Exhibit 10.30


 


EXECUTION COPY


 


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.


 




 





 


 


FIRST AMENDED AND RESTATED


 


 


LIMITED LIABILITY COMPANY AGREEMENT


 


 


of


 


 


MILFORD WIND PARTNERS, LLC


 


 


dated as of September 28, 2009


 




 





 


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  3

  
	
  Section 1.1.

  	
  Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  CONTINUATION;
  OFFICES; TERM

  	
  3

  
	
  Section 2.1.

  	
  Continuation
  of the Company

  	
  3

  
	
  Section 2.2.

  	
  Name, Office
  and Registered Agent

  	
  3

  
	
  Section 2.3.

  	
  Purpose

  	
  3

  
	
  Section 2.4.

  	
  Term

  	
  4

  
	
  Section 2.5. 

  	
  Organizational
  and Fictitious Name Filings; Preservation of Limited Liability 

  	
  4 

  
	
  Section 2.6.

  	
  No
  Partnership Intended

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  RIGHTS AND
  OBLIGATIONS OF THE MEMBERS

  	
  4

  
	
  Section 3.1.

  	
  Membership
  Interests

  	
  4

  
	
  Section 3.2.

  	
  Actions by
  the Members

  	
  5

  
	
  Section 3.3.

  	
  Management
  Rights

  	
  7

  
	
  Section 3.4.

  	
  Other Activities

  	
  7

  
	
  Section 3.5.

  	
  No Right to
  Withdraw

  	
  12

  
	
  Section 3.6.

  	
  Limitation
  of Liability of Members

  	
  12

  
	
  Section 3.7.

  	
  Liability
  for Deficits

  	
  14

  
	
  Section 3.8.

  	
  Company
  Property

  	
  14

  
	
  Section 3.9. 

  	
  Retirement,
  Resignation, Expulsion, Incompetency, Bankruptcy or Dissolution of a Member 

  	
  14 

  
	
  Section 3.10.

  	
  Withdrawal
  of Capital

  	
  14

  
	
  Section 3.11.

  	
  Representations
  and Warranties

  	
  15

  
	
  Section 3.12.

  	
  Covenants

  	
  16

  
	
  Section 3.13.

  	
  Cash Flow
  Prior to the Second Equity Capital Contribution Date

  	
  17

  
	
  Section 3.14.

  	
  Matters
  Pertaining to the Cash Grant

  	
  17

  
	
  Section 3.15.

  	
  Separateness

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CAPITAL
  CONTRIBUTIONS; CAPITAL ACCOUNTS

  	
  21

  
	
  Section 4.1.

  	
  Capital
  Contributions

  	
  21

  
	
  Section 4.2.

  	
  Capital
  Accounts

  	
  21

  
	
  Section 4.3. 

  	
  Working
  Capital Loans; Letter of Credit Reimbursement Obligations 

  	
  23 

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  ALLOCATIONS

  	
  25

  



 


i

















 


	
  Section 5.1.

  	
  Allocations

  	
  25

  
	
  Section 5.2.

  	
  Adjustments

  	
  26

  
	
  Section 5.3.

  	
  Tax
  Allocations

  	
  27

  
	
  Section 5.4.

  	
  Transfer or
  Change in Company Interest

  	
  28

  
	
  Section 5.5.

  	
  Timing of
  Allocations

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  DISTRIBUTIONS

  	
  29

  
	
  Section 6.1.

  	
  Special
  Distributions

  	
  29

  
	
  Section 6.2.

  	
  Distribution
  of Distributable Cash

  	
  30

  
	
  Section 6.3.

  	
  Withholding
  Taxes

  	
  32

  
	
  Section 6.4.

  	
  Limitation
  upon Distributions

  	
  33

  
	
  Section 6.5.

  	
  No Return of
  Distributions

  	
  33

  
	
  Section 6.6.

  	
  Calculation
  of Calculated Amount

  	
  33

  
	
  Section 6.7.

  	
  Compelling
  Distributions

  	
  36

  
	
  Section 6.8. 

  	
  Satisfaction
  of Certain Recapture-Related Obligations of the Class A Members to the Class B
  Members 

  	
  37 

  
	
  Section 6.9. 

  	
  Satisfaction
  of Certain Recapture-Related Obligations of the Class B Members to the Class A
  Members 

  	
  37 

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  ACCOUNTING
  AND RECORDS

  	
  38

  
	
  Section 7.1.

  	
  Reports

  	
  38

  
	
  Section 7.2.

  	
  Books and
  Records and Inspection

  	
  40

  
	
  Section 7.3.

  	
  Bank
  Accounts, Notes and Drafts

  	
  42

  
	
  Section 7.4.

  	
  Partnership
  Status and Tax Elections

  	
  42

  
	
  Section 7.5.

  	
  Company Tax
  Returns

  	
  43

  
	
  Section 7.6.

  	
  Tax Audits

  	
  44

  
	
  Section 7.7.

  	
  Cooperation

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  MANAGEMENT

  	
  47

  
	
  Section 8.1.

  	
  Management

  	
  47

  
	
  Section 8.2.

  	
  Managing
  Member

  	
  47

  
	
  Section 8.3.

  	
  Major
  Decisions

  	
  49

  
	
  Section 8.4.

  	
  Insurance

  	
  49

  
	
  Section 8.5.

  	
  Actions in
  Respect of the Existing Financing

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  TRANSFERS

  	
  51

  
	
  Section 9.1.

  	
  Prohibited
  Transfers

  	
  51

  
	
  Section 9.2.

  	
  Conditions
  Applicable to All Transfers

  	
  51

  
	
  Section 9.3.

  	
  Certain
  Permitted Transfers

  	
  54

  
	
  Section 9.4.

  	
  Upstream
  Reorganizations

  	
  54

  
	
  Section 9.5.

  	
  Purchase/Call
  Option

  	
  55

  



 


ii

















 


	
  Section 9.6.

  	
  Termination
  Purchase Option

  	
  57

  
	
  Section 9.7.

  	
  Buyout
  Events

  	
  59

  
	
  Section 9.8.

  	
  Regulatory
  and Other Authorizations and Consents

  	
  61

  
	
  Section 9.9.

  	
  Admission

  	
  62

  
	
  Section 9.10.

  	
  Security
  Interest Consent

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  DISSOLUTION
  AND WINDING-UP

  	
  63

  
	
  Section 10.1.

  	
  Events of
  Dissolution

  	
  63

  
	
  Section 10.2.

  	
  Distribution
  of Assets

  	
  63

  
	
  Section 10.3.

  	
  In-Kind
  Distributions

  	
  65

  
	
  Section 10.4.

  	
  Certificate
  of Cancellation

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  GENERAL
  INDEMNITY

  	
  66

  
	
  Section 11.1.

  	
  Indemnification
  by the Members

  	
  66

  
	
  Section 11.2.

  	
  Indemnification
  of Members by the Company

  	
  66

  
	
  Section 11.3.

  	
  Procedures
  for Indemnity Obligation

  	
  67

  
	
  Section 11.4.

  	
  Member
  Indemnification Procedures

  	
  68

  
	
  Section 11.5.

  	
  Gross-Up of
  Indemnity

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  MISCELLANEOUS

  	
  71

  
	
  Section 12.1.

  	
  Notices

  	
  71

  
	
  Section 12.2.

  	
  Amendment

  	
  71

  
	
  Section 12.3.

  	
  Partition

  	
  71

  
	
  Section 12.4.

  	
  Waivers and
  Modifications

  	
  71

  
	
  Section 12.5.

  	
  Severability

  	
  72

  
	
  Section 12.6.

  	
  Successors;
  No Third-Party Beneficiaries

  	
  72

  
	
  Section 12.7.

  	
  Entire
  Agreement

  	
  72

  
	
  Section 12.8.

  	
  Governing
  Law

  	
  72

  
	
  Section 12.9.

  	
  Further
  Assurances

  	
  73

  
	
  Section 12.10.

  	
  Counterparts

  	
  73

  
	
  Section 12.11.

  	
  Dispute
  Resolution

  	
  73

  
	
  Section 12.12.

  	
  Confidentiality

  	
  74

  
	
  Section 12.13.

  	
  Joint
  Efforts

  	
  76

  
	
  Section 12.14.

  	
  Specific
  Performance

  	
  76

  
	
  Section 12.15.

  	
  Survival

  	
  76

  
	
  Section 12.16.

  	
  Effective
  Date

  	
  76

  
	
  Section 12.17.

  	
  Recourse
  Only to Member

  	
  76

  



 


iii

















 


	
  ANNEX I

  	
  Definitions

  
	
  ANNEX II

  	
  Membership
  Interests

  



 


	
  SCHEDULES

  	
   

  
	
  Schedule 3.4(a)

  	
  Project Site

  
	
  Schedule 4.2(d)

  	
  Initial
  Capital Account

  
	
  Schedule 8.2(b)

  	
  Required
  Reserves

  
	
  Schedule 8.4

  	
  Insurance

  
	
  Schedule 9

  	
  Transfer
  Representations and Warranties

  
	
  Schedule 10

  	
  Shared
  Facilities Plan

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
  Exhibit A

  	
  Form of
  Certificate for Class A Membership Interest

  
	
  Exhibit B

  	
  Form of
  Certificate for Class B Membership Interest

  
	
  Exhibit C

  	
  Form of
  Working Capital Revolving Loan Note

  
	
  Exhibit D

  	
  Form of
  MWCI Operating Agreement

  
	
  Exhibit E

  	
  Form of
  Project Company Operating Agreement

  



 


iv

















 


FIRST AMENDED AND RESTATED


LIMITED LIABILITY COMPANY AGREEMENT


 


of


 


MILFORD WIND PARTNERS, LLC


 


This First Amended and Restated Limited Liability Company Agreement
(this “Company LLC Agreement”) of Milford Wind Partners, LLC, a Delaware
limited liability company (the “Company”), dated as of September 28,
2009 (the “Effective Date”), is made and entered into by and between
Milford NHC, LLC, a Delaware limited liability company (“NHC”) and
Stanton Equity Trading Delaware LLC, a Delaware limited liability company (“Stanton”
or the “Initial Non-Affiliated Class B Member”).


 


Preliminary Statements


 


WHEREAS, on August 27, 2009, Milford Wind Corridor LLC, a Delaware
limited liability company (“Milford”) formed Milford Wind Holdings, LLC,
a Delaware limited liability company (the “Holdings”), as a wholly-owned
subsidiary of Milford, and Holdings formed NHC, as a wholly-owned subsidiary of
Holdings;


 


WHEREAS, the Company was formed by virtue of its certificate of
formation filed with the Secretary of State of the State of Delaware on August 27,
2009 (the “Certificate of Formation”), and is governed by the Limited
Liability Company Agreement of the Company, dated as of August 27, 2009,
by Holdings and NHC as the members of the Company (the “Original Operating
Agreement”);


 


WHEREAS, under the Original Operating Agreement, Holdings owned 100% of
the Class B Membership Interests (as defined below) and NHC owned 100% of
the Class A Membership Interests (as defined below).


 


WHEREAS, MWCI Holdings, LLC, a Delaware limited liability company (“MWCI”)
owns 100% of the membership interests in Milford Wind Corridor Phase I, LLC
(the “Project Company”). The Project Company owns and is developing the
Project;


 


WHEREAS, on August 31, 2009, Milford contributed one hundred
percent (100%) of the ownership interests in MWCI to Holdings and Holdings then
contributed one hundred percent (100%) of the ownership interests in MWCI to
NHC.


 


WHEREAS, pursuant to the Equity Contribution and Purchase Agreement
among NHC, the Company and Stanton, dated as of September 28, 2009 (the


 

















 


“Contribution
Agreement”), (a) Stanton agreed with Holdings to purchase from
Holdings the Class B Membership Interests and agreed with NHC to make an
Initial Equity Capital Contribution to the Company on the Initial Closing Date
on the terms and conditions provided in the Contribution Agreement and (b) NHC
agreed to contribute one hundred percent (100%) of the ownership interests in
MWCI on the Initial Closing Date;


 


WHEREAS, pursuant to the Contribution Agreement, Stanton has agreed to
make the Second Equity Contribution Amount on the Second Equity Contribution
Date subject to the satisfaction or waiver of certain conditions precedent;


 


WHEREAS, pursuant to the Contribution Agreement, Stanton has agreed, if
necessary, to make the Third Equity Contribution Amount on the Third Equity
Contribution Date subject to the satisfaction or waiver of certain conditions
precedent; and


 


WHEREAS, NHC and Stanton each desire for Stanton to be admitted as a
Member of the Company as of the Initial Closing Date and for the Original
Operating Agreement to be amended and restated as stated herein.


 


NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree,
notwithstanding any contrary provision of the Original Operating Agreement or
this Company LLC Agreement, effective as of the Initial Closing Date (as
defined below), that:


 


A.            the sale by Holdings of the Class B
Membership Interests to the Initial Non-Affiliated Class B Member pursuant
to the Contribution Agreement is approved;


 


B.            the Initial Non-Affiliated Class B
Member is admitted as a Member of the Company, holding all of the outstanding Class B
Membership Interests in the Company;


 


C.            NHC continues as a Member of the Company,
holding all of the outstanding Class A Membership Interests (as defined
below) in the Company;


 


D.            the Initial Non-Affiliated Class B
Member and NHC are the sole Members of the Company; and


 


E.             the Original Operating Agreement is amended
and restated in its entirety as described herein.


 


2

















 


ARTICLE I


DEFINITIONS


 


Section 1.1.       Definitions.
Capitalized terms used but not otherwise defined in this Company LLC Agreement
have the meanings given to such terms in Annex I.


 


ARTICLE II


CONTINUATION; OFFICES; TERM


 


Section 2.1.       Continuation of the
Company. The Members hereby acknowledge the continuation of the Company as
a limited liability company pursuant to the Act, the Certificate of Formation
and this Company LLC Agreement.


 


Section 2.2.       Name, Office and
Registered Agent.


 


(a)           The name of the Company shall be “Milford
Wind Partners, LLC” or such other name or names the Managing Member may select
and promptly notify to the other Members. The principal office of the Company
shall be located at c/o First Wind Energy, LLC, 85 Wells Ave., Suite 305,
Newton, Massachusetts 02459. The Managing Member may change the location of the
principal office of the Company to another location, provided that the Managing
Member gives prompt written notice of any such change to the registered agent
of the Company and all Members.


 


(b)           The registered office of the Company in the
State of Delaware is located at c/o CT Corp, 1209 Orange Street, Wilmington,
Delaware 19801. The registered agent of the Company for service of process at
such address is CT Corp. The registered office and registered agent may be
changed by the Managing Member at any time in accordance with the Act provided
that the Managing Member gives prompt written notice of any such change to all
Members. The registered agent’s primary duty as such is to forward to the
Company at its principal office and place of business any notice that is served
on it as registered agent.


 


Section 2.3.       Purpose. The nature
of the business or purpose to be conducted or promoted by the Company is: (i) to
acquire, own, hold or dispose of the membership interests in MWCI and
indirectly the membership interests in the Project Company and the Project; (ii) to
engage in the transactions contemplated by the Transaction Documents; (iii) to
engage, through subsidiaries, in the business of generating and supplying
electricity from wind farms, and (iv) to engage in any lawful act or
activity, enter into any agreement and to exercise any powers permitted to limited
liability companies organized under the Act in each case that are incidental to
or necessary, suitable or convenient for the accomplishment of the purposes
specified above.


 


3

















 


Section 2.4.       Term. The term of
the Company commenced on August 27, 2009, and shall continue until such
date that the Company is dissolved in accordance with the terms hereof or as
otherwise provided by law (the “LLC Agreement Termination Date”).


 


Section 2.5.       Organizational and Fictitious
Name Filings; Preservation of Limited Liability. The Managing Member shall
cause the Company to register as a foreign limited liability company and file
such fictitious or trade names, statements or certificates in such
jurisdictions and offices as are necessary or appropriate for the conduct of
the Company’s operation of its business. The Managing Member may take any and
all other actions as may be reasonably necessary or appropriate to perfect and
maintain the status of the Company as a limited liability company or similar
type of entity under the laws of Delaware and any other state or jurisdiction
other than Delaware in which the Company engages in business and continue the
Company as a limited liability company and to protect the limited liability of
the Members as contemplated by the Act.


 


Section 2.6.       No Partnership Intended.
The Members intend that the Company not be a partnership, limited partnership,
joint venture or other arrangement other than for tax purposes under the Code,
the applicable Treasury Regulations and any state, municipal or other income
tax law or regulation, and this Company LLC Agreement shall not be construed to
suggest otherwise.


 


ARTICLE III


RIGHTS AND OBLIGATIONS OF THE MEMBERS


 


Section 3.1.       Membership Interests.


 


(a)           The Membership Interests comprise 951 Class A
Membership Interests and 49 Class B Membership Interests, all of which are
issued and outstanding. The holders of the outstanding Membership Interests are
set forth on Annex II to this Company LLC Agreement. The Manager shall
periodically update Annex II from time to time to reflect any change in the
ownership of the Membership Interest resulting from the issuance, redemption or
transfer of Membership Interests in accordance with this Company LLC Agreement.


 


(b)           The Class A Membership Interests and
the Class B Membership Interests shall (i) have the rights and
obligations ascribed to such Membership Interests in this Company LLC Agreement
and the Act; (ii) be evidenced solely by certificates in the forms annexed
hereto as Exhibit A and Exhibit B, respectively, or such
other form as may be prescribed from time to time by any Applicable Law; (iii) be
recorded in a register of Membership Interests, which register the Managing
Member shall cause the Manager to


 


4

















 


maintain; (iv) be
transferable only on recordation of such Transfer in the register of Membership
Interest, which recordation the Managing Member shall cause the Manager to
make, upon compliance with the provisions of ARTICLE IX hereof and upon
presentation of the certificates duly endorsed for Transfer, or accompanied by
assignment documentation in accordance with ARTICLE IX; (v) be
“securities” governed by Article 8 of the UCC in any jurisdiction (x) that
has adopted revisions to Article 8 of the UCC substantially consistent
with the 1994 revisions to Article 8 adopted by the American Law Institute
and the National Conference of Commissioners on Uniform State Laws and (y) whose
laws may be applicable, from time to time, to the issues of perfection, the
effect of perfection or non-perfection, and the priority of a security interest
in Membership Interests in the Company; and (vi) be personal property.


 


(c)           The Company shall be entitled to treat the
registered holder of a Membership Interest, as shown in the register of
Membership Interests referred to in Section 3.1(b), as the Member
for all purposes of this Company LLC Agreement, except that the Manager may
record in the register of Membership Interest any security interest of a
secured party pursuant to any security interest permitted by this Company LLC
Agreement.


 


(d)           If a Member transfers all of its Membership
Interest to another Person pursuant to and in accordance with the terms set
forth in ARTICLE IX, the transferor shall automatically cease to be a
Member.


 


Section 3.2.       Actions by the Members.


 


(a)           Except as otherwise permitted by this
Company LLC Agreement (including Section 3.2(e)), all actions of
the Members shall be taken at meetings of the Members which may be called by
any Member for any reason without further action by the Managing Member and, in
the alternative, shall be called by the Managing Member within 10 days
following the written request of a Member. The Members may conduct any Company
business at any meeting that is permitted under the Act or this Company LLC
Agreement, whether such meeting is called by the Managing Member or by any
Member. All meetings shall be at a reasonable time and place. Accurate minutes
of any meeting shall be taken and filed with the minute books of the Company.
Following each meeting, the minutes of the meeting shall be sent promptly to
each Member.


 


(b)           Members may participate in any meeting of
the Members by means of conference telephone or other communications equipment
so that all persons participating in the meeting can hear each other or by any
other means permitted by law. Such participation shall constitute presence in
person at such meeting.


 


5














 


(c)           The presence in person or by proxy of
Members owning more than 50 percent of the aggregate Class A Membership
Interests and more than 50 percent of the aggregate Class B Membership
Interests shall constitute a quorum for purposes of transacting business at any
meeting of the Members provided, that in the event a quorum is not
present or otherwise represented at a meeting of the Members duly called in
accordance with this Section 3.2(c), the Members present at such a
meeting shall have the power to adjourn such meeting and to call another
meeting no fewer than 10 days nor more than 15 days from such meeting (and
notice thereof shall be promptly provided to all Members by the Managing Member
(and the Members present at such second meeting shall be deemed to constitute a
quorum). For the avoidance of doubt, no Major Decision shall be agreed at any
meeting, or otherwise taken, without a Class Majority Vote.


 


(d)           Written notice stating the place, day and
hour of the meeting of the Members, and the purpose or purposes for which the
meeting is called, shall be delivered by or at the direction of the Managing
Member or of the Member calling such meeting, to each Member of record entitled
to vote at such meeting not less than 5 Business Days nor more than 30 days prior
to the meeting. Notwithstanding the foregoing, meetings of the Members may be
held without notice so long as all the Members are present in person or by
proxy.


 


(e)           Any action may be taken by the Members
without a meeting if such action is authorized or approved by the written
consent of Members representing sufficient Membership Interests to authorize or
approve such action pursuant to this Company LLC Agreement. The Members may
conduct any Company business or take any action required of Members under this
Company LLC Agreement through written consent. Where action is authorized by
written consent no prior notice is required and no meeting of Members needs to
be called or noticed. A copy of any action taken by written consent shall be
sent promptly to all Members and all actions by written consent shall be filed
with the minute books of the Company.


 


(f)            Each Class A Membership Interest and
each Class B Membership Interest shall be entitled to one vote for
purposes of any vote, consent or approval of Members required under this
Company LLC Agreement or the Act. With respect to those matters required or
permitted to be voted upon by the Members, or for which a consent or approval
of Members is required or permitted, the affirmative vote, consent or approval
of Members owning more than 50 percent of the outstanding Membership Interests
(the “Majority Vote”) shall be required to authorize or approve any such
matter; provided that for Major Decisions (such term being used as
defined prior to, or following, the Flip Date, as the case may be) the
affirmative vote, consent or approval of Members owning more than 50 percent of
each of the outstanding Class A Membership Interests of the Company and
the outstanding Class B Membership Interests of the Company, voting as
separate classes, shall be required to authorize or approve such Major Decision
in


 


6

















 


addition to
any other approval required by this Company LLC Agreement or the Act (a “Class Majority
Vote”). Prior to the Second Equity Capital Contribution, the consent of a Class B
Member with respect to a requested Major Decision shall not be unreasonably
withheld. Except for a Class Majority Vote or as otherwise
expressly provided in this Company LLC Agreement, no separate vote, consent or
approval of either Class A Members, acting as a class, or Class B
Members, acting as a class, shall be required to authorize or approve any
matter for which a vote, consent or approval of Members is required under this
Company LLC Agreement.


 


Section 3.3.       Management Rights.
No Member other than the Managing Member shall have any right, power or
authority to take part in the management or control of the business of, or
transact any business for, the Company, to sign for or on behalf of the Company
or to bind the Company in any manner whatsoever. Except as otherwise provided
herein, the Managing Member shall not hold out or represent to any third party
that any other Member has any such power or right or that any Member is
anything other than a member in the Company. A Member shall not be deemed to be
participating in the control of the business of the Company by virtue of its
possessing or exercising any rights set forth in this Company LLC Agreement or
the Act.


 


Section 3.4.       Other Activities.


 


(a)           Notwithstanding any duty otherwise existing
at law or in equity, but subject to the express provisions of Section 3.4(b),
any Member or the Manager may engage in or possess an interest in other
business ventures of every nature and description, independently or with
others, even if such activities compete directly with the business of the
Company, and neither the Company nor any of the Members shall have any rights
by virtue of this Company LLC Agreement in and to such independent ventures or
any income, profits or property derived from them, including the development of
additional wind projects in the areas around the Project site described in Schedule 3.4(a). Without limiting the
generality of the foregoing, the Members recognize and agree that they and
their respective Affiliates currently engage in certain activities involving
the generation, transmission, distribution, marketing and trading of
electricity and other energy products (including futures, options, swaps,
exchanges of future positions for physical deliveries and commodity trading),
and the gathering, processing, storage and transportation of such products, as
well as other commercial activities related to such products, and that these
and other activities by Members and their Affiliates (herein referred to as “Outside
Activities”) may be made possible or more profitable by reason of the
Company’s activities. The Members agree that, subject to the express provisions
of Section 3.4(b), (i) no Member or Affiliate of a Member
shall be restricted in its right to conduct, individually or jointly with
others, for its own account any Outside Activities, and (ii) no Member or
its Affiliates shall have any duty or obligation, express or implied, to
account to, or to share the results or profits of such


 


7

















 


Outside
Activities with, the Company, any other Member or any Affiliate of any other
Member, by reason of such Outside Activities. Notwithstanding the provisions of
this Section 3.4, the provisions of this Section 3.4 shall
in no way waive a Member’s obligations under the other provisions of this
Company LLC Agreement.


 


(b)           The Members and the Company agree that
Sponsor and its Affiliates have the right to build additional wind projects
(each, an “Expansion Project”) in the areas around the Project site
described in Schedule 3.4(a), subject
to the procedures set forth in this Section 3.4(b):


 


(i)        Prior to, the commencement of work under any
contract for the erection of turbines on site for any Expansion Project, the Class A
Members shall cause the Expansion Parties to promptly deliver to the Members at
the cost of the Expansion Parties (A) if the Expansion Project (other than
Phase II) is located within 50 rotor diameters of the closest Turbine of the
Project, a wind study to be performed by a nationally recognized wind
consultant reasonably acceptable to the Class B Members holding a majority
of the Class B Membership Interests, which wind study shall be sufficient
to allow the Independent Engineer to analyze and determine, on a preliminary
basis, the Expansion Project Effect, and (B) in the case of an Expansion
Project other than Phase II that utilizes the Gen Lead Substation Assets and
Transmission Line Assets, a system impact study from a nationally recognized
power transmission consultant reasonably acceptable to the Class B Members
holding a majority of Class B Membership Interests, which system impact
study shall be sufficient to allow the Independent Engineer to calculate and
determine the detriment to the Project from the loss of capacity to the Project
resulting from such use of the Gen Lead Substation Assets and Transmission
Assets (the “Transmission Effect”). The Managing Member or shall cause
the Manager to, in conjunction with the Independent Engineer, aggregate the
Expansion Project Effect and Transmission Project Effect and shall or shall
cause the Manager to re-run the Base Case Model, changing only the assumptions
necessary to give effect to the aggregate of the Expansion Project Effect and
Transmission Effect (such model, the “Preliminary Comparison Model”).
The Preliminary Comparison Model shall be compared to the Base Case Model and
the detriment, if any, resulting from such aggregate of the Expansion Project
Effect and the Transmission Project Effect demonstrated by the comparison shall
be expressed as the present value of the financial reduction in the Project’s
gross revenues through at least the twentieth (20th) year following Commercial
Operation calculated using a present value discount rate of *****% (the “Preliminary
Cash Adjustment”). The Managing Member shall, or shall cause the Manager
to, promptly present to the Company and the Members the determination of the
Preliminary Cash Adjustment, together with the calculations relating thereto.
If the Preliminary Cash Adjustment shows a decrease in net


 


8

















 


present value of less than 1%, no Preliminary Cash Adjustment payment
shall be required to be made and no further action shall be required under this
Section 3.4(b)(i). If the Preliminary Cash Adjustment shows a
decrease in net present value of 1% or greater, the Managing Member shall, or
shall cause the Manager to, notify the Expansion Parties to promptly pay the
amount of such Preliminary Cash Adjustment (the “Preliminary Cash Adjustment
Payment”) to the Company; provided, however, that the Managing
Member shall, or shall cause the Manager to, segregate such Preliminary Cash
Adjustment Payment when received by the Company from the other revenues of the
Company pending the determination of the Final Cash Adjustment in accordance
with Section 3.4(b)(iii).


 


(ii)       If the event that the Expansion Project is Phase
II, prior to the transfer of any Gen Lead Substation Assets and Transmission
Assets to the Expansion Party undertaking Phase II, the Class A Member
shall provide written confirmation as to whether or not the use of the Shared
Facilities by Phase II will be in accordance with the Shared Facilities Plan
and, if not, setting forth the proposed changes to the Shared Facilities Plan.


 


(iii)      Upon completion of the construction of any
Expansion Project (other than Phase II), the Managing Member shall, or shall
cause the Manager to, cause the Independent Engineer to calculate, on a final basis,
the Expansion Project Effect (for any such Expansion Project within 50 rotor
diameter of the closest Turbine of the Project) and the Transmission Effect
(for any such Expansion Project that utilizes the Gen Lead Substation Assets
and Transmission Assets). The Managing Member shall, or shall cause the Manager
to, in conjunction with the Independent Engineer, aggregate the final Expansion
Project Effect and final Transmission Project Effect and shall, or shall cause
the Manager to, re-run the Base Case Model, changing only the assumptions
necessary to give effect to the aggregate of the final Expansion Project Effect
and final Transmission Effect and the final design and construction timetable
(including changes in the projected operations date) (the “Final Comparison
Model”). The Final Comparison Model shall be compared to the Base Case
Model and the result of the comparison shall be used to determine on a final
basis the detriment (if any) to the Company, expressed as the present value of
the financial reduction in the Project’s gross revenues through at least the
twentieth (20th) year following Commercial Operation calculated using a present
value discount rate of *****%. Such amount (if any) shall be the (the “Final
Cash Adjustment”). If the Final Cash Adjustment shows a decrease in net
present value of less than 1%, the Final Cash Adjustment shall be deemed to be
zero. The Managing Member shall, or shall cause the Manager to, promptly
determine the difference between the Final Cash Adjustment and the Preliminary
Cash Adjustment Payment and present such information, together with the
calculation of the Final Cash Adjustment, to the


 


9

















 


Company and the Members. If the difference between the Final Cash Adjustment
and the Preliminary Cash Adjustment Payment is positive, the Managing Member
shall, or shall cause the Manager to, notify the Expansion Parties to promptly
pay the amount of such positive amount to the Company. If such difference is
negative, the Managing Member shall, or shall cause the Manager to, promptly
pay the absolute value of such negative amount to the Expansion Parties by
withdrawing such amount from the segregated Preliminary Cash Adjustment
Payment.


 


(iv)     Notwithstanding anything to the contrary in this
Company LLC Agreement, the Class B Members holding a majority of the Class B
Membership Interests may dispute or disagree with the Preliminary Cash
Adjustment or Final Cash Adjustment and any underlying calculation relating
thereto by providing written notice to the Class A Members within 15
Business Days of any of the Preliminary Cash Adjustment or Final Cash
Adjustment being presented to the Company and the Members. In the event of such
a written notice, the matter under dispute will be resolved in accordance with
the dispute resolution procedures in Section 12.11. Prior to the
resolution of any such dispute, the implementation of the applicable Expansion
Project may proceed in accordance with the other terms and conditions of this
Company LLC Agreement as if the Preliminary Cash Adjustment or Final Cash
Adjustment or underlying calculations thereto had not been disputed; provided,
however, that upon the resolution of the applicable dispute pursuant to Section 12.11,
the Preliminary Cash Adjustment or the Final Cash Adjustment, as the case may
be, (and related underlying calculations that were under dispute) shall be
adjusted as necessary to give effect to such dispute’s resolution. For the
avoidance of doubt, if the Class B Members do not provide written notice
to the Class A Members of their decision to dispute or disagree with the
Preliminary Cash Adjustment or Final Cash Adjustment within 15 Business Days of
such Preliminary Cash Adjustment or Final Cash Adjustment being presented to
the Company and the Members, the Class B Members shall be deemed to have
confirmed the Preliminary Cash Adjustment or Final Cash Adjustment and the
implementation of the applicable Expansion Project may proceed on such a basis.


 


(v)      Should an Expansion Project other than Phase II
utilize the Gen Lead Substation Assets and Transmission Line Assets, the
Managing Member shall cause the Company to enter into a transmission agreement
with the Expansion Parties developing such Expansion Project that will provide
for compensation to the Company for the Transmission Effect in accordance with
the procedures set forth in Section 3.4(b)(i) and Section 3.4(b)(iii).


 


10

















 


(vi)     For purposes of this Company LLC Agreement, under
no circumstances shall any assumptions in the Base Case Model pursuant to this Section 3.4(b) be
modified to reflect the historical performance of the Project.


 


(c)           The Members further agree that each
Expansion Party shall be a third-party beneficiary of Section 3.4(b) and
shall have the right to enforce the provisions of Section 3.4(b) against
the Members or the Company only to the extent such Expansion Party is seeking
to defend a claim or to obtain relief with respect to any action of the Company
or the Members in contravention of Section 3.4(b) that seek to
hinder or prevent or otherwise interfere with the rights of the Expansion
Parties to develop the Expansion Projects; provided that a Member shall
only be liable with respect to actions taken by such Member in contravention of
Section 3.4(b) and shall not be liable for the actions or inactions
by any other Member or the Company.


 


(d)           Prior to the commencement of construction
work to erect any turbines on site for any Expansion Project (other than Phase
II) that is within 50 rotor diameters of the closest Turbine of the Project, or
the permitting by the applicable Expansion Party of the filing of any lien,
security interest or other encumbrance against any such Expansion Project, the Class A
Member will cause the Expansion Party owning such Expansion Project and the
Project Company to execute (1) an agreement which obligates such Expansion
Party to pay to the Project Company any Preliminary Cash Adjustment and any
Final Cash Adjustment as provided in Section 3.4(b), which
agreement will run with and burden such Expansion Project and run with and
benefit the Project and (2) a memorandum of such agreement to be placed of
record in the counties in which such Expansion Project and the Project are
located.


 


(e)           To the extent any Expansion Project will use
any Shared Facilities, the Class A Member will cause the Expansion Party
owning such Expansion Project and the Project Company to execute an agreement(s) governing
the shared use of such Shared Facilities, (1) which agreement(s) shall
be substantially consistent with the Shared Facilities Plan and (2) which
agreement(s) will run with, benefit and burden such Expansion Project and
run with, benefit and burden the Project and (3) which agreement(s) (or
a memorandum thereof) will be placed of record in the counties in which such
Expansion Project and the Project are located. To the extent that any use of
Shared Facilities involves the sale of any interest in such Shared Facilities,
the purchase price for such sale shall be paid in a manner consistent with the
Shared Facilities Plan. No sale or other conveyance of any Shared Facilities
intended to be continued to be used by the Project Company shall be made in a
manner which would permit the termination of the Project Company’s rights to
use such Shared Facilities except upon a default by the Project Company under
any agreement for the shared use of such Shared Facilities.


 


11

















 


Section 3.5.       No Right to Withdraw.
Except in the case of Transfers in accordance with ARTICLE IX, no Member
shall have any right to resign voluntarily or otherwise withdraw from the
Company without the prior written consent of each of the remaining Members of
the Company in their sole and absolute discretion.


 


Section 3.6.       Limitation of Liability
of Members.


 


(a)           Anything in this Company LLC Agreement to
the contrary notwithstanding, the Managing Member does not guarantee any tax
credits or Cash Grant or any outcome or event or that the Company will in fact
comply with any applicable legal or contractual obligation; provided that
this Section 3.6(a) does not release the Managing Member from
its obligation to perform in accordance with the terms of this Company LLC
Agreement, and the Managing Member shall be required to perform its duties and
obligations hereunder (i) in instances not involving the direct or
indirect operation and management of the Project and the Company, in good faith
and in a manner reasonably believed to be in the best interest of the Company
and (ii) in accordance with the Prudent Operator Standard. The Members
shall be required to perform their duties and obligations hereunder in good
faith.


 


(b)           Each Member’s liability shall be limited as
described in the Act and other Applicable Law. Except as otherwise required by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be the debts, obligations and liabilities
solely of the Company, and the Members of the Company shall not be obligated
personally for any of such debts, obligations or liabilities solely by reason
of being a Member of the Company. In respect of any specific matter or
circumstance requiring interpretation, application, or enforcement of Material
Contracts, the Managing Member may rely on the advice of legal counsel and
qualified industry consultants engaged to advise the Managing Member or the
Company with respect to such matter or circumstance. The Managing Member shall
have no liability to the Company or any Member in respect of any election made
in good faith pursuant to Section 7.4. In no event shall any Member
be liable under this Company LLC Agreement to another Member for any
consequential, punitive, special or incidental damages (including lost profits)
incurred by, such Member arising from a breach of this Company LLC Agreement; provided
that this limitation shall in no way limit any such liability of a Member
under any other Transaction Document.


 


(c)           Each of the Members shall be fully protected
in relying in good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the Company by any
other Person who is a Member, the Manager or any officer or employee of the
Company, or by any other individual as to matters that such Member reasonably
believes are within such other Person’s professional or expert competence,
including information, opinions, reports or statements as to the value and


 


12

















 


amount of the assets,
liabilities, profits or losses of the Company or any other facts pertinent to
the existence and amount of assets from which distributions to the Members
might properly be paid.


 


(d)           To the extent that, at law or in equity, a
Member, in its capacity as a member or manager of the Company or otherwise, has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member or other Person bound by this Company LLC Agreement,
such Member, acting under this Company LLC Agreement shall not be liable to the
Company or to any Member or other Person bound by this Company LLC Agreement
for its good faith reliance on the provisions of this Company LLC Agreement; provided
that this Section 3.6(d) shall not be construed to limit obligations
or liabilities therefor, in each case as expressly stated in this Company LLC
Agreement or any other Transaction Document. The provisions of this Company LLC
Agreement, to the extent that they restrict the duties and liabilities of a
Member, in its capacity as a member or manager of the Company otherwise
existing at law or in equity, are agreed by the Members to replace such other
duties and liabilities of such Member.


 


(e)           NHC, in its capacity as a Member, or
Managing Member, shall not have any liability for breach of contract (except as
provided in (i) or (ii) below) or breach of duties (including
fiduciary duties) of a member or manager to the Company or to any other Person
that is a party to or is otherwise bound by this Company LLC Agreement, in each
case, to the fullest extent permitted by the Act; provided that this
Company LLC Agreement shall not limit or eliminate liability for any (i) obligations
expressly imposed on NHC, as Member, or Managing Member, pursuant to this
Company LLC Agreement or any other Transaction Document or (ii) act or
omission that constitutes a bad faith violation of the implied contractual
covenant of good faith and fair dealing or gross negligence, willful misconduct
or fraud. The Managing Member, in its capacity as the Managing Member, shall
have no liability to the Company or to the other Members for actions taken, or
decisions not to act taken, with the approval of the Members representing a Class Majority
Vote for Major Decisions. The Managing Member shall have no liability resulting
from any economic losses, reduced revenues of the Project Company or reduced
generation of electricity at the Project resulting solely from the actual level
of wind resource available at the Project at any given time. Except with respect
to liability resulting from gross negligence, fraud or willful misconduct, NHC,
in its capacity as a Member, or Managing Member, shall not have any liability
of any kind under this Company LLC Agreement for monetary damages in an amount
that, taken together with any amounts it has paid, or may then be required to
pay, as indemnification under the Contribution Agreement, would exceed the
amount it would be required to pay at such time if such liability under this
Company LLC Agreement was a Investor Indemnified Cost (as defined in the
Contribution Agreement) and subject to all applicable provisions of ARTICLE 5
of the Contribution Agreement relating to indemnification of


 


13

















 


Investor
Indemnified Costs. For the avoidance of doubt, the Parties hereto acknowledge
that the provisions of ARTICLE 5 of the Contribution Agreement shall include
any amounts that may be payable to an Investor Indemnified Party as a result of
a breach of NHC’s obligations and representations hereunder or under any other
Transaction Documents and that any such amounts shall constitute “Investor
Indemnified Costs.”


 


(f)            NHC, in its capacity as a Member, or
Managing Member, shall not have any liability to the Company, any Class B
Member or any other Person bound by this Company LLC Agreement for damages
resulting from a breach or breaches by (i) the Manager of any of its
obligations, covenants or agreements under any Management Services Agreement or
the Administrative Services Agreement or (ii) the Operator of any of its
obligations, covenants or agreements under any O&M Agreement; provided that
this Section 3.6(f) shall not be construed to limit the
obligations of the Member or Managing Member to perform in accordance with the
terms of this Company LLC Agreement.


 


Section 3.7.       Liability for Deficits.
None of the Members shall be liable to the Company for any deficit in its
Capital Account, nor shall such deficits be deemed assets of the Company,
except to the extent otherwise provided by law with respect to third-party
creditors of the Company and except that the Class B Members have agreed
to a deficit restoration obligation up to the limit described in Section 10.2(g).


 


Section 3.8.       Company Property. All
property owned by the Company, whether real or personal, tangible or intangible
and wherever located, shall be deemed to be owned by the Company, and no
Member, individually, shall have any ownership of such property.


 


Section 3.9.       Retirement, Resignation,
Expulsion, Incompetency, Bankruptcy or Dissolution of a Member. The
retirement, resignation, expulsion, Bankruptcy or dissolution of a Member shall
not, in and of itself, dissolve the Company. The successors in interest to the
bankrupt Member shall, for the purpose of settling the estate, have all of the
rights of such Member, including the same rights and subject to the same
limitations that such Member would have had under the provisions of this
Company LLC Agreement to Transfer its Membership Interest. A successor in
interest to a Member shall not become a substituted Member except as provided
in this Company LLC Agreement.


 


Section 3.10.     Withdrawal of Capital.
No Member shall have the right to withdraw capital from the Company or to
receive or demand distributions (except distributions described in ARTICLE
VI) or return of its Capital Contributions until the Company is dissolved
in accordance with this Company LLC Agreement and applicable


 


14

















 


provisions of
the Act. No Member shall be entitled to demand or receive any interest on its
Capital Contributions.


 


Section 3.11.     Representations and
Warranties.


 


(a)           Each Member hereby represents and warrants
to the Company and each other Member that the following statements are true and
correct as of the date it becomes a Member (both immediately before and after
the time it becomes a Member):


 


(i)        That the Member is duly incorporated, organized
or formed (as applicable), validly existing, and in good standing under the law
of the jurisdiction of its incorporation, organization or formation; if
required by applicable law, that Member is duly qualified and in good standing
in the jurisdiction of its principal place of business, if different from its
jurisdiction of incorporation, organization or formation; and that the Member
has full power and authority to execute and deliver this Company LLC Agreement
and to perform its obligations hereunder, and all necessary actions by the
board of directors, shareholders, managers, members, partners, trustees, beneficiaries,
or other applicable Persons necessary for the due authorization, execution,
delivery, and performance of this Company LLC Agreement by that Member have
been duly taken.


 


(ii)       That the Member has duly executed and delivered
this Company LLC Agreement and the other documents contemplated herein, and
they constitute the legal, valid and binding obligation of that the Member
enforceable against it in accordance with their terms (except as may be limited
by Bankruptcy, insolvency or similar Laws of general application and by the
effect of general principles of equity, regardless of whether considered at law
or in equity).


 


(iii)      That the Member’s authorization, execution,
delivery, and performance of this Company LLC Agreement does not and will not (i) conflict
with, or result in a breach, default or violation of, (A) the
organizational documents of such Member, (B) any contract or agreement to
which that the Member is a party or is otherwise subject, or (C) any law,
rule, regulation, order, judgment, decree, writ, injunction or arbitral award
to which that the Member is subject, except in the case of clause (B) and
clause (C) to the extent that such conflict, breach, default or violation
would not reasonably be expected to have a material adverse effect on such
Member’s ability to perform its obligations hereunder; or (ii) require any
consent, approval or authorization from, filing or registration with, or notice
to, any Governmental Authority or other Person, unless such requirement has
already been satisfied.


 


15














 


(iv)     That the Member is a “United States person,” as
defined in section 7701(a)(30) of the Code, and is not subject to withholding
under section 1446 of the Code.


 


(v)      That the Member is not a Tax-Exempt Person.


 


(vi)     No part of the aggregate Capital Contribution made
by that Member, constitutes assets of any “employee benefit plan” within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended, or other “benefit plan investor” (as defined in U.S.
Department of Labor Reg. §§2510.3-101 et seq.) or assets allocated to any
insurance company separate account or general account in which any such
employee benefit plan or benefit plan investor (or related trust) has any
interest.


 


Section 3.12.     Covenants.


 


(a)           Each Member hereby covenants to the Company
and each other Member that (i) it will be a “United States person,” as
defined in section 7701(a)(30) of the Code, (ii) it will not be subject to
withholding under section 1446 of the Code, (iii) it will remain a
corporation taxed under subchapter C of the Code throughout the Recapture
Period and, (iv) during the Recapture Period, it will not make any express
election, agreement or arrangement with any Governmental Authority that would
result in the reimbursement or recapture of the Cash Grant.


 


(b)           Each Class A Member hereby covenants to
the Company and each other Member that: (i) all electricity produced by
the Project Company will be through the use of wind energy from the Project and
(ii) no part of the assets of the Company or the Project Company is or
will be (A) used predominately outside of the United States or (B) “tax-exempt
use property” within the meaning of Section 168(h) of the Code unless
the property becomes “tax-exempt use property” due to an act or omission of a Class B
Member or as a result of any of the Fixed Tax Assumptions (other than clause (a) thereof)
being incorrect or untrue.


 


(c)           Each Member hereby covenants to the Company
and each other Member that it shall:


 


(i)        elect to be treated, take all other actions to
be treated, and take no actions that would cause it not to be treated as a
corporation, or as an association taxable as a corporation, for U.S. federal
income tax purposes; and


 


(ii)       not elect to be treated or take any actions that
would cause it to be treated as a Tax-Exempt Person; and


 


16

















 


(iii)      not, at any time prior to August 31, 2011,
permit the Member to be owned by persons that would cause such Member to be
treated as a tax-exempt entity within the meaning of section 168(h) of the
Code.


 


Section 3.13.     Cash Flow Prior to the
Second Equity Capital Contribution Date. (a) The Managing Member
hereby covenants to the Company and each other Member that all cash flow
generated by the Project Company prior to the Commercial Operation Date shall
be for the account of the Project Company and the Managing Member covenants to
cause such cash flow to be used to pay construction costs, operating costs or
other such costs of the Project Company. Such cash flow will not be required to
be distributed by the Project Company.


 


(b)           In the event that any construction costs
remain to be paid after the Commercial Operation Date, to the extent that
additional disbursements may be requested under the Existing Financing Credit
Agreement and any applicable conditions to such disbursement can be satisfied,
the Managing Member shall cause the Project Company to request the disbursement
of additional loans under the Existing Financing Credit Agreement and use the
proceeds of such loans (and not cash flow generated by the Project Company
after the Commercial Operation Date) to pay such remaining construction-related
costs. If loan proceeds are not available to pay construction costs of the
Project after the Commercial Operation Date, cash flow generated by the Project
Company will be used to pay such amounts.


