Exhibit 10.13


 


EXECUTION
VERSION


 


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


 


SECOND
AMENDED AND RESTATED SECURED PROMISSORY NOTE


 


	
  $43,063,720

  	
  July 17,
  2009

  



 


For value received, FIRST WIND ACQUISITION IV, LLC,
a Delaware limited liability company (the “Borrower”), hereby
unconditionally promises to pay to the order of HSH NORDBANK AG, NEW YORK
BRANCH (the “Lender” and together with any other lenders added from time
to time, the “Lenders”), the aggregate principal amount of FORTY-THREE
MILLION SIXTY-THREE THOUSAND SEVEN HUNDRED TWENTY U.S. DOLLARS ($43,063,720)
(or such other amount as shall actually be advanced hereunder), together with
all accrued and unpaid interest at the Interest Rate (as defined below), on or
prior to the Maturity Date (as defined below) pursuant to the provisions of
this Second Amended and Restated Secured Promissory Note (this “Note”).


 


The Borrower promises to pay interest on the outstanding principal
amount of each Loan advanced under this Note for the period from and including
the date of such advance to but excluding the date such advance shall be repaid
in full, at an interest rate per annum equal to LIBOR plus the Applicable
Margin (the “Interest Rate”). Any principal not repaid when due shall
bear interest from and including the date due to but excluding the date on
which such amount is repaid in full at a rate per annum equal to the Default
Rate. All accrued and unpaid interest and accrued and unpaid fees hereunder
shall be payable on the Maturity Date. Interest shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed.


 


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


 


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


 


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


 

















 


1.                                      Definitions and Interpretation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Applicable Margin” shall mean 4.75%.


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Clipper” shall mean Clipper Turbine Works, Inc.,
a Delaware corporation.


 


“Clipper Fleet Services” shall mean Clipper
Fleet Services, Inc., a Delaware corporation.


 


“COD” shall mean, with respect to any
Project, the commercial operation date of such Project, which shall be deemed
to occur when at least 90% of the Turbines to be installed at such Project have
been installed (with installation and start-up of the remaining Turbines being


 


3

















 


diligently
pursued), energized, connected to the grid and otherwise ready to generate
electricity for commercial sale, and all such installed Turbines shall have
qualified for PTCs.


 


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


 


“Collateral” shall mean all assets which are subject or required
to become subject to the security interests or liens granted by the Borrower,
the Intermediate Holding Companies, Corresponding Project Companies, and such
other entities as set forth in Schedule 3, as applicable, under any of
the Security Agreements, including, without limitation (a) all right,
title and interest of the Borrower and the Project Companies under the Material
Project Documents, as set forth on Schedule 5, then in effect with
respect to the Projects, (b) the Pledged Equity Interests, and (c) all
permits then in effect with respect to the Projects.


 


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


 


“Commitment” shall mean the commitment of the Lender to make
Loans to the Borrower under, and on the terms of, this Note up to the aggregate
amount of Forty-Three Million Sixty-Three Thousand Seven Hundred Twenty Dollars
($43,063,720).


 


“Commitment Fee” shall mean an amount equal
to one-half percent (0.50%) per annum on the average daily unutilized portion
of the Commitment.


 


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


 


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


 


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


 


“Corresponding Term Loans” shall mean, with respect to any
Turbine, the Loans the proceeds of which were used to finance in whole or in
part the purchase of such Turbine by the Borrower or the reimbursement of
amounts paid to the turbine supplier under the Turbine


 


4

















 


Supply
Documents for such Turbine and related services as described in the Turbine
Supply Documents.


 


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


 


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


 


“Default Rate” shall mean, in respect of any
amount not paid when due, the rate per annum equal to the sum of the applicable
interest rate set forth in Section 2(e)(i) plus two percent
(2.00%) per annum; provided, that the Default Rate shall not exceed the
maximum rate of interest permitted to be charged in accordance with applicable
law.


 


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


 


“Documentation” shall have the meaning assigned to such term in Section 3(a)(xiii).


 


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


 


“Effective Date” shall have the meaning assigned to such term in
Section 3(a).


 


“Eligible Qualified Projects” shall mean the Projects identified
on Schedule 4, as adjusted pursuant to Sections 5(x) and (y).


 


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


 


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


 


5

















 


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


 


“FEIN” shall have the meaning assigned to such term in Section 3(a)(xiii).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Guarantees” shall mean the Parent Guaranty
and the VW Guaranty.


 


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


 


“Holdback Percentage” shall mean (a) with
respect to the Sheffield Project, 5% and (b) with respect to the Steel
Winds II Project, 0%.


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


“Loan Availability Period” shall mean the
period from and including the Effective Date to but excluding the earlier of (a) the
Maturity Date and (b) the date of termination of the Commitment.


 


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


 


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


 


8

















 


“Material Adverse Effect” shall mean any
event, condition or occurrence of whatever nature that would result in a
material adverse change in (a) the business, results of operations,
condition or financial condition of the Borrower, the Corresponding Project
Companies taken as a whole, or First Wind Holdings, (b) the ability of the
Borrower, each Corresponding Project Company or First Wind Holdings to perform
its respective obligations under the Basic Documents to which such entity is a
party, or (c) the validity, priority and enforceability of the Lenders’
liens on the Collateral.


 


“Material Project Documents” shall mean each
of the following project documents executed and delivered with respect to a
Project: (a) the project documents listed on Schedule 5, (b) any
Commodity Hedge Agreement, (c) an interconnection agreement, (d) all
necessary real estate documents for the Project, (e) the Turbine Supply
Agreements (including the Turbine Supply Agreements assigned and transferred to
any Eligible Qualified Project), (f) a warranty agreement for the related Project,
(g) a service agreement for the related Project, (h) an operations
and maintenance agreement, and (i) any other project documents, in the
case of clauses (f), (g), (h) and (i), necessary for the development,
construction, ownership and operation of the Project, including any power
purchase agreements, balance of plant contracts or equity capital contributions
agreements.


 


“Maturity Date” shall mean June 30,
2010.


 


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


 


(Value less
Holdback Amount) multiplied by Advance
Rate


 


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


 


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


 


9

















 


subsidiaries
determines in good faith should be reserved for post-closing adjustments and
indemnities; and (b) with respect to any debt or equity financing, the
aggregate cash proceeds actually received by First Wind Holdings and its
subsidiaries pursuant to such debt or equity financing, net of (i) the
costs relating to such financing (including sales and underwriter’s commission),
(ii) the repayment of corresponding term loans including accrued interest
and fees thereon, and (iii) with respect to any financing by a Project
Company or its immediate parent company, an amount for (A) a working
capital reserve equal to the aggregate budgeted operating expenditures for such
Project Company for the next succeeding three (3) months and (B) any
reserves required by the terms of contractual limitations under joint ventures
with non-Affiliates, tax equity documents or other financing arrangements in
respect of such Project Company.


 


“Net Top-Up Amount” shall mean the net amount
of the aggregate Top-Up Amounts for all Turbines (as shown on the Top-Up
Schedule then in effect) as of any Top-Up Date.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Original Note” shall have the meaning assigned to such term in
the preamble to this Note.


 


10






 










 


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


 


“Permitted Indebtedness” shall mean (a) the Loan and other
Indebtedness under the Basic Documents; (b) the Indebtedness incurred
under any of the Turbine Supply Documents; (c) trade payables or other
similar Indebtedness incurred in the ordinary course of business; (d) Indebtedness
incurred under the Interest Rate Protection Agreements; (e) intercompany
loans to the Borrower by First Wind Holdings, provided in each case that such
loans are unsecured and are subordinated in all respects to the Loan hereunder
pursuant to an intercreditor agreement that is similar in form and in substance
to the Intercreditor Agreement; (f) Indebtedness of the Borrower secured
by second liens on Turbines that is at all times subordinated to the
Obligations on terms satisfactory to the Administrative Agent in its sole discretion;
provided, that subject to the Administrative Agent’s approval, the
Borrower may pay current interest thereon on such terms acceptable to the
Administrative Agent; (g) the financing of any Eligible Qualified Project
hereunder for which the Corresponding Term Loans have been repaid in full and
all excess proceeds of such financing, if any, are distributed to First Wind
Holdings, deposited in accounts subject to the lien of the Security Agreements,
as defined in the Parent Guaranty, and applied in accordance with Section 3(d) thereunder;
and (h) other Indebtedness permitted under the Parent Guaranty.


