mean, collectively or individually, depending
on the context, the D. E. Shaw Sponsor and the Madison Dearborn Sponsor.


 


“Steel Winds Project” shall mean the wind generating facility
with a nameplate capacity of 20 megawatts located in the Lackawanna, New York.


 


“Steel Winds Reorganization” shall have the meaning set forth on
Schedule 7 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 I Project Financing Agreement” shall mean the Financing
Agreement, dated as of the dated hereof, by and among Evergreen Wind Power V,
LLC, HSHN, and the lenders party thereto.


 


“Stetson Project Loan” shall mean the transactions contemplated
by the Stetson I Project Financing Agreement.


 


“Stetson Transmission Line Reorganization” shall have the
meaning set forth in the Stetson Project Loan.


 


“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 the Guarantor 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.


 


“Swap Counterparty” shall mean HSH Nordbank AG or any of its
Affiliates party to an Interest Rate Protection Agreement.


 


“Turbine” shall have the meaning set forth in the applicable FW
Credit Facility.


 


“Turbine Supply Documents” shall mean the FWA5 Turbine Supply
Agreements


 


14

















 


and
the documents included in the definition of “Turbine Supply Documents” as set
forth in the applicable FW Credit Facility.


 


“Uniform Commercial Code” or “UCC” shall mean the Uniform
Commercial Code as in effect in the State of New York from time to time or, by
reason of mandatory application, any other applicable jurisdiction.


 


“Unit Redemption Agreement” shall mean that certain Unit
Redemption Agreement, dated as of April 28, 2006, between UPC Wind
Partners II and the Guarantor, as amended by the Amendment Agreement to Unit
Redemption Agreement, dated as of December 12, 2008.


 


“UPC Release Event” shall mean a “Release Event” as defined in Section 1.3(a) of
the Unit Redemption Agreement, provided that the event described in clause (B) of
the final proviso in Section 1.3(a) of the Unit Redemption Agreement
shall constitute a UPC Release Event only with the approval of the
Administrative Agent.


 


“UPC Wind Partners II Redemption Payment” shall mean any
Contingent Payments (as defined in the Unit Redemption Agreement) from the
Guarantor to UPC Wind Partners II pursuant to the first clause (iii) of Section 1.3(a) of
the Unit Redemption Agreement; provided, that (i) the
aggregate amount of all Contingent Cash Payments (as defined in the Unit
Redemption Agreement) shall not exceed $4,500,000, and (ii) the aggregate
amount of all Contingent Stock Payments (as defined in the Unit Redemption
Agreement) shall not exceed $4,500,000; and provided, further,
that the Contingent Cash Payments shall be due and payable only if, and to the
extent that, a UPC Release Event occurs.


 


“UPC Wind Partners II” shall mean UPC Wind Partners II, LLC, a
Delaware limited liability company.


 


“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.


 


2.     Guaranty.


 


(a).          Guaranty of
Payment. The Guarantor hereby guarantees to the Secured Parties the
performance and prompt payment in full when due (whether at stated maturity,
upon acceleration, upon any optional or mandatory prepayment or otherwise) of
the Guaranteed Obligations in each case strictly in accordance with their
terms. The Guarantor hereby further agrees that if any Borrower fails to pay in
full when due (whether at stated maturity, upon acceleration, upon any optional
or mandatory prepayment or otherwise) all or any part of the Guaranteed
Obligations, the Guarantor will immediately pay the same, without any demand or
notice whatsoever, and that, in the case of any extension of time of payment or
renewal of all or any part of the Guaranteed Obligations, it will timely pay
the same in full when due (whether at extended maturity, upon acceleration or
otherwise) in accordance with the terms of that extension or renewal. This
Agreement is irrevocable and unconditional in nature and is


 


15

















 


made
with respect to any Guaranteed Obligations now existing or in the future
arising. The liability of the Guarantor under this Agreement shall continue
until full satisfaction of all the Guaranteed Obligations. This Agreement is a
guarantee of due and punctual payment and performance and is not merely a
guarantee of collection.


 


(b)           Continuing Guaranty. The liability
of the Guarantor hereunder is primary, absolute and unconditional and is
exclusive and independent of any security for or other guaranty of the
indebtedness of the Borrowers whether executed by the Guarantor or any other
party, and the liability of the Guarantor hereunder shall not be affected or
impaired by any circumstance or occurrence whatsoever, including, without
limitation: (i) any direction as to application of payment by the
Borrowers or by any other party, (ii) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations, (iii) any payment on or in reduction of
any such other guaranty or undertaking, (iv) any dissolution, termination
or increase, decrease or change in personnel by the Borrowers, (v) any
payment made to the Lender on the indebtedness which the Lender repay the
Borrowers pursuant to a court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the Guarantor
waives any right to the deferral or modification of its obligations hereunder
by reason of any such proceeding, or (vi) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any security
therefor.


 


3.             Performance of
Guarantor’s Loan Covenants. The Guarantor hereby
covenants and agrees that commencing on the latest to occur of (i) the
repayment of the outstanding principal amount of the Loans under the FWA4
Promissory Note and, until the Release Event has occurred, the Loans under the
FWA Promissory Note, and (ii) the indefeasible payment in full of all
interest and fees due and payable with respect thereto (other than inchoate
obligations or indemnification obligations), it shall comply with each of the
covenants set forth below. Concurrently with the delivery of financial
statements required by Section 3(h), the Guarantor shall deliver a
certification confirming its compliance with the covenants set forth in this Section 3.
Subject to the foregoing terms, the Guarantor shall comply with each of the
following:


 


(a)           American
Recovery and Reinvestment Act of 2009. It shall cause the
applicable Project Company attributable to the Cohocton Project and the Stetson
I Project to diligently exercise commercially reasonable efforts to apply for
and otherwise use commercially reasonable efforts to cause each of the Cohocton
Project and the Stetson Project to qualify for the maximum allowable Government
grant pursuant to the American Recovery and Reinvestment Act of 2009 and to
provide the Administrative Agent with a copy of all application documents and
related correspondence. If the Government Grant is not received with respect to
the Cohocton Project or the Stetson I Project, as applicable, by the Guarantor
or the applicable Eligible Qualified Project Company within the earlier of (i) ninety
(90) days after the date on which the Governmental Authority confirms receipt
of the applicable completed application, or (ii) 120 days after the
submission of the applicable application documents, but in any event not later
than 180 days after applications can be submitted for such Government Grant
program, the Guarantor shall deliver a plan to the Administrative Agent
providing for tax equity or other financing efforts relating to the
qualification of the Cohocton Project or the Stetson Project, as


 


16

















 


applicable,
for PTC’s. Upon acceptance of any such plan by the Administrative Agent, the
Guarantor shall diligently exercise its commercially reasonable efforts to
effectuate such financing in accordance with the plan. The Guarantor shall
provide updates in respect of material developments regarding cash or
tax-equity-raising efforts directly or indirectly relating to the Guarantor (x) with
respect to the Cohocton Project, as provided in Section 9.5 of the
Cohocton Mini-Perm Financing Agreement, and (y) with respect to the
Stetson I Project, as provided in Section 7.26 of the Stetson I Project
Financing Agreement.


 


(b)           Post-Closing Obligations. It shall
deliver the items listed on Schedule 6 by the dates set forth therein,
each duly executed and delivered by the parties thereto and in form and
substance reasonably satisfactory to the Lender. The parties acknowledge that
the failure of the Guarantor to deliver any item listed on Schedule 6
shall not, in and of itself, constitute a Material Adverse Effect.


 


(c)           Insurance. It will, and will cause
each of its subsidiaries to, keep insured by financially sound and reputable
insurers all property of a character usually insured by companies engaged in
the same or similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against by such companies and
carry such other insurance as is usually carried by such companies.


 


(d)           Expenditures. Until the earlier to occur
of the Budget Termination Event or the Release Event:


 


(i) It shall develop
the Eligible Qualified Projects and, for that purpose, it shall make Earmarked
Expenditures as set forth below. In any calendar quarter from and after the
Original Effective Date, the Guarantor shall make (or cause the relevant
Project Company or other Affiliate to make) expenditures for Earmarked
Expenditures of not less than the amounts set forth in the Earmarked
Expenditures for such calendar quarter on the Development Budget; provided
that such required spending may be reduced by the amount of any cost savings
realized on any budgeted Earmarked Expenditure, and may be deferred (A) if
any milestone (including proceeds from any anticipated financing, tax equity
transaction or Government grant contemplated in the Development Budget) for
such Earmarked Expenditure has not yet been achieved, or (B) due to any
delays that are not solely within the control of the Guarantor or its
subsidiaries after the exercise of commercially reasonable efforts consistent
with prudent practices for wind energy development companies, including any
delay in obtaining permits or governmental approvals, any delay in obtaining
land rights or transmission access, any event of force majeure, any delays by
any third party that is not an Affiliate of the Guarantor, or other similar
events.