 


(c)           Cash flow of the Project Company may be used
at any time to cover operating costs of the Project Company regardless of the
availability of additional disbursements under the Existing Financing Credit
Agreement.


 


Section 3.14.     Matters Pertaining to the
Cash Grant.


 


(a)           Prior to the Second Equity Capital
Contribution Date or the Third Equity Capital Contribution Date, as applicable,
the Managing Member shall provide the Class B Member with (i) the
Cost Segregation Report, in accordance with Sections 2.7 and 2.10 of the
Contribution Agreement, which Cost Segregation Report will be used by the
Members to determine the applicable Estimated Cash Grant Amount, and (ii) the
documentation reasonably necessary to calculate the Estimated Cash Grant
Amount. Prior to paying any Special Funded Distribution, the Managing Member
shall cause the Company to deposit an amount equal to the Holdback Amount for
Cash Grant Shortfall into a designated account in the Company’s name. During
the 60 day period beginning on the Second Equity Capital Contribution Date, the
Managing Member shall: (x) use commercially reasonable efforts to complete
and file, or cause to be completed and filed at the Company level (or Project
Company level if filing at the Company level is not possible or is reasonably
likely to be rejected), the initial Grant Application in a manner


 


17

















 


consistent
with the conclusions set forth in the Cost Segregation Report (as such report
may be updated as of the date on which the Grant Application is filed), and (y) as
soon as commercially reasonable after all the Specified Energy Property that
will be included in such Grant Application has been Placed In Service: (A) provide
the Accounting Firm the information it needs to issue the Accountant’s
Certificate and (B) provide the Independent Engineer or the Turbine
Supplier the information it needs to issue a certificate that all such Turbines
have been installed, tested and are capable of being used for their intended
purposes. To the extent permitted by applicable law (and provided that it would
not likely cause the Grant Application to be rejected or materially delayed),
the Grant Application will request that the Cash Grant be wired or otherwise
sent directly to an escrow account. The Members will cooperate to seek
confirmation from the appropriate Governmental Authorities with respect to the
ability to have such escrow account established in the name of the Company. To
provide for the possibility that the Cash Grant will have to be funded to an
account of the Project Company, promptly following the Initial Closing Date,
the Managing Member shall use reasonable best efforts (which in no event shall
require the expenditure of more than $300,000) to cause the Project Company, at
its cost, to cause the Existing Financing lenders and collateral agent to allow
the Project Company to establish an escrow account in the name of the Project
Company which would not be subject to any lien or security interest or
restriction on distribution other than the hereinafter described escrow
agreement. Whether or not the escrow account is at the Project Company or
Company level, (a) the escrow account shall be at financial institution
which is not an affiliate of the Class B Member selected by the Class B
Member, (b) the escrow account shall be subject to an escrow agreement in
form and substance reasonably acceptable to the Class B Member, the Class A
Member, the escrow agent and either the Project Company or the Company, as
applicable, which shall provide that upon receipt of any funds in the escrow
account, the escrow agent will immediately distribute to the Class B
Member an amount up to the Estimated Cash Grant Amount and will distribute any
excess over such amount to the Company for distribution in accordance with the
provisions of this Company LLC Agreement. Promptly following the filing of any
Cash Grant application, the Class B Member and the Project Company or the
Company, as applicable, shall notify the Escrow Agent of the Estimated Cash
Grant Amount for the next expected Cash Grant. Any distribution made from the
escrow account to a Member will be deemed to be a Company distribution for all
purposes of this Agreement, including, without limitation, for purposes of
maintaining Capital Accounts and determining the Calculated Amount. If the
initial Grant Application is not filed within the 60 day period beginning on
the Second Equity Capital Contribution Date, (a) the Managing Member shall
provide the Class B Member with a written notice explaining the status of
the Grant Application, the reason for the delay in filing the Grant Application
and the date on which the Managing Member expects the Grant Application to be
filed and (b) shall thereafter use its best efforts to get the Grant
Application filed as promptly as practicable thereafter.


 


18

















 


(b)           At least 10 days prior to filing a Grant
Application, the Managing Member shall deliver to the Class B Member a
copy of the proposed Grant Application, which shall include the proposed filing
date for the Grant Application. The Class B Member shall have the right to
raise reasonable objections to the proposed Grant Application within 5 days
after the Class B Member’s receipt thereof. If the Class B Member
raises any objections to the proposed Grant Application within such 5 day
period, the Managing Member and the Class B Members shall use commercially
reasonable efforts to resolve such objections. In the event the Managing Member
and the Class B Member are unable to resolve any such objections within a
reasonable period of time, the Managing Member and the Class B Member
shall jointly engage a nationally recognized law firm, to be agreed to between
the Managing Member and the Class B Member, to provide an opinion or other
form of written advice, reasonably acceptable to both parties, advising as to
the proper resolution of the objections raised by the Class B Member.


 


(c)           To the Knowledge of the Managing Member,
after due inquiry, all factual information and factual statements contained in
the Grant Application including amounts relating to the costs incurred with
respect to the Project shall be true, correct and complete in all material
respects. For the avoidance of doubt, this representation and warranty shall
not be construed as a representation as to the legal matters or legal
conclusions such as (but without limitation) the date construction began or
whether the Project has been Placed in Service or what portion of the property
comprising the Project constitutes Specified Energy Property, in each case, for
purposes of the Code or the American Recovery and Reinvestment Act of 2009.


 


(d)           The Managing Member shall respond to all
written requests from any Governmental Authority for additional or supplemental
information relating to the Grant Application and shall make all required
filings and responses in consultation with the Class B Member.


 


(e)           Upon receipt by the Company of Cash Grant
proceeds, the Managing Member shall provide the Class B Member, or cause
the Class B Member to be provided with, a Cash Grant Distribution Notice.


 


Section 3.15.     Separateness.


 


(a)           The Company has not formed, acquired or held
and shall not form, acquire or hold any subsidiary, except for MWCI and the
Project Company;


 


(b)           The Company does not have, shall not have
and at no time had any assets other than its membership interests in MWCI and
personal property necessary or incidental to its ownership of such membership
interests;


 


19

















 


(c)           The Company has not engaged in, sought,
consented or permitted to and shall not engage in, seek, consent to or permit
any dissolution, winding up, liquidation, consolidation or merger or any sale
or other transfer of all or substantially all of its assets or any sale of
assets outside the ordinary course of its business, except in each case as
permitted by (i) this Company LLC Agreement and, (ii) any transfer of
the Company’s membership interests in connection with the transactions
described in the Contribution Agreement;


 


(d)           The Company shall not incur any additional
debt or contingent liabilities except as permitted by this Company LLC
Agreement;


 


(e)           The Company shall not consent to or permit
any amendment of the Company LLC Agreement or its formation documents or other
organizational documents with respect to the matters set forth in this Section 3.15.


 


(f)            The Company shall not commingle assets with
those of any other entity and shall hold its assets in its own name;


 


(g)           The Company shall conduct its own business
in its own name;


 


(h)           The Company shall maintain bank accounts (if
any), books, records and financial statements in accordance with generally
accepted accounting principles and separate from any other person or entity;


 


(i)        The Company shall observe all formalities of
the Company LLC Agreement;


 


(i)            The Company shall pay its own liabilities
out of its own funds (which may include Working Capital Loans, payments made or
capital contributed by the Members pursuant to ARTICLE IV);


 


(j)            The Company shall maintain adequate capital
in light of its contemplated business operations;


 


(i)        The Company shall use separate stationery,
invoices and checks;


 


(k)           The Company shall maintain an arm’s-length
relationships with its Affiliates;


 


(l)            The Company shall pay the salaries of its
own employees, if any;


 


20

















 


(m)          The Company shall not guarantee or become
obligated for the debts of any other entity or hold out its credit as being
available to satisfy the obligations of others, in each case, other than MWCI
or the Project Company;


 


(n)           The Company shall not make any loans to any
other person or entity other than in accordance with this Company LLC
Agreement;


 


(o)           The Company shall allocate fairly and
reasonably any overhead for shared office space;


 


(p)           The Company shall not pledge its assets for
the benefit of any other entity, other than MWCI, the Project Company or the Project;
and


 


(q)           The Company shall hold itself out as a
separate entity, with the exception that the Company shall not be considered
separate entities from MWCI or the Project Company for federal, state, and
local income tax purposes, and not fail to correct any known misunderstanding
regarding its separate identity.


 


ARTICLE IV


CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS


 


Section 4.1.       Capital Contributions.


 


(a)           Except as provided in this Section 4.1
and Section 10.2, no Member will be required to make any Capital
Contributions to the Company after the Effective Date.


 


(b)           Subject to the terms and conditions in the
Contribution Agreement, the Members will make their respective Capital
Contributions provided for in the Contribution Agreement.


 


(c)           Payments of Capital Contributions made by
the Investor Guarantor under the Investor Guaranty shall be deemed to be
Capital Contributions by the Class B Members hereunder.


 


Section 4.2.       Capital Accounts.


 


(a)           A Capital Account will be established and
maintained for each Member in the manner required by the Treasury Regulations
under section 704(b) of the Code.


 


(b)           A Member’s Capital Account will be increased
by (i) the amount of money the Member contributes to the Company, (ii) the
Gross Asset Value of any


 


21

















 


property the
Member contributes to the Company (net of liabilities secured by the property
that the Company is considered to assume or take subject to under section 752
of the Code), (iii) the income and gain (or items thereof) that the Member
is allocated by the Company, including any income and gain exempted from tax
(e.g., income allocated in respect of the Cash Grant) and gain described in Section 4.2(c) and
(iv) an amount equal to an allocation of upward basis adjustment to such
Member in the event of a recapture of the Cash Grant as described in Treasury
Regulation section 1.704-1(b)(2)(iv)(j). A Member’s Capital Account will be
decreased by (v) the amount of money distributed to the Member by the
Company (including any proceeds from the Cash Grant distributed to such Member
but excluding any cash or property distribution to the Class A Member from
the sale of the Gen Lead Substation Assets and Transmission Assets), (vi) the
Gross Asset Value of any property distributed to the Member by the Company (net
of liabilities secured by the property that the Member is considered to assume
or take subject to under section 752 of the Code), (vii) any expenditures
of the Company described in section 705(a)(2)(B) of the Code (i.e.,
expenditures that cannot be capitalized or deducted in computing taxable
income) that are allocated to the Member; and (viii) losses and deductions
(or items thereof) that are allocated by the Company to the Member, including
losses described in Section 4.2(c), but the Capital Account will not be
reduced again under this clause (viii) for expenditures that already
reduced it under clause (vii) and (ix) an amount equal to an
allocation of downward basis adjustment to such Member as described in Treasury
Regulation section 1.704-1(b)(2)(iv)(j).


 


(c)           The Gross Asset Values of all the Company
assets will be adjusted to equal their respective Gross Fair Market Values upon
the occurrence of any of the following events: (i) if any new or existing
Member contributes more than a de minimis amount of money or property in
exchange for a new or additional Membership Interest, provided that,
for the avoidance of doubt, no adjustment will be made to Gross Asset Values in
connection with any Capital Contributions described in Section 4.2(b),
(c) or (d), (ii) if more than a de minimis amount of
money or other property is distributed by the Company to a Member to redeem its
Membership Interest, or (iii) if the Company is liquidated within the
meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g). Following
the occurrence of an event in clauses (i) and (ii) the Managing
Member will make an adjustment to Gross Asset Value only if it reasonably
determines, after Consultation with the other Members, that the adjustments are
necessary or appropriate to reflect the relative economic interests of the
Members in the Company. In addition, the Gross Asset Value of any Company asset
that is distributed to a Member will be adjusted to equal the Gross Fair Market
Value of the asset on the Distribution Date. In the event the Gross Asset Value
of any item of the Company’s property is adjusted as described in this Section 4.2(c),
then the amount of the adjustment will be treated as an item of gain (if the
adjustment increases the Gross Asset Value) or an item of loss (if the
adjustment decreases the Gross Asset Value) from the disposition of such
property.


 


22

















 


(d)           For United States federal income tax
purposes, on the Initial Closing Date, NHC will be treated as having
contributed the Project to the Company in a transaction described in Section 721
of the Code, and the Initial Non-Affiliated Class B Member will be treated
as purchasing the Class B Membership Interests from Holdings in a taxable
transaction, and making a Capital Contribution in the amount of the Initial
Equity Capital Contribution in a transaction described in Section 721 of
the Code. The initial Capital Account balance and Percentage Interest or Pro
Rata Share of each Member are shown in Schedule
4.2(d). Upon the occurrence of a Second Equity Capital Contribution
and if applicable, a Third Equity Capital Contribution, then the Capital
Account of each Class B Member will be increased by the amount of Capital
Contributions made by such Class B Member on the Closing Date of each such
Capital Contribution.


 


(e)           The Managing Member will update Schedule 4.2(d) after each Capital
Contribution and from time to time as necessary to reflect accurately the
information therein, provided, however, that, notwithstanding anything
in this Company LLC Agreement or the Contribution Agreement to the contrary,
failure to update Schedule 4.2(d) in
accordance with this Section 4.2(e) shall not impact the actual
amounts considered Capital Contributions hereunder, all of which shall be
deemed made on the date actually contributed. Any such updating will be
consistent with how this ARTICLE IV requires that the Capital Accounts
be maintained. Any reference in this Company LLC Agreement to Schedule 4.2(d) will be treated as a
reference to Schedule 4.2(d) as
amended or should have been amended and in effect from time to time.


 


(f)            If all or a portion of a Membership
Interest in the Company is Transferred in accordance with the terms of this
Company LLC Agreement, then the transferee will succeed to the Capital Account
of the transferor to the extent it relates to the Membership Interest so
Transferred. The Initial Non-Affiliated Class B Member will succeed to the
Capital Account of Holdings on the Initial Closing Date.


 


(g)           The provisions of this Company LLC Agreement
relating to maintenance of Capital Accounts are intended to comply with
Treasury Regulations Sections 1.704 1(b) and 1.704-2, and will be
interpreted and applied in a manner consistent with such Treasury Regulations
or any successor provisions.


 


Section 4.3.       Working Capital Loans;
Letter of Credit Reimbursement Obligations.


 


(a)           NHC or any Affiliate of NHC may make (but
will have no obligation to make), or any third party may make, loans to the
Company or the Project Company, when and as needed (as determined by the
Managing Member), sufficient to cover working capital, maintenance and capital
expenditure needs of the Company or the


 


23

















 


Project Company,
and to make available necessary letters of credit (other than letters of credit
for the purpose of funding the Required Reserves), in an aggregate principal
amount outstanding at any time not to exceed $20,000,000 for the Company and
the Project Company combined (any such loan, a “Working Capital Loan”).
All Working Capital Loans made by a third party lender may be secured and all
Working Capital Loans will be repaid out of available cash flow of the Company
(if the Company is the borrower) or the Project Company (if the Project Company
is the borrower) before any distributions (other than Special Funded
Distributions or Cash Grant Distributions) to members of such entity other than
any distribution that is a Special Funded Distribution or a Cash Grant
Distribution. Any Working Capital Loans made by NHC or an Affiliate of NHC
shall (a) be evidenced by a note substantially in form of Exhibit D hereto and (b) otherwise
be on terms equivalent in all material respects to loans that would be
available from a third party lender.


 


(b)           If at any time or from time to time the
Managing Member determines that there is a shortfall of cash (the “Cash
Shortfall”) available to the Project Company, MWCI or the Company to (i) meet
their obligations as and when due and payable or (ii) to cover the cost of
work that is necessary or advisable to maintain the Project in accordance with
the Prudent Operator Standard, or to prevent or cure a default or breach under
a Material Contract, the Managing Member may provide written notice to the
Members of the projected amount of such shortfall and a description of the
related expenses. If NHC or any Affiliate of NHC do not exercise their right to
make a Working Capital Loan to cover such a Cash Shortfall within 20 Business
Days of the determination that a Cash Shortfall exists, the Class B Member
shall also have the right to make (but will have no obligation to make) Working
Capital Loans, on commercially reasonable terms, to cover such Cash Shortfall.


 


(c)           In the event that NHC or an Affiliate of NHC
provides PPA Credit Support or other credit support expressly permitted under
this Company LLC Agreement, which shall be provided under arms-length
commercial terms, in each such case as required for the operation of the
Project on behalf of the Company, MWCI or the Project Company, then NHC or such
Affiliate will be entitled to reimbursement (to be repaid out of available cash
flow, after operating expenses of the Company, MWCI or the Project Company, as
applicable, are paid, and before any distributions to the members of such
entity are distributed) of the cost of all PPA Credit Support obligations. In
such event, NHC or an Affiliate will also receive from the Company (and be paid
in the same order of priority as such costs) a guaranty fee, which guaranty fee
shall be in the amount of either (i) 1% per annum of the guaranteed amount
of the PPA Credit Support or other credit support provided if the amount is
known and quantifiable or (ii) if the guaranteed amount of the PPA Credit
Support or other credit support is not known or quantifiable at the time
provided, (A) 1% times (B) 10%
of the present value of the total contract quantity under the contract for
which such support is being provided, calculated using the


 


24

















 


energy estimates in the Base Case Model (as applicable), the contractual
prices, and a *****% discount rate.


 


(d)           In the event that NHC or an Affiliate
becomes obligated to reimburse a third party lender other than an Affiliate of
NHC that provides PPA Credit Support provided on behalf of the Company, MWCI or
the Project Company, such reimbursement obligations or loans shall each be
deemed an unsecured loan to the Company, MWCI or the Project Company, as
applicable, by NHC or such Affiliate, as applicable, which loan shall be on
commercially reasonable terms and will be repaid out of available cash flow
after operating expenses of the Company or the Project Company, as applicable,
are paid, and before any distributions to the members of such entity are
distributed.


 


ARTICLE V


ALLOCATIONS


 


Section 5.1.    Allocations. After
giving effect to the allocations in Section 5.2 and except as
provided in Section 10.2(c), or 10.2(d), for purposes of
maintaining Capital Accounts, all items of Company income, loss, gain,
deduction and credit (including the Utah PTCs) for any Tax Year will be
allocated among the Members as follows:


 


(a)           For the period through the Flip Date, 99% in
the aggregate to the Class B Members, allocated among them in proportion
to their Pro Rata Shares, and 1% to the Class A Members, allocated pro
rata in proportion to the Percentage Interest held by each Class A Member,
provided, that if the Second Equity Capital Contribution Date has not
occurred on or prior to January 31, 2010, all such amounts shall be
allocated 97.73% to the Class A Members and 2.27% to the Class B
Members.


 


(b)           And, if the proviso in Section 5.1(a) does
not apply, for the period after the Flip Date, (i) 5% in the aggregate to
the Class B Members, allocated among them in proportion to their Pro Rata
Shares, and (ii) 95% to the Class A Members, allocated pro rata in
proportion to the Percentage Interest held by each Class A Member.


 


(c)           No losses or deductions may be allocated to
a Member pursuant to this Section 5.1 to the extent the allocation
would lead to a deficit in such Member’s Adjusted Capital Account. Losses or
deductions that a Member cannot be allocated by reason of this Section 5.1(c) will
be allocated to the other Members in the following order and priority:


 


(i)        first, all items of deduction for Depreciation;
and


 


(ii)       second, all remaining items of loss.


 


25














 


Section 5.2.       Adjustments. The
following allocations will be made in the following order to comply with
Treasury Regulations Section 1.704-1(b):


 


(a)           In any Tax Year in which there is a net
decrease in Company Minimum Gain, income and gain in the amount of the net
decrease will be allocated to Members in the ratio required by Treasury
Regulations Section 1.704-2. This provision is intended to comply with the
minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(f) and
will be interpreted consistently therewith.


 


(b)           In any Tax Year in which there is a net
decrease in Minimum Gain Attributable to Member Nonrecourse Debt, then income
and gain in the amount of the net decrease will be allocated to each Member who
was considered to have had a share of such minimum gain at the beginning of the
Tax Year in the ratio required by Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2)(ii). This provision is intended to comply with the partner
nonrecourse debt minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(i)(4) and
will be interpreted consistently therewith.


 


(c)           In the event any Member unexpectedly
receives any adjustments, allocations or distributions described in Treasury
Regulations Sections 1.704 1(b)(2)(ii)(d)(4), (5) or (6), items of gross
income will be specially allocated to each such Member in an amount and manner
sufficient to eliminate, to the extent required by the Treasury Regulations,
any deficit in the Member’s Adjusted Capital Account as quickly as possible.
However, an allocation will be made under this Section 5.2(c) only
if and to the extent that the Member would have a deficit in its Adjusted
Capital Account after all other allocations provided for in Section 5.1
and 5.2 have been tentatively made as if this Section 5.2(c) were
not in this Company LLC Agreement.


 


(d)           In the event that any Member has a deficit
in its Adjusted Capital Account at the end of any Tax Year after all the other
allocations in Section 5.1 and 5.2 have been taken into account,
then the Member will be specially allocated items of Company income and gain as
quickly as possible to eliminate the deficit.


 


(e)           Nonrecourse Deductions for any Tax Year will
be allocated to the Members in the same ratio as other partnership items under Section 5.1
or Section 10.2(c) and 10.2(d), as applicable.


 


(f)            Any Member Nonrecourse Deductions for any
Tax Year will be specially allocated to the Member who bears the economic risk
of loss with respect to the Member Nonrecourse Debt to which the Member
Nonrecourse Deductions are attributable in accordance with Treasury Regulations
Section 1.704-2(i)(1).


 


26

















 


(g)           If the Company distributes property to a
Member in liquidation of the Membership Interest of the Member and there is an
adjustment in the adjusted tax basis of Company property under section 734(b) of
the Code, there will be a corresponding adjustment to the Capital Account of
the Member receiving the distribution. If the Company distributes cash to a
Member in excess of its outside basis in its Membership Interest, leading to an
adjustment in the inside basis of the Company property under section 743(b) of
the Code, solely for purposes of adjusting Capital Accounts of the Members, the
adjustment in the inside basis will be treated as gain or loss and be allocated
among the Members in the same ratio as other gain or loss for the Tax Year in
which the adjustment occurs. This provision is intended to comply with Treasury
Regulations Sections 1.704-1(b)(2)(iv)(m)(2) and (4) and will be
interpreted consistently therewith.


 


(h)           The allocations in this (apart from Section 5.2(g))
are required to comply with the Treasury Regulations. To the extent the Company
can do so consistently with the Treasury Regulations, the net amount of the
allocations under ARTICLE V and Section 10.2 to each Member
will be the net amount that would have been allocated to each Member if this
Company LLC Agreement did not have Section 5.2.


 


Section 5.3.       Tax Allocations.


 


(a)           All allocations of tax items of Company
income, gain, deductions and losses for each Tax Year will be allocated in the
same proportions as the allocations of book items of Company income, gain,
deductions and losses were made for such Tax Year pursuant to Section 5.1
and 5.2.


 


(b)           Notwithstanding Section 5.3(a),
if, as a result of contributions of property by a Member to the Company or an
adjustment to the Gross Asset Value of Company assets pursuant to this Company
LLC Agreement, there exists a variation between the adjusted basis of an item
of Company property for United States federal income tax purposes and as
determined under the definition of Gross Asset Value, allocations of income,
gain, loss, and deduction will be allocated among the Members so as to take
into account any variation between the adjusted basis of such property to the
Company for United States federal income tax purposes and its initial Gross
Asset Value using the traditional method with curative allocations pursuant to
Treasury Regulations Section 1.704-3(c) as follows. To the extent the
“ceiling rule” in Treasury Regulations Section 1.704-3(b) prevents
the noncontributing Members from receiving an amount of tax depreciation in any
year equal to the Members’ share of Depreciation for the year, then the
shortfall will be made up in succeeding years as quickly as possible out of any
tax depreciation that would otherwise have been allocated to the contributing
Member.


 


27

















 


(c)           Allocations pursuant to this Section 5.3
are solely for purposes of federal, state and local taxes and shall not affect,
or in any way be taken into account in computing, any Member’s Capital Account
or share of income, gain, deductions or losses or distributions pursuant to any
other provision of this Company LLC Agreement.


 


(d)           To the extent that an adjustment to the
adjusted tax basis of any Company asset is made pursuant to section 743(b) of
the Code as the result of a purchase of a Membership Interest in the Company,
any adjustment to the depreciation, amortization, gain or loss resulting from
such adjustment shall affect the transferee only and shall not affect the
Capital Account of the transferor or transferee. In such case, the transferee
shall be required to agree to provide to the Company (i) information about
the allocation of any step-up or step-down in basis to the Company’s assets and
(ii) the depreciation or amortization method for any step-up in basis to
the Company’s assets.


 


(e)           Solely for purposes of determining a
Member’s proportionate share of the “excess non-recourse liabilities” of the
Company within the meaning of Treasury Regulation Section 1.752-3(a)(3),
each Member’s share of such liability shall be consistent with the profit
sharing percentages then in effect pursuant to Section 5.1(a) or
(b), as applicable.


 


Section 5.4.       Transfer or Change in
Company Interest. If the respective Membership Interests or allocation
ratios described in this ARTICLE V of the existing Members in the
Company change or if a Membership Interest is Transferred in compliance with
this Company LLC Agreement to any other Person (other than the Transfer by
Holdings to the Initial Non-Affiliated Class B Member at the Initial
Closing) then, for the Tax Year in which the change or Transfer occurs, all
income, gains, losses, deductions, credits and other tax incidents resulting
from the operations of the Company shall be allocated, as between the Members
for the Tax Year in which the change occurs or between the transferor and transferee,
by taking into account their varying interests using the proration method
permitted by Treasury Regulations Section 1.706-1(c)(2)(ii), unless
otherwise agreed by all the Members. Notwithstanding the previous sentence,
upon the transfer of the Class B Membership Interests from Holdings to the
Initial Non-Affiliated Class B Member on the Initial Closing Date, all
income, gains, losses, deductions, credits and other tax incidents resulting
from the operations of the Company shall be allocated, as between Holdings and
the Initial Non-Affiliated Class B Member for the Tax Year in which the
transfer occurs by taking into account their varying interests using the
interim closing of the books method as permitted by the Treasury Regulations
provided that a different tax accounting method shall be used, if the Class B
Member, by written notice to the Company and the Managing Member within a
reasonable period of time preceding the filing date of the applicable Tax
Return, requests that such different method be used so long as such requested
method is permitted under


 


28

















 


the Treasury Regulations (including Treasury Regulations then in
proposed form under Section 706 of the Code).


 


Section 5.5.       Timing of Allocations.
Items of income, gain, loss, deduction and credit will be allocated to the
Members pursuant to this ARTICLE V as of the last day of each Tax Year;
provided that such items shall also be allocated at such times as the Gross
Asset Values of the Company’s assets are adjusted pursuant to Section 4.2(c).


 


ARTICLE VI


DISTRIBUTIONS


 


Section 6.1.       Special Distributions.


 


(a)           Distribution of Cash Grant Proceeds.
All proceeds of the Cash Grant received by the Company (or MWCI or the Project
Company) with respect to each Grant Application for the Project shall be
distributed by the Managing Member to the Members on each Cash Grant
Distribution Date as follows:


 


(i)        first, 100% to the Class B Members
distributed pro rata in proportion to the Pro Rata Shares held by each such Class B
Member, up to an amount equal to the Estimated Cash Grant Amount corresponding
to the Grant Application for which the Cash Grant proceeds are being
distributed as of such date,


 


(ii)       thereafter, any remaining proceeds of the Cash
Grant shall be distributed 100% to the Class A Members pro rata in
proportion to the Percentage Interest held by each such Class A Member.


 


(b)           The proceeds of the Prepayment, the Second
Equity Capital Contribution or Third Equity Capital Contribution which are
first available for such use, shall be used to establish the Holdback Amount
for Cash Grant Shortfall with respect to each Grant Application at a bank
account of the Project Company. The Holdback Amount for Cash Grant Shortfall
established with respect to each Grant Application shall be distributed by the
Managing Member to the Members on the later of the Special Funded Distribution
Date or the Cash Grant Distribution Date with respect to the Grant Application
for which the Holdback Amount for Cash Grant Shortfall was established as
follows:


 


(i)        If the distribution to the Class B Member
under Section 6.1(a)(i) was less than the maximum amount set forth
therein other than as a result of a Class B Recapture Event (the amount,
if any by which it is less being referred to as the “shortfall”), then, 100% to the Class B Members
distributed pro rata in


 


29

















 


proportion to the Percentage Interest held by
each such Class B Member up to such shortfall;


 


(ii)       thereafter, or, if there is no shortfall, any remaining proceeds of such
Holdback Amount for Cash Grant Shortfall shall be distributed 100% to the Class A
Members pro rata in proportion to the Percentage Interest held by each such Class A
Member.


 


(c)           Subject to the prior payment of any
distributions provided under Section 6.1(b) that are to be
paid on such Special Funded Distribution Date, the Managing Member shall
distribute the proceeds of the Special Funded Distribution on the Special
Funded Distribution Date and thereafter until fully distributed, 100% to the Class A
Member pro rata in proportion to the Percentage Interest held by each such Class A
Member until it has received the Special Funded Distribution in full. To the
extent any distributions made pursuant to this Section 6.1(c) are
made to reimburse the Class A Member for capital expenditures incurred by
it during the 2 year period preceding the Initial Closing Date, such
distributions shall not be deemed to be in consideration for the sale of any
portion of the Project by the Class A Member to the Project.


 


Section 6.2.       Distribution of
Distributable Cash.


 


(a)           Except as provided otherwise in this Section 6.2,
Section 6.6(d), Section 6.6(e) or Section 10.2,
Distributable Cash (excluding any distributions described in Section 6.1
hereof) received from MWCI will be distributed to the Members on each
Distribution Date, as follows:


 


(i)        First, 100% to the Class B Members
distributed pro rata in proportion to the Percentage Interest held by each such
Class B Member until the Class B Members have received an amount of
cash equal to the Cash Grant Shortfall; and


 


(ii)       thereafter, on the Distribution Date following
the date on which the Project has achieved Completion (as defined in the
Existing Financing Credit Agreement) and all post-Completion punch list amounts
have been paid, an amount equal to any Project Completion Excess, if any, shall
be distributed to the Class A Members, pro rata in proportion to the
Percentage Interest held by each such Class A Member, and if the full
amount of such Project Completion Excess is not distributed on such
Distribution Date, similar distributions shall be made on subsequent
Distribution Dates until the amount of the Project Completion Excess has been
fully distributed; and


 


30

















 


(iii)      thereafter, prior to and including the Flip Date,
(A) for those Distribution Dates on or prior to 48 months following the
Second Equity Capital Contribution Date, 40% to the Class A Members
distributed pro rata in proportion to the Percentage Interest held by each such
Class A Member and 60% to the Class B Member distributed in
proportion to the Pro-Rata Shares held by each such Class B Member, and (B) thereafter,
99% to the Class B Members distributed pro rata in proportion to the Pro
Rata Shares held by each such Class B Member and 1% to the Class A
Members, distributed pro rata in proportion to the Percentage Interest held by
each such Class A Member; provided that the amount of any Project
Completion Shortfall shall be deducted from the Class A Member’s
distributions (and added to the Class B Member’s distributions) pursuant
to this clause (ii); and


 


(iv)     following the Flip Date, 5% to the Class B
Members, distributed pro rata in proportion to the Pro Rata Shares held by each
such Class B Member and 95% to the Class A Members, distributed pro
rata in proportion to the Percentage Interest held by each such Class A
Member.


 


(v)      Distribution of Required Reserves.
Notwithstanding anything contained in Section 6.2(a)(i), Section 6.2(a)(ii) or
Section 6.2(a)(iii):


 


(a)        any distribution of cash that was previously
held in the Clipper Reserve shall be distributed 50% to the Class B
Members, distributed pro rata in proportion to the Pro Rata Shares held by each
such Class B Member and 50% to the Class A Members, distributed pro
rata in proportion to the Percentage Interest held by each such Class A
Member; and


 


(b)        any amount that was
previously held in the O&M Reserve shall be distributed 75% to the Class B
Members, distributed pro rata in proportion to the Pro Rata Shares held by each
such Class B Member and 25% to the Class A Members, distributed pro
rata in proportion to the Percentage Interest held by each such Class A
Member.


 


(vi)     Notwithstanding any other provision of this ARTICLE
VI, following January 31, 2010, if (x) the Class B Members
have made the Initial Equity Contribution but the conditions for a Second
Equity Capital Contribution set forth in Section 2.7 of the Contribution
Agreement have not either been satisfied or waived by that date, and (y) the
Class A Members have not exercised the Termination Purchase Option
pursuant to Section 9.7, then 2.27% to the Class B Members
distributed pro rata in proportion to the Pro Rata Shares held by each such Class B
Member and 97.73% to the Class A Members distributed pro rata in
proportion to the Percentage Interest held by each such Class A Member.


 


31

















 


(b)           Distributions under Section 6.2(a) will
be made by the Managing Member on each Distribution Date in an amount as
determined by the Managing Member in accordance with this Section 6.2,
and the provisions of Schedule 8.2(b) and Section 8,2(b) based
on the Distributable Cash available for distribution as of the last day of the
month immediately preceding such Distribution Date and any additional amounts
available for distribution on the Distribution Date as determined by the
Managing Member.


 


(c)           Notwithstanding clause (a) of this Section 6.2,
if at the end of any Company taxable year after the Flip Date, (x) a
United States federal income tax rate of 35% multiplied
by the sum of (1) the cumulative net taxable income allocated
to the Class B Members after the Flip Date (including, for the avoidance
of doubt, any minimum gain chargeback income attributable to the Class B
Members) and (2) any Code Section 731(a) gain incurred by the Class B
Members after the Flip Date exceeds, (y) the aggregate cash distributed to
the Class B Members after the Flip Date, Distributable Cash that would
otherwise be distributed to the Class A Members shall instead be
distributed to the Class B Members in accordance with their Pro Rata
Shares so that the amounts in clauses (x) and (y) shall be equal.


 


(d)           In the event there is insufficient
Distributable Cash available for the Managing Member to make the distribution
described in Section 6.2(c) in any period, the Class B
Member shall be entitled to an additional distribution of Distributable Cash,
so that when such additional distribution is added to the amount next
distributed under Section 6.2(c), the total distribution is
sufficient to maintain the Class B Member’s Flip Yield, taking into
account the timing of such distribution.


 


Section 6.3.       Withholding Taxes.
If the Company is required to withhold taxes with respect to any allocation or
distribution to any Member pursuant to any applicable federal, state or local
tax laws, the Company may, after first notifying the Member and permitting the
Member, if legally permitted, to contest the applicability of such taxes,
withhold such amounts and make such payments to taxing authorities as are
necessary to ensure compliance with such tax laws. Any funds withheld by reason
of this Section 6.3 shall nonetheless be deemed distributed to the
Member in question for all purposes under this Company LLC Agreement. If the
Company fails to withhold from actual distributions any amounts it was required
to withhold, the Company may, at its option, (i) require the Member to
which the withholding was credited to reimburse the Company for such
withholding or (ii) reduce any subsequent distributions by the amount of
such withholding. This obligation of a Member to reimburse the Company for
taxes that were required to be withheld shall continue after such Member
Transfers its Membership Interests in the Company. Each Member agrees to
furnish the Company with any representations and forms as may reasonably be
requested by the Company to


 


32

















 


assist it in determining the extent of, and in fulfilling, any
withholding obligations it may have.


 


Section 6.4.       Limitation upon
Distributions. Notwithstanding anything to the contrary in this ARTICLE
VI, no distribution shall be made to any of the Members prior to the
earlier of (i) January 31, 2010, and (ii) the date on which the Class B
Member makes the Second Equity Capital Contribution to the Company.
Furthermore, no distribution shall be made: (a) if such distribution would
violate any contract or agreement to which the Company is then a party or any
Applicable Law then applicable to the Company, (b) to the extent that, as
set forth in the definition of Distributable Cash, the Managing Member
determines, in accordance with the Prudent Operator Standard, that all or a
portion of any amount otherwise distributable should be retained by the Company
to pay, or to establish a reserve for the payment of, any liability or
obligation of the Company, MWCI or the Project Company, whether liquidated,
fixed, contingent or otherwise, including funding the Clipper Reserve and
O&M Reserve and other reserves as set forth in Schedule 8.2(b), or (c) to the extent that the Managing
Member, in accordance with the Prudent Operator Standard, determines that the
Distributable Cash is insufficient to permit such distribution


 


Section 6.5.       No Return of
Distributions. Any distribution of cash or property pursuant to this
Company LLC Agreement shall be treated as a compromise within the meaning of Section 18-502(b) of
the Act and, to the full extent permitted by law, any Member receiving the
payment of any such money or distribution of any such property shall not be
required to return any such money or property to any Person, the Company or any
creditor of the Company. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this Company LLC Agreement, any Member
is obligated to return such money or property, such obligation shall be the
obligation of such Member and not of the other Members. Without limiting the
generality of the foregoing, a deficit Capital Account of a Member shall not be
deemed to be a liability of such Member nor an asset or property of the
Company.


 


Section 6.6.       Calculation of
Calculated Amount.


 


(a)           Tracking Progress. The Managing
Member will cause the Manager to calculate at least annually whether the
Calculated Amount has equaled zero, and will send the Class B Members,
within 120 days after the end of each Tax Year in which the Calculated Amount
did not equal zero, a report in the form of the Tracking Model showing where it
believes the Class B Members are in relation to the Calculated Amount.


 


(b)           Notice of Date. The Managing Member
will cause the Manager to notify the Class B Members in writing (i) at
least 10 Business Days before the Distribution Date following the month in
which it concludes the Calculated Amount has


 


33

















 


equaled zero and the Flip Date occurred or (ii) at least 30 days
before making any liquidating distributions, in connection with a liquidation of
the Company pursuant to Section 10.1, if it concludes that the
Calculated Amount will equal zero, as a consequence of the liquidating
distributions. The notice will include the Tracking Model showing the Manager’s
calculations and, in the case of a notice delivered in connection with a
liquidation, the allocations and distributions that the Manager proposes to
make to the Class B Members under Section 10.2 in light of the
calculations. Concurrently with any notification described in clauses (i) and
(ii) above, the Managing Member shall cause the Manager to provide the Class B
Members with its calculation of the Flip Yield at that point. If the Class B
Members holding a majority of the Class B Membership Interests wish to
invoke the dispute resolution procedures in Section 12.11 to
resolve any disagreements, then they must give notice to that effect to the
Managing Member before the Distribution Date, in a case not involving
liquidation of the Company, and within 30 days after receipt of notice from the
Managing Member in a case involving liquidation.


 


(c)           Calculation Conventions. The Managing
Member will use the following assumptions and conventions to calculate the
Calculated Amount and the Flip Yield:


 


(i)        It will assume that the Fixed Tax Assumptions
are correct, unless they are incorrect as a result of breach of a
representation or covenant by the Class A Member. In all other respects,
items of taxable income, loss, gain, credit and deduction of the Company for
any taxable period will be calculated based on the amounts actually allocated
in accordance with the United States federal income tax accounting methods and
tax elections actually used with respect to such period by the Company in the
preparation of its United States federal income tax reports and returns, or as
adjusted on any amended return or as a result of a United States federal income
tax audit. Notwithstanding anything in this Company LLC Agreement to the
contrary, the calculation of taxable income and loss will not take into account
section 199 of the Code.


 


(ii)       Each Class B Member will be assumed to have
owned its Membership Interest since the Effective Date.


 


(iii)      The items of taxable income, loss, gain, credit
and deduction of the Company will be treated as earned ratably during the Tax Year
with the result that each Class B Member’s allocated share of the Taxes on
such income, gain, losses, credit and deductions will be treated as having been
paid or received by such Class B Member in four equal installments on the
respective estimated tax payment dates during the tax year for a corporate
taxpayer with the tax year end of such Class B Member; provided that
the items of taxable income, loss, gain, credit and deduction allocated to the Class B
Members for the Tax Year in which


 


34

















 


the Initial Closing occurs will be allocated
ratably to the remaining estimated tax payment dates in the first Tax Year of
the Company. For the avoidance of doubt, and consistent with the preceding
sentence, in the Tax Year in which the Flip Date occurs, the taxable income,
gain, loss, credit or deduction allocated to the Class B Members for the
Pre-Flip Period will be allocated ratably to each of the four estimated tax
payment dates during the Tax Year, and the post-Flip Date amounts will be
treated similarly.


 


(iv)     United States federal income tax benefits and
United States federal income tax detriments will be calculated using a 35% tax
rate.


 


(v)      ***** each Class B Member will be assumed to
be able to use immediately and fully the United States federal income tax
benefits it is allocated by the Company, subject to the same timing described
in Section 6.6(c)(iii).


 


(vi)     ***** each Class B Member will be assumed to
be able to fully and immediately use the United States federal income tax
benefits it is allocated by the Company to offset any current or future United
States federal income tax or gain (including gain under Section 731(a) of
the Code) allocated to it by the Company, subject to the same timing described
in Section 6.6(c)(iii).


 


(vii)    If as a result of a Class B Recapture Event (i) the
timing or amount of the Cash Grant received or distributed by the Company
differs from the assumption thereof reflected in the Base Case Model, or (ii) the
Cash Grant is recaptured in whole or in part, then the Calculated Amount and
the Flip Yield shall be calculated as if the Cash Grant was received (or was
not recaptured, as the case may be) and Distributable Cash was paid to the Class B
Member, at the time and in the amounts assumed in the Base Case Model.


 


(d)           End-of-Year True Up. If there is any
difference in the items of taxable income, loss, gain, credit and deduction for
the period through when the Flip Date was assumed to have occurred and was
reported by the Company on the United States federal income Tax Return the
Company files for the Tax Year in which the Manager concluded that the
Calculated Amount equaled zero compared to such items used to calculate when
the Calculated Amount actually equaled zero, then the Managing Member will
cause the Manager to recalculate when the Flip Date was reached and send a new
notice to the Class B Members, but only take into account in the
recalculation differences that are not explained by inaccuracy of the Fixed Tax
Assumptions (unless they are incorrect as a result of breach of a
representation or covenant by the Class A Member) or the calculation
assumptions and conventions in Section 6.6(c). The Managing Member
will


 


35














 


cause the Manager to also calculate the shortfall in or excess
Distributable Cash, in present-value terms that the Class B Members failed
to receive or received as a consequence of the earlier miscalculation (the “Cash
Difference”). Once the revised calculation becomes final, the sharing
percentages in Section 5.1(b) and Section 6.1 will
be adjusted to provide the maximum amount of distributions to the Class B
Members to correct, on a present-value basis, the Cash Difference. The revised
sharing percentages will remain in effect until the Cash Difference has been
eliminated.


 


(e)           Curative Flip Allocations. If, after
filing the United States federal income Tax Return for the year in which the
Manager concluded that the Calculated Amount equaled zero, there is a change in
the items of taxable income, loss, gain, credit and deduction the Company
reported for the period through the end of the month in which the Flip Date was
assumed to have occurred for reasons other than inaccuracy of the Fixed Tax
Assumptions (unless they are incorrect as a result of breach of a
representation or covenant by the Class A Member) or the calculation
assumptions and conventions in Section 6.6(c) and the Company
has not yet made liquidating distributions under Section 10.2, then
there will be a “Curative Flip Allocation.” The Managing Member will
cause the Manager to determine the amount by which the Calculated Amount is
greater than zero through the last Distribution Date the Company distributed
cash under Section 6.2(a). The sharing percentages in Section 5.1(b) and
6.2 will be adjusted for subsequent allocations and distributions to the
maximum extent necessary to cause the Calculated Amount to equal zero, as of
such Distribution Date. Such change in sharing percentages shall remain in
effect until, and to the extent necessary so that, the Calculated Amount shall
equal zero. The Calculated Amount will be calculated using the Fixed Tax
Assumptions (unless they are incorrect as a result of breach of a
representation or covenant by the Class A Member) and the calculation
assumptions and conventions in Section 6.6(c). If an event occurs
that would have triggered a Curative Flip Allocation but for the fact that the Class A
Members have already purchased the Membership Interests of the Class B
Members under Section 9.5, Section 9.6 or Section 9.7
of this Company LLC Agreement, then the Class A Members will pay in cash,
within 30 days of the occurrence of such event, the economic equivalent of the
Curative Flip Allocation as additional purchase price for the Class B
Membership Interests.


 


Section 6.7.       Compelling Distributions.
Managing Member will cause MWCI to cause Project Company to use the Prepayment
Amount to fund an account to hold the Holdback Amount for Cash Grant Shortfall,
if such amount has not already been funded, promptly upon the receipt of the
Prepayment Amount. Managing Member will cause MWCI to cause Project Company to
promptly distribute all Distributable Cash, the Prepayment Amount proceeds
(other than those used to fund the Holdback Amount for Cash Grant Shortfall)
and Cash Grant proceeds to MWCI and promptly cause MWCI to distribute all
Distributable Cash, such Prepayment Amount proceeds and Cash Grant proceeds to
the Company prior to any Distribution Date under this ARTICLE VI.


 


36

















 


Section 6.8.       Satisfaction of Certain
Recapture-Related Obligations of the Class A Members to the Class B
Members.


 


(a)           Notwithstanding the provisions of Section 6.1,
if the Class B Member shall suffer any Recapture Damages, as a result of a
Recapture Event, then the Class B Member shall be entitled to collect
Recapture Damages from the Class A Member in accordance with this Section 6.8.


 


(b)           Within 60 days after they become aware that
they have incurred Recapture Damages as a result of any matter set forth in Section 6.8(a),
the Class B Members shall notify the Company and the Class A Members
in writing of its Recapture Claim for such Recapture Damages, specifying in
reasonable detail the cause of such Recapture Damages and the Class B
Member’s calculation of the amount thereof if reasonably determinable by the Class B
Member, or, if not reasonably determinable, an estimate of the range of such
Recapture Damages. Within 30 days following receipt of notice of a Recapture
Claim, the Class A Members shall notify each of the Class B Member
and the Company in writing whether it agrees with or disputes all or a portion
of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class A
Members shall not deliver such notice within the time specified, it shall be
deemed to have delivered a notice on the 30th day disputing the entire amount
of such Recapture Claim. The Class B Members shall have all rights and
remedies available at law or in equity to the Class B Members to collect
any Recapture Damages from the Class A Members.