 


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


 


11

















 


for
the transmission line for any project utilizing the Turbines, and which do not
in any case (i) detract from the value of the property subject thereto or (ii) interfere
with the ordinary conduct of the Borrower’s business, in either case (i) or
(ii), such that it would have a Material Adverse Effect on the Borrower’s
ability to comply with its obligations under the Basic Documents to which it is
a party; (i) any other liens, easements, zoning restrictions,
rights-of-way or similar encumbrances on real property imposed by law or
arising in the ordinary course of business but that would not have a Material
Adverse Effect on the Borrower’s ability to comply with its obligations under
the Basic Documents to which it is a party; (j) liens arising out of
judgments or awards that do not otherwise constitute an Event of Default so
long as an appeal or proceeding to review is being prosecuted in good faith and
for the payment of which adequate reserves have been set aside or are secured
by a bond reasonably acceptable to the Administrative Agent; (k) liens
junior to the liens created under the Security Agreements that are granted to
HSHN, in its capacity as Collateral Agent; and (1) liens on the Turbines
in connection with Indebtedness described in clause (f) of the definition
of “Permitted Indebtedness” that are at all times subordinated to the liens
created under the Security Agreements on terms reasonably satisfactory to the
Administrative Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Prudent Utility Practices” shall mean those
practices, methods, equipment, specifications and standards of safety and
performance, of which there may be more than one, and as the same may change
from time to time, as are generally used by privately owned wind generated
electric power generation facilities, which in the exercise of reasonable
judgment and


 


12

















 


in
light of the facts known at the time the decision was made, are considered
good, safe and prudent practices utilized in connection with the design,
construction, operation, maintenance, repair and use of wind generation
electrical and other equipment, facilities and improvements of such wind
generated electric power generation facilities, and are in accordance with
applicable law and generally accepted national standards of professional care,
skill, diligence and competence applicable to such practices, with commensurate
standards of safety, performance, dependability and efficiency.


 


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


 


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


 


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


 


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


 


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


 


“Release Event” means the occurrence of all of the following: (i) the
closing of a Subject Disposition or one or more equity or debt (junior to the
Lenders, as applicable to the borrowing entity, in all respects) financings
resulting in Net Cash Proceeds of $75,000,000 or more in the aggregate for all
such transactions; provided, that all Net Cash Proceeds of such Subject
Disposition, project financing, or equity or junior debt financing are (x) received
by First Wind Holdings, and (y) deposited into accounts of First Wind
Holdings, subject to the liens granted by the security agreements in respect of
the First Wind Holdings Loan Agreement; (ii) the Administrative Agent
shall have received a repayment in respect of outstanding Corresponding Term
Loans under the FWA Note in an amount equal to $41,000,000 (which amount shall
be reduced on a pro rata basis in accordance with any repayment(s) of
Corresponding Term Loans thereunder (relative to the amount of the Term Loan
Commitment as of the Effective Date) that are received by the Administrative
Agent subsequent to the Effective Date thereof), upon which repayment of the
portion of the Term Loan Commitment shall be terminated pursuant to Section 2(c).


 


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


 


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


 


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


 


“Subject Disposition” shall mean the sale,
assignment, lease or other transfer or disposition of all or substantially all
of the assets of a Project for value except that none of the


 


13

















 


following
shall constitute a Subject Disposition: (a) any sale, assignment, lease or
other transfer or disposition of assets to First Wind Holdings or its
subsidiaries, and (b) any sale or other transfer or disposition by way of
casualty, loss, damage, destruction or other similar loss or any taking by a
Governmental Authority for public or quasi-public use under the power of
eminent domain, by reason of public improvement or condemnation or in any other
manner that displaces the owner of such assets.


 


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


 


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


 


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


 


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


 


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


 


TMDCE less
TMDCT less the Contributed Equity.


 


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


 


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


 


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


 


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


 


14

















 


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


 


“Turbine Supply Documents” shall mean, collectively or
individually, the documents as set out in Schedule 10 hereto.


 


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


 


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


 


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


 


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


 


“VW Guaranty” shall mean that certain Amended
and Restated Guaranty and Security Agreement, dated as of December 12,
2008, between Vermont Wind, LLC, and the Collateral Agent.


 


“Withholding Certificate (Effectively Connected)”
shall have the meaning assigned to such term in Section 2(k).


 


“Withholding Certificate (Portfolio Interest)”
shall have the meaning assigned to such term in Section 2(k).


 


“Withholding Certificate (Treaty)” shall have
the meaning assigned to such term in Section 2(k).


 


(b)                                 Certain Rules of Interpretation.


 


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


 


15

















 


the
case of any government authorities, Persons succeeding to their respective
functions and capacities.


 


2.                                       Commitment; Repayment; Prepayment.


 


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


 


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


 


(ii)                                                          [Reserved]; and


 


(iii)                                                       Immediately
after any borrowing, the principal amount of the Corresponding Term Loans for a
Project shall not exceed the portion of the Commitment that corresponds to such
Project as set forth on the attached Schedule 13; provided that upon any
permitted reallocation of the Turbines hereunder, the portion of the Commitment
that corresponds to such reallocated Turbines shall automatically and
concurrently transfer to the Project to which the Turbines have been
reallocated.


 


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


 


(c)                                   Change in
Commitment.


 


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


 


16

















 


(ii)                                 Except for the
Borrower’s rights under Section 2(b), concurrently with the
repayment in full of the Corresponding Term Loans (including all accrued
interest and fees) for any Project hereunder, the portion of the Commitment
that corresponds to such Project shall automatically be cancelled. The portion
of the Commitment, once terminated or reduced under this Section 2(c)(ii),
may not be reinstated.


 


(d)                                  Fees.  The Borrower shall pay to the Administrative
Agent for the account of the Arranger the bank fees as required pursuant to the
Fee Letter. The Administrative Agent shall provide the Borrower with a notice
setting out the amount of any fees and interest to be paid (together, in the
case of interest, with a calculation of the derivation of such amount promptly
after the relevant LIBO Rate is determined) prior to the relevant Interest
Payment Date on which such payment is to be made. The Commitment Fee shall be (i) paid
in arrears by the Borrower to the Administrative Agent for the account of each
Lender pro  rata,
on each Quarterly Date during the Loan Availability Period and on
the Maturity Date, as applicable, and (ii) calculated on the basis of a
year of 360 days for the actual number of days elapsed.


 


(e)                                   Interest.


 


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


 


(ii)                                                          All interest
accrued pursuant to Section 2(e)(i) shall be due and payable
to the Administrative Agent for the account of the Lenders as follows: (A) with
respect to the LIBO Rate Loans: (i) at the end of each LIBO Rate Interest
Period and (ii) on the Maturity Date, and (B) with respect to the
Base Rate Loans: (i) on each Quarterly Date and (ii) on the Maturity
Date.


 


(iii)                                                       The Borrower
shall have the right, upon delivery of a three (3) Business Days’ prior written
notice thereof to the Lender, to convert Loans of one Type into Loans of
another Type or to continue Loans of the same Type, subject to Section 2(f),
provided, however, that, upon the occurrence and during the
continuance of an Event of Default, the Lender may suspend the Borrower’s right
to borrow any LIBO Rate Loans, to convert any Base Rate Loan into a LIBO Rate
Loan and/or to continue any LIBO Rate Loans, and all LIBO Rate Loans then
outstanding shall be automatically converted (on the last day of each
respective LIBO Rate Interest Period) into Base Rate Loans.


 


17

















 


(f)                                     Yield
Protection.


 


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


 


(ii)                                                          If, after the
date of this Note, the adoption or change in any applicable law or a change in
the application or requirements thereof (whether such change occurs in
accordance with the terms of such applicable law or as a result of an
amendment) makes it illegal or unlawful for any Lender to make or maintain any
LIBO Rate Loan, then, upon the delivery of a written notice describing such
conditions to the Borrower, (A) the Borrower’s right to request, and such
Lender’s obligation to make, any LIBO Rate Loans shall be suspended for as long
as such condition remains in effect, and (B) in the event such Lender
notifies the Borrower that such Lender may not lawfully continue to fund and
maintain such LIBO Rate Loans, the Borrower shall, at the request of such
Lender, at the end of the then current LIBO Rate Interest Period, convert such
Loans into Base Rate Loans.


 


(iii)                                                       If, after the
date of this Note, any change in laws applicable to any Lender (A) subjects
such Lender to any tax, duty or other charges with respect to Loans or changes
the basis of taxation with respect to repayment of the Loans (other than taxes,
duties or other charges or changes in the basis of taxation on the overall net
income of such Lender), (B) imposes any additional reserve, special
deposit or other similar requirements for reserves held by the Lender with
respect to the Loans (without duplication of any requirement under Section 2(f)(iii)(C)),
(C) affects the amount of capital required to be maintained by such Lender
with respect to the Loans or Commitments, or (D) otherwise increases the
cost to such Lender of making, renewing and maintaining any Loan or any
Commitment, then the Borrower shall, from time to time, upon demand of such
Lender (accompanied by a certificate from such Lender setting forth in
reasonable detail the incurred costs), absent manifest error, pay to such
Lender additional amounts sufficient to reimburse or compensate such Lender for
such additional costs.