 


(ii) Subject to Section 3(f),
it may make expenditures for general and administrative expenses and for the
development of wind power projects other than Eligible Qualified Projects and
other


 


17

















 


purposes from time to time so long as, at the end of
each calendar quarter, the aggregate amount of all such expenditures since the
Original Effective Date, on a cash basis, shall not exceed the cumulative
amount scheduled to be spent on such items in the aggregate in the Development
Budget from the Original Effective Date through the end of such quarter; provided,
that it may make expenditures for the development of the Special Projects and
as required under the terms of the FWA5 Turbine Supply Agreements without
regard to the limitations contained in the Development Budget.


 


(iii) Subject to Section 3(f),
it may make Earmarked Expenditures or expenditures for general and
administrative expenses and for the development and construction of wind power
projects other than Eligible Qualified Projects and other purposes, from time
to time, above the amounts for such items set out in the Development Budget and
notwithstanding the limitations in clauses (i) and (ii) of this Section 3(d)
but only to the extent that (A) the Guarantor is then in compliance with
this Section 3(d), and (B) such additional expenditures since
the Original Effective Date, on a cash basis, do not exceed, in the aggregate,
the sum of the following amounts received by the Guarantor since the Original
Effective Date less the cumulative amount of all such additional expenditures: (X) Net
Cash Proceeds received by the Guarantor from the Subject Disposition of any
Eligible Qualified Project, (Y) net proceeds received by the Guarantor
from the closing of permitted tax equity and back leveraged financing of any
Eligible Qualified Project or any other permitted non-recourse or limited
recourse project financing of any Eligible Qualified Project, and (Z) Net
Cash Proceeds of any permitted equity or debt financings (junior in all
respects to the Guaranteed Obligations) other than as contemplated in the Basic
Documents.


 


(iv) Within fifteen
(15) Business Days after the last day of each calendar quarter, the Guarantor
shall deliver to the Administrative Agent a reasonably detailed reconciliation
of actual expenditures for such calendar quarter against the Development Budget
together with a certificate certifying whether the Guarantor is in compliance
with this Section 3(d). Without limiting the Guarantor’s obligation
to comply with this Section 3(d), if at any time the Guarantor is
not in compliance with this Section 3(d), the Guarantor shall
deliver a plan to the Administrative Agent, prepared in good faith on
reasonable assumptions, detailing how the Guarantor plans to remedy such
noncompliance, together with such reasonably detailed supporting information as
the Administrative Agent may request.


 


18

















 


(e)           Liquidity Forecast. It shall deliver on the
last Business Day of each calendar quarter, beginning the week after the
Effective Date, a detailed 13-week rolling liquidity forecast demonstrating
that the Guarantor has sufficient cash to cover its cash needs in the period
covered by such forecast in accordance with the Development Budget (the “Liquidity
Forecast”); provided, that if any Liquidity Forecast indicates any
insufficiency of committed sources of funds in respect of total expenditures
for such period covered, then within five (5) Business Days from delivery
of the Liquidity Forecast the Guarantor shall deliver a plan to the
Administrative Agent, prepared in good faith, detailing how the Guarantor plans
to remedy such shortfall. The Guarantor represents that all information
provided pursuant to this Section 3(e) was prepared in good faith
based upon reasonable assumption at the time the liquidity forecasts were
prepared and delivered to the Administrative Agent and that the actual results
during the period or periods covered by the liquidity forecasts may differ from
such liquidity forecasts.


 


(f)            Project Construction. Any Project
Company shall not enter into a binding commitment providing for the
construction of all or substantially all of a Project until the earliest to
occur of (i) the closing of construction financing for all or
substantially all of the construction expenditures for such Project, (ii) the
Budget Termination Event and (iii) the Release Event.


 


(g)           Audited Financial Statements; Reporting. It 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 Guarantor, (provided
that subsequent to an initial public offering of equity securities of the
Guarantor, such 120 day period shall be reduced to 90 days) the audited balance
sheet and related consolidated statements of income, operations and cash flows
of the Guarantor and its subsidiaries as of the end of and for such year,
setting forth in each case comparative form of the figures for the previous
fiscal year, all reported on by an independent public accountant of recognized
national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit, other
than with respect to its fiscal year ending December 31, 2009) 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 Guarantor and its subsidiaries in accordance with GAAP
consistently applied.


 


(h)           Unaudited
Financial Statements; Reporting. It will provide to the Administrative
Agent as soon as available and in any event within 45 days after the end of
each of the first three quarterly fiscal periods of each fiscal year of the
Guarantor, unaudited consolidated statements of income, operations and cash
flows of the Guarantor and its 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 authorized officer of the Guarantor which certificate shall
state that such financial condition and results of income, operations and cash
flows of the Guarantor and its 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).


 


19














 


(i)            Indebtedness. Neither it
nor any Project Company shall incur any Indebtedness other than Permitted
Indebtedness.


 


(j)            Amendments; New
Agreements. It shall not, and shall cause each Eligible
Qualified Project Company not to, without the prior written consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed),
(i) cancel or terminate, or accept or consent to a cancellation or
termination of, any Material Project Document to which it is a party or such
Eligible Qualified Project Company is a party, if such Material Project
Document relates to revenues received by the Guarantor or such Eligible
Qualified Project Company with respect to the applicable Eligible Qualified
Project in an amount equal to or greater than $15,000,000 calculated over the
term of the agreement, unless any such termination or cancellation is being
effectuated contemporaneously with the execution of a new replacement Material
Project Document providing for revenues to be received with respect to the applicable
Eligible Qualified Project that, when aggregated with revenues under the
Material Project Document being replaced, are in an amount equal to or greater
than $15,000,000 calculated over the term of both agreements; (ii) until
the earlier to occur of the Budget Termination Event or the Release Event,
amend, supplement or modify, or enter into any amendment, supplement or
modification to, any Material Project Document to which it is a party or such
Eligible Qualified Project Company is a party, the effect of which results in
increased scheduled payments to be made by it or the applicable Eligible
Qualified Project Company in an amount equal to or greater than $3,000,000
calculated over the term of the amended agreement; or (iii) until the
earlier to occur of the Budget Termination Event or the Release Event, enter
into any new Material Project Document to which it would be a party or such
Eligible Qualified Project Company would be a party, which would result in
scheduled payments to be made by it or the applicable Eligible Qualified
Project Company in an amount equal to or greater than $15,000,000 over the term
of such new agreement, unless, in the case of this clause (iii), entry into
such Material Project Document is permitted under Section 3(f).


 


(k)           Organization;
Business. It shall (i) other than in connection with a
public offering of its securities, maintain and preserve its existence as a
Delaware limited liability company and cause each Project Company hereunder 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
developing, financing, ownership, construction and/or operations of the wind
energy generation projects, and cause each Project Company to engage only in
the business of developing, financing, ownership, construction and/or
operations of the respective Eligible Qualified Project.


 


(l)            Obligations. It shall, and
it shall cause each Eligible Qualified Project Company to, perform and observe
its obligations under each Material Project Document to which it is a party in
all material respects.


 


(m)          Compliance with
Laws. It shall comply, and it shall cause each Project Company to comply,
with all governmental approvals and with applicable law, including all
environmental laws, except to the extent that a failure to comply with such
applicable law would not reasonably be expected to have a Material Adverse
Effect.


 


(n)           Taxes. It shall pay,
and it shall cause each Project Company to


 


20

















 


pay,
all taxes that such Person is required to pay to the extent due; provided,
no such tax need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as an
adequate reserve or other appropriate provision, as shall be required in
conformity with GAAP, shall have been made therefor.


 


(o)           Dissolution;
Merger. It shall not enter into any transaction of merger, consolidation,
amalgamation, liquidation or dissolution where the Guarantor, or in connection
with an initial public offering of its securities, a new wholly-owned direct
subsidiary of Guarantor formed for such purpose, is not the surviving entity.


 


(p)           Reports. Until the
occurrence of the Budget Termination Event, it shall deliver to the
Administrative Agent and the Independent Engineer on the last Business Day of
each month a construction report for each Eligible Qualified Project under
construction for the applicable Project Company discussing among other things,
variations, if any, from the relevant schedule and budget for such Eligible
Qualified Project.


 


(q)           Provision of
Information. It shall provide such information regarding any
Eligible Qualified Project, and the financial affairs of the Guarantor or the
Project Companies as shall be reasonably requested by the Administrative Agent;
provided that if any such requested information is not in the possession
of the Guarantor, the Guarantor shall only be obligated to use commercially
reasonable efforts to obtain such requested information from third parties.


 


(r)            Transfer of
Interest. Without the consent of the Administrative Agent,
which consent shall not be unreasonably withheld or delayed, the Guarantor
shall not cause, make, suffer to exist, permit or consent to any sale,
assignment or transfer of any direct or indirect ownership interests in any
subsidiaries to any Affiliate, other than in connection with the Steel Winds
Reorganization or the Stetson Transmission Line Reorganization; provided,
that a sale, assignment or transfer is allowed to a third party if such
transaction includes all (and not a portion) of the direct or indirect
ownership interests in the relevant subsidiary(ies), and immediately prior to
and after giving effect to any sale, assignment or transfer, the Minimum
Members’ Equity is not less than $600,000,000. The Guarantor shall not issue,
and it shall not permit any member to transfer, any membership interests in the
Guarantor to any person or entity (i) 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; or (ii) then engaged in pending litigation
or arbitration proceedings against HSHN (in each case an “Ineligible
Transferee”).