 


Section 6.9.       Satisfaction of Certain
Recapture-Related Obligations of the Class B Members to the Class A
Members.


 


(a)           Notwithstanding the provisions of Section 6.1,
if the Class A Member shall suffer Recapture Damages as a result of a Class B
Recapture Event, the Class A Member shall be entitled to collect such
Recapture Damages from the Class B Member in accordance with this Section 6.9.


 


(b)           Within 60 days after they become aware that
they have incurred Recapture Damages as set forth in Section 6.9(a),
the Class A Member shall deliver to the Company and the Class B
Members a Recapture Claim notice for such Recapture Damages, specifying in
reasonable detail the cause of such Recapture Damages and the Class A
Member’s calculation of the amount thereof if reasonably determinable by the Class A
Member, or, if not reasonably determinable, an estimate of the range of such
Recapture Damages. Within 30 days following receipt of notice of a Recapture
Claim, the Class B Members shall notify each of the Class A Member
and the Company in writing whether it agrees with or disputes all or a portion
of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class B
Members shall not deliver


 


37

















 


such notice within the time specified, it shall be deemed to have
delivered a notice on the 30th day disputing the entire amount of such
Recapture Claim. The Class A Members shall have all rights and remedies
available at law or in equity to the Class A Members to collect any
Recapture Damages from the Class B Members.


 


(c)           For purposes of calculating the amount of
any damages or loss under this Section 6.9, it shall be assumed that
the Class A Member is unable to use for its own account any production or
investment tax credit otherwise available to it as a result of the loss or
recapture of the Cash Grant. The foregoing shall not prevent the Class B
Member from attempting to mitigate the Recapture Damages by seeking an investor
that could utilize any production or investment tax credit otherwise available,
and the Class A Members will reasonably cooperate in any such mitigation
provided that such cooperation does not materially adversely impact the Class A
Members’ rights or obligations.


 


ARTICLE VII


ACCOUNTING AND
RECORDS


 


Section 7.1.       Reports.


 


(a)           The Managing Member shall notify the Class B
Members within 5 Business Days of obtaining actual knowledge of any (i) written
notice of default delivered by a party to a Material Contract to the Company,
Project Company, the Manager or the Managing Member, (ii) material default
by a party to any such Material Contract (other than the Company or the Project
Company) under such Material Contract, (iii) event or circumstance
affecting the Company, Project Company which would be reasonably likely to
result in a Material Adverse Effect, (iv) the execution of any amendment
to a Material Contract or the operating agreement of any of MWCI or the Project
Company (and shall provide, or cause to be provided, a copy of each such
amendment) and (v) any written notice (and shall provide a copy thereof)
delivered by a Designated Affiliate Agreement Provider to the Company, MWCI or
Project Company pursuant to any Designated Affiliate Agreement and that is not
also copied to the Class B Members.


 


(b)           The Managing Member shall prepare or cause
to be prepared for each Fiscal Year an operating budget showing the anticipated
revenues and expenses of the Company and the Project Companies for such Fiscal
Year. Upon the Manager or Managing Member’s preparation or approval of a
proposed operating budget for each future fiscal year, the Managing Member
shall or shall cause the Manager to, not later than October 10 of each
Fiscal Year, submit the proposed operating budget for such succeeding Fiscal
Year (the “Annual Budget”). The Managing Member shall prepare or


 


38

















 


cause to be prepared monthly operating reports to be delivered to Class B
Member no later than 30 days after the end of each month.


 


(c)           The Managing Member shall prepare and
deliver, or cause to be prepared and delivered, to each Member, as soon as
available and in any event not later than 120 days after the end of each Fiscal
Year (beginning for the Fiscal Year ending December 31, 2010), copies of
the audited consolidated and unaudited consolidating balance sheets of the
Company and its Subsidiaries, in each case, as at the end of such Fiscal Year,
together with, in each case, the related audited consolidated and unaudited
consolidating statements of income or operations, shareholders’ equity and cash
flows for such Fiscal Year, and the notes thereto, all in reasonable detail and
prepared in accordance with GAAP (subject only to normal year-end audit
adjustments and the absence of footnotes with respect to any consolidating
statements) and in the case of each of such audited consolidated financial
statements, accompanied by a report and opinion of an independent certified
public accountant of nationally recognized standing, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit and shall state
that such consolidated financial statements present fairly, in all material
respects, the consolidated financial position of the Company and its
Subsidiaries as at the end of such Fiscal Year and their consolidated results
of operations and cash flows for such Fiscal Year in conformity with GAAP; or
words substantially similar to the foregoing and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards.


 


(d)           The Managing Member shall prepare and
deliver, or cause to be prepared and delivered, to each Member as soon as
available and in any event not later than 60 days after the end of each of the
first three fiscal quarters of the Company (beginning for the fiscal quarter
ending March 30, 2010, the consolidated and consolidating unaudited
financial statements of the Company and its Subsidiaries for such fiscal
quarter, including balance sheet as of the last day of such fiscal quarter.


 


(e)           The Managing Member shall notify the Class B
Members, promptly, and in all events within 5 Business Days of obtaining actual
knowledge of any Default or of an Event of Default (each as defined by the
Existing Financing) with respect to the Existing Financing (such notice and any
notice of a default under the Existing Financing received by a Class B
Member under the Consent and Agreement, a “Financing Default Notice”).


 


(f)            Unless the Existing Financing is fully
prepaid prior to such date, 30 days prior to the Maturity Date (as defined in
the Existing Financing Credit Agreement), the Managing Member shall cause the
Manager to reasonably determine whether the


 


39

















 


Project Company will have adequate funds to repay the Existing
Financing upon Maturity (as defined in the Existing Financing Credit Agreement)
of the Existing Financing. If, on such date, the Manager or Managing Member
reasonably determines that the Project Company will have insufficient funds to
repay the Existing Financing upon Maturity (as defined in the Existing
Financing Credit Agreement) of the Existing Financing, then the Managing Member
shall promptly, and in no event later than 25 days prior to the Maturity (as
defined in the Existing Financing Credit Agreement) of the Existing Financing,
notify the Class B Members of such determination and the amount of the
predicted shortfall (such notice, an “Insufficient Funds Notice”).


 


Section 7.2.       Books and Records and
Inspection.


 


(a)           The Managing Member shall cause the Company
to keep and shall cause, on behalf of the Company and MWCI, the Manager and
shall cause, on behalf of the Project Company, the Administrative Services
Provider to maintain, full and accurate books of account, financial records and
supporting documents, which shall reflect, completely, accurately and in
reasonable detail in all material respects each transaction of the Company,
MWCI and the Project Company and such other matters as are usually entered into
the records or maintained by Persons engaged in a business of like character or
as are required by law, and all other documents and writings of the Company,
MWCI and the Project Company. The books of account, financial records shall be
kept and maintained by the Manager at the principal office of the Company. The
financial records and reports of the Company, MWCI and the Project Company
shall be kept in accordance with GAAP and kept on an accrual basis.


 


(b)           In addition to and without limiting the
generality of Section 7.2(a), the Managing Member shall cause the
Company to keep and shall cause, on behalf of the Company, the Manager to
maintain at the Company’s principal office:


 


(i)        true and full information regarding the status
of the financial condition of the Company, MWCI and the Project Company,
including any financial statements for the three most recent years;


 


(ii)       promptly after becoming available, a copy of the
federal, state, and local income Tax Returns (if any) of the Company, MWCI and
the Project Company for each year;


 


(iii)      minutes of the proceedings of the Members and the
Managing Member;


 


(iv)     a current list of the name and last known
business, residence or mailing address of each Member and the Manager;


 


40

















 


(v)      a copy of this Company LLC Agreement and the
Company’s Certificate of Formation, and all amendments thereto, together with
executed copies of any written powers of attorney pursuant to which this
Company LLC Agreement and such Certificate of Formation and all amendments
thereto have been executed and copies of written consents of or other
resolutions or proceedings of the Members;


 


(vi)     a copy of the limited liability company agreement
and certificate of formation, and all amendments thereto, of MWCI and the
Project Company, and copies of written consents of or other resolutions or
proceedings of the members of MWCI and the Project Company;


 


(vii)    true and full information regarding the amount of
cash and a description and statement of the agreed value of any other property
and services contributed by each Member, and the date upon which each became a
Member;


 


(viii)   copies of records that would enable a Member to
determine the Member’s relative shares of the Company’s allocations,
distributions and the Member’s relative voting rights;


 


(ix)      true and complete copies of all insurance
policies maintained by or for the benefit of the Company, MWCI and the Project
Company, with current records of any premium payments and the status of any
pending claims under such policies;


 


(x)       all records related to the production and sale
of electricity by the Project Company, the qualification for the Cash Grant
pursuant to section 48 of the Code, applicable Treasury Regulations, Revenue
Procedures and any other pronouncements by the IRS, the Treasury or any other
Governmental Authority, whether currently existing or promulgated in the
future, including the Grant Application and any documentation in support
thereof (including all documentation filed in accordance with the Guidance);
and


 


(xi)      records reflecting the current Company
calculations with respect to the Calculated Amount.


 


(c)           Upon reasonable prior notice to the Managing
Member, all books and records of the Company and the Project Company shall be
open to inspection, audit and copying by any of the Members or their
Representatives during business hours and at such Member’s expense, for any
purpose reasonably related to such Member’s interest in the Company, including
for the purpose of determining compliance with Environmental Laws; and any of
the Members or their Representatives shall at reasonable times during


 


41

















 


usual business hours, have the right to inspect the Project and the
Project’s site during the development and construction of the Project, and the
properties of Project Company, provided that any such inspection or copying of
books and records is conducted in a manner which does not unreasonably
interfere with the Company’s or Project Company’s business and which is in
compliance with all safety protocols.


 


Section 7.3.       Bank Accounts, Notes and
Drafts.


 


(a)           All funds not required for the immediate
needs of the Company shall be placed in Permitted Investments, which
investments shall have a maturity appropriate for the anticipated cash flow
needs of the Company. All Company funds shall be deposited and held in accounts
which are separate from all other accounts maintained by the Members and the
Manager, and the Company’s funds shall not be commingled with any other funds
of any Person, including any Manager, any Member or any Affiliate (other than
the Company itself) of a Manager or a Member.


 


(b)           The Members acknowledge that the Managing
Member or the Manager may maintain Company funds in Permitted Investments and
that neither the Managing Member nor the Manager shall be accountable or liable
for any loss of such funds resulting from failure or insolvency of the
depository institution.


 


(c)           Checks, notes, drafts and other orders for
the payment of money shall be signed by such Persons as the Managing Member
from time to time may authorize, including the Manager. When the Managing
Member so authorizes, the signature of any such Person may be a facsimile.


 


Section 7.4.       Partnership Status and
Tax Elections.


 


(a)           The Members intend that the Company will be
taxed as a partnership for United States federal, state and local income tax
purposes. The Members hereby agree not to elect to be excluded from the
application of Subchapter K of Chapter 1 of Subtitle A of the Code or any
similar state statute and agree not to elect for the Company to be treated as a
corporation, or an association taxable as a corporation, under the Code or any
similar state statute.


 


(b)           The Company shall make the following
elections on the appropriate Tax Returns:


 


(i)        to the extent permitted under section 706 of
the Code, to adopt as the Company’s tax year (“Tax Year”) (a) in
initial Tax Year ending December 31, 2009, (B) a subsequent Tax Year
ending August 31, 2010, and (C) thereafter


 


42

















 


Tax Years running from September 1 of
each calendar year (starting with September 1, 2010) to and including August 31
of the following calendar year;


 


(ii)       to adopt the accrual method of accounting;


 


(iii)      if a distribution of the Company’s property as
described in section 734 of the Code occurs or a transfer of Membership
Interest as described in section 743 of the Code occurs, on request by notice
from any Member, to elect, at such Member’s cost, pursuant to section 754 of
the Code to adjust the basis of the Company’s properties; provided that
within 30 days of such transfer, the transferee will provide the Managing
Member the notice required by Treasury Regulation section 1.743-1(k)(2);


 


(iv)     to elect to amortize the organizational expenses
of the Company ratably over a period of 180 months as permitted by section 709(b) of
the Code;


 


(v)      if approved in writing by Members representing a Class Majority
Vote, any other election the Managing Member may deem appropriate; and


 


(vi)     any election necessary to qualify for the Cash
Grant or to claim an investment tax credit or production tax credits on any
part of the Project for which a Cash Grant is unavailable.


 


(c)           The Company shall file an election under
section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulations
thereunder to treat the Company as a partnership to which the provisions of
sections 6221 through 6234 of the Code, inclusive, apply.


 


Section 7.5.       Company Tax Returns.
The United States federal income Tax Returns for the Company and all other Tax
Returns of the Company shall be prepared by the Manager in accordance with the
Management Services Agreement and as directed by the Managing Member in
Consultation with the other Members. The Managing Member will file Tax Returns
that are consistent with the assumptions in the Base Case Model, unless it
decides that it cannot do so on the advice of counsel or on the advice of the
accountants preparing the Tax Returns, in which case it will act consistently
with such advice, but only after Consultation with the other Members. The
Managing Member, in Consultation with the other Members, may extend the time
for filing any such Tax Returns as provided for under applicable statutes; provided
that, in the event of any such extension, the Managing Member shall provide
the other Members with an estimate of the Taxes owed within 20 days of the
filing of such extension, provided further, that with respect to each
Tax Year ending on or prior to August 31, 2011, the Managing Member


 


43

















 


will cause Company to prepare preliminary Tax Returns and issue
preliminary K-1’s to the Members no later than September 30 of each such
Tax Year; provided that for the Tax Year ending December 31, 2009,
the Managing Member will cause Company to file its preliminary Tax Returns and
issue preliminary K-1’s to the Members no later than March 31, 2010. At
the Company’s expense, the Managing Member shall cause the Company to retain an
Accounting Firm to prepare or review the necessary federal and state income Tax
Returns and information returns for the Company. Each Member shall provide such
information, if any, as may be reasonably needed by the Company for purposes of
preparing such Tax Returns, provided that such information is readily
available from regularly maintained accounting records. At least 30 days prior
to filing the federal and state income Tax Returns and information returns, the
Managing Member shall cause the Manager to deliver to the other Members for
their review a copy of the Company’s federal and state income Tax Returns and
information returns in the form proposed to be filed for each Tax Year, and
shall cause the Manager to incorporate all reasonable changes or comments to
such proposed Tax Returns and information returns requested by the Members at
least 10 days prior to the filing date for such returns. After taking into
account any such requested changes, the Managing Member shall cause the Company
to timely file, taking into account any applicable extensions, such Tax
Returns. Within 20 days after filing such federal and state income Tax Returns
and information returns, the Managing Member shall cause the Company to deliver
to each Member a copy of the Company’s federal and state income Tax Returns and
information returns as filed for each Tax Year, together with any additional
tax-related information in the possession of the Company that such Member may
reasonably and timely request in order to properly prepare its own income Tax
Returns.


 


Section 7.6.       Tax Audits.


 


(a)           NHC is hereby designated as the “tax matters
partner,” as that term is defined in section 6231(a)(7) of the Code (the “Tax
Matters Partner”), of the Company, with all of the rights, duties and
powers provided for in sections 6221 through 6234 of the Code, inclusive, but
subject to the other provisions of this Section 7.6. NHC is hereby
directed and authorized to take whatever steps NHC, in its reasonable
discretion, deems necessary or desirable to perfect such designation, including
filing any forms or documents with the IRS, taking such other action as may
from time to time be required under the Treasury Regulations and directing the
Manager to take any of the foregoing actions. NHC shall remain as the Tax
Matters Partner so long as it retains any ownership interests in the Company
unless NHC requests that it not serve as Tax Matters Partner and such request
is approved by (i) a Supermajority in Interest of the Class B Members,
if such request is made prior to the Flip Date or (ii) a Majority Vote, if
such request is made after the Flip Date. At the request of any Member, the Tax
Matters Partner shall take such action as may be necessary to cause, to the
extent possible, such other Member to become a “notice partner” within the
meaning of section 6223 of the Code.


 


44

















 


(b)           The Tax Matters Partner, in close
consultation with Members collectively holding at least 50% of the Class B
Membership Interests, shall direct, or cause the Manager to direct, the defense
of any claims made by the IRS to the extent that such claims relate to the
adjustment of Company items at the Company level, provided, however,
that Members collectively holding at least 50% of the Class B Membership
Interests shall be entitled to direct the defense of any claims made by the IRS
to the extent such claims relate directly to any of the Fixed Tax Assumptions..
For the avoidance of doubt, “direct” for purposes of the preceding sentence
shall mean that such Members will be entitled to make all decisions relating to
such claims, to use counsel of their choice to defend such claims and to
prepare, draft or otherwise supervise documents and any other submissions, discussions
or negotiations with the IRS, all without derogation of the Tax Matters
Partner’s rights as the representative of the Company with respect to the IRS.
The Tax Matters Partner shall cause the Company to retain and to pay the fees
and expenses of counsel approved as described in the preceding sentence and to
pay the fees and expenses of other advisors chosen by the Tax Matters Partner
in Consultation with the other Members. The Tax Matters Partner shall promptly
deliver, or shall cause the Manager to promptly deliver, to each Member a copy
of all notices, communications, reports and writings received from the IRS by
the Company relating to or potentially resulting in an adjustment of Company
items, shall promptly advise, or cause the Manager to promptly advise, each
Member of the substance of any conversations with the IRS in connection
therewith and shall keep, or cause the Manager to keep, the Members advised of
all developments with respect to any proposed adjustments that come to its or
the Manager’s, as the case may be, attention. In addition, the Tax Matters
Partner shall or shall cause the Manager to (i) provide each Member with a
draft copy of any correspondence or filing to be submitted by the Company in
connection with any administrative or judicial proceedings relating to the
determination of Company items at the Company level reasonably in advance of
such submission, (ii) incorporate all reasonable changes or comments to
such correspondence or filing, approved or recommended by Members collectively
holding at least 50% of the Class B Membership Interests, timely requested
by any Member and (iii) provide each Member with a final copy of
correspondence or filing. The Tax Matters Partner will provide, or cause the
Manager to provide, each Member with notice reasonably in advance of any
meetings or conferences with respect to any administrative or judicial
proceedings relating to the determination of Company items at the Company level
(including any meetings or conferences with counsel or advisors to the Company
with respect to such proceedings) and each Member shall have the right to
participate, at its sole cost and expense, in any such meetings or conferences.


 


(c)           Without the approval of Members collectively
holding at least 50% of the Class B Membership Interests, the Tax Matters
Partner shall not (i) commence a judicial action (including filing a
petition as contemplated in Section 6226(a) or section


 


45

















 


6228 of the Code) with respect to a United States federal income tax
matter or appeal any adverse determination of a judicial tribunal; (ii) intervene
in any action as contemplated by section 6226(b) of the Code; (iii) file
any request contemplated in section 6227(b) of the Code; (iv) enter
into an agreement extending the period of limitations as contemplated in
section 6229(b)(1)(B) of Code; or (v) enter into a settlement
agreement with the IRS which purports to bind the Members with respect to any
matter that could affect the Taxes paid by the Class B Members for the
period before the Flip Date. Any cost or expense incurred by the Tax Matters
Partner in connection with its duties as Tax Matters Partner shall be paid by
the Company.


 


(d)           If for any reason the IRS disregards the
election made by the Company pursuant to Section 7.4(c) and
commences any audit or proceeding in which it makes a claim, or proposes to
make a claim, against any Member that could reasonably be expected to result in
the disallowance or adjustment of any items of income, gain, loss, deduction or
credit allocated to such Member by the Company, then such Member shall promptly
advise the other Members of the same, and such Member, in Consultation with the
other Members, shall use commercially reasonable efforts to convert the portion
of such audit or proceeding that relates to such items into a Company level
proceeding consistent with the Company’s election pursuant to Section 7.4(c).


 


(e)           If any Member intends to file, pursuant to
section 6227 of the Code, a request for an administrative adjustment of any
such partnership item of the Company, or to file a petition under sections
6226, 6228 or other sections of the Code with respect to any such partnership
item or any other tax matter involving the Company, such Member shall, at least
30 days prior to any such filing, notify the other Members of such intent,
which notification must include a reasonable description of the contemplated
action and the reasons for such action; provided, however, that this Section 7.6(e) shall
not relieve such Member’s obligation to use all commercially reasonable efforts
to convert a Member level proceeding into a Company level proceeding as
provided in Section 7.6(d).


 


Section 7.7.       Cooperation. Subject
to the provisions of this ARTICLE VII, each Member shall provide the
other Members with such assistance as may reasonably be requested by such other
Members in connection with the preparation of any Tax Return, any audit or
other examination by any taxing authority, or any judicial or administrative
proceedings relating to the liability for any Taxes with respect to the
operations of the Company and the Project Company or the allowance or
disallowance of any tax credits arising from the sale by the Project Company of
electricity produced by the Project.


 


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ARTICLE VIII


MANAGEMENT


 


Section 8.1.       Management. Each of
the Members acknowledges and agrees that the Manager shall have the authority,
powers and responsibilities described in the Management Services Agreement; provided
that the Manager may not take any action that would be a Major Decision
hereunder without the vote required to approve such Major Decision. The Company
hereby ratifies and approves the Management Services Agreement. Except (a) for
duties and powers delegated to the Manager hereunder or under the Management
Services Agreement, (b) for Major Decisions and (c) as otherwise
required by Applicable Law, the powers of the Company shall be exercised by or
under the authority of, and the business and affairs of the Company shall be
managed under the direction of the Managing Member, who shall take all actions
for and on behalf of the Company not otherwise provided for in this Company LLC
Agreement. Each Class B Member agrees that it will not exercise any
authority otherwise available to it under the Act to bind or commit the Company
to agreements, transactions or other arrangements, or to hold itself out as an
agent of the Company. Decisions or actions taken in accordance with the
provisions of this Company LLC Agreement shall constitute decisions or actions
by the Company and shall be binding on each Member, manager, officer and
employee of the Company. Decisions or actions taken by the Managing Member in
accordance with the provisions of this Company LLC Agreement shall constitute
decisions or actions by the Company and shall be binding on each Member,
manager, officer and employee of the Company. The Managing Member shall not be
entitled to compensation for services rendered pursuant to this Company LLC
Agreement in its capacity as Managing Member.


 


Section 8.2.       Managing Member.


 


(a)           The Managing Member shall be the Member
designated to act as such hereunder from time to time in accordance with the
provisions of this Section 8.2 (the “Managing Member”). The
initial Managing Member shall be NHC. The Managing Member covenants to be
responsible for enforcing and supervising the performance of the Manager under
the Management Services Agreement on behalf of the Company and MWCI, for
enforcing and supervising the performance of the Administrative Services Provider
under the Administrative Services Agreement and the Affiliate Operator under
the Affiliate O&M Agreement on behalf of the Project Company, and
supervising of other persons providing operation and maintenance and other
services to the Project Company in accordance with the Prudent Operator
Standard; provided, however, that in the event that a Designated
Affiliate Agreement is terminated and is not replaced, the Managing Member
shall perform the work, or engage a third party to perform such work, previously
performed by the applicable Designated Affiliate Agreement Provider, as
applicable, prior to the termination of such agreement in accordance with the
Prudent Operator Standard.


 


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(b)           The Managing Member hereby covenants to (i) the
extent the Project Company has cash available, cause the Project Company to
fund and maintain the Required Reserves in accordance with the procedures and
in the amounts set forth in Schedule 8.2(b);  (ii) cause
MWCI and the Project Company to implement any Major Decisions approved under
this Company LLC Agreement, and not to take any Major Decisions (or comparable
decision at the Project Company or MWCI level) without a Class Majority
Vote; and (iii) in the event that any of the Required Reserves are funded
with a Letter of Credit (as defined in Schedule
8.2(b))  and such Letter of Credit is
scheduled to expire and has not been renewed or replaced with a new Letter of
Credit or with cash, cause the Project Company to draw on such expiring Letter
of Credit at least 5 Business Days prior to its expiry date in an amount equal
to the lesser of (x) the face amount of such expiring Letter of Credit and
(y) the difference between the applicable Required Reserve amount and the
aggregate total amount of all other cash and Letters of Credit standing to the
credit of such Required Reserve account. The proceeds of any such draw on a
Letter of Credit shall be deposited in the applicable Required Reserve account.


 


(c)           The Managing Member may, at any time, upon
not less than 30 Business Days’ notice to the other Members, resign as Managing
Member. The Members, by a Class Majority Vote prior to the Flip Date and
by a Majority Vote thereafter, may at any time (i) remove a Managing
Member and (ii) fill any vacancy as Managing Member caused by removal,
resignation or otherwise; provided, however, that a majority of the Class B
Members, without the consent or approval of the Class A Members, shall be
entitled to remove the Managing Member upon (x) a determination in
accordance with Section 12.11, that there is Cause for removal or (y) following
any Bankruptcy of the Managing Member, or foreclosure or involuntary transfer
of the Class A Membership Interests held by the Managing Member and in any
such case, fill any vacancy created by such removal.


 


(d)           Upon the removal of the Managing Member by
the Class B Members pursuant to the preceding Section 8.2(c),
then a majority of the Class B Members, without the consent or approval of
the Class A Members, shall have the right to appoint a qualified and
experienced Person with a national or international reputation to perform the
duties of the Managing Member under this Company LLC Agreement, which Person
shall not be required to be a Member of the Company.


 


(e)           A majority of the Class B Members,
without the consent or approval of the Class A Members, shall be entitled
to remove any counterparty to a Material Contract that is a First Wind
Subsidiary (so long as NHC is a Class A Member) or an Affiliate of any Class A
Member other than NHC upon a determination in accordance with Section 12.11,
that there is Affiliate Material Contractor Cause for removal of such
counterparty under such Material Contract; provided, that such removal
right shall only


 


48

















 


apply to the Material Contract for which there is a showing of
Affiliate Material Contractor Cause and not to any other Material Contract.


 


(f)            Upon removal of a contract counterparty by
the Class B Members as provided in the Section 8.2(e), then a
majority of the Class B Members, without the consent or approval of the Class A
Members, shall have the right to appoint a qualified and experienced Person
with a national or international reputation to perform the duties of such
contract counterparty under such Material Contract, which Person shall not be
required to be a Member of the Company.


 


(g)           If the Managing Member fails to enforce the
rights of the Company, MWCI or the Project Company under a Designated Affiliate
Agreement in accordance with the Prudent Operator Standard, the Members holding
a majority of Class B Membership Interests may direct the Managing Member
to cause the Company, MWCI or the Project Company to take actions that are in
accordance with the Prudent Operator Standard to enforce the rights of the
Company, MWCI or Project Company (as applicable) under such Designated
Affiliate Agreement; provided, the Managing Member or Members holding a
majority of the Class A Membership Interests may invoke the dispute
resolution procedures of Section 12.11 with respect to any course
of action directed by a majority of the Class B Members pursuant to this Section 8.2(g);
and provided, further, that the Managing Member shall continue to cause
the Company, MWCI or Project Company, as applicable, to act in accordance with
the direction of the majority of the Class B Members pending resolution of
any such dispute.


 


Section 8.3.       Major Decisions.


 


(a)           In addition to any other approval required
by Applicable Law or this Company LLC Agreement, Major Decisions are reserved
to the Members, and none of the Company, the Managing Member, the Manager, or
any officer, employee or agent thereof shall do or take or make or approve any
Major Decisions without a Class Majority Vote.


 


(b)           The Managing Member will submit proposed
Major Decisions to the Class B Members in writing in accordance with Section 12.11,
with each submission setting forth in reasonable detail the Major Decision
proposed and the basis for the Managing Member’s recommendation. Upon receipt
of the written submission, the Class B Members will have 10 Business Days
therefrom to approve or reject the proposal. The decision of each Class B
Member as to whether or not to consent to or approve any Major Decision shall
be in the reasonable discretion of such Member.


 


Section 8.4.       Insurance. The
Managing Member shall cause the Company, MWCI and Project Company to acquire
and maintain (including making changes to


 


49

















 


coverage and carriers) the casualty, general liability (including
product liability), property damage and/or other types of insurance set forth
in Schedule 8.4; provided that,
if any such insurance is not available on commercially reasonable terms, only
such insurance shall then be required to be carried pursuant to this Section 8.4
as is then available on commercially reasonable terms. The Class B Members
shall be added to such insurance as set forth in Schedule 8.4 as Additional Insured and Loss Payee as their
interests may appear, with a waiver of subrogation permitted in their favor
(where legally permitted or insurance market practice permits). Such insurance
shall require that the Class B Members be provided with 30 days written
notice of cancellation (10 days for non-payment of premium). The Managing
Member shall cause to be delivered to each Class B Member, promptly after
it becomes a Member, certificates from a reputable insurance broker evidencing
the maintenance of the insurance required by this Section 8.4, which
certificates shall be replaced or updated to reflect any replacement, renewal
or other change to the insurance evidenced thereby, or the addition of any
policy not then reflected on the most recently delivered certificates.


 


Section 8.5.       Actions in Respect of
the Existing Financing.


 


(a)           At any time following the Second Equity
Capital Contribution Date, the Members holding a majority of Class B
Membership Interests may, within 5 Business Days after receipt of a Financing
Default Notice or if Class B Member otherwise becomes aware that a written
notice of a Default or Event of Default has been delivered to the Project
Company under the Existing Financing, direct the Managing Member to cause the
Project Company to take actions with respect to the Default or Event of Default
(each as defined in the Existing Financing Credit Agreement) described in such
Financing Default Notice or other written notice that are not inconsistent with
the terms of the Credit Documents (as defined in the Existing Financing Credit
Agreement) and that are in accordance with the Prudent Operator Standard in
order to effect cure or otherwise resolve such Default or Event of Default, provided,
however, that the Manager, Administrative Services Provider, Managing Member or
the Project Company shall not be prevented from taking any actions with respect
to such Default or Event of Default prior to receipt of such a direction from
the majority Class B Members. The Members holding a majority of the Class A
Membership Interests may invoke the dispute resolution procedures of Section 12.11
with respect to any course of action directed by a majority of the Class B
Members pursuant to this Section 8.5(a); provided, however,
that the Managing Member shall continue to cause the Project Company to act in
accordance with the direction of the majority of the Class B Members
pending resolution of such dispute.


 


(b)           Upon receipt of an Insufficient Funds Notice
or if Class B Member otherwise becomes aware that a written notice of a
Default or Event of Default has been delivered to the Project Company under the
Existing Financing Credit Agreement, the


 


50

















 


Class B Members shall have the right at any time following the
Second Equity Capital Contribution Date to (i) make a capital contribution
to the Company, or (ii) to make a loan to the Company or Project Company
on terms and conditions reasonably acceptable to the Managing Member, in each
case in an amount sufficient to remedy the shortfall set forth in the Insufficient
Funds Notice or take other corrective action or buy Existing Financing. In the
case of a capital contribution or loan made to the Company, the Managing Member
shall thereupon promptly cause the Company to either (x) contribute or (y) make
an intercompany loan, on terms and conditions reasonably satisfactory to the
Managing Member, with the proceeds of the Class B Members’ loan or capital
contribution (as applicable) to the Project Company. The Managing Member shall
thereafter cause the Project Company to apply the proceeds of any such loans or
capital contributions made pursuant to this Section 8.5(b) to
repay the Existing Financing.


 


(c)           In addition to, and without limitation to
the rights set forth in Section 8.5(a) and (b), upon
receipt of a Financing Default Notice or an Insufficient Funds Notice or if the
Class B Members otherwise become aware that a written notice of a Default
or an Event of Default has been delivered to the Project Company under the
Existing Financing Credit Agreement, the Class B Members shall have the
right, but not the obligation, at any time, to exercise the rights of the Class B
Members under the Consent and Agreement.


 


ARTICLE IX


TRANSFERS


 


Section 9.1.       Prohibited Transfers.
No Member shall sell, transfer, assign, convey, pledge, mortgage, encumber,
hypothecate or otherwise dispose of all or any part of its Membership Interests
or any interest, rights or obligations with respect thereto, directly or
indirectly (including through a change of Control or merger of such Member,
other than as contemplated by Section 9.4), (any such action, a “Transfer”),
except as provided in this ARTICLE IX. Any attempted Transfer that does
not comply with this ARTICLE IX, shall be null and void and of no force
or effect whatsoever.


 


Section 9.2.       Conditions Applicable to
All Transfers. Except as otherwise provided in this ARTICLE IX, all
Transfers of Membership Interests, including Transfers of Membership Interests
effected through the change of control of a parent of a Member must satisfy the
following conditions:


 


(a)           Except with respect to a change of Control
of a Member as provided in Section 9.4, the transferee must
execute, adopt and acknowledge this Company LLC Agreement and execute such
other agreements as the Managing Member may reasonably deem necessary or
appropriate to confirm the undertaking of the transferee to be bound by the
terms of this Company LLC Agreement and to assume the obligations of the


 


51

















 


transferor under this Company LLC Agreement including, to the extent
the transferor is to be released from such obligations, the Contribution
Agreement.


 


(b)           Except with respect to a change of Control
of a Member as provided in Section 9.4, the prospective transferee
makes the representations, warranties and covenants set forth in Section 3.11
and Section 3.12 as of the date of such Transfer.


 


(c)           Except with respect to a change of Control
of a Member as provided in Section 9.4 (other than a merger
involving a Member where the Member is not the surviving entity), the
prospective transferee shall agree to be bound by the Contribution Agreement.


 


(d)           The Transfer will not violate any material
agreement binding on the Company, the Project Company, or any assets of the
Company or the Project Company.


 


(e)           Except with respect to a change of Control
of a Member as provided in Section 9.4, the transferring Member and
the prospective transferee must each execute, acknowledge and deliver to the
Company such instruments of transfer and assignment with respect to such
Transfer and such other instruments as are reasonably satisfactory in form and
substance to the other Members to effect such Transfer and to confirm the
transferor’s intention that the transferee become a Member in its place.


 


(f)            The Transfer will not result in a
termination of the Company under section 708(b)(1)(B) of the Code, unless
the transferor has indemnified the other Members against any adverse tax
effects in a manner reasonably acceptable to the other Members. The conversion
of a Member (or any upper-tier entity whose only asset for federal income tax
purposes is the Member) from a corporation, partnership or disregarded entity
for United States federal income tax purposes into one of the other forms
(corporation, partnership or disregarded entity) will be treated as a Transfer
for purposes of this subsection.


 


(g)           The Transfer will not cause a Recapture
Event.


 


(h)           The Transfer will not cause there to be more
than 3 Class B Members or more than 3 Class A Members.


 


(i)            The Transfer will not violate any
securities laws or any other applicable federal or state laws or the order of
any court having jurisdiction over the Company or the Project Company or any of
their assets or any material contract, lease, security, indenture or agreement
binding on the Company or the Project Company or their assets.


 


52

















 


(j)            The Transfer will not cause the Company to
be (i) classified as an entity other than a partnership for United States
federal income tax purposes or (ii) classified as a Tax-Exempt Person, or
cause the Project to become “tax-exempt use property” within the meaning of
section 168(h) of the Code.


 


(k)           The transferee is an Approved Transferee.


 


(l)            Notwithstanding anything in this Company
LLC Agreement to the contrary, if such Transfer would occur prior to the
expiration of the Recapture Period, such Transfer shall not be effective
unless, prior to the effective date of the proposed Transfer, the transferring
Member delivers a written opinion of a nationally-recognized law firm in form
and substance satisfactory to the non-transferring Member, if requested by the
non-transferring Member, that such Transfer would not result in a Recapture
Event;


 


(m)          Any parent guaranty that is then required to
be in full force and effect with respect to obligations of the transferring
Member remains in force and effect or is replaced with a guaranty on terms and
conditions reasonably satisfactory to a majority of the Class A Members of
another entity having a credit rating of not less than the Required Ratings;


 


(n)           The transferring Member or the proposed
transferee shall pay, or reimburse the Company and each other Member for, all
reasonable costs and expenses incurred by the Company and the other Members in
connection with the Transfer and the admission of the proposed transferee as a
Member of the Company, on or before the tenth day after the receipt by that
Person of the Company’s or such non-transferring Member’s invoice, together
with such documentation of costs and expenses as reasonably requested by such
transferring Member or the proposed transferee, for the amount due;


 


(o)           The Transfer of a Membership Interest shall
not effect a release of the transferring Member from any liabilities to the
Company or the other Members arising from events occurring prior to or in
connection with the Transfer;


 


(p)           Solely to the extent the following may be
applicable to the Projects or the Project Companies, the Transfer shall not
result in: (a) any Project Company, as applicable, (i) being in
violation of Section 203 of the Federal Power Act; (ii) ceasing to be
authorized by FERC to make sales of energy, capacity and ancillary services at
market-based rates, being in violation of the terms and conditions of its
market-based rate authorization, or otherwise being in violation of Section 205
of the Federal Power Act, or (iii) ceasing to be an exempt wholesale
generator under PUHCA; or (b) if applicable, any Project ceasing to be a
qualifying small power production facility under the Public Utility


 


53

















 


Regulatory
Policies Act of 1978 and the FERC implementing regulations or exempt wholesale
generator under PUHCA.


 


(q)           All permits, consents and licenses,
including all necessary Governmental Approvals with respect to such Transfer
shall have been obtained.


 


Section 9.3.       Certain Permitted
Transfers. Except as otherwise provided in this Section 9.3 or
as required by Applicable Law applicable to a Member or its Affiliates, and notwithstanding
the provisions set forth in Section 9.2, the following Transfers
(the “Permitted Transfers”) may be made at any time and from time to
time, without restriction and without notice to, approval of, filing with,
consent by, or other action of or by, any Member or other Person:


 


(a)           The issuance of the Membership Interests by
the Company to the Investor pursuant to the Contribution Agreement;


 


(b)           The grant of any security interest in any Class A
Membership Interest pursuant to any security agreement that any Class A
Member or any Affiliate of a Class A Member may enter into with lenders; provided,
however, that (i) the requirements set forth in Section 9.2(d),
(f), (g), (i), (j) and (p) shall
be satisfied in respect of any such grant of a security interest, and (ii) the
requirements set forth in Section 9.2(a), (c), (d), (e),
(f), (g), (i), (j) and (p) shall
be satisfied in respect of any Transfer in connection with any foreclosure or
other exercise of remedies in respect of any Membership Interest subject to a
security interest referred to in this Section 9.3(b);


 


(c)           The Transfer of any Membership Interest
solely to an Affiliate of a Member; provided that the requirements set forth in
Section 9.2 are satisfied; and


 


(d)           Any Transfer in accordance with Section 9.5
(Purchase/Call Option), Section 9.6(Termination Purchase Option) or Section 9.7
(Buyout Events); provided, however, that the requirements set forth in Section 9.2(a),
(f), (g), (e), (i), (j) and (p) shall
be satisfied in respect of any such Transfer.


 


Section 9.4.       Upstream Reorganizations.


 


(a)           Subject to the restrictions in this ARTICLE
IX and so long as the provisions of Section 9.2(d), (f),
(g), (i), (j) and (p) are complied with (and,
for the purposes of this Section 9.4, the term “Transfer” in such
clauses of Section 9.2 shall be deemed to include any change of
Control or transfer of interests or other transactions described below):


 


54

















 


(i)        the approval of the Class B Members will
not be required in connection with any (A) internal reorganization of NHC
or any of its respective Affiliates; (B) sale of an interest in NHC, or of
an upstream interest in any direct or indirect owner of NHC, to an Approved
Transferee; (C) any Exempted Event, (D) any event that causes a
change of Control of an Affiliate that is not a First Wind Subsidiary, or (E) regulatory
approvals related to (A), (B), (C) or (D); provided, however, that
this Section 9.4(a)(i) will not apply to a direct transfer of
an interest in the Company by NHC.


 


(ii)       if the Investor Guaranty is still required to be
in full force and effect, provided the Investor Guaranty or a replacement
guaranty in form and substance reasonably satisfactory to a majority of the Class A
Members is in full force and effect, the approval of the Class A Members
will not be required in connection with any (i) internal reorganization of
Stanton, Investor Guarantor or any of their respective Affiliates; (ii) sale
of an interest in Stanton, or of an upstream interest in any direct or indirect
owner of Stanton, Investor Guarantor or any of their respective Affiliates, to
an Approved Transferee; or (iii) regulatory approval related to (i) or
(ii); provided, however, that this Section 9.4(a)(ii) shall
not apply to a direct transfer of an interest in the Company by any Class B
Member; and provided, further, that any adverse tax consequences caused
by a transfer by any Class B Member, or an Affiliate of any Class B
Member permitted by this paragraph will be ignored when calculating when the
Calculated Amount equals zero.


 


Section 9.5.       Purchase/Call Option.


 


(a)           Each Class A Member (or any Affiliate
of such Class A Member designated by it) shall have the right, exercisable
at any time following the Flip Date, to acquire all (but not less than all) of
the Class B Membership Interests (the “Purchase/Call Option”), upon
giving the Company and all other Members not less than 60 days’ written notice
of an election to exercise the Purchase/Call Option (the “Call Exercise
Notice”) during such period. Any other Class A Member may elect to
participate in the Purchase/Call Option by giving its own Call Exercise Notice
within 10 Business Days after the first Call Exercise Notice is given. Unless a
Class A Member has given a Call Exercise Notice within such 10 Business
Day period, it may not participate in the Purchase/Call Option. Any Call
Exercise Notice, if given, shall be irrevocable; provided, the Class B
Member shall not be required to sell its Class B Membership Interests to
the remaining Class A Members unless all of the Class B Membership
Interests are being acquired by the remaining Class A Members.


 


(b)           If a Class A Member defaults on its
obligation to purchase any Class B Membership Interest pursuant to this Section 9.5,
the remaining Class A Members who


 


55

















 


have given a
Call Exercise Notice shall have the right (but not the obligation) to purchase
the Class B Membership Interests that were to be transferred to such
defaulting Class A Member, (i) first, in a proportion determined by
the ratio of its Class A Percentage Interest and the aggregate Class A
Percentage Interest of all Class A Members that have given a Call Exercise
Notice (other than such defaulting Class A Member) and (ii) second,
if any Class B Membership Interests would remain, in such proportions as
the participating Class A Members may agree. The Call Price to be paid
pursuant to Section 9.5(d) shall be adjusted as necessary to
take into account any reallocation of the purchase of the Class B
Membership Interests pursuant to this Section 9.5(b);


 


(c)           The consideration for the Transfer of the Class B
Membership Interests to the Class A Members pursuant to the Purchase/Call
Option shall be an amount (payable in United States dollars) equal to the
greater of (i) the Fair Market Value of the Class B Membership
Interests of such Class B Member as of the date of the purchase of the Class B
Membership Interests pursuant to this Section 9.5 and (ii) an
amount sufficient to cause the Class B Member to maintain the Flip Yield,
taking into account any tax liability caused by the gain related to minimum
gain attributed to the Class B Members as a result of the Class A
Member’s purchase of the Class B Interests in connection with such
Purchase/Call Option (the “Call Price”). Absent manifest error, such
determination of the Call Price shall be final and binding on all Members
participating in the Purchase/Call Option.


 


(d)           If the Purchase/Call Option is exercised,
the closing of such Transfer shall occur on the Business Day that is (i) 60
days after the applicable Call Exercise Notice is given or (ii) such later
date as may be required to obtain any applicable consents or approvals or
satisfy any reporting or waiting period under any Applicable Law.


 


(e)           If the Purchase/Call Option is exercised, at
the closing of the Transfer, (1) each Class A Member which has given
a Call Exercise Notice shall pay (by wire transfer of immediately available
United States Dollars to such United States bank accounts as Class B
Members may designate in a written notice to the Company and Class A
Members no later than 5 Business Days prior to the closing date for the
Transfer pursuant to the Purchase/Call Option) an amount equal to (x) the product of (i) the Call Price (determined in accordance with Section 9.5(c)),
multiplied by (ii) the
fraction, the numerator of which is the Class A Percentage Interest of
such Class A Member and the denominator of which is the aggregate Class A
Percentage Interest of all Class A Members that have given a Call Exercise
Notice, less (y) the aggregate amounts of any amounts due and not yet paid
by the Class B Member transferring its Class B Membership Interests
to such Class A Member exercising its Purchase/Call Option in respect of
NHC Indemnified Costs or Member Indemnified Costs; provided, that in no
event shall such calculation of the amount to be paid upon the closing of the
Transfer result in a payment less than zero dollars; and (2) each Class B
Member shall take the


 


56

















 


following
actions: (i) following the payment by all (but not less than all) Class A
Members who have given a Call Exercise Notice of the amount contemplated in Section 9.5(e)(1) (or,
in the event there is a defaulting Class A Member, all Class A
Members who have given a Call Exercise Notice and have exercised their rights
in the event there is a defaulting Class A Member pursuant to Section 9.5(b))
such that the price for all of the Class B Membership Interests is paid,
such Class B Member shall Transfer to each Class A Member entitled to
purchase, as provided in Section 9.5(c), all right, title and
interest in and to the Class B Membership Interests in proportion to the
fraction, the numerator of which is the Class A Percentage Interest of
such Class A Member and the denominator of which is the aggregate Class A
Percentage Interest of all Class A Members that have given a Call Exercise
Notice, free and clear of all Liens other than Permitted Liens created by such Class B
Member; (ii) such Class B Member shall be deemed to have made the
representations set forth on Schedule 9 attached
hereto to each such Class A Member and the Company; and (iii) such Class B
Member shall take all such further actions and execute, acknowledge and deliver
all such further documents that are necessary to effectuate the Transfer of the
Class B Membership Interests contemplated by this Section 9.5.
Upon the closing of such Transfer, (1) all of such Class B Member’s
obligations and liabilities associated with the Class B Membership
Interests which are the subject of such Transfer will terminate except those
obligations and liabilities accrued through the date of such closing, (2) such
Class B Member shall have no further rights as a Member, and (3) all
the rights, obligations and liabilities associated with the Class B
Membership Interests which are the subject of such Transfer shall become the
rights, obligations and liabilities of each Person acquiring such Class B
Membership Interests.


 


Section 9.6.       Termination Purchase
Option.