 


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


 


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


 


18

















 


(i)                                     Prepayments.


 


(i)                                                             Optional Prepayments.  The Borrower
shall have the right to make optional prepayments of the outstanding principal
of the Loan at any time and in any amount to the Administrative Agent for the
account of each Lender; provided, that the Borrower shall give the
Administrative Agent irrevocable notice of any such optional prepayment by
12:00 noon New York time on the Business Day prior to the date of such proposed
prepayment (which date shall be a Business Day); provided, further,
that if such date specified in such notice as the prepayment date is not the
Interest Payment Date for any such LIBO Rate Loans to be prepaid, the Borrower
shall be obligated to pay any and all breakage fees or costs incurred by the
Administrative Agent in connection with any such optional prepayment upon
receiving a demand from the Administrative Agent (accompanied by a certificate
from the Administrative Agent setting forth in reasonable detail such breakage
fees and costs), which shall be conclusive absent manifest error. Prepayments
made pursuant to this Section 2(i)(i) shall be applied first,
to accrued and uncapitalized fees with respect to the Loan, second, to accrued
and uncapitalized interest with respect to the Loan, and last, to the
outstanding principal amount of the Loan otherwise payable on the Maturity
Date. The principal amounts prepaid under this Section 2(i)(i) may
not be reborrowed.


 


(ii)                                                          Mandatory Prepayments.


 


(A)                              [Reserved.]


 


(B)                                Quarterly Top Up.  Within five (5) Business
Days after each Top-Up Date occurring on or after December 15, 2009, the
Borrower shall prepay Loans in an amount equal to the portion of the Net Top-Up
Amount (if such amount is positive) as of such Top-Up Date. The Top-Up Schedule
shall be delivered to the Administrative Agent five (5) Business Days
prior to the Top-Up Date. The amount of any prepayment pursuant to this Section 2.2(i)(ii)(A) shall
be allocated to the respective Corresponding Term Loans for the relevant
Turbines unless the total amount of such prepayments being made such date is
less than the Net Top-Up Amount, in which case the amount of such prepayment
shall be applied to the outstanding Corresponding Term Loans in such manner as
the Administrative Agent, in its sole discretion, may determine. The
Administrative Agent shall give the Borrower prompt notice of how each
prepayment under this Section 2.2(i)(ii)(A) was applied to the
outstanding Corresponding Term Loans in respect of each Turbine.


 


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


 


(D)                               Application
of Payments.  Prepayments
made pursuant to this Section 2(i)(ii) shall be applied first,
to accrued and unpaid interest with respect to the applicable Loan, and second,
to the outstanding principal amount of the applicable Loan otherwise payable on
the Maturity Date. For the avoidance of doubt, proceeds of any financing in
connection with Turbines supplied under the Turbine Supply Documents shall be
used to prepay the Loans under this Section 2(i)(ii).


 


(j)                                     Scheduling of Payments.  The Borrower
authorizes the Administrative Agent to record the date and amount of the Loans
made by each Lender and of each repayment


 


19

















 


or
prepayment of principal thereunder, and the Borrower agrees that all such
notations shall constitute prima facie evidence of the matters noted in the
absence of manifest error. No failure to make any such notations, nor any
errors in making any such notations, shall affect the validity of the
Borrower’s obligations to repay the full unpaid principal amount of the Loan.


 


(k)                                  Withholding
Certificates.  The
Administrative Agent, on the date hereof, and each Lender, upon becoming a
Lender hereunder, and each Person to which any Lender grants a participation
(or otherwise transfers its interest in this Agreement), agrees that it will
deliver, as soon as commercially practicable, to the Borrower and the
Administrative Agent (and the Administrative Agent agrees that it will deliver
to the Borrower)(i) in the case of the Administrative Agent, Form W-8IMY
(together with any withholding statement required by applicable law) in respect
of amounts to be received for or on account of the Lenders and Form W-8ECI
in respect of amounts to be received for its own account, (ii) in the case
of a Lender or Person that is a United States person (as defined in Section 7701(a)(30)
of the Code), a copy of a United States Internal Revenue Service Form W 9;
or (iii) in the case of a Lender or Person that is not a United States
person, a duly completed and executed letter in the form of Exhibit C-1, Exhibit C-2
or Exhibit C-3 (Forms of “Withholding Certificate (Treaty)”,
“Withholding Certificate (Effectively Connected)” and “Withholding Certificate
(Portfolio Interest)”) as appropriate, and two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI or successor
applicable form, as the case may be, certifying in each case that the
Administrative Agent or Lender is entitled to receive payments under this Note
without deduction or withholding of any United States federal income or
withholding taxes and including, in each case, a U.S. taxpayer identification
number (“TIN”) if required by such form or otherwise necessary to obtain
the benefits being claimed. Each Lender which delivers to the Borrower and the
Administrative Agent a Form W-8BEN or W-8ECI pursuant to the preceding
sentence further undertakes to deliver to the Borrower and to the
Administrative Agent further copies of said letter and Form W-8BEN or
W-8ECI, or successor applicable forms, or other manner of certification or
procedure, as the case may be, on or before the date that any such letter or
form expires or becomes obsolete or within a reasonable time after gaining
knowledge of the occurrence of any event requiring a change in the most recent letter
and forms previously delivered by it to the Borrower and the Administrative
Agent, and such extensions or renewals thereof as may reasonably be requested
by the Borrower or the Administrative Agent, certifying in the case of a Form W-8BEN
or W-8ECI that such Lender is entitled to receive payments under this Note and
the other Basic Documents without deduction or withholding of any United States
federal income or withholding taxes, unless in any such cases an event
(including any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent a Lender from duly completing
and delivering any such letter or form with respect to it and such Lender
advises the Borrower that it is not capable of receiving payments without any
deduction or withholding of United States federal income or withholding tax. In
the event that any Lender fails or is unable to satisfy the provisions of this Section 2(k),
the Borrower, the Administrative Agent and such Lender shall cooperate to find
another Person to be substituted for such Lender in the manner provided in Section 10
hereof.


 


(l)                                     Extension
of Interest Periods.  Upon the
expiration of an Interest Period on any Loan, the Borrower may extend such
Interest Period by giving the Lender an irrevocable


 


20

















 


Notice
of Extension at least three (3) Business Days prior to such extension,
which shall include an option to elect a different Interest Period duration. If
the Borrower fails to give timely notice of an election to continue such Loan,
such Loan shall be continued automatically for an Interest Period of one (1) month’s
duration at the end of the applicable Interest Period with respect thereto.
Notwithstanding any other provision of this Note, the Borrower shall not be
entitled to request, or elect to continue, any Loan if the Interest Period
requested would end after the Maturity Date.


 


3.                                       Conditions Precedent.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21






 










 


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


 


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


 


(ix)                                the
Administrative Agent shall have received UCC search reports of a recent date
before the Effective Date with respect to each Person that shall become an
Obligor as of the Effective Date, satisfactory to it, for each of the
jurisdictions in which the UCC financing statements are intended to be filed in
respect of the Collateral;


 


(x)                                   The
Administrative Agent shall have received litigation and docket search reports
of a recent date before the Effective Date, satisfactory to the Administrative
Agent and the Lenders with respect to each Person that shall become an Obligor
as of the Effective Date, for each of the jurisdictions in which such Obligor
has a main place of business;


 


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


 


(xii)                             the fees
described in Section 2(d) that are due and payable on the
Effective Date shall have been paid to HSHN on or prior to the Effective Date,
in full, in immediately available funds;


 


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


 


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


 


22

















 


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


 


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


 


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


 


(ii)                                  Both
immediately prior to the making of any Loan and also immediately after giving
effect to the intended use of such Loan the conditions of Section 2(a) have
been satisfied;


 


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


 


(iv)                              each Basic
Document and each Turbine Supply Document delivered pursuant to this Section 3(b) to
which the Borrower or any Corresponding Project Company is a party shall be in
full force and effect and shall constitute a legally valid and binding
obligation of the Borrower and each Corresponding Project Company, enforceable
against such Persons in accordance with its respective terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors’ rights
generally and the application of general principles of equity;


 


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


 


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


 


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


 


23

















 


4.                                       Representations.


 


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


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


(h)                                Neither the Borrower nor any
Corresponding Project Company has conducted any business other than (i) the
business contemplated by the Basic Documents and the Turbine Supply Documents, (ii) the
entrance into and performance of its obligations under this Note and the
Interest Rate Protection Agreements and (iii) the performance of the
activities contemplated by Section 5(a). Neither the Borrower nor
any Corresponding Project Company has any Indebtedness other than Permitted
Indebtedness. All material liabilities and assets of the Borrower are set forth
on Schedule 9 and it is not a party to nor bound by any material
contract other than the Basic Documents and the Turbine Supply Documents.