 


(s)           Terrorism
Order; etc.


 


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


 


(ii)          As requested by the
Administrative Agent, Guarantor shall provide Administrative Agent any
information


 


21

















 


regarding Guarantor, its Affiliates, and its Subsidiaries necessary for
Lender to comply with all Anti-Money Laundering Laws.


 


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


 


(iv)          Guarantor 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 Guarantor obtains actual
knowledge or receives any written notice that Guarantor, 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”), Guarantor shall promptly
(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 Guarantor 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).


 


(vi)          Upon Administrative Agent’s
request from time to time, Guarantor shall deliver a certification confirming
its compliance with the covenants set forth in this Section 3(q).


 


(t)            Liens; Negative
Pledge. Unless the Guarantor shall have unencumbered assets having a value of
not less than $100,000,000 at the time of, and after giving effect to, the
grant of any lien hereunder, the Guarantor shall not, and (x) until the
Release Event has occurred, shall not permit any of the Obligors to, and
(y) on and after the Release Event has occurred, shall not permit FWA4 or
any of FWA4’s Project Companies to, create, incur, assume, permit to exist any
lien on any property or asset now owned or hereafter acquired by it or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof to secure any of its Indebtedness (or any Indebtedness
of such subsidiary) or any guarantee, indemnity or other surety obligation in
respect of Indebtedness of any other Person other than (i) as required
under the other Basic Documents, (ii) as required under the FWA4
Promissory Note, or (iii) Permitted Liens.


 


22

















 


(u)           Investment
Company. The Guarantor shall not, and shall cause any Project Company not to,
become an investment company or a company controlled by an investment company
within the meaning of the Investment Company Act of 1940, as amended.


 


(v)           ERISA. The Guarantor
shall not, and shall cause any Project Company not to, become subject to
regulation under the Employee Retirement Income Security Act of 1974, as
amended.


 


(w)          PUHCA. The Guarantor
shall not, and shall cause any Project Company not to, become subject to
Section 1264 of PUHCA and FERC’s rules and regulations thereunder, as
a “holding company,” “affiliate,” “associate company,” or as a “subsidiary
company” of a “holding company” under PUHCA.


 


(x)            Operating
Subsidiary Distributions. Subject to the limitations on the use of
distribution of cash or other assets provided under the terms of joint ventures
with non-Affiliates, tax equity documents, or other financing arrangements
(including required reserve, holding or escrow accounts and amounts), until the
earlier to occur of the Budget Termination Event or the Release Event, the
Guarantor shall cause each of its operating subsidiaries that has a direct or
indirect interest in any wind power generation facility to distribute to the
Guarantor on the last Business Day of each month an amount equal to the Excess
Cash (or the Guarantor’s proportional interest in such Excess Cash for any
facility that is not, directly or indirectly, wholly owned by the Guarantor) for
such wind power generation facility, which funds shall be used by the
Guarantor, first, as required by the FW Credit Facilities, and second, in
accordance with Section 3(d) of this Guaranty.


 


(y)           Partnership;
Joint Venture. No Obligor shall become a general or limited
partner in any partnership, a joint venturer in any joint venture or a member
in any limited liability company or otherwise form any subsidiaries, provided,
that the Guarantor may form additional subsidiaries only to the extent such
additional subsidiaries are pledged to Collateral Agent and carry no new third
party debt other than Permitted Indebtedness; provided, further,
that any such additional subsidiary that is: (i) a subsidiary of an entity
listed on Schedule 3 subject to the Pledged Equity Interests,
(ii) a direct or indirect owner of an entity listed on Schedule 3
subject to the Pledged Equity Interests, (iii) not a Project Company,
(iv) an Intermediate Holding Company, or (v) formed in connection
with the Stetson Transmission Line Reorganization or the Steel Winds
Reorganization, shall not be subject to the pledge requirement and debt
restriction under this Section 3(y).


 


(z)            Investments. Until the
earlier to occur of the Budget Termination Event or the Release Event, the
Guarantor shall not, and shall not cause any of its subsidiaries to, make or
permit to remain outstanding any Investments except Permitted Investments.


 


(aa)         Distributions. Guarantor
shall not make or declare any Restricted Payments to any Person with any
membership interest in the Guarantor without the prior written consent of the
Administrative Agent, unless (i) after giving effect to such Restricted
Payment the Guarantor shall have not less than $600,000,000 of Minimum Members’
Equity, (ii) the Restricted Payment is distributed solely from cashflow
received by Holdings other than proceeds of any Indebtedness, and
(iii) any Restricted Payment shall not exceed the positive difference of


 


23

















 


(A) aggregate
cashflow other than proceeds of Indebtedness received by Holdings on or after
the Effective Date less (B) Restricted Payments previously made on or
after the Effective Date.


 


(bb)         Notice. Guarantor
shall promptly, upon acquiring 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 Guarantor,
threatened against the Guarantor or any Obligor 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 material law by the Guarantor or any Obligor.


 


(iii)          as soon as reasonably
practical after it becomes aware of any Material Adverse Effect or any Default,
together with a remedial plan addressing such Material Adverse Effect or
Default;


 


(iv)          any Event of
Default;


 


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


 


(vi)          any other additional
information reasonably requested by the Administrative Agent.


 


(cc)         Property. It shall, and
it shall cause each Eligible Qualified Project Company to, maintain or cause to
be maintained all property related to the Eligible Qualified Projects in good
working order and condition in accordance with Prudent Utility Practices,
ordinary wear and tear excepted.


 


(dd)         Books, Records,
Access. It shall keep and maintain its books of account and financial records
for itself and each Project Company at its address identified on the signature
pages to this Agreement. The Administrative Agent shall have the right,
upon reasonable advance notice to the Guarantor or a Project Company, as
applicable, and at reasonable times during the Guarantor’s or such Project
Company’s, as applicable, usual business hours, to audit, examine and make
copies of the books of account and other records of the Guarantor or such
Project Company’s, as applicable; and to discuss the financial condition,
business and prospects of the Guarantor or such Project Company with its
respective authorized officers. The Administrative Agent may exercise such rights
through any agent or employee of the Administrative Agent, or through any
independent public accountant, the Independent Engineer, legal counsel or any
other consultant acting on behalf of the Administrative Agent; provided that
such Persons shall agree to be bound by the same confidentiality obligations of
the Administrative Agent to the Guarantor and its Affiliates.


 


24

















 


4.        Statute of Limitations. Any payment
by the Borrowers or other circumstance that operates to toll any statute of
limitations as to the Borrowers shall operate to toll the statute of
limitations as to the Guarantor, except to the extent that any statute of
limitations as to the Borrowers is tolled in respect of any action taken by a Borrower
when such Borrower is controlled by the Lender following the exercise by the
Lender of its remedies under the First Wind Holdings Pledge Agreement.


 


5.        Recourse. The obligations of the
Guarantor set forth herein constitute the full recourse obligations of
Guarantor, enforceable against it to the full extent of all of its assets and
properties. Without limiting the generality of the foregoing, the Guarantor
agrees that repeated and successive demands may be made and recoveries may be
had hereunder as and when, from time to time, any Borrower shall fail to
perform any Guaranteed Obligation, and that, notwithstanding the recovery
hereunder for or in respect of any given failure by any Borrower to perform any
such Guaranteed Obligation, this Guaranty shall remain in force and effect and
shall apply to each and every subsequent failure to perform.


 


6.        Events of Default; Demand for Payment; Payment.


 


(a)           Events of
Default. If any of the following events, conditions or circumstances (each, an
“Event of Default”) shall occur and be continuing:


 


(i)        The Guarantor shall fail to
pay its proportionate share of any amount due and payable under this Guaranty
in respect of the Guaranteed Obligations;


 


(ii)       Any representation or
warranty made by any Person (other than the Lender) 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), could reasonably be expected to have a Material Adverse Effect,
and, in each case, any adverse effect of such incorrect representation 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;


 


(iii)      The Guarantor shall fail to
duly perform or observe any of its covenants (A) set forth in Sections
3(d)(i) through 3(d)(iii), 3(f), 3(i), 3(j), 3(k), 3(o), 3(r), 3(s), 3(t),
3(u), 3(v), 3(w), 3(y), 3(z) or 3(aa), or (B) set forth in Sections
3(a), 3(d)(iv), 3(e), 3(g), 3(h), 3(p) or 3(q) within three
(3) days of when due or knowledge of such failure; provided, that
the Guarantor is diligently pursuing a cure to such failure within such three
(3) day period and provided, further, that, following notice
by the Administrative Agent to the Guarantor with respect to any particular
breached covenant set forth in this Section 6(a)(iii) that was
previously breached and cured on at least three (3) occasions, no grace
period will be provided for any repeated failure to perform or observe such
covenant set forth in this Section 6(a)(iii).