 


(a)           In the event that the Second Equity Capital
Contribution Date has not occurred on or prior to January 31, 2010, each Class A
Member (or any Affiliate of such Class A Member designated by it) shall
have the right, exercisable at any time after February 1, 2010, to acquire
all (but not less than all) of the Class B Membership Interests (the “Termination
Purchase Option”), upon giving the Company and all other Members not less
than 15 days’ written notice of an election to exercise the Termination
Purchase Option (the “Termination Exercise Notice”) during such period.
Any other Class A Member may elect to participate in the Termination
Purchase Option by giving its own Termination Exercise Notice within 5 Business
Days after the first Termination Exercise Notice is given. Unless a Class A
Member has given a Termination Exercise Notice within such 5 Business Day
period, it may not participate in the Termination Purchase Option. Any
Termination Exercise Notice, if given, shall be irrevocable; provided,
the Class B Member shall not be required to sell its Class B
Membership Interests to the remaining Class A Members unless all of the Class B
Membership Interests are being acquired by the remaining Class A Members.


 


57














 


(b)           If a Class A Member defaults on its
obligation to purchase any Class B Membership Interest pursuant to this Section 9.6,
the remaining Class A Members who have given a Termination Exercise Notice
shall have the right (but not the obligation) to purchase the Class B
Membership Interests that were to be transferred to such defaulting Class A
Member, (i) first, in a proportion determined by the ratio of its Class A
Percentage Interest and the aggregate Class A Percentage Interest of all Class A
Members that have given a Termination Exercise Notice (other than such
defaulting Class A Member) and (ii) second, if any Class B
Membership Interests would remain, in such proportions as the participating Class A
Members may agree. The Termination Purchase Price to be paid pursuant to Section 9.6(e) shall
be adjusted as necessary to take into account any reallocation of the purchase
of the Class B Membership Interests pursuant to this Section 9.6(b).


 


(c)           The consideration for the Transfer of the Class B
Membership Interests to the Class A Members pursuant to the Termination
Purchase Option shall be an amount (payable in United States dollars) equal to
the greater of (i) the Fair Market Value of the Class B Membership
Interests of such Class B Member as of the date of the purchase of the Class B
Membership Interests pursuant to this Section 9.6 and (ii) an
amount sufficient to cause the Class B Member to achieve an internal rate
of return on its Capital Contribution equal to *****% (the “Termination
Purchase Price”).


 


(d)           If the Termination Purchase Option is
exercised, the closing of such Transfer shall occur on the Business Day that is
(i) 15 days after the Termination Exercise Notice is given or (ii) such
later date as may be required to obtain any applicable consents or approvals or
satisfy any reporting or waiting period under any applicable Legal
Requirements.


 


(e)           If the Termination Purchase Option is
exercised, at the closing of the Transfer, (1) each participating Class A
Member shall pay (by wire transfer of immediately available United States
Dollars to such United States bank accounts as the Class B Member may
designate in a written notice to the Company and Class A Member no later
than 5 Business Days prior to the closing date for the Transfer pursuant to the
Termination Purchase Option) an amount equal to (x) the product of (i) the
Termination Purchase Price (determined in accordance with Section 9.6(c)),
multiplied by (ii) the fraction, the numerator of which is the Class A
Percentage Interest of such Class A Member and the denominator of which is
the aggregate Class A Percentage Interest of all Class A Members that
have given a Termination Exercise Notice, less (y) the aggregate amounts
of any unpaid indemnification obligations owed by the Class B Member transferring
its Class B Membership Interests to such Class A Member exercising
its Termination Purchase Option under any Transaction Document; provided, that
in no event shall such calculation of the amount to be paid upon the closing of
the Transfer result in a payment less than zero dollars; and (2) the Class B
Member shall take the


 


58

















 


following
actions: (i) Transfer to each Class A Member entitled to purchase, as
provided in Section 9.6(c), all right, title and interest in and to
the Class B Membership Interests in proportion to the fraction, the
numerator of which is the Class A Percentage Interest of such Class A
Member and the denominator of which is the aggregate Class A Percentage
Interest of all Class A Members that have given a Termination Exercise
Notice, free and clear of all Liens other than Permitted Liens created by such Class B
Member; (ii) the Class B Member shall be deemed to have made the
representations set forth on Schedule 9 attached
hereto to each such Class A Member and the Company; and (iii) the Class B
Member shall take all such further actions and execute, acknowledge and deliver
all such further documents that are necessary to effectuate the Transfer of the
Class B Membership Interests contemplated by this Section 9.6.
Upon the closing of such Transfer, (1) all of such Class B Member’s
obligations and liabilities associated with the Class B Membership
Interests which are the subject of such Transfer will terminate except those
obligations and liabilities accrued through the date of such closing, (2) such
Class B Member shall have no further rights as a Member, and (3) all
the rights, obligations and liabilities associated with the Class B
Membership Interests which are the subject of such Transfer shall become the
rights, obligations and liabilities of each Person acquiring such Class B
Membership Interests.


 


Section 9.7.       Buyout Events.


 


(a)           This Section 9.7 shall apply to
any of the following events (each a “Buyout Event”):


 


(i)        a Member enters Bankruptcy;


 


(ii)       a Member dissolves and commences liquidation or
winding up and such dissolution or liquidation is reasonably expected to have a
Material Adverse Effect on the Company or a Material Adverse Effect on the
Project or any other Member; or


 


(iii)       there occurs an event that makes it
unlawful for the Member to continue to be a Member.


 


Upon the
occurrence of a Buyout Event, the Affected Member shall give written notice
thereof to the Managing Member. Upon receipt of such written notice by the
Managing Member, the Managing Member shall promptly give notice thereof to each
other Member.


 


(b)           If a Buyout Event occurs, then each of the
other Members shall have the option to acquire the Membership Interest of the
Affected Member (or to cause it to be acquired by a third party designated by
the other Members) (with the Members


 


59

















 


exercising
such right being referred to herein as “Purchasing Members”) in such
proportions as the Purchasing Members may agree or, if they cannot agree, in
accordance with the number of Membership Interests held by each such Purchasing
Member divided by the total
number of Membership Interests held by all of the Purchasing Members together.
Each Purchasing Member shall exercise its right to participate in the
acquisition of the Affected Member’s Membership Interest by giving notice of
such exercise to the Managing Member not more than 20 days following receipt by
the Members of the notice from the Managing Member referred to in the final
sentence of Section 9.7(a), which notice, if given by a Purchasing
Member, shall be irrevocable.


 


(c)           The purchase price (the “Buyout Price”)
for a Membership Interest being purchased pursuant to this Section 9.7
shall be the Fair Market Value of such Membership Interest as to which a Buyout
Event specified in this Section 9.7 has occurred; less the aggregate amounts of any unpaid
indemnification obligations owed by the Affected Member to the Purchasing
Member under any Transaction Document divided
by the number of Membership Interests being purchased by such
Purchasing Member pursuant to this Section 9.7.


 


(d)           The Parties acknowledge and agree that the
provisions of this Section 9.7(c) (including the provisions relating
to the determination of the Buyout Price) are a material inducement to their
entering into this Company LLC Agreement.


 


(e)           If an option to purchase is exercised under
this Section 9.7, the closing on such purchase shall occur on the
thirtieth day after the determination of the Buyout Price (or, in any event, if
later, the 5th Business Day after the receipt of all applicable regulatory and
governmental approvals to the purchase). Unless otherwise agreed among the
Affected Member and the Purchasing Members, the Buyout Price shall be paid in
cash at such closing (by wire transfer of immediately available United States
Dollars to such United States bank accounts as the Purchasing Members shall
designate in at least five days in advance in writing). The obligations of each
Purchasing Member under this Section 9.7 shall be several and not
joint.


 


(f)            Upon the occurrence of a closing under Section 9.7(d),
the following provisions shall apply to the Affected Member (now a “Terminated
Member”):


 


(i)        The Terminated Member shall cease to be a
Member immediately upon the occurrence of the closing.


 


(ii)       The Terminated Member shall no longer be
entitled to receive any distributions (including liquidating distributions) or
allocations from the Company except as directed in Section 5.4, and
it shall not be entitled to exercise


 


60

















 


any voting or consent rights or to receive any further information (or
access to information) from the Company (other than any required tax
information).


 


(iii)      The Terminated Member must pay to the Company all
amounts owed to the Company by such Terminated Member.


 


(iv)     The Terminated Member shall remain obligated for
all liabilities it may have under this Company LLC Agreement or otherwise with
respect to the Company that accrue prior to the closing.


 


(v)      The Membership Interest, including the Capital
Account balance attributable thereto, of the Terminated Member shall be
allocated among the Purchasing Members in the proportion of the total Buyout
Price paid by each Purchasing Member.


 


Section 9.8.       Regulatory and Other
Authorizations and Consents.


 


(a)           In connection with any Transfer pursuant to Section 9.5
(the “Designated Transfers”), each Member involved shall use all
commercially reasonable efforts to obtain all authorizations, consents, orders
and approvals of, give all notices to and make all filings with, all
Governmental Authorities and third parties that may be or become necessary for
the Designated Transfers, its execution and delivery of, and the performance of
its obligations under, this Company LLC Agreement or other Transaction
Documents in connection with any such Designated Transfer and will use
commercially reasonable efforts to cooperate fully with the other Members in
promptly seeking to obtain all such authorizations, consents, orders and
approvals, giving such notices and making such filings, including the provision
to such third parties and Governmental Authorities of such financial statements
and other publicly available financial information with respect to such Member or,
if applicable, such Member’s Guarantor, as the case may be, as such third
parties or Governmental Authorities may reasonably request; provided,
however, that no Member involved shall have any obligation to pay any
consideration to obtain any such consents. The Managing Member shall cooperate
in making any filing with any Governmental Authority to effect such a
Designated Transfer. In addition, the Members involved shall keep each other
reasonably apprised of their efforts to obtain necessary consents and waivers
from third parties or Governmental Authorities and the responses of such third
parties and Governmental Authorities to requests to provide such consents and
waivers.


 


(b)           Without limiting the generality of Section 9.8(a),
each Member shall make such filings as may be required under the HSR Act, the
Federal Power Act, as amended, or any state Applicable Law relating to the
ownership or control of the Project


 


61

















 


with the cooperation
of the Company, NHC, and the Project Company, to the extent that the
participating party’s status, or verification of document is an Applicable Law.


 


(i)        To the extent required by the HSR Act, each
Member involved in a Designated Transfer shall use commercially reasonable
efforts to (i) file or cause to be filed, as promptly as practicable but
in no event later than the 15th Business Day after the delivery of any Call
Exercise Notice with the Federal Trade Commission and the United States
Department of Justice, all reports and other documents required to be filed by
such Member under the HSR Act concerning the Designated Transfer and (ii) promptly
comply with or cause to be complied with any requests by the Federal Trade
Commission or the United States Department of Justice for additional
information concerning the Designated Transfer, in each case so that the
initial 30 day waiting period applicable under the HSR Act shall expire as soon
as practicable. Each Member involved in a Designated Transfer agrees to
request, and to cooperate with the other Members involved in requesting, early
termination of any applicable waiting period under the HSR Act. Each of the Class A
Members involved in a Designated Transfer shall be responsible for the filing
fees incurred by all Members involved in the Designated Transfer in connection
with the initial filings required by the HSR Act in connection with the
Designated Transfers (pro rata in proportion to the percentage of Class B
Membership Interests each such Class A Member will acquire in connection
with the Designated Transfer). Except as expressly provided in the prior
sentence with respect to filing fees, each Member involved in a Designated
Transfer will be responsible for its own fees and expenses, including any fees
and expenses of counsel, accountants or other professional advisors.


 


(ii)       To the extent required by the Federal Power Act,
each Member involved in a Designated Transfer shall use commercially reasonable
efforts to (i) file or cause to be filed, as promptly as practicable but
in no event later than the 21st Business Day after the delivery of any Call
Exercise Notice, any required application for approval of the Designated
Transfer pursuant to Section 203(a) of the Federal Power Act, and (ii) as
promptly as practicable but in no event later than the 10th Business Day after
the delivery of any Call Exercise Notice, provide to the Company and the
Managing Member information needed for the Company and/or the Managing Member
to file an application for approval of the Designated Transfer under Section 203(a) of
the Federal Power Act, as may be necessary.


 


Section 9.9.       Admission. Any
transferee of all or part of any Membership Interests pursuant to a Transfer
made in accordance with this Company LLC Agreement shall be admitted to the
Company as a substitute Member upon its execution of a


 


62

















 


counterpart to
this Company LLC Agreement and compliance with the other requirements of this ARTICLE
IX.


 


Section 9.10.     Security Interest Consent.
If any Class A Member grants a security interest in any Class A
Membership Interest, upon request by such Class A Member, each Class B
Member will execute and deliver to any Person holding such security interest
(for itself and/or for the benefit of other lenders) such acknowledgments,
consents or other instruments as such person may reasonably request to confirm
that such grant and any foreclosure or other exercise of remedies in respect of
such Class A Membership constitutes a Permitted Transfer under this
Company LLC Agreement, subject to the condition set forth in Section 9.2(g).


 


ARTICLE X


DISSOLUTION AND WINDING-UP


 


Section 10.1.     Events of Dissolution.
The Company shall be dissolved and its affairs shall be wound up upon the first
to occur of any of the following:


 


(a)           the written consent of all Members to
dissolve and terminate the Company; provided, however, that the Company
shall not be dissolved and its affairs shall not be wound up solely upon the
withdrawal or termination of a Member unless no other Members remain;


 


(b)           the entry of a decree of judicial
dissolution under Section 18-802 of the Act;


 


(c)           the disposition of all or substantially all
of the Company’s business and assets;


 


(d)           the issuance of a final, nonappealable court
order which makes it unlawful for the business of the Company to be carried on;
or


 


(e)           at any time there are no members of the
Company unless the business of the Company is continued in accordance with the
Act.


 


Section 10.2.     Distribution of Assets.


 


(a)           The Members hereby appoint the Managing
Member to act as the liquidator upon the occurrence of one of the events in Section 10.1.
Upon the occurrence of such an event, the liquidator will proceed diligently to
wind up the affairs of the Company and make final distributions as provided
herein and in the Act. The liquidator may sell, and will use commercially
reasonable efforts to obtain the best possible price for, any or all Company
property, including to Members. In no event, without the


 


63

















 


approval of
Members by a Class Majority Vote, will a sale to a Member be for an amount
that is less than Fair Market Value.


 


(b)           The liquidator will first pay, satisfy or
discharge from Company funds all of the debts, liabilities and obligations of
the Company (including the Working Capital Loans and all expenses incurred in
liquidation) or otherwise make adequate provision for payment and discharge
thereof (including the establishment of a cash escrow fund for contingent,
conditional or unmatured liabilities in such amount and for such term as the liquidator
may reasonably determine) in the order of priority as provided by law.


 


(c)           Any assets of the Company that are not sold
by the liquidator will be deemed sold for their Gross Asset Values as defined
in subparagraph (b) of the definition of “Gross Asset Value,” and the gain
from all dispositions and deemed dispositions, along with any other gross
income or other gain for the Tax Year during which the distribution of
liquidation proceeds occurs, will be allocated first to Members with deficits
in their Capital Accounts (in the ratio of the deficits if more than one
Member’s Capital Account is in deficit) until such deficits have been
eliminated.


 


(d)           Remaining items of gross income, gain,
expense or deduction will each be allocated,


 


(i)        in the event of a liquidation of the Company on
or prior to December 31, 2009, first among the Class B Members in an
effort to set the Capital Account of each Class B Member at a level that
would cause it to receive its pro rata portion of any amounts in the Required
Reserves and the sum of its Capital Contributions previously made to the
Company pursuant to Section 4 hereof, thereafter, to the Class A
Members any remaining items after the allocation to the Class B Member in
this clause has been made.


 


(ii)       in the event of a liquidation of the Company
after December 31, 2009, first among the Class A Members in an effort
to set the Capital Account of each Class A Member at a level that would
allow it to receive its pro rata portion of the Special Funded Distribution (if
such amount has not already distributed), second among the Class B Members
in an effort to set the Capital Account of each Class B Member at a level
that would cause the Calculated Amount to equal zero (if such amount has not
already been reached), and thereafter in the ratio in Section 5.1(b).


 


(e)           After the allocations in Section 10.2(c) and
10.2(d) have been made, then cash and property will be distributed
pro rata to the Members in the amount of the


 


64

















 


positive
balances in their Capital Accounts by the end of the Tax Year during which the
liquidation occurs (or, if later, within 90 days after the date of such
liquidation).


 


(f)            After giving effect to all allocations,
distributions and contributions for all periods, if any Class B Member has
a deficit Capital Account balance, such Class B Member shall be obligated
to contribute cash to the Company in an amount equal to such deficit balance by
the end of the taxable year of the Company during which the liquidation of the
Company occurs or if later, within 90 days after the date of such liquidation,
except that the restoration obligation of all Class B Members in the
aggregate will not be more than $30,000,000 and no Class B Member shall be
required to contribute more than its pro rata share of such restoration
obligation (based upon the ratio of its Class B Membership Interests to
all of the Class B Membership Interests), provided that such Member may
eliminate such deficit restoration obligation (in whole or in part) by
providing written notice thereof to the Company and the Class A Member so
long as, after such elimination, such Member does not then have a deficit
Adjusted Capital Account. Each Class B Member will have the right at its
option to increase the amount of its restoration obligation in this Section 10.2(g).
No Class A Member shall be obligated to contribute cash to restore a
deficit in its Capital Account but a Class A Member, may, at its option,
agree to assume a deficit restoration obligation by providing written notice to
that effect to each other Member.


 


(g)           The distribution of cash and property to a
Member in accordance with the provisions of this Section 10.2
constitutes a complete return to the Member of its Capital Contributions and a
complete distribution to the Member on its Membership Interests in the Company
of all the Company’s property and constitutes a compromise to which all Members
have consented within the meaning of Section 18-502(b) of the Act. If
the assets of the Company remaining after the payment or discharge of the debts
and liabilities of the Company are insufficient to return Capital Contributions
of each Member, such Member shall have no recourse against the Company or any
other Member.


 


Section 10.3.     In-Kind Distributions.
There shall be no distribution of assets of the Company in kind without a Class Majority
Vote.


 


Section 10.4.     Certificate of
Cancellation.


 


(a)           When all debts, liabilities and obligations
have been paid and discharged or adequate provisions have been made therefor
and all of the remaining property and assets have been distributed to the
Members, a certificate of cancellation shall be executed and filed by the
liquidator with the Secretary of State of the State of Delaware, which
certificate shall set forth the information required by Section 18-203 of
the Act.


 


65

















 


(b)           Upon the filing of the certificate of
cancellation, the existence of the Company shall cease.


 


(c)           All costs and expenses in fulfilling the
obligations under this Section 10.4 shall be borne by the Company.


 


ARTICLE XI


GENERAL INDEMNITY


 


Section 11.1.     Indemnification by the
Members.


 


(a)           Beginning on the Effective Date (or, with
respect to any additional Member that becomes a Member after the Effective
Date, on the first date on which such Person becomes a Member hereunder) and
continuing thereafter, each Member agrees to indemnify, defend and hold
harmless the other Member Parties from and against any and all Member
Indemnified Costs.


 


(b)           No claim for indemnification may be made
with respect to any Indemnified Costs (other than fraud, willful misconduct, or
failure to pay any amount due to Indemnified Parties under any Transaction
Document) until the aggregate amount of such costs for which indemnification is
(or previously has been) sought by the Indemnified Party under all Transaction
Documents exceeds $100,000 and once such threshold amount of claims has been
reached, the relevant Indemnified Party and its Affiliates shall have the right
to be indemnified only to the extent the amount of Indemnified Costs claimed
exceed such threshold amount. Claims for indemnification under this Company LLC
Agreement and the other Transaction Documents shall not be duplicative of one
another and shall not allow for duplicative recoveries.


 


Section 11.2.     Indemnification of Members
by the Company. Each Member and any Affiliate of a Member, and each of
their respective officers, directors, shareholders, employees and agents (each,
a “Member Party”) shall be exculpated from liability for and defended,
indemnified and held harmless by the Company from all Claims arising out of the
performance by such Member Party of its obligations under this Company LLC
Agreement so long as such Member Party acted in good faith and in a manner
reasonably believed by it to be in the best interest of or not opposed to the
interest of the Company; provided, however, that no Member Party shall
be shall be exculpated from liability for and defended, indemnified and held
harmless or entitled to the payment of an Indemnity Claim under this ARTICLE
XI to the extent such Claim is attributable to willful misconduct, fraud or
gross negligence or breach of any of its representations, warranties or
covenants or agreements (in each case, if any) under this Company LLC Agreement
or the Contribution Agreement.


 


66

















 


Section 11.3.     Procedures for Indemnity
Obligation.


 


(a)           All Indemnity Claims by the Indemnified
Persons under Section 11.1 shall be asserted and resolved in
accordance with this Section 11.3.


 


(b)           If an Indemnified Person learns of an
Indemnity Claim asserted against such Indemnified Person by a Third Person for
which such Indemnified Person may seek indemnification under Section 11.1,
such Indemnified Person shall promptly notify the indemnifying Member(s) thereof,
specifying the nature of and specific basis for such Indemnity Claim and the
actual or estimated amount thereof to the extent then feasible (which estimate
shall not be conclusive of the final amount of such Indemnity Claim) (the “Claim
Notice”); provided, however, that the failure to provide such notice
promptly shall not limit or reduce such Indemnified Person’s right to
indemnification under Section 11.1 except to the extent that such
failure to provide such notice promptly shall prevent or shall have prevented
the indemnifying Member(s) from properly or effectively defending the
Indemnity Claim or from recovering reimbursement or other damages to which the
indemnifying Member(s) would be entitled.


 


(c)           The indemnifying Member(s) shall notify
the Indemnified Person within the Notice Period whether or not it disputes its
obligation to indemnify such Indemnified Person against such Indemnity Claim; provided,
however, that the Indemnified Persons are hereby authorized prior to and during
such Notice Period to file any motion, answer or other pleading that may be
necessary or appropriate to protect their respective interests or those of the
indemnifying Member(s) and a copy of such pleading shall be promptly
delivered to the indemnifying Member(s).


 


(d)           If any indemnifying Member notifies such
Indemnified Person within such Notice Period that it does not dispute its
obligation to Indemnify such Indemnified Person against such Indemnity Claim
then, except as hereinafter provided, the indemnifying Member(s) shall
have the right, but not the obligation, to defend by all appropriate
proceedings, and with counsel of its own choosing that is reasonably acceptable
to such Indemnified Person, such right being exercisable only in the same
notice in which it notifies such Indemnified Person that it does not dispute
its obligation to Indemnify it against the Indemnity Claim.


 


(e)           If an indemnifying Member elects to defend
against such Indemnity Claim, it shall promptly settle such Indemnity Claim or
diligently prosecute it to a final conclusion. If such Indemnified Person
desires to participate in, but not control, any such defense or settlement, it
may do so at its sole cost and expense.


 


(f)            If an indemnifying Member disputes its
liability with respect to such Indemnity Claim or fails to defend against such
Indemnity Claim, whether by not giving


 


67














 


timely notice
as provided above or otherwise, such Indemnified Person shall have the right
but not the obligation to defend against such Indemnity Claim.


 


(g)           Unless an indemnifying Member has accepted
liability for an Indemnity Claim in writing, the indemnifying Member shall not
settle any such Indemnity Claim of such Indemnified Person without the prior
written consent of such Indemnified Person; provided that in no
case shall an indemnifying Member settle or compromise any Indemnity Claim
without first demonstrating to such Indemnified Person the ability to pay such
Indemnity Claim. The Indemnified Persons shall not settle any Indemnity Claim
without the prior written consent of the indemnifying Member unless the
indemnifying Member has refused to accept liability for such Indemnity Claim
and failed to defend such Indemnified Person against such Indemnity Claim
pursuant to the terms of this Company LLC Agreement.


 


(h)           If requested by the indemnifying Member(s),
the Indemnified Persons agree to cooperate with the indemnifying Member(s), its
(or their respective) insurers and their respective counsel in contesting any
Third Party Claims that the Indemnified Persons elect to contest; provided,
however, that the indemnifying Member (i) has furnished the Indemnified
Persons with a written opinion of the indemnifying Member’s outside counsel to
the effect that a reasonable basis exists to contest such Indemnity Claim and (ii) has
agreed to advance to the Indemnified Persons all out-of-pocket costs and
expenses (including reasonable attorneys’ fees) that the Indemnified Persons
may incur in so cooperating in the contest of such Indemnity Claim.


 


(i)            If an Indemnified Person shall have an
Indemnity Claim against an indemnifying Member(s) hereunder that does not
involve an Indemnity Claim or demand being asserted against or sought to be
collected from such Indemnified Person by a Third Person, such Indemnified
Person shall promptly send a Claim Notice with respect to such Claim to the
indemnifying Member(s). If an indemnifying Member does not notify the
Indemnified Person within the Notice Period that it disputes such Indemnity
Claim, the amount of such Indemnity Claim shall be conclusively deemed a
liability of the indemnifying Member(s) hereunder.


 


Section 11.4.     Member Indemnification
Procedures.


 


(a)           All Claims for indemnification of the Member
Parties under Section 11.2 shall be asserted and resolved in
accordance with this Section 11.4.


 


(b)           If a Member Party learns of an actual Claim
for which such Member Party may seek indemnification under Section 11.2,
such Member Party shall promptly notify the Managing Member thereof, by sending
a Claim Notice; provided, however, that the failure to provide such
notice promptly shall not limit or reduce such Member


 


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Party’s right
to indemnification under Section 11.2, except to the extent that
such failure to provide such notice promptly shall prevent or shall have
prevented the Company from properly or effectively defending the Claim or from
recovering reimbursement or other damages to which the Company would be
entitled.


 


(c)           The Managing Member, on behalf of the
Company, shall notify all Indemnified Persons within the Notice Period whether
or not it disputes its obligation to Indemnify such Indemnified Person against
such Claim; provided, however, that the Indemnified Persons are hereby
authorized prior to and during such Notice Period to file any motion, answer or
other pleading that may be necessary or appropriate to protect their respective
interests or those of the Company and the other Members and a copy of such
pleading shall be promptly delivered to the other Members.


 


(d)           If the Managing Member, on behalf of the
Company, notifies such Indemnified Person within such Notice Period that it
does not dispute its obligation to Indemnify such Indemnified Person against
such Claim then, except as hereinafter provided, the Managing Member, on behalf
of the Company, shall have the right, but not the obligation, to defend by all
appropriate proceedings, and with counsel chosen by the Managing Member, such
right being exercisable only in the same notice in which it notifies such
Indemnified Person that it does not dispute its obligation to Indemnify it
against the Claim. Such Indemnified Person shall have the right to participate
in such defense, using its own counsel at the Company’s expense, to the extent
such Claim involves any risk of criminal liability or any conflict of interest
between the Company and such Indemnified Person.


 


(e)           If the Company, pursuant to and in
accordance with Section 11.4(g), elects to defend the Claim of such
Member Party, it shall promptly settle such Claim or diligently prosecute it to
a final conclusion. If the Member Parties desire to participate in, but not
control, any such defense or settlement, they may do so at their sole cost.


 


(f)            If requested by the Managing Member, on
behalf of the Company, the Indemnified Persons agree to cooperate with the
Managing Member, on behalf of the Company, its insurers and its counsel in
contesting any Third Party Claims that the Company elects to contest; provided,
however, that the Managing Member (i) has furnished the Indemnified
Persons with a written opinion of the Company’s outside counsel, to the effect
that a reasonable basis exists to contest such Claim and (ii) has agreed
to advance to the Indemnified Persons all out-of-pocket costs and expenses
(including reasonable attorneys’ fees) that the Indemnified Persons may incur
in so cooperating in the contest of such Claim.


 


(g)           If the Company disputes its liability with
respect to such Claim or fails to defend against such Claim, whether by not
giving notice as provided above or


 


69

















 


otherwise, the
Member Party shall have the right but not the obligation to defend against such
Claim. Unless the Company has accepted liability for a Claim in writing, the
Company shall not settle any such Claim without the prior written consent of
the Member Party; provided that in no case shall the Company settle or
compromise any such Claim without first demonstrating to such Member Party the
ability to pay such Claim. The Member Parties shall not settle any Claim
without the prior written consent of the Company unless the Company has refused
to accept liability for such Claim and failed to defend the Member Party
against such Claim pursuant to the terms of this Company LLC Agreement.


 


(h)           If a Member Party shall have an Indemnity
Claim against the Company under Section 11.2 which does not involve
a Claim or demand being asserted against or sought to be collected from such
Member Party by a Third Person, such Member Party shall promptly send a Claim
Notice with respect to such Claim to the Managing Member. If the Managing
Member on behalf of the Company, does not notify such Member Party within the
Notice Period that it disputes such Indemnity Claim, the amount of such
Indemnity Claim shall be conclusively deemed a liability of the Company
hereunder.


 


Section 11.5.     Gross-Up of Indemnity.
To the extent any such indemnification payment is includable as income of an
Indemnified Party as determined by agreement of the Indemnified Party and the
indemnifying Member or Company, as the case may be, or if there is no
agreement, because a nationally-recognized tax counsel selected jointly by the
Indemnified Party and the indemnifying Member or Company, as the case may be,
opines that such amount is “more likely than not” includable as income of the
recipient, the amount of the payment shall be increased by the amount of any
federal income tax required to be paid by the Indemnified Party or its
Affiliates on the receipt or accrual of the indemnification payment, including,
for this purpose, the amount of any such Tax required to be paid by the Indemnified
Party on the receipt or accrual of the additional amount required to be added
to such payment pursuant to this Section 11.5, assuming full
taxability, using an assumed tax rate equal to 35%. If an opinion is delivered
in accordance with the foregoing sentence, the Indemnified Party shall report
the relevant indemnification payments as income consistent with such opinion
and otherwise act in a manner consistent with such opinion. Any payment made
under this ARTICLE XI shall be reduced by the present value of any
federal income tax benefit to be realized by the Indemnified Party or its
Affiliates by reason of the facts and circumstances giving rise to such
indemnification.


 


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ARTICLE XII


MISCELLANEOUS


 


Section 12.1.     Notices. Unless
otherwise provided herein, any offer, acceptance, election, approval, consent,
certification, request, waiver, notice or other communication required or
permitted to be given hereunder (collectively referred to as a “Notice”),
shall be in writing and delivered (a) in person, (b) by registered or
certified mail with postage prepaid and return receipt requested, (c) by
recognized overnight courier service with charges prepaid or (d) by
facsimile transmission, directed to the intended recipient at the address of
such Member on Schedule 4.2(d) or
at such other address as any Member hereafter may designate to the others in
accordance with a Notice under this Section 12.1. A Notice or other
communication will be deemed delivered on the earliest to occur of (i) its
actual receipt when delivered in person, (ii) the 5th Business Day
following its deposit in registered or certified mail, with postage prepaid,
and return receipt requested, (iii) the 2nd Business Day following its
deposit with a recognized overnight courier service or (iv) the date of
receipt of a facsimile or, if such date of receipt is not a Business Day, the
next Business Day following such date of receipt, provided the sender can and
does provide evidence of successful transmission. Any Notice or other
communication received on a day that is not a Business Day or later than 5:00
p.m. on a Business Day shall be deemed to be received on the next Business Day.


 


Section 12.2.     Amendment. Except for
an amendment of Schedule 4.2(d) in
accordance with the terms of this Company LLC Agreement, and a Transfer of
Membership Interests and the admission of a new Member in accordance with the
terms of this Company LLC Agreement, this Company LLC Agreement may be changed,
modified or amended only by an instrument in writing duly executed by Members
representing a Class Majority Vote.


 


Section 12.3.     Partition. Each of the
Members hereby irrevocably waives, to the extent it may lawfully do so, any
right that such Member may have to maintain any action for partition with
respect to the Company property.


 


Section 12.4.     Waivers and Modifications.
Any waiver or consent, express, implied or deemed, to or of any breach or
default by any Person in the performance by that Person of its obligations with
respect to the Company or any action inconsistent with this Company LLC
Agreement is not a consent or waiver to or of any other breach or default in
the performance by that Person of the same or any other obligations of that
Person with respect to the Company or any other such action. Failure on the
part of a Person to insist in any one or more instances upon strict performance
of any provisions of this Company LLC Agreement, to take advantage of any of
its rights hereunder, or to declare any Person in default with respect to the
Company, irrespective of how long that failure continues, does not constitute a
waiver by that Person of its rights with respect to


 


71

















 


that Person or
its rights with respect to that default until the applicable statute of
limitations period has lapsed. All waivers and consents hereunder shall be in
writing duly executed by Members representing a more than 80% of the Members
holding the class of Membership Interests affected by such waiver or consent
and shall be delivered to the other Members in the manner set forth in Section 12.1.


 


Section 12.5.     Severability. Except
as otherwise provided in the succeeding sentence, every term and provision of
this Company LLC Agreement is intended to be severable, and if any term or
provision of this Company LLC Agreement is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or
validity of the remainder of this Company LLC Agreement. The preceding sentence
shall be of no force or effect if the consequence of enforcing the remainder of
this Company LLC Agreement without such illegal or invalid terms or provision
would be to cause any Party to lose the benefit of its economic bargain.


 


Section 12.6.     Successors; No Third-Party
Beneficiaries. This Company LLC Agreement is binding on and inures to the
benefit of the Members and their respective heirs, legal representatives,
successors and permitted assigns. Except as provided in Section 3.4(c),
nothing in this Company LLC Agreement shall provide any benefit to any third
party or entitle any third party to any claim, cause of action, remedy or right
of any kind, it being the intent of the Members that this Company LLC Agreement
shall not be construed as a third-party beneficiary contract. To the full
extent permitted by law, no creditor or other third party having dealings with
the Company shall have the right to pursue any other right or remedy hereunder
or at law or in equity, it being understood and agreed that the provisions of
this Company LLC Agreement shall be solely for the benefit of, and may be
enforced solely by, the parties hereto and their respective successors and
permitted assigns. None of the rights of the Members herein set forth to make Capital
Contributions or loans to the Company shall be deemed an asset of the Company
for any purpose by any creditor or other third party, nor may such rights or
obligations be sold, transferred or assigned by the Company or pledged or
encumbered by the Company to secure any debt or other obligation of the Company
or of any of the Members.


 


Section 12.7.     Entire Agreement. This
Company LLC Agreement, including the Schedules attached hereto or incorporated
herein by reference, constitutes the entire agreement of the Members with
respect to the matters covered herein. This Company LLC Agreement supersedes
all prior agreements and oral understandings among the parties hereto with
respect to such matters, including the Original Operating Agreement.


 


Section 12.8.     Governing Law. This
Company LLC Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, excluding any conflict of laws rule or
principle that might refer the governance or construction of this Company LLC
Agreement to the law of another jurisdiction.


 


72

















 


Section 12.9.     Further Assurances. In
connection with this Company LLC Agreement and the transactions contemplated
hereby, each Member shall execute and deliver any additional documents and
instruments and perform any additional acts that may be reasonably required or
useful to carry out the intent and purpose of this Company LLC Agreement and as
are not inconsistent with the terms hereof.


 


Section 12.10.   Counterparts. This
Company LLC Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together will constitute one
instrument, binding upon all parties hereto, notwithstanding that all of such
parties may not have executed the same counterpart. Delivery of an executed
counterpart of a signature page of this Company LLC Agreement by telecopy
or portable document format (“pdf”) shall be effective as delivery of a
manually executed counterpart of this Company LLC Agreement.


 


Section 12.11.   Dispute Resolution.


 


(a)           In the event a dispute, controversy or claim
arises hereunder, the aggrieved party will promptly provide written
notification of the dispute to the other party within ten days after such
dispute arises. A meeting will be held promptly between the parties, attended
by representatives of the parties with decision-making authority regarding the
dispute, to attempt in good faith to negotiate a resolution of the dispute. If
the parties are not successful in resolving a dispute within 21 days (15 days
for disputes under Section 8.2 (c), (e) or (g))
the parties will thereafter be entitled to pursue all such remedies as may be
available to them.


 


(b)           If any Class B Member disputes the
determination that the Flip Date has occurred (including based on any item or
procedure or calculation that affects such determination contained in any
notice or report delivered by the Manager to such Class B Member), such Class B
Member shall notify the Manager and other Members not more than 30 Business
Days after such Class B Member has received written notice from the
Manager or the Managing Member that the Flip Date was determined to have
occurred. In such event, the Members and the Manager shall consider the issues
raised or in dispute and discuss such issues with each other and attempt to
reach a mutually satisfactory agreement. If notice of dispute is not given by
any Class B Member within such period, the determination that the Flip
Date has occurred, and the items, procedures and calculations described above
relating thereto, will be final and binding on the Members. If the dispute as
to the Manager’s calculations is not promptly resolved within 10 Business Days
of such notification of the dispute, the Class B Members and the Manager
shall each promptly present their interpretations to an Independent Accounting
Firm, and shall instruct the Independent Accounting Firm to determine the
correct amount of the calculations in dispute (if applicable, in accordance
with the methodology in Section 6.6) and to resolve the dispute
promptly, but in no event more than 20 Business Days after


 


73

















 


having the
dispute submitted to it. The Independent Accounting Firm will make a
determination as to each of the items in dispute, which must be (i) in
writing, (ii) furnished to each Member and the Manager and (iii) made
in accordance with this Company LLC Agreement, and which determination, absent
manifest error, will be conclusive and binding on all Members. Each Member
shall use reasonable efforts to cause the Independent Accounting Firm to render
its decision as soon as reasonably practicable, including by promptly complying
with all reasonable requests by the Independent Accounting Firm for
information, books, records and similar items. In the event the Independent
Accounting Firm determines that any of the calculations in dispute was
incorrect in any material respect, the fees and expenses of the Independent
Accounting Firm shall be borne by Class A Members (pro rata in proportion
to their Class A Percentage Interests). In all other cases the fees and
expenses of the Independent Accounting Firm shall be borne by the Class B
Member disputing any of the calculations (if more than one, pro rata in
proportion to their Class B Percentage Interests).


 


Section 12.12.   Confidentiality.


 


(a)           Except to the extent necessary for the
exercise of its rights and remedies and the performance of its obligations
under this Agreement, no Member will itself use or intentionally disclose (and
will not permit the use or disclosure by any of its Affiliates, or any of the
officers, directors or employees of it or its Affiliates or any of its
Representatives, directly or indirectly, any of the Material Contracts, the
Project Company LLC Agreement or this Company LLC Agreement or information
furnished thereunder or hereunder, and will use all reasonable efforts to have
all such information kept confidential (consistent with its own practices);
provided, that (i) any such Member and its Affiliates and Representatives
may use, retain and disclose any such information to any Governmental Authority
or as otherwise required by Applicable Law, (ii) any such Member and its
Affiliates and Representatives may use, retain and disclose any such information
that has been publicly disclosed (other than by such party or any Affiliates
and Representatives thereof in breach of this Section 12.12) or has
rightfully come into the possession of such Member or any Affiliate or
Representative thereof other than from another Member or a Person acting on
such other Member’s behalf and under circumstances not involving, to the best
of such Member’s knowledge, any breach or any confidentiality obligation, (iii) to
the extent that any such Member or any Affiliate or Representative thereof may
have received a subpoena or other written demand under color of legal right for
such information, such Member or such Affiliate or Representative may disclose
such information, but such Member shall first, unless prohibited by Applicable
Law, as soon as practicable upon receipt of such demand, furnish a copy thereof
to the other Members and, if practicable so long as such Member shall not be in
violation of such subpoena or demand or likely become liable to any penalty or
sanctions thereunder unless based upon counsel’s opinion, such Member is
advised it must disclose such information, afford the other Members reasonable
opportunity, at any other


 


74

















 


Member’s cost
and expense, to obtain a protective order or other reasonably satisfactory
assurance of confidential treatment for the information required to be
disclosed, shall cooperate with any reasonable efforts of the other Members to
obtain a protective order or other similar relief, shall keep the other Members
informed of any developments with respect to the compulsion or request for
information, and shall disclose only so much of the information as, in the
opinion of its legal counsel, is legally required, (iv) disclosures to lenders,
potential lenders or other Persons providing financing to the Company or any
Member and potential purchasers of Membership Interests in the Company or other
potential purchasers in connection with a Permitted Transfer, if such Persons
have agreed to abide by terms substantially similar to the obligations of the
Members under this Section 12.12, (v) any such Member and its
Affiliates and Representatives may disclose any such information, and make such
filings, as may be required by this Agreement or the Material Contracts, (vi) disclosures
required or requested by the IRS or other taxing authority in connection with
the Project or Cash Grant or other tax benefits relating thereto, including in
connection with the request for a private letter ruling, any determination
letter or any audit, and (vii) any such Member which is an insurance
company or an Affiliate thereof may disclose such information to the National
Association of Insurance Commissioners and any rating agency requiring access
to its investment portfolio. Notwithstanding anything herein to the contrary,
Members may disclose information to their Affiliates and Representatives in
accordance with this Agreement, so long as such Persons agree to comply with
the provisions of this Section 12.12.


 


(b)           A Terminated Member may, subject to the
other provisions of this Section 12.12, retain and use information
regarding the transactions contemplated in the Transaction Documents and this
Agreement for the limited purpose of preparing such Terminated Member’s Tax
Returns and defending audits, investigations and proceedings relating thereto
and hereto.


 


(c)           The Members agree that no adequate remedy at
law exists for a breach or threatened breach of any of the provisions of this Section 12.12,
the continuation of which unremedied will cause the Company and the other
Members to suffer irreparable harm. Accordingly, the Members agree that the
Company and the other Members shall be entitled, in addition to other remedies
that may be available to them, to immediate injunctive relief from any breach
of any of the provisions of this Section 12.12 and to specific
performance of their rights hereunder, as well as to any other remedies
available at law or in equity.


 


(d)           In the event of a conflict between the terms
of this Section 12.12 and the terms of any other Confidentiality
Agreement between the Parties related to the transactions contemplated herein,
the terms of this Company LLC Agreement shall


 


75

















 


prevail. The
obligations of the Members under this Section 12.12 shall terminate
on the 3rd anniversary of the LLC Agreement Termination Date.


 


Section 12.13.   Joint Efforts. To the
full extent permitted by Applicable Law, neither this Company LLC Agreement nor
any ambiguity or uncertainty herein will be construed against any of the
parties hereto, whether under any rule of construction or otherwise. On
the contrary, this Company LLC Agreement has been prepared by the joint efforts
of the respective attorneys for, and has been reviewed by, each of the parties
hereto.


 


Section 12.14.   Specific Performance.
The Members agree that irreparable damage will result if this Company LLC
Agreement is not performed in accordance with its terms, and the Members agree
that any damages available at law for a breach of this Company LLC Agreement
would not be an adequate remedy. Therefore, to the full extent permitted by
law, the provisions hereof and the obligations of the Members hereunder shall
be enforceable in a court of equity, or other tribunal with jurisdiction, by a
decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies and all other
remedies provided for in this Company LLC Agreement shall, however, be cumulative
and not exclusive and shall be in addition to any other remedies that a Member
may have under this Company LLC Agreement, at law or in equity.


 


Section 12.15.   Survival. All
indemnities and reimbursement obligations made pursuant to this Company LLC
Agreement shall survive dissolution and liquidation of the Company until
expiration of the longest applicable statute of limitations (including
extensions and waivers) with respect to the matter for which a Person would be
entitled to be indemnified or reimbursed, as the case may be.


 


Section 12.16.   Effective Date. This
Company LLC Agreement shall have no force or effect unless and until the
funding of the transactions contemplated by the Contribution Agreement to take
place at the Initial Closing occurs, at which time this Company LLC Agreement
shall automatically and without any further action become effective
simultaneously with such Initial Closing.


 


Section 12.17.   Recourse Only to Member.
The sole recourse of the Company for performance of the obligations of any
Member hereunder shall be against such Member and its assets and not against
any assets or property of any present or future stockholder, partner, member,
officer, employee, servant, executive, director, agent, authorized
representative or Affiliate of such Member.


 


[Remainder of this page left
intentionally blank.]


 


76

















 


IN
WITNESS WHEREOF, the parties, each a Member, have caused this First Amended and
Restated Limited Liability Company Agreement to be signed by their respective
duly authorized officers as of the date first above written.


 


	
   

  	
  MILFORD NHC, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eveyln
  Lim

  
	
   

  	
   

  	
  Name:

  	
  Eveyln Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STANTON EQUITY TRADING

  
	
   

  	
  DELAWARE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jerry L
  Smith

  
	
   

  	
   

  	
  Name:

  	
  Jerry L
  Smith

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


[Signature Page to First Amended and Restated LLC Agreement of
Milford Wind Partners, LLC]


 














 


ANNEX I


 


DEFINITIONS


 


“Accounting
Firm” means any of Deloitte Touche Tohmatsu, Ernst &
Young, KPMG International, PriceWaterhouseCoopers, LLP, any of their
successors, or any nationally-recognized Affiliate thereof, at the Managing
Member’s election, or such other firm of certified public accountants approved
by a Class Majority Vote.


 


“Accountant’s
Certificate” means the independent
accountant’s certification attesting to accuracy of all costs as required
pursuant to the Guidance.


 


“Act” means the Delaware Limited Liability Company
Act, Delaware Code Ann. 6, Sections 18-101, et seq. and any successor statute,
as the same may be amended from time to time.


 


“Adjusted
Capital Account” means the Capital Account of a
Member (a) increased by the amount of potential deficit that the Member is
deemed obligated to restore, calculated as described in the last sentence of
Treasury Regulations Section 1.704-2(g)(1) and the last sentence of
Treasury Regulations Section 1.704-2(i)(5), (b) increased by the
amount of any deficit restoration obligation to which the Member has agreed
under Section 10.2(f) of the Company LLC Agreement, and (c) decreased
by expected items described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4),
(5) and (6).


 


“Administrative
Services Agreement” means the Administrative
Services Agreement between Project Company and First Wind Energy, LLC dated as
of April 22, 2009.


 


“Administrative
Services Provider” means First Wind Energy, LLC
and any permitted successor to such Person under the Administrative Services
Agreement.


 


“Affected
Member” means a Member with respect to whom a Buyout Event
has occurred.


 


“Affiliate” means, with respect to any Person, any other Person controlling,
controlled by or under common Control with such first Person.