 


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


 


(j)                                    All of the Turbine Supply
Documents in effect as of the Effective Date are set forth on Schedule 10.


 


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


 


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


 


25

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(t)                                    Subject to Schedule 12,
each lien created and perfected under the Collateral Documents in favor of the
Collateral Agent, on behalf of the Lenders, is and has been


 


26

















 


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


 


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


 


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


 


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


 


5.                                       Covenants.  The Borrower hereby covenants and agrees that
until the Commitments have been terminated and all of the Loans have been paid
and performed in full, the Borrower shall, unless the Administrative Agent (at
the direction of the Majority Lenders) waives compliance in writing, perform
all of the covenants set forth in this Section 5:


 


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


 


(b)                                 Additional Information.  The Borrower
shall promptly provide such information regarding any Project utilizing the
Turbines, and the financial affairs of the Borrower or First Wind Holdings as
shall be reasonably requested by the Administrative Agent; provided that
if any such requested information is not in the possession of the Borrower, the
Borrower shall only be obligated to use commercially reasonable efforts to obtain
such requested information from third parties.


 


(c)                                  Books and Records.  The Borrower shall keep and maintain the books
of account and the financial records for itself and each Corresponding Project
Company at its address identified on the signature pages to this Note in
accordance with GAAP. The


 


27

















 


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


 


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


 


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


 


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


 


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


 


(h)                                 Turbine Supply Document.  The Borrower
shall not (and shall cause each Corresponding Project Company not to), without
the prior written consent of the Administrative Agent, (i) enter into any
new Turbine Supply Document, (ii) cancel or terminate, or accept or
consent to a cancellation or termination of, any Turbine Supply Document to
which it is a party, or (iii) amend, supplement or modify in any material
respect, or enter into any material amendment, supplement or modification to,
any Turbine Supply Document to which it is a party. The Borrower shall provide
the Administrative Agent promptly after execution thereof by the Borrower or
any Corresponding Project Company, as applicable, with copies of


 


28

















 


each
Turbine Supply Document and any amendment or other modification or waiver of
compliance with any Turbine Supply Document.


 


(i)                                     Maintenance of Property.


 


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


 


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


 


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


 


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


 


(l)                                     Transfer of Membership Interests.  The Borrower
shall not cause, make, suffer to exist, permit or consent to any creation,
sale, assignment or transfer of (i) any direct ownership interests of
First Wind Holdings in the Borrower; or (ii) any direct or indirect
ownership interests of the Borrower or First Wind Holdings in any Corresponding
Project Company, except, in each case, with the Majority Lenders’ prior written
consent; provided, however, that solely with respect to the
assignment or transfer set forth in sub-clause (ii) above, no consent of
the Majority Lenders shall be required for transfers of interests in a
Corresponding


 


29

















 


Project
Company if all Corresponding Term Loans (including all principal, interests and
fees) in respect of Turbines installed or to be installed at the Project owned
by such Corresponding Project Company have been repaid in full.


 


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


 


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


 


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


 


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


 


(iii)                               any Default or
Event of Default;


 


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


 


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


 


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


 


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


 


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


 


(o)                                 Investments; Sale of Assets.  Other than as
permitted under Section 5(v), the Borrower shall not, without the
prior written consent of the Administrative Agent, (i) make an investment
in any of its Affiliates, (ii) transfer, sell, lease or assign any of its
property to any of its Affiliates, or (iii) enter into any contract or
agreement under which it incurs liabilities to any of its Affiliates, except
administrative services agreements or other similar types of


 


30

















 


agreements
entered into in the ordinary course of business and upon fair and reasonable
terms no less favorable to the Borrower than it would obtain in a comparable
arm’s length transaction with a party not an Affiliate of the Borrower.
Additionally, Borrower must give Administrative Agent notice of any
transactions with any Affiliate of the Borrower or First Wind Holdings and
copies of all relevant documents in connection therewith.


 


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


 


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


 


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


 


(s)                                 Quarterly
Financial Statements.  The Borrower
shall provide to the Administrative Agent as soon as available and in any event
within 45 days after the end of each of the first three quarterly fiscal
periods of each fiscal year of the Borrower, unaudited consolidated statements
of income, operations and cash flows of the Borrower, First Wind Holdings and
their respective subsidiaries, for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet at the end of such period, setting forth in
each case in comparative form the corresponding figures for the corresponding
period in the preceding fiscal year accompanied by a certificate of an
authorized officer of the Borrower and First Wind Holdings, respectively, which
certificate shall state that such financial condition and results of income,
operations and cash flows of the Borrower, First Wind Holdings and their
respective subsidiaries, were prepared in accordance


 


31














 


with
GAAP, consistently applied, as at the end of and for such period (subject to
normal year-end audit adjustments).


 


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


 


(u)                                 Warranties.
The Borrower shall cause each Corresponding Project Company to obtain
and maintain extended warranties under the Turbine Supply Documents for all
Turbines with a duration of not less than 24 months from the expected COD for
such Turbines, so long as such warranty coverage is available on commercially
reasonable terms, or, if not available on commercially reasonable terms,
warranties for such lesser period as are obtainable on commercially reasonable
terms. Any Turbine for which the warranty coverage falls below 24 months from
the expected COD for such Turbine shall be reappraised in accordance with the
Appraisal Procedures (a copy of which appraisal shall be promptly provided to
the Borrower by the Administrative Agent), taking into account the diminished
value resulting from such lessened warranty coverage, and the Corresponding
Term Loan for such Turbine shall be subject to mandatory prepayment on the
subsequent Top-Up Date based on such reappraisal pursuant to Section 2(i)(i),
if applicable.


 


(v)                                Turbines. The Borrower
shall not, and shall not allow any Corresponding Project Company to, Transfer
any Turbines or any of its rights or interests in or under any Turbine Supply
Documents to any Person, other than: (i) to the Collateral Agent pursuant
to the Security Agreements, (ii) subject to this Section 5(v),
to an Eligible Qualified Project Company or a Qualified Project Company, only
upon a prepayment of the Loans as contemplated by Section 2(i)(ii),
or (iii) to a third party, only upon the prepayment in full of the
Corresponding Term Loans as contemplated under Section 2(i)(ii); provided,
in any event, that such allowed Transfer of Turbines with respect to any
Project or Turbine Supply Document must include all of the Turbines associated
with such Project or Turbine Supply Document, as applicable, and prepayment of
all Corresponding Term Loans for such Turbines. The Borrower shall not, and
shall not allow any Corresponding Project Company to, erect, install, assemble,
remove from storage or project sites, transport (provided that transportation
of the Turbine from the manufacturer to a project site is expressly permitted)
or take any other actions or fail to take any action that would reasonably be
likely to reduce the value or marketability of any such Turbines financed under
the Loan (including storage of Turbines in any material manner or for any
period that would reasonably be likely to result in a material loss or
diminishment of such Turbine’s warranty) at any project site (including a
project site of any Affiliate of the Borrower) or that could materially impair
the lien of the Security Agreements.


 


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


 


32

















 


(x)                                  Qualified Project Determination. The Borrower shall deliver
to the Administrative Agent a periodic desktop fatal flaw review (each, a “Project
Review”) for all Eligible Qualified Projects, and from time to time as and
when the Borrower desires to designate an Eligible Qualified Project as a
Qualified Project (as defined below). Until receipt of such Project Reviews
with respect to any Eligible Qualified Project and determination by the
Administrative Agent that a Project is a Qualified Project, on each Top-Up
Date, the Reduced Advance Rate shall be applied for Turbines allocated to such
Eligible Qualified Project. Each Project Review shall be in form and substance
reasonably satisfactory to the Majority Lenders and the Administrative Agent
and shall be comprised solely of the following items and such additional
information and relevant materials as the Borrower may provide the
Administrative Agent:


 


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


 


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


 


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


 


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


 


If
the Project Review demonstrates to the Majority Lenders’ and the Administrative
Agent’s reasonable satisfaction (in consultation with the Independent Engineer)
that such Eligible Qualified Project could (x) reasonably achieve
construction completion (taking into account the likelihood of such Project
obtaining adequate construction financing but not taking into account any
adverse effect thereon associated with Clipper being the manufacturer of
Turbines included in such Project), qualify for PTCs and begin selling power at
least sixty (60) days prior to the then-current expiration date (the “PTC
Expiration Date”) for PTCs under the Code, (y) benefit from tax
benefits similar to or better than the PTCs then applicable, taking into
account the PTC Expiration Date, or (z) is otherwise economically viable
without PTC benefits, such Project shall be deemed a Qualified Project (a “Qualified
Project”).


