Exhibit 10.58


 


[Execution Version]


 




 





CREDIT
AGREEMENT


 


dated as of October 20, 2010


 


among


MILFORD WIND CORRIDOR PHASE
II, LLC


(as Borrower)


 


RBS SECURITIES INC.


(as Lead Arranger and
Bookrunner)


 


BANCO
ESPÍRITO SANTO S.A. NEW YORK BRANCH,


COBANK, ACB,


SANTANDER INVESTMENT SECURITIES INC., and


SG AMERICAS SECURITIES, LLC,


 


(as Co-Syndication Agents, Joint Bookrunners
and Joint Lead Arrangers)


 


THE FINANCIAL INSTITUTIONS
PARTIES HERETO


(as Lenders)


 


and


 


THE ROYAL BANK OF SCOTLAND PLC,


(as Administrative Agent, Collateral Agent
and Lender)


 






 


102 Megawatt Facility and an undivided interest in the 345 kV generator
lead line and substation

Beaver and Millard Counties, Utah


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Rules of Interpretation

  	
  1

  
	
  1.3

  	
  Accounting Terms; GAAP

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE CREDIT
  FACILITY

  	
  2

  
	
   

  	
   

  
	
  2.1

  	
  Loan Facility

  	
  2

  
	
  2.2

  	
  Total Commitments

  	
  8

  
	
  2.3

  	
  Fees

  	
  9

  
	
  2.4

  	
  Other Payment Terms

  	
  9

  
	
  2.5

  	
  Pro Rata Treatment

  	
  13

  
	
  2.6

  	
  Change of Circumstances

  	
  14

  
	
  2.7

  	
  Funding Losses

  	
  16

  
	
  2.8

  	
  Alternate Office; Minimization of Costs

  	
  17

  
	
  2.9

  	
  Register

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 CONDITIONS
  PRECEDENT

  	
  19

  
	
   

  	
   

  
	
  3.1

  	
  Conditions Precedent to the Closing Date

  	
  19

  
	
  3.2

  	
  Conditions Precedent to Each Credit Event

  	
  29

  
	
  3.3

  	
  No Approval of Work

  	
  31

  
	
  3.4

  	
  Adjustment of Drawdown Requests

  	
  31

  
	
  3.5

  	
  Determinations Under Section 3.1

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 REPRESENTATIONS
  AND WARRANTIES

  	
  32

  
	
   

  	
   

  
	
  4.1

  	
  Organization

  	
  32

  
	
  4.2

  	
  Authorization; No Conflict

  	
  32

  
	
  4.3

  	
  Enforceability

  	
  33

  
	
  4.4

  	
  Compliance with Law

  	
  33

  
	
  4.5

  	
  Single Purpose, Debt, Contracts, Joint Ventures,
  Proceeds, Etc.

  	
  33

  
	
  4.6

  	
  Adverse Change

  	
  34

  
	
  4.7

  	
  Investment Company Act

  	
  34

  
	
  4.8

  	
  ERISA

  	
  34

  
	
  4.9

  	
  Permits

  	
  34

  
	
  4.10

  	
  Hazardous Substances

  	
  35

  
	
  4.11

  	
  Litigation

  	
  36

  
	
  4.12

  	
  No Labor Disputes; Force Majeure

  	
  37

  
	
  4.13

  	
  Operative Documents

  	
  37

  
	
  4.14

  	
  Disclosure

  	
  37

  
	
  4.15

  	
  Taxes

  	
  38

  
	
  4.16

  	
  Governmental Regulation

  	
  38

  



 


i

















 


	
  4.17

  	
  Regulation U, Etc.

  	
  39

  
	
  4.18

  	
  Budgets; Projections

  	
  39

  
	
  4.19

  	
  Financial Statements

  	
  39

  
	
  4.20

  	
  No Default

  	
  40

  
	
  4.21

  	
  Organizational ID Number; Location of Tangible Collateral

  	
  40

  
	
  4.22

  	
  Title and Liens

  	
  40

  
	
  4.23

  	
  Intellectual Property

  	
  40

  
	
  4.24

  	
  Collateral

  	
  41

  
	
  4.25

  	
  Sufficiency of Project Documents

  	
  41

  
	
  4.26

  	
  Utilities

  	
  42

  
	
  4.27

  	
  Other Facilities

  	
  42

  
	
  4.28

  	
  Flood Zone Disclosure

  	
  42

  
	
  4.29

  	
  Insurance

  	
  42

  
	
  4.30

  	
  Anti-Terrorism Law

  	
  42

  
	
  4.31

  	
  Investments

  	
  43

  
	
  4.32

  	
  No Recordation, Etc.

  	
  43

  
	
  4.33

  	
  Entitlement to Grant

  	
  43

  
	
  4.34

  	
  No Ownership by Disqualified Persons

  	
  44

  
	
  4.35

  	
  Solvency

  	
  44

  
	
  4.36

  	
  PPA

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 AFFIRMATIVE
  COVENANTS

  	
  44

  
	
   

  	
   

  
	
  5.1

  	
  Use of Proceeds, Equity Contributions and Project Revenues

  	
  44

  
	
  5.2

  	
  Payment

  	
  45

  
	
  5.3

  	
  Maintenance of Property

  	
  45

  
	
  5.4

  	
  Notices

  	
  45

  
	
  5.5

  	
  Financial Reporting

  	
  49

  
	
  5.6

  	
  Books, Records, Access

  	
  50

  
	
  5.7

  	
  Compliance with Laws, Instruments, Applicable
  Permits, Etc.

  	
  51

  
	
  5.8

  	
  Reports

  	
  51

  
	
  5.9

  	
  Existence, Conduct of Business, Properties, Etc.

  	
  53

  
	
  5.10

  	
  Indemnification

  	
  53

  
	
  5.11

  	
  Regulation

  	
  56

  
	
  5.12

  	
  Construction of the Project

  	
  56

  
	
  5.13

  	
  Completion and Commercial Operation

  	
  57

  
	
  5.14

  	
  Operation and Maintenance of Project; Operating Budget

  	
  57

  
	
  5.15

  	
  Preservation of Rights; Further Assurances

  	
  58

  
	
  5.16

  	
  Additional Consents

  	
  60

  
	
  5.17

  	
  Maintenance of Insurance

  	
  60

  
	
  5.18

  	
  Taxes, Other Government Charges and Utility Charges

  	
  60

  
	
  5.19

  	
  Event of Eminent Domain

  	
  60

  
	
  5.20

  	
  Environmental Laws

  	
  61

  
	
  5.21

  	
  Independent Consultants

  	
  61

  
	
  5.22

  	
  PPA

  	
  61

  
	
  5.23

  	
  Updates to Wind Report, IE Report and Cost Segregation
  Report

  	
  62

  
	
  5.24

  	
  Grant

  	
  62

  



 


ii

















 


	
  5.25

  	
  Turbine Placement

  	
  62

  
	
  5.26

  	
  CoBank Equity and Security

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 NEGATIVE COVENANTS

  	
  63

  
	
   

  	
   

  
	
  6.1

  	
  Contingent Obligations

  	
  63

  
	
  6.2

  	
  Limitations on Liens

  	
  63

  
	
  6.3

  	
  Debt

  	
  63

  
	
  6.4

  	
  Sale or Lease of Assets

  	
  63

  
	
  6.5

  	
  Changes

  	
  64

  
	
  6.6

  	
  Restricted Payments

  	
  64

  
	
  6.7

  	
  Investments

  	
  64

  
	
  6.8

  	
  Transactions With Affiliates

  	
  64

  
	
  6.9

  	
  Margin Loan Regulations

  	
  65

  
	
  6.10

  	
  Partnerships, etc.

  	
  65

  
	
  6.11

  	
  Dissolution; Merger

  	
  65

  
	
  6.12

  	
  Amendments; Completion

  	
  65

  
	
  6.13

  	
  Name and Location; Fiscal Year

  	
  67

  
	
  6.14

  	
  Use of Site

  	
  67

  
	
  6.15

  	
  Assignment

  	
  67

  
	
  6.16

  	
  Accounts

  	
  67

  
	
  6.17

  	
  Hazardous Substances

  	
  67

  
	
  6.18

  	
  Project Documents

  	
  67

  
	
  6.19

  	
  Project Budget and Schedule Amendments

  	
  68

  
	
  6.20

  	
  Assignment By Third Parties

  	
  68

  
	
  6.21

  	
  Acquisition of Real Property

  	
  68

  
	
  6.22

  	
  No Merchant Sales

  	
  68

  
	
  6.23

  	
  Lease Obligations

  	
  68

  
	
  6.24

  	
  Disputes

  	
  68

  
	
  6.25

  	
  Anti-Terrorism Law; Anti-Money Laundering

  	
  69

  
	
  6.26

  	
  Embargoed Persons

  	
  69

  
	
  6.27

  	
  Regulatory Status

  	
  69

  
	
  6.28

  	
  Capital Expenditures

  	
  69

  
	
  6.29

  	
  Separateness

  	
  70

  
	
  6.30

  	
  Interconnection

  	
  70

  
	
  6.31

  	
  General Electric O&M Agreement

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 Accounts

  	
  71

  
	
   

  	
   

  
	
  7.1

  	
  Account Withdrawals, Transfers and Payments

  	
  71

  
	
  7.2

  	
  Construction Account

  	
  72

  
	
  7.3

  	
  Revenue Account

  	
  73

  
	
  7.4

  	
  Application of Insurance Proceeds

  	
  74

  
	
  7.5

  	
  Application of Eminent Domain Proceeds

  	
  76

  
	
  7.6

  	
  Asset Sale Account

  	
  76

  
	
  7.7

  	
  SCPPA Cure Reserve Account

  	
  77

  
	
  7.8

  	
  Repayment Account

  	
  77

  



 


iii

















 


	
  7.9

  	
  Proceeds and Accounts

  	
  78

  
	
  7.10

  	
  Permitted Investments

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 EVENTS OF DEFAULT;
  REMEDIES

  	
  78

  
	
   

  	
   

  
	
  8.1

  	
  Events of Default

  	
  78

  
	
  8.2

  	
  Remedies

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 SCPPA and PPA
  PROVISIONS

  	
  86

  
	
   

  	
   

  
	
  9.1

  	
  SCPPA Cure Rights

  	
  86

  
	
  9.2

  	
  SCPPA Cure Loans

  	
  87

  
	
  9.3

  	
  Power of Attorney

  	
  87

  
	
  9.4

  	
  SCPPA as Third Party Beneficiary

  	
  87

  
	
  9.5

  	
  Assignment of the Loans to SCPPA

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 SCOPE OF
  LIABILITY

  	
  87

  
	
   

  	
   

  
	
  ARTICLE 11 AGENTS;
  SUBSTITUTION

  	
  89

  
	
   

  	
   

  
	
  11.1

  	
  Appointment and Authority

  	
  89

  
	
  11.2

  	
  Rights as a Lender

  	
  89

  
	
  11.3

  	
  Exculpatory Provisions

  	
  89

  
	
  11.4

  	
  Reliance

  	
  90

  
	
  11.5

  	
  Delegation of Duties

  	
  91

  
	
  11.6

  	
  Resignation

  	
  91

  
	
  11.7

  	
  Non-Reliance

  	
  92

  
	
  11.8

  	
  Administrative Agent May File Proofs of Claim

  	
  92

  
	
  11.9

  	
  Collateral Matters

  	
  93

  
	
  11.10

  	
  Other Holders of Titles

  	
  93

  
	
  11.11

  	
  Indemnification

  	
  93

  
	
  11.12

  	
  Withholding Tax

  	
  94

  
	
  11.13

  	
  General Provisions as to Payments

  	
  94

  
	
  11.14

  	
  Substitution of Lender

  	
  95

  
	
  11.15

  	
  Joinder By Secured Parties

  	
  95

  
	
  11.16

  	
  Delivery of Copies to Lenders

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 INDEPENDENT
  CONSULTANTS

  	
  95

  
	
   

  	
   

  
	
  12.1

  	
  Removal and Fees

  	
  95

  
	
  12.2

  	
  Duties

  	
  95

  
	
  12.3

  	
  Independent Consultants’ Certificates

  	
  96

  
	
  12.4

  	
  Certification of Dates

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 MISCELLANEOUS

  	
  96

  
	
   

  	
   

  
	
  13.1

  	
  Notices; Signatures

  	
  96

  
	
  13.2

  	
  Additional Security; Right to Set-Off

  	
  98

  



 


iv

















 


	
  13.3

  	
  Delay and Waiver

  	
  99

  
	
  13.4

  	
  Costs, Expenses and Attorneys’ Fees

  	
  99

  
	
  13.5

  	
  Entire Agreement

  	
  101

  
	
  13.6

  	
  Governing Law

  	
  101

  
	
  13.7

  	
  Severability

  	
  101

  
	
  13.8

  	
  Headings

  	
  101

  
	
  13.9

  	
  Accounting Terms

  	
  101

  
	
  13.10

  	
  Additional Financing, Etc.

  	
  101

  
	
  13.11

  	
  No Partnership, Etc.

  	
  102

  
	
  13.12

  	
  Trust Deed/Collateral Documents

  	
  102

  
	
  13.13

  	
  Limitation on Liability

  	
  102

  
	
  13.14

  	
  Waiver of Jury Trial

  	
  102

  
	
  13.15

  	
  Consent to Jurisdiction

  	
  103

  
	
  13.16

  	
  Effectiveness

  	
  104

  
	
  13.17

  	
  Successors and Assigns

  	
  104

  
	
  13.18

  	
  Counterparts

  	
  107

  
	
  13.19

  	
  Survival

  	
  108

  
	
  13.20

  	
  Amendments; Waivers

  	
  108

  
	
  13.21

  	
  Laws

  	
  110

  
	
  13.22

  	
  Assignability as Collateral

  	
  110

  
	
  13.23

  	
  Service of Process

  	
  111

  
	
  13.24

  	
  Interest Rate Limitation

  	
  111

  
	
  13.25

  	
  Confidentiality

  	
  111

  
	
  13.26

  	
  Marshalling; Assets Set Aside

  	
  112

  
	
  13.27

  	
  Independence of Covenants

  	
  112

  
	
  13.28

  	
  Construction of the Documents

  	
  112

  
	
  13.29

  	
  Syndication

  	
  112

  
	
  13.30

  	
  The Platform

  	
  113

  
	
  13.31

  	
  Patriot Act

  	
  113

  



 


v

















 


Index of Exhibits


 


	
  Exhibit A

  	
  Definitions
  and Rules of Interpretation

  
	
   

  	
   

  
	
  Exhibit B

  	
  [Reserved]

  
	
   

  	
   

  
	
  Exhibit C

  	
  Loan
  Disbursement Procedures

  
	
  Exhibit C-1

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit C-2

  	
  Form of
  Notice of Interest Terms

  
	
  Exhibit C-3

  	
  Form of
  Drawdown Certificate

  
	
  Exhibit C-4

  	
  Form of
  Independent Engineer’s Drawdown Certificate

  
	
   

  	
   

  
	
  Exhibit D

  	
  Security-Related
  Documents

  
	
  Exhibit D-1

  	
  Form of
  Trust Deed

  
	
  Exhibit D-2

  	
  Form of
  Security Agreement

  
	
  Exhibit D-3

  	
  Form of
  Pledge Agreement

  
	
  Exhibit D-4

  	
  Form of
  Depositary Agreement

  
	
  Exhibit D-5

  	
  Schedule
  of Security Filings

  
	
   

  	
   

  
	
  Exhibit E

  	
  Consents

  
	
  Exhibit E-1

  	
  Form of
  Consent for Contracting Party (Long Form)

  
	
  Exhibit E-2

  	
  Form of
  Consent for Contracting Party (Short Form)

  
	
  Exhibit E-3

  	
  Schedule
  of Closing Date Consents and Opinions

  
	
   

  	
   

  
	
  Exhibit F

  	
  Closing
  Certificates

  
	
  Exhibit F-1

  	
  Form of
  Borrower’s Closing Certificate

  
	
  Exhibit F-2

  	
  Form of
  Pledgor Closing Certificate

  
	