 


“Affiliate
Material Contractor Cause” means
with respect to any First Wind Subsidiary that is a counterparty to any
Material Contract, fraud, willful misappropriation of funds, gross negligence,
willful misconduct, or a willful violation of a material


 

















 


provision of such Material Contract, in each case of or by
such First Wind Subsidiary in its capacity as counterparty to such Material
Contract.


 


“Affiliate
O&M Agreement” means the Project O&M
Agreement dated as of April 22, 2009, by and between Affiliate Operator
and Project Company, and any replacement agreement for such agreement.


 


“Affiliate
Operator” means First Wind O &
M, LLC or any successor or assign under the Affiliate O&M Agreement.


 


“Annual
Budget” is defined in Section 7.1(c) of the
Company LLC Agreement.


 


“Applicable
Laws” means all laws (including common law), treaties,
constitutions, statutes, rules, regulations, ordinances, judgments,
settlements, orders, decrees, injunctions, and writs of any Governmental
Authority having jurisdiction over NHC, Investor, the Manager, the
Administrative Services Provider, the Affiliate Operator, MWCI, the Company,
the Project Company or the Project, as applicable.


 


“Appraiser” means Stone & Webster Management Consultants, Inc., or
other mutually agreed upon appraiser.


 


“Appraisal
Method” shall mean one appraiser shall be appointed by the
Class A Members and one appraiser shall be appointed by the Class B
Members, in each case, within 30 days of a party invoking the procedure
described in this definition, which appraisers shall attempt to agree upon the
fair market value of the Class B Membership Interests. Provided that the Class A
Members are granted 2 Business Days’ written notice prior to the expiration of
the 30 day period referenced in the immediately preceding sentence, if either
the Class A Members or the Class B Members do not appoint their
appraiser within 5 days after the end of such 30 day period, the determination
of the appraiser appointed by the other Person (if so appointed within such
period) shall be conclusive and binding on the Members. If the appraisers
appointed by the Class A Members and the Class B Members are unable
to agree upon the fair market value of the Class B Membership Interests
within 45 days after the appointment of the second of such appraisers, the two
appraisers shall appoint a third appraiser. In such case, the average of the
determinations of the three appraisers shall be conclusive and binding on the
Members, unless the determination of one independent appraiser differs from the
middle determination by more than twice the amount by which the third
determination differs from the middle determination, in which case the
determination of the most disparate appraiser shall be excluded, and the
average of the remaining two determinations shall be conclusive and binding on
the Members.


 


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“Approved
Transferee” means:


 


(a)                             In the case of a transfer of a Class B Membership Interest, any
Person that (i) satisfies the requirements in the Company LLC Agreement
for all Transfers of Class B Membership Interests, (ii) for Transfers
while any additional Closings remain possible, has the Required Ratings (or has
provided a guarantee by a Person that has the Required Ratings, in form and
substance substantially the same as the Investor Parent Guaranty), and (iii) is
not a person that NHC reasonably determines to be a competitor as defined
below. For this purpose, a “competitor” is any person that directly or
indirectly, through one or more Subsidiaries, Affiliates or joint ventures,
operates, manages or develops commercial wind farms with an aggregate capacity
of at least 200 megawatts, or manufactures, constructs or supplies wind
turbines; provided that any institution that has an interest or whose Affiliate
has an interest in a wind farm similar to the interest owned by the Class B
Members will not be considered a competitor solely as a result of owning such
an interest; provided further that any such institution that has an Affiliate
that otherwise meets the above definition of competitor shall nonetheless not
itself be considered a competitor so long as such institution certifies in a
manner reasonably acceptable to NHC that sufficient controls have been put in
place between such institution and such Affiliate so as to prevent the sharing
of confidential information in respect of the Project. For the avoidance of
doubt, a transferee of Class B Membership Interests must satisfy all
conditions in clauses (i) through (iii).


 


(b)                            In the case of a Transfer of a Class A Membership Interest, a Person
that (i) satisfies the requirements in the Company LLC Agreement for all
Transfers of Class A Membership Interests and (ii) is an experienced
wind company with a national or international reputation with, together with
its Affiliates or through any joint venture to which it or one of its
Affiliates thereof is a party, has experience owning and/or operating
commercial wind farms with an aggregate capacity of at least 200 megawatts (or
undertakes to engage such an experienced wind company to manage the Company).


 


“Assets” means with respect to any Person, all right, title and interest of such
Person in land, properties, buildings, improvements, fixtures, foundations,
assets and rights of any kind, whether tangible or intangible, real, personal
or mixed, including contracts, equipment, systems, books and records,
proprietary rights, intellectual property, governmental approvals, rights under
or pursuant to all warranties, representations and guarantees, cash, accounts
receivable, deposits and prepaid expenses.


 


“Assignment” means that certain Assignment by Holdings to Investor in substantially
the form of Exhibit D attached to the Contribution Agreement.


 


“Bankruptcy” of a Person means the occurrence of
any of the following events: (i) the filing by such Person of a voluntary
case or the seeking of relief under any


 


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chapter of Title 11 of the United States Bankruptcy Code,
as now constituted or hereafter amended (the “Bankruptcy Code”), (ii) the
making by such Person of a general assignment for the benefit of its creditors,
(iii) the admission in writing by such Person of its inability to pay its
debts as they mature, (iv) the filing by such Person of an application
for, or consent to, the appointment of any receiver or a permanent or interim
trustee of such Person or of all or any portion of its property, including the
appointment or authorization of a trustee, receiver or agent under applicable
law or under a contract to take charge of its property for the purposes of
enforcing a lien against such property or for the purpose of general
administration of such property for the benefit of its creditors, (v) the
filing by such Person of a petition seeking a reorganization of its financial
affairs or to take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or statute, or an answer
admitting the material allegations of a petition filed against it in any proceeding
under any such law or statute, (vi) an involuntary case is commenced
against such Person by the filing of a petition under any chapter of Title 11
of the Bankruptcy Code and within 60 days after the filing thereof either the
petition is not dismissed or the order for relief is not stayed or dismissed, (vii) an
order, judgment or decree is entered appointing a receiver or a permanent or
interim trustee of such Person or of all or any portion of its property,
including the entry of an order, judgment or decree appointing or authorizing a
trustee, receiver or agent to take charge of the property of such Person for
the purpose of enforcing a lien against such property or for the purpose of
general administration of such property for the benefit of the creditors of
such Person, and such order, judgment or decree shall continue unstayed and in
effect for a period of 60 days, or (viii) an order, judgment or decree is
entered, without the approval or consent of such Person, approving or
authorizing the reorganization, insolvency, readjustment of debt, dissolution
or liquidation of such Person under any such law or statute, and such order,
judgment or decree shall continue unstayed and in effect for a period of 60
days. The foregoing definition of “Bankruptcy” is intended to replace and shall
supersede the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the Act.


 


“Base
Case Model” means the financial model
agreed to by the Parties on the Initial Closing Date and revised, as agreed by
the Parties, as necessary, on the Second Equity Capital Contribution Date and
on the Third Equity Capital Contribution Date.


 


“Business
Day” means any day other than (i) a Saturday or
Sunday or (ii) a day on which commercial banks in New York City are
authorized or required to be closed.


 


“Buyout
Event” is defined in Section 9.7(a) of the
Company LLC Agreement.


 


“Buyout Price” is defined in Section 9.6(c) of
the Company LLC Agreement.


 


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“Calculated Amount” means, with respect to any Class B
Member, and at any time of determination, (other than as set forth in the last
sentence of this definition), $*****, minus (a) all cash flows distributed
to the Class B Member by the Company, minus (b) the tax savings from
tax losses or deductions allocated to the Class B Member including tax
savings that have accrued in any Tax Year but have not yet been paid , minus (c) all
other cash flows distributed or paid by the Company, the Class A Member or
otherwise, to the Class B Member (including proceeds of the Cash Grant)
and any other distributions under Section 6.1 of the Company LLC
Agreement), minus (d) any indemnity payments made by the Class A
Member to the Class B Members that compensate for loss of any item listed
in the foregoing clauses (a), (b), and (c), plus (e) the tax detriment
from any taxable income or gain allocated to the Class B Member by the
Company and any gain recognized by the Class B Member pursuant to section
731(a) of the Code, including any tax detriment or tax gain that have
accrued in any Tax Year but have not yet been paid, minus (f) the tax
savings from the Utah PTCs allocated to the Class B Member (without
duplication of any amounts already accounted for in clause (b) hereof),
plus (g) the Total Equity Capital Contribution Amount. Notwithstanding the
previous sentence, in the event the Calculated Amount is being determined
concurrently with the sale of the Project by the Project Company to SCPPA
pursuant to section 2.5(h) of the PPA, the figure “$*****” in the previous
sentence shall be reduced (but not below zero) so that, when all distributions
and allocations to the Class B Member under ARTICLE V, VI or X, as the
case may be, are accounted for as of the date of such sale, the sum of all
items in clauses (a) through (f) after subtracting the Total Equity
Capital Contribution Amounts is not greater than $***** in the aggregate;
provided, however, that the adjustment in this sentence shall not result in the
Class B Member receiving aggregate distributions and allocations pursuant
to the LLC Agreement in an amount less than 5% of the total distributions and
allocations under the LLC Agreement, when measured from the Initial Closing
Date through the date on which the Project is sold to SCPPA. The Calculated Amount
will be calculated using the assumptions and conventions described in Section 6.6
of the Company LLC Agreement (including the Fixed Tax Assumptions).


 


“Call Exercise Notice” is defined in Section 9.5(a) of
the Company LLC Agreement.


 


“Call Price” is defined in Section 9.5(b) of
the Company LLC Agreement.


 


“Capital Account” means an account for each Member
calculated as described in Section 4.2(b) of the Company LLC
Agreement and used to distribute assets at liquidation as described in Section 10.2
of the Company LLC Agreement.


 


“Capital Contribution” means, with respect to any
Member, the amount of money and the initial Gross Asset Value of any property
contributed to the Company


 


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with respect to the Membership Interests in the Company
held or purchased by such Member (or by any predecessor of such Member).


 


“Cash Difference” is defined in Section 6.6(d) of
the Company LLC Agreement.


 


“Cash Grant” means, with respect to the Project, a
grant from the US Treasury under Section 1603 of the American Recovery and
Reinvestment Act of 2009.


 


“Cash Grant Distribution” means the distribution of
proceeds of the Cash Grant by the Company to its Members.


 


“Cash Grant Distribution Date” means the date 3
Business Days following the date on which the Class B Member approves the
Cash Grant Distribution Notice by written notice to the Class A Member and
the Company.


 


“Cash Grant Distribution Notice” means a notice
prepared by the Managing Member and delivered to the Class B Member 1
Business Day following the date on which proceeds of the Cash Grant are
received by the Company that sets forth the amount of the Cash Grant received
by the Company and a calculation of the appropriate amounts to be distributed
to each of the Members.


 


“Cash Grant Shortfall” means the excess of (x) the
aggregate Estimated Cash Grant Amount portion of the Class B Member’s
Capital Contributions to the Company on or prior to such Equity Capital
Contribution Date, over (y) the sum of (i) all cash distributed to
the Class B Member pursuant to Section 6.1(a)(i) and Section 6.1(b)(i),
plus (ii) the reasonably estimated amount of Cash Grant proceeds expected
to be received in connection with a future or pending Cash Grant Application.
The Parties agree that any or all amounts of Cash Grant Shortfall caused by a Class B
Recapture Event shall be deemed to be zero for purposes of this definition.


 


“Cash Shortfall” is defined in Section 4.3(b) of
the Company LLC Agreement.


 


“Cause” means fraud, willful misappropriation of
funds, gross negligence, willful misconduct, or a willful violation of a
material provision of the Company LLC Agreement applicable to the Managing
Member.


 


“Certificate of Formation” has the meaning in the
preliminary statements of the Company LLC Agreement.


 


“Claim” means any and all judgments, awards,
claims, causes of action, demands, lawsuits, suits, proceedings, Governmental
Authority investigations or audits, losses (including amounts paid in
settlement of claims), assessments, fines, penalties,


 


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administrative orders, injunctions, obligations, costs,
expenses, taxes, liabilities and damages (including any loss of profits,
consequential, punitive, incidental or special damages recovered by any Third
Party, but excluding loss of profits, consequential, punitive, incidental or
special damages asserted by any Member or an Affiliate, and including,
interest, penalties, reasonable attorney’s fees, disbursements and costs of
investigations, deficiencies, levies, duties and imposts).


 


“Claim
Notice” is defined in Section 11.3(b) of the
Company LLC Agreement.


 


“Class A
Member” means a Member holding one or more Class A
Membership Interests.


 


“Class A
Membership Interests” means membership interests
in the Company that are held initially by NHC and have the rights described in
the Company LLC Agreement.


 


“Class A
Percentage Interest” the percentage interest of each
Class A Member as set forth in Schedule 4.2(d) to the
Company LLC Agreement.


 


“Class B Guaranty”
means, with respect to each Class B Member, the Investor Guaranty and any
guaranty issued pursuant to Section 9.2(m) of the Company LLC Agreement or any
Transfer of Class B Membership Interests.


 


“Class B
Percentage Interest” the percentage interest of each
Class B Member as set forth in Schedule 4.2(d) to the
Company LLC Agreement.


 


“Class B
Recapture Event” means any loss of the ability
to claim, or recapture of, any part of the Cash Grant that arises directly out
of or is directly attributable to (i) a sale, transfer or disposition by a
Class B Member of any of its Membership Interests to a Tax-Exempt Person
(whether voluntary or involuntary), (ii) the Class B Member becoming
a Tax-Exempt Person or (iii) an inaccuracy in any of the Fixed Tax
Assumptions unless resulting from a breach of any representation, warranty or
covenant of the Class A Member in this Agreement or in the Contribution
Agreement. .


 


“Class B
Member” means a Member holding one or more Class B
Membership Interests.


 


“Class B
Membership Interests” means membership
interests in the Company that were purchased from Holdings, are held initially
by Investor, and have the rights described in the Company LLC Agreement.


 


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“Class Majority Vote” is defined in Section 3.2(f) of
the Company LLC Agreement.


 


“Clipper Reserve” is defined in Schedule 8.2(b) to the Company LLC
Agreement.


 


“Closing” means each of the Initial
Closing, Second Equity Capital Contribution or Third Equity Capital Contribution,
as the context may require.


 


“Closing Date” means the date of any
Closing.


 


“Code” means the Internal Revenue
Code of 1986, as amended from time to time.


 


“Commercial Operation” is defined in the PPA.


 


“Commercial Operation Date” is defined in
the PPA.


 


“Company” is defined in the preamble
to the Contribution Agreement.


 


“Company LLC Agreement” is defined in the preamble.


 


“Company Minimum Gain” means the amount of minimum
gain there is in connection with nonrecourse liabilities of the Company,
calculated in the manner described in Treasury Regulations Sections 1.704-2(b)(2) and
1.704-2(d).


 


“Confidentiality Agreement” means each
agreement between Stanton or its Affiliates and NHC regarding confidential
treatment of information disclosed between them and their Representatives in
relation to the transactions contemplated by the Transaction Documents.


 


“Consent and Agreement” means that certain Consent
and Agreement by and among Class B Member, Project Company, Company and
the Royal Bank of Scotland, plc in the form of Exhibit E to the
Contribution Agreement.


 


“Consultation” or “Consult” means to confer with, and reasonably consider and
take into account the reasonable suggestions, comments or opinions of another
Person.


 


“Contribution Agreement” means the Equity
Contribution and Purchase Agreement by and among NHC, Holdings, the Company and
Investor dated as of September 28, 2009, and all its schedules and
exhibits.


 


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“Control” means the possession, directly or indirectly, of either of the
following:


 


(a)                        (i) in the case of a corporation, more than 50% of the outstanding
voting securities thereof; (ii) in the case of a limited liability
company, partnership, limited partnership or joint venture, the right to more
than 50% of the distributions (including liquidating distributions) therefrom; (iii) in
the case of a trust or estate, including a business trust, more than 50% of the
beneficial interest therein; and (iv) in the case of any other entity, more
than 50% of the economic or beneficial interest therein; or


 


(b)                            in the case of any entity, the power or authority, through ownership of
voting securities, by contract or otherwise, to exercise a controlling
influence over the management of the entity.


 


“Cost
Segregation Report” has the meaning provided in the
Contribution Agreement.


 


“Curative
Flip Allocation” is defined in Section 6.6(e) of
the Company LLC Agreement.


 


“Depreciation” means for each Tax Year or part thereof, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable for United States
federal income tax purposes with respect to an asset for such Tax Year or part
thereof, except that if the Gross Asset Value of an asset differs from its
adjusted basis for United States federal income tax purposes at the beginning
of such Tax Year, the depreciation, amortization, or other cost recovery
deduction for such Tax Year or part thereof shall be an amount which bears the
same ratio to such Gross Asset Value as the United States federal income tax
depreciation, amortization, or other cost recovery deduction for such Tax Year
or part thereof bears to such adjusted tax basis. If such asset has a zero
adjusted tax basis, the depreciation, amortization, or other cost recovery
deduction for each taxable year shall be determined under a method reasonably
selected by the Managing Member and ratified by a Class Majority Vote.


 


“Designated
Affiliate Agreements” means the Administrative
Services Agreements, the Management Services Agreement and the Affiliate
O&M Agreement, and any replacement of any such agreement with a First Wind
Subsidiary (so long as the Class A Member is a First Wind Subsidiary).


 


“Designated
Affiliate Agreement Provider” means
the Administrative Services Provider, the Affiliate Operator, or the Manager,
as applicable, in their capacity as a party to a Designated Affiliate
Agreement.


 


86

















 


“Designated Transfers” is defined in Section 9.8
of the Company LLC Agreement.


 


“Distributable Cash” means, as of any date, all
cash, cash equivalents and liquid investments held by the Company or the
Project Company as of such date (after any PPA Credit Support reimbursement
obligations or operating costs, including scheduling, imbalance and other
charges tied to merchant sales, payment of any outstanding Working Capital
Loans) less the amounts required to fund the Required Reserves and other
reserves as set forth in Schedule
8.2(b), and reserves that, in the
reasonable judgment of the Managing Member, are necessary or appropriate for
the operation of the Company, the Project Company or the Project consistent
with the Prudent Operator Standard (provided that any reserves established by
the Managing Member outside of those required by Schedule 8.2(b) will be
held in bank accounts separate from those holding reserves described in Schedule 8.2(b)). Reasonable reserves shall consist of any combination of the following
reserves as reasonably determined by the Managing Member: (i) necessary
for payment of expenditures included in the Annual Budget, (ii) necessary
to prevent or mitigate an emergency situation, (iii) established by a Class Majority
Vote, (iv) necessary to allow the Company to meet expenses that are
clearly identified and expected with reasonable certainty to become due, but
that are not included in the Annual Budget, (v) reasonably necessary to
ensure sufficient spare parts or the payment of operational and maintenance
costs for the Project, (vi) are required pursuant to any Material
Contract, or (vii) one or more additional reserves not referred to in the
preceding clauses of this definition of “Distributable Cash” that do not in the
aggregate exceed $2,000,000. For all purposes of this definition, Distributable
Cash shall not include (i) Capital Contributions made by any Members, (ii) proceeds
of the Cash Grant, (iii) proceeds of the Special Funded Distribution, and (iv) the
Holdback Amount for Cash Grant Shortfall.


 


“Distribution Date” means, in respect of any month,
the date that falls on the last Business Day of the following calendar month;
provided, that in no event shall the first Distribution Date occur prior to the
Second Equity Capital Contribution Date.


 


“Effective Date”, with respect to the Contribution
Agreement, has the meaning set forth in the introductory paragraph of the
Contribution Agreement, and with respect to the Company LLC Agreement, has the
meaning set forth in the introductory paragraph of the Company LLC Agreement.


 


“Emergency Expenditure” means an expense with
respect to the Company or the Project or Project Company that is not included
in the Annual Budget and that is incurred, in the reasonable judgment of the
Managing Member, to avoid or to mitigate a risk of physical injury to any
Person, or a financial loss or damage to the Company or the Project or Project
Company, or a violation of law.


 


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“Environmental Consultant” means CH2M Hill, Inc.


 


“Environmental Laws” means all Applicable Laws pertaining to the environment, human health,
safety and natural resources, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §
9601 et seq.),  and the Superfund Amendments and Reauthorization Act of 1986, the
Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.),  the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.),  and the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air
Act (42 U.S.C. §§ 7401 et seq.),  the Federal Water Pollution Control Act (also known as the Clean Water
Act) (33 U.S.C. §§ 1251 et seq.),  the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.),  the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.),  the Endangered Species Act (16 U.S.C. §§ 1531 et seq.),  the Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.),  the Bald Eagle Protection Act (16 U.S.C. §§ 668 et seq.),  the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.),  the Hazardous Substances Transportation Act (49 U.S.C. §§ 1801 et seq.),  and any similar or analogous state and local statutes or regulations
promulgated thereunder and decisional law of any Governmental Authority, as
each of the foregoing may amended or supplemented from time to time in the
future, in each case to the extent applicable with respect to the property or
operation to which application of the term “Environmental Laws” relates.


 


“Estimated Cash Grant
Amount” has the meaning provided in the Contribution
Agreement.


 


“Exempt Wholesale
Generator” means an “exempt wholesale
generator” as defined in Section 1262(6) of PUHCA.


 


“Exempted Event” means any transaction which, directly or indirectly, results in a change
of Control of Milford or Milford’s parents, including (a) an initial
public offering of equity securities of Milford or of any Person who Controls
Milford and (b) a merger, consolidation, refinancing or recapitalization
of Milford or of any Person who Controls Milford.


 


“Exhibits” means, in the case of the Contribution Agreement, the exhibits attached
to the Contribution Agreement and in the case of the Company LLC Agreement, the
exhibits attached to the Company LLC Agreement.


 


“Existing Financing” means the construction loan of up to approximately $376,000,000, made
available to the Project Company pursuant to the Existing Financing Credit
Agreement and used to fund a majority of the cost of constructing the Project.


 


88

















 


“Existing Financing
Credit Agreement” means the Credit Agreement,
dated April 22, 2009, among the Project Company, the lenders party
thereto, The Royal Bank of Scotland plc as Administrative Agent for the lenders
thereto, as Collateral Agent to the secured parties thereto and as issuing bank
for the letters of credit, RBS Securities Inc. (f/k/a Greenwich Capital Markets
Inc.), as lead agent and bookrunner, Banco Espirito Santo De Investmento SA,
New York Branch, as syndication agent, joint bookrunner and joint lead
arranger, Banco Santander, S.A., New York Branch, BNP Paribas, HSH Nordbank AG,
New York Branch, Keybank National Association and Société Générale as
co-documentation agents, joint bookrunners and joint lead arrangers, and
Cobank, ACB as joint bookrunner and joint lead arranger, as such credit
agreement may be amended or restated from time to time.


 


“Existing Financing
Obligations” means the “Obligations” as such
term is defined in the Existing Financing Credit Agreement.


 


“Expansion Parties” means Sponsor, its Affiliates or other successors or permitted assignees
that develop, construct, finance, operate and maintain any Expansion Project.


 


“Expansion Project” is defined in Section 3.4(b) of the Company LLC Agreement.


 


“Expansion Project Effect” means the net capacity factor loss in the Project that will result from
the operation of any Expansion Project.


 


“Fair Market Value” means the value of the applicable equity interests at any given time, determined
by mutual agreement of NHC and the Investor or, if no such agreement can be
reached, assessed and appraised by the Appraiser using the Appraisal Method.


 


“Federal Power Act” means the Federal Power Act of 1935, as amended.


 


“FERC” means the Federal Energy Regulatory Commission and any successor
thereto.


 


“Financing Default Notice” is defined in Section 7.1(d) of the Company LLC Agreement.


 


“First Wind Subsidiary” means, with respect to any corporation, partnership, limited liability
company, joint venture or other entity of which Sponsor owns, directly or
indirectly, 50% or more of the stock or other equity interests the holders of
which are


 


89

















 


generally entitled to
vote for the election of the board of directors or other governing body of such
corporation or other legal entity.


 


“Final Cash Adjustment” is defined in Section 3.4(b)(ii) of the Company LLC Agreement.


 


“Final Comparison Model” is defined in Section 3.4(b)(ii) of the Company LLC Agreement.


 


“Fiscal Year” means a 12 month period ending on December 31st.


 


“Fixed Tax Assumptions” are (a) the depreciation methods, periods and conventions shown in the
Base Case Model including the assumption that the Project Company assets
qualify for bonus depreciation pursuant to section 168(k) of the Code and
Treasury Regulation section 1.168(k)-1 (but not including, for this purpose,
any assumption about the accuracy of the purchase price allocation among the
Project Company assets), (b) each Member will be treated as a partner for
United States federal income tax purposes in the Company as of the Initial
Closing Date, (c) the Company will be treated as owning the Project directly,
(d) the allocations in the Company LLC Agreement will have “substantial economic
effect” or are otherwise consistent with the members’ interests in the Company
within the meaning of section 704(b) of the Code, ***** and (h) the income tax
treatment of the Prepayment (including the timing of taxable income accruals
and computation of each Member’s tax basis) is consistent with the treatment
modeled in the Base Case Model; provided that the Flip Date will be calculated
without regard to any particular Fixed Tax Assumption to the extent that such
Fixed Tax Assumption proves incorrect because the Class A Member has breached a
material representation, warranty or covenant in the Transaction Documents.


 


“Flip Date” is the day on which the Calculated Amount equals zero.


 


“Flip Yield” means the Internal Rate of Return achieved by the Class B Member as
of the date on which the Calculated Amount equals zero. The Internal Rate of
Return will be calculated using the assumptions and conventions described in Section 6.5
of the Company LLC Agreement (including the Fixed Tax Assumptions).


 


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“GAAP” means generally accepted accounting principles as recognized by the
American Institute of Certified Public Accountants, as in effect from time to
time, consistently applied and maintained on a consistent basis for a Person
throughout the period indicated and consistent with such Person’s prior
financial practice.


 


“Gen Lead Substation
Assets” has the meaning provided in the Contribution
Agreement.


 


“Governmental Approval” means any permit, license, approval or authorization of, filing with, or
notice to any Governmental Authority.


 


“Governmental Authority” means any governmental department, commission, board, bureau, agency,
court or other instrumentality of any country, state, province, county, parish
or municipality, jurisdiction, or other political subdivision thereof.


 


“Grant Application” means the application (or multiple applications, as the case may be) for
a Cash Grant to be filed with the Treasury or other Governmental Authority
under Section 1603 of the American Recovery and Reinvestment Act of 2009.


 


“Gross Asset Value” means, with respect to any asset, the asset’s adjusted tax basis for
United States federal income tax purposes, except as follows:


 


(a)                             the initial Gross Asset Value of any asset contributed by a Member to the
Company shall be the Gross Fair Market Value of such asset as of the date of
contribution.


 


(b)                            the Gross Asset Values of all Company assets shall be adjusted to equal
their respective Gross Fair Market Values at such times as are described in the
first sentence of Section 4.2(c) of the Company LLC Agreement;


 


(c)                             the Gross Asset Value of any item of Company assets distributed to any
Member shall be adjusted to equal the Gross Fair Market Value of such asset on
the date of distribution;


 


(d)                            the Gross Asset Values of all Company assets shall be adjusted to reflect
any adjustments to the adjusted basis of such assets pursuant to sections 734(b) or
743(b) of the Code, but only to the extent that such adjustments are
required to be taken into account in determining Capital Accounts pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subsection (d) to
the extent that the Managing Member determines that an adjustment pursuant to
subsection (b) is necessary or appropriate in connection with a


 


91

















 


transaction that would
otherwise result in an adjustment pursuant to this subsection (d); and


 


(e)                             if the Gross Asset Value of an asset has been determined or adjusted
pursuant to subsection (a), (b) or (d) above, such Gross Asset Value
shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset.


 


“Gross Fair Market Value” means, with respect to any asset, the fair market value of the asset as
reasonably determined by the Managing Member and agreed to by a Class Majority
Vote; provided, that the Gross Fair
Market Value of the membership interests of MWCI contributed by the Class A
Member to the Company shall be the Class A Member’s opening Capital
Account balance as set forth in Schedule 4.2(b) plus all liabilities
encumbering the assets of the Project Company, minus $600.


 


“Guidance” means the guidance issued on July 9, 2009 by the Treasury for
payments for specified energy property in lieu of tax credits under the
American Recovery and Reinvestment Act of 2009 and any clarification, addition
or supplement thereto issued by the Treasury or any other Governmental
Authority.


 


“Hazardous Substances” means (A) any hazardous materials, hazardous wastes, hazardous
substances, toxic wastes, solid wastes, and toxic substances as those or
similar terms are defined under any Environmental Laws; (B) any asbestos
or asbestos containing material; (C) polychlorinated biphenyls (“PCBs”),
or PCB containing materials or fluids; (D) radon; (E) any petroleum,
petroleum hydrocarbons, petroleum products, crude oil and any fractions or
derivatives thereof; and (F) any other hazardous, radioactive, toxic or
noxious substance, material, pollutant, or contaminant that, whether by its
nature or its use, is subject to regulation or giving rise to liability under
any Environmental Laws.


 


“Hedge Support” means the letters of credit, guaranties and other credit support
arrangements, and any related reimbursement obligation from such credit support
arrangement, that are required to meet the credit support obligations of the
Project Company or the Company under any hedge agreements or otherwise other
than PPA Credit Support, which in any event would not be deemed a transaction
under paragraph (q) of the definition of Major Decisions.


 


“Holdback Amount for Cash
Grant Shortfall” means in connection with the
first Grant Application filed by the Project Company the greater of (x) $5,000,000,
and (y) the product of (i) 30%, multiplied by (ii) the projected
tax basis of the Specified Energy Property described in clause (x)(ii) of
the definition of “Estimated Cash Grant Amount” and, with respect to any
subsequent Grant Application filed by the Project Company, means the amount
stated in clause (y) of this definition.


 


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“HSR
Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as
amended and the regulations adopted thereunder.


 


“Indemnified
Costs” means Investor Indemnified Costs, NHC Indemnified Costs or Member
Indemnified Costs, as the context requires.


 


“Indemnified
Party” means a NHC Indemnified Party, if indemnified by the Investor, or an
Investor Indemnified Party, if indemnified by NHC.


 


“Indemnity
Claim” means a Claim for which any Indemnified Person may seek
indemnification under Section 11.1 of the Company LLC Agreement.


 


“Independent
Accounting Firm” means an accounting firm that is mutually acceptable to
the Class A Members and Class B Members.


 


“Independent
Engineer” means Garrad Hassan America, Inc.


 


“Initial
Closing” is defined in Section 2.3 of the Contribution Agreement.


 


“Initial
Closing Date” means the date described in Section 2.3 of the Contribution
Agreement.


 


“Initial
Equity Capital Contribution” means the Capital Contribution to be made by
the Investor on the Initial Closing Date.


 


“Initial
Equity Capital Contribution Amount” has the meaning provided in the
Contribution Agreement.


 


“Initial
Non-Affiliated Class B Member” is defined in the preamble to the LLC
Agreement.


 


“Insufficient
Funds Notice” is defined in Section 7.1(e) of the Company LLC
Agreement.


 


“Interconnection
Agreement” means that certain Generator Interconnection Agreement between
Intermountain Power Agency and Project Company dated as of May 7, 2008.


 


“Internal
Rate of Return” means, with respect to any Class B Member, the
discount rate that sets A equal to B where “A” is the sum of the present values
of (a) all cash flows distributed to the Class B Member by the
Company, plus (b) the tax savings from tax losses or deductions allocated
to the Class B Member, plus (c) all other cash flows distributed or
paid by the Company, the Investor or otherwise, to the Class B


 


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Member (including
proceeds of the Cash Grant), plus (d) any indemnity payments made by NHC
to the Class B Member that compensate for loss of any item listed in the
foregoing clauses (a), (b), and (c), minus (e) the tax detriment from any
taxable income or gain allocated to the Class B Member by the Company and
any gain recognized by the Class B Member pursuant to section 731(a) of
the Code; and “B” is the present value of the Total Equity Capital Contribution
Amount.


 


“Investor”
is defined in the first paragraph of the Contribution Agreement and includes
permitted successors and assigns.


 


“Investor Guarantor”
means *****, a Delaware corporation.


 


“Investor Guaranty”
means the limited guaranty made by Investor Guarantor in favor of NHC in the
form attached as Exhibit B, or otherwise in form and substance reasonably
acceptable to NHC, dated on or before the Initial Closing Date, and which shall
remain in effect between the date hereof and the earliest of (a) the Termination
Date and (b) the earliest date on which there could be no additional Closings
with respect to the Project.


 


“Investor
Indemnified Costs” means, with respect to any Investor Indemnified Party,
subject to ARTICLE 5 of the Contribution Agreement, any and all Losses incurred
by such Investor Indemnified Parties resulting from or relating to (i) any
breach or default by NHC or Holdings of any representation, warranty, covenant,
indemnity or agreement under the Contribution Agreement or any other Transaction
Document, including any certificates delivered by NHC or Holdings in connection
with a Closing or a Transaction Document, including with respect to NHC (a) in
its capacity as Managing Member under the Company LLC Agreement in accordance
with the terms thereof and (b) in its capacity as Tax Matters Partner
under Section 7.7(b) of the Company LLC Agreement (solely to the
extent that such breach prejudices any Investor Indemnified Parties) and 7.7(c) of
the Company LLC Agreement in accordance with the terms thereof, or (ii) any
NHC or Holdings fraud or willful misconduct or failure to pay any amount due to
an Investor Indemnified Party under any Transaction Document, including any
certificates delivered by NHC or Holdings in connection with a Closing or a Transaction
Document.


 


“Investor
Indemnified Parties” means, with respect to Investor, Investor and each of
its Affiliates and each of their respective shareholders, members, officers,
directors, employees, agents, and other representatives, and their respective
successors and assigns.


 


“IRS”
means the Internal Revenue Service or any successor agency.


 


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“Knowledge of the
Managing Member” means the actual knowledge of
the senior managers of NHC, any NHC Subsidiary, the Manager (so long as it is
an Affiliate of NHC), or the Administrative Services Provider (so long as it is
an Affiliate of NHC), including, without limitation, the actual knowledge of
Steve Schauer, Evelyn Lim, Michael Alvarez, Paul Gaynor and Jeffrey Levy with
respect to the areas of their respective experience.


 


“Liens” means any liens, pledges, claims, security interests, easements, rights
of way, mortgages, deeds of trust, covenants, restrictions, options, rights of
first refusal or defects in title.


 


“Losses” means any and all damages, losses, claims, liabilities, demands,
charges, suits, Taxes, loss of Tax deductions, penalties, costs, and reasonable
expenses (including court costs and reasonable attorneys’ fees and expenses of
a single law firm).


 


“LLC Agreement
Termination Date” is defined in Section 2.4
of the Company LLC Agreement.


 


“Major Decisions” means:


 


With
respect to the Pre-Flip Period, any of the following decisions and with respect
to the period after the occurrence of the Flip Date, only the Post Flip Major
Decisions:


 


(a)               Any sale, lease or other voluntary disposition of any membership interest
in the Project Company or MWCI or of all or substantially all of the assets of
any of the Company, MWCI or the Project Company;


 


(b)                       Sale, lease or other voluntary disposition of assets of Project Company
with a value in excess of $500,000, other than (i) disposition of obsolete
or surplus assets, (ii) disposition of assets in the Ordinary Course of
Business, (iii) sales of energy in the ordinary course of business, (iv) sales
of related environmental attributes (such as renewable energy credits and
carbon allowances), related ancillary benefits (such as capacity credits), (v) quitclaims
of unused land rights and (vi) disposal or distribution to the Class A
Member of Gen Lead Substation Assets and Transmission Line Assets;


 


(c)                        Any encumbrance or grant of any Lien on the assets or rights of the
Company, MWCI or Project Company, to secure an obligation, other than Permitted
Liens;


 


(d)                       Causing or approving the Company, MWCI or Project Company to take actions
to (i) cancel, suspend, renew or terminate any Material Contract (other
than a


 


95

















 


termination of the
Existing Financing Credit Agreement following the repayment of the Existing
Financing Credit Agreement Obligations); (ii) assign, release or
relinquish the rights or obligations of any party to, or amend any Material
Contract if any of the foregoing items in this clause (ii) would have a
Material Adverse Effect; (iii) renew or enter into any replacement
Material Contract except to the extent such renewal is on substantially the
same terms as the original Material Contract, or on terms that are more
beneficial to the Company, MWCI or the Project Company; provided that none of
the following will be considered a Major Decision: (w) any of the actions
referred to above if the actions are (A) required by any Governmental
Authority or (B) actions
expressly required or permitted elsewhere under the Company LLC Agreement, (x) the
replacement of any permit or any PPA Credit Support with other PPA Credit
Support or Hedge Support with other Hedge Support that, in either such case,
provides a comparable level of support, (y) the enforcement or management
of contracts with suppliers, including settlement of liquidated damage claims
with turbine vendors and declarations of substantial and final completion under
turbine contracts and balance-of-plant construction contracts, and (z) actions
excepted by clause (b) of this definition of Major Decision;


 


(e)                        Causing or approving the Company, MWCI or Project Company (i) to
file any action or institute any proceedings in Bankruptcy, (ii) to admit
in writing its inability to pay its debts as they mature, (iii) to give notice
to any Governmental Authority of insolvency or pending insolvency, or
suspension or pending suspension of operations or (iv) to make a general
assignment for the benefit of creditors or take any other similar action for
the protection or benefit of creditors;


 


(f)                          Merger or consolidation of the Company, MWCI or the Project Company;


 


(g)                       Causing or approving the Company, MWCI or Project Company to adopt, amend
or exceed an annual aggregate budget for the Project, except for: (i) adoption
of a budget that is not more than 15% above the annual spending projected in
the Base Case Model for such year, (ii) spending up to 115% of the budget
for a year and (C) Emergency Expenditures;


 


(h)                       Incurrence or guarantee of indebtedness for borrowed money, capitalized lease
obligations, or Hedge Support by the Company, MWCI or Project Company, other
than (i) Working Capital Loans, (ii) other indebtedness in the
aggregate not in excess of $250,000 at any one time outstanding, (iii) reimbursement
obligations under any letters of credit required by a Material Contract and (iv) other
debt incurred in the Ordinary Course of Business;


 


96














 


(i)         Issuance or redemption
by the Company, MWCI or Project Company of any Membership Interests or other
equity interest of any kind in the Company, MWCI or Project Company, other than
as contemplated by the Transaction Documents;


 


(j)         Approval of new transactions
(other than Working Capital Loans and other transactions expressly contemplated
by any of the Transaction Documents) between the Company, MWCI or Project
Company, as the case may be, and any Member, Sponsor, the Manager, the
Administrative Service Provider, the Affiliate Operator or any Affiliates
thereof, other than those entered into on an arms length basis;


 


(k)        Settling claims,
litigation or arbitration (other than liquidated damages that are not in
dispute) if, as a result, the Company, MWCI or Project Company would be
obligated to pay more than $250,000 (if such payment is not covered by
insurance) or would be entitled to receive more than $1,000,000;


 


(l)         Causing or approving
the Company, MWCI or Project Company to engage in any business or activity that
is not within the purpose of such entity, as described in its organizational
documents, or to change such purpose;


 


(m)       Amendment or termination
of the certificate of formation or the operating agreement of the Company, MWCI
or Project Company, other than ministerial amendments;


 


(n)        Admitting any
additional member to the Company, MWCI or Project Company, other than admitting
an additional member to the Company pursuant to terms of the Company LLC
Agreement;


 


(o)        Entering into any
contract that would require the Company, MWCI or Project Company to make
payments of more than $500,000 in any calendar year, other than Working Capital
Loans (including Working Capital Loans in respect of a Cash Shortfall) and
other than as contemplated in an approved budget or contracts for the sale of
power or renewable energy credits and commodity hedge agreements;


 


(p)        Causing or approving
the Company, MWCI or Project Company to take any of the following actions:
(i) cause the Company, MWCI or Project Company to benefit from any grants,
tax-exempt financing, subsidized energy financing or other credits or grants
other than the Cash Grant; or (ii) voluntarily and permanently remove any
wind turbine from service (other than a removal from service caused by a force
majeure event or casualty or in a manner consistent with Prudent Operator
Standard);


 


(q)        Causing or approving
the Company, MWCI or Project Company to engage in any speculative operating
activities, any speculative energy sales, any


 


97

















 


speculative
hedging arrangements or any similar speculative transactions (which shall not
include hedging arrangements undertaken in connection with the PPA);


 


(r)         Appointment of a new
Managing Member or Manager of the Company or managing member or manager of MWCI
or Project Company other than pursuant to Sections 8.2(d) and
8.2(e) of the Company LLC Agreement;


 


(s)        Permitting
(i) possession of property of Project Company by any Member (unless such
action is taken pursuant to the express terms of any Transaction Document),
(ii) the assignment, transfer or pledge of rights of Project Company in
specific property of Project Company for other than a Project Company purpose
or other than for the benefit of Project Company, or (iii) any commingling
of the funds of Project Company with the funds of any other person;


 


(t)         Making any
distribution to any Member or causing any distribution by Project Company, MWCI
or the Company except as specified in the Company LLC Agreement;


 


(u)        Causing or approving
the Company, MWCI or Project Company to hire any employees or establish or
participate in any employee benefit plans;


 


(v)        Causing or approving
the Company, MWCI or Project Company to make loans to third parties, other than
a loan from the Company to the Project Company or MWCI or a loan from MWCI to
the Project Company;


 


(w)       (i) Modifying or
approving the Company, MWCI or Project Company to modify the Shared Facilities
Plan in any material way or (ii) causing or approving the Company, MWCI or
Project Company to enter into any agreements in connection with any Expansion
Projects that would (A) violate the provisions of Section 3.4, (B) be materially
inconsistent with the Shared Facilities Plan, or (C) be on other than
arms-length terms;


 


(x)        Causing or approving
the Company, MWCI or Project Company to enter into any material amendment to a
Designated Affiliate Agreement that relate to duties, tenor, compensation or
liability standards;


 


Provided, however, that all dollar thresholds in this definition
of Major Decision shall be aggregated between the Company, MWCI and the Project
Company unless stated otherwise.


 


“Majority
Vote” is defined in Section 3.2(f) of the Company LLC Agreement.


 


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“Management
Services Agreement” means the Management Services Agreement, by and
between the Manager, MWCI and the Company, substantially in the form of
Exhibit C to the Contribution Agreement and dated as of the Initial
Closing Date.


 


“Manager” means First
Wind Energy, LLC or any qualified replacement manager under the Management
Services Agreement. The Manager is a “manager” of the Company within the
meaning of the Act.


 


“Managing
Member” is defined in Section 8.2(a) of the Company LLC Agreement.


 


“Material
Adverse Effect” means a material adverse effect on (a) the
business, assets, liabilities (actual or contingent), financial condition or
results of operations of the Company, MWCI or Project Company, taken as a
whole, excluding any effect resulting from (i) any change in industry,
market or financial conditions (including changes in the electric generating,
transmission or distribution industry, the wholesale or retail markets for
electricity, the general state of the energy industry, including natural gas
and natural gas liquid prices, the transmission system, interest rates,
outbreak of hostilities, terrorist activities or war), whether general or
regional in nature or limited to any area in which the Project is located or
the Company, MWCI or Project Company operates, (ii) any change in
Applicable Law or regulatory policy, (iii) effects of weather or
meteorological events, (iv) strikes, work stoppages or other labor
disturbances, or (v) the execution or delivery of the Transaction Documents
or the transactions contemplated in them or the announcement of such
transactions or (b) (i) the validity or enforceability of any
Transaction Document or (ii) the ability of any party to a Transaction
Document to perform its obligations thereunder.


 


“Material
Contract” means any of the following, as the same may be
amended or modified, and any successor agreements thereto (i) the PPA and
the Interconnection Agreement and any other contract for the sale or
transmission of electric energy or transmission services of the Project for a
term of more than 1 year, (ii) any hedge agreement or other hedging
arrangements, which shall not be speculative in nature, off-take agreement or
renewable energy credit sale agreement and all associated documentation in
respect of the electric energy or renewable energy credits generated by the
Project, (iii) a contract, lease, indenture or security under which the
Company or Project Company (A) has created, incurred, assumed or
guaranteed any indebtedness for borrowed money in excess of $1,000,000 or
obligations under any lease that, in accordance with GAAP, should be
capitalized in excess of $1,000,000 or (B) has a reimbursement
obligation in respect of any letter of credit, guaranty, bond, or other credit
or collateral support arrangement required to be maintained by Project Company
under the terms of any contract referred to in clause (i) or
(ii) above, (iv) the Administrative Services Agreement, the
Management Services Agreement, the Affiliate O&M


 


99

















 


Agreement
or other contract for management, operation or maintenance of the Project,
(v) a product warranty or repair contract by or with a manufacturer or
vendor of equipment owned or leased by Project Company that covers equipment
whose fair market value exceeds$1,000,000, (vi) wind energy leases and
(vii) any other contract that is expected to require payments by the
Company or the Project Company of more than $1,000,000 per calendar year.


 


“Member”
means any Person executing the Company LLC Agreement as of the date of the
Company LLC Agreement as a member of the Company or any Person admitted to the
Company as a member as provided in the Company LLC Agreement (each in the
capacity as a member of the Company), but does not include any Person who has ceased
to be a member of the Company.


 


“Member
Indemnified Costs” means, with respect to any Member Party, subject to
ARTICLE 11 of the Company LLC Agreement, any and all Losses incurred by such
Member Parties resulting from or relating to (i) any breach or default by
any other Member of any representation, warranty, covenant, or agreement under
the Company LLC Agreement or (ii) any claim for fraud or willful
misconduct or failure to pay any amount due to a Member Party by any other
Member under any Transaction Document.


 


“Member
Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury
Regulations Section 1.704-2(b)(4). An example is where a Member or a
person related to the Member makes a loan on a nonrecourse basis to the
Company.


 


“Member
Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse
Debt, equal to the Company Minimum Gain that would result if such Member
Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
accordance with Treasury Regulations Section 1.704-2(i)(3).


 


“Member
Party” is defined in Section 11.2 of the Company LLC Agreement.


 


“Membership
Interest” means the interest of a Member in the Company, including rights
to distributions (liquidating or otherwise), allocations, and to vote, consent
or approve, if any.


 


“Milford”
is defined in the recitals to the Company LLC Agreement.