 


The
Administrative Agent shall provide notice to the Borrower within fifteen (15)
Business Days after the receipt of any Project Review of its determination or a
detailed description of the changes that the Administrative Agent and the
Majority Lenders determine are reasonably necessary for such Eligible Qualified
Project to qualify as a Qualified Project. The Borrower


 


33

















 


may
resubmit an updated Project Review for reconsideration under this Section 5(x).
The resulting Advance Rates or Reduced Advance Rates, as the case may be, shall
apply for purposes of determining the Top-Up Amount for Top-Up Dates.


 


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


 


34

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


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


 


(dd)                          Clipper Bankruptcy. Upon the occurrence of any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation with respect to Clipper Turbine Works, Inc.,
the Borrower shall, and shall cause each Corresponding Project Company to, diligently
pursue its respective rights to obtain on behalf of the Borrower and each
Corresponding Project Company ***** related to Clipper Turbine Works, Inc.
Turbines owned by the Corresponding Project Companies.


 


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


 


36

















 


Revenue
EQP Document and any amendment or other modification or waiver of compliance
with any Non-Revenue EQP Document.


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)                                    The Borrower,
or (if it would be reasonably likely to result in a Material Adverse Effect)
any Turbine supplier under any Turbine Supply Document, or, until the


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


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


 


7.                                       Expenses; Indemnification.


 


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


 


(b)                                The Borrower agrees to
indemnify and hold the Administrative Agent, each Lender and the Collateral
Agent together with its respective directors, officers, employees, agents and
consultants harmless from and against all claims, damages, losses, liabilities,
costs, deficiencies and documented expenses and damages, including, without
limitation, investigative costs, settlement costs and reasonable legal, accounting
or other expenses for investigating or defending against any actions or
threatened actions (collectively, the “Losses”), arising out of or


 


39

















 


in
connection with (i) the execution or delivery of each Basic Document, including
this Note, and the performance by any Person of its obligations under such
Basic Documents, (ii) the making of the Loans and (iii) the use of
the proceeds of any Loan, and any prospective claim, litigation, investigation
or proceeding related to any of the foregoing, but excluding, in each case, any
such Losses incurred by reason of bad faith, gross negligence or willful misconduct
of any Person indemnified hereunder. The Administrative Agent, any Lender
and/or the Collateral Agent, as applicable, shall promptly notify the Borrower
of any claim under this Section 7(b). The Borrower may elect to
assume the defense of any action, proceeding or dispute with a third party in
respect of which a claim is to be made under this Section 7(b); provided,
however, that if the Borrower assumes control of the defense of any such
action, proceeding or dispute, the Borrower shall not agree or conclude any
settlement that affects the Administrative Agent, any Lender or the Collateral
Agent without the prior written approval of the Administrative Agent, each
Lender or the Collateral Agent, as applicable (such approval not to be
unreasonably withheld). In the event the Borrower assumes control of the
defense of any such action, proceeding or dispute, the Borrower shall not be
liable to the Administrative Agent, any Lender or the Collateral Agent for any
legal fees and expenses of additional counsel incurred by the Administrative
Agent, any Lender or the Collateral Agent in connection with such defense; provided,
however, that each of the Administrative Agent, the Lenders and the
Collateral Agent shall have the right to employ its own counsel whose
reasonable legal fees and expenses shall be indemnified by the Borrower if
(A) there is or could reasonably be expected to be a conflict of interest
between the Administrative Agent, any Lender or the Collateral Agent, as
applicable, and the Borrower in connection with the defense of such action, proceeding
or dispute, or (B) there is a specific defense available to the
Administrative Agent, each Lender or the Collateral Agent, as applicable, which
is different from or additional to those available to the Borrower, or
(C) it is reasonably necessary to protect the interests of the
Administrative Agent, each Lender or the Collateral Agent, as applicable, to
the extent such interests differ from the interests of the Borrower.


 


40

















 


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


 


9.                                       Governing Law; Submission to Jurisdiction. This Note shall
be governed by, and construed in accordance with, the laws of the State of New
York (without regard to conflict of laws provisions thereof other than Section 5-1401
of the New York General Obligations Law). The Borrower agrees that any legal
action or proceeding arising out of or relating to this Note or any other Basic
Document, or any legal action or proceeding to execute or otherwise enforce any
judgment obtained against the Borrower, for breach hereof or thereof, or
against any of its properties, may be brought in the courts of the State of New
York sitting in New York County or the United States District Court for the
Southern District of New York by the Administrative Agent or on behalf of any
Lender, as the Administrative Agent may elect. The Borrower hereby irrevocably
and unconditionally submits to the non-exclusive jurisdiction of such courts
for purposes of any such legal action or proceeding. Service of process by the
Administrative Agent in any such dispute shall be binding on the Borrower if
sent to the Borrower by registered or certified mail, at the addresses
specified on the signature page of this Note. The Borrower agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction.


 


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


 


41














 


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


 


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


 


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


 


(b)           Duties, Responsibilities, Powers and Immunities of
Agents. The Agents
shall not have any duties or obligations except those expressly set forth
herein and in the other Basic Documents to which they are party. Without
limiting the generality of the foregoing, (a) each Agent shall be subject
to any fiduciary or other implied duties, regardless of whether an Event of
Default has occurred and is continuing, (b) no Agent shall have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Basic Documents that each Agent is required to exercise in writing by the
Majority Lenders or any other Agent, and (c) except as expressly set forth
herein and in the other Basic Documents, no Agent shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to First Wind Holdings or any of its subsidiaries that is communicated
to or obtained by the Person serving as an Agent or any of its Affiliates in
any capacity. No Agent shall be liable for any action taken or not taken by it
in the absence of its own gross negligence or willful misconduct. No Agent
shall be deemed to have knowledge of any Event of Default unless and until
written notice thereof is given to such Agent by the Borrower, the Lenders or
any other Agent. No Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Note or any other Basic Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein, (iv) the validity, enforceability, effectiveness
or genuineness of this Note, any other Basic Document or any other


 


42

















 


agreement,
instrument or document, or (v) the satisfaction of any condition set forth
herein or therein, other than to confirm receipt of items expressly required to
be delivered to any Agent.


 


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


 


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


 


12.           Miscellaneous.


 


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


 


(b)          No
amendment, modification or supplement to any provision of this Note shall be effective
unless the same shall be in writing and signed by the Borrower, the


 


43

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


44

















 


addressee
by facsimile, upon receipt of the addressor’s facsimile machine confirmation or
other verifiable electronic receipt.


 


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


 


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


 


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


 


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


 


(j)            The
Administrative Agent, each Lender and the Collateral Agent agree to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature, any non-public information supplied to
it by the Borrower in relation to the Turbine Supply Documents, the
Governmental Approvals, the Borrower or First Wind Holdings; provided
that such information does not include information that (i) was publicly
known or otherwise known to it prior to the time of such disclosure and
(ii) subsequently becomes publicly known through no act or omission by it
or any Person acting on its behalf.


 


(k)           The
Guaranty of and security interest in the Collateral provided by a Corresponding
Project Company pursuant to its Security Agreement, Mortgages, Consents and
other security documents shall be terminated and released (and the Guaranty of
and Collateral provided by any of its Intermediate Holding Companies that is an
obligor or guarantor under a financing of such Corresponding Project Company
that is permitted by this Note shall be terminated and released) upon the
occurrence of either of the following: (a) repayment in full of all
Corresponding Term Loans therefor (including the principal of and all interest
and fees on such Corresponding Term Loans), whether pursuant to Sections 5(1) or
5(v) of the this Note or otherwise; or (b) the reallocation of all
Turbines that were allocated to the Corresponding Project


 


45

















 


Company’s
Project to any other project in accordance with the terms of Section 5(z)
of this Note. The Collateral Agent agrees to promptly deliver and file (or
cause to be delivered and filed) any and all documents and instruments
necessary or reasonably required in order to effect the above-described
termination and release.