  Exhibit F-3

  	
  Form of
  Borrower Entity Closing Certificate

  
	
  Exhibit F-4

  	
  Form of
  Insurance Consultant’s Certificate

  
	
  Exhibit F-5

  	
  Form of
  Independent Engineer’s Certificate

  
	
  Exhibit F-6

  	
  Form of
  Solvency Certificate

  
	
   

  	
   

  
	
  Exhibit G

  	
  Project
  Description Exhibits

  
	
  Exhibit G-1

  	
  Permit
  Schedule

  
	
  Exhibit G-2

  	
  Project
  Budget

  
	
  Exhibit G-3

  	
  Project
  Schedule

  
	
  Exhibit G-4

  	
  Litigation

  
	
  Exhibit G-5

  	
  Hazardous
  Substances Disclosure

  
	
   

  	
   

  
	
   

  	
  Other

  
	
  Exhibit H

  	
  Lenders
  Proportionate Shares

  
	
  Exhibit I

  	
  Form of
  Non-Bank Certificate

  
	
  Exhibit J

  	
  Form of
  Account Withdrawal Request

  
	
  Exhibit K

  	
  Insurance
  Requirements

  
	
  Exhibit L

  	
  Form of
  Annual Insurance Certificate

  
	
  Exhibit M

  	
  Form of
  Assignment and Assumption

  
	
  Exhibit N

  	
  Form of
  Credit Agreement Joinder

  



 


vi

















 


This
CREDIT AGREEMENT, dated as of October 20, 2010 (“Agreement”), among
MILFORD WIND CORRIDOR PHASE II, LLC, a Delaware limited liability company, as
borrower (“Borrower”), THE FINANCIAL INSTITUTIONS LISTED ON EXHIBIT H
OR WHICH LATER BECOME A PARTY HERETO, (the financial institutions party to this
Agreement being collectively referred to as the “Lenders”), THE ROYAL
BANK OF SCOTLAND PLC, as administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such capacity, the “Administrative
Agent”), RBS SECURITIES INC., as lead arranger (in such capacity, together
with its successors and assigns in such capacity, the “Lead Arranger”)
and bookrunner (in such capacity, together with its successors and assigns in such
capacity, the “Bookrunner”), THE ROYAL BANK OF SCOTLAND PLC, as
collateral agent for the Secured Parties referred to herein (in such capacity,
together with its successors and assigns in such capacity, “Collateral Agent”),
BANCO ESPÍRITO SANTO S.A. NEW YORK BRANCH (“BESI”), COBANK, ACB (“CoBank”),
SANTANDER INVESTMENT SECURITIES INC. (“Santander”), and SG AMERICAS
SECURITIES, LLC (“SGAS”), as co-syndication agents (each in such
capacity, together with its respective successors and assigns in such capacity,
the a “Co-Syndication Agent” and, collectively, the “Co-Syndication
Agents”), as joint bookrunners (each in such capacity, together with its
respective successors and assigns in such capacity, a “Joint Bookrunner”
and, collectively, the “Joint Bookrunners”) and as joint lead arrangers
(each in such capacity, together with its respective successors and assigns in
such capacity, a “Joint Lead Arranger” and, collectively, the “Joint
Lead Arrangers”).


 


RECITALS


 


A.                                    Borrower
desires to develop, construct, install, finance, own, operate and maintain the
Project referred to herein to be located in Millard and Beaver Counties, Utah,
and, in connection therewith, Borrower has requested that the Lenders provide
the credit facility described herein.


 


B.                                    The Lenders are
willing to provide such credit facility upon the terms and subject to the
conditions set forth herein and in the other Credit Documents.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing and the agreements, covenants and
promises set forth herein and in the other Credit Documents and in reliance
upon the representations and warranties set forth herein and therein, the
parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS


 


1.1                               DEFINITIONS.  For all purposes of the Credit Documents,
except as otherwise expressly provided, capitalized terms used in the Credit
Documents (including annexes, appendices, exhibits and schedules thereto) shall
have the meanings given to such terms in Exhibit A.


 


1.2                               RULES
OF INTERPRETATION.  Except as
otherwise expressly provided, the “Rules of Interpretation” set forth in Exhibit A
shall apply to the Credit Documents.


 


1

















 


1.3                               ACCOUNTING
TERMS; GAAP.  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time and as applied by the accounting entity to which they refer; provided,
that if Borrower notifies Administrative Agent that Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if Administrative Agent notifies Borrower that
the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.


 


ARTICLE 2

THE CREDIT FACILITY


 


2.1                               LOAN
FACILITY.


 


2.1.1                     Loan
Facility.


 


(a)                                 Availability.  Subject to the terms and conditions set forth
in this Agreement and in reliance upon the representations and warranties of
Borrower set forth herein, each Lender severally agrees to advance to Borrower
from time to time during the Loan Availability Period such loans as Borrower
may request pursuant to this Section 2.1.1 (individually, a “Loan”
and, collectively, the “Loans”), in an aggregate principal amount which,
when added to such Lender’s Proportionate Share of the aggregate principal
amount of all prior Loans made by such Lender, does not exceed such Lender’s
Loan Commitment.


 


(b)                                 Notice of
Borrowing; Denominations, Etc.  Borrower shall request Loans by delivering to
Administrative Agent a written notice in the form of Exhibit C-1,
appropriately completed (“Notice of Borrowing”), which contains or
specifies, among other things:


 


(i)                                     the portion of
the requested Borrowing that will be Base Rate Loans and the portion that will
be Eurodollar Loans;


 


(ii)                                  the aggregate
principal amount of the requested Borrowing, which shall be in the minimum
amount of $1,000,000 or an integral multiple of $100,000 in excess thereof; provided
that such minimum amount shall not apply to the final Borrowing of Loans;


 


(iii)                               the proposed
date of the requested Borrowing (which shall be a Business Day);


 


(iv)                              the initial
Interest Period requested for a Borrowing of a Eurodollar Loan;


 


(v)                                 a certification
by Borrower that the conditions set forth in Section 3.2 are satisfied as
of the date of the Notice of Borrowing;


 


2














 


(vi)                              a certification
by Borrower that, as of the date such requested Loan is proposed to be made,
the Loan proposed to be made on such date, when added with all other Loans,
does not exceed the Total Loan Commitment; and


 


(vii)                           the itemization
of the Project Costs to be paid with such Borrowing.


 


Notwithstanding
any provision to the contrary in this section, Borrower (x) shall request
no more than two Loan Borrowings per calendar month and (y) may not select
Eurodollar Loans if the obligations of the Lenders to make Eurodollar Loans
shall then be suspended pursuant to Section 2.6.  Borrower shall give each Notice of Borrowing
to Administrative Agent with at least the Minimum Notice Period applicable to
Loans of the Type requested.  Any Notice
of Borrowing shall be irrevocable and binding on Borrower.


 


(c)                                  Address of
Notice of Borrowing.  Each Notice
of Borrowing shall be delivered to Administrative Agent as provided in Section 13.1;
provided, however, that Borrower shall promptly deliver to
Administrative Agent the original of any Notice of Borrowing initially
delivered by facsimile or email.


 


(d)                                 Loan Principal
Payments.  Borrower
shall repay to Administrative Agent, for the account of each Lender, in full on
the Maturity Date the unpaid principal amount of all Loans made by such
Lender.  Borrower may not re-borrow the
principal amount of any Loan repaid.


 


2.1.2                     Interest
Provisions.


 


(a)                                 Interest Rate.  Subject to Section 2.4.3, Borrower shall
pay interest on the unpaid principal amount of each Loan from the date of
Borrowing of such Loan until the repayment thereof at either the Adjusted
Eurodollar Rate for Eurodollar Loans or at the Base Rate for Base Rate Loans, plus in each case the applicable Rate Margin.


 


(b)                                 Changes of Loan
Type.  The basis for determining the
interest rate with respect to any Loan may be changed from time to time as
specified in a Notice of Interest Terms delivered pursuant to
Section 2.1.6.  If on any day a Loan
is outstanding with respect to which notice has not been delivered to Administrative
Agent in accordance with the terms of this Agreement specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall
bear interest determined by reference to the Base Rate.


 


(c)                                  Interest
Payment Dates.  Borrower
shall pay accrued interest on the unpaid principal amount of each Loan
(i) in the case of each Base Rate Loan, on the last Business Day of each
March, June, September and December, (ii) in the case of each
Eurodollar Loan, on the last day of each Interest Period related to such
Eurodollar Loan and, with respect to Interest Periods longer than three months,
the last Business Day of each third month in which such Eurodollar Loan is
outstanding, (iii) in all cases, for any Loan upon its conversion from one
Type of Loan to another Type of Loan, on the effective date of such conversion,
and (iv) in all cases, upon the repayment or prepayment (whether at stated
maturity or otherwise, and including any optional prepayments or Mandatory
Prepayments) of any Loan on the date of payment thereof in full.  Each date on which any such interest payment
is due is an “Interest Payment Date”.


 


3

















 


(d)                                 Eurodollar Loan
Interest Periods.


 


(i)                                     Each Interest
Period selected by Borrower for all Eurodollar Loans shall be one, two, three
or six months; provided, however, that, (A) any Interest
Period which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless such next Business Day
falls in another calendar month, in which case such Interest Period shall end
on the immediately preceding Business Day; (B) any Interest Period which
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the last full
calendar month of such Interest Period; (C) Borrower may not select
Interest Periods which would leave a greater principal amount of Loans subject
to Interest Periods ending after a date upon which Loans are or may be required
to be repaid (including the Maturity Date) than the principal amount of Loans
scheduled to be outstanding after such date; (D) Eurodollar Loans for each
Interest Period shall be in the minimum amount of $1,000,000 or an integral
multiple of $100,000 in excess thereof; (E) during the Initial Period,
Borrower may not have selected Interest Periods of greater than one month; and
(F) Borrower may not at any time have outstanding more than (x) during
the period prior to Final Completion, six different Interest Period end-dates
relating to Eurodollar Loans, and (y) during the period after Final
Completion, three different Interest Period end-dates relating to Eurodollar
Loans.


 


(ii)                                  Borrower may
contact Administrative Agent at any time prior to the end of an Interest Period
for an indicative quotation of Interest Rates in effect at such time for given
Interest Periods and Administrative Agent shall promptly provide such quotation
with the understanding that such quotation may change by the time Borrower
formally requests a borrowing or continuation thereunder.  Borrower may, subject to Section 2.1.5,
select to continue any Eurodollar Loan for any permissible Interest Period by
communicating such selection to Administrative Agent by telephone or by email,
which selection shall be irrevocable. 
Borrower shall promptly confirm such telephonic or email notice to
Administrative Agent within the time periods required by Section 2.1.6 by
delivering to Administrative Agent by facsimile, an emailed pdf or
hand-delivery of a Notice of Interest Terms, appropriately completed in
accordance with the instructions contained in such form.  Borrower shall promptly deliver to Administrative
Agent any original Notice of Interest Terms initially delivered by facsimile or
email.  If Borrower fails to notify
Administrative Agent of the next Interest Period for any Eurodollar Loans in
accordance with this Section 2.1.2(d)(ii), such Loans shall automatically
convert to Base Rate Loans on the last day of the current Interest Period
therefor.  Administrative Agent shall as
soon as practicable notify Borrower of each determination of the Interest Rate
applicable to each Loan.


 


(e)                                  Interest
Computations.  All
computations of interest based on the Base Rate when calculated using the Prime
Rate shall be based upon a year of 365 days or, in the case of a leap
year, 366 days, shall be payable for the actual days elapsed (including
the first day but excluding the last day) in the period for which such interest
is payable, and shall be adjusted in accordance with any changes in the Base
Rate to take effect on the beginning of the day of such change in the Base
Rate.  All computations of interest based
on the Eurodollar Rate and the Federal Funds Rate shall be based upon a year of
360 days and shall be payable for the actual days elapsed (including the
first day but excluding the last day) in the period for which such 


 


4

















 


interest or fees are payable.  Borrower agrees that all computations by
Administrative Agent of interest shall be conclusive and binding in the absence
of manifest error.


 


2.1.3                     [Reserved]


 


2.1.4                     Loan
Funding.


 


(a)                                 Notice to
Lenders.  Administrative Agent shall
promptly notify each Lender of the contents of each Notice of Borrowing and
Notice of Interest Terms.


 


(b)                                 Pro
Rata Loans.  All Loans shall be made on a pro rata basis by the Lenders in accordance with their
respective Proportionate Shares of such Loans, with each Borrowing to consist
of a Loan by each Lender equal to such Lender’s Proportionate Share of such
Loan.


 


(c)                                  Lender Funding.  Before 11:00 a.m. on the date of each
Borrowing of a Eurodollar Loan and before 2:00 p.m. on the date of each
Borrowing of a Base Rate Loan, each Lender shall make available to the account
of Administrative Agent most recently designated by it for such purpose, by
wire transfer, immediately available funds in Dollars, such Lender’s
Proportionate Share of the Loan to be made on such date.  The failure of any Lender to make the Loan to
be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation hereunder to make its Loan on the date of such Loan.  No Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
the date of any Borrowing.


 


(d)                                 Failure of
Lender to Fund.  Unless
Administrative Agent shall have been notified by any Lender prior to the
applicable date of a Borrowing that such Lender does not intend to make
available to Administrative Agent the amount of such Lender’s Proportionate
Share of the Loan requested on such date, Administrative Agent may assume that
such Lender has made such amount available to Administrative Agent on such date
in accordance with the prior paragraph and Administrative Agent may, in its
sole discretion and in reliance upon such assumption, make available to
Borrower a corresponding amount on such date. 
If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand (and, in any event, within two
Business Days from the applicable date of such Borrowing) from such Lender
together with interest thereon, for each day from the applicable date of such
Borrowing until the date such amount is paid to Administrative Agent, at the
Federal Funds Rate for the first two Business Days after such date.  If such Lender pays such amount to
Administrative Agent, then such amount shall constitute such Lender’s
Proportionate Share of such Loan.  If
such Lender does not pay such corresponding amount forthwith upon
Administrative Agent’s demand therefor or within two Business Days from the
applicable date of such Borrowing, Administrative Agent shall promptly notify
Borrower and Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from the
applicable date of such Borrowing until the date such amount is paid to
Administrative Agent, at the rate then payable under this Agreement for Base
Rate Loans.  Any amounts repaid by
Borrower pursuant to this Section 2.1.4(d) shall be available for
re-borrowing if (i) the non-funding Lender makes available to
Administrative Agent the amount of such Lender’s 


 


5

















 


Proportionate Share of the Loan requested, including
interest thereon, or (ii) a substitute Lender advances such repaid amounts
pursuant to Section 11.14.  Nothing
in this Section 2.1.4(d) shall be deemed to relieve any Lender from
its obligation to fulfill its obligations hereunder or to prejudice any rights
that Borrower may have against any Lender as a result of any default by such
Lender hereunder.


 


(e)                                  Construction
Account.  No later than 2:00 p.m.
on the date specified in each Notice of Borrowing, if the applicable conditions
precedent listed in Article 3 have been satisfied or waived in accordance
with the terms thereof and, subject to Section 2.1.4(d), to the extent
Administrative Agent shall have received the appropriate funds from the
Lenders, Administrative Agent shall make available the Loans requested in such
Notice of Borrowing (or so much thereof as shall have been determined pursuant
to Section 3.4) in Dollars and in immediately available funds, and shall
deposit or cause to be deposited the proceeds of such Loans into the
Construction Account.


 


2.1.5                     Conversion
of Loan Type; Continuation of Eurodollar Loans.  Upon notice as provided in
Section 2.1.6, Borrower may convert Loans from one Type to another Type or
continue a Eurodollar Loan; provided, that:


 


(a)                                 any conversion
of Eurodollar Loans into Base Rate Loans shall be made on, and only on, the
first day after the last day of an Interest Period for such Eurodollar Loans; provided
that such conversion may be made on another date so long as Borrower pays any
applicable Eurodollar Breakage Costs;


 


(b)                                 Loans shall be
converted into Eurodollar Loans only in amounts of $1,000,000 and increments of
$100,000  in excess thereof;


 


(c)                                  any portion of
a Loan maturing or required to be repaid in less than one month may not be
converted into or continued as a Eurodollar Loan;


 


(d)                                 notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing, Administrative Agent or the Required Lenders may require, by notice
to Borrower (provided that if such Event of Default is an Event of
Default under Section 8.1.2 applicable to Borrower, then the following
shall be automatic rather than following notice), that (i) no outstanding
Loan may be converted to or continued as a Eurodollar Loan and (ii) unless
repaid, each Eurodollar Loan shall be converted to a Base Rate Loan at the end
of the Interest Period applicable thereto; and


 


(e)                                  any portion of
a Eurodollar Loan that cannot be converted or continued as a Eurodollar Loan,
or with respect to which Borrower fails to give a timely Notice of Interest
Terms, appropriately completed in accordance with the instructions contained in
such form, shall be converted at the end of an Interest Period then in effect
for such Eurodollar Loan into a Base Rate Loan.


 


2.1.6                     Notice
of Interest Terms.  Borrower shall
request a Loan conversion or continuation, as the case may be, by delivering to
Administrative Agent a Notice of Interest Terms in the form of Exhibit C-2,
appropriately completed in accordance with the instructions contained in such
form (a “Notice of Interest Terms”). 
Borrower shall deliver each Notice of 


 


6

















 


Interest Terms within the applicable Minimum Notice
Period.  Any Notice of Interest Terms
shall be irrevocable.


 


2.1.7                     Prepayments.


 


(a)                                 Terms of All
Prepayments.


 


(i)                                     Upon the
prepayment of any Loan (whether such prepayment is an optional prepayment under
Section 2.1.7(b) or a Mandatory Prepayment), Borrower shall pay to
Administrative Agent for the account of each Lender which made such Loan,
(A) all accrued interest to the date of such prepayment on the amount of
such Loan prepaid, (B) all accrued fees to the date of such prepayment
relating to the amount of such Loan being prepaid, and (C) if such
prepayment is the prepayment of a Eurodollar Loan on a day other than the last
day of an Interest Period for such Eurodollar Loan, all Eurodollar Breakage
Costs incurred by such Lender as a result of such prepayment.


 


(ii)                                  Notwithstanding
the foregoing, but only in respect of any Mandatory Prepayment, Borrower shall
have the right, by giving five Business Days’ notice to Administrative Agent,
in lieu of prepaying a Eurodollar Loan on a day other than the last day of an
Interest Period for such Eurodollar Loan, to deposit or cause Administrative
Agent to deposit into the Repayment Account an amount equal to the Eurodollar
Loans to be prepaid.  Such funds shall be
held in the Repayment Account until the expiration of the Interest Period
applicable to the Eurodollar Loan to be prepaid at which time such amount shall
be used to prepay such Eurodollar Loan and any interest accrued on such amount
shall be deposited into the Revenue Account. 
The deposit of amounts into the Repayment Account shall be deemed to
satisfy Borrower’s obligation to make the relevant Mandatory Prepayment on its
due date, but shall not, however, constitute a prepayment of Loans and all
Loans to be prepaid using the proceeds from the Repayment Account shall
continue to accrue interest at the then applicable interest rate for such Loans
until actually prepaid.  All amounts in
the Repayment Account shall only be invested in Permitted Investments as
directed in the sole discretion of Administrative Agent.  Borrower shall bear the expense and risk of
any such investment.


 


(b)                                 Optional
Prepayments.  Subject to
Section 2.1.7(a), Borrower may, at its option and without premium or
penalty, upon three Business Days’ notice to Administrative Agent, prepay any
Loans in whole or from time to time in part in minimum principal amounts of
$1,000,000 or an incremental multiple of $100,000 in excess thereof (provided,
that such minimum amounts shall not apply to a prepayment of all outstanding
Loans).


 


(c)                                  Mandatory
Prepayments.  Borrower
shall prepay Loans (i) to the extent required by Sections 7.4, 7.5
and 7.6, (ii) with the Net Cash Proceeds received in connection with the
issuance of Debt (other than Debt permitted under the Credit Documents),
(iii) with the Net Cash Proceeds of any Equity Issuance (including, but
not limited to any tax equity contribution relating to Borrower or the
Project), (iv) with the proceeds of any Grant unless the Tax Equity
Contribution Conditions have been met, (v) with any Prepayment Amount, or
(vi) as required under any other provision of the Credit Documents which
requires such prepayment (each such prepayment, a “Mandatory Prepayment”).  The provisions of this Section 2.1.7(c) 


 


7

















 


shall not be deemed to be implied consent to any
issuance, incurrence or sale otherwise prohibited by the terms and conditions
of this Agreement.


 


(d)                                 Notice of Prepayment.  Borrower shall notify Administrative Agent by
notice of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Loan, not later than 11:00 a.m. three Business Days before the
date of prepayment, (ii) in the case of prepayment of a Base Rate Loan,
not later than 11:00 a.m. two Business Days before the date of
prepayment.  Each such notice shall be
irrevocable.  Each such notice shall
specify the prepayment date and the principal amount of each Loan or portion
thereof to be prepaid and, in the case of a Mandatory Prepayment, a reasonably
detailed calculation of the amount of such prepayment.  If any notice of prepayment is given, the
amount specified in such notice shall be due and payable on the date specified
therefor, together with accrued interest to the payment date on the principal
amount to be prepaid.  Upon receipt of
any notice of prepayment, Administrative Agent shall promptly advise the
Lenders of the contents thereof.


 


(e)                                  Repayment
Account.  All prepayments (whether
optional prepayments or Mandatory Prepayments) shall be deposited in the
Repayment Account for immediate application to the repayment of Loans (subject
to Sections 2.1.7(a)(ii) and 2.7.1).


 


2.2                               TOTAL
COMMITMENTS.


 


2.2.1                     Total
Loan Commitment.  The
aggregate principal amount of all Loans made by the Lenders shall not exceed
$247,000,000, as such amount may be reduced
pursuant to Section 2.2.2 (such amount, so reduced from time to time, the “Total
Loan Commitment”).


 


2.2.2                     Reductions
and Cancellations.


 


(a)                                 Voluntary Reductions
and Cancellations.  Borrower
may, from time to time upon five Business Days notice to Administrative Agent,
permanently reduce (without premium or penalty), by an amount of $1,000,000  or an integral multiple of $100,000 in
excess thereof or cancel in its entirety the Total Loan Commitment, subject to
the provisions of Section 2.1.7(b) and this
Section 2.2.2(a).  Borrower may not
reduce or cancel the Total Loan Commitment if, after giving effect to such
reduction or cancellation, (a) the aggregate principal amount of all Loans
then outstanding would exceed the Total Loan Commitment, (b) the Available
Construction Funds would not, in the reasonable judgment of Administrative
Agent and the Independent Engineer, equal or exceed remaining Project Costs
(including budgeted contingency (or the appropriate part thereof) and
anticipated Eurodollar Breakage Costs, if any, arising from any prepayment
related to such reduction or cancellation), or (c) such reduction or
cancellation would cause a Default or Event of Default or have a Material
Adverse Effect.


 


(b)                                 Mandatory
Reduction.  In the
event that there is an update to the Cost Segregation Report, as provided in Section 5.23,
that anticipates a reduction in the expected amount of the Grant, as compared
to the prior Cost Segregation Report, the Total Loan Commitment shall be
provisionally reduced by an amount equal to the amount of such reduction multiplied by 95%. 
Such reduction shall become permanent upon achievement of the Commercial
Operation Date in the event that no update to the Cost Segregation Report at
that 


 


8

















 


time has restored the expected amount of the Grant
(without taking into account any increase in the expected amount of the Grant
resulting from expenditure of contingency).


 


(c)                                  Commitment Fee
for Reductions and Cancellations.  Borrower shall pay to Administrative Agent
any Commitment Fee then due in respect of the canceled or reduced portion of
the Total Loan Commitment (if applicable) upon any cancellation or reduction
and, from the effective date of any cancellation or reduction, the Commitment
Fee shall be computed on the basis of the amount of the Total Loan Commitment
as so canceled or reduced.  No such
reduction shall apply to Total Loan Commitments that are only provisionally
reduced pursuant to Section 2.2.2(b).


 


(d)                                 Increase or
Reinstatement; Ratable Application.  Once reduced or canceled, the applicable
Commitment may not be increased or reinstated. 
Any reduction in the Total Loan Commitment pursuant to this
Section 2.2.2 shall be applied ratably to each Lender’s Loan Commitments
in accordance with Section 2.5.1.


 


2.3                               FEES.


 


2.3.1                     Administrative
Agent Fees.  Borrower
shall pay to Administrative Agent solely for Administrative Agent’s account the
fees and other amounts described in the Fee Letter.


 


2.3.2                     Commitment
Fee.  On the last Business Day in
each calendar quarter and on and until the Maturity Date (or, if the Total Loan
Commitment is canceled prior to such date, on the date of such cancellation),
Borrower shall pay to Administrative Agent, for the benefit of the Lenders
(other than any Defaulting Lender which becomes a Defaulting Lender by virtue
of clause (a) of the definition of “Defaulting Lender”), accruing from the
Closing Date or the first day of such quarter, as the case may be, a commitment
fee for such quarter (or portion thereof) then ending equal to the product of
(a) the daily average Available Loan Commitment (excluding any of the
Available Loan Commitment of any such Defaulting Lender) for such quarter (or
portion thereof), multiplied by (b) a
fraction, the numerator of which is the number of days in such quarter (or
portion thereof) and the denominator of which is the number of days in that
calendar year (365 or 366, as the case may be), multiplied by (c) 0.75%.


 


2.3.3                     Arrangement
Fees.  Borrower shall pay to the Lead
Arranger, solely for the account of such Person  in such capacity, the fees as described and in the manner set
forth in the Fee Letter.


 


2.4                               OTHER
PAYMENT TERMS.


 


2.4.1                     Place
and Manner.  Except as
otherwise provided in the Fee Letter or any other provision contained in any of
the Credit Documents, Borrower shall make all payments due hereunder to
Administrative Agent, to the account in the name of Milford Wind Corridor
Phase II, Account No. 400931052, at JPMorgan Chase Bank, ABA
No. 021000021, or such other account as Administrative Agent shall notify
Borrower from time to time, in Dollars and in immediately available funds not
later than 12:00 noon on the date on which such payment is due.  Any payment made after such time on any day
shall be deemed received on the Business Day after such payment is
received.  Administrative Agent shall
distribute to each Secured Party each such payment received by Administrative
Agent for such Secured Party to be applied in accordance 


 


9

















 


with the terms of this Agreement, such disbursement
to occur on the day such payment is received if received by 12:00 noon or
if otherwise reasonably possible, or otherwise on the next Business Day.  Upon its acceptance and recording in the
Register of any Assignment and Assumption entered into under Section 13.17,
from and after the effective date specified therein, Administrative Agent shall
make all the payments hereunder in respect of this Agreement interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Assumption shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.


 


2.4.2                     Date.  Whenever any payment due hereunder shall fall
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included in the
computation of interest or fees, as the case may be, without duplication of any
interest or fees so paid in the next subsequent calculation of interest or fees
payable; provided, however, that, if such extension would cause
payment of interest on or principal of a Eurodollar Loan to be made in the next
succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.


 


2.4.3                     Default
Rate.  Notwithstanding anything to
the contrary herein, upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable Legal Requirements, any accrued but unpaid
interest payments thereon and any accrued but unpaid fees and other amounts
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under applicable Bankruptcy Laws) from the date of such Event of
Default until the Event of Default is cured or waived, after as well as before
judgment, payable upon demand at a rate that is (a) 2% per annum in excess
of the interest rate then otherwise payable under this Agreement with respect
to the applicable Loans or (b) in the case of any such fees and other
amounts, at a rate that is 2% per annum in excess of the interest rate then
otherwise payable under this Agreement for Base Rate Loans (the “Default
Rate”).  Payment or acceptance of the
increased rates of interest provided for in this Section is not a
permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or otherwise prejudice or limit any rights or remedies of
any Secured Party.


 


2.4.4                     Net
of Taxes, Costs, Etc.


 


(a)                                 Taxes.  Any and all payments to or for the benefit of
any Secured Party by Borrower under any Credit Document shall be made free and
clear of and without deduction, set-off or counterclaim of any kind whatsoever
and in such amounts as may be necessary in order that all such payments, after
deduction for or on account of any present or future taxes, assessment, levies,
imposts, duties, deductions, charges or withholdings, and all liabilities with
respect thereto (excluding (i) income or franchise taxes imposed on or
measured by the net income, net profits or capital of such Secured Party by any
jurisdiction or any political subdivision or taxing authority thereof or
therein as a result of a connection between such Secured Party and such
jurisdiction or political subdivision, unless such connection results solely
from such Secured Party’s executing, delivering or performing its obligations
or receiving a payment under, or enforcing, this Agreement (such excluded taxes
described in (i) being hereinafter referred to as “Excluded Lender
Income Taxes”), and (ii) any withholding tax that is imposed on
amounts payable to a Secured Party at the time it becomes a party to this
Agreement, 


 


10

















 


except to the extent that such Secured Party’s
assignor was entitled to receive additional amounts from Borrower with respect
to such withholding tax pursuant to this Section 2.4.4) (all such
non-excluded taxes, assessment, levies, imposts, duties, deductions, charges or
withholdings and liabilities being hereinafter referred to as “Taxes”),
shall be equal to the amounts otherwise specified to be paid under the Credit
Documents.  If Borrower shall be required
by applicable Legal Requirements to withhold or deduct any Taxes from or in
respect of any sum payable under any Credit Document to any Secured Party,
(i) subject to such Secured Party’s compliance with Section 2.4.6,
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.4.4), such Secured Party receives an amount equal to
the sum it would have received had no such deductions been made,
(ii) Borrower shall make such deductions and (iii) Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Legal Requirements.  In addition, Borrower agrees to pay any
present or future stamp, recording or documentary taxes and any other excise or
property taxes, charges or similar levies (not including Excluded Lender Income
Taxes) that arise under the laws of the United States of America, the State of
New York, the Project Jurisdiction, the state of Borrower’s formation or any
other jurisdiction from any payment made under any Credit Document or from the
execution or delivery or otherwise with respect to any Credit Document
(hereinafter referred to as “Other Taxes”).


 


(b)                                 Tax Indemnity.  Borrower shall indemnify such Secured Party
for and hold it harmless against the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.4.4) paid by any Secured Party, or any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted.  Payments by
Borrower pursuant to this indemnification shall be made within 30 days
from the date such Secured Party makes written demand therefor (submitted
through Administrative Agent), which demand shall be accompanied by a
certificate describing in reasonable detail the basis thereof; provided,
that if such Secured Party procures the refund of any indemnified amount, such
Secured Party shall pay the amount of such refund, net of costs and taxes
incurred by such Secured Party as a result of such refund, to Borrower within
30 days after receipt of such refund amount, provided, however,
that for the avoidance of doubt, this sentence shall not be construed to grant
the Borrower any right to review the tax returns of such Secured Party.


 


(c)                                  Notice.  Within 30 days after the date of any
payment of Taxes by Borrower, Borrower shall furnish to Administrative Agent,
at its address referred to in Section 13.1.1, the original or a certified
copy of a receipt evidencing payment thereof or, if such receipt is not obtainable,
other evidence of such payment by Borrower reasonably satisfactory to
Administrative Agent.  Borrower shall
compensate each Secured Party for all reasonable losses and expenses sustained
by such Secured Party as a result of any failure by Borrower to so furnish such
copy of such receipt.  In the event of
any payment hereunder by or on behalf of Borrower through an account or branch
outside the United States or on behalf of Borrower by a payor that is not a United
States person, if Borrower determines that no Taxes are payable in respect
thereof, Borrower shall furnish, or cause such payor to furnish, to
Administrative Agent an opinion of counsel reasonably acceptable to
Administrative Agent stating that such payment is exempt from Taxes.  For purposes of this Section, the terms “United
States” and “United States person” have the respective meanings specified in
Section 7701 of the Code.


 


11

















 


2.4.5                     Application
of Payments.  Except as
otherwise expressly provided in any Credit Document, payments made under the
Credit Documents and other amounts received by the Secured Parties under the
Credit Documents shall first be applied to any fees, costs, charges or expenses
payable to the Secured Parties under the Credit Documents, next to any accrued
but unpaid interest then due and owing, then to outstanding principal then due
and owing or otherwise to be prepaid, in each case, such application to be made
on a pro rata basis among such applicable Persons.


 


2.4.6                     Withholding
Exemption Certificates. 
Administrative Agent on the Closing Date and each Lender upon becoming a
Lender and each Person to which any Lender grants a participation (or otherwise
transfers its interest in this Agreement) agree that such Lender or Person will
deliver to Administrative Agent and Borrower either (a) if such Lender or
Person is organized under the laws of the United States or any political
subdivision thereof, an executed copy of a United States Internal Revenue
Service Form W-9, or (b) if such Lender or Person is not organized
under the laws of the United States or any political subdivision thereof 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 therein (i) in case such Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, an entitlement to a
reduction in, or an exemption from, United States withholding taxes with
respect to payments of interest, and (ii) otherwise, an entitlement to an
exemption from United States withholding taxes) and, in case such Lender is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a
duly completed and executed non-bank certificate in the form of Exhibit I.  Each Lender which delivers to Borrower and
Administrative Agent a Form W-8BEN or W-8ECI pursuant to the preceding
sentence further undertakes to deliver to Borrower and Administrative Agent
further copies of the 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 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 forms previously delivered by it to Borrower, and such
extensions or renewals thereof as may reasonably be requested by Borrower,
certifying in the case of a Form W-8BEN or W-8ECI that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless in any such cases
any change in treaty, law or regulation has occurred prior to the date on which
any such delivery would otherwise be required which renders such forms inapplicable
or which would prevent a Lender from duly completing and delivering any such
form with respect to it and such Lender advises Borrower that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax, and in the case of Form W-8BEN or W-8ECI, establishing
an exemption from United States backup withholding tax.  Notwithstanding any other provision of this
Section 2.4.6, a Lender shall not be required to deliver any form pursuant
to this Section 2.4.6 that such Lender is not legally able to
deliver.  Borrower shall not be obligated
to pay any additional amounts in respect of United States federal income tax
pursuant to Section 2.4.4 (or make an indemnification payment pursuant to
Section 2.4.4) to any Lender (including any entity to which any Lender
sells, assigns, grants a participation in, or otherwise transfers its rights
under this Agreement) to the extent the obligation to pay such additional
amounts (or such indemnification) would not have arisen but for a failure of
such Lender to comply with its obligations under this Section 2.4.6.


 


12














 


2.4.7                     Authorization.  Borrower hereby authorizes Administrative
Agent and each Lender, if and to the extent payment owed to such Lender is not
made when due, to charge from time to time against any or all of Borrower’s
accounts with such Lender any amounts so due.


 


2.4.8                     Administrative
Agent Assumption.  Unless
Administrative Agent shall have been notified by Borrower prior to the date on
which any payment from Borrower is due hereunder that Borrower does not intend
to make such payment in full, Administrative Agent may assume that Borrower has
made such payment in full to Administrative Agent on such date and
Administrative Agent may, in its sole discretion and in reliance upon such
assumption, cause to be distributed to each Secured Party on such due date an
amount equal to the amount then due such Secured Party.  If and to the extent Borrower shall not have
so made such payment in full to Administrative Agent, each Secured Party shall
repay to Administrative Agent forthwith on demand such amount distributed to
such Secured Party together with interest thereon, for each day from the date
such amount is distributed to such Secured Party until the date such Secured
Party repays such amount to Administrative Agent, at the Federal Funds Rate.


 


2.5                               PRO
RATA TREATMENT.


 


2.5.1                     Borrowings,
Commitment Reductions, Etc.  Except as otherwise provided herein,
(a) each Borrowing and each reduction of the Total Loan Commitment shall
be made or allocated among the Lenders pro rata
according to their respective Proportionate Shares of the Loans or Loan
Commitments, as the case may be and (b) each payment of principal of and
interest on Loans shall be made or shared among the Lenders holding such Loans pro rata according to their respective unpaid principal
amounts of such Loans held by such Lenders, and (c) each payment of
Commitment Fee upon reduction of the Total Loan Commitment shall be shared
among the Lenders pro rata according to
(i) their respective Proportionate Shares of the Total Loan Commitment,
and (ii) in the case of each Lender which becomes a party to this
Agreement hereunder after the Closing Date, the date upon which such Lender so
became a party hereunder.


 


2.5.2                     Sharing
of Payments, Etc.  If
any Secured Party shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on account of Loans
owed to it, in excess of its Proportionate Share of payments on account of such
Loans obtained by all Secured Parties entitled to such payments, such Secured
Party shall forthwith purchase from the other Secured Parties such
participation in the Loans as shall be necessary to cause such purchasing
Secured Party to share the excess payment ratably with each of them; provided,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Secured Party, such purchase from such Secured Party shall be
rescinded and each other Secured Party shall repay to the purchasing Secured
Party the purchase price to the extent of such recovery together with an amount
equal to such other Secured Party’s Proportionate Share (according to the
proportion of (a) the amount of such other Secured Party’s required
repayment to (b) the total amount so recovered from the purchasing Secured
Party) of any interest or other amount paid or payable by the purchasing
Secured Party in respect of the total amount so recovered.  Borrower agrees that any Secured Party so
purchasing a participation from another Secured Party pursuant to this
Section 2.5.2 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such 


 


13

















 


participation as fully as if such Secured Party were
the direct creditor of Borrower in the amount of such participation.


 


2.6                               CHANGE
OF CIRCUMSTANCES.


 


2.6.1                     Inability
to Determine Rates.  If, on or
before the first day of any Interest Period for any Eurodollar Loans,
(a) Administrative Agent determines that the Adjusted Eurodollar Rate for such Interest Period cannot be
adequately and reasonably determined due to the unavailability of funds in or
other circumstances affecting the London interbank market, or (b) Lenders
holding aggregate Proportionate Shares of 25% or more of the Loan Commitments
shall advise Administrative Agent that (i) the rates of interest for such
Eurodollar Loans do not adequately and fairly reflect the cost to such Lenders
of making or maintaining such Loans or (ii) deposits in Dollars in the
London interbank market are not available to such Lenders (as conclusively
certified by each such Lender in good faith to Administrative Agent and to
Borrower) in the ordinary course of business in sufficient amounts to make
and/or maintain their Eurodollar Loans, then Administrative Agent shall
immediately give notice of such condition to Borrower and the Lenders.  After the giving of any such notice and until
Administrative Agent shall otherwise notify Borrower and the Lenders that the
circumstances giving rise to such condition no longer exist Borrower’s right to
request the making of or conversion to, and the Lenders’ obligations to make or
convert to, Eurodollar Loans shall be suspended and any Eurodollar Loans
outstanding at the commencement of any such suspension shall be converted at
the end of the then current Interest Period for such Loans into Base Rate Loans
unless such suspension has then ended. 
In the alternative, if clause (b)(i) has been triggered and
Borrower so requests, Borrower’s right to request the making of or conversion
to, and the Lenders’ obligations to make or convert to, Eurodollar Loans shall
not be suspended and any Eurodollar Loans outstanding at the commencement of
any such suspension need not be converted at the end of the then current
Interest Period for such Loans into Base Rate Loans, and, until Administrative
Agent shall otherwise notify Borrower and the Lenders that the circumstances
giving rise to such condition no longer exist, Eurodollar Loans shall bear
interest at a rate equal to the weighted average of the rates per annum
(calculated on the basis of a year of 365 days) certified to Administrative
Agent by each Lender as soon as practicable but, in any event, before interest
is due to be paid in respect of such Interest Period, constituting the cost to
such Lender of funding its participation in such Borrowing from whatever source
it may reasonably select; provided that, in calculating such average the
Administrative Agent shall ignore the highest and the lowest rate so certified
and any Lender that does not respond (A) within 5 Business Days or (B) prior
to interest being due in respect of such Interest Period shall be deemed to
have certified the applicable Eurodollar Rate.


 


2.6.2                     Illegality.  If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule or
the application or requirements thereof (whether such change occurs in
accordance with the terms of such Governmental Rule as enacted, as a
result of amendment, or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority, or
compliance by any Lender or Borrower with any request or directive (whether or
not having the force of law, but if not having the force of law, being of a
type with which a Lender customarily complies) of any Governmental Authority (a
“Change of Law”) shall make it unlawful or impossible for any Lender to
make or maintain any Eurodollar Loan, then such Lender shall immediately notify



 


14

















 


Administrative Agent and Borrower of such Change of
Law.  Upon receipt of such notice,
(a) Borrower’s right to request the making of or conversion to, and the
Lender’s obligations to make or convert to, Eurodollar Loans shall be suspended
for so long as such condition shall exist, and (b) Borrower shall at its
option, upon request of such Lender, either (i) pursuant to
Section 2.1.5, convert any then outstanding Eurodollar Loans into Base
Rate Loans, in accordance with such request, immediately or at the end of the
current Interest Periods for such Loans, or (ii) prepay pursuant to
Section 2.1.7 any then outstanding Eurodollar Loans.  Any conversion or prepayment of Eurodollar
Loans made pursuant to the preceding sentence prior to the last day of an
Interest Period for such Loans shall be deemed a prepayment thereof for
purposes of Section 2.7.


 


2.6.3                     Increased
Costs.  If, after the date of this
Agreement, any Change of Law:


 


(a)                                 shall subject
any Lender to any tax, duty or other charge with respect to any Eurodollar Loan
or Commitment in respect thereof, or shall change the basis of taxation of
payments by Borrower to any Lender on such a Loan or with respect to any such
Commitment (except for Taxes, Other Taxes or changes in the rate of taxation of
Excluded Lender Income Taxes); or


 


(b)                                 shall impose,
modify or hold applicable any reserve, special deposit or similar requirement
(without duplication of any reserve requirement included within the applicable
Interest Rate through the definition of “Reserve Requirement”) against assets
held by, deposits or other liabilities in or for the account of, advances or
loans by, or any other acquisition of funds by any Lender for any Eurodollar
Loan; or


 


(c)                                  shall impose on
any Lender any other condition directly related to any Eurodollar Loan or
Commitment in respect thereof;


 


and
the effect of any of the foregoing is to increase the cost to such Lender of
making, issuing, creating, renewing, participating in (subject to the
limitations in Section 13.17.3) or maintaining any such Eurodollar Loan or
Commitment in respect thereof or to reduce any amount receivable by such Lender
hereunder, then Borrower shall from time to time, within 10 days after
demand by such Lender, pay to such Lender additional amounts sufficient to
reimburse such Lender  for such
increased costs or to compensate such Lender  for
such reduced amounts.  A certificate
setting forth in reasonable detail the amount of such increased costs or
reduced amounts and the basis for determination of such amount, submitted by
such Lender  to Borrower, shall, in the
absence of manifest error, be conclusive and binding on Borrower for purposes
of this Agreement.


 


2.6.4                     Capital
Requirements.  If any
Lender  determines that (a) the adoption,
effectiveness, phase-in or applicability after the date hereof of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
therein or in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof, or
compliance by any Lender  with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority has or would have
the effect of reducing the rate of return on the capital of such Lender, or the
Lending Office of such Lender  or any Person
controlling such Lender  (a “Capital
Adequacy Requirement”) as a consequence of, or with reference to, such
Lender’s Loans or 


 


15

















 


Loan Commitments or other obligations hereunder to a
level below that which such Lender  or such Person
could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender  or such controlling Person with
regard to capital adequacy), and (b) the amount of capital maintained by
such Lender or such Person which is attributable to or based upon the Loans,
the Commitments or this Agreement must be increased as a result of such Capital
Adequacy Requirement (taking into account such Lender’s or such Person’s
policies with respect to capital adequacy), then Borrower shall pay to such
Lender or such Person, within 10 days after delivery of demand by such
Lender or such Person, such amounts as such Lender or such Person shall
reasonably determine are necessary to compensate such Lender or such Person for
such reduced return or the increased costs to such Lender or such Person of
such increased capital.  A certificate of
such Lender or such Person, setting forth in reasonable detail the computation
of any such increased costs, delivered to Borrower by such Lender or such
Person shall, in the absence of manifest error, be conclusive and binding on
Borrower for purposes of this Agreement.


 


2.6.5                     Notice.  Each Lender shall notify Borrower of any
event occurring after the date of this Agreement that will entitle such Lender
to compensation pursuant to this Section 2.6, as promptly as practicable,
and in no event later than 180 days after the principal officer of such
Lender responsible for administering this Agreement obtains knowledge thereof; provided,
that any Lender’s failure to notify Borrower within such 180-day period shall
not relieve Borrower of its obligation under this Section 2.6 with respect
to claims arising prior to the end of such period, but shall relieve Borrower
of its obligations under this Section 2.6 with respect to the time between
the end of such period and such time as Borrower receives notice from the
indemnitee as provided herein, except that if the event which entitles such
Lender to compensation under this Section 2.6 shall be retroactive to a
time prior to the commencement of such 180-day period, such period shall
commence from such earlier date.  No
Person purchasing from a Lender a participation in the Loan Commitment (as
opposed to an assignment) shall be entitled to any payment from or on behalf of
Borrower pursuant to Section 2.6.3 or Section 2.6.4 which would be in
excess of the applicable proportionate amount (based on the portion of the Loan
Commitment) which would then be payable to such Lender if such Lender had not
sold a participation in that portion of the Loan Commitment.


 


2.7                               FUNDING
LOSSES.


 


2.7.1                     Eurodollar
Funding Costs.  If Borrower
shall (a) repay or prepay any Eurodollar Loan on any day other than the
last day of an Interest Period for such Loan (whether an optional prepayment or
a Mandatory Prepayment), (b) fail to borrow any Eurodollar Loan in
accordance with a Notice of Borrowing delivered to Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or
otherwise), (c) fail to convert any Loan into a Eurodollar Loan in
accordance with a Notice of Interest Terms delivered to Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or
otherwise), (d) fail to continue any Eurodollar Loan in accordance with a
Notice of Interest Terms delivered to Administrative Agent, (e) fail to
make any prepayment in accordance with any notice of prepayment delivered to
Administrative Agent, (f) fail to pay when due the principal amount of or
interest on any Eurodollar Loan, or (g) convert a Eurodollar Loan to a
Base Rate Loan on any date other than the last day of an Interest Period, then
Borrower shall, within five days after demand by any Lender, indemnify such
Lender and hold it harmless from any and all costs, 


 


16

















 


expenses, losses and liabilities (collectively, the “Eurodollar
Breakage Costs”) incurred by such Lender as a result of such repayment,
prepayment, conversion or failure. 
Borrower understands and agrees that Eurodollar Breakage Costs may
include costs, expenses, losses and liabilities, but not loss of the Rate
Margin, incurred by a Lender as a result of funding and other contracts entered
into by such Lender to fund Eurodollar Loans or otherwise arising from the
redeployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds are obtained. 
If for any reason (other than final Maturity of the Loans or upon
acceleration of the Loans upon the occurrence and during the continuation of an
Event of Default) Borrower is required to repay a portion of the Loans pursuant
to the terms of any Credit Document and such repayment would cause Eurodollar
Breakage Costs, Administrative Agent agrees, at Borrower’s request, to hold any
such funds and only apply such funds to the repayment of the Loans upon the
last day of Interest Periods in order to minimize Eurodollar Breakage Costs; provided,
that Borrower shall remain liable for any additional interest that accrues on
such held funds.


 


2.7.2                     Calculation
of Eurodollar Breakage Costs.  Each Lender demanding payment under this
Section 2.7 shall deliver to Borrower a certificate setting forth in
reasonable detail the basis for and the amount of costs, expenses and losses
for which the demand is made.  Such
certificate so delivered to Borrower shall, in the absence of manifest error,
be conclusive and binding as to the payable amount for purposes of this
Agreement.  For the purpose of
calculation of any Eurodollar Breakage Costs each Lender shall be deemed to
have actually funded its relevant Eurodollar Loan through the purchase of a
deposit bearing interest at the Adjusted
Eurodollar Rate in an amount equal to the amount of such Eurodollar Loan
and having a maturity comparable to the relevant Interest Period, provided,
however, that each Lender may fund each of its Eurodollar Loans in any
manner it deems appropriate, and the foregoing assumption shall be utilized
only for the calculation of amounts payable under Section 2.7.1.


 


2.8                               ALTERNATE
OFFICE; MINIMIZATION OF COSTS.


 


2.8.1                     To the extent
reasonably possible, each Lender shall designate an alternative Lending Office
with respect to its Eurodollar Loans and otherwise take any reasonable actions
to reduce any liability of Borrower to any Lender under Section 2.4.4,
2.6.3 or 2.6.4, to avoid triggering clause (b)(i) of Section 2.6.1 or
to avoid the unavailability of any Type of Loans under Section 2.6.2 so
long as (in the case of the designation of an alternative Lending Office) such
Lender, in its sole discretion, determines that (a) such designation is
not disadvantageous to such Lender and (b) such actions would eliminate or
reduce a material liability to such Lender. 
Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender  in connection with any such
designation or actions within 10 Business Days of demand thereof to
Borrower.


 


2.8.2                     If and with
respect to each occasion that a Lender (a) makes a
demand for compensation pursuant to Section 2.4.4, 2.6.3 or 2.6.4, (b) has
notified Administrative Agent of a circumstance under clause (b)(i) of
Section 2.6.1 or (c) is unable for a period of three consecutive
months to fund Eurodollar Loans pursuant to Section 2.6.2 or such Lender
is a Defaulting Lender then Borrower may, upon at least five Business Days’
prior irrevocable notice to each of such Lender and Administrative Agent, in
whole permanently replace the Loans and Loan Commitments of such Lender; provided,
that Borrower shall replace such Loans and Loan 


 


17

















 


Commitments of such Lender with the Loans and Loan
Commitments of a commercial bank reasonably satisfactory to Administrative
Agent.  Such replacement Lender shall
upon the effective date of replacement purchase the Obligations owed to such
replaced Lender for the aggregate amount thereof and shall thereupon for all
purposes become a “Lender” hereunder. 
Such notice from Borrower shall specify an effective date for the
replacement of such Lender’s Loans and Loan Commitments, which date shall not
be later than the 14th day after the day such notice is given.  On the effective date of any replacement of
such Lender’s Loans and Loan Commitments pursuant to this Section 2.8.2,
Borrower shall pay to Administrative Agent for the account of such Lender (a) any
fees due to such Lender to the date of such replacement, (b) the principal
of and accrued interest on the principal amount of outstanding Loans held by
such Lender to the date of such replacement (such amount to be represented and
funded by the purchase of the Obligations of such replaced Lender by the
replacing Lender and not as a prepayment of such Loans), and (c) the
amount or amounts due to such Lender pursuant to each of Sections 2.4.4, 2.6.3
or 2.6.4, as applicable, and any other amount then payable hereunder to such
Lender.  Borrower will remain liable to
such replaced Lender for any Eurodollar Breakage Costs that such Lender
sustains or incurs as a consequence of the purchase of such Lender’s Loans
(unless such Lender has defaulted on its obligation to fund a Loan
hereunder).  Upon the effective date of
the purchase of any Lender’s Loans owed to such Lender and termination of such
Lender’s Loan Commitments pursuant to this Section 2.8.2, such Lender
shall cease to be a Lender hereunder.  No
such termination of any such Lender’s Loan Commitments and the purchase of such
Lender’s Loans pursuant to this Section 2.8.2 shall affect (i) any
liability or obligation of Borrower or any other Lender to such terminated
Lender, or any liability or obligation of such terminated Lender  to Borrower or any other Lender, or any obligation under
Section 5.10, which accrued on or prior to the date of such termination or
(ii) such terminated Lender’s rights hereunder in respect of any such
liability or obligation.


 


2.8.3                     Upon notice to
Administrative Agent, any Lender may designate a Lending Office other than the
Lending Office most recently designated to Administrative Agent and may assign
all of its interests under the Credit Documents to such Lending Office; provided,
that such designation and assignment do not at the time of such designation and
assignment increase the reasonably foreseeable (a) liability of Borrower
under Section 2.4.4, 2.6.3 or 2.6.4, (b) trigger clause (b)(i) of
Section 2.6.1 or (c) make an Interest Rate option unavailable
pursuant to Section 2.6.2.


 


2.9                               REGISTER.  Administrative Agent shall maintain a
register at its offices (the “Register”) for the recordation of certain
information hereunder from time to time. 
The Register shall be available for inspection by Borrower or any
Secured Party (as to its Commitment only) at any reasonable time and from time
to time upon reasonable prior notice. 
Administrative Agent shall record in the Register (a) the Loan
Commitments and the Loans from time to time of each Lender, (b) the
interest rates applicable to all Loans and the effective dates of all changes
thereto, (c) the Interest Period for each Eurodollar Loan, (d) the
date and amount of any principal or interest due and payable or to become due
and payable from Borrower to each Lender hereunder, (e) each repayment or
prepayment in respect of the principal amount of the Loans of each Lender,
(f) the amount of any sum received by Administrative Agent hereunder for
the account of the Secured Parties and each Secured Party’s share thereof,
(g) a copy of each Assignment and Assumption, and (h) such other
information as Administrative Agent may determine is necessary for the
administering of the Loans and this Agreement. 
Any such 


 


18

















 


recording shall be conclusive and binding in the
absence of manifest error; provided, that neither the failure to make
any such recordation, nor any error in such recordation, shall affect any
Lender’s Loan Commitment or the Obligations in respect of any applicable Loans
or otherwise; and provided, further, that in the event of any
inconsistency between the Register and any Secured Party’s records, the
Register shall govern absent manifest error.


 


ARTICLE 3

CONDITIONS PRECEDENT


 


3.1                               CONDITIONS
PRECEDENT TO THE CLOSING DATE.  The funding of the initial Borrowing
hereunder is subject to the prior satisfaction of each of the following
conditions unless waived by all Lenders (the date such conditions precedent are
so satisfied or waived being referred to as the “Closing Date”):


 


3.1.1                     Resolutions.  Delivery to Administrative Agent and each
Lender of a copy of one or more resolutions or other authorizations, in form
and substance reasonably satisfactory to Administrative Agent and each Lender,
of each Credit Party and each other Affiliate of Borrower that is a party to a
Project Document (each such
affiliate, together with the Credit Parties, the “Borrower Entities”)
certified by a Responsible Officer of each such Borrower Entity as being true,
complete, in full force and effect on the Closing Date and not amended,
modified, revoked or rescinded, authorizing, as applicable and among other
things, the Borrowings herein provided for, the granting of the Liens under the
Collateral Documents, the provision of the guaranties, the contribution of
equity to Borrower and the execution, delivery and performance of this
Agreement, the other Operative Documents and any instruments or agreements
required hereunder or thereunder to which such Borrower Entity is a party.


 


3.1.2                     Incumbency.  Delivery to Administrative Agent and each
Lender of a certificate, in form and substance reasonably satisfactory to
Administrative Agent and each Lender, from each Borrower Entity signed by the
appropriate authorized officer or manager of each such Borrower Entity and
dated as of the Closing Date, as to the incumbency and specimen signature of
each natural Person authorized to execute and deliver this Agreement, the other
Operative Documents and any instruments or agreements required hereunder or
thereunder to which such Borrower Entity is a party, including various
certificates to be delivered by such Borrower Entity pursuant to this
Section 3.1.


 


3.1.3                     Governing
Documents.  Delivery to Administrative Agent and each Lender, in each case certified by a Responsible Officer of such Borrower Entity as being true, correct and complete on the Closing Date, of (a) copies
of the certificate of formation, charter or other state certified constituent
documents of each  Borrower Entity, certified as of a recent date by the secretary of state of such Borrower Entity’s state of organization, and (b) copies of the bylaws, limited
liability company operating agreement, partnership agreement or other
comparable operating documents, if applicable, of each Borrower Entity.


 


3.1.4                     Good
Standing Certificates. 
Delivery to Administrative Agent and each Lender of certificates (in
so-called “long-form” if available) issued by (a) the secretary of state
of the state in which each Borrower Entity and Major Project Participant
(except SCPPA, BLM and SITLA) is formed or incorporated, as applicable, and
(b) in the case of Borrower and each Major 


 


19

















 


Project Participant (except SCPPA, BLM, SITLA, E.W.
Wylie Corporation, a North Dakota corporation, and the Bailees), the Secretary
of the State of Utah, in each case (i) dated a date reasonably close to
the Closing Date and (ii) certifying that such Borrower Entity and Major
Project Participant is in good standing and is qualified to do business in, and
has paid all franchise taxes or similar taxes due to, such states.


 


3.1.5                     Third
Party Approvals.  Except for
the Permits listed in Part II of the Permit Schedule, Administrative Agent
and each Lender shall have received all information and copies of all documents
and copies of any consent or approval by any Person (including any Governmental
Authority) reasonably required by any Borrower Entity or any other Major
Project Participant as of the Closing Date in connection with any transaction
contemplated in any Credit Document; provided that copies of documents,
consents and approvals with respect to Major Project Participants other than
the Borrower Entities must only be delivered to the extent such copies are
obtainable by Borrower.


 


3.1.6                     Credit
Documents and Project Documents.  Delivery to Administrative Agent and each
Lender of (a) originals of each Credit Document other than any expressly
contemplated hereby to be executed and delivered after the Closing Date, all of
which shall (i) have been duly authorized, executed and delivered by the
parties thereto and are in form and substance reasonably satisfactory to
Administrative Agent and each Lender, and (ii) be in full force and effect
and accompanied by a certificate of Borrower certifying to the foregoing in
accordance with Section 3.1.7, and (b) a certified list of, and true,
correct and complete copies of, each Project Document (other than any Project
Document which is only incidental to the development, construction, leasing,
ownership or operation of the Project) executed on or prior to the Closing
Date, each in form and substance reasonably satisfactory to the Administrative
Agent and each Lender, all of which shall (x) have been duly authorized,
executed and delivered by the parties thereto, (y) be certified by
Borrower as being true, complete and correct and in full force and effect on
the Closing Date in accordance with Section 3.1.7, and (z) be in form
and substance reasonably satisfactory to Administrative Agent and each Lender.


 


3.1.7                     Certificate
of Borrower Entities.  Delivery to
Administrative Agent and each Lender of a certificate, dated as of the Closing
Date, duly executed by a Responsible Officer of Borrower, in substantially the
form of Exhibit F-1, of Pledgor in substantially the form of Exhibit F-2,
and of the other Borrower Entities, in substantially the form of Exhibit F-3.


 


3.1.8                     Legal
Opinions.  Delivery to
Administrative Agent and each Lender of legal opinions with respect to the
transactions contemplated hereby of counsel to the Borrower Entities and each Major
Project Participant as set forth on Exhibit E-3, in each case
addressed to the Secured Parties and in form and substance reasonably
satisfactory to Administrative Agent and each Lender.


 


3.1.9                     Certificate
of Insurance Consultant. 
Delivery to Administrative Agent and each Lender of the Insurance
Consultant’s certificate, dated as of the Closing Date and in substantially the
form of Exhibit F-4, together with the Insurance Consultant’s
report that (i) summarizes the proposed insurance arrangements for the
Project, (ii) concludes that such insurance is adequate and customary and (iii) is
otherwise in form and substance reasonably satisfactory to Administrative Agent
and each Lender, attached thereto.


 


20

















 


3.1.10              Insurance.  Insurance complying with terms and conditions
set forth in Exhibit K shall be in full force and effect to the
extent then required by such terms and conditions and Administrative Agent,
each Lender and the Insurance Consultant shall have (i) received a
certificate from Borrower’s insurance broker(s), dated as of the Closing Date
and in form and substance reasonably satisfactory to Administrative Agent and
each Lender, (a) identifying underwriters, type of insurance, insurance
limits and policy terms, (b) listing the special provisions required as
set forth in Exhibit K, (c) describing the insurance obtained
and (d) stating that such insurance is in full force and effect and that
all premiums then due thereon have been paid and that, in the opinion of such
broker(s), such insurance complies with the terms and conditions set forth in Exhibit K,
and (ii) 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
Administrative Agent, each Lender and the Insurance Consultant.


 


3.1.11              Certificate
of the Independent Engineer.  Delivery to Administrative Agent and each
Lender of Independent Engineer’s certificate, dated as of the Closing Date and
in substantially the form of Exhibit F-5, together with the
Independent Engineer’s report (the “IE Report”), which (i) addresses
the capital budget, construction plan and responsibilities, overall Project
design (including the appropriateness of the turbine technology for the
Project), turbine warranty, turbine output, turbine reliability, fleet history
and design, availability and noise guaranties (if applicable), total Project
Costs to complete, adequacy of all civil works (including the balance of plant
contracts in relation to the Turbine Supply Agreement), electrical works,
interconnection, transmission, overall wind farm and grid engineering and
functionality, feasibility of the Project Schedule, equipment selection,
probable performance and environmental matters, (ii) contains a
construction budget in the form attached hereto as Exhibit G-2, and
(iii) is in form and substance reasonably satisfactory to Administrative
Agent and each Lender, attached thereto.


 


3.1.12              Reports
of Borrower’s Environmental Consultant.  Delivery to Administrative Agent and each
Lender of the Phase I Environmental Report along with a reliance letter, in
form and substance reasonably satisfactory to Administrative Agent and each
Lender, permitting the Secured Parties to rely on such Phase I Environmental
Report.


 


3.1.13              Independent
Wind Consultant Report. 
Delivery to Administrative Agent and each Lender of the Wind Report
along with a reliance letter, in form and substance reasonably satisfactory to
Administrative Agent and each Lender.


 


3.1.14              Permit
Schedule and Applicable Third Party Permits.


 


(a)                                 Delivery to
Administrative Agent and each Lender of Exhibit G-1, the schedule
of Permits (“Permit Schedule”), in form and substance reasonably
satisfactory to Administrative Agent and each Lender, of which
(i) Part I(A) shall be Permits which are Applicable Permits as
of the Closing Date, (ii) Part I(B) shall be Permits which to
Borrower’s knowledge are Applicable Third Party Permits as of the Closing Date,
(iii) Part II(A) shall be Permits which are to Borrower’s
knowledge expected to become Applicable Permits after the Closing Date, and
(iv) Part II(B) shall be Permits which to Borrower’s knowledge
are expected to become Applicable Third Party Permits after the Closing
Date.  Borrower shall also deliver to 


 


21

















 


Administrative Agent and each Lender copies of each
Permit listed in Part I(A) and, to the extent obtainable,
Part I(B), in form and substance reasonably satisfactory to Administrative
Agent and each Lender.  The Permits
listed in Part I(A) and Part I(B) shall in Administrative
Agent’s and each Lender’s reasonable opinion comprise all of the Applicable
Permits and Applicable Third Party Permits, respectively, as of the Closing
Date.


 


(b)                                 Except as
disclosed in the Permit Schedule, each Permit listed in Part I(A) shall
(i) have been duly obtained or been assigned in Borrower’s name,
(ii) be in full force and effect, (iii) not be subject to any current
legal proceeding, and (iv) not be subject to any Unsatisfied Condition
that could reasonably be expected to result in material modification or
revocation of such Permit, and all applicable appeal periods with respect to
each such Permit shall have expired. 
Except as disclosed in the Permit Schedule, to Borrower’s knowledge each
Permit listed in Part I(B) shall (A) have been duly obtained or
have been assigned in the name of the applicable Major Project Participant or
its contractor or subcontractor (B) be in full force and effect,
(C) not be subject to any current legal proceeding and (D) not be
subject to any Unsatisfied Condition that could reasonably be expected to
result in material modification or revocation of such Permit, and all
applicable appeal periods with respect to each such Permit shall have expired.


 


(c)                                  The Permits
listed in Part II of the Permit Schedule shall, in Administrative Agent’s
and each Lender’s reasonable opinion, be timely obtainable (i) on or
before the date Borrower or the applicable other Person (as identified in the
Permit Schedule) requires such Permit, (ii) without delay materially in
excess of the time provided therefor in the Project Schedule (if applicable),
and (iii) without expense materially in excess of the amounts provided
therefor in the Project Budget by Borrower or such other Person.


 


(d)                                 No Permit
listed in Part I of the Permit Schedule shall be subject to any
restriction, condition, limitation or other provision which could reasonably be
expected to have a Material Adverse Effect or result in the Project being
operated in a manner substantially inconsistent with the assumptions underlying
the Base Case Projections.


 


3.1.15              Absence
of Litigation.  Except as set forth in Exhibit G-4, there are no actions,
suits, investigations or proceedings by or before any Governmental Authority or
arbitrator pending  or, to
Borrower’s knowledge, threatened in writing by or  against  Borrower, any Major Project Participant related to the
Project or the Project.


 


3.1.16              Payment
of Fees.  All taxes, fees and other
costs payable in connection with the execution, delivery, title premiums,
survey charges, recordation and filing of the documents and instruments
referred to in this Section 3.1 and due on or before the Closing Date
shall have been paid in full or, if and in the manner specifically approved by
the Lenders, provided for.  Borrower
shall have paid (or caused to be paid) or shall have made arrangements in the
manner reasonably satisfactory to the payee for the payment from the proceeds
of the initial disbursement of the Loans of all outstanding amounts due, as of
the Closing Date, and owing to (a) the Secured Parties under any fee or
other letter or otherwise pursuant to Section 2.3, and (b) the
Secured Parties’ attorneys and consultants (including the Independent
Consultants) and the Title Insurer for all services rendered and billed prior
to the Closing Date.


 


22














 


3.1.17              Financial
Statements.  Delivery to
Administrative Agent and each Lender of accurate and complete copies of audited
annual financial statements or Form 10-K or equivalent of RMT Parent,
SCPPA and Turbine Supplier, for the most recent fiscal year end for which such
of such audited financial statements or Form 10-K or equivalent are
available (it being acknowledged that such financial statements shall be deemed
to be delivered if a Form 10-K or equivalent filed with the SEC for such
Person is publicly available); provided, however, if any of the
Turbine Supplier, RMT Parent or SCPPA does not have audited financial
statements or a Form 10-K or equivalent, then Administrative Agent and
each Lender shall have been provided with other materials relating to creditworthiness
of such Person reasonably satisfactory to Administrative Agent and each Lender.


 


3.1.18              Collateral
Requirements.  Delivery to
Administrative Agent and each Lender of evidence reasonably satisfactory to
Administrative Agent and each Lender, to the extent not otherwise satisfied
pursuant to Section 3.1.24, that Borrower has taken or caused to be taken
all such actions, executed and delivered or caused to be executed and delivered
all such agreements, documents and instruments, and made or caused to be made
all such filings and recordings that may be necessary or, in the opinion of
Administrative Agent and each Lender, desirable in order to create in favor of
Collateral Agent a valid and (upon such filing and recording) perfected first
priority Lien in Borrower’s right, title and interest in and to the Collateral
subject to Permitted Liens, Title Exceptions and CoBank’s Lien on the CoBank
Equities.  Such actions shall include
delivery to Administrative Agent and each Lender of:


 


(a)                                 The Pledge Agreement,
the Security Agreement and the Depositary Agreement, duly executed by each
Credit Party party thereto;


 


(b)                                 all pledged
securities, including all certificates, agreements or instruments representing
or evidencing such pledged securities, accompanied by instruments of transfer
and membership interest powers undated and endorsed in blank to the extent such
pledged interests are certificated;


 


(c)                                  all promissory
notes or other instruments (duly endorsed, where appropriate, in a manner
reasonably satisfactory to Administrative Agent and each Lender) evidencing any
Collateral;


 


(d)                                 all other
certificates, agreements, including control agreements, or instruments
necessary to perfect Collateral Agent’s security interest in all Chattel Paper,
all Instruments, all Deposit Accounts and all Investment Property of Borrower
(as each such term is defined in the Security Agreement and to the extent
required by the Security Agreement);


 


(e)                                  UCC financing
statements in appropriate form for filing under the UCC, and, where
appropriate, fixture filings, and such other documents under applicable Legal
Requirements in each jurisdiction as may be necessary or appropriate or, in the
opinion of Administrative Agent and each Lender, desirable to perfect the first
priority Liens created, or purported to be created, by the Collateral
Documents;


 


(f)                                   certified
copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit
searches or equivalent reports or searches, each of a date no less recent than
10 


 


23

















 


Business Days before the Closing Date or as
otherwise acceptable to Administrative Agent and each Lender listing all
effective financing statements, lien notices or comparable documents that name
Borrower and Pledgor as debtor and that are filed in those state and county
jurisdictions in which any property of such Person is located and the state and
county jurisdictions in which any such Person is organized or maintains its
principal place of business and such other searches that Administrative Agent
and each Lender reasonably deems necessary or appropriate, none of which
encumber the Collateral covered or intended to be covered by the Collateral
Documents (other than Permitted Liens) showing that upon due filing or
recordation (assuming such filing or recordation occurred on the date of such
respective reports), as the case may be, the security interests created under
the Collateral Documents, with respect to the Collateral, will be prior to all
other financing statements, fixture filings or other security documents wherein
the security interest is perfected by filing or recording in respect of the
Collateral,


 


(g)                                  UCC termination
statements duly executed (if required) by all applicable Persons for filing in
all applicable jurisdictions as may be necessary to terminate any effective UCC
financing statements or fixture filings disclosed in such search (other than
any such financing statements or fixture filings in respect of Liens permitted
to remain outstanding pursuant to the terms of this Agreement);


 


(h)                                 an opinion of
counsel (which counsel shall be reasonably satisfactory to Administrative Agent
and each Lender) with respect to the perfection of the security interests in
favor of Collateral Agent in personal or mixed property Collateral and such
other matters governed by the laws of such jurisdiction regarding such security
interests as Collateral Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Administrative Agent and each Lender; and


 


(i)                                     evidence
reasonably satisfactory to Administrative Agent and each Lender of payment or
arrangements for payment by Borrower of all applicable recording taxes,
registration fees or charges, filing costs and other similar expenses, if any,
required to be paid in connection with the execution, delivery, or filing of,
or the perfection of any Operative Document or otherwise in connection with the
Collateral.


 


3.1.19              Project
Budget and Drawdown Schedule.  Delivery to Administrative Agent and each
Lender of a budget and drawdown schedule in substantially the form of Exhibit G-2
(the “Project Budget”) for all anticipated costs to be incurred in
connection with the development, construction, installation and start-up of the
Project and schedule of Borrowings, which Project Budget shall be satisfactory
to Administrative Agent and each Lender.


 


3.1.20              Base
Case Projections.  Delivery to
each Lender of the Base Case Projections.


 


3.1.21              No
Material Adverse Effect. 
Since the date of the most recent audited financial statements of each
Major Project Participant delivered pursuant Section 3.1.17, no event,
circumstance or condition shall have occurred and be continuing (and
Administrative Agent or any Lender shall have become aware of no such facts or
conditions not previously known) that constitutes or could reasonably be
expected to result in a Material Adverse Effect.


 


24

















 


3.1.22              ALTA
Surveys.  Administrative Agent and each
Lender shall have received either (i) ALTA surveys of the Site (which
surveys shall be reasonably current and in form and substance reasonably
satisfactory to Administrative Agent, each Lender and the Title Insurer),
certified to Borrower, Administrative Agent and the Title Insurer by Demille
Engineering, Inc., Westwood Professional Services, or such other licensed
surveyor reasonably satisfactory to Administrative Agent and each Lender or
(ii) a certificate from a licensed third-party engineering firm or
surveyor confirming that the Easements provide contiguous real property
interests, in each case showing  such matters
as shall be necessary for the Title Insurer to issue to the Secured Parties the
Title Policy described in Section 3.1.23.


 


3.1.23              Title
Policy.  Delivery to Administrative
Agent and each Lender of a lender’s ALTA extended coverage policy of title
insurance (2006 form) with any standard coverage exception reasonably
acceptable to Administrative Agent and each Lender but without a mechanics’ and
materialmen’s exception included therein (except where applicable Governmental Rules prevent
the deletion of such exception, in which case Borrower shall provide the Title
Insurer with any affidavits or indemnities (with respect to which Borrower
shall have no reimbursement obligations) necessary to cause the Title Insurer
to issue affirmative coverage for mechanics’ and materialmens’ liens in form
and substance reasonably satisfactory to Administrative Agent and each Lender),
together with such endorsements thereto (or where such endorsements are not
available, opinions of special counsel, architects or other professionals
reasonably acceptable to Administrative Agent and each Lender) as are
reasonably requested by Administrative Agent or any Lender, or the
unconditional and irrevocable commitment of the Title Insurer to issue such a
policy, dated as of the Closing Date, in each case in a coverage amount equal
to $247,000,000 (with such reinsurance as is reasonably satisfactory to
Administrative Agent and each Lender) issued by the Title Insurer in form and
substance satisfactory to Administrative Agent and each Lender.


 


3.1.24              Real
Estate Requirements.  Delivery  to  Administrative
Agent and each Lender of:


 


(a)                                 The Trust Deed
encumbering the Mortgaged Property in favor of Collateral Agent, duly executed
and acknowledged by Borrower, and otherwise in form for recording in the
recording office of each applicable political subdivision where the Mortgaged
Property is situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording
or filing thereof to create a Lien of record under applicable law, and such
financing statements, fixture filings any and any other instruments necessary
to grant a Lien on Borrower’s right, title and interest in and to the Mortgaged
Property under the laws of any applicable jurisdiction, all of which shall be
in form and substance reasonably satisfactory to Administrative Agent and each
Lender;


 


(b)                                 with respect to
the Mortgaged Property, such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as are
necessary to consummate the transactions hereunder contemplated or as shall
reasonably be deemed necessary by Administrative Agent and the Lenders;


 


25

















 


(c)                                  with respect to
the Mortgaged Property, such affidavits, certificates, information (including
financial data) and instruments of indemnification (including a so-called “gap”
indemnification) as shall be required to induce the Title Insurer to issue the
Title Policy;


 


(d)                                 evidence
reasonably acceptable to Administrative Agent and each Lender of payment by
Borrower of all Title Policy premiums, search and examination charges, and
related charges, Trust Deed recording taxes, fees, charges, costs and expenses
required for the recording of the Trust Deed and issuance of the Title Policy;


 


(e)                                  with respect to
any Real Property in which Borrower holds possession by lease (other than for
Real Property that is not necessary for the Project), both (i) any
agreement by the fee owner to obtain a nondisturbance agreement from each
lienholder against the fee interest in such Real Property, and (ii) a
nondisturbance agreement from any such existing lienholder, in each case in
form and substance reasonably satisfactory to Administrative Agent and each
Lender;


 


(f)                                   copies of all
leases or easements in which Borrower holds the lessor’s interest or other
agreements relating to possessory interests, if any, in the Real Property.  To the extent any of the foregoing affect any
Real Property, such agreement shall be subordinate to the Lien of the Trust
Deed to be recorded against such Mortgaged Property, either expressly by its terms
or pursuant to a subordination, non-disturbance and attornment agreement, and
shall otherwise be acceptable to Administrative Agent and each Lender;


 


(g)                                  evidence
reasonably acceptable to Administrative Agent and each Lender that Borrower and
each other Major Project Participant have obtained and hold all easements or
other possessory rights in real estate, together with necessary real property
permits and crossing rights (collectively, “Rights of Way”) necessary
for (i) performance in full of each such Person’s obligations under the
Operative Documents and each Permit by which such Person or its assets is
bound, and (ii) the development, leasing, construction and operation of
the Project in accordance with the Base Case Projections.  The use of such Rights of Way shall not
encroach on or interfere (except immaterial encroachments and interferences
expressly permitted by the terms of the applicable Rights of Way) with property
adjacent to such Rights of Way or existing easements or other rights (whether
on, above or below ground) and the full length of the Rights of Way shall be
continuous, without break, gap or interruption;


 


(h)                                 evidence
reasonably acceptable to Administrative Agent and each Lender that Borrower has
a good, marketable and insurable (i) fee or leasehold interest in the Site
(other than the BLM Right of Way (Phase
II), the BLM Right of Way (Generator Lead Line), the Site Common Facilities,
the Circle Four Easements and the SITLA Right
of Way), (ii) interest in the BLM Right
of Way (Phase II) and the Circle Four Easements, (iii) undivided tenant in
common interest in the Easements, the BLM Right of Way (Generator Lead Line),
the SITLA Right of Way and the Site Common Facilities, and (iv) interest
in any other Real Property (provided, however, that the title
policy to be provided pursuant to this Section 3.1.24 shall not be
required to include as part of the insured estate any such other Real Estate
Interests which are permits or licenses not customarily insurable by title
insurance, including the BLM Right of Way
(Phase II) and the BLM Right of Way (Generator Lead Line)), in each case
free and clear of Liens, encumbrances or other exceptions to title, other than (A) the
Title Exceptions and (B) such 


 


26

















 


Liens, encumbrances or other exceptions to title as
are reasonably satisfactory to Administrative Agent and each Lender; and


 


(i)                                     evidence
reasonably acceptable to Administrative Agent and each Lender that the Trust
Deed is a valid first Lien on Borrower’s right, title and interest in the
Mortgaged Property (including, without limitation, the Rights of Way), free and
clear of all Liens, encumbrances and exceptions to title whatsoever, other than
(i) the Title Exceptions and (ii) such Liens, encumbrances or other
exceptions to title as are reasonably satisfactory to Administrative Agent and
each Lender, and, in the case of the BLM Right
of Way (Phase II), the BLM Right of Way (Generator Lead Line), the SITLA
Lease, and the SITLA Right of Way, subject to applicable Governmental Rules limiting
the enforceability of Liens therein.


 


3.1.25              [Reserved]


 


3.1.26              Establishment
of Accounts.  The Accounts
shall have been established to the satisfaction of Administrative Agent and
each Lender.


 


3.1.27              Representations
and Warranties.  Each
representation and warranty of each Credit Party under the Credit Documents
shall be true and correct as of the Closing Date (unless such representation
and warranty refers to an earlier date, in which case such representation and
warranty shall have been true and correct as of such earlier date) and Borrower
shall have provided to Administrative Agent and each Lender a certificate of a
Responsible Officer of Borrower that each representation and warranty of
Borrower and Pledgor under the Credit Documents is true and correct as of the
Closing Date (unless such representation and warranty refers to an earlier
date, in which case such representation and warranty was true and correct as of
such earlier date).


 


3.1.28              No
Default.  Each Borrower Entity shall be
in compliance in all material respects with all the terms and provisions set
forth in each Credit Document and all material provisions of the Major Project
Documents on its part to be observed or performed, and no Default or Event of
Default exists or shall occur as a result of any of the transactions
consummated as of the Closing Date.


 


3.1.29              Utilities.  Delivery to Administrative Agent and each
Lender of reasonably satisfactory evidence that all potable water, sewer,
telephone, electric and all other utility services necessary for the
development, construction, ownership and operation of the Project are either
contracted for, or readily available on commercially reasonable terms, at the
Project.


 


3.1.30              Project
Schedule.  Delivery to
Administrative Agent and each Lender of the Project Schedule in substantially
the form of Exhibit G-3, which Project Schedule shall be reasonably
satisfactory to Administrative Agent and each Lender.


 


3.1.31              Consents.  Delivery to Administrative Agent and each
Lender of executed Consents from each of the Major Project Participants as set
forth on Exhibit E-3, which Consents shall be in substantially the
form of Exhibit E-1 or, if approved by Administrative Agent in
advance, Exhibit E-2, or otherwise reasonably satisfactory to
Administrative Agent and each Lender.


 


27

















 


3.1.32              Use
of Equity.  Borrower
shall have certified to Administrative Agent and each Lender (in form and
substance reasonably satisfactory to Administrative Agent and each Lender), and
Administrative Agent and the Independent Engineer shall have confirmed, that in
an aggregate amount not less than the Base Equity Requirement Borrower has
(a)  applied the proceeds of cash equity contributions made by Sponsor to
the payment of Project Costs, (b)  deposited into the Construction Account
the proceeds of cash equity contributions made by Sponsor, and/or
(c) otherwise received in-kind equity contributed by Sponsor or its
Affiliates.


 


3.1.33              Assignment
of Agreements.  All Project
Documents pursuant to which Borrower is not party shall have been subleased or
irrevocably assigned to Borrower.


 


3.1.34              Anti-Terrorism
Compliance.  At least
five days prior to the Closing Date, Administrative Agent and each Lender shall
have received all documentation and other information requested by
Administrative Agent or any Lender, which is required by bank regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.


 


3.1.35              Solvency
Certificate.  Delivery to
Administrative Agent and each Lender of a certificate in the form of Exhibit F-6
from the chief financial officer or treasurer of Borrower certifying that
Borrower is Solvent after giving effect to the transactions contemplated hereby.


 


3.1.36              Legality.  No federal or state law or regulation, or any
interpretation thereof, exists which would make any Loan, or the securing of
any Loan by the Collateral, or any other aspect of the transactions
contemplated herein, illegal, or which would subject the Lenders or any of
their Affiliates to any penalties, sanctions or fines.


 


3.1.37              Utility
Laws.  No federal, state or local law
or regulation, or interpretation thereof, will then exist under which the
Lenders would become an “electric utility,” “electric corporation,” “electrical
company,” “public utility,” or “holding company,” or any similar Person under
such law or regulation solely as a result of this transaction, except as a
Lender may become an “electric utility,” “electric corporation,” “electrical
company,” “public utility,” or “holding company” upon the exercise of remedies
under the Credit Documents.


 


3.1.38              Repayment
of Existing Debt.  Delivery to
Administrative Agent and each Lender of evidence that the loans made with
respect to the Turbine Supply Agreement under the Turbine Supply Financing have
been repaid in full and that any liens related thereto have been released (or
arrangements for such release satisfactory to Administrative Agent and each
Lender shall have been made).


 


3.1.39              SCPPA
Confirmation Letter.  SCPPA shall
have delivered a letter to Borrower, in form and substance reasonably
satisfactory to Administrative Agent and the Lenders.


 


3.1.40              Wind
Study.  The Lenders shall have been
provided evidence that SCPPA has received the wind study required to be
provided pursuant to Section 7.1(f) of the PPA.


 


28

















 


3.1.41              Transmission
Rights.  Borrower shall have
unencumbered rights to an undivided tenant in common interest in adequate
capacity on the Transmission Line to the point of delivery under the PPA, in
form and substance satisfactory to the Lenders.


 


3.1.42              Cost
Segregation Report.  The Cost
Segregation Consultant shall have delivered a current Cost Segregation Report,
in form and substance reasonably satisfactory to Administrative Agent and each
Lender.


 


3.1.43              Grant
Eligible.  Each Lender
shall have been provided with all information as to Borrower and the Project
being Grant Eligible.


 


3.1.44              Effective
Date under the PPA.  The
Effective Date under and defined in the PPA shall have occurred.


 


3.1.45              Other
Documents and Proceedings.  Delivery to Administrative Agent and each
Lender of such other documents and completion of such other proceedings as
Administrative Agent or any Lender may reasonably request.


 


3.2                              CONDITIONS
PRECEDENT TO EACH CREDIT EVENT.  The obligation of each Lender in respect of
each Credit Event is subject to the occurrence of the Closing Date and prior
satisfaction (or waiver by Administrative Agent with the consent of the
Required Lenders) of each of the following conditions:


 


3.2.1                     Representations
and Warranties.


 


(a)                                 Each
representation and warranty of each Borrower Entity in any of the Operative
Documents shall be true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) on and as of the
date of such Credit Event, before and after giving effect to the applicable
Borrowing, with the same effect as though made on and as of such date, unless
such representation or warranty expressly relates solely to an earlier date.


 


(b)                                 To Borrower’s
knowledge, each representation and warranty of each Major Project Participant
(other than the Borrower Entities) contained in the Operative Documents shall
be true and correct in all material respects (except that any representation
and warranty that is qualified as to “materiality” or “Material Adverse Effect”
or the like shall be true and correct in all respects) on and as of the date of
such Credit Event, before and after giving effect to the Credit Event, with the
same effect as though made on and as of such date, unless such representation
and warranty expressly relates solely to an earlier date, and except to the
extent that the failure of such representations and warranties to be true and
correct in all material respects could not reasonably be expected to have a
Material Adverse Effect.


 


3.2.2                     No
Default or Event of Default.  No Default or Event of Default shall have
occurred and be continuing or will result from the relevant Credit Event.


 


3.2.3                     Additional
Documentation.  With
respect to Additional Project Documents entered into or obtained, transferred
or required (whether because of the status of the development, construction or
operation of the Project or otherwise) since the date of the most 


 


29

















 


recent Credit Event, there shall be
(a) redelivery of such matters as are described in Section 3.1.6(b) to
the extent applicable to such Additional Project Documents, and (b) if
reasonably requested by Administrative Agent, delivery of such matters as are
described in Sections 3.1.1 and 3.1.8 from Borrower, and
Section 3.1.8 and, to the extent required by Section 6.18,
Section 3.1.31, from the counterparty to such Additional Project Document.


 


3.2.4                     Notice
of Borrowing; Calculations.  Borrower shall have delivered a Notice of
Borrowing to Administrative Agent in accordance with the procedures specified
in Section 2.1.1(b).  To the extent
that the proceeds of the requested Loan are intended to be used to reimburse
Sponsor for certain equity contributions made by it as contemplated by
Section 5.1.1, then Independent Engineer shall have verified the Project
Costs previously paid by Sponsor.


 


3.2.5                     Drawdown
Certificate and Independent Engineer’s Drawdown Certificate.


 


(a)                                 At least three
Business Days prior to the submission of each Notice of Borrowing for each
Credit Event, Borrower shall have provided Administrative Agent and the
Independent Engineer with a duly executed copy of the Drawdown Certificate,
dated the date of delivery of such certificate, setting forth the date of the
proposed occurrence of such Credit Event and signed by a Responsible Officer of
Borrower.


 


(b)                                 At least one
Business Day prior to the submission of each Notice of Borrowing for each
Credit Event, the Independent Engineer shall have provided Administrative Agent
(with a copy to Borrower) with a certificate of the Independent Engineer, dated
the date of delivery of such certificate, setting forth the date of the
proposed occurrence of such Credit Event and signed by an authorized
representative of the Independent Engineer, substantially in the form of Exhibit C-4
(the “Independent Engineer’s Drawdown Certificate”).


 


(c)                                  Borrower shall
use all reasonable efforts to provide Administrative Agent and the Independent
Engineer with drafts of any certificates and other materials to be delivered
pursuant to this Section 3.2.5 in advance of the time frames listed above
as reasonably requested by Administrative Agent.


 


3.2.6                     Amount.  The Loans
shall be in such amounts as shall ensure that all Project Costs then due and
owing for which the applicable Notice of Borrowing relates can be paid, taking into account uncommitted funds remaining in the Construction Account
and the minimum denomination requirements of Section 2.1.1(b).


 


3.2.7                     Available Construction Funds.  After
taking into consideration the requested Borrowing, Administrative Agent (based
on consultation with Independent Engineer) shall have reasonably determined
that Available Construction Funds will be sufficient to achieve Commercial
Operation by the Date Certain in
accordance with all Legal Requirements, the Construction Contract, each other
Project Document pursuant to which construction work with respect to the
Project is being performed and the Credit Documents and to pay or provide for
all anticipated non-construction Project Costs, all as set forth in the
then-current Project Budget.


 


3.2.8                     Title
Policy Endorsements.  Borrower
shall provide, or Administrative Agent shall be adequately assured, that the
Title Insurer is committed at the time of each Credit 


 


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Event to issue to Administrative Agent, a date-down
endorsement of the Title Policy dated as of the date of such Credit Event,
insuring the continuing first priority of the Trust Deed (subject only to
(a) the Title Exceptions and (b) Permitted Liens described in clause (a),
(b) or (j) of the definition thereof (to the extent the same are
afforded priority over the Lien of the Trust Deed by operation of law)) and
otherwise in form and substance reasonably satisfactory to Administrative
Agent.


 


3.2.9                     Lien
Releases.  Subject to Borrower’s
right to contest Liens as described in the definition of “Permitted Liens,”
Borrower shall have delivered (such delivery may be conditioned upon concurrent
receipt of payment by the applicable Person), if applicable, to Administrative
Agent duly executed Lien waivers relating to mechanics’ and materialmen’s
Liens, substantially in the form attached to the relevant Major Project
Document or otherwise in form and substance reasonably acceptable to
Administrative Agent, from each supplier and Construction Contractor that has a
statutory right to file a mechanics’ and/or materialmen’s Lien for all work,
services and materials (including equipment and fixtures of all kinds, done,
previously performed or furnished for the construction of the Project), for
which the related Project Costs have been or will, from the proceeds of the
requested Borrowing, be paid.


 


3.2.10              Acceptable
Work; No Liens.  All work
that has been done on the Project has been done in a good and workmanlike
manner and in accordance with the Construction Contract, and in accordance with
the standard of care set forth in the Construction Contract, and there shall
not have been filed against any of the Collateral or otherwise filed with or
served upon Borrower with respect to the Project or any part thereof, notice of
any Lien, claim of Lien or attachment upon or claim (except any Notice of
Commencement filed by the Construction Contractor and any Preliminary Notices
filed by suppliers, or similar filings by the Construction Contractor’s subcontractors)
affecting the right to receive payment of any of the moneys payable to any of
the Persons named on such request which has not been released by payment or
bonding or otherwise or which will not be released with the payment of such
obligation out of such Loan or non-Loan proceeds, other than Permitted Liens.


 


3.2.11              Permits.  All Permits required for the
stage of construction and development of the Project at the time of the
requested Credit Event have been obtained in form satisfactory to Administrative
Agent and Independent Engineer (and if the applicable statute, rule or
regulation provides for a fixed period for judicial or administrative review
thereof, such period has expired), and neither Borrower nor Independent
Engineer has reason to expect that any other Permits customarily obtained at a
later stage of construction, development or operation will not be obtained as
and when required.


 


3.3                               NO
APPROVAL OF WORK.  The making
of any Loan hereunder shall in no event be deemed an approval or acceptance by
any Secured Party of any work, labor, supplies, materials or equipment
furnished or supplied with respect to the Project.


 


3.4                               ADJUSTMENT
OF DRAWDOWN REQUESTS.  In
the event Administrative Agent reasonably determines, in consultation with
Independent Engineer, that an item or items listed in a Drawdown Certificate as
a Project Cost is or are not properly included in such Drawdown Certificate,
Administrative Agent may in its reasonable discretion cause to be made a Loan
or Loans in the amount requested in such Drawdown Certificate less the amount
of such 


 


31

















 


item or items or may reduce the amount of Loans made
pursuant to any subsequent Drawdown Certificate.  In the event that Borrower prevails in any
dispute as to whether such Project Costs were properly included in such
Drawdown Certificate, Loans in the amount requested but not initially made
shall forthwith be made.


 


3.5                               DETERMINATIONS
UNDER SECTION 3.1.  For
purposes of determining satisfaction of the conditions set forth in
Section 3.1, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the
Lenders unless Administrative Agent shall have received notice from such Lender
prior to the contemplated Closing Date, as notified by Borrower to the Lenders,
specifying its objection thereto. 
Administrative Agent shall promptly notify the Lenders of the actual
occurrence of the Closing Date.


 


ARTICLE 4

REPRESENTATIONS AND WARRANTIES


 


Borrower
makes the following representations and warranties to and in favor of the
Secured Parties as of the Closing Date (unless such representation and warranty
expressly relates solely to another time) and, to the extent set forth in
Article 3, as of the date of each Credit Event (unless such representation
and warranty relates solely to another time), all of which shall survive the
execution and delivery of this Agreement, the Closing Date and the making of
the Loans:


 


4.1                               ORGANIZATION.  Borrower is (a) a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware and (b) is duly qualified as a foreign limited liability company,
and is in good standing, in each jurisdiction in which such qualification is
required by law.  Borrower has all
requisite power and authority to (i) own or hold under lease and operate
the property it purports to own or hold under lease, (ii) carry on its
business as now being conducted and as now proposed to be conducted in respect
of the Project, (iii) execute, deliver and perform each Operative Document
to which it is a party and (iv) take each action as may be necessary to
consummate the transactions contemplated hereunder and thereunder.  Pledgor is the sole member of Borrower.


 


4.2                               AUTHORIZATION;
NO CONFLICT.  The
execution, delivery and performance by Borrower of the Operative Documents to
which Borrower is a party are within Borrower’s power, authority and legal
right and have been duly authorized by all necessary action.  Borrower has duly executed and delivered each
Operative Document to which Borrower is a party (or such Operative Documents
have been duly and validly assigned to Borrower and Borrower has authorized the
assumption thereof, and has assumed the obligations of the assignor thereunder)
and neither Borrower’s execution and delivery thereof nor its consummation of
the transactions contemplated thereby nor its compliance with the terms thereof
(a) does or will contravene the Governing Documents or any other Legal
Requirement applicable to or binding on the Borrower Entities or any of their
respective properties, (b) does or will contravene or result in any breach
of or constitute any default under, or result in or require the creation of any
Lien (other than Permitted Liens) upon any Borrower Entity’s property under,
any agreement or instrument to which it is a party or by which it or any of its
properties may be bound or affected,


 


32














 


(c) does or will violate or result in a default
under any indenture, credit agreement, loan, lease or other agreement or
instrument binding upon the Borrower Entities or their respective properties,
or (d) does or will require the consent or approval of any Person, and
with respect to any Governmental Authority, does or will require any
registration with, or notice to, or any other action of, with or by any
applicable Governmental Authority, in each case which has not already been
obtained and disclosed to Administrative Agent (except as set forth in
Part II(A) of the Permit Schedule or otherwise provided in
Sections 4.9.1 and 4.9.2).


 


4.3                               ENFORCEABILITY.  As of each date on which this representation
and warranty is made or deemed made, each of the Operative Documents to which
Borrower is a party is a legal, valid and binding obligation of Borrower and,
to Borrower’s knowledge, each other Major Project Participant party thereto,
enforceable against Borrower and, to Borrower’s knowledge, each other Major
Project Participant party thereto in accordance with its terms.  None of the Operative Documents to which
Borrower is a party has been amended or modified after the Closing Date except
in accordance with this Agreement.


 


4.4                               COMPLIANCE
WITH LAW.  There are no
material violations by Borrower or, to Borrower’s knowledge, any Borrower
Entity, of any Legal Requirement (including any Hazardous Substance Laws).  Except as otherwise have been delivered to
Administrative Agent, no notices of any material violation of any Legal
Requirement (including any Hazardous Substance Laws) relating to the Project or
the Site have been issued, entered or received by Borrower or, to Borrower’s
knowledge, any Borrower Entity or any Person that owns or operates (or has
owned or operated) the Real Property. 
None of the execution, delivery nor performance of any of the Operative
Documents, nor the consummation of any of the transactions contemplated
thereby, will (a) contravene or violate any applicable law or contractual
obligation of Borrower or, to Borrower’s knowledge, any other Major Project
Participant or other Operative Document, or (b) result in or require the
creation or imposition of any Lien (other than Liens created or permitted under
the Operative Documents) on any of the Collateral.


 


4.5                               SINGLE
PURPOSE, DEBT, CONTRACTS, JOINT VENTURES, PROCEEDS, ETC.


 


4.5.1                     Borrower (a) has
not conducted any business other (i) than the business contemplated by the
Operative Documents or otherwise related to the development, construction, operation
and financing of the Project, (b) does not have any outstanding Debt or
other material liabilities other than pursuant to or allowed by the Operative
Documents, and (c) is not a party to or bound by any material contract
other than the Credit Documents and the Major Project Documents to which it is
a party.


 


4.5.2                     Borrower is not
a general partner or a limited partner in any general or limited partnership or
a joint venturer in any joint venture.


 


4.5.3                     Borrower does
not have any Subsidiaries.


 


4.5.4                     The proceeds of
each Loan received by Borrower prior to, or concurrently with, the date on
which this representation and warranty is made or deemed made has been or will
be used solely in accordance with, and solely for the purposes contemplated by,
Section 5.1.


 


33

















 


4.5.5                     Borrower has no
obligation to any Person in respect of any finder’s, broker’s or investment
banking fee with respect to the Operative Documents or the transactions
contemplated thereby or under any other agreement, document or instrument with
any Person, other than fees payable under this Agreement and the Fee Letter.


 


4.5.6                     No proceeds of
any Loan will be used to acquire any equity security of a class that is
registered pursuant to Section 12 of the Exchange Act.


 


4.6                               ADVERSE
CHANGE.


 


4.6.1                     As of the
Closing Date, there is no fact known to Borrower which has had or could
reasonably be expected to have a Material Adverse Effect which has not been
disclosed to Administrative Agent or the Lenders (as of such date) by or on
behalf of Borrower on or prior to the Closing Date in connection with the
transactions contemplated hereby.


 


4.6.2                     Since the
Closing Date, no event, circumstance or condition shall have occurred and be
continuing that constitutes or could reasonably be expected to result in a
Material Adverse Effect.


 


4.7                               INVESTMENT
COMPANY ACT.  No Borrower
Entity is an “investment company” or a company “controlled by” an “investment
company,” each within the meaning of, or subject to regulation under, the
Investment Company Act of 1940, as amended.


 


4.8                               ERISA.  Either (a) there are no ERISA Plans or
Multiemployer Plans for any Borrower Entity or any ERISA Affiliate or
(b) (i) each Borrower Entity and each ERISA Affiliate has fulfilled
its obligations (if any) under the applicable minimum funding standards of
ERISA and the Code for each ERISA Plan, (ii) each such ERISA Plan is in
compliance in all material respects with the currently applicable provisions of
ERISA, the Code and other Governmental Rules, (iii) neither any Borrower
Entity nor any ERISA Affiliate has incurred any material liability to the PBGC
or an ERISA Plan or Multiemployer Plan under Title IV of ERISA (other than
liability for premiums due in the ordinary course), (iv) each such ERISA
Plan that is intended to qualify under Section 401(e) of the Code has
received a favorable determination or opinion letter from the Internal Revenue
Service, or the remedial amendment period with respect thereto has not yet
expired, or an application for such letter is currently being processed by the
Internal Revenue Service with respect thereto, and nothing has occurred which
could reasonably be expected to cause the loss of such qualification, and (v) no
Borrower Entity or any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred which with the giving
of notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA. 
The Borrower’s assets do not constitute assets of an employee benefit
plan within the meaning of 29 C.F.R. Section 2510.3-101.  Borrower does not maintain, nor has it at any
point of its existence maintained, any employee-benefit plans that were subject
to Title IV of ERISA.


 


4.9                               PERMITS.


 


4.9.1                     There are no
Permits under the existing Legal Requirements with respect to the Project as it
is currently designed that are or will become Applicable Permits other than the
Permits listed in the Permit Schedule. 
Except as disclosed in the Permit Schedule, all Applicable 


 


34

















 


Permits and, to the knowledge of Borrower,
Applicable Third Party Permits have been issued and are in full force and
effect and not subject to current legal proceedings or to any Unsatisfied
Condition that could reasonably be expected to result in material modification
or revocation, all applicable appeal periods with respect thereto have expired,
and the permittee thereunder is in compliance therewith.


 


4.9.2                     With respect to
any of the Permits which are not yet Applicable Permits or, to the knowledge of
Borrower, Applicable Third Party Permits, to Borrower’s knowledge, no fact or
circumstance exists which makes it likely that any such Permit will not be
obtainable by Borrower or the applicable Person identified in the Permit
Schedule (a) prior to the time that it becomes an Applicable Permit or
Applicable Third Party Permit, as applicable, (b) without delay materially
in excess of the time periods thereof in the Project Schedule (if applicable)
and (c) without expense materially in excess of the amounts provided
therefor in the then-current Project Budget.


 


4.9.3                     Except as
disclosed in the Permit Schedule, the Permits which have been obtained by
Borrower or, to Borrower’s knowledge, any other person identified in the Permit
Schedule are not and shall not be subject to any restriction, condition,
limitation or other provision that could reasonably be expected to have a
Material Adverse Effect.


 


4.10                        HAZARDOUS
SUBSTANCES.


 


4.10.1              Except as set
forth in Exhibit G-5: 
(a) Borrower, with respect to the Real Property, is not and has not
in the past received written notice that it has been in violation of any
Hazardous Substance Law which violation could reasonably be expected
(i) to result in a material liability to, or material Environmental Claims
against, Borrower or its properties and assets, (ii) to result in an
inability of Borrower to perform its obligations under the Operative Documents,
(iii) to materially and adversely interfere with the continuing operation
of the Project, or (iv) to materially and adversely impair the fair market
value of any Mortgaged Property; (b) neither Borrower nor, to Borrower’s
knowledge, any other Person has used, Released, threatened to Release, generated,
manufactured, produced or stored in, on, under, or about the Real Property, or
transported thereto or therefrom, any Hazardous Substances that could
reasonably be expected to subject any Secured Party to liability, or Borrower  to material liability, under any Hazardous Substance Law;
(c) to Borrower’s knowledge, there are no underground tanks, whether
operative or temporarily or permanently closed, located on the Real Property;
(d) to Borrower’s knowledge, there are no Hazardous Substances used, stored
or present at or on the Real Property, except in compliance with Hazardous
Substance Laws and other Legal Requirements or as disclosed in the Phase I
Environmental Report; (e) to Borrower’s knowledge, there are no Hazardous
Substances that could reasonably be expected to migrate onto the Real Property,
except as disclosed in the Phase I Environmental Report; and (f) to
Borrower’s knowledge, there neither is nor has been any condition,
circumstance, action, activity or event that could reasonably be expected to
be, or result in, a material violation by Borrower of any Hazardous Substance
Law, or to result in liability to any Secured Party or material liability to
Borrower under any Hazardous Substance Law or any other material Environmental
Claims against Borrower or any Secured Party.


 


35

















 


4.10.2              Except as set
forth on Exhibit G-4 or Exhibit G-5, with respect to
the Real Property, (a) as of the Closing Date, there is no pending or,
threatened in writing or, to Borrower’s knowledge, contemplated, action, suit
or proceeding under any Hazardous Substance Law by any Governmental Authority
or any other Person which is not a Governmental Authority to which Borrower is
or will be named as a party, and (b) thereafter, there is no pending or,
threatened in writing or, to Borrower’s knowledge, contemplated, action, suit
or proceeding by any Governmental Authority or any non-governmental third party
under any Hazardous Substance Law which could reasonably be expected to have a Material Adverse Effect.


 


4.10.3              With respect to
the Real Property, (a) there is no consent or other decree, consent order,
administrative or other order, or other administrative or judicial requirement
outstanding under any Hazardous Substance Law, and (b) Borrower has not
received written notice and is not aware of any claim or notice of violation,
alleged violation, non-compliance, liability or potential liability under any
Hazardous Substance Law, nor does Borrower have knowledge or reason to believe
that any such action is being contemplated, considered or threatened.


 


4.10.4              Except as set
forth in the Phase I Environmental Report, to Borrower’s knowledge there are no
past violations that have not been finally resolved or existing violations of
any Hazardous Substances Laws by any Person affecting the Real Property.


 


4.10.5              As of the
Closing Date, there are no environmental reports, investigations, studies,
audits, reviews or other analyses conducted by or which are in the possession
of or known to Borrower in relation to the use, storage or presence of
Hazardous Substances at or on the Site other than the Phase I Environmental
Report.


 


4.11                        LITIGATION.


 


4.11.1              As of the
Closing Date, except as set forth on Exhibit G-4, no action,
litigation, suit, proceeding or investigation before or by any court,
arbitrator or other Governmental Authority is pending or, to Borrower’s
knowledge, threatened in writing by or against Borrower, or any other Borrower
Entity or Major Project Participant as relates to the Project, or any of their
respective properties that relate to the Project.


 


4.11.2              As of the
Closing Date, Borrower has no knowledge of any order, judgment or decree having
been issued or proposed to be issued by any Governmental Authority that, as a
result of the construction, development, ownership or operation of the Project
by Borrower, the sale of electricity therefrom by Borrower or the entering into
of any Operative Document or any transaction contemplated hereby or thereby,
could reasonably be expected to cause or deem any Secured Party or Borrower or
any Affiliate of any of them to be subject to, or not exempted from, regulation
under PUHCA, or treated as a public utility under the laws of the Project
Jurisdiction as presently constituted and as construed by the courts of the
Project Jurisdiction, respecting the rates or the financial or organizational
regulation of electric utilities.


 


4.11.3              After the
Closing Date, except as set forth on Exhibit G-4, (a) there
are no pending or, to Borrower’s knowledge, threatened action, litigation,
suit, proceeding or investigation of any kind, including actions or proceedings
of or before any Governmental Entity 


 


36

















 


or arbitrator to which Borrower or any other Borrower
Entity is a party, or by which any of them or any of their properties that
relate to the Project are bound and (b) there are to Borrower’s knowledge,
no pending or threatened action, litigation, suit, proceeding or investigation
of any kind, including actions or proceedings of or before any Governmental
Authority to which any Major Project Participant is a party, or by which any of
them or any of their properties that relate to the Project are bound, which, in
either case, have not been disclosed by Borrower to Administrative Agent in
accordance with, and to the extent required by, Section 5.4, other than
any such actions or proceedings which could not reasonably be expected to have
a Material Adverse Effect.


 


4.12                        NO
LABOR DISPUTES; FORCE MAJEURE.  Neither the business nor the properties of
Borrower or, to Borrower’s knowledge, any other Major Project Participant are
currently affected by any fire, explosion, accident, strike, “force majeure”
(as defined in any Project Document), lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy, or other
casualty (whether or not covered by insurance), which could reasonably be
expected to have a Material Adverse Effect.


 


4.13                        OPERATIVE
DOCUMENTS.


 


4.13.1              Copies of all
of the Project Documents (other than any Project Document that is only
incidental to the development, construction, leasing, ownership or operation of
the Project) executed on or prior to such date have been delivered to
Administrative Agent by Borrower.  Since
the Closing Date, except as has been disclosed to Administrative Agent in
writing and as permitted hereunder, as of such date, none of such Project
Documents has been amended, modified or terminated (other than expiration
thereof in accordance with its terms and the Credit Documents) and all such
Project Documents are in full force and effect.


 


4.13.2              To Borrower’s
knowledge, except as disclosed to Administrative Agent in writing at or prior
to the time the representation and warranty in this Section 4.13.2 is
being made, the representations and warranties of the Major Project
Participants contained in the Operative Documents (other than this Agreement)
are true and correct in all material respects.


 


4.14                        DISCLOSURE.  The information regarding the Project and any
Borrower Entity included in this Agreement  and the
reports, financial statements, certificates, Notices of Borrowing, exhibits,
schedules and other documents furnished to any Secured Party, or to the
Independent Engineer, Insurance Consultant, Wind Consultant or
Environmental Consultant, by or, to Borrower’s knowledge, on behalf of
Borrower, taken as a whole, did not contain and do not contain any material
misstatement of fact or omitted or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were or are made, taken as a whole, not misleading as of the date such
information is dated or certified; provided, that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, Borrower represents only that it acted in
good faith and utilized reasonable assumptions and due care in the preparation
of such information, report, financial statement, exhibit or schedule.


 


37

















 


4.15                        TAXES.


 


4.15.1              All federal,
state, local, and foreign tax returns, information statements and reports that
are required to be filed by or with respect to Borrower have been timely filed,
and all taxes (or, with respect to the item listed on Exhibit G-4
as of the Closing Date, the Project Budget includes a line-item for the maximum
amount of taxes claimed by the applicable taxing authorities that is the
subject of such contested tax), material assessments, utility charges, fees and
other governmental charges required to be paid by or with respect to Borrower
have been timely paid (other than those taxes, if any, that it is contesting in
good faith and by appropriate proceedings in accordance with the requirements
of Section 5.18).  Borrower knows of
no proposed tax assessment against any Borrower Entity which could reasonably
be expected to have a Material Adverse Effect. 
In either case, to the extent such taxes, assessments, charges and fees
are not due, the applicable Borrower Entity has established reserves that are
adequate for the payment thereof in conformity with GAAP.


 


4.15.2              At all times
since its formation, each of Pledgor and Borrower has been an entity with a
single owner that is disregarded as separate from its owner for federal (and
where applicable, state) tax purposes. 
No IRS Form 8832 has ever been filed with respect to Pledgor or
Borrower as other than a disregarded entity.


 


4.15.3              Borrower has no
liability for the taxes of any Person (other than Borrower) (a) under
Treasury Regulations Section 1.1502-6 (or any similar provision of state,
local or foreign law), (b) as a transferee or successor, (c) by
contract or (d) otherwise.


 


4.15.4              Borrower does
not intend to treat the Loans (including the incurrence thereof) as being a “reportable
transaction” (within the meaning of Treasury Regulation Section 1.6011-4).


 


4.16                        GOVERNMENTAL
REGULATION.  None of Parent,
Pledgor, Borrower or any Secured Party or any Affiliate of any of them will,
solely as a result of the construction, ownership, leasing or operation of the
Project, the sale of wholesale electric capacity, energy or ancillary services
therefrom, the making of the Loans, or the entering into any Operative Document
in respect of the Project or any transaction contemplated hereby or thereby, be
subject to, or not exempt from, regulation under the FPA or PUHCA or under
state laws and regulations respecting the rates or the financial regulation of
electric utilities, except that (a) Borrower will be subject to the
compliance requirements under PUHCA applicable to an Exempt Wholesale Generator
and an owner of an Eligible Facility, (b) Borrower will be a “public
utility” under the FPA with authority to sell wholesale electric capacity,
energy and ancillary services at market-based rates and with all waivers of
regulations and blanket authorizations as are customarily granted by FERC to a “public
utility” that sells at wholesale electric power and ancillary services at
market-based rates, and (c) the exercise of remedies, as provided for
under the Credit Documents, may cause any such Persons to be subject to
regulation (i) under the FPA (ii) under state laws and regulations
respecting the financial or organizational regulation of electric utilities, (iii) to
the extent the Project is no longer an Exempt Wholesale Generator, under PUHCA,
and (iv) to the extent the Project sells at retail or otherwise furnishes
electric capacity, energy, ancillary services, or transmission or distribution
services to consumers for domestic, commercial, or industrial use, under state
laws and regulations respecting the rates and the financial or organizational
regulation of electric utilities.  Except
to the extent provided in the first sentence of this Section 4.16,
Borrower will not be deemed by any Governmental Authority


 


38

















 


having
jurisdiction to be subject to, or not exempt from, financial or rate regulation
as an “electric utility”, “electric corporation”, “electrical company”, “public
utility”, or “holding company” or any similar Person under any applicable
Governmental Rule then in effect.


 


4.17                        REGULATION
U, ETC.  Borrower is
not engaged principally, or as one of its principal or important activities, in
the business of extending credit for the purpose of “buying,” “carrying” or “purchasing”
any “margin stock” (each as defined in Regulations T, U or X of the Federal
Reserve Board, each as now and from time to time hereafter in effect), and no
part of the proceeds of the Loans or the Project Revenues will be used whether
directly or indirectly, and whether immediately, incidentally or ultimately,
for the purpose of “buying,” “carrying” or “purchasing” any such margin stock
or for any other purpose that entails a violation of, or that is inconsistent
with, the provisions of the regulations of the Federal Reserve Board, including
Regulation T, U or X.  Pledgor’s pledge
of the membership interests in Borrower pursuant to the Pledge Agreement does
not violate such regulations.


 


4.18                        BUDGETS;
PROJECTIONS.  Borrower has
prepared the Project Budget and the Base Case Projections in good faith, is
responsible for developing the assumptions on which the Project Budget and the
Base Case Projects are based, and the Project Budget and Base Case Projections
(a) as of the date delivered, updated or supplemented are based on
reasonable assumptions (