 


“Minimum
Gain Attributable to Member Nonrecourse Debt” means the amount of minimum
gain there is in connection with a Member Nonrecourse Debt, calculated in the
manner described in Treasury Regulations Section 1.704(2)(i)(3).


 


“MWCI”
is defined in the recitals to the Company LLC Agreement.


 


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“NHC”
is defined in the first paragraph of the Contribution Agreement.


 


“NHC
Indemnified Costs” means, with respect to any NHC Indemnified Party,
subject to ARTICLE 5 of the Contribution Agreement, any and all Losses incurred
by such NHC Indemnified Parties resulting from or relating to (i) any
breach or default by Investor of any representation, warranty, covenant, or
agreement under the Contribution Agreement including as contained in any
certificate delivered pursuant to the Contribution Agreement or (ii) any
Investor fraud, willful misconduct or failure to pay any amount due to a NHC
Indemnified Party under any Transaction Document.


 


“NHC
Indemnified Parties” means NHC, Holdings and each of their respective
Affiliates, excluding Company, MWCI and Project Company, and each of their
respective shareholders, members, officers, directors, employees, agents, and
other representatives, and their respective successors and assigns.


 


“Nonrecourse
Deduction” has the meaning given such term in Treasury Regulations Sections
1.704-2(b)(1) and 1.704-2(c).


 


“Nonrecourse
Liability” has the meaning given such term in Treasury Regulations
Section 1.704-2.


 


“Notice”
is defined in Section 12.1 of the Company LLC Agreement.


 


“Notice
Period” means a 30 day period beginning upon receipt of a Claim Notice
pursuant to Section 11.3(b) or Section 11.4(b) of the
Company LLC Agreement.


 


“O&M
Agreement” means the operation and maintenance agreement between the
Operator and the Project Company, as such agreement may be amended,
supplemented or replaced from time to time.


 


“O&M
Reserve” is defined in Schedule
8.2(b) to the Company LLC Agreement.


 


“Operator”
means the operator of the Turbines selected by the Project Company and party to
the O&M Agreement, or any successor thereto.


 


“Ordinary
Course of Business” means the ordinary conduct of business consistent with
past custom and practice (including with respect to quantity and frequency).


 


“Original
Operating Agreement” is defined in the preliminary statements of the
Company LLC Agreement.


 


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“Outside
Activities” is defined in Section 3.4(a) of the
Company LLC Agreement.


 


“Party” means, for
purposes of the Contribution Agreement, a party to the Contribution Agreement
and for purposes of the Company LLC Agreement, a party to the Company LLC
Agreement.


 


“Percentage
Interest” means the percentage interest shown for a Member in
Schedule 4.2(d) of the
Company LLC Agreement as updated from time to time.


 


“Permitted
Investments” means any of the following having a maturity of not
greater than one year from the date of issuance thereof: (a) readily
marketable direct obligations of the government of the United States of America
or any agency or instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the government of the United States
of America, (b) insured certificates of deposit of or time deposits with
any commercial bank that is a member of the Federal Reserve System, issues (or
the parent of which issues) commercial paper rated as described in clause
(c) below, is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1,000,000,000 or
(c) commercial paper issued by any corporation organized under the laws of
any State of the United States and rated at least “Prime-1” (or the then
equivalent grade) by Moody’s Investor Service, Inc. or “A-1” (or the then
equivalent grade) by Standard & Poor’s Corporation.


 


“Permitted
Liens” means (a) liens for taxes not yet due or that are being contested
in good faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP, (b) carriers’, warehousemen’s,
mechanics’, materialman’s, repairman’s, employees’, contractors’, operators’ or
other similar Liens or charges securing the payment of expenses not yet due and
payable that were incurred in the Ordinary Course of Business of Project
Company or for amounts being contested in good faith and by appropriate
proceedings, (c) trade contracts or other obligations of a like nature
incurred in the Ordinary Course of Business of Project Company,
(d) inchoate liens, obligations or duties to any Governmental Authority
arising in the Ordinary Course of Business (including under licenses and
permits held by Project Company and under all Applicable Laws),
(e) obligations or duties under easements, leases or other property
rights, (f) Liens arising out of judgments or awards so long as an appeal
or proceeding for review is being prosecuted in good faith and for the payment
of which (i) adequate reserves in accordance with GAAP or (ii) bonds
or other security reasonably satisfactory to Investor have been provided or
(iii) are fully covered by insurance, (g) easements of record, zoning
and other land use restrictions that in each such case do not impair the operation
or value of the Project, (h) security interests created by the credit
support obligations and margin requirements under any Project Company power
purchase


 


102

















 


agreement
or hedge agreement or other hedging arrangements, which shall not be
speculative in nature, or any other Material Contract which does not cause a
default under the PPA, (i) prior to the repayment in full of the Existing
Financing Obligations, the liens and security interests securing the Existing
Financing Obligations, (j) the liens and security interests contemplated
by the PPA, (k) liens to secure the Working Capital Loans which does not
cause a default under the PPA, and (1) all other encumbrances and
exceptions that are incurred in the Ordinary Course of Business of the Project,
are not incurred for borrowed money and do not have a Material Adverse Effect.


 


“Permitted
Transfers” is defined in Section 9.3 of the Company LLC Agreement.


 


“Person”
means an individual, corporation, partnership, limited liability company,
association, trust, unincorporated organization, or other entity.


 


“Phase
II” means the approximately 102 megawatt wind generating facility adjacent
to the Project (located to the North) in Millard County, Utah.


 


“Placed
in Service” means, with respect to any Turbines, the completion of or the
performance of the following activities: (1) obtaining the necessary
licenses and permits for the operation and sale of the power to SCPPA,
(2) completion of critical tests necessary for proper operation of such
property, (3) synchronization of such property onto the electric
distribution and transmission system of the utility, and (4) the
commencement of daily operation of such property.


 


“Post
Flip Major Decisions” means the decisions in clauses (a), (e), (f), (i),
(1) and (s), of the definition of “Major Decisions” except that:
(A) clause (a) will be a Major Decision only with respect to the
sale, lease or other voluntary disposition of any membership interests in the
Project Company or of all or substantially all of the assets of either of the
Company, MWCI or the Project Company for a price other than for fair market
value, (B) clause (f) will not be a Major Decision to the extent that
a merger or consolidation involves only the Company, MWCI and/or the Project
Company, (C) clause (i) will be a Major Decision only with respect to
an issuance or redemption by the Company, MWCI or Project Company that
disproportionately impacts the Class B Member or any other redemption by
the Company.


 


“PPA”
means the Power Purchase Agreement, dated March 16, 2007, as amended by
its first amendment, dated January 16, 2009 and each subsequent amendment,
between the Project Company and SCPPA.


 


“PPA
Credit Support” means the letters of credit, guaranties and other credit
support arrangements, and any related reimbursement obligation from such credit
support


 


103

















 


arrangement,
that are required to meet the credit support obligations of the Project Company
or the Company under the PPA, or any replacement power purchase agreement or
any hedge agreements, which in any event would not be deemed a transaction
under paragraph (q) of the definition of Major Decisions.


 


“Pre-Flip
Period” means the period commencing on the Initial Closing Date and ending on
the Flip Date.


 


“Preliminary
Cash Adjustment” is defined in Section 3.4(b)(i) of the
Company LLC Agreement.


 


“Preliminary
Comparison Model” is defined in Section 3.4(b)(i) of the
Company LLC Agreement.


 


“Prepayment” means the
prepayment of the Prepayment Amount under the PPA to be made by SCPPA.


 


“Prepayment
Amount” has the meaning given such term in the PPA.


 


“Pro
Rata Shares” means, with respect to any Class B Member,
such Class B Member’s Class B Membership Interests divided by the
aggregate Class B Membership Interests of all Class B Members.


 


“Project
Company” means Milford Wind Corridor Phase I, LLC, a
Delaware limited liability company.


 


“Project”
means, collectively, (i) the approximately 203.5 MW wind power generation
plant located in Beaver County, Utah expected to be comprised of thirty-nine
(39) 1.5 MW and fifty-eight (58) 2.5 MW wind turbine generators, foundations
and towers, together with associated collection lines, an operations and
maintenance building and ancillary facilities; (ii) the related interest
in a substation; and (iii) and the related interest in an approximately
88-mile long 345kV generator lead line located in Beaver and Millard Counties,
Utah.


 


“Project
Completion Excess” means, if the following is a positive number, the
amount by which the aggregate total (without double-counting) of all estimated
Project Completion Expenses, minus $6,000,000, exceeds the Project Completion
Payments.


 


“Project
Completion Expenses” means, as of any Special Funded Distribution Date,
the Managing Member’s reasonable projection of expenditures that will be
necessary to achieve Completion (as defined in the Existing Financing Credit
Agreement) and to pay all punch-list amounts not required to be paid as a condition
to Completion.


 


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“Project
Completion Payments” means the amount in excess of $6,000,000 expended by
the Project Company after the first Special Funded Distribution Date for the
purpose of achieving Completion (as defined in the Existing Financing Credit
Agreement) and for payment of punch-list amounts after Completion.


 


“Project
Completion Shortfall” means, if the following is a positive number, the
amount by which the aggregate total amount of Project Completion Payments
exceeds the aggregate total (without double-counting) of all estimated Project
Completion Expenses, minus $6,000,000.


 


“Prudent
Operator Standard” means that a Person will (i) perform its duties in
material compliance with the requirements of the Material Contracts,
(ii) perform the duties in accordance with applicable
commercially-reasonable wind energy industry standards during the relevant time
period and (iii) use sufficient and properly trained and skilled
personnel.


 


“PUHCA”
means the Public Utility Holding Company Act of 2005.


 


“Purchase”
is defined in Section 2.1(a) of the Contribution Agreement.


 


“Purchase
Price” is defined in Section 2.2(a) of the Contribution
Agreement.


 


“Purchase/Call
Option” is defined in Section 9.5(a) of the Company LLC
Agreement.


 


“Purchasing
Members” is defined in Section 9.7(b) of the Company LLC
Agreement.


 


“Qualified
Insurance Consultant” means Moore-McNeil, LLC.


 


“Quarter”
means a calendar quarter.


 


“Recapture
Claim” means a written notice provided by the Class A Member to the
Company and the Class B Members with respect to Recapture Damages or by a
Class B Member to the Company and the Class A Member with respect to
Recapture Damages.


 


“Recapture
Damages” means any damage or loss or liquidated damages, or any cost or
expense, excluding, however, any special, incidental, punitive, indirect,
exemplary or consequential damages (other than denial or recapture of all or
any portion of the Cash Grant), including loss profits and damages for a lost
opportunity including as a result of a Class B Recapture Event or a
Recapture Event.


 


105

















 


“Recapture
Event” means an event that causes inability to claim or recapture of any part
of the Cash Grant at either the Company, its Subsidiaries, or Member level, but
the term does not include any Class B Recapture Event.


 


“Recapture
Period” means the period from the date on which the first Turbine is Placed in
Service until the 5th anniversary of the date the last Turbine is Placed in
Service for federal income tax purposes or, if an election is made in
connection with the Grant Application to treat the Project (or a portion of the
Turbines within the Project) as a single unit of property, the date the Project
(or such portion of the Turbines) is treated for Cash Grant purposes as having
been Placed in Service.


 


“Representatives” means, with
respect to any Person, the managing member(s), the officers, directors,
employees, representatives or agents (including investment bankers, financial
advisors, attorneys, accountants, brokers and other advisors) of such Person,
to the extent that such officer, director, employee, representative or agent of
such Person is acting in his or her capacity as an officer, director, employee,
representative or agent of such Person.


 


“Required
Reserves” means the amounts contemplated in Schedule 8.2(b) of the Company LLC
Agreement, including without limitation, the Clipper Reserve and O&M
Reserve.


 


“Required
Ratings” means a long-term senior unsecured credit rating of
at least A- by Standard & Poor’s Corporation or A3 by Moody’s Investor
Service, Inc. or, if either agency is not then in the business of
providing ratings, equivalent ratings from any other entity that is then a
nationally recognized statistical rating organization.


 


“Schedules” means, in the
case of the Contribution Agreement, the schedules attached to the Contribution
Agreement and in the case of the Company LLC Agreement, the schedules attached
to the Company LLC Agreement.


 


“SCPPA” means the
Southern California Public Power Authority.


 


“SCPPA
Pre-COD Notice” means the notice from Project Company to SCPPA
contemplated by Section 3.1(c) of the PPA, together with the
certification accompanying such notice pursuant to the provisions of Section 3.1(c) of
the PPA.


 


“Second
Equity Capital Contribution” is defined in
Section 2.6 of the Contribution Agreement.


 


“Second
Equity Capital Contribution Amount” has the meaning provided in
the Contribution Agreement.


 


106














 


“Second
Equity Capital Contribution Date” is defined in Section 2.6 of the
Contribution Agreement.


 


“Shared
Facilities” means the specific assets the ownership or use of which may be
shared with any Expansion Project.


 


“Shared
Facilities Plan” means the plan attached hereto as Schedule 10 to the Company LLC Agreement,
as such plan may be amended in accordance with the provisions of this Company
LLC Agreement.


 


“Special
Funded Distribution” means one or multiple cash distributions from the
Company to the Class A Investor, distributed on each Special Funded
Distribution Date, which distribution amount will be calculated on any date of
determination as follows: the excess of (x) the sum of the Total Equity
Capital Contribution Amount received by the Company as of such date, plus
(ii) the Prepayment Amount received by the Project Company as of such
date, plus (iii) the Test Power Profits over (y) the sum of
(i) the total amount of Transaction Expenses paid or accrued as of such
date, plus (ii) the Holdback Amount for Cash Grant Shortfall, plus
(iii) the outstanding balance under the Existing Financing Credit
Agreement, plus (iv) all previous payments made by the Project Company or
the Company that has reduced the outstanding balance under the Existing
Financing Credit Agreement, plus (v) the dollar amount of the Required
Reserves, plus, (vi) any proceeds of the Cash Grant previously received by
the Company or its Subsidiaries, plus (vii) any unpaid Project Completion
Expenses in excess of $6,000,000, plus (viii) the aggregate amount of all
prior distributions that were Special Funded Distributions. In addition, any
payments received by the Project Company as consideration for the transfer, in
substantial accordance with the Shared Facilities Plan, of interests in the Gen
Lead Substation Assets and the Transmission Line Assets shall be considered
Special Funded Distributions.


 


“Special
Funded Distribution Date” means (A) the later of the date on which
(a) the Prepayment has been received by the Project Company and any
portion of the Prepayment not used to repay the Existing Financing Obligations
or fund the Required Reserves is distributed by the Project Company to MWCI and
by MWCI to the Company, (b) the date the liens securing the Existing
Financing have been discharged and released and the Existing Financing
Obligations have been repaid in full other than customary indemnity obligations
which survive any such repayment, and (c) the date the Required Reserves
have been funded as required by Schedule
8.2(b) and (B) any subsequent date upon which a Third
Equity Capital Contribution is made by the Class B Members which is not
used to repay the Existing Financing, provided, however, that the Special
Funded Distribution Date shall in no event be prior to January 1, 2010 and
(C) the date(s) on which the Project Company receives payment of
consideration for the transfer, in substantial accordance with the Shared
Facilities Plan, of interests in the Gen


 


107

















 


Lead
Substation Assets and the Transmission Line Assets shall be considered Special
Funded Distributions.


 


“Specified
Energy Property” means all equipment comprising the Project that is
eligible for the Cash Grant, as defined by Section 1603 of the American
Recovery and Reinvestment Act of 2009 and the Guidance.


 


“Sponsor” means First
Wind Holdings, LLC.


 


“Stanton” is defined in
the preamble to the Company LLC Agreement.


 


“Subsidiary” means, with
respect to any Person, any corporation, partnership, limited liability company,
joint venture or other entity of which such Person (either alone or through or
together with any other Person pursuant to any agreement, arrangement, contract
or other commitment) owns, directly or indirectly, 50% or more of the stock or
other equity interests the holders of which are generally entitled to vote for
the election of the board of directors or other governing body of such
corporation or other legal entity.


 


“Supermajority
in Interest” means, with respect to the Class B Members,
Class B Members holding at least 60% of the aggregate Class B
Membership Interests held by all Class B Members.


 


“Tax”
(and, with correlative meaning, “Taxes” and “Taxable”) means:


 


(a)         any taxes, customs,
duties, charges, fees, levies, penalties or other assessments, fees and other
governmental charges imposed by any Governmental Authority, including, but not
limited to, income, profits, gross receipts, net proceeds, windfall profit,
severance, property, personal property (tangible and intangible) production,
sales, use, leasing or lease, license, excise, duty, franchise, capital stock,
net worth, employment, occupation, payroll, withholding, social security (or
similar), unemployment, disability, payroll, fuel, excess profits,
occupational, premium, severance, estimated, alternative or add-on minimum, ad
valorem, value added, turnover, transfer, stamp, or environmental tax, or any
other tax, custom, duty, fee, levy or other like assessment or charge of any
kind whatsoever, together with any interest, penalty, addition to tax, or
additional amount attributable thereto; and


 


(b)         any liability for the
payment of amounts with respect to payment of a type described in clause (a),
including as a result of being a member of an affiliated, consolidated,
combined or unitary group, as a result of succeeding to such liability as a
result of merger, conversion or asset transfer or as a result of any obligation
under any tax sharing arrangement or tax indemnity agreement.


 


108

















 


“Tax-Exempt
Person” means a Person described in Section 1603(g) of the American
Recovery and Reinvestment Act of 2009.


 


“Tax
Information” is defined in Section 6.7(b) of the
Contribution Agreement.


 


“Tax
Matters Partner” is defined in Section 7.7(a) of the
Company LLC Agreement.


 


“Tax
Returns” means any return, report, statement, information
return or other document (including any amendments thereto and any related or
supporting information) filed or required to be filed with any Governmental
Authority in connection with the determination, assessment, collection or
administration of any Taxes or the administration of any laws, regulations or
administrative requirements relating to any Taxes, including after the Closing
any IRS Form K-1 issued to Members by the Company, information return,
claim for refund, amended return or declaration of estimated Tax.


 


“Tax
Year” is defined in Section 7.4(b)(i) of the Company LLC
Agreement.


 


“Terminated
Member” is defined in Section 9.7(f) of the Company LLC Agreement.


 


“Termination
Date” means September 29, 2009 or such later date as Investor and NHC
may agree in their sole discretion.


 


“Termination
Exercise Notice,” is defined in Section 9.6(a) of the
Company LLC Agreement.


 


“Termination
Purchase Option” is defined in Section 9.6(b) of the
Company LLC Agreement.


 


“Termination
Purchase Price” is defined in Section 9.6(c) of the
Company LLC Agreement.


 


“Test
Power Profits” means the profits earned or accrued by the Company
(or the Project Company) from the sale of electricity at any time preceding the
Commercial Operation Date as reasonably determined by the Managing Member.


 


“Third
Equity Capital Contribution” is defined in
Section 2.9 of the Contribution Agreement.


 


“Third
Equity Capital Contribution Amount” has the meaning provided in the
Contribution Agreement.


 


109

















 


“Third
Equity Capital Contribution Date” is defined in
Section 2.9 of the Contribution Agreement.


 


“Third
Party Claim” is defined in Section 5.3 of the Contribution
Agreement.


 


“Total
Equity Capital Contribution Amount” means the sum of the
Initial Equity Capital Contribution Amount, the Second Equity Capital
Contribution Amount and any Third Equity Capital Contribution Amount.


 


“Tracking
Model” means the Base Case Model updated to reflect actual results of the
Company, but with both Fixed Tax Assumptions (unless they are incorrect as a
result of breach of a representation or covenant by the Class A Member)
and the assumptions and conventions in Section 6.6 of the Company LLC
Agreement remaining unchanged (unless they change as a result of a breach of a
representation or a covenant by the Class A Member).


 


“Transaction
Documents” means the Company LLC Agreement, the Contribution
Agreement, the Management Services Agreement, the Class B Guaranty and each of
the other documents required to be executed and delivered on the Effective Date
or on the Initial Closing Date, individually and collectively.


 


“Transaction
Expenses” means (i) the cost of the title insurance
policies, any filing and recording fees, escrow or closing fees and transfer
and mortgage taxes; (ii) the reasonable legal fees, expenses and
disbursements of counsel to NHC and the Project Company incurred in connection
with the transaction; (iii) other reasonable, documented out of pocket
expenses of NHC and the Project Company incurred in connection with the
Contribution Agreement and the transactions contemplated hereby; (iv) the
fees and reasonable out of pocket expenses of the Appraiser, Environmental
Consultant, the Independent Engineer and the Qualified Insurance Consultant
incurred in connection with the preparation of their respective reports and
(vi) such other amounts and expenses as are mutually agreed by the
parties.


 


“Transfer” is defined in
Section 9.1 of the Company LLC Agreement.


 


“Transmission
Effect” is defined in Section 3.4(b)(i) of the Company LLC
Agreement.


 


“Transmission
Line Assets” has the meaning provided in the Contribution
Agreement.


 


“Treasury” means the
United States Department of the Treasury.


 


110

















 


“Treasury
Regulations” means the regulations promulgated under the Code, by the
Treasury, as such regulations may be amended from time to time. All references
herein to specific sections of the regulations shall be deemed also to refer to
any corresponding provisions of succeeding regulations, and any reference to
temporary regulations shall be deemed also to refer to any corresponding
provisions of final regulations.


 


“Turbines”
means the fifty-eight (58) Clipper 2.5 Megawatt C99 Liberty wind turbines and
thirty-nine (39) GE 1.5 Megawatt XLE wind turbines included in the Project,
together with the blades, towers, and pads associated therewith; and any one
such turbine, together with its blades, towers, and pads, is a “Turbine”.


 


“Turbine
Supplier” means each of Clipper Turbines Works, Inc., and General
Electric Company.


 


“UCC”
means the Uniform Commercial Code, as the same may be in effect in the State of
New York or any other applicable jurisdiction.


 


“Utah
PTCs” - means a production tax credit in the amount of $3.50 for each Mw/h
of electricity produced by the Project for the first 48 months after the
Project is placed in commercial operation.


 


“Working
Capital Loan” is defined in Section 4.3(a) of the Company LLC
Agreement.


 


111

















 


OTHER DEFINITIONAL PROVISIONS


 


All
terms in the Contribution Agreement and the Company LLC Agreement, as
applicable, shall have the defined meanings when used in any certificate or
other document made or delivered pursuant thereto unless otherwise defined
therein.


 


As
used in the Contribution Agreement and the Company LLC Agreement and in any
certificate or other documents made or delivered pursuant thereto, accounting
terms not defined in the Contribution Agreement or the Company LLC Agreement or
in any such certificate or other document, and accounting terms partly defined
in the Contribution Agreement or the Company LLC Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in the Contribution Agreement or the Company
LLC Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in the
Contribution Agreement or the Company LLC Agreement or in any such certificate
or other document shall control.


 


The
words “hereof”, “herein”, “hereunder”, and words of similar import when used in
the Contribution Agreement and the Company LLC Agreement shall refer to the
Contribution Agreement or the Company LLC Agreement, as the case may be, as a
whole and not to any particular provision of the Contribution Agreement or the
Company LLC Agreement. Section references contained in the Contribution
Agreement and the Company LLC Agreement are references to Sections in the
Contribution Agreement or the Company LLC Agreement, as applicable, unless
otherwise specified. The term “including” shall mean “including without
limitation”.


 


The
definitions contained in the Contribution Agreement and the Company LLC
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of
such terms.


 


Any
agreement, instrument, statute or regulation or defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument, statute or regulation or as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein.


 


Any
references to a Person are also to its permitted successors and assigns.


 


All
Article and Section titles or captions contained in the Contribution
Agreement or the Company LLC Agreement, as applicable, or in any
Exhibit or Schedule referred to therein and the table of contents of the
Contribution Agreement and the


 


112

















 


Company
LLC Agreement are for convenience only and shall not be deemed a part of the
Contribution Agreement or the Company LLC Agreement, as the case may be, or
affect the meaning or interpretation of the Contribution Agreement or the
Company LLC Agreement, as applicable. Unless otherwise specified, all
references in the Contribution Agreement or the Company LLC Agreement to
numbered Articles and Sections are to Articles and Sections of the Contribution
Agreement or the Company LLC Agreement, as applicable, and all references
herein to Schedules or Exhibits are to Schedules and Exhibits to the
Contribution Agreement or the Company LLC Agreement, as applicable.


 


Unless
otherwise specified, all references contained in the Contribution Agreement or
the Company LLC Agreement, in any Exhibit or Schedule referred to therein
or in any instrument or document delivered pursuant thereto to dollars or “$”
shall mean United States dollars.


 


The
Parties to the Contribution Agreement have participated jointly in the
negotiation and drafting of the Contribution Agreement. The Parties to the
Company LLC Agreement have participated jointly in the negotiation and drafting
of the Company LLC Agreement. In the event an ambiguity or question of intent
or interpretation arises, the Contribution Agreement and the Company LLC
Agreement shall be construed as if drafted jointly by the respective Parties
thereto and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
the Contribution Agreement or the Company LLC Agreement, as the case may be.


 


113

















 


ANNEX II


 


MEMBERSHIP INTERESTS


 




	
  Milford NHC, LLC

  	
   

  	
  951 Class A Membership Interests,

  comprising 100% of the Class A

  Membership Interests in the Company

  
	
   

  	
   

  	
   

  
	
  Stanton Equity Trading Delaware LLC

  	
   

  	
  49 Class B Membership Interests,

  comprising 100% of the Class B

  Membership Interests in the Company

  






 














Schedule 3.4(a)


to Company LLC Agreement


 


Project Site


 


The real property located in the County of Beaver, State
of Utah, more particularly described as follows:


 


PARCEL 1:


 


THE SOUTHEAST QUARTER OF SECTION 7, TOWNSHIP 26
SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 2:


 


THE EAST HALF OF THE NORTHWEST QUARTER AND LOTS 1 AND 2
(BEING THE WEST HALF OF THE NORTHWEST QUARTER), SECTION 7, TOWNSHIP 26
SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 3:


 


THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 16,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 4:


 


LOTS 1, 2, 3 AND 4, THE SOUTH HALF OF THE NORTHWEST
QUARTER, AND THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 1,
TOWNSHIP 27 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 5:


 


THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 32,
TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 6:


 


THE SOUTHWEST QUARTER OF SECTION 32, TOWNSHIP 26
SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 7:


 

















 


INTENTIONALLY DELETED.


 


PARCEL 8:


 


THE EAST HALF OF THE NORTHEAST QUARTER OF SECTION 9,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 9:


 


THE NORTH HALF OF SECTION 36, TOWNSHIP 26 SOUTH,
RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 10: 


 


INTENTIONALLY DELETED.


 


PARCEL 11:


 


THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE
NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, THE SOUTHWEST QUARTER OF THE
SOUTHWEST QUARTER AND THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 8,
TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 12:


 


INTENTIONALLY DELETED.


 


PARCEL 13:


 


LOTS 1, 3, 4, AND THE NORTHEAST QUARTER OF THE NORTHWEST
QUARTER OF SECTION 30, TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND
MERIDIAN.


 


PARCEL 14:


 


INTENTIONALLY DELETED.


 


PARCEL 15:


 


LOT 3, THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE NORTHEAST


 


2

















 


QUARTER OF THE SOUTHEAST QUARTER, THE NORTHWEST QUARTER OF
THE SOUTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER AND THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 31, TOWNSHIP 26
SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 16:


 


THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5,
TOWNSHIP 27 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 17:


 


LOTS 1, 4, 5, THE SOUTHWEST QUARTER OF THE NORTHEAST
QUARTER, THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, THE SOUTHEAST QUARTER
OF THE NORTHWEST QUARTER, THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE
NORTHEAST QUARTER OF THE SOUTHEAST QUARTER, THE NORTHWEST QUARTER OF THE
SOUTHEAST QUARTER AND THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF 6, TOWNSHIP
27 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 18:


 


INTENTIONALLY DELETED.


 


PARCEL 19:


 


INTENTIONALLY DELETED.


 


PARCEL 20:


 


INTENTIONALLY DELETED.


 


PARCEL 21:


 


THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER AND THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER SECTION 9, TOWNSHIP 26 SOUTH,
RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 22:


 


THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE


 


3

















 


NORTHWEST QUARTER, THE SOUTHEAST QUARTER OF THE NORTHWEST
QUARTER, THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE NORTHWEST QUARTER
OF THE SOUTHWEST QUARTER, THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, AND
THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 10, TOWNSHIP 26
SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 23:


 


THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER, THE
NORTHWEST QUARTER OF THE NORTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE NORTHEAST
QUARTER, THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, THE NORTHEAST QUARTER
OF THE NORTHWEST QUARTER, THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE
NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, THE SOUTHWEST QUARTER OF THE
SOUTHWEST QUARTER, THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE
NORTHEAST QUARTER OF THE SOUTHEAST QUARTER, THE NORTHWEST QUARTER OF THE
SOUTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER, AND THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 11, TOWNSHIP 26
SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 24:


 


LOTS 1, 2, 4, THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER, THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 13,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 25:


 


THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER, THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER, AND THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 14,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 26:


 


THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER, THE
NORTHWEST QUARTER OF THE NORTHEAST QUARTER, THE NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER AND THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


4

















 


PARCEL 27:


 


THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, THE
SOUTHWEST QUARTER OF THE NORTHWEST QUARTER, THE SOUTHEAST QUARTER OF THE NORTHWEST
QUARTER, THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, THE NORTHWEST QUARTER
OF THE SOUTHWEST QUARTER, THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER, THE
NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, THE SOUTHWEST QUARTER OF THE
SOUTHEAST QUARTER, AND THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 25,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 28:


 


INTENTIONALLY DELETED.


 


PARCEL 29:


 


LOTS 1, 2, THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER,
THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, THE NORTHEAST QUARTER OF THE
NORTHWEST QUARTER, THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER, THE
SOUTHWEST QUARTER OF THE NORTHWEST QUARTER, AND THE SOUTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 12, TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT
LAKE BASE AND MERIDIAN.


 


PARCEL 30:


 


THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 30,
TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 31:


 


LOTS 1 AND 2, AND THE EAST HALF OF THE NORTHWEST QUARTER,
AND THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 27 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 32:


 


THE NORTH HALF OF SECTION 19, TOWNSHIP 26 SOUTH,
RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


5

















 


PARCEL 33:


 


LOTS 3 AND 4; THE EAST HALF OF THE SOUTHWEST QUARTER AND
THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT
LAKE BASE AND MERIDIAN.


 


PARCEL 34:


 


ALL OF SECTION 18, TOWNSHIP 26 SOUTH, RANGE 9 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 35:


 


LOTS 3 AND 4; THE EAST HALF OF THE SOUTHWEST QUARTER AND
THE SOUTHEAST QUARTER OF SECTION 19, TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT
LAKE BASE AND MERIDIAN.


 


PARCEL 36:


 


THE EAST HALF AND THE SOUTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 30, TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND
MERIDIAN.


 


PARCEL 37:


 


THE NORTH HALF OF SECTION 31, TOWNSHIP 26 SOUTH,
RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 38:


 


THE WEST HALF OF SECTION 13, TOWNSHIP 26 SOUTH, RANGE
10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 39:


 


THE SOUTH HALF OF SECTION 14, TOWNSHIP 26 SOUTH,
RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 40:


 


THE EAST HALF OF SECTION 15, TOWNSHIP 26 SOUTH, RANGE
10 WEST, SALT LAKE BASE AND MERIDIAN.


 


6

















 


PARCEL 41:


 


ALL OF SECTION 23, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 42:


 


ALL OF SECTION 24, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 43:


 


ALL OF SECTION 26, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 44:


 


ALL OF SECTION 27, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 45:


 


THE EAST HALF OF SECTION 33, TOWNSHIP 26 SOUTH, RANGE
10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 46:


 


ALL OF SECTION 34, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 47:


 


ALL OF SECTION 35, TOWNSHIP 26 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 48:


 


LOTS 1, 2, 3 AND 4 AND THE SOUTH HALF OF THE NORTH HALF OF
SECTION 2, TOWNSHIP 27 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 49:


 


7

















 


ALL OF SECTION 11, TOWNSHIP 27 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 50:


 


LOTS 3 AND 4; THE SOUTHEAST QUARTER AND THE EAST HALF OF
THE SOUTHWEST QUARTER OF SECTION 10, TOWNSHIP 27 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 51:


 


LOTS 1, 2, 3, AND 7; THE SOUTHWEST QUARTER OF THE
NORTHEAST QUARTER; THE NORTH HALF OF THE SOUTHWEST QUARTER AND THE SOUTH HALF
OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 27 SOUTH, RANGE 10 WEST,
SALT LAKE BASE AND MERIDIAN.


 


PARCEL 52:


 


LOTS 4, 5, 6, 8, 9, 10 AND 11, SECTION 3, TOWNSHIP 27
SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 53:


 


THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER AND THE
SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 10, TOWNSHIP 26
SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 54:


 


THE WEST HALF OF SECTION 17, TOWNSHIP 26 SOUTH, RANGE
9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 55:


 


THE WEST HALF OF SECTION 20, TOWNSHIP 26 SOUTH, RANGE
9 WEST, SALT LAKE BASE AND MERIDIAN.


 


PARCEL 56:


 


THE WEST HALF OF THE WEST HALF; THE EAST HALF OF THE
NORTHWEST QUARTER AND THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 29,
TOWNSHIP 26 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND MERIDIAN.


 


8

















 


PARCEL 57:


 


LOTS 3 AND 4; THE SOUTH HALF OF THE NORTHWEST QUARTER; THE
NORTH HALF OF THE SOUTHWEST QUARTER AND THE SOUTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 5, TOWNSHIP 27 SOUTH, RANGE 9 WEST, SALT LAKE BASE AND
MERIDIAN.


 


PARCEL 58:


 


INTENTIONALLY DELETED.


 


PARCEL 59:


 


BEGINNING AT THE SOUTHEAST CORNER OF SECTION 22,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN AND RUNNING
THENCE WEST 5321.49 FEET; THENCE NORTH 89°37’35” WEST 2649.85 FEET; THENCE
NORTH 0°38’18” EAST 2647.25 FEET; THENCE SOUTH 89°51’28” EAST 7979.20 FEET;
THENCE SOUTH 0°48’42” WEST 2645.20 FEET TO THE POINT OF BEGINNING. AND ALSO
DESCRIBED AS FOLLOWS:


 


THE SOUTH HALF OF SECTION 22, TOWNSHIP 26, RANGE 10,
AND THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 26 RANGE 10, SALT LAKE
BASE AND MERIDIAN.


 


PARCEL 60:


 


BEGINNING AT THE NORTHEAST CORNER OF SECTION 22,
TOWNSHIP 26 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN AND RUNNING
THENCE SOUTH 0°48’42” WEST, A DISTANCE OF 2645.20 FEET; THENCE NORTH 89°51’28”
WEST, A DISTANCE OF 7979.20 FEET; THENCE NORTH 0°38’18” EAST, A DISTANCE OF
2657.59 FEET; THENCE SOUTH 89°41’06” EAST, A DISTANCE OF 2669.71 FEET; THENCE
SOUTH 89°48’51” EAST A DISTANCE 5317.47 FEET TO THE POINT OF BEGINNING. AND
ALSO DESCRIBED AS FOLLOWS:


 


THE NORTH HALF OF SECTION 22, TOWNSHIP 26, RANGE 10,
AND THE NORTHEAST QUARTER OF SECTION 21, TOWNSHIP 26 RANGE 10, SALT LAKE
BASE AND MERIDIAN.


 


PARCEL 61:


 


THE WEST HALF OF SECTION 15, TOWNSHIP 26 SOUTH, RANGE
10 WEST, SALT LAKE BASE AND MERIDIAN.


 


9

















 


EXCEPTING THEREFROM 15/16 INTEREST IN AND TO ALL OIL, GAS
AND OTHER MINERALS, TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS FOR THE
PURPOSE OF EXPLORING AND/OR REMOVING THE SAME.


 


PARCEL 62:


 


SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 1,
TOWNSHIP 27 SOUTH, RANGE 10 WEST, SALT LAKE BASE AND MERIDIAN.


 


10














 


Schedule 4.2(d)


to Company LLC Agreement


 


Initial Capital Account


 


	
  Member Name and Address

  	
   

  	
  Capital Account Balance

  	
   

  	
  Percentage Interest or

  Pro Rata Share of

  each Class of

  Membership Interests

  	
   

  
	
  Milford
  NHC, LLC (Class A)

  	
   

  	
  $

  	
  *****

  	
  **

  	
  100

  	
  %

  
	
  Stanton
  Equity Trading Delaware LLC (Class B)

  	
   

  	
  $

  	
  2,500,000

  	
  **

  	
  100

  	
  %

  



 






** The Initial Equity Capital Contribution Amount, plus
any previous capital contributions.


 

















 


Schedule 8.2(b)


to Company LLC Agreement


 


Required Reserves


 


The Required Reserves shall initially be funded upon the
Second Equity Capital Contribution Closing in an aggregate total amount of $*****,
must total such amount upon the close of business on December 31, 2009,
and must total $***** immediately following the first Special Funded
Distribution Date and the making of such first Special Funded Distribution.
Thereafter, the Required Reserves shall be reduced to the extent set forth in
this Schedule 8.2(b). The Required Reserves shall be comprised of the Clipper
Reserve, the O&M Reserve and the SCPPA Cost Reserve each as set forth
below, and subject to adjustment following the Second Equity Capital
Contribution Date as provided below:


 


The following definitions are used in the Schedule 8.2(b):


 


“Clipper” means Clipper Turbine Works, Inc.


 


“Completion” has the meaning set forth in the Existing Financing Credit Agreement.


 


“Investment
Grade Credit Rating” means a credit rating of
BBB-/Baa3 (or the equivalent) or higher from Standard & Poor’s
Corporation or Moody’s Investor Service, Inc.


 


“Letter
of Credit” means an irrevocable letter of
credit having commercially customary terms and expressly providing that, in
addition to its other drawing rights, if the issuing bank does not provide
written notice (an “Expiration Event”) that it will be renewing or extending such letter of credit at least 30
days prior to the expiry date of such the letter of credit, the remaining
undrawn balance of the letter of credit may continue to be drawn in full by
Project Company, as the beneficiary, during such remaining 30 day period of the
term thereof.


 


“Required
Credit Rating” means a credit rating of A- or
higher from Standard & Poor’s Corporation or A3 or higher from Moody’s
Investor Service, Inc.


 


“Partial
Clipper Credit Enhancement Event” means
that Clipper or one or more Affiliate(s) of Clipper has received a U.S.
Department of Energy loan guarantee for debt in an aggregate amount (taking
into account both the guaranteed and unguaranteed portion) of not less than
$100 million, provided that any Partial Clipper Credit Enhancement Event
occurring prior to the first Special Funded Distribution Date shall be deemed
to have occurred on such first Special Funded Distribution Date.


 


“Full
Clipper Credit Enhancement Event” means
that any of the following has occurred: (i) Clipper or one or more
Affiliate(s) of Clipper has received a U.S. Department of Energy loan
guarantee for debt in an aggregate amount (taking into account both the
guaranteed and unguaranteed portion) of not less than $200 million, (ii) Clipper
receives an Investment Grade Credit Rating or (iii) all of the obligations
of Clipper and its Affiliates to the Project Company are guaranteed by a Person
with an Investment Grade Credit Rating through at least the 5th


 

















 


anniversary of the Initial Closing Date, provided that any
Full Clipper Credit Enhancement Event occurring prior to the first Special
Funded Distribution Date shall be deemed to have occurred on the first Special
Funded Distribution Date.


 


Clipper Reserve


 


The Clipper Reserve shall be funded upon the Second Equity
Capital Contribution Closing in the amount of $***** with proceeds of the
Second Equity Capital Contribution, shall be in an amount of not less than $*****
upon the close of business on December 31, 2009 and shall be subject to
the following use restrictions and adjustment provisions. The Clipper Reserve
will not otherwise be subject to any top-up or refunding requirements (except
to the extent required in Section (a) immediately below).


 


a) the Clipper
Reserve is to be used solely by the Project Company and only as a reserve for
any defects in any of the Turbines provided by Clipper or its Affiliates which
are included in the Project, and shall remain in place until the 5th
anniversary of the Initial Closing Date, after which time the funds in the Clipper
Reserve shall be promptly distributed (unless, and for so long as, the Managing
Member determines in its reasonable judgment using the Prudent Operator
Standard that it is necessary to retain such funds for the operation of the
Project Company), to MWCI and then to the Company for distribution to the Class A
Members and Class B Members in equal amounts (50% each); provided, that if
after December 31, 2009 there is not adequate cash available to the
Project Company (after using all amounts available under the O&M Reserve)
to pay operating expenses as and when due and payable, the Clipper Reserve may
be used to pay operating expenses of the Project Company and any amounts so
withdrawn and applied to operating expenses shall be promptly replenished to
re-fund the Clipper Reserve from available cash flow;


 


b) in the
event that a Partial Clipper Credit Enhancement Event occurs, then the required
Clipper Reserve shall be reduced to $***** and any funds on deposit in the
Clipper Reserve in excess of $***** shall be promptly distributed (unless, and
for so long as, the Managing Member determines in its reasonable judgment using
the Prudent Operator Standard that it is necessary to retain such funds for the
operation of the Project Company), to MWCI and then to the Company for
distribution to the Class A Members and Class B Members in equal
amounts (50% each). The then remaining Clipper Reserve balance will remain in
place until the 5th anniversary of the Initial Closing Date at which time all
funds on deposit in the Clipper Reserve shall be promptly distributed (unless,
and for so long as, the Managing Member determines in its reasonable judgment
using the Prudent Operator Standard that it is necessary to retain such funds
for the operation of the Project Company), to MWCI and then to the Company for
distribution to the Class A Members and Class B Members in equal
amounts (50% each); and


 


c) in the
event that a Full Clipper Credit Enhancement Event occurs, then all funds on
deposit in the Clipper Reserve shall be promptly distributed (unless, and for
so long as, the Managing Member determines in its reasonable judgment using the
Prudent Operator Standard that it is necessary to retain such funds for the
operation of the Project Company), to MWCI and then to the Company for
distribution to the Class A Members and Class B Members in equal
amounts (50% each), and the Clipper Reserve shall no longer remain in
existence.


 

















 


While the Existing Financing Credit Agreement remains in
effect, the Clipper Reserve shall be maintained in the Clipper Account (as
defined in the Existing Financing Credit Agreement).


 


O&M Reserve


 


The O&M Reserve shall be funded upon the Second Equity
Capital Contribution Closing in the amount of $***** with proceeds of the
Second Equity Capital Contribution, and shall be in an amount of not less than
$***** upon the close of business on December 31, 2009. The O&M
Reserve shall be subject to the following use restrictions and adjustment
provisions:


 


a) The O&M
Reserve is to be used solely by the Project Company and only as a reserve for
any O&M/Major Maintenance/Liquidity purposes and shall be used when Project
cash flow (including all cash available in the Revenue Account (as defined in
the Existing Financing Credit Agreement)) is insufficient to fund then-current
operating costs of the Project or Project Company. If at any time after December 31,
2009, the funds specified in the line item in the construction budget labeled
“Contingency” has been used in full, up to $***** of this reserve can be used for
additional expenditures necessary to achieve Completion


 


b) Immediately
following the first Special Funded Distribution Date and the making of such
first Special Funded Distribution, the O&M Reserve shall total at least $*****
and any amounts (up to a maximum of $*****) on deposit in the O&M Reserve
in excess of $***** at that time shall be distributed to MWCI for further
distribution to the Company for inclusion in the Special Funded Distribution to
the Class A Member.


 


c) After December 31,
2009 (except as provided in (b) immediately above), the O&M Reserve
requirement shall be $***** (or, if a Full Clipper Credit Enhancement Event has
occurred, $***** from the occurrence of such Full Clipper Credit Enhancement
Event until the date that is the fifth anniversary of the Commercial Operation
Date and $***** thereafter). To the extent drawn below the required level, the
O&M Reserve will be replenished prior to any distribution of cash to the
Members. Failure to fully fund the O&M Reserve subsequent to the first
Special Funded Distribution Date due to lack of available cash flow will not be
considered a breach or default under the Project Company’s limited liability
company agreement, any Transaction Document or otherwise.


 


d) If the
O&M Reserve requirement is reduced following the occurrence of a Full
Clipper Credit Enhancement Event, any amounts credited to the O&M Reserve
account in excess of the then-effective O&M Reserve requirement shall
promptly be distributed (unless, and for so long as, the Managing Member
determines in its reasonable judgment using the Prudent Operator Standard that
it is necessary to retain such funds for the operation of the Project Company),
to MWCI, for further distribution to the Company and subsequent distribution to
the Class A Members and the Class B Members in a ratio equal to 25:75
(Class A:Class B).


 


e) In addition
to the foregoing, after December 31, 2009, the O&M Reserve may be
maintained by obtaining a letter of credit (reasonably acceptable to the Class A
Members and Class B Members, with such acceptance not to be unreasonably
withheld or delayed) from a bank or other financial institution with a Required
Credit Rating or other equivalent credit


 

















 


support. In the event that such credit support is
instituted, cash on deposit in the O&M Reserve shall be promptly
distributed to MWCI for further distribution to the Company and then
distributed to the Class A Members (25%) and Class B Members (75%)
(except as otherwise provided under the heading “Letter of Credit” below). If at
any time such credit support ceases the O&M Reserve will be replenished in
cash from available cash flow in accordance with the levels set forth above.


 


While the Existing Financing Credit Agreement remains in
effect, the O&M Reserve shall be in the Liquidity Account (as defined in
the Existing Financing Credit Agreement).