 


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


 


46

















 


	
   

  	
  FIRST WIND ACQUISITION
  IV, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn Lim

  
	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  First Wind Acquisition
  IV, LLC

  
	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
  85 Wells Avenue,
  Suite 305

  
	
   

  	
  Newton, MA 02459

  
	
   

  	
  Attention: President

  
	
   

  	
  Facsimile: (617)
  964-3342

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  
	
   

  	
  85 Wells Avenue,
  Suite 305

  
	
   

  	
  Newton, MA 02459

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Facsimile: (617)
  964-3342

  



 

















 


Agreed
and accepted:


 


	
  HSH
  NORDBANK AG, NEW YORK BRANCH,

  as
  Administrative Agent and Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Brian T. Caldwell

  	
   

  
	
   

  	
  Name:

  	
  Brian
  T. Caldwell

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  HSH
  Nordbank AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael
  Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  HSH
  Nordbank AG, NY Branch

  	
   

  



 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York, New York 10169-0005

  
	
  Attention:

  	
  Energy
  - Portfolio Management

  
	
  Telephone:

  	
  212
  407 6044 (David Watson)

  
	
  Facsimile:

  	
  212-407-6807

  



 


with
a copy to:


 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York, New York 10169-0005

  
	
  Attention:

  	
  General
  Counsel

  
	
  Telephone:

  	
  (212)
  407-6142

  
	
  Facsimile:

  	
  (212)
  407-6811

  



 

















 


Agreed
and accepted:


 


	
  HSH
  NORDBANK AG, NEW YORK BRANCH,

  as
  Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Tony K. Muoser

  	
   

  
	
   

  	
  Name:

  	
  Tony
  K. Muoser

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  HSH
  Nordbank AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Michael Pepe

  	
   

  
	
   

  	
  Name:

  	
  Michael
  Pepe

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  HSH
  Nordbank AG, NY Branch

  	
   

  



 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York, New York 10169-0005

  
	
  Attention:

  	
  Energy
  - Portfolio Management

  
	
  Telephone:

  	
  212
  407 6044 (David Watson)

  
	
  Facsimile:

  	
  212-407-6807

  



 


with
a copy to:


 


	
  HSH NORDBANK AG, NEW YORK BRANCH

  
	
  230 Park Avenue

  
	
  32nd Floor

  
	
  New York, New York 10169-0005

  
	
  Attention:

  	
  General
  Counsel

  
	
  Telephone:

  	
  (212)
  407-6142

  
	
  Facsimile:

  	
  (212)
  407-6811

  



 














 


Exhibit A


Notice of
Borrowing


 


[Date]


 


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


 


FROM:                                                         FIRST WIND
ACQUISITION IV, LLC (the “Borrower”)


 


RE:                           Borrowing
Notice


 


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


 


The Borrower hereby requests a disbursement of a Loan pursuant to Section 2(h) of
the Note and makes the following certifications:


 


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


 


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


 


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


 


	
   

  	
  (a)

  	
  One
  month

  	
  $

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Two
  months

  	
  $

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Three
  months

  	
  $

  	
   

  	
   

  



 


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


 


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


 


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


 






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


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


has not been amended, modified or supplemented without the consent of
the Administrative Agent and the Majority Lenders.


 


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


 


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


 

















 


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


 


	
   

  	
  FIRST
  WIND ACQUISITION IV, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 

















 


Exhibit B


Notice of Extension


 


[Date]


 


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


 


FROM:   FIRST WIND ACQUISITION IV,
LLC (the “Borrower”)


 


RE:                              Notice of
Extension


 


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


 


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


 


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


 


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


 


	
   

  	
  (a)

  	
  One
  month

  	
  $

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Two
  months

  	
  $

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Three
  months

  	
  $

  	
   

  	
   

  



 


(3)                                  The Borrower
certifies hereby that each condition precedent set forth in Section 3.2 of
the Note to the requested disbursement has been satisfied or waived as of the
date hereof and will be satisfied or waived as of the date of the requested
disbursement.


 


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


 


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


 


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


 






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


 

















 


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


 


	
   

  	
  FIRST
  WIND ACQUISITION IV, LLC, 

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 

















 


Exhibit C-1


 


WITHHOLDING
CERTIFICATE (TREATY)


 


Date:
[            ]


 


First Wind Acquisition IV, LLC as Borrower


 


Attention:
[                           ]


 


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


 


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


 


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


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Exhibit C-2


 


WITHHOLDING CERTIFICATE
(EFFECTIVELY CONNECTED)


 


Date:
[      ]


 


First Wind Acquisition IV, LLC as Borrower


 


Attention:
[                            ]


 


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


 


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


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Exhibit C-3


 


WITHHOLDING CERTIFICATE
(PORTFOLIO INTEREST)


 


Date:
[                ]


 


First Wind Acquisition IV, LLC as Borrower


 


Attention:
[                                     ]


 


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


 


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


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Enclosures


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Schedule 1


 


Advance Rates


 


	
  Advance Rates:

  	
   

  	
  Clipper Turbines

  
	
   

  	
   

  	
  Sheffield          *****

  
	
   

  	
   

  	
  Steel
  Winds II  *****

  
	
   

  	
   

  	
   

  
	
  Reduced Advance Rates

  	
   

  	
  Clipper Turbines

  
	
   

  	
   

  	
  Sheffield          *****

  
	
   

  	
   

  	
  Steel
  Winds II  *****

  
	
   

  	
   

  	
   

  



 






 










 


Schedule 2


 


Appraisal Procedure


 


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


 


Appraisal
Procedure


 


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


 


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


 


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


 


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


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Schedule 3


 


Collateral


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The Security Agreements as defined in the FWA Note.


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Schedule
4


 


List of
Project Companies


 


I. List of Project
Companies


 


·                  Vermont
Wind, LLC


·                  Erie Wind,
LLC


 


II. List of Qualified
Projects


 


·                  Sheffield Project: the wind generating facility with a
nameplate capacity of 40 megawatts located in Sheffield, Vermont owned by
Vermont Wind, LLC.


 


·                  Steel Winds II Project: the wind generating facility
with a nameplate capacity of 15 megawatts located in Lackawanna, New York owned
by Erie Wind, LLC.


 


III. List of Eligible
Qualified Projects


 


·                  Sheffield Project


·                  Steel Winds II Project


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Schedule
5


 


Material
Project Documents


 


1.                                       Advanced Purchase Fee Agreement, dated as
of May 5, 2006, between Washington Electric Cooperative, Inc. and
Vermont Wind, LLC


2.                                       Agreement dated as of June 7, 2006
between the Town of Sheffield and Vermont Wind, LLC, as amended by the
Amendment, dated as of February 6, 2008.


 


SECOND
AMENDED AND RESTATED


SECURED
PROMISSORY NOTE


FIRST
WIND ACQUISITION IV, LLC


 

















 


Schedule 6


 


Insurance Requirements


 


(See Attached)


 






 










 


	
  Client#:
  1480

  	
  FIRSTWIN

  
	
  ACORD  TM CERTIFICATE OF LIABILITY INSURANCE

  	
  DATE(MM/DD/YYYY)

  03/02/09

  
	
  PRODUCER

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

  
	
  William
  Gallagher Associates

  
	
  Insurance
  Brokers, Inc.

  
	
  470
  Atlantic Avenue

  
	
  Boston,
  MA 02210

  	
   

  	
   

  
	
   

  	
  INSURERS
  AFFORDING COVERAGE

  	
  NAIC
  #

  
	
  INSURED

  	
   

  	
  INSURER
  A: Federal Insurance Company

  	
  20281

  
	
   

  	
  First
  Wind Acquisition IV, LLC

  	
  INSURER
  B: Arch Insurance Company

  	
  11150

  
	
   

  	
  First
  Wind Energy, LLC

  	
  INSURER
  C: Lloyd’s Of London/JLT Solutions

  	
  15792

  
	
   

  	
  85
  Wells Avenue, Suite 305

  	
  INSURER
  D:

  	
   

  
	
   

  	
  Newton,
  MA 02459

  	
  INSURER
  E:

  	
   

  
	
  COVERAGES

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

  
	
   

  
	
  INSR

  LTR

  	
   

  	
  ADDL

  INSRF

  	
   

  	
  TYPE
  OF INSURANCE

  	
   

  	
  POLICY
  NUMBER

  	
   

  	
  POLICY
  EFFECTIVE

  DATE (MM/DD/YY)

  	
   

  	
  POLICY
  EXPIRATION

  DATE (MM/DD/YY)

  	
   

  	
  LIMITS

  
	
  A

  	
   

  	
   

  	
   

  	
  GENERAL
  LIABILITY

  	
   

  	
  37112840

  	
   

  	
  02/15/09

  	
   

  	
  02/15/10

  	
   