 


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


 


25

















 


(v)       Except in accordance with
its terms (including in connection with the Release Event), the Guarantor, a
Borrower, or any Project Company terminates a Basic Document or a Basic
Document is otherwise terminated or invalidated;


 


(vi)      Except when caused by acts
or omissions of the Administrative 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 applicable Obligor fails to promptly execute such
additional security agreements or take any other action as may be requested by
the Administrative Agent to remedy such events ceases to have a priority in the
Collateral as required under the Security Agreements. Any material portion of
the Collateral is lost or seized without the Collateral Agent being compensated
for such loss;


 


(vii)     Any Obligor that is a party
to a Basic Document shall fail to duly perform or observe in any material
respect any of its obligations contained in this Agreement or any other Basic
Document (except for any obligations specifically identified in this Section 6)
and, in each case, such failure shall continue unremedied for a period of
thirty (30) days; provided, that such breach of an obligation is
susceptible to a cure within applicable cure period; provided, further,
that such Obligor is diligently pursuing such a cure;


 


(viii)    The Guarantor or any other
Obligor, as applicable (A) shall admit in writing its inability to pay its
debts as its debts become due; (B) 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;
(C) shall commence any proceeding under any applicable bankruptcy or
reorganization law with respect to itself or shall apply for arrangement,
readjustment of debt, dissolution or liquidation; (D) shall have had any
such petition filed, or any such proceeding shall have been commenced against
it, by any Person that is not an Affiliate of the Guarantor or any Borrower in
which an adjudication is made or order for relief is entered or which remains
undismissed for a period of sixty (60) days; (E) shall have had a
receiver, custodian or trustee appointed for all or a substantial part of its
property; (F) solely with respect to the Guarantor, shall commence any
proceeding under any applicable bankruptcy or reorganization law against any
other Obligor or shall apply for arrangement, readjustment of debt, dissolution
or liquidation of any other Obligor; or (G) shall take any action
effectuating, approving or consenting to any of the events described in clauses
(A) through (G);


 


(ix)      The Guarantor or any other
Obligor or any counterparty thereof shall be in breach of, or default under its
respective Material Project Document or a Material Project Document is
otherwise terminated or invalidated, and any applicable cure period thereunder
shall have expired with respect to such breach or default, and such breach or
default would reasonably be expected to constitute a Material Adverse Effect
unless the Guarantor, within thirty (30) days after such default, replaces such
Material Project Document with a replacement agreement, reasonably satisfactory
in form and substance to the Administrative Agent, or replaces such
counterparty with a replacement obligor, reasonably satisfactory to the
Administrative Agent;


 


26

















 


(x)        Any Material Project
Document shall cease to be in full force and effect before its scheduled
expiration and such termination could reasonably be expected to constitute a
Material Adverse Effect unless the Guarantor, within thirty (30) days after
such default, replaces such Material Project Document with a replacement
agreement, reasonably satisfactory in form and substance to the Administrative
Agent;


 


(xi)       Any applicable permit or
governmental approval necessary for the development, construction, operation or
maintenance of a Eligible Qualified Project shall be materially modified (in a
manner that would reasonably be expected to constitute a Material Adverse
Effect), revoked or cancelled by the issuing agency or other governmental
authority having jurisdiction over the Eligible Qualified Project or the
Guarantor shall fail to obtain, renew or maintain any required permit or
governmental approval (in a manner that would reasonably be expected to
constitute a Material Adverse Effect), unless such permit or governmental
approval is reinstated within thirty (30) days of such modification, revocation
or cancellation;


 


(xii)      A final judgment or
judgments shall be entered against the Guarantor or any other Obligor by a
court of competent jurisdiction in an aggregate amount of not less than
$150,000, other than (A) a judgment which is fully covered by a posted
bond or discharged within thirty (30) days after its entry, or (B) 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


 


(xii)      Any event, occurrence,
circumstance occurs which results in a Material Adverse Effect.


 


(b)                During the continuance of an Event of Default
hereunder or the continuance of an event of default under any of the Turbine
Supply Documents, the Lender may treat all Guaranteed Obligations as due and
payable and may make a demand on the Guarantor for payment of all of the
Guaranteed Obligations at any time (a “Demand”). The Guarantor shall pay
the amount requested under any Demand promptly and in any event within
thirty-five (35) days after the date on which such Demand has been made.


 


(c)                In making any Demand under this Guaranty, the
Lender shall specify whether the amount so demanded is to be applied to the
payment of amounts owing by each Borrower under its respective FW Credit
Facility. Unless agreed otherwise by the applicable Borrower and the Lender,
all amounts paid in satisfaction of such Demand in accordance with this
Guaranty shall be applied to the payment of amounts owing by such Borrower
under the Turbine Supply Documents, unless (i) (A) the amount of
Loans available to be borrowed by such Borrower under its respective FW Credit
Facility (taking into account any applicable event of default or other
circumstance that may limit the availability of Loans) is less than
(B) the total amount then owing by such Borrower under the Turbine Supply
Documents, and (ii) the amount of principal, interest and other amounts owing
to the Lender under the applicable FW Credit Facility is greater than the
amount that the Lender reasonably determines it could realize upon a
foreclosure pursuant to the Security Agreements under any FW Credit Facility on
the Turbines and the Turbine Supply Documents (taking into account the


 


27

















 


insufficiency
of available Loans and equity capital to meet the Borrowers’ obligations under
the Turbine Supply Documents).


 


7.        Modifications, Amendments and Extensions. The Lender
may at any time and from time to time without the consent of, or notice to, the
Guarantor, without incurring responsibility to the Guarantor, without impairing
or releasing the obligations of the Guarantor hereunder, upon or without any
terms or conditions and in whole or in part:


 


(a)         change the manner, place or terms of payment of,
and/or change, increase or extend the time of payment of, renew or alter, any
of the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon or the principal amount thereof) or any liability incurred
directly or indirectly in respect thereof, and this Guaranty shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;


 


(b)        take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender, impair, realize
upon or otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against;


 


(c)         exercise or refrain from exercising any rights
against the Borrowers or any subsidiary thereof or otherwise act or refrain
from acting;


 


(d)        release or substitute any one or more endorsers,
other guarantors, the Borrowers or other obligors;


 


(e)         settle or compromise any of the Guaranteed
Obligations or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, or subordinate the payment
of all or any part thereof to the payment of any liability (whether due or not)
of the Borrowers to creditors of the Borrowers other than the Lender;


 


(f)         apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrowers to the Lender
regardless of what liabilities of the Borrowers remain unpaid;


 


(g)        consent to or waive any breach of, or any act,
omission or default under, the Basic Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement the
Basic Documents or any of such other instruments or agreements;


 


(h)           act or fail to
act in any manner referred to in this Guaranty that may deprive the Guarantor
of its right to subrogation against the Borrowers to recover full indemnity for
any payments made pursuant to this Guaranty; or


 


28














 


(i)       take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of the
Guarantor from its liabilities under this Guaranty.


 


8.        No
Waiver of Rights. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of the Lender in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which the Lender would otherwise have. No notice to or
demand on the Guarantor in any case shall entitle the Guarantor to any other
further notice or demand in similar or other circumstances, or constitute a
waiver of the rights of the Lender to any other or further action in any
circumstances without notice or demand. It is not necessary for the Lender to
inquire into the capacity or powers of the Borrowers or the officers,
directors, partners or agents acting or purporting to act on their behalves,
and any indebtedness made or created in reliance upon the professed exercise of
such powers shall constitute Guaranteed Obligations.


 


9.        Subordination;
Subrogation. Any indebtedness of the Borrowers now or hereafter held by the
Guarantor is hereby subordinated to the indebtedness of the Borrowers to the
Lender. Without limiting the generality of the foregoing, the Guarantor hereby
agrees with the Lender that it will not exercise any right of subrogation which
it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until
all Guaranteed Obligations have been irrevocably paid in full in cash.


 


10.      Certain
Waivers.


 


(a)      The Guarantor waives any right (except as shall be required by
applicable law and cannot be waived) to require the Lender to: (i) proceed
against the Borrowers, any other guarantor or any other party; (ii) proceed
against or exhaust any security held from the Borrowers, any other guarantor or
any other party; or (iii) pursue any other remedy in the Lender’s power
whatsoever. The Guarantor waives any defense based on or arising out of any
defense of the Borrowers, any other guarantor or any other party other than
payment in full of the Guaranteed Obligations, including, without limitation,
any defense based on or arising out of the disability of the Borrowers, any
other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrowers other than payment in full of the Guaranteed
Obligations.