 


Letter of Credit


 


Notwithstanding the foregoing, at any time after the first
Special Funded Distribution Date, if the Class A Member or one of its
Affiliates provides, or causes to be provided, a Letter of Credit issued by a
U.S. bank or financial institution with a Required Credit Rating (such a bank
or financial institution, an “Acceptable LC Bank”), and without recourse to the Company, MWCI, the Project Company or any of
their respective assets, to cover the required amounts under the Clipper
Reserve and/or the O&M Reserve, in whole or in part, cash shall be released
from the Clipper Reserve and/or the O&M Reserve account, as applicable, in
an amount equal to the then-effective face amount of such Letter of Credit (but
in no event in excess of the cash then on deposit in the applicable Required
Reserve account) (“Released Cash”) and
shall promptly be distributed by the Company to the Class A Member. The Class A
Member’s right to replace cash in the Required Reserves with Letters of Credit
shall be limited during each Fiscal Year (when taken together with all other
cash distributed to the Class A Member in such Fiscal Year) to an amount
equal to the aggregate total of all cash distributions made to the Class B
Member in such Fiscal Year. For purposes of this paragraph, the amount of each
increase in the face amount of a Letter of Credit (whether automatically in
accordance with the terms of such Letter of Credit, or by amendment thereto) shall
be treated as if an additional Letter of Credit had been provided in the amount
of such increase.


 


SCPPA Cost Reserve


 


The SCPPA Cost Reserve will be established as a
sub-account of the O&M Reserve upon the Second Equity Capital Contribution
Date (if all required consents to the establishment of such sub-account under
the Existing Financing Credit Agreement have been obtained. The Managing Member
shall include a request for such consents together with the request for
consents to the establishment of an escrow account required pursuant to Section 3.14(a) of
this Company LLC Agreement. If any such consents required for the establishment
of such sub-account under the Existing Financing Credit Agreement have not been
obtained, the SCPPA Cost Reserve will be established following the termination
of the Existing Financing Credit Agreement. Upon its establishment, the SCPPA
Cost Reserve shall be funded at such time with an amount equal to the aggregate
total of all reimbursement payments received by the Project Company from SCPPA
for Taxes and Operating Insurance premiums (as defined in the PPA) from the
Second Equity Capital Contribution Date until the date such sub-account is
established.


 


All reimbursement payments received by the Project Company
from SCPPA for Taxes and Operating Insurance premiums (as defined in the PPA)
shall be deposited into the SCPPA


 

















 


Cost Reserve for application to the Taxes and Operating
Insurance premiums for which they were received. If at any time there is not
adequate cash available to cover amounts due and payable by the Project Company
(other than Taxes and Operating Insurance premiums) funds in the SCPPA Cost
Reserve may be used for such purposes; provided that they are replenished in
the SCPPA Cost Reserve from cash flow of the Project Company as soon as such
cash flow is available.


 


All Required Reserve accounts shall be established and
maintained in accordance with the Existing Financing Credit Agreement for so
long as it is in effect.


 

















 


Schedule 8.4


to Company LLC Agreement


 


Insurance Requirements


 


ARTICLE I

Insurance Required


 


Section 1.1.            With
respect to the ongoing operations of the Company, MWCI and the Project Company,
the Managing Member shall without cost to the Members maintain or cause to be
maintained in effect at all times the types of insurance required by the
following provisions, together with any other types of insurance that may be
required under the Material Contracts or unless, with respect to a Material
Contract, otherwise specified in such Material Contract or waived by the
appropriate counterparty, with insurance companies rated “A” or better, with a
minimum financial size classification of “X,” by A.M. Best, (or an
equivalent rating by another nationally recognized insurance rating agency of
similar standing if Best’s Insurance Guide and Key Ratings shall no longer be published):


 


(a)           Commercial
General Liability. Commercial general
liability insurance for the Project on an “occurrence” policy form or other
similar policy form, including coverage for premises/operations, explosion,
collapse and underground hazards, products/completed operations, broad form
property damage, blanket contractual liability, suits brought against the
Company, MWCI or the Project Company, from actions of an independent contractor
and personal injury, with primary coverage limits of no less than $1,000,000
for injuries or death to one or more persons or damage to property resulting
from any one occurrence and a $2,000,000 annual aggregate limit. Coverage shall
include punitive damages to the extent normally available and pollution
liability to the extent required under the Interconnection Agreement.


 


The commercial general liability policy shall also include
a severability of interest clause with no exclusions or limitations for cross
liability.


 


(b)           Auto Liability
Insurance. Automobile liability
insurance, including coverage for owned (to the extent any exposure exists),
non-owned and hired automobiles, as well as trailers and semi trailers designed
for travel on public roads (to the extent any exposure exists) for both bodily
injury and property damage and containing appropriate no-fault insurance
provisions or other endorsements in accordance with state legal requirements,
with combined single limits of no less than $1,000,000 per accident.


 

















 


(c)           Worker’s
Compensation. Worker’s compensation insurance providing statutory
benefits and including other states’ endorsement, employer’s liability
insurance with a primary and excess limit of not less than $1,000,000, and such
other forms of insurance which the Company, MWCI or Project Company is required
by law to provide.


 


(d)           Umbrella/Excess
Liability Insurance. Umbrella and/or excess liability insurance of not
less than $20,000,000 per occurrence and in the aggregate for bodily injury and
property damage to third parties arising during transportation, storage,
construction and operation of the Project. Such coverages shall be on a an
“occurrence” policy form, AEGIS claims-first-made or other similar policy form,
over and above coverage provided by the policies described in Section 1.1(a), Section 1.1(b), and Section 1.1(c) (employer’s
liability, if applicable) above. The limit applying for the Company, MWCI and
the Project Company can be satisfied by insuring multiple projects under one
policy, subject to a per project aggregate endorsement. The umbrella and/or
excess policies shall not contain endorsements which unreasonably restrict
coverages as set forth in the underlying policies noted in Section 1.1(a), Section 1.1(b), and Section 1.1(c)  (employer’s
liability, if applicable) above. Coverage shall include punitive damages to the
extent normally available and pollution liability to the extent required under
the Interconnection Agreement.


 


If
the policy or policies provided under this paragraph contain(s) aggregate
limits applying to operations of the Company, MWCI or Project Company, and such
limits are diminished below $10,000,000 by any incident, occurrence, claim,
settlement or judgment against such insurance which has caused the carrier to
establish a reserve, the Managing Member shall take or cause steps be taken to
restore such aggregate limits or shall provide other equivalent insurance
protection for such aggregate limits.


 


(e)           Aircraft
Liability Insurance. To the extent exposure exist, aircraft liability
insurance, in an amount not less than $20,000,000 for all owned, non-owned and
hired aircraft, fixed wing or rotary, used in connection with the operation of
the Project.


 


(f)            Transit
Insurance. Transit coverage, either included in the builder’s
risk policy or under separate policy form (including air, land and ocean cargo
where air, land or ocean transit will be required) on an all-risk basis with a
per occurrence limit equal to the full insurable value of any single shipment involving
Project assets to or from the Project site to another location, plus a separate
limit for marine delay in startup, at all times in which the Company, MWCI or
Project Company has accepted risk of loss. Coverage shall including loading and
unloading and temporary storage (as applicable) and shall apply on a difference
in limits and difference in conditions basis for inland and ocean transit
shipments when coverage for physical damage is being provided by a third party.
Coverage shall be maintained with limits, sublimits, aggregates, deductibles
and other terms and conditions consistent with industry practice.


 


2

















 


(g)             Storage
Insurance.             Off-site storage insurance, either included in the builder’s risk policy
or under separate property all risk policy form (including long term storage
where applicable) including earthquake, flood and wind perils with a per
occurrence limit equal to not less than the full insurable value of the largest
single equipment storage location involving Company, MWCI or Project Company
assets, including inland or ocean transit to or from the Project site to
another location (unless provided under a separate all-risk transit policy for
property and equipment in transit). Coverage shall be maintained with limits,
sublimits, aggregates, deductibles and other terms and conditions consistent
with industry practice.


 


(h)             Builders
All-Risk Insurance. From the point of
groundbreaking for the Project through the Commercial Operation Date, the
Managing Member shall maintain, or cause to be maintained, builder’s risk
insurance covering all Company, MWCI or Project Company assets on an “all risk
basis” including earthquake, flood, and wind perils, all testing and
commissioning required to complete construction, machinery breakdown (including
resulting damage from design defects, and faulty workmanship or materials),
inland and ocean transit (unless provided under a separate all-risk transit
policy for property and equipment in transit), off-site storage (unless
provided under a separate all-risk property policy for equipment in storage)
and delay in start up in an amount equivalent to not less than 12 months of
lost profits (including the loss of production tax credits, grossed up for
taxes, and renewable energy credits, as applicable) plus debt
service and other continuing project expenses and other customary coverages,
contingent delay in startup in an amount of not less than $5,000,000 and other
sublimits, aggregates, deductibles. Coverage shall be maintained with limits,
sublimits, aggregates, deductibles and other terms and conditions consistent
with industry practice.


 


(i)              Property All
Risk Insurance. From and after the date
the Commercial Operation Date, the Managing Member shall maintain, or cause to
be maintained, operational property insurance on an “all risk basis” including
earthquake, flood, and wind perils, machinery breakdown (including resulting
damage from design defects, and faulty workmanship or materials), inland and
ocean transit (unless provided under a separate all-risk transit policy for
property and equipment noted above under Section  1.1(f), inland transit, and business interruption in an amount equivalent to not
less than 12 months of lost profits (including the loss of production tax
credits, grossed up for taxes, and renewable energy credits, as applicable) plus debt
service and other continuing project expenses and other customary coverages,
contingent business interruption in an amount of not less than $5,000,000.
Coverage shall be maintained with limits, sublimits, aggregates, deductibles
and other terms and conditions consistent with industry practice. Coverage
shall include equipment that has not yet been Placed in Service.


 


Section 1.2.            Contractor
Insurance. The Company, MWCI or Project Company shall cause each applicable
contractor to maintain or cause to be maintained, in full force


 


3

















 


and effect, such insurance as the contractor is required
to maintain pursuant to its requirements under any applicable contracts with
the Company, MWCI or Project Company.


 


Section 1.3.            General
Property Insurance Conditions. All
property insurance coverage shall be on a “no coinsurance” policy form with
claims adjusted on a “replacement cost” basis.


 


Section 1.4.            Property Loss
Payable Conditions. All policies covering
real or personal property of the Company, MWCI or the Project Company shall
name the Members as loss payees as their interests may appear.


 


ARTICLE II

General Policy Conditions.


 


Section 2.1.            Each
policy shall expressly provide that all provisions thereof, except the limits
of liability (which shall be applicable to all insureds as a group) and
liability for premiums (which shall be solely a liability of the Company, MWCI
or the Project Company, as applicable) shall operate in the same manner as if
there were a separate policy covering each such insured and/or in the case of
property policies shall include standard non-vitiation language or an
acceptable multiple insureds clause. Each policy shall waive subrogation
against the Members, Company, MWCI and Project Company and shall waive any
right of the insurers to any setoff or counterclaim or any other deduction,
whether by attachment or otherwise, in respect of any liability of Company,
MWCI, Project Company, or Members. Each property and liability policy required
above (with the exception of workers compensation) shall name the Members as
additional insured unless the Members are named as an additional “named”
insured under the policy. Property and liability (to the extent commercially
available) policies required above shall provide that if any payment or premium
or installment is not paid when due, or if such insurance is to be cancelled,
terminated or reduced for any reason whatsoever, the insurers (or their
representatives) will promptly notify the Managing Member and Members, and any
such cancellation, termination or change shall not be effective until 30 days
after receipt of such notice by the Members (10 days with respect to
non-payment of premium), and that appropriate certification shall be made to
the Members by each insurer with respect thereto. All policy deductibles shall
be the sole responsibility of the Project Company.


 


Section 2.2.            Claims
Conditions. Members shall, upon
request, have the right but not the obligation to receive updates and be
involved in meetings and other discussions regarding property and liability
claims that exceed $1,000,000 whether insured or not.


 


4














 


Section 2.3.            Annual
Certification of Compliance As soon as practicable and in any event on or
before the expiration of any insurance policy required hereunder, the Managing
Member shall furnish, or cause to be furnished, to the Members, a certificate
signed by a authorized insurance representative of Company, MWCI or the Project
Company, showing the insurance then maintained by or on behalf of Company, MWCI
or the Project Company pursuant to this Schedule 8.4 and
stating that such insurance complies in all material aspects with the terms
hereof, is in full force and effect and that all premiums then due have been
paid or are not in arrears.


 


Section 2.4.            Waiver
of Insurance Requirements. In the event any insurance (including the limits
or deductibles thereof) herein required to be maintained, other than insurance
required by law or by Material Contract to be maintained, shall not be
available and commercially feasible in the commercial insurance market as
confirmed by the Qualified Insurance Consultant to the Members, the Managing
Member shall notify the Members as soon as reasonably possible and shall
procure, or shall cause to be procured, such insurance with the maximum amount
of coverage then commercially feasible. Insurance will be considered not commercially
feasible if, among other factors, it is obtainable only at excessive costs that
are not justified in terms of the risk to be insured and is generally not being
carried by or applicable to projects or operations similar to the Project
because of such excessive cost. Should any insurance (including the limits or
deductibles thereof) herein required and previously considered to be
commercially unfeasible become feasible, the Managing Member upon knowledge of
such feasibility shall procure, or shall cause to be procured, such insurance.
Insurance required herein that is considered to be commercially unfeasible
shall be reevaluated not less than once a year.


 


Section 2.5.            Conflict
with Material Contracts. To the extent that the provisions noted in this Schedule 8.4 conflict
with the provisions of any Material Contract and such conflict would cause the
Company, MWCI or the Project Company to be non-compliant with such Material
Contract, the terms and conditions of the Material Contract shall prevail, but
only to the extent required by such Material Contract.


 


Section 2.6.            Other
Insurance. Members shall have the right to make requests for additional or
other insurance to the extent that (i) insurance becomes available on
commercially reasonable terms which had previously not been available, (ii) Project
Company exposures increase necessitating an increase in limits or an additional
insurance, all subject to commercial availability, (iii) other operations
of a similar nature sustain losses or threats of losses which could happen at
the Company, MWCI or the Project Company premises, and (iv) as, under
prudent utility practices, are from time to time insured against for property
and facilities (as to types of risks covered, policy amounts, deductibles and
other terms and conditions) similar in nature, use and location to the Company,
MWCI or Project Company.


 


5

















 


Schedule 9


to Company LLC Agreement


 


Transfer Representations and Warranties


 


a)                                      [The Class B Member] is a [                    ]
duly organized, validly existing and in good standing under the laws of [             
] and has all requisite [              ]
power and authority to reconvey the Class B Membership Interests as
contemplated by the Company LLC Agreement.


 


b)                                     [The Class B Member] owns directly [100]% of the Company’s
outstanding Class B Membership Interests.


 


c)                                      [The Class B Member] has absolute record and beneficial ownership
and title to all of the Membership Interests held by [the Class B Member] free
and clear of any Liens except Permitted Liens.


 


d)                                     The assignment agreement and the other documents contemplated therein
effecting the Transfer of the Class B Membership Interests from [the Class B
Member] to [the Class A Member] has been duly executed and delivered by
[the Class B Member] and constitutes [the Class B Member’s] legal,
valid and binding obligation, enforceable against it in accordance with its
terms (except as may be limited by Bankruptcy, insolvency or similar Laws of
general application and by the effect of general principles of equity,
regardless of whether considered at law or in equity).


 


e)                                      The authorization, execution, delivery or performance by [the Class B
Member] of the assignment agreement effecting the Transfer of the Class B
Membership Interests from [the Class B Member] to [the Class A
Member] does not and will not (i) conflict with, or result in a breach,
default or violation of, (A) the organizational documents of [the Class B
Member], (B) any contract or agreement to which that [the Class B
Member] is a party or is otherwise subject, or (C) any law, rule,
regulation, order, judgment, decree, writ, injunction or arbitral award to
which that [the Class B Member] is subject, except in the case of clause (B) and
clause (C) to the extent that such conflict, breach, default or violation
would not reasonably be expected to have a material adverse effect on [the Class B
Member’s] ability to perform its obligations under the Transaction Documents;
or (ii) require any consent, approval or authorization from, filing or
registration with, or notice to, any Governmental Authority or other Person,
unless such requirement has already been satisfied.


 

















 


Schedule 10


to Company LLC Agreement


 


Shared
Facilities Plan


 


The
Shared Facilities Plan will govern the relationships of the parties owning and
utilizing the substation, operations and maintenance facility and generator
lead line. It is anticipated that the following proposed documents will be
executed on arms-length, commercially reasonable terms in order to formalize
the foregoing, and shall include, without limitation, ownership structure,
responsibilities and rights of the parties, use and cooperation, and
liabilities.


 


Substation:


 


1.               Project Company and Milford
Wind Corridor Phase II, LLC, a Delaware limited liability company (“Milford II”) shall enter into a purchase and sale
agreement for the sale to Milford II of an approximate 1/3 undivided interest
in the substation , a facility shared with the Project;


 


2.               Project Company and Milford
II shall enter into a co-tenancy agreement with respect to their undivided
interests in the substation governing, among other things, use, alienation and
encumbrance rights with respect to the substation;


 


3.               Project Company and Milford
II shall enter into a shared facilities agreement with a cost sharing mechanism
providing for cost sharing on a pro rata basis in relation to the respective
ownership of the undivided interests in the substation, unless the sharing of
such costs is included in the sharing mechanism as described in the following
paragraph 4; and


 


4.               Project Company, Milford II
and First Wind O&M, LLC, a Delaware limited liability company (“First Wind O&M”) shall enter into an
operations and maintenance agreement for the substation that will provide for
cost sharing on a pro rata basis in relation to the respective ownership of the
undivided interests in the substation.


 


Operations and Maintenance Facility (“O&M Facility”);


 


1.               Project Company and Milford
II shall enter into a shared facilities agreement with respect to their
undivided interests in the O&M Facility with a cost sharing mechanism as
described above;


 


2.               Project Company shall grant
a sublease or consent to the grant of easement rights to Milford II for the
shared use of the access road to the O&M Facility;


 


3.               Project Company shall
sublease to Milford II or provide consent to the direct lease to Milford II of
certain portions of the O&M Facility for Milford II operations, including,
without limitation, the storage of parts and equipment; and


 

















 


4.     Project
Company, Milford II and First Wind O&M shall enter into an operations and
maintenance agreement for the shared facilities with a cost sharing mechanism
as described above.


 


a)              The operations
and maintenance agreement shall include a provision for an inventory control
system that will keep track of all inventory for each phase of the Project, and
facilitate the prevention of the use of inventory for one phase for work on
subsequent phases.


 


Generator Lead Line:


 


1.               Project Company
shall enter into one or more purchase and sale agreements with Milford II, Milford
Wind Corridor Phase III, LLC, a Delaware limited liability company (together
with its successors, “Milford III”), Milford
Wind Corridor Phase IV, LLC, a Delaware limited liability company (together
with its successors, “Milford IV”), and Milford
Wind Corridor Phase V, LLC, a Delaware limited liability company (together with
its successors, “Milford V”) for the sale
of undivided interests in the generator lead line which is a shared facility
(or may otherwise cause the transfer of such interests to Milford III, Milford
IV, Milford V, which may be by way of a distribution to the Class A
Member), it being acknowledged that Milford I shall retain an undivided
interest of capacity in the generator lead line in accordance with the terms of
the PPA;


 


2.               Project Company
shall assign to Milford II, Milford III, Milford IV, and Milford V an undivided
interest in (i) the Right-of-Way Grant/Temporary Use Permit Serial Number
UTU-82973, dated effective as of April 13, 2009, by and between US BLM and
the Project Company, recorded April 23, 2009, as Entry No. 00169395,
in Book 501, at Page 893 of official records of Millard County, and
recorded April 23, 2009, as Entry No. 239577, in Book 434, at Page 163
of official records of Beaver County; (ii) the private easements, which
will be assigned by Milford I to Milford II and the subsequent phase project
companies, pursuant to an omnibus assignment agreement to be executed; (iii) the
Permanent Nonexclusive Easement Agreement, dated October 2008, by and
between Intermountain Power Agency, a political subdivision of the State of
Utah and the Project Company, recorded February 10, 2009, as Entry No. 00168678,
in Book 498, at Page 329 of official records of Millard County; and (iv) all
permits necessary to operate the generator lead line;


 


3.               The Project
Company, Milford II, Milford III, Milford IV, and Milford V shall enter into a
co-tenancy agreement with respect to their undivided interests in the generator
lead line facilities governing, among other things, use, alienation and
encumbrance rights with respect to the generator lead line facilities; and


 


4.               The Project
Company, Milford II, Milford III, Milford IV, and Milford V shall enter into an
operations and maintenance agreement with First Wind O&M or an affiliate of
First Wind O&M for the generator lead line facilities with a cost sharing
mechanism as described above.


 

















 


Exhibit A


to Company LLC Agreement


 


Form of Certificate for Class A Membership Interest


 


THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”)
OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH
STATE SECURITIES LAWS, AND THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS
WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER TRANSFER OF SUCH
INTERESTS.


 


THIS CERTIFICATE EVIDENCES AN INTEREST IN THE COMPANY AND
SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN THE STATE OF DELAWARE AND THE STATE OF NEW YORK.


 


	
  No. [     ]

  	
   

  	
  Class A Membership Interests

  



 


 


MILFORD WIND PARTNERS, LLC

a Delaware Limited Liability Company

Certificate of Interest


 


This certifies that [                   ] is the owner of [                 ] Class A Membership Interests in Milford Wind Partners, LLC (the “Company”), which membership interests are subject to the terms of the First Amended
and Restated Limited Liability Company Agreement of the Company, dated as of
[        ], 2009, as the same may be
further amended from time to time in accordance with the terms thereof (the “Limited
Liability Company Agreement”).


 


This Certificate of Interest may be transferred by the
lawful holders hereof only in accordance with the provisions of the Limited
Liability Company Agreement.


 


IN WITNESS WHEREOF, the said Company has caused
this Certificate of Interest to be signed by its duly authorized officer this [          ] day of [          ], 2009.


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit A-1

















 


[Reverse]


 


INSTRUMENT OF TRANSFER OF


MEMBERSHIP INTEREST IN


 


 


Milford Wind Partners, LLC


 


FOR VALUE RECEIVED, the undersigned does hereby
sell, assign and transfer unto


 


 


	
   

  	
   

  
	
  (print or type name of assignee)

  



 


the membership interest evidenced by and within the
Certificate of Interest herewith, and does hereby irrevocably constitute and
appoint
                      
as attorney to transfer said interest on the books of Milford Wind Partners,
LLC, with full power of substitution in the premises.


 


Dated as of:


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit A-2

















 


Exhibit B


to Company LLC Agreement


 


Form of Certificate for Class B Membership Interest


 


THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”)
OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH
STATE SECURITIES LAWS, AND THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS
WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER TRANSFER OF SUCH
INTERESTS.


 


THIS CERTIFICATE EVIDENCES AN INTEREST IN THE COMPANY AND
SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN THE STATE OF DELAWARE AND THE STATE OF NEW YORK.


 


 


	
  No. [    ]

  	
   

  	
  Class B Membership
  Interests

  



 


MILFORD WIND PARTNERS, LLC

a Delaware Limited Liability Company

Certificate of Interest


 


This certifies that [                             ] is the owner of [                           ] Class B
Membership Interests in Milford Wind Partners, LLC (the “Company”), which membership interests are subject to the terms of the First Amended
and Restated Limited Liability Company Agreement of the Company, dated as of [      ],
2009, as the same may be further amended from time to time in accordance with
the terms thereof (the “Limited Liability Company Agreement”).


 


This Certificate of Interest may be transferred by the
lawful holders hereof only in accordance with the provisions of the Limited
Liability Company Agreement.


 


IN WITNESS WHEREOF, the said Company has caused
this Certificate of Interest to be signed by its duly authorized officer this [         ] day of [                   ], 2009.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit B-1

















 


[Reverse]


 


INSTRUMENT OF TRANSFER OF


MEMBERSHIP INTEREST IN


 


 


Milford Wind Partners, LLC


 


FOR VALUE RECEIVED, the undersigned does hereby
sell, assign and transfer unto


 


 


	
   

  	
   

  
	
  (print or type name of assignee)

  



 


the membership interest evidenced by and within the
Certificate of Interest herewith, and does hereby irrevocably constitute and
appoint                       
as attorney to transfer said interest on the books of Milford Wind Partners,
LLC, with full power of substitution in the premises.


 


Dated as of:


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit
B-2














 


Exhibit C


to Company LLC Agreement


 


Form of Working Capital Revolving Loan Note


 


PROMISSORY NOTE


[Working Capital Revolving Loan]


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.


 


	
  $[                ]

  	
   

  	
  [Date]

  



 


FOR VALUE RECEIVED, [                           ], a Delaware limited liability company (the “Borrower”), hereby promises to pay to the order of [                      ], a [              ] limited liability company (the “Lender”), the principal sum of [         ]
dollars $[ ], or so much thereof as may be advanced by or owing to the Lender
(each such amount, a “Borrowing”) on a
date that is 364 days after the date of this Note (the “Maturity
Date”), unless sooner paid as provided
herein.


 


The Borrower also promises to pay interest on the unpaid
principal amounts from time to time outstanding hereunder, from the date of
each Borrowing until all Borrowings hereunder have been paid in full. Each
Borrowing shall bear interest at a rate per annum equal to the LIBOR (as
defined below) rate in effect for such Borrowing plus [2.0] percent, calculated
on the basis of a 360-day year, such interest to be payable monthly on the last
business day of each month (each, a “Payment Date”), commencing, with respect to each Borrowing, on the last business day of
the calendar month immediately following the date of such Borrowing. In
addition, all accrued and unpaid interest thereon will be due and payable upon
the day that all principal is due and payable (whether on the Maturity Date, by
acceleration or otherwise). For purposes of this Note, “LIBOR” means


 

















 


the rate per annum quoted on the British Bankers’
Association Website “Historic Libor Rates” page, for 1 month Libor as of 10
London business days before the date of each Borrowing as the rate per annum
for deposits in U.S. dollars, or if no rate appears on British Bankers’
Association Website, the one-month London Interbank Offered Rate as published
in the Wall Street Journal two London business days prior to the date of each
Borrowing.


 


Payment of both principal and interest on this Note shall
be made by wire transfer to the Lender at such bank instructions provided to
the Borrower in lawful money of the United States of America in immediately
available funds.


 


To request a Borrowing, Borrower shall notify Lender of
such request 10 business days before the date of the proposed Borrowing.


 


The Borrower shall have the right to prepay any amount
borrowed under this Note in whole or in part at any time, together with
interest on the amount prepaid to the date of prepayment, without penalty or
premium. Amounts borrowed under this note may be re-borrowed subject to the
terms hereof.


 


The Lender shall, and is hereby irrevocably authorized by
the Borrower to, endorse on Schedule A which forms a part of this Note (and on
separate continuations of such Schedule), or otherwise to record on the
Lender’s internal records, appropriate notations evidencing the amount of each
Borrowing and each payment of principal or interest on any such Borrowing which
is received by the Lender; provided, that failure by the Lender to make any such
notations or any error therein shall not affect any of the Borrower’s
obligations in respect of this Note.


 


Upon the occurrence of any of the following events, this
Note shall become immediately due and payable in full, together with interest
accrued thereon:


 


(i)                                              the Borrower shall fail to make any payment hereunder when due and
payable;


 


(ii)                                           the Borrower shall become insolvent, or generally fail to pay, or admit
in writing its inability to pay, its debts as they become due, or shall
voluntarily commence any proceeding or file any petition under any bankruptcy,
insolvency or similar federal, state or foreign law or seeking dissolution,
liquidation or reorganization or the appointment of a receiver, trustee,
custodian or liquidator for it or a substantial portion of its property, assets
or business or to effect a plan or other arrangement with its creditors, or
shall file any answer admitting the jurisdiction of the court and the material
allegations of an involuntary petition filed against it in any bankruptcy,
insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall
make a general assignment


 


C
- 2

















 


for the benefit of creditors, or shall consent to, or
acquiesce in the appointment of, a receiver, trustee, custodian or liquidator
for a substantial portion of its property, assets or business, or shall by any
act or failure to act indicate its consent to or approval of any of the
foregoing, or if any corporate action is taken by the Borrower for the purpose
of effecting any of the foregoing; or


 


(iii)                                        involuntary proceedings or an involuntary petition shall be commenced or
filed against the Borrower under any bankruptcy, insolvency or similar federal,
state or foreign law or seeking the dissolution, liquidation or reorganization
of it or the appointment of a receiver, trustee, custodian or liquidator for it
or of a substantial part of its property, assets or business, and such
proceedings or petition shall not be dismissed within 60 days; or any writ,
judgment, tax lien, warrant of attachment, execution or similar process shall
be issued or levied against a substantial part of its property, assets or
business, and such writ, judgment, lien, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded, within 60 days
after commencement, filing or levy, as the case may be, or any order for relief
shall be entered in any such proceeding; or any winding-up, dissolution,
liquidation or reorganization of the Borrower.


 


The Borrower waives any and all right to assert any
defense (except for the Borrower’s performance under the Note), set-off,
counterclaim or crossclaim of any nature whatsoever with respect to this Note
or the obligations of the Borrower hereunder in any action or proceeding
brought by the Lender to collect this Note, or any portion hereof. The Borrower
waives presentment, demand, notice, protest and all other demands and notices
in connection with the delivery, acceptance, performance, default or
enforcement of this Note.


 


The Borrower promises to pay all costs and expenses of the
Lender (including, without limitation, reasonable attorneys’ fees and
disbursements) incurred in connection with (i) the enforcement of, or
collection of any amounts due under, this Note or (ii) any waiver,
extension, amendment or modification of this Note.


 


This Note shall be binding upon, and shall inure to the
benefit of, the Borrower and the Lender and their respective successors and
assigns; provided, however, that the Borrower shall not assign its
rights or obligations hereunder without the prior written consent of the
Lender. This Note may be freely assigned by the Lender without the consent of
the Borrower.


 


This Note may only be modified, amended, or terminated
(other than by payment in full) by an agreement in writing signed by the
Borrower and the Lender. No waiver of any term, covenant or provision of this
Note shall be effective unless given in writing by the Lender.


 


C
- 3

















 


ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST THE
BORROWER WITH RESPECT TO THIS NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS NOTE THE BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR
PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS
RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR
BY MAIL TO THE ADDRESS OF THE BORROWER SET FORTH BELOW. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF A HOLDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY
LAW.


 


THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).


 


IN WITNESS WHEREOF, the Borrower has executed this Note as
of the day and year first above written.


 


	
   

  	
   

  	
  [                                         ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Address:

  



 


C
- 4

















 


Schedule A


to Working Capital


Revolving Loan Note


 


REVOLVING LOANS AND REPAYMENTS


 


	
  Date

  	
   

  	
  Amount of

  Revolving

  Loans

  	
   

  	
  Amount of

  Principal of

  Revolving Loans

  Repaid

  	
   

  	
  Unpaid Principal

  Balance of

  Revolving Loans

  	
   

  	
  Notation Made

  By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C - 5

















 


Exhibit D


to Company LLC Agreement


 


AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT


 


MWCI HOLDINGS, LLC


 


This Amended and Restated Limited Liability Company
Agreement (hereinafter referred to as the “Agreement”) is made as of
this 31st day of August, 2009, by Milford Wind Corridor, LLC (hereinafter
referred to as the “Member”), the sole Member of MWCI Holdings, LLC, a
Delaware limited liability company to be formed (hereinafter referred to as “Company”).


 


PREAMBLE


 


A.                                            Whereas, the Company was formed on April 9, 2009 and was heretofore
governed by the Limited Liability Company Agreement of the Company, dated as of
April 9, 2009 (the “Original LLC Agreement”);


 


B.                                              Whereas, the Member wishes to amend and restate the Original LLC
Agreement in its entirety; and


 


C.                                              Whereas, by entering into this Agreement the Member desires to provide
for (i) the purpose for which the Company was formed; (ii) the
division of the Company’s net profits and net losses; (iii) the
restrictions on the disposition of Company property and Company interests; (iv) the
management of the Company’s business, (v) the duration of the Company’s
existence; and (vi) various other matters relating to the Company.


 


ARTICLE I


 


FORMATION AND PURPOSE


 


1.1                                          Governing Law and Government Filings. The
Company was formed in accordance with
and shall be governed by the Delaware Limited Liability Company Act, (as the
same may be amended from time to time, the “Act”); except to the extent
that the Act permits variation by agreement of the parties and this Agreement
provides such variations. The Member shall take such action as is necessary or
appropriate from time to time to comply with the requirements for the formation
and operation of a limited liability company in the State of Delaware and in
all other jurisdictions where the Company conducts its business.


 


1.2                                          Name. The name of the Company shall
be MWCI Holdings, LLC.


 


1.3                                          Purpose of the Company. MWCI’s
purpose and business is limited to (a) owning the Milford Wind Corridor
Phase I, LLC, a Delaware limited liability company (the “Project Company”)
for the purpose of developing, constructing, owning and operating the (i) approximately
203.5 MW wind power generation plant located in Beaver County, Utah to be
comprised of approximately thirty-nine (39) 1.5 MW and fifty-eight (58) 2.5 MW
wind turbine generators, foundations and towers, together with associated
collection lines, an operations and maintenance building and ancillary
facilities; (ii) substation related thereto; and (iii) approximately
88-mile long 345kV generator lead line located in Beaver and Millard


 

















 


Counties, Utah (collectively, the “Project”), and (c) engaging in any other activity directly or indirectly
related or incidental to the foregoing.


 


1.4                                     Registered
Office: Registered Agent. The
name of the registered agent for service of process on the Company in the State
of Delaware is The Corporation Trust Company. The address of the registered
agent of the Company and the address of the registered office of the Company in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, Delaware 19801. The Company may change the registered office and
registered agent as Member may from time to time deem necessary or advisable.


 


1.5                                     Principal Place
of Business. The Company’s principal
place of business shall be c/o First Wind Energy, LLC, 85 Wells Ave., Suite 305,
Newton, MA 02459, or at such other place as the Member may select from time to
time.


 


1.6                                     Expenses of
Formation. The Company shall bear
the expenses incident to its formation. Each Member shall bear its own personal
expenses, if any, incurred in connection with its decision to enter into this
Agreement.


 


ARTICLE II


 


TERM


 


2.1                                          Term. The term of the Company
commenced on April 9, 2009 and shall be perpetual.


 


ARTICLE III


 


CAPITAL CONTRIBUTIONS AND COMPANY
INTERESTS


 


3.1                                          Company Capital. The capital of the Company shall be the aggregate sum of the capital
contributions made by the Member to the Company in the manner provided for in
this Agreement. The Member shall own a share of the total capital of the
Company in proportion to that Member’s Company Interest.


 


3.2                                          Initial Capital
Contribution. The initial capital
contribution of the Member to the Company shall be as follows:


 


	
  Name
  of Member

  	
   

  	
  Amount of Contribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Milford Wind Corridor, LLC

  	
   

  	
  $

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  100.00

  	
   

  



 


2

















 


3.3                                          Payment of
Contributions. The Member’s capital contribution shall be made by
delivering it to the Company within the thirty (30) day period immediately
following the execution of this Agreement.


 


3.4                                          Company
Interest. For purposes of this Agreement, the term “Company Interest”
shall mean the Member’s share of the Company’s net profits and net losses, the
right to receive distributions of Company property and the rights, powers and
liabilities of a Member as defined and described in the Act and this Agreement.
The nature of a Company Interest shall be personal property for all purposes.


 


3.5                                          The Member’s
initial Company Interest shall be equal to the number of Units set forth below:


 


	
  Name
  of Member

  	
   

  	
  No. of Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Milford Wind Corridor, LLC

  	
   

  	
  500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  500

  	
   

  



 


The
Member’s Company Interest at any given time shall be calculated on the basis of
the number of Units owned by that Member to the total number of Units owned by
all of the Members.


 


3.6                                          Form of
Contributions. Unless specified otherwise in this Agreement or agreed
by the Member, all capital contributions made to the Company shall be made in
the form of cash denominated in US dollars or cash equivalents.


 


(a)                                           Loans from
Members. The Member may loan money to the Company for any purpose permitted
under this Agreement (hereinafter a “Member Loan”). Loans from the
Member to the Company shall be made on reasonable commercial terms.


 


3.7                                          Additional
Capital Contributions. If at any time the Member determines that
the Company has insufficient funds to carry out the purposes of the Company,
the Member may make additional capital contributions, but shall not be required
to make any further or additional capital contributions to the Company, except
as required by the Act.


 


3.8                                          Withdrawal of
Capital Contributions. Member shall not have the right to withdraw
or reduce its capital contributions to the Company. Member shall not have the
right to demand and receive any distribution from the Company in any form other
than cash Member shall not be entitled to receive any interest on its capital
contributions to the Company.


 


3.9                                          Use of
Contributions. The aggregate of all capital contributions made by
the Member to the Company shall be available to the Company to carry out the
purposes of the Company.


 


3

















 


3.10                                    Ownership of Property. All Company
property, whether real or personal, tangible or intangible, shall be owned by
the Company. Member shall not have any Interest in any specific Company
property.


 


3.11                                    Composition of Capital Accounts. The Company
shall establish and maintain a separate capital account for Member in
accordance with applicable federal tax laws. The Member’s capital account shall
be determined and maintained as follows:


 


(a)                                           Contributions, Income and Gains. Member’s
capital account shall be increased by: (1) the amount of money contributed
by Member; (2) the fair market value at the time of contribution of all
property other than money contributed by Member, if any, reduced by any
liabilities secured by that property which are assumed or taken subject to by
the Company; and (3) Member’s share of Company income and gains, including
income and gains which are exempt from or not recognized for federal income tax
purposes, as computed for book purposes; and


 


(b)                                          Distributions, Deductions and Losses. Member’s
capital account shall be decreased by: (1) the amount of money distributed
to Member; (2) the fair market value at the time of distribution of all
property other than money distributed to Member, if any, reduced by any
liabilities secured by that property which are assumed or taken subject to by
Member; and (3) Member’s share of Company losses and deductions, including
Company expenditures which are not deductible or capitalizable for federal
income tax purposes, as computed for book purposes.


 


3.12                                    Transferee’s Capital Account. In the event
of a permitted transfer of a Company Interest as provided in this Agreement,
the capital account of the transferor shall become the capital account of the
transferee to the extent ii relates to the transferred Company Interest.


 


3.13                                    Compliance with Applicable Federal Tax Laws. The manner in which the capital account of Member is to be maintained
pursuant to this Article III of this Agreement is intended to comply with
the requirements of all applicable federal tax laws. If in the opinion of
Member the manner in which capital accounts are to be maintained pursuant to
this Article Ill of this Agreement should be modified in order to comply
with the applicable federal tax laws, then notwithstanding anything contained
in this Agreement to the contrary, Member shall alter the method in which the
capital accounts are maintained and amend this Agreement to reflect any such
change in the manner in which capital accounts are maintained.


 


ARTICLE IV


 


ALLOCATIONS AND DISTRIBUTIONS


 


4.1                                          Allocation of Company Items. All items of
income, gain, loss, deduction or credit of the Company shall be allocated to
Member in proportion to its Company Interests; provided, however, that for
federal income tax purposes such items of income, gain, loss and deduction or
credit with respect to property contributed by Member to the Company shall be
allocated to Member so as to take account of the variation between the federal
income tax basis


 


4

















 


of
the property to the Company and its fair market value at the time of its
contribution to the Company in accordance with applicable federal tax laws.


 


4.2                                          Reallocation on Transfer. In the event
that Member’s interest is transferred in accordance with the provisions of this
Agreement, the allocations provided in this Article IV of this Agreement
shall be further reallocated between the transferor and the transferee in the
same ratio as the number of days each of them owned the Company Interest during
the fiscal year of the Company for which the allocation is being made, unless
the books of the Company permit the allocation of items of income and expense
to the periods of time before and after the transfer, in which case the latter
allocation shall be made.


 


4.3                                          Distribution of Net Cash. Following the end of each
fiscal year of the Company and the adjustment of Member’s capital accounts for
that fiscal year, the Company may distribute the Net Cash of the Company to
Member. Distributions of Net Cash shall be made among Member in proportion to
Its Company Interests. The term “Net Cash” shall mean cash flow available after
normal operating expenses, debt service, and any reasonable reserves set aside
for future liabilities as determined by Member.


 


4.4                                          Draws. At the beginning of each
fiscal year, a periodic draw in anticipation of the distribution of Net Cash to
Member for that fiscal year may be established. Any amounts so withdrawn during
the fiscal year shall be credited against any Net Cash distributable to Member
at the end of that fiscal year. To the extent such withdrawals exceed Member’s
Net Cash distribution for the same fiscal year, the excess shall be a liability
of Member to the Company payable upon demand but without interest. A periodic
drawing right once determined may be terminated at any time during the course
of the Company’s fiscal year if it appears unlikely that the Net Cash
distributable to Member for that fiscal year shall equal or exceed Member’s
withdrawals.


 


ARTICLE V


 


COMPETITION AND CONFIDENTIALITY


 


5.1                                          Member may
engage in any other business, whether or not the same or similar to the
business of the Company, and whether or not such other business is competitive
with the Company. The Company shall have no  rights in the income or profits of that business.


 


ARTICLE VI


 


TAX, FINANCIAL AND ACCOUNTING
MATTERS; SEPARATENESS COVENANTS


 


6.1                                          Fiscal Year and Accounting Method. The fiscal
year of the Company for both accounting and income tax purposes shall be the calendar
year, and for both accounting and income tax purposes the Company shall report
its operations and profits and losses in accordance with the accrual method of
accounting, unless a different method of accounting is required by applicable
federal tax laws.


 


5














 


6.2                                          Annual Tax Return and
Financial Statements. The accountant for the Company shall prepare
all required tax returns for the Company as of the end of each fiscal year,
including the balance sheet and statement of income and expenses relating to
such fiscal year, and a statement of Member’s distributive share of the items
of income, gain, loss, deduction and credit of the Company for tax purposes for
such fiscal year. The Company shall furnish Member with a copy of each such tax
return and statement on or before the date the Company files its tax returns
for such fiscal year.


 


6.3                                          Tax and
Accounting Matters. All elections with respect to the
preparation and filing of the Company tax returns, the reporting of items of
Company income, gain, loss, deduction and credit, and all other elections which
the Company or Member are entitled to make with respect to Company matters,
shall be made only by the Company. Member shall be the Tax Matters Member for
the Company for income tax purposes. All decisions as to accounting matters
shall be made in accordance with generally accepted accounting principles
applied on a basis consistent with prior periods. Member is still required to
make all Member specific elections, as appropriate.


 


6.4                                          Books and
Records. The Company shall maintain a full and accurate set of books and
records at its principal place of business. Member and its duly authorized
representatives shall have access to and may inspect and copy any such books
and records at all reasonable times.


 


6.5                                          Bank Account. The Company
shall, if Member so determines, open and maintain a bank account or bank
accounts in the name of the Company at such bank or banks as Member may
determine from time to time. All funds of the Company not otherwise invested
shall be deposited in and withdrawn from such bank account(s) as Member
may determine. Any withdrawals from such bank account(s) shall require
such signature or signatures as Member may from time to time determine.


 


6.6                                          Separateness Covenants. The
Company represents and covenants that it: 


 


(a)                                           shall not commingle assets with those of any other entity and shall hold
its assets in its own name;


 


(b)                                          shall conduct its own business in its own name;


 


(c)                                           shall maintain bank accounts (if any), books, records and financial
statements in accordance with generally accepted accounting principles and
separate from any other person or entity;


 


(d)                                          shall observe all Company formalities;


 


(e)                                           shall pay its own liabilities out of its own funds (which may include
payments made or capital contributed by the Member pursuant to
Article III);


 


(f)                                             shall maintain adequate capital in light of its contemplated business
operations;


 


6

















 


(g)                                          shall use separate stationery, invoices and checks;


 


(h)                                          shall maintain an arm’s-length relationship with its affiliates;


 


(i)                                              shall pay the salaries of its own employees, if any;


 


(j)                                              shall not guarantee or become obligated for the debts of any other entity
or hold out its credit as being available to satisfy the obligations of others,
other than the Project Company;


 


(k)                                           shall not make any loans to any other person or entity, other than the
Project Company;


 


(1)                                           shall allocate fairly and reasonably any overhead for shared office
space;


 


(m)                                        shall not pledge its assets for the benefit of any other entity, other
than the Project Company or the Project;


 


(n)                                          shall hold itself out as a separate entity, with the exception that
Company shall not be considered as a separate entity from the Project Company
or the Member for federal, state, and local income tax purposes, and not fail
to correct any known misunderstanding regarding its separate identity;


 


(o)                                      has not formed, acquired or held and shall not form, acquire or hold any
subsidiary, except for the Project Company;


 


(p)                                      does not have, shall not have and at no time had any assets other than
its membership interests in the Project Company and personal property necessary
or incidental to its ownership of such membership interests;


 


(q)                                      has not engaged in, sought, consented or permitted to and shall not
engage in, seek, consent to or permit any dissolution, winding up, liquidation,
consolidation or merger or any sale or other transfer of all or substantially
all of its assets or any sale of assets outside the ordinary course of its
business, except in each case as permitted by this Company LLC Agreement;


 


(r)                                         shall not incur any additional debt or contingent liabilities except in
the ordinary course of business; and


 


(s)                                       shall not consent to or permit any amendment of this Agreement or its
formation documents or other organizational documents with respect to the
matters set forth in this Section 6.6.


 


Further, the Company shall at all times observe the single
purpose entity and separateness covenants set forth in this Agreement.


 


7

















 


ARTICLE VII


 


MANAGEMENT AND MEMBERS.


 


7.1                                          Powers of the Member. Member
shall have all of the powers of the Company and may exercise all of the rights
and powers of a member under the Act. Member shall have full, exclusive and
complete discretion in the management of the business and affairs of the
Company, to make all decisions affecting the business and affairs of the
Company and to do or cause to be done any and all acts deemed by member to be
necessary or appropriate to effectuate the business, purposes and objectives of
the Company at the expense of the Company.


 


7.2                                          Meetings.


 


(a)                                           Annual and Special Meetings. The
annual and special meetings of the Member for the transaction of such business
as may properly come before the meeting shall be held at such place, time and
date as shall be designated by the Member from time to time.


 


(b)                                          Actions Without a Meeting.
Notwithstanding any provision contained in this Article VII, all actions
of the Member provided for herein may be taken by written consent without a
meeting. Any such action which may be taken by the Member without a meeting
shall be effective only if the consent is in writing, sets forth the action so
taken, and is signed by the Member.