  	
  EACH
  OCCURRENCE

  	
  $1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  x  COMMERCIAL
  GENERAL LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  DAMAGE
  TO RENTED PREMISES

  (Ea occurrence)

  	
  $1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o  CLAIMS MADE 

  	
  x  OCCUR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MED
  EXP (Any one parson)

  	
  $10,000

  
	
   

  	
   

  	
   

  	
   

  	
  o  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PERSONAL &
  ADV INJURY

  	
  S1,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  GENERAL
  AGGREGATE

  	
  $2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  GENL
  AGGREGATE LIMIT APPLIES PER:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PRODUCTS
  -COMP/OP AGG

  	
  $2,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  o  POLICY  

  	
  o  PROJECT  

  	
  o  LOC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
   

  	
   

  	
  AUTOMOBILE LIABILITY 

  	
   

  	
  73539135
  

  	
   

  	
  03/01/09
  

  	
   

  	
  03/01/10
  

  	
   

  	
  COMBINED
  SINGLE LIMIT

  (Ea accident)

  	
  $1,000,000

  
	
  A

  	
   

  	
   

  	
   

  	
  x  ANY AUTO

  	
   

  	
  73525609

  	
   

  	
  03/01/09

  	
   

  	
  03/01/10

  	
   

  	
  BODILY
  INJURY (Per person)

  	
  $ 

  
	
   

  	
   

  	
   

  	
   

  	
  o  ALL OWNED
  AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  BODILY
  INJURY (Per accident)

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o  SCHEDULED
  AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PROPERTY
  DAMAGE

  (Per accident)

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  x  HIRED AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AUTO
  ONLY - EA ACCIDENT

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  x  NON-OWNED
  AUTOS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OTHER
  THAN

  	
  EA ACC

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AUTO
  ONLY:

  	
  AGG

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  GARAGE
  LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o  ANY AUTO

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
   

  	
   

  	
  EXCESS/UMBRELLA
  LIABILITY

  	
   

  	
  79833689

  	
   

  	
  02/15/09

  	
   

  	
  02/15/10

  	
   

  	
  EACH
  OCCURRENCE

  	
  $25,000,000

  
	
   

  	
   

  	
   

  	
   

  	
  x  OCCUR

  	
  o  CLAIMS MADE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AGGREGATE

  	
  $25,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o  DEDUCTIBLE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
  o  RETENTION 

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WORKERS
  COMPENSATION AND EMPLOYERS’ LIABILITY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WC STATUTORY LIMITS

  	
  OTHER

  	
   

  
	
   

  	
   

  	
  ANY
  PROPRIETOR/PARTNER/EXECUTIVE 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  E.L.
  EACH ACCIDENT

  	
  $

  
	
   

  	
   

  	
  OFFICER/MEMBER
  EXCLUDED? 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EL.
  DISEASE - EA EMPLOYEE

  	
  $

  
	
   

  	
   

  	
  If
  yes. describe under SPECIAL PROVISIONS below

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EL.
  DISEASE - POLICY LIMIT

  	
  $

  
	
  A

  	
   

  	
  OTHER Com Property

  	
   

  	
  37113152

  	
   

  	
  11/18/08

  	
   

  	
  11/18/09
  

  	
   

  	
  See
  Description Section

  	
   

  
	
  B

  	
   

  	
  Aircraft
  Liab.

  	
   

  	
  11NOA5916901

  	
   

  	
  09/14/08

  	
   

  	
  09/14/09
  

  	
   

  	
  See
  Description Section

  	
   

  
	
  C

  	
   

  	
  BAR

  	
   

  	
  WI090676

  	
   

  	
  02/15/08

  	
   

  	
  02/15/10

  	
   

  	
  See
  Description Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  
	
   

  
	
   

  
	
   

  
	
  (See
  Attached Descriptions)

  
	
   

  
	
  CERTIFICATE
  HOLDER 

  	
  CANCELLATION

  
	
  HSH-Nordbank AG, New York Branch

  as Administrative Agent

  Attn: Energy Portfolio

  230 Park Avenue

  New
  York, NY 10169-0005

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

   

  AUTHORIZED
  REPRESENTATIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACORD 25(2001/08)

  	
  #S135325/M135324

  	
  MCL

  	
  ® ACORD CORPORATION 1988

  
																										



 


1














 


IMPORTANT


 


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


 


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


 


DISCLAIMER


 


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


 


2

















 


DESCRIPTIONS (Continued from Page 1)


 


Commercial
Property Policy #37113152


Project
Entity: As Declared


Blanket
Limit: As Declared


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


 


Non-Owned
Aviation Policy #11NOA5916901


Limit of
Liability: $25,000,000


 


INSURER
D


World
Wide Transit Policy #OMC3H548425002


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


Deductible:
$10,000 each and every loss


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


as a per
project basis


Deductible:
20 days each and every loss


 


Builders
Risk and Operational Policy #WI090676


Project
Entity: Milford Wind Corridor Phase I, LLC


Construction
Property Damage: $352,980,903


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


Delay in
Start Up: $48,762,000


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


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


Operational
Business Interruption: $48,762,000


Deductibles:


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


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


Sublimits
applicable to policy: See attached


 


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


 


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


 


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


 


3

















 


Schedule
7


 


[
Intentionally Omitted ]


 


SECOND AMENDED AND RESTATED


SECURED PROMISSORY NOTE


FIRST WIND ACQUISITION IV,
LLC


 

















 


Schedule 8


 


Governmental
Approvals as of the Effective Date


 


Sheffield


 


1.               State of Vermont Public
Service Board Order Re Construction of MET Towers entered February 21,
2008.


 


2.               Construction General Permit
3-9020 (2006) Authorization of Notice of Intent #5535-9020.1 from the State of
Vermont Department of Environmental Conservation Water Quality Division dated November 15,
2007.


 


3.               State of Vermont Public
Service Board Order Re Motions and Requests for Modification, Amendment,
Clarification and Correction entered October 1, 2007.


 


4.     State
of Vermont Public Service Board Certificate of Public Good issued August 8,
2007.


 

















 


Schedule
9


 


Material
Liabilities and Assets


 


Amended and Restated
Turbine Operation, Maintenance and Service Agreement dated the 31st day of December, 2007,
by and between First Wind O&M, LLC (formerly known as UPC Wind O&M, LLC,)
as Project Manager, and Clipper Fleet Services, Inc., as Operator as
modified,  amended, supplemented and
restated from time to time (with respect to 64 Turbines).


 


Turbine Operation,
Maintenance and Service Agreement dated the 31st day of December, 2007, by
and between First Wind O&M (formerly known as UPC Wind O&M, LLC), as
project Manager, and Clipper Fleet Services, Inc., as Operator as
modified, amended, supplemented and restated from time to time (with respect to
16 Turbines).


 


Amended and Restated
Turbine Supply Agreement dated the 31st day of December, 2007, by and between
First Wind Acquisition IV, LLC (formerly known as UPC Wind Acquisition IV, LLC),
as Purchaser, and Clipper Turbine Works, Inc., as Supplier, as modified,
amended, supplemented ad restated from time to time (with respect to 64
Turbines).


 


Turbine
Supply Agreement dated the 31st day of December, 2007, by and between First
Wind Acquisition IV, LLC (formerly known as UPC Wind Acquisition IV, LLC), as
Purchaser, and Clipper Turbine Works, Inc., as Supplier, as modified,
amended, supplemented ad restated from time to time (with respect to 16
Turbines).


 


Amended and Restated
Warranty Agreement dated the 31st day of December, 2007, by and between First
Wind Acquisition IV, LLC (formerly known as UPC Wind Acquisition IV, LLC) as
Purchaser, and Clipper Turbine Works, Inc., as Supplier, as modified,
amended, supplemented and restated from time to time (with respect to 64
Turbines).


 


Warranty
Agreement dated the 31st day of December, 2007, by and between First Wind
Acquisition IV, LLC as Purchaser (formerly known as UPC Wind Acquisition IV,
LLC), and Clipper Turbine Works, Inc., as Supplier, as modified, amended,
supplemented and restated from time to time (with respect to 16 Turbines).


 


Turbine
Supply Agreement dated as of April 22, 2009, by and between First Wind
Acquisition IV, LLC as Purchaser, and Clipper Turbine Works, Inc., as
Supplier, as modified, amended, supplemented and restated from time to time
(with respect to 6 Turbines).