 


(b)      Except as otherwise expressly provided in this Guaranty, the
Guarantor hereby waives (to the fullest extent permitted by applicable laws)
notice of acceptance of this Guaranty and notice of any liability to which it
may apply, and waives promptness, diligence, presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or
taking of other action by the Lender against, and any other notice to, any
party liable thereon (including the Guarantor, any other guarantor or the
Borrowers). The Guarantor assumes all responsibility for being and keeping
itself informed of the Borrowers’ financial condition and assets, and of all
other circumstances bearing upon the risk of


 


29

















 


nonpayment
of the Guaranteed Obligations and the nature, scope and extent of the risks
which the Guarantor assumes and incurs hereunder, and agrees that the Lender
shall have no duty to advise the Guarantor of information known to them
regarding such circumstances or risks.


 


11.      Representations
and Warranties. The Guarantor hereby makes the following representations
and warranties as of the date hereof:


 


(a)     The
Guarantor is a limited liability company validly existing and in good standing
under the laws of the State of Delaware; and the Guarantor is duly qualified
and in good standing (or the equivalent) as a foreign company authorized to do
business in each jurisdiction where the failure to so qualify would materially
and adversely affect the Guarantor’s ability to perform its obligations
hereunder.


 


(b)     The
Guarantor’s execution, delivery and performance of this Guaranty are within the
Guarantor’s powers, have been duly authorized by all necessary limited
liability company action and do not require any governmental, regulatory or
other approval.


 


(c)     The
Guarantor’s execution, delivery and performance of this Guaranty do not
contravene or conflict with any provision of (i) any applicable law, (ii) any
judgment, decree or order, (iii) the Guarantor’s organizational documents
or by-laws, or (iv) any instrument binding upon the Guarantor or upon any
property of the Guarantor, such that, in case of any of clauses (i), (ii) and
(iv), there would be a material adverse effect on the ability of the Guarantor
to comply with its obligations under this Guaranty.


 


(d)      This Guaranty is a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms,
except as such enforceability may be affected by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting creditors rights
generally and the applicable of general principles of equity.


 


(e)     No
litigation, arbitration proceedings, governmental proceedings or investigations
or regulatory proceedings are pending or, to the knowledge of the Guarantor,
threatened against the Guarantor that, if adversely determined, could
reasonably be expected to have a material adverse effect on the ability of the
Guarantor to comply with its obligations under this Guaranty.


 


(f)      The
Guarantor has obtained all licenses, permits, franchises and other governmental
authorizations necessary to the ownership of its properties or to the conduct
of its businesses, a failure to obtain or violation of which could reasonably
be expected to adversely affect the Guarantor’s business, credit, operations or
financial condition or its ability to perform its obligations hereunder.


 


(f)      After
giving effect to the transactions contemplated hereby, the Guarantor is not nor
would be deemed to be insolvent, nor does the Guarantor’s incurrence of
contingent obligations under this Guaranty render the Guarantor insolvent.


 


(g)     The
Guarantor is in compliance with the requirements of all applicable laws, rules,
regulations, and orders of all governmental authorities (including, without


 


30

















 


limitation,
environmental laws, rules, regulations and orders), a breach of which would
materially and adversely affect the Guarantor’s ability to perform its
obligations hereunder.


 


12.      Expenses;
Indemnification.


 


(a)     The
Guarantor agrees hereby to reimburse the Lender and the Collateral Agent,
together with their respective Affiliates, successors and assigns, directors,
officers, employees, agents, advisors, controlling persons and members of each
of the foregoing (each, an “Indemnified Party”), on demand for all
costs, expenses and charges incurred by the Indemnified Parties in connection
with the negotiation, performance or administration of this Guaranty
(including, without limitation, reasonable fees, disbursements and other
reasonable documented out-of-pocket charges of legal counsel, consultants and
advisors to the Indemnified Parties). The Guarantor agrees hereby to reimburse
the Indemnified Parties for all costs, expenses and charges incurred by the
Indemnified Parties in connection with any enforcement (including in any
workout, restructuring or bankruptcy proceeding) of this Guaranty or the
defense or prosecution of any rights of the Indemnified Parties hereunder.


 


(b)     The
Guarantor agrees hereby to indemnify and hold the Indemnified Parties harmless
against all claims, damages, losses, liabilities, costs, deficiencies and
expenses, including, without limitation, investigative costs, settlement costs
and reasonable legal, accounting or other reasonable documented out-of-pocket
expenses for investigating or defending against any actions or threatened
actions (collectively, the “Losses”), arising out of or in connection
with the execution or delivery of this Guaranty, and the performance by the
Guarantor of its obligations hereunder and any prospective claim, litigation,
investigation or proceeding related to the foregoing, regardless of whether
such Indemnified Person is a party hereto, but excluding, in each case, any
such Losses to the extent determined in the final, non-appealable judgment of a
court of competent jurisdiction to have incurred primarily by reason of the bad
faith, gross negligence or willful misconduct of any Indemnified Person. The
Lender and/or the Collateral Agent, as applicable, shall promptly notify the
Guarantor of any claim under this Section 12(b). The Guarantor 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 12(b);
provided, however, that if the Guarantor assumes control of the
defense of any such action, proceeding or dispute, the Guarantor shall not
agree or conclude any settlement that affects the Lender or the Collateral
Agent without the prior written approval of the Lender or the Collateral Agent,
as applicable (such approval not to be unreasonably withheld). In the event the
Guarantor assumes control of the defense of any such action, proceeding or
dispute, the Guarantor shall not be liable to Lender or the Collateral Agent
for any reasonable legal fees and reasonable documented out-of-pocket expenses
of additional counsel incurred by the Lender or the Collateral Agent in
connection with such defense; provided, however, that each of the
Lender and the Collateral Agent shall have the right to employ its own counsel,
it being understood, however, that the Guarantor shall not be liable for the
expenses of more than one counsel for each Indemnified Party (unless counsel in
any jurisdiction other than New York is required for each or any of the Lender
and the Collateral Agent), whose reasonable legal fees and reasonable
documented out-of-pocket expenses shall be indemnified by the Guarantor if (A) there
is or could reasonably be expected to be a conflict of interest between the
Lender or the Collateral Agent, as applicable, and the Guarantor in connection
with the defense of such action,


 


31

















 


proceeding
or dispute, or (B) there is a specific defense available to the Lender or
the Collateral Agent, as applicable, which is different from or additional to
those available to the Guarantor, or (C) it is reasonably necessary to
protect the interests of the Lender or the Collateral Agent, as applicable, to
the extent such interests differ from the interests of the Guarantor. The
Guarantor agrees hereby to indemnify and hold the Indemnified Parties harmless
for the full amount of taxes (excluding taxes imposed on or measured by the
income or capital of the Indemnified Parties or any branch profits taxes
imposed by the United States or any other jurisdiction) arising from the
execution, delivery or performance of its obligations or from receiving a
payment under this Guaranty, or any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such taxes
have been correctly assessed by the applicable governmental agency; provided,
however, that the Guarantor shall not be required to indemnify the
Indemnified Parties for any penalties, interest or expenses relating to taxes
arising from the Indemnified Parties’ bad faith gross negligence, willful
misconduct or unexcused breach of this Guaranty.


 


13.      Successors
and Assigns. This Guaranty shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the Lender and its successors
and assigns.


 


14.      Amendments.
Neither this Guaranty nor any provision hereof may be changed, waived,
discharged or terminated except with the written consent of the Guarantor and
the Lender.


 


15.      Acknowledgment
of Underlying Obligations. The Guarantor acknowledges that executed (or
conformed) copies of the Basic Documents have been made available to a senior
officer of the Guarantor and such officer is familiar with the contents
thereof.


 


16.      Notices.
All notices, demands and other communications provided for or permitted
hereunder shall be made in writing and shall be by facsimile (with receipt
confirmed and followed by first class mail), courier service or personal
delivery at, in the case of the Lender, the addresses specified beneath its name
on the signature pages to the FW Credit Facilities, and in the case of the
Guarantor, c/o First Wind Energy, LLC, 85 Wells Avenue, Suite 305, Newton,
Massachusetts 02459, facsimile no. (617) 964-3342, marked for the attention of
President with a copy to First Wind Energy, LLC, 85 Wells Avenue, Suite 305,
Newton, Massachusetts 02459, facsimile no. (617) 964-3342, marked for the
attention of General Counsel. All such notices and communications shall be
deemed to have been duly given when: delivered by hand, if personally
delivered; when delivered by courier, if delivered by commercial overnight
courier service; or if sent by facsimile, when receipt is acknowledged.


 


17.      Reinstatement.
If a claim is ever made upon the Lender for repayment or recovery of any amount
or amounts received in payment or on account of any of the Guaranteed
Obligations and the Lender repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over the Lender or any of its property or (b) any settlement
or compromise of any such claim effected by the Lender with any such claimant
(including the Borrowers) then and in such event the Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon
the Guarantor, notwithstanding any revocation hereof or other instrument
evidencing any liability of


 


32

















 


the
Borrowers, and the Guarantor shall be and remain liable to the Lender hereunder
for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by the Lender.


 


18.      GOVERNING
LAW; VENUE. This Guaranty 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 Guarantor agrees that any legal action or proceeding
arising out of or relating to this Guaranty, or any legal action or proceeding
to execute or otherwise enforce any judgment obtained against the Guarantor,
for breach hereof or thereof, or against any of its properties, may be brought
in the courts of the State of New York or the United States District Court for
the Southern District of New York by the Guarantor or on behalf of the
Guarantor, as the Lender may elect. The Guarantor 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
Lender in any such dispute shall be binding on the Guarantor if sent to the Guarantor
by registered or certified mail, at the addresses specified on the signature page of
this Guaranty. The Guarantor 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 GUARANTY, ANY OTHER BASIC DOCUMENT (AS DEFINED UNDER
EACH FW CREDIT FACILITY) OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. IN
ADDITION, THE GUARANTOR 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 GUARANTY OR ANY OTHER (AS DEFINED UNDER EACH FW CREDIT FACILITY)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, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM


 


19.      Counterparts.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantor and the Lender.


 


20.      No
Setoff or Counterclaim. All payments made by the Guarantor hereunder will
be made without setoff, counterclaim or other defense and on the same basis as
payments are made by the Borrowers under the Basic Documents.


 


21.      Headings.
The headings in this Guaranty are for purposes of reference only and shall not
otherwise affect the meaning or construction of any provision of this Guaranty.


 


33

















 


22.      No
Third Party Beneficiaries. Except as otherwise provided herein, this
Guaranty is not intended to confer upon any Person, except for the parties
hereto, any rights or remedies hereunder.


 


23.      GE
Guaranty Covenant. Until the occurrence of the Release Event, the Guarantor
covenants and agrees that, so long as Guaranteed Obligations remain
outstanding, (a) it shall, without duplication of its obligations
hereunder, perform all of its obligations as and when due under the guarantees
provided by the Guarantor to GE with respect to the Turbine Supply Documents
(the “Turbine Supply Guarantees”) and (b) it shall not, without the
prior written consent of the Lender, (i) repudiate, revoke, cancel or
terminate, or accept or consent to the repudiation, revocation, cancellation or
termination of, any Turbine Supply Guarantee nor (ii) amend, supplement or
modify in any material respect, or enter into any material amendment,
supplement or modification to, any Turbine Supply Guarantee that would have the
effect of reducing its obligations or liabilities thereunder.


 


[SIGNATURE PAGE FOLLOWS]


 


34

















 


IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be executed and delivered as of the date first above written.


 


	
   

  	
  FIRST WIND HOLDINGS, LLC,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Alvarez

  
	
   

  	
   

  	
  Name: Michael Alvarez

  
	
   

  	
   

  	
  Title:   President

  



 

















 


Accepted
and Agreed to:


 


HSH NORDBANK AG, NEW YORK BRANCH


 


	
  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)
  407-6811

  



 


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

  



 














 


Schedule 1


 


Project Companies


 


·                  Stetson Wind II, LLC


·                  Kaheawa Wind Power II, LLC


·                  Evergreen Wind Power II, LLC


·                  Evergreen Wind Power III, LLC


·                  Vermont Wind, LLC


·                  Erie Wind, LLC


 

















 


Schedule 2


 


Collateral


 


An
Amended and Restated Pledge and Security Agreement, duly executed by First Wind
Holdings, LLC in favor of the Collateral Agent, as amended by the Global
Amendment and the Second Global Amendment (each as defined below);


 


An
Amended and Restated Guaranty and Pledge Agreement, duly executed by New York
Wind III, LLC, in favor of the Collateral Agent, as amended by the Global
Amendment and the Second Global Amendment;


 


An
Amended and Restated Guaranty and Security Agreement, duly executed by Windfarm
Prattsburgh, L.L.C., in favor of the Collateral Agent, as amended by the Global
Amendment and the Second Global Amendment;


 


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


 


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


 


A
Guaranty and Pledge Agreement, duly executed by First Wind Maine Holdings, LLC,
in favor of the Collateral Agent, as amended by the Global Amendment, the
Second Global Amendment and the Termination and Release Agreement and Amendment
(as defined below);


 


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


 


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


 


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


 


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


 


An
Amended and Restated Guaranty and Security Agreement, duly executed by First
Acquisition IV, LLC in favor of the Collateral Agent, as amended by the Global
Amendment and the Second Global Amendment, as amended by the Global Amendment
and the Second Global Amendment;


 

















 


An
Amended and Restated Guaranty and Pledge Agreement, duly executed by First Wind
Vermont Holdings, LLC, in favor of the Collateral Agent, as amended by the
Global Amendment and the Second Global Amendment;


 


An
Amended and Restated Guaranty and Security Agreement, duly executed by Vermont
Wind, LLC, in favor of the Collateral Agent, as amended by the Global Amendment
and the Second Global Amendment;


 


A
Pledge Agreement, duly executed by Mars Hill Partners, LLC in favor of the
Collateral Agent, as amended by the Global Amendment and the Second Global
Amendment;


 


A
Pledge Agreement, duly executed by Maine Wind Partners II, LLC in favor of the
Collateral Agent, as amended by the Global Amendment and the Second Global
Amendment;


 


A
Pledge Agreement, duly executed by Maine Wind Partners, LLC in favor of the
Collateral Agent, as amended by the Global Amendment and the Second Global
Amendment;


 


An
Amended and Restated Pledge Agreement, duly executed by First Wind O &
M, LLC, in favor of the Collateral Agent, as amended by the Global Amendment
and the Second Global Amendment;


 


A
Guaranty and Security Agreement, duly executed by Erie Wind, LLC, in favor of
the Collateral Agent, as amended by the Second Global Amendment;


 


A
Guaranty and Pledge Agreement, duly executed by First Wind New York Holdings,
LLC, in favor of the Collateral Agent, as amended by the Second Global
Amendment;


 


A
Global Amendment to Guaranty and Security Agreements, Guaranty and Pledge
Agreements, Pledge Agreements, and Pledge and Security Agreement, duly executed
by the FW Entities in favor of the Collateral Agent (the “Global Amendment”);


 


A
Second Global Amendment to Guaranty and Security Agreement, Guaranty and Pledge
Agreements, Pledge Agreements, and Pledge and Security Agreement, duly executed
by the FW Entities in favor of the Collateral Agent (the “Second Global
Amendment”);


 


A
Termination and Release Agreement and Amendment, duly executed by First Wind
Maine Holdings, LLC, Evergreen Wind Power V, LLC, and the Collateral Agent (the
“Termination and Release Agreement and Amendment”);


 


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


 


The
Security Agreements as defined in the Fourth Amended and Restated Secured
Promissory Note, dated as of the date hereof, by and between HSHN and First
Wind Acquisition, LLC, a Delaware limited liability company; and


 


The
Security Agreements as defined in the Second Amended and Restated Secured
Promissory Note, dated as of the date hereof, by and between HSHN and First
Wind Acquisition IV, LLC.


 

















 


A
Pledge Agreement, duly executed by New York Wind II, LLC, in favor of the
Collateral Agent, as amended by the Second Global Amendment.


 


A
Security Agreement, duly executed by New York Wind III, LLC, in favor of the
Collateral Agent, as amended by the Second Global Amendment.


 

















 


Schedule 3


 


Equity Ownership
Table


 


	
  PARENT

  	
   

  	
  SUBSIDIARY

  
	
   

  	
   

  	
   

  
	
  First
  Wind Holdings, LLC

  	
   

  	
  First
  Wind Energy, LLC

  
	
   

  	
   

  	
  First
  Wind Prospects, LLC

  
	
   

  	
   

  	
  First
  Wind Acquisition, LLC

  
	
   

  	
   

  	
  First
  Wind Acquisition II, LLC

  
	
   

  	
   

  	
  First
  Wind Acquisition III, LLC

  
	
   

  	
   

  	
  First
  Wind Acquisition IV, LLC

  
	
   

  	
   

  	
  First
  Wind Acquisition V, LLC

  
	
   

  	
   

  	
  First
  Wind West Virginia Holdings, LLC

  
	
   

  	
   

  	
  New
  York Wind III, LLC

  
	
   

  	
   

  	
  New
  York Wind IV, LLC

  
	
   

  	
   

  	
  Maine
  Wind Partners III, LLC

  
	
   

  	
   

  	
  Stetson
  Holdings, LLC

  
	
   

  	
   

  	
  Mars
  Hill Partners, LLC

  
	
   

  	
   

  	
  Mass Wind
  Partners, LLC

  
	
   

  	
   

  	
  Penn Wind
  Partners, LLC

  
	
   

  	
   

  	
  Vermont
  Wind Partners, LLC

  
	
   

  	
   

  	
  New
  Hampshire Wind Partners, LLC

  
	
   

  	
   

  	
  Wyoming
  Wind Power, LLC

  
	
   

  	
   

  	
  California
  Wind, LLC

  
	
   

  	
   

  	
  Hawaii
  Holdings, LLC

  
	
   

  	
   

  	
  Hawaii
  Wind Partners, LLC

  
	
   

  	
   

  	
  Oregon
  Wind Partners, LLC

  
	
   

  	
   

  	
  Washington
  Wind, LLC

  
	
   

  	
   

  	
  Utah
  Wind, LLC

  
	
   

  	
   

  	
  New
  Mexico Wind, LLC

  
	
   

  	
   

  	
  CSSW
  Holdings, LLC

  
	
   

  	
   

  	
   

  
	
  CSSW
  Holdings, LLC

  	
   

  	
  CSSW,
  LLC

  
	
   

  	
   

  	
   

  
	
  First
  Wind Energy, LLC

  	
   

  	
  First
  Wind Construction, LLC

  
	
   

  	
   

  	
  First
  Wind O&M, LLC

  
	
   

  	
   

  	
   

  
	
  First
  Wind O&M, LLC

  	
   

  	
  First
  Wind O&M Facilities Management, LLC

  
	
   

  	
   

  	
   

  
	
  First
  Wind O&M Facilities Management, LLC

  	
   

  	
  First
  Wind O&M Battery Services, LLC

  
	
   

  	
   

  	
   

  
	
  CANADA

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Canada
  Wind Partners, LLC

  	
   

  	
  Canada
  Wind, LLC

  
	
   

  	
   

  	
  Dark
  Harbour Wind, LLC

  
	
   

  	
   

  	
  Garvie
  Mountain Wind, LLC

  



 

















 


	
  CALIFORNIA

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  California
  Wind, LLC

  	
   

  	
  Indigo
  Winds, LLC

  Mojave Winds, LLC

  Grand View Winds, LLC

  Coyote Trail Wind, LLC

  Mountain View Wind, LLC

  
	
   

  	
   

  	
   

  
	
  HAWAII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hawaii
  Wind Partners, LLC

  	
   

  	
  Hawaii
  Wind Partners II, LLC

  
	
   

  	
   

  	
   

  
	
  Hawaii
  Wind Partners II, LLC

  	
   

  	
  Kaheawa
  Wind Power, LLC

  
	
   

  	
   

  	
   

  
	
  Hawaii
  Holdings, LLC

  	
   

  	
  South
  Point Wind Power, LLC

  Kahuku Wind Power, LLC

  Kaheawa Wind Power II, LLC

  Kauai Wind Power, LLC

  Ikaika Wind Power, LLC

  Kawailoa Wind, LLC

  
	
   

  	
   

  	
   

  
	
  MAINE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mars
  Hill Partners, LLC

  	
   

  	
  Maine
  Wind Partners II, LLC

  
	
   

  	
   

  	
   

  
	
  Maine
  Wind Partners II, LLC

  	
   

  	
  Maine
  Wind Partners, LLC

  
	
   

  	
   

  	
   

  
	
  Maine
  Wind Partners, LLC

  	
   

  	
  Evergreen
  Wind Power, LLC

  
	
   

  	
   

  	
   

  
	
  Maine
  Wind Partners III, LLC

  	
   

  	
  Evergreen
  Wind Power II, LLC

  Evergreen Wind Power III, LLC

  Evergreen Wind Power V, LLC

  Longfellow Wind, LLC

  New Winds, LLC

  Stetson Wind II, LLC

  Cerro Wind Power, LLC

  Blue Sky East, LLC

  Blue Sky West, LLC

  Beech Wind, LLC

  Green Mountain Wind, LLC

  
	
   

  	
   

  	
   

  
	
  MASSACHUSETTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  First Wind Mass
  Holdings, LLC

  	
   

  	
  Pioneer Valley Wind,
  LLC

  
	
   

  	
   

  	
   

  
	
  NEW HAMPSHIRE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New Hampshire Wind
  Partners, LLC

  	
   

  	
  North Country Wind, LLC

  



 

















 


	
  NEW MEXICO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New
  Mexico Wind, LLC

  	
   

  	
  New
  Mexico Land Holdings, LLC

  Desert Sage Wind, LLC

  Red Canyon Wind, LLC

  
	
   

  	
   

  	
   

  
	
  NEW YORK

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New
  York Wind III, LLC

  	
   

  	
  New
  York Wind II, LLC

  
	
   

  	
   

  	
   

  
	
  New
  York Wind II, LLC

  	
   

  	
  Niagara
  Wind Power, LLC

  New York Wind, LLC

  
	
   

  	
   

  	
   

  
	
  New
  York Wind, LLC

  	
   

  	
  Canandaigua
  Power Partners, LLC

  Canandaigua Power Partners II, LLC

  Windfarm Prattsburgh, LLC

  First Wind Steuben, LLC

  
	
   

  	
   

  	
   

  
	
  New
  York Wind IV, LLC

  	
   

  	
  GenWy
  Wind, LLC

  Clover Ridge Wind, LLC

  Southern Tier Wind, LLC

  
	
   

  	
   

  	
   

  
	
  OREGON

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Oregon Wind Partners,
  LLC

  	
   

  	
  Oregon Wind, LLC

  Oregon Wind II, LLC

  Harvest Wind Energy, LLC

  Poplar Winds, LLC

  
	
   

  	
   

  	
   

  
	
  PENNSYLVANIA

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Penn Wind Partners, LLC

  	
   

  	
  Beaverdam Run, LLC

  Dwight Creek, LLC

  Little Mountain, LLC

  
	
   

  	
   

  	
   

  
	
  UTAH

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Utah
  Wind, LLC

  	
   

  	
  Milford
  Wind Corridor, LLC

  
	
   

  	
   

  	
   

  
	
  Milford
  Wind Corridor, LLC

  	
   

  	
  Milford
  Wind Corridor Phase I, LLC

  Milford Wind Corridor Phase II, LLC

  
	
   

  	
   

  	
   

  
	
  VERMONT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Vermont
  Wind Partners, LLC

  	
   

  	
  Vermont Wind, LLC

  Saxton Wind, LLC

  
	
   

  	
   

  	
   

  
	
  WASHINGTON

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Washington
  Wind, LLC

  	
   

  	
  Palouse
  Wind, LLC

  Latah Wind, LLC

  
	
   

  	
   

  	
   

  
	
  WEST VIRGINIA

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  First Wind West
  Virginia Holdings, LLC

  	
   

  	
  Tri-County Wind, LLC

  



 

















 


	
  WYOMING

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Wyoming
  Wind Power, LLC

  	
   

  	
  Frontier
  Wind Express, LLC

  Buckhorn Wind, LLC

  Antelope Run, LLC

  



 

















 


Schedule 4


 


Development Budget


 


(Attached)


 


*****


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment.  A total of six pages were omitted.


 















 


	
  *Earmarked
  Expenditures marked with E*

  	
   

  	
   

  	
  Jan-10

  	
   

  	
  Feb-10

  	
   

  	
  Mar-10

  	
   

  	
  Apr-10

  	
   

  	
  May-10

  	
   

  	
  Jun-10

  	
   

  	
  Jul-10

  	
   

  	
  Aug-10

  	
   

  	
  Sep-10

  	
   

  	
  Oct-10

  	
   

  	
  Nov-10

  	
   

  	
  Dec-10

  	
   

  
	
  Opening
  Cash Balance

  	
   

  	
   

  	
  111,777

  	
   

  	
  75,414

  	
   

  	
  49,783

  	
   

  	
  184,907

  	
   

  	
  157,180

  	
   

  	
  146,651

  	
   

  	
  127,302

  	
   

  	
  104,320

  	
   

  	
  91,309

  	
   

  	
  67,650

  	
   

  	
  52,720

  	
   

  	
  104,115

  	
   

  
	
  Uses

  	
   

  	
   

  	
  (55,142

  	
  )

  	
  (46,066

  	
  )

  	
  (85,678

  	
  )

  	
  (57,729

  	
  )

  	
  (54,786

  	
  )

  	
  (130,356

  	
  )

  	
  (65,307

  	
  )

  	
  (54,145

  	
  )

  	
  (102,345

  	
  )

  	
  (51,483

  	
  )

  	
  (38,552

  	
  )

  	
  (76,335

  	
  )

  
	
  Sources

  	
  E*

  	
   

  	
  18,779

  	
   

  	
  20,436

  	
   

  	
  220,801

  	
   

  	
  40,002

  	
   

  	
  44,257

  	
   

  	
  111,007

  	
   

  	
  42,325

  	
   

  	
  41,134

  	
   

  	
  78,686

  	
   

  	
  36,553

  	
   

  	
  89,946

  	
   

  	
  30,435

  	
   

  
	
  Corporate
  LC’s

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  (10,000

  	
  )

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Joint
  Ventures

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  HoldCo
  Investment

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Ending
  Cash Balance

  	
   

  	
   

  	
  75,414

  	
   

  	
  49,783

  	
   

  	
  184,907

  	
   

  	
  157,180

  	
   

  	
  146,651

  	
   

  	
  127,302

  	
   

  	
  104,320

  	
   

  	
  91,309

  	
   

  	
  67,650

  	
   

  	
  52,720

  	
   

  	
  104,115

  	
   

  	
  58,215

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Departmental
  Overhead

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Departmental
  Overhead

  	
   

  	
   

  	
  1,911

  	
   

  	
  2,060

  	
   

  	
  1,428

  	
   

  	
  1,400

  	
   

  	
  1,441

  	
   

  	
  1,332

  	
   

  	
  1,345

  	
   

  	
  1,374

  	
   

  	
  1,330

  	
   

  	
  1,317

  	
   

  	
  1,358

  	
   

  	
  2,012

  	
   

  
	
  Total
  Stetson I

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Cohocton

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Milford I

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Stetson II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Rollins

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Sheffield

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Milford II A

  	
   

  	
   

  	
  630

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  KWP II

  	
  E*

  	
   

  	
  219

  	
   

  	
  216

  	
   

  	
  262

  	
   

  	
  175

  	
   

  	
  178

  	
   

  	
  169

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Longfellow

  	
   

  	
   

  	
  318

  	
   

  	
  312

  	
   

  	
  371

  	
   

  	
  246

  	
   

  	
  249

  	
   

  	
  240

  	
   

  	
  218

  	
   

  	
  214

  	
   

  	
  214

  	
   

  	
  217

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Kahuku

  	
   

  	
   

  	
  266

  	
   

  	
  261

  	
   

  	
  314

  	
   

  	
  209

  	
   

  	
  212

  	
   

  	
  203

  	
   

  	
  182

  	
   

  	
  179

  	
   

  	
  179

  	
   

  	
  182

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Oakfield
  I & II

  	
  E*

  	
   

  	
  774

  	
   

  	
  757

  	
   

  	
  892

  	
   

  	
  591

  	
   

  	
  312

  	
   

  	
  304

  	
   

  	
  279

  	
   

  	
  274

  	
   

  	
  274

  	
   

  	
  278

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Milford
  II B

  	
   

  	
   

  	
  171

  	
   

  	
  171

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  2011
  + Projects

  	
   

  	
   

  	
  2,059

  	
   

  	
  2,651

  	
   

  	
  3,277

  	
   

  	
  2,197

  	
   

  	
  2,528

  	
   

  	
  2,375

  	
   

  	
  2,238

  	
   

  	
  2,203

  	
   

  	
  2,193

  	
   

  	
  2,332

  	
   

  	
  2,819

  	
   

  	
  5,113

  	
   

  
	
  Total

  	
   

  	
   

  	
  6,348

  	
   

  	
  6,427

  	
   

  	
  6,543

  	
   

  	
  4,818

  	
   

  	
  4,920

  	
   

  	
  4,624

  	
   

  	
  4,262

  	
   

  	
  4,244

  	
   

  	
  4,190

  	
   

  	
  4,225

  	
   

  	
  4,177

  	
   

  	
  7,125

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest
  Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wind
  Acq I

  	
  E*

  	
   

  	
  1,110

  	
   

  	
  1,110

  	
   

  	
  945

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Wind
  Acq III

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Wind
  Acq IV

  	
  E*

  	
   

  	
  239

  	
   

  	
  239

  	
   

  	
  204

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  2009
  Clipper TSL

  	
   

  	
   

  	
  176

  	
   

  	
  176

  	
   

  	
  105

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  66

  	
   

  	
  97

  	
   

  	
  97

  	
   

  	
  97

  	
   

  
	
  2011
  + Clipper TSL

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  98

  	
   

  	
  197

  	
   

  	
  197

  	
   

  	
  232

  	
   

  	
  268

  	
   

  	
  268

  	
   

  	
  336

  	
   

  
	
  Construction
  Loans

  	
  E*

  	
   

  	
  714

  	
   

  	
  538

  	
   

  	
  1,287

  	
   

  	
  2,729

  	
   

  	
  2,329

  	
   

  	
  1,905

  	
   

  	
  2,470

  	
   

  	
  2,105

  	
   

  	
  2,246

  	
   

  	
  2,969

  	
   

  	
  2,146

  	
   

  	
  0

  	
   

  
	
  Holdings
  Loan/LC Facility

  	
  E*

  	
   

  	
  72

  	
   

  	
  58

  	
   

  	
  58

  	
   

  	
  77

  	
   

  	
  62

  	
   

  	
  62

  	
   

  	
  77

  	
   

  	
  62

  	
   

  	
  62

  	
   

  	
  77

  	
   

  	
  62

  	
   

  	
  77

  	
   

  
	
  Total
  Interest Expenses

  	
   

  	
   

  	
  2,311

  	
   

  	
  2,120

  	
   

  	
  2,599

  	
   

  	
  2,841

  	
   

  	
  2,426

  	
   

  	
  2,100

  	
   

  	
  2,778

  	
   

  	
  2,399

  	
   

  	
  2,606

  	
   

  	
  3,410

  	
   

  	
  2,572

  	
   

  	
  510

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Construction
  Financing Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Rollins,
  Stetson II, Sheffield

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Stetson
  II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Rollins

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  3,775

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Sheffield

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  2,300

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Oakfield
  I & II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  6,275

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  KWP
  II

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  1,725

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Kahuku

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  2,650

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Longfellow

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  2,400

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Steel
  Winds II

  	
  E*

  	
   

  	
  0

  	
   

  	
  763

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Milford
  II A

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Construction Financing Fees

  	
   

  	
   

  	
  0

  	
   

  	
  763

  	
   

  	
  19,125

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term
  Debt Financing Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stetson

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Cohocton
  RefI

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Cohocton

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  2,025

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Rollins,
  Stetson II, Sheffield

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Stetson
  II

  	
  E*

  	
   

  	
  0

  	
   

  	
  350

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Rollins

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  2,650

  	
   

  	
  0

  	
   

  
	
  Sheffield

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  1,600

  	
   

  	
  0

  	
   

  
	
  Oakfield
  I & II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  KWP
  II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Kahuku

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Longfellow

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Steel
  Winds II

  	
  E*

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  250

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Milford
  II A

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total
  Term Debt Fees

  	
   

  	
   

  	
  0

  	
   

  	
  350

  	
   

  	
  2,025

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  250

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  4,250

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Working
  Capital Adjustment

  	
   

  	
   

  	
  (7,279

  	
  )

  	
  1,483

  	
   

  	
  (4,918

  	
  )

  	
  5,366

  	
   

  	
  (4,003

  	
  )

  	
  (1,481

  	
  )

  	
  2,885

  	
   

  	
  (1,138

  	
  )

  	
  2,710

  	
   

  	
  3,011

  	
   

  	
  3,271

  	
   

  	
  2,041

  	
   

  
	
  Cushion

  	
   

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  
	
  Payment
  to Wind Partners II

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Payment
  to Wind Partners II

  	
   

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
  Total

  	
   

  	
   

  	
  (6,279

  	
  )

  	
  2,483

  	
   

  	
  (3,918

  	
  )

  	
  6,366

  	
   

  	
  (3,003

  	
  )

  	
  (481

  	
  )

  	
  3,885

  	
   

  	
  (138

  	
  )

  	
  3,710

  	
   

  	
  4,011

  	
   

  	
  4,271

  	
   

  	
  3,041

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  Users

  	
   

  	
   

  	
  53,142

  	
   

  	
  46,066

  	
   

  	
  85,678

  	
   

  	
  57,729

  	
   

  	
  54,786

  	
   

  	
  130,356

  	
   

  	
  65,307

  	
   

  	
  54,145

  	
   

  	
  102,345

  	
   

  	
  51,483

  	
   

  	
  38,552

  	
   

  	
  76,335

  	
   

  
	
  Cumulative

  	
   

  	
   

  	
  531,720

  	
   

  	
  577,786

  	
   

  	
  663,464

  	
   

  	
  721,192

  	
   

  	
  775,978

  	
   

  	
  906,334

  	
   

  	
  971,640

  	
   

  	
  1,025,786

  	
   

  	
  1,128,131

  	
   

  	
  1,179,614

  	
   

  	
  1,218,165

  	
   

  	
  1,294,300

  	
   

  



 


3






 


 


 










 


Schedule 5


 


Permitted Indebtedness 


 


None.


 

















 


Schedule 6


 


Post-Closing Obligations


 


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) 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

  	
   

  	
  12/31/08

  



 

















 


	
  Note)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  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 7


 


Steel Winds Reorganization


 


1.               New York Wind
III, LLC to purchase Lehman First Wind Holdings, LLC Class B membership
interests in NY Wind II, LLC.


 


2.               New York Wind
III, LLC to transfer Class A and Class B membership interests in New
York Wind II, LLC to CSSW, LLC.


 


3.               New York Wind
II, LLC to transfer membership interests in Windfarm Prattsburgh, L.L.C. to
First Wind New York Holdings, LLC.


 


4.               CSSW, LLC to
dissolve New York Wind III, LLC or merge it into New York Wind II, LLC.