 


7.3                                          Management Authority of Members and Officers. Member shall have the full and exclusive responsibility for the
management of the Company, the operation of the business of the Company, and
the performance of the duties described in this Article VII of this Agreement.
Member has delegated its power and authority to the following President,
Secretary and/or Treasurer as officers of the Company, all of whom could be the
same person and who could, but need not, be a Member of the Company and
will have the power and authority provided herein, unless otherwise specified
by Member:


 


	
  President:

  	
   

  	
  Paul
  Gaynor

  
	
   

  	
   

  	
   

  
	
  Secretary:

  	
   

  	
  Evelyn
  Lim

  
	
   

  	
   

  	
   

  
	
  Treasurer:

  	
   

  	
  Michael
  Metzner

  
	
   

  	
   

  	
   

  
	
  Assistant Treasurer:

  	
   

  	
  Robert
  S. Schauer

  



 


(a)                                           President. The President
shall be the chief executive officer of the Company,
shall preside at all meetings of the Members, shall have general and active
management of the business of the Company, and shall execute bonds, mortgages,
loans, leases and contracts for the Company, and is authorized to open and sign
bank accounts and to authorize other officers or persons to open and sign such
accounts. The approval of the form and substance of such documents by the
Company and the Members shall be conclusively evidenced by the execution
thereof by the President.


 


8

















 


(b)                                          Secretary. The Secretary
shall record all the proceedings of the meetings of the Members and notice of
all meetings of the Members, and shall perform such other duties as may be
prescribed by the President. The Secretary is authorized to execute contracts
on behalf of the Company. The approval of the form and substance of such
documents by the Company and the Members shall be conclusively evidenced by the
execution thereof by the Secretary.


 


(c)                                           Treasurer. The Treasurer
shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Company and shall deposit all moneys and other valuable effects in the name
and to the credit of the Company in such depositories as may be designated by
the President. The Treasurer shall disburse the funds of the Company as may be
ordered by the President taking proper vouchers for such disbursements, and
shall render to the President an account of all his transactions as Treasurer
and of the financial condition of the Company. The Treasurer is authorized to
execute contracts on behalf of the Company in furtherance of his rights and
responsibilities contained herein.


 


(d)                                          Assistant Treasurer. The Assistant
Treasurer shall act under the direction and guidance of the Treasurer.


 


The
foregoing officers shall serve until their respective successors are chosen by
Member or Member removes one or more of the officers so that Member may resume
exercising the power and authority previously delegated to such officer or
officers.


 


7.4                                          Duties of
Loyalty and Care of Member. Member shall devote such
time to the operations of the Company as it, in its sole discretion, deems to
be reasonably required to conduct the Company business and to operate and
manage the Company property in an efficient manner. Member shall use its best
efforts to manage the business and affairs of the Company. The doing of any act
or failure to do any act which may result in a loss to the Company, if done in
good faith and in a manner reasonably believed to be in the best interest of
the Company, shall not subject Member to any liability to the Company.


 


7.5                                          Compensation
for Member. Member may be entitled to compensation for personal
services rendered by it on behalf of the Company in its capacity as Member. For
purposes of this Section 7.5, reimbursement for out-of-pocket expenses
shall not be construed as “compensation”. Member shall be fully reimbursed by
the Company for all out-of-pocket expenses incurred by them on behalf of the
Company.


 


7.6                                          Indemnification
of Member. To the fullest extent permitted by applicable law,
Member, any affiliate Member, any officers, directors, shareholders, partners,
members, employees, representatives or agents of Member, or their respective
affiliates, or any officer, employee or agent of the Company or its affiliates
(any such person, a “Covered Person”) shall be entitled to
indemnification from the Company for any loss, damage or claim incurred by such
Covered Person by reason of any act or omission performed or omitted by such
Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of authority conferred on such
Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by


 


9

















 


such Covered Person by reason of gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 7.6 shall be provided out of and to
the extent of Company assets only, and no Covered Person shall have any
personal liability on account thereof. To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by a Covered Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined that the Covered Person is not entitled to be indemnified
as authorized in this Section 7.6.


 


7.7                                          Personal Liability of Member. Member
shall not have any personal liability for the liabilities or obligations of the
Company, except to the extent of the capital contributions made or required to
be made by Member to the Company in accordance with the terms of this
Agreement.


 


ARTICLE VIII


 


ADMISSION AND RESIGNATION OF
MEMBER


 


8.1                                          Initial Members. All persons having
executed this Agreement as Members shall be admitted as Members without any
further act on the part of the Company or the other Members.


 


8.2                                          Sole Member. The Company shall at all times
be and remain a single member limited liability company, and it shall not have
more than one Member at any time; nor shall the Member be entitled to divide or
subdivide the Company interest in any manner whatsoever.


 


8.3                                          Preconditions to Admission. In no
event shall a member be admitted as a Member of the Company, unless and until:


 


(a)                                           such person agrees to execute this Agreement, as then amended, and such
other instruments as may be required by the Act or which Member deems necessary
or appropriate to confirm and record such person’s undertaking to be bound by
the terms of this Agreement; and


 


(b)                                          such person agrees to pay all the reasonable expenses, including
attorney’s fees, incurred by the Company in connection with the transfer, if
any, and the admission of such person as a Member.


 


8.4                                          Assignee of a Member. If a
person acquiring a Company Interest is not admitted as a Member of the Company
as provided in this Article VIII of this Agreement, then such person’s
interest in the Company shall be solely that of a rightful assignee of a Member
as provided in the Act.


 


8.5                                          Resignation of Members. Member
shall not resign from the Company prior to the dissolution and winding up of
the Company.


 


10

















 


ARTICLE IX


 


TRANSFER OF COMPANY INTERESTS


 


9.1                                          Transfers Restricted. Member
shall not transfer all or any part of its Company Interest except pursuant to
an assignment by way of security or to a successor Member in accordance with Article VIII
of this Agreement.


 


ARTICLE
X


 


DISSOLUTION


 


10.1                                    Waiver. Member waives and, to the
extent that Member cannot waive, agrees not to exercise any right under the Act
or any other law to dissolve the Company, except as provided in this Agreement.


 


10.2                                    Events Causing Dissolution. The
Company shall be dissolved upon the occurrence of the earliest of the following
events:


 


(a)                                           by the written consent of Member;


 


(b)                                          upon the occurrence of any other event causing a dissolution under the
Act or this Agreement.


 


10.3                                    Winding Up. Upon the dissolution of the
Company, Member or, if none, the personal representative of Member, shall
conclude the business of the Company, wind up its affairs, distribute its
assets in liquidation, and file all certificates or notices required by the Act
to evidence such dissolution, liquidation and termination. Except as otherwise
expressly provided for in the Act, all decisions pertaining to the dissolution
of the Company shall be made in the same manner as decisions made in the
ordinary course of the Company’s business.


 


10.4                                    Final Accounting; Deficit Capital Accounts. Upon
the dissolution of the Company, a final accounting shall be made of the capital
account of Member, adjusted up or down to reflect Member’s proportionate share
of the Company’s net profit or net loss from the time of the last previous
accounting to the date of the dissolution. In the event Member has a deficit
balance inits capital account at the time of the dissolution of the Company,
Member shall be required to contribute sufficient capital to the Company within
thirty (30) days of the date of the dissolution of the Company to eliminate the
deficit balance inits capital account.


 


10.5                                    Priority of Distributions.
Distributions in liquidation of the Company shall be made in the following
order:


 


(a)                                           First, those owing to creditors of the Company, including to Member if it
is a creditor of the Company;


 


(b)                                          Second, those owing to Member other than for capital and profits;


 


(c)                                       Third, those owing to Member in respect of capital; and


 


11

















 


(d)                                          Fourth, those owing to Member in respect of profits.


 


10.6                                    Payment of
Claims. Upon the dissolution of the Company, the Company
shall pay or make reasonable provisions to pay all claims and obligations of
the Company, including all contingent, conditional or unmatured claims and
obligations, known to the Company and all claims and obligations which are
known to the Company, but for which the identity of the claimant is unknown. If
the Company has sufficient assets, such claims and obligations shall be paid in
full and any such provision for payment made shall be made in full, If there
are insufficient assets, such claims and obligations shall be paid or provided
for according to their priority and, among claims and obligations of equal
priority, ratably to the extent of the assets available therefore. Any
remaining Company assets shall be distributed as provided in Section 10.5
of this Agreement.


 


ARTICLE XI


 


GENERAL PROVISIONS


 


11.1                      Notices. All notices, claims, instructions, requests, demands, consents, or other
communications which are required or permitted under this Agreement shall be in
writing and shall be deemed to have been properly given if and when sent by
first class United States mail, registered or certified, postage prepaid,
return receipt requested, addressed as follows:


 


If to the Company to:


 


MWCI Holdings, LLC


c/o First Wind Energy, LLC


85 Wells Avenue, Suite 305


Newton, MA 02459


 


or to such other address as the person to whom notice is
to be given may give notice in the manner set forth above.


 


11.2                                    Enforceability. The parties agree that the provisions of this Agreement shall be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if
any particular provisions of this Agreement shall be adjudicated to be invalid,
illegal or unenforceable, such provision of this Agreement shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid, illegal
or unenforceable, such deletion to apply only with respect to the operation of
such provision of this Agreement in the particular jurisdiction in which such
adjudication is made.


 


11.3                      Descriptive Headings. The descriptive headings of the Sections of this Agreement are inserted
for convenience of reference only and shall not control or affect in any way
the meaning, construction, or interpretation of this Agreement.


 


11.4                      Governing Law. This Agreement has been executed in the State of Delaware and shall be
governed by, and construed, interpreted and enforced in accordance with, the
laws of the State of Delaware in all respects.


 


12

















 


11.5                                    Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.


 


11.6                                    Entire Agreement. This Agreement contains
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements or understandings among the
parties hereto with respect thereto, including the Original LLC Agreement. No
representation, condition or understanding not expressed herein shall be
binding upon the parties, unless subsequent to the date hereto and signed by
all of the parties hereto. This Agreement may not be amended or modified except
by a written instrument signed by a majority in interest of the Members.


 


11.7                                    Waiver of Breach. The waiver by any party
hereto of a breach of any provision of this Agreement by another party hereto
must be in writing and shall not operate or be construed as a waiver of any
subsequent breach by such other party.


 


11.8                                    Authorship. No questions of interpretation
or construction concerning this Agreement shall be construed or interpreted for
or against any party based on the consideration of authorship.


 


11.9                                    Time of the Essence. Time is of the essence
of this Agreement.


 


11.10                              Gender. When used in this Agreement,
singular terms include the plural as appropriate in the context, and masculine
terms include the feminine and are gender neutral as appropriate in this
context.


 


11.11                              Agreement in Counterparts. This
Agreement may be executed in several counterparts and withstanding that all the
parties are not signatory to the original or the same counterpart.


 


11.12                              Tax Status. The parties to this Agreement
intend that the Company shall be classified as a partnership for federal, and
to the extent applicable, state and local, income tax purposes, and the parties
agree that the provisions of this Agreement shall be construed and applied in a
manner that will not impair the qualification of the Company as such form of
entity under the applicable provisions of the Internal Revenue Code, or to the
extent applicable, the laws of any state or local tax authorities.


 


IN WITNESS WHEREOF, the parties hereto have signed,
sealed and delivered this Agreement effective as of the 31st day of August,
2009


 


[remainder of page intentionally left blank]


 


13

















 


	
   

  	
  MEMBER:

  
	
   

  	
   

  
	
   

  	
  /s/
  Evelyn Lim

  
	
   

  	
   

  
	
   

  	
  Milford Wind Corridor, LLC

  



 


14














 


Exhibit E


to Company LLC Agreement


 


SECOND AMENDED AND RESTATED


 


LIMITED LIABILITY COMPANY AGREEMENT


 


Milford Wind Corridor Phase I, LLC


 


This
Second Amended and Restated Limited Liability Company Agreement (hereinafter
referred to as the “Agreement”) of Milford Wind Corridor Phase I, LLC, a
Delaware limited liability company (hereinafter referred to as “Company”), is
made as of this 22 day of April,
2009 (the “Effective Date”), by Milford Wind Corridor, LLC (hereinafter
referred to as the “Member”), as the sole equity Member, and Victor A. Duva, as
the Special Member (as defined herein), or such other Persons (as defined
herein) who become signatories to this Agreement from time to time in
accordance with this Agreement.


 


PREAMBLE


 


A.                                   Whereas, Member
and Company previously entered into that certain Amended and Restated Limited
Liability Company Agreement of Milford Wind Corridor Phase I, LLC dated on or
about the 2nd day of April, 2007 (as amended, modified and supplemented from
time to time the “LLC Agreement”);


 


B.                                     Whereas, on or
about the date hereof, the Company is contemplating entering into a Credit
Agreement (the “Credit Agreement”) among the Company, The Royal Bank of
Scotland plc, as administrative agent, collateral agent, letter of credit
issuer, and a lender, and the financial institutions from time to time party
thereto (the “Lenders”);


 


C.                                     Whereas, as a
condition to closing under the Credit Agreement, the Lenders have required that
the Member amend and restate the LLC Agreement as set forth herein;


 


D.                                    Whereas, the
Member and Special Member now wish to amend and restate the LLC Agreement in
entirety; and


 


E.                                      Whereas, by
entering into this Agreement the Member desires to provide for (i) the
purpose for which the Company is formed; (ii) the division of the
Company’s net profits and net losses; (iii) the restrictions on the
disposition of Company property and Company Interests; (iv) the management
of the Company’s business, (v) the duration of the Company’s existence;
and (vi) various other matters relating to the Company.


 


ARTICLE I


 


FORMATION AND PURPOSE


 


1.1                                          Governing Law and Government Filings. The Company was formed in accordance
with and shall be governed by the Delaware Limited Liability Company Act, (as
the same may be amended from time to time, the “Act”), except to the extent
that the


 


1

















 


Act
permits variation by agreement of the parties and this Agreement provides for
such variations. The Member shall execute such documents and take such action as
is necessary or appropriate from time to time to comply with the requirements
for the formation and operation of a limited liability company in the State of
Delaware and in all other jurisdictions where the Company conducts its
business.


 


1.2                                          Name. The name of
the Company shall be Milford Wind Corridor Phase I, LLC.


 


1.3                                          Purpose of the
Company. The purpose and business of the Company shall be limited to
developing, constructing, owning and operating a wind farm in the State of Utah
and engaging in any other activity directly or indirectly related or incidental
to the foregoing.


 


1.4                                          Registered
Office; Registered Agent. The name of the registered agent for service
of process on the Company in the State of Delaware is The Corporation Trust
Company. The address of the registered agent of the Company and the address of
the registered office of the Company in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, Delaware 19801. The
Company may change the registered office and registered agent as Member may
from time to time deem necessary or advisable


 


1.5                                          Principal Place
of Business. The Company’s principal place of business shall be
c/o First Wind Energy, LLC, 85 Wells Avenue, Suite 305, Newton, MA 02459,
or at such other place as the Member may select from time to time.


 


1.6                                          Expenses of
Formation. The Company shall bear the expenses incident to its
formation. Each Member shall bear its own personal expenses, if any, incurred
in connection with its decision to enter into this Agreement.


 


ARTICLE II


 


TERM


 


2.1                                          Term. The term of
the Company commenced on November 1, 2006, the date the Company’s
certificate of formation was first filed with the Office of the Secretary of
State of the State of Delaware, and shall be perpetual.


 


ARTICLE III


 


CAPITAL CONTRIBUTIONS AND COMPANY INTERESTS


 


3.1                                          Company Capital. The capital
of the Company shall be the aggregate sum of the capital contributions made by
the Member to the Company in the manner provided for in this Agreement. The
Member shall own a share of the total capital of the Company in proportion to
that Member’s Company interest. In accordance with Section 7.2, the
Special Member shall not be required to make any capital contributions to the
Company.


 


2

















 


3.2                                          Initial Capital
Contribution. The initial capital contribution of the Member to
the Company shall be as follows:


 


	
  Name
  of Member

  	
   

  	
  Amount of Contribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Milford Wind Corridor, LLC

  	
   

  	
  $

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  100.00

  	
   

  



 


3.3                                          Payment of
Contributions. The Member’s capital contribution shall be made by
delivering it to the Company within the thirty (30) day period immediately
following the execution of this Agreement.


 


3.4                                          Company
Interest. For purposes of this Agreement, the term “Company Interest”
shall mean the Member’s share of the Company’s net profits and net losses, the
right to receive distributions of Company property and the rights, powers and
liabilities of a Member as defined and described in the Act and this Agreement.
The nature of a Company Interest shall be personal property for all purposes.


 


3.5                                          The Member’s
initial Company Interest shall be equal to the number of units (“Units”) set
forth below:


 


	
  Name
  of Member

  	
   

  	
  No. of Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Milford Wind Corridor, LLC

  	
   

  	
  500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL:

  	
   

  	
  500

  	
   

  



 


The Member’s Company Interest at any given time shall be calculated on
the basis of the number of Units owned by that Member to the total number of
Units owned by all of the Members.


 


3.6                                          Form of
Contributions. Unless specified otherwise in this Agreement or agreed
by the Member, all capital contributions made to the Company shall be made in
the form of cash denominated in US dollars or cash equivalents.


 


(a)                                           Loans from
Members. The Member may loan money to the Company for any purpose permitted
under this Agreement (hereinafter a “Member Loan”). Loans from the Member to
the Company shall be made on reasonable commercial terms.


 


3.7                                          Additional
Capital Contributions. If at any time the Member determines that the Company has insufficient funds to
carry out the purposes of the Company, the Member may make additional capital
contributions, but shall not be required to make any further or additional
capital contributions to the Company, except as required by the Act.


 


3.8                                          Withdrawal of
Capital Contributions. Member shall not have the right to withdraw or reduce
its capital contributions to the Company. Member shall not have the


 


3

















 


right
to demand and receive any distribution from the Company in any form other than
cash. Member shall not be entitled to receive any interest on its capital
contributions to the Company.


 


3.9                                          Use of
Contributions. The aggregate of all capital contributions
made by the Member to the Company shall be available to the Company to carry
out the purposes of the Company.


 


3.10                                    Ownership of
Property. All Company property, whether real or
personal, tangible or intangible, shall be owned by the Company. Member shall
not have any interest in any specific Company property.


 


3.11                                    Composition of
Capital Accounts. The Company shall establish and maintain a
separate capital account for Member in accordance with applicable federal tax
laws. The Member’s capital account shall be determined and maintained as
follows:


 


(a)                             Contributions,
Income and Gains. Member’s capital account shall be increased
by: (1) the amount of money contributed by Member; (2) the fair
market value at the time of contribution of all property other than money
contributed by Member, if any, reduced by any liabilities secured by that
property which are assumed or taken subject to by the Company; and (3) Member’s
share of Company income and gains, including income and gains which are exempt
from or not recognized for federal income tax purposes, as computed for book
purposes; and


 


(b)                            Distributions,
Deductions and Losses. Member’s capital account
shall be decreased by: (1) the amount of money distributed to Member; (2) the
fair market value at the time of distribution of all property other than money
distributed to Member, if any, reduced by any liabilities secured by that
property which are assumed or taken subject to by Member; and (3) Member’s
share of Company losses and deductions, including Company expenditures which
are not deductible or capitalizable for federal income tax purposes, as
computed for book purposes.


 


3.12                                    Transferee’s
Capital Account. In the event of a permitted transfer of a
Company Interest as provided in this Agreement, the capital account of the
transferor shall become the capital account of the transferee to the extent it
relates to the transferred Company Interest.


 


3.13                                    Compliance with
Applicable Federal Tax Laws. The manner in which the
capital account of Member is to be maintained pursuant to this Article III
of this Agreement is intended to comply with the requirements of all applicable
federal tax laws. If in the opinion of Member the manner in which capital
accounts are to be maintained pursuant to this Article 111 of this
Agreement should be modified in order to comply with the applicable federal tax
laws, then notwithstanding anything contained in this Agreement to the
contrary, Member shall alter the method in which the capital accounts are
maintained and amend this Agreement to reflect any such change in the manner in
which capital accounts are maintained.


 


4

















 


ARTICLE IV


 


ALLOCATIONS AND DISTRIBUTIONS


 


4.1                                          Allocation of
Company Items. All items of income, gain, loss, deduction or
credit of the Company shall be allocated to Member in proportion to its Company
Interests; provided, however, that for federal income tax purposes such items
of income, gain, loss and deduction or credit with respect to property
contributed by Member to the Company shall be allocated to Member so as to take
account of the variation between the federal income tax basis of the property
to the Company and its fair market value at the time of its contribution to the
Company in accordance with applicable federal tax laws.


 


4.2                                          Reallocation on
Transfer. In the event that Member’s interest is transferred
in accordance with the provisions of this Agreement, the allocations provided
in this Article IV of this Agreement shall be further reallocated between
the transferor and the transferee in the same ratio as the number of days each
of them owned the Company Interest during the fiscal year of the Company for
which the allocation is being made, unless the books of the Company permit the
allocation of items of income and expense to the periods of time before and
after the transfer, in which case the latter allocation shall be made.


 


4.3                                          Distribution of
Net Cash. Following the end of each fiscal year of the Company
and the adjustment of Member’s capital accounts for that fiscal year, the
Company may distribute the Net Cash of the Company to Member. Distributions of
Net Cash shall be made among Member in proportion to its Company Interests. The
term “Net Cash” shall mean cash flow available after normal operating expenses,
debt service, and any reasonable reserves set aside for future liabilities as
determined by Member.


 


4.4                                          Draws. At the
beginning of each fiscal year, a periodic draw in anticipation of the
distribution of Net Cash to Member for that fiscal year may be established. Any
amounts so withdrawn during the fiscal year shall be credited against any Net
Cash distributable to Member at the end of that fiscal year. To the extent such
withdrawals exceed Member’s Net Cash distribution for the same fiscal year, the
excess shall be a liability of Member to the Company payable upon demand but
without interest. A periodic drawing right once determined may be terminated at
any time during the course of the Company’s fiscal year if it appears unlikely
that the Net Cash distributable to Member for that fiscal year shall equal or
exceed Member’s withdrawals.


 


ARTICLE V


 


COMPETITION AND CONFIDENTIALITY


 


5.1                                          Member and
Special Member may engage in any other business, whether or not the same or
similar to the business of the Company, and whether or not such other business
is competitive with the Company. The Company shall have no rights in the income
or profits of that business.


 


5

















 


ARTICLE VI


 


TAX, FINANCIAL AND ACCOUNTING MATTERS; SEPARATENESS


COVENANTS


 


6.1                                          Fiscal Year and
Accounting Method. The fiscal year of the Company for both accounting
and income tax purposes shall be the calendar year, and for both accounting and
income tax purposes the Company shall report its operations and profits and
losses in accordance with the accrual method of accounting, unless a different
method of accounting is required by applicable federal tax laws.


 


6.2                                          Annual Tax
Return and Financial Statements. The accountant for the Company
shall prepare all required tax returns for the Company as of the end of each
fiscal year, including the balance sheet and statement of income and expenses
relating to such fiscal year, and a statement of Member’s distributive share of
the items of income, gain, loss, deduction and credit of the Company for tax
purposes for such fiscal year. The Company shall furnish Member with a copy of
each such tax return and statement on or before the date the Company files its
tax returns for such fiscal year.


 


6.3                                          Tax and
Accounting Matters. All elections with respect to the preparation and
filing of the Company tax returns, the reporting of items of Company income,
gain, loss, deduction and credit, and all other elections which the Company or
Member are entitled to make with respect to Company matters, shall be made only
by the Company. Member shall be the Tax Matters Member for the Company for
income tax purposes. All decisions as to accounting matters shall be made in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods. Member is still required to make all Member
specific elections, as appropriate.


 


6.4                                          Books and
Records. The Company shall maintain a full and accurate set of books and
records at its principal place of business. Member and its duly authorized
representative shall have access to and may inspect and copy any such books and
records at all reasonable times.


 


6.5                                          Bank Account. The Company
shall open and maintain a bank account or bank accounts in the name of the
Company at such bank or banks as Member may determine from time to time. All
funds of the Company not otherwise invested shall be deposited in and withdrawn
from such bank account(s) as Member may determine. Any withdrawals from
such bank account(s) shall require such signature or signatures as Member
may from time to time determine.


 


6.6                                          Separateness
Covenants. The Company covenants that it: 


 


(a)                                  shall not
commingle assets with those of any other entity (except as permitted in Section 6.4(f) of
the Credit Agreement);


 


(b)                                 shall hold its
assets in its own name;


 


(c)                                  shall conduct
its own business in its own name:


 


6

















 


(d)                                 shall maintain
bank accounts, books, records and financial statements in accordance with
generally accepted accounting principles and separate from any other
individual, corporation, partnership, joint venture, limited liability company,
limited liability partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or not a legal
entity, and any governmental authority (“Person”);


 


(e)                                  shall observe
all Company formalities;


 


(f)                                    shall not allow
any other Person to pay its liabilities (except payments made by or from
capital contributed by Member pursuant to Article III or the letters of
credit required under any Project Document (as defined in the Credit Agreement)
which, as of the Closing Date (as defined in the Credit Agreement), is provided
by First Wind Holdings, LLC or any affiliate thereof;


 


(g)                                 shall maintain
adequate capital in light of its contemplated business operations;


 


(h)                                 shall use
separate stationery, invoices and checks;


 


(i)                                     shall maintain
an arm’s-length relationship with its affiliates;


 


(j)                                     shall pay the
salaries of its own employees, if any;


 


(k)                                  shall not
guarantee or become obligated for the debts of any other entity or hold out its
credit as being available to satisfy the obligations of others; 


 


(l)                                     shall not make
any loans to any other Person;


 


(m)                               shall allocate
fairly and reasonably any overhead for shared office space;


 


(n)                                 shall not
pledge its assets for the benefit of any other entity; and


 


(o)                                 shall hold
itself out as a separate entity, with the exception that Company shall not be
considered as a separate entity from First Wind Holdings, LLC or Member for
federal, state, and local income tax purposes, and not fail to correct any
known misunderstanding regarding its separate identity.


 


Further,
the Company shall at all times observe the single purpose entity and
separateness covenants set forth in this Agreement.


 


7

















 


ARTICLE VII


 


MANAGEMENT AND MEMBERS


 


7.1                                          Powers of the
Member. Member shall have all of the powers of the Company and may exercise
all of the rights and powers of a member under the Act. Member shall have full,
exclusive and complete discretion in the management of the business and affairs
of the Company, to make all decisions affecting the business and affairs of the
Company and to do or cause to be done any and all acts deemed by member to be
necessary or appropriate to effectuate the business, purposes and objectives of
the Company at the expense of the Company.


 


7.2                                          Special Member.


 


(a)                                  “Special
Member” means, upon such Person’s admission to the Company as a member of the
Company pursuant to this Section 7.2, Victor A. Duva (or such other Person
as designated by the Member and bound by this Agreement), in such Person’s
capacity as a member of the Company. A Special Member shall only have the
rights and duties expressly set forth in this Agreement.


 


(b)                                 Upon the
occurrence of any event that causes the Member to cease to be a member of the
Company (other than upon continuation of the Company without dissolution upon (i) an
assignment by the Member of all of its limited liability company interest in
the Company and the admission of the transferee pursuant to Sections 8.3 and
9.1, or (ii) the resignation of the Member and the admission of an
additional member of the Company pursuant to Article VIII), Victor A. Duva
(or such other Person as designated by the Member and bound by this Agreement)
shall, without any action of any Person and simultaneously with the Member
ceasing to be a member of the Company, automatically be admitted to the Company
as a Special Member and shall continue the Company without dissolution. The
Special Member may not resign from the Company or transfer its rights as
Special Member unless a successor Special Member has been admitted to the
Company as Special Member by executing a counterpart to this Agreement;
provided, however, the Special Member shall automatically cease to be a member
of the Company upon the admission to the Company of a substitute Member,
appointed by the personal representative of the Person that had been the last
remaining Member. The Special Member shall be a member of the Company that has
no interest in the profits, losses and capital of the Company and has no right
to receive any distributions of Company assets. Pursuant to Section 18-301
of the Act, the Special Member shall not be required to make any capital
contributions to the Company and shall not receive a limited liability company
interest in the Company. The Special Member may not bind the Company. Except as
required by any mandatory provision of the Act, the Special Member shall have
no right to vote on, approve or otherwise consent to any action by, or matter
relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the admission
to the Company of the Special Member pursuant to this Section 7.2, Victor
A. Duva (or such other Person as designated by the Member and bound by this
Agreement) shall execute a counterpart to this Agreement. Prior to his
admission to the Company as Special


 


8

















 


Member,
Victor A. Duva (or such other Person as designated by the Member and bound by
this Agreement) shall not be a member of the Company. The Member shall at all
times designate at least one Person who shall agree to be admitted as the
Special Member, to be bound by this Agreement and to comply with this Section 7.2.


 


7.3                                          Meetings.


 


(a)                             Annual and
Special Meetings. The annual and special meetings of the Member for
the transaction of such business as may properly come before the meeting shall
be held at such place, time and date as shall be designated by the Member from
time to time.


 


(b)                            Actions Without
a Meeting. Notwithstanding any provision contained in this Article VII,
all actions of the Member provided for herein may be taken by written consent
without a meeting. Any such action which may be taken by the Member without a
meeting shall be effective only if the consent is in writing, sets forth the
action so taken, and is signed by the Member.


 


7.4                                          Management
Authority of Members and Officers. Member shall have the full
and exclusive responsibility for the management of the Company, the operation
of the business of the Company, and the performance of the duties described in
this Article VII of this Agreement. Member has delegated its power and
authority to the following President, Secretary and/or Treasurer as officers of
the Company, all of whom could be the same person and who could, but need not,
be a Member of the Company and will have the power and authority provided
herein, unless otherwise specified by Member:


 


	
  President:

  	
  Paul
  Gaynor

  
	
  Secretary:

  	
  Evelyn
  Lim

  
	
  Treasurer:

  	
  Michael
  Metzner

  
	
  Assistant Treasurer:

  	
  Timothy
  Rosenzweig

  
	
  Assistant Treasurer:

  	
  Robert
  S. Schauer

  



 


(a)                                  President. The President
shall be the chief executive officer of the Company, shall preside at all
meetings of the Members, shall have general and active management of the
business of the Company, and shall execute bonds, mortgages, loans, leases and
contracts for the Company, and is authorized to open and sign bank accounts and
to authorize other officers or persons to open and sign such accounts. The
approval of the form and substance of such documents by the Company and the
Members shall be conclusively evidenced by the execution thereof by the
President.


 


(b)                                 Vice President. The Vice
President shall act under the direction and guidance of the President.


 


(c)                                  Secretary. The Secretary
shall record all the proceedings of the meetings of the Members and notice of
all meetings of the Members, and shall


 


9














 


perform
such other duties as may be prescribed by the President. The Secretary is
authorized to execute contracts on behalf of the Company. The approval of the
form and substance of such documents by the Company and the Members shall be
conclusively evidenced by the execution thereof by the Secretary.


 


(d)                                 Treasurer. The Treasurer
shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Company and shall deposit all moneys and other valuable effects in the name
and to the credit of the Company in such depositories as may be designated by
the President. The Treasurer shall disburse the funds of the Company as may be
ordered by the President taking proper vouchers for such disbursements, and
shall render to the President an account of all his transactions as Treasurer
and of the financial condition of the Company. The Treasurer is authorized to
execute contracts on behalf of the Company in furtherance of his rights and
responsibilities contained herein.


 


The foregoing officers shall serve until their respective successors
are chosen by Member or Member removes one or more of the officers so that
Member may resume exercising the power and authority previously delegated to
such officer or officers.


 


7.5                                          Duties of
Loyalty and Care of Member. Member shall devote such
time to the operations of the Company as it, in its sole discretion, deems to
be reasonably required to conduct the Company business and to operate and
manage the Company property in an efficient manner. Member shall use its best
efforts to manage the business and affairs of the Company. The doing of any act
or failure to do any act which may result in a loss to the Company, if done in
good faith and in a manner reasonably believed to be in the best interest of
the Company, shall not subject Member to any liability to the Company.


 


7.6                                          Compensation
for Member. Member may be entitled to compensation for
personal services rendered by it on behalf of the Company in its capacity as
Member. For purposes of this Section 7.6, reimbursement for out-of-pocket
expenses shall not be construed as “compensation”. Member shall be fully
reimbursed by the Company for all out-of-pocket expenses incurred by them on
behalf of the Company.


 


7.7                                          Indemnification. To the
fullest extent permitted by applicable law, Member, Special Member, any
affiliate of Member or Special Member, any officers, directors, shareholders,
partners, members, employees, representatives or agents of Member or Special
Member, or their respective affiliates, or any officer, employee or agent of
the Company or its affiliates (any such Person, a “Covered Person”) shall be
entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or
omitted by such Covered Person in good faith on behalf of the Company and in a
manner reasonably believed to be within the scope of authority conferred on
such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of gross negligence or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity under
this Section shall be provided out of and to the extent


 


10

















 


of
Company assets only, and no Covered Person shall have any personal liability on
account thereof. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Company prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Company of an undertaking by or on behalf of the
Covered Person to repay such amount if it shall be determined that the Covered
Person is not entitled to be indemnified as authorized in this Section.


 


7.8                                          Personal
Liability. Neither Member nor Special Member shall have any
personal liability for the liabilities or obligations of the Company, except,
with respect to Member, to the extent of the capital contributions made or
required to be made by Member to the Company in accordance with the terms of
this Agreement.


 


ARTICLE VIII


 


ADMISSION AND RESIGNATION OF MEMBER


 


8.1                                          Initial Members. All Persons
having executed this Agreement as Members shall be admitted as Members without
any further act on the part of the Company or the other Members.


 


8.2                                          Sole Member. The Company
shall at all times be and remain a single member limited liability company, and
it shall not have more than one Member at any time; nor shall the Member be
entitled to divide or subdivide the Company Interest in any manner whatsoever.


 


8.3                                          Preconditions
to Admission. In no event shall a member be admitted as a Member
of the Company, unless and until:


 


(a)                                  Such Person
agrees to execute this Agreement, as then amended, and such other instruments
as may be required by the Act or which Member deems necessary or appropriate to
confirm and record such Person’s undertaking to be bound by the terms of this
Agreement; and


 


(b)                                 Such Person
agrees to pay all the reasonable expenses, including attorney’s fees, incurred
by the Company in connection with the transfer, if any, and the admission of
such Person as a Member.


 


8.4                                          Assignee of a
Member. If a Person acquiring a Company Interest is not admitted as a Member
of the Company as provided in this Article VIII of this Agreement, then
such Person’s interest in the Company shall be solely that of a rightful
assignee of a Member as provided in the Act.


 


8.5                                          Resignation of
Members. Member shall not resign from the Company prior to the dissolution and
winding up of the Company; provided, however, that any Member transferring its
Company Interest in conformity with the transfer provisions of Article IX
of this Agreement, whether to the Company or to a third party, shall be


 


11

















 


deemed
to have resigned from the Company without violating this Agreement upon and to
the extent of the transfer, whether or not the transferee is admitted as a
Member of the Company.


 


ARTICLE IX


 


TRANSFER OF COMPANY INTERESTS


 


9.1                                          Transfers. Member may
assign (whether by sale, exchange, gift contribution, distribution or other
transfer, including a pledge or other assignment for security purposes) all its
Company Interest. The transferee may be admitted as a Member in accordance with
Section 8.3.


 


ARTICLE X


 


DISSOLUTION


 


10.1                                    Events Causing
Dissolution. The Company shall be dissolved, and its
affairs shall be wound up upon the first to occur of the following: (i) the
termination of the legal existence of the last remaining member of the Company
or the occurrence of any other event which terminates the continued membership
of the last remaining member of the Company in the Company unless the Company
is continued in a manner permitted by this Agreement or the Act or (ii) the
entry of a decree of judicial dissolution under Section 18-802 of the Act.
Upon the occurrence of any event that causes the last remaining member of the
Company to cease to be a member of the Company or that causes the Member to
cease to be a member of the Company (other than upon continuation of the
Company without dissolution upon an assignment by the Member of all of its
Company Interest and the admission of the transferee pursuant to Sections 8.3
and 9.1), to the fullest extent permitted by law, the personal representative
of such member is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of such member
in the Company, agree in writing (i) to continue the Company and (ii) to
the admission of the personal representative or its nominee or designee, as the
case may be, as a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership of such member
in the Company. Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the Member or
Special Member, respectively, to cease to be a member of the Company and upon
the occurrence of such an event, the Company shall continue without
dissolution. Notwithstanding any other provision of this Agreement, each of the
Member and the Special Member waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or a Special
Member, or the occurrence of an event that causes the Member or a Special
Member to cease to be a member of the Company. For purposes of this Agreement, “Bankruptcy”
means, with respect to any Person, if such Person (i) makes an assignment
for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files
a petition or answer seeking for itself any reorganization, arrangement,
composition,


 


12

















 


readjustment,
liquidation or similar relief under any statute, law or regulation, (v) files
an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of this nature, (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of the Person or of all or any substantial part of its properties,
or (vii) if 120 days after the commencement of any proceeding against the
Person seeking reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or regulation, if the
proceeding has not been dismissed, or if within 90 days after the appointment
without such Person’s consent or acquiescence of a trustee, receiver or
liquidator of such Person or of all or any substantial part of its properties,
the appointment is not vacated or stayed, or within 90 days after the
expiration of any such stay, the appointment is not vacated. The foregoing
definition of “Bankruptcy” is intended to replace and shall supersede and
replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the Act.


 


10.2                                    Winding Up. Upon the
dissolution of the Company, Member or, if none, the personal representative of
Member, shall conclude the business of the Company, wind up its affairs,
distribute its assets in liquidation, and file all certificates or notices
required by the Act to evidence such dissolution, liquidation and termination.
Except as otherwise expressly provided for in the Act, all decisions pertaining
to the dissolution of the Company shall be made in the same manner as decisions
made in the ordinary course of the Company’s business.


 


10.3                                    Final
Accounting; Deficit Capital Accounts. Upon the dissolution of
the Company, a final accounting shall be made of the capital account of Member,
adjusted up or down to reflect Member’s proportionate share of the Company’s
net profit or net loss from the time of the last previous accounting to the
date of the dissolution. In the event Member has a deficit balance in its
capital account at the time of the dissolution of the Company, Member shall be
required to contribute sufficient capital to the Company within thirty (30)
days of the date of the dissolution of the Company to eliminate the deficit
balance in its capital account.


 


10.4                                    Priority of
Distributions. Distributions in liquidation of the Company shall
be made in the following order:


 


(a)                    First, those
owing to creditors of the Company, including Members who are creditors of the
Company;


 


(b)                   Second, those
owing to Member other than for capital and profits;


 


(c)                    Third, those
owing to Member in respect of capital; and


 


(d)                   Fourth, those
owing to Member in respect of profits.


 


10.5                                    Payment of
Claims. Upon the dissolution of the Company, the Company shall pay or make
reasonable provisions to pay all claims and obligations of the Company,
including all contingent, conditional or unmatured claims and obligations,


 


13

















 


known
to the Company and all claims and obligations which are known to the Company,
but for which the identity of the claimant is unknown. If the Company has
sufficient assets, such claims and obligations shall be paid in full and any
such provision for payment made shall be made in full. If there are
insufficient assets, such claims and obligations shall be paid or provided for
according to their priority and, among claims and obligations of equal
priority, ratably to the extent of the assets available therefore. Any
remaining Company assets shall be distributed as provided in Section 10.4
of this Agreement.


 


ARTICLE XI


 


GENERAL PROVISIONS


 


11.1                                    Notices. All notices,
claims, instructions, requests, demands, consents, or other communications
which are required or permitted under this Agreement shall be in writing and
shall be deemed to have been properly given if and when sent by first class
United States mail, registered or certified, postage prepaid, return receipt
requested, addressed as follows:


 


If to the Company to:


 


Milford
Wind Corridor Phase I, LLC


c/o
First Wind Energy, LLC


85
Wells Avenue, Suite 305


Newton,
MA 02459


 


or
to such other address as the Person to whom notice is to be given may give
notice in the manner set forth above.


 


11.2                                    Enforceability. The parties
agree that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provisions of this Agreement shall be adjudicated to be invalid, illegal or
unenforceable, such provision of this Agreement shall be deemed amended to
delete therefrom the portion thus adjudicated to be invalid, illegal or
unenforceable, such deletion to apply only with respect to the operation of
such provision of this Agreement in the particular jurisdiction in which such
adjudication is made.


 


11.3                                    Descriptive
Headings. The descriptive headings of the Sections of this
Agreement are inserted for convenience of reference only and shall not control
or affect in any way the meaning, construction, or interpretation of this
Agreement.


 


11.4                                    Governing Law. This
Agreement has been executed in the State of Delaware and shall be governed by,
and construed, interpreted and enforced in accordance with, the laws of the
State of Delaware in all respects.


 


14

















 


11.5                                    Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.


 


11.6                                    Entire Agreement. This Agreement contains
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements or understandings among the
parties hereto with respect thereto. No representation, condition or
understanding not expressed herein shall be binding upon the parties, unless
subsequent to the date hereto and signed by all of the parties hereto. This
Agreement may not be amended or modified except by a written instrument signed
by a majority in interest of the Members.


 


11.7                                    Waiver of Breach. The waiver by any party
hereto of a breach of any provision of this Agreement by another party hereto
must be in writing and shall not operate or be construed as a waiver of any
subsequent breach by such other party.


 


11.8                                    Authorship. No questions of interpretation
or construction concerning this Agreement shall be construed or interpreted for
or against any party based on the consideration of authorship.


 


11.9                                    Time of the Essence. Time is of the essence
of this Agreement.


 


11.10                              Gender. When used in this Agreement,
singular terms include the plural as appropriate in the context, and masculine
terms include the feminine and are gender neutral as appropriate in this
context.


 


11.11                              Agreement in Counterparts. This
Agreement may be executed in several counterparts and withstanding that all the
parties are not signatory to the original or the same counterpart.


 


11.12                              Tax Status. The parties to this Agreement
intend that the Company shall be classified as a partnership for federal, and
to the extent applicable, state and local, income tax purposes, and the parties
agree that the provisions of this Agreement shall be construed and applied in a
manner that will not impair the qualification of the Company as such form of
entity under the applicable provisions of the Internal Revenue Code, or to the
extent applicable, the laws of any state or local tax authorities.


 


*remainder of page intentionally left blank*


 


15

















 


IN
WITNESS WHEREOF, the parties hereto have signed, sealed and delivered this
Agreement effective as of the 22nd day of April,
2009.


 


	
   

  	
  MEMBER:

  
	
   

  	
   

  
	
   

  	
  MILFORD
  WIND CORRIDOR, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:
  Evelyn Lim

  
	
   

  	
  Title:
  Secretary

  



 


Second Amended and Restated


Limited Liability Company Agreement


Milford Wind Corridor Phase I, LLC


 

















 


	
   

  	
  SPECIAL
  MEMBER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Victor A. Duva

  
	
   

  	
  Victor
  A. Duva

  



 


Second Amended and Restated


Limited Liability Company Agreement


Milford Wind Corridor Phase I, LLC


 

















 


	
   

  	
  MEMBER:

  
	
   

  	
   

  
	
   

  	
  MWCI
  HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:
  Evelyn Lim

  
	
   

  	
  Title:
  Secretary

  



 


Second Amended and Restated


Limited Liability Company Agreement


Milford Wind Corridor Phase I, LLC


 

















 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption Agreement (this “Assignment”) is made and
entered into as of April 22, 2009 (the “Effective
Date”), by and between Milford Wind Corridor, LLC, a Delaware limited
liability company (“Assignor”), and MWCI Holdings, LLC, a
Delaware limited liability company (“Assignee”).


 


RECITALS


 


WHEREAS,
Assignor is the record and beneficial owner of one-hundred percent (100%) of
the Company Interests (as defined in the LLC Agreement) (the “Assigned
Interests”) of Milford Wind Corridor Phase I, LLC, a Delaware
limited liability company (the “Project Company”), formed under
the provisions of the Delaware Limited Liability Company Act, as amended from
time to time (the “Act”), pursuant to that certain Certificate of
Formation filed with the Delaware Secretary of State’s office on November 1,
2006 and subject to the terms and conditions set forth in that certain Second
Amended and Restated Limited Liability Company Agreement for Milford Wind
Corridor Phase I, LLC dated April 22, 2009 (the “LLC  Agreement”).


 


WHEREAS,
Assignor has agreed to transfer the Assigned Interests to Assignee and Assignee
has agreed to accept the Assigned Interests and assume all of the obligations
and liabilities with respect to the Assigned Interests from Assignor.


 


WHEREAS,
Assignor now desires to transfer the Assigned Interests to Assignee.


 


NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee do hereby agree as
follows:


 


AGREEMENT


 


1.                                       Assignor hereby
transfers, assigns, conveys, and delivers, to Assignee all of Assignor’s right,
title and interest in and to the Assigned Interests and Assignee hereby accepts
the Assigned Interests.


 


2.                                       Assignee agrees
to execute the LLC Agreement and agrees to comply with and be bound by all
terms, covenants and conditions of the LLC Agreement.


 


3.                                       Assignee agrees
to pay all the reasonable expenses, including attorney’s fees, incurred by the
Project Company in connection with this Assignment, if any, and the admission
of Assignee as a member of the Project Company.


 


4.                                       Assignor and Assignee covenant and agree
that they will at any time and from time to time do, execute, acknowledge and
deliver any and all other acts, deeds, assignments, transfers or conveyances or
any other documents or amendments that the other party deems reasonably
necessary or proper to more effectively carry out the assignment and assumption
intended to be made hereunder.


 

















 


5.                                  This Assignment
and all of the provisions hereof shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.


 


6.                                  This Assignment
shall be governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to conflict of law principles).


 


7.                                  This Assignment
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.


 


[Signatures on following page]


 


2

















 


IN
WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the
date first above written.


 


	
   

  	
  Assignor:

  
	
   

  	
   

  
	
   

  	
  MILFORD
  WIND CORRIDOR, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:
  Evelyn Lim

  
	
   

  	
  Title:
  Secretary

  



 


 


	
   

  	
  Assignee:

  
	
   

  	
   

  
	
   

  	
  MWCI
  HOLDINGS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:
  Evelyn Lim

  
	
   

  	
  Title:
  Secretary