 

















 


Schedule 10


 


Turbine Supply Documents


 


1.                                      Amended and Restated Turbine Supply
Agreement dated as of December 31, 2007, between Clipper Turbine Works, Inc.,
as Supplier, and First Wind Acquisition IV, LLC as Purchaser. (Sheffield)


 


2.                                      Agreement dated as of March 24,
2008, by and among First Wind Energy, LLC (formerly UPC Wind Management, LLC),
Niagara Wind Power, LLC, First Wind O&M, LLC (formerly UPC Wind O&M,
LLC as successor to UPC New York Wind O&M, LLC), First Wind Acquisition
III, LLC (formerly UPC Wind Acquisition III, LLC), First Wind Acquisition IV, LLC
(formerly UPC Wind Acquisition IV, LLC,) First Wind Acquisition V,
LLC (formerly UPC Wind Acquisition V, LLC), Canandaigua Power Partners, LLC,
and Canandaigua Power Partners II, LLC on the one hand, and Clipper Windpower, Inc.,
Clipper Turbine Works, Inc., and Clipper Fleet Services, Inc on the other
hand.


 


3.                                      Settlement and Release of Claims
Agreement dated as of December 31, 2007, by and among First Wind Energy,
LLC (formerly UPC Wind Management, LLC), Niagara Wind Power, LLC, First Wind
O&M, LLC (formerly UPC Wind O&M, LLC as successor to UPC New York Wind
O&M, LLC), First Wind Acquisition III, LLC (formerly UPC Wind Acquisition
III, LLC), and First Wind Acquisition IV, LLC (formerly UPC Wind
Acquisition IV, LLC) on the one hand, and Clipper
Windpower, Inc., Clipper Turbine Works, Inc., and Clipper Fleet
Services, Inc., on the other hand.


 


4.                                      Warranty Agreement dated as of December 31,
2007, between Clipper Turbine Works, Inc., as Supplier, and First Wind
Acquisition IV, LLC, as Purchaser. (Sheffield)


 


5.                                      Turbine Operation, Maintenance and
Service Agreement dated as of December 31, 2007, between First Wind
O&M, LLC, as Project Manager, and Clipper Fleet Services, Inc., as
Operator. (Sheffield)


 


6.                                      Turbine Supply Agreement dated as of April 22,
2009, by and between First Wind Acquisition IV, LLC as Purchaser, and Clipper
Turbine Works, Inc., as Supplier (Steel Winds II).


 


7.                                      Omnibus Agreement, dated as of December 30,
2008, by and among First Wind Energy, LLC, Niagara Wind Power, LLC, First Wind
Acquisition III, LLC, First Wind Acquisition IV, LLC, and First
Wind Acquisition V, LLC, on the one hand, and Clipper Windpower, Inc.,
Clipper Turbine Works, Inc., and Clipper Fleet Services, Inc. on the
other hand.


 

















 


Schedule
11


 


Top-Up Amount Schedule


 


(See Attached)


 















 


Schedule 11 Top Up Schedule


 


	
  Project

  	
   

  	
  Contract

  	
   

  	
  QP

  Determination

  	
   

  	
  Vendor

  	
   

  	
  WTGType

  	
   

  	
  #WTGs

  	
   

  	
  MWs

  	
   

  	
  Contract Price

  	
   

  	
  Holdback

  Percentage

  	
   

  	
  Holdback Amount

  	
   

  	
  Adjusted Value

  	
   

  	
  Advance Rate

  	
   

  	
  Maximum Debt

  Capacity

  	
   

  
	
  KWP II

  	
   

  	
  702001

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SE

  	
   

  	
  14

  	
   

  	
  21

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  351-503664

  (TPO #10)

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  28

  	
   

  	
  42

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  1-J3XTQ

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  9

  	
   

  	
  13.5

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  700857

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  34

  	
   

  	
  51

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Stetson II

  	
   

  	
  J3XU5

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  17

  	
   

  	
  25.5

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Rollins

  	
   

  	
  351-702737

  	
   

  	
  QP

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  40

  	
   

  	
  60

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Total
  Wind Acq I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  142

  	
   

  	
  213

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  224,282,543

  	
   

  
	
  Steel Winds II

  	
   

  	
  TSA-6

  	
   

  	
  QP

  	
   

  	
  Clipper

  	
   

  	
  C96

  	
   

  	
  6

  	
   

  	
  15

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Sheffield

  	
   

  	
  Sheffield

  	
   

  	
  QP

  	
   

  	
  Clipper

  	
   

  	
  C96,C93

  	
   

  	
  16

  	
   

  	
  40

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
  Total
  Wind Acq IV

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  22

  	
   

  	
  55

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  43,063,720

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Less:

  	
   

  	
  Less:

  	
   

  	
  Equals

  	
   

  
	
  Appraised Value

  	
   

  	
  Contract Value

  	
   

  	
  “Value”

  	
   

  	
  Holdback

  Percentage

  	
   

  	
  Holdback

  Amount

  	
   

  	
  Adjusted Value

  	
   

  	
  Advance Rate

  	
   

  	
  “TMDCT”

  	
   

  	
   

  	
   

  	
  “TMDCT”

  	
   

  	
  TMDCT”

  	
   

  	
  Contributed

  Equity

  	
   

  	
  Top Up

  Requirement

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  224,282,543

  	
   

  	
   

  	
   

  	
  224,282,543

  	
   

  	
  224,282,543

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *****

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  43,063,720

  	
   

  	
   

  	
   

  	
  43,063,720

  	
   

  	
  43,063,720

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Top Up Cap

  	
   

  	
  20,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net
  Top Up Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 














 


Schedule 12


 


Post Closing Deliverables


 


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


 


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


 


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


 


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


 


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


 


SECOND AMENDED AND RESTATED


SECURED PROMISSORY NOTE


FIRST WIND ACQUISITION IV, LLC


 

















 


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


(b)                                 an interconnection agreement,


(c)                                  the Turbine
Supply Documents,


(d)                                 a balance of plant construction agreement,


(e)                                  a substation
transformer purchase agreement, and


(f)                                    a payment in lieu of taxes agreement;


 


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


 


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


 


	
  Type of Basic Document, Project and Financing Agreement

  	
   

  	
  Delivery Date

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  12/31/08

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  12/31/08

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  12/31/08

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  2/28/09

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  9/15/09

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consents for Sheffield and Steel Winds II (WA IV)

  	
   

  	
  9/15/09

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

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

  	
   

  



 

















 


	
   

  	
   

  	
  of Default at Agent's election

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Recordation of any other Mortgage(s) not
  previously recorded

  	
   

  	
  Upon
  an Event  of Default atAgent's election

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Mortgage for KWP II (FWA Note)

  	
   

  	
  No Mortgage will
  be given

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consents for Rollins (FWA Note)

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consents for Stetson II (FWA Note)

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consents for Oakfield (FWA Note)

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Consents for KWP II (FWA Note)

  	
   

  	
  N/A

  	
   

  



 






 










 


Schedule 13


 


Loan Capacity


 


(See Attached)


 


SECOND AMENDED AND
RESTATED


SECURED PROMISSORY NOTE


FIRST WIND ACQUISITION
IV, LLC


 

















 


Schedule 13 —
Loan Capacity


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Maximum Loan

  	
   

  
	
  Project

  	
   

  	
  Contract

  	
   

  	
  Vendor

  	
   

  	
  WTG Type

  	
   

  	
  # WTGs

  	
   

  	
  MWs

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KWPII

  	
   

  	
  702001

  	
   

  	
  GE

  	
   

  	
  1.5 SE

  	
   

  	
  14

  	
   

  	
  21

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  351-503664 (TPO #10)

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  28

  	
   

  	
  42

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  1-J3XTQ

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  9

  	
   

  	
  13.5

  	
   

  	
  *****

  	
   

  
	
  Oakfield

  	
   

  	
  700857

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  34

  	
   

  	
  51

  	
   

  	
  *****

  	
   

  
	
  Stetson II

  	
   

  	
  J3XU5

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  17

  	
   

  	
  25.5

  	
   

  	
  *****

  	
   

  
	
  Rollins

  	
   

  	
  351-702737

  	
   

  	
  GE

  	
   

  	
  1.5 SLE

  	
   

  	
  40

  	
   

  	
  60

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Wind Acq I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  142

  	
   

  	
  213

  	
   

  	
  224,282,543

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Winds II

  	
   

  	
  TSA-6

  	
   

  	
  Clipper

  	
   

  	
  C96

  	
   

  	
  6

  	
   

  	
  15

  	
   

  	
  *****

  	
   

  
	
  Sheffield

  	
   

  	
  Sheffield

  	
   

  	
  Clipper

  	
   

  	
  C96,C93

  	
   

  	
  16

  	
   

  	
  40

  	
   

  	
  *****

  	
   

  
	
  Total Wind Acq IV

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  22

  	
   

  	
  55

  	
   

  	
  43,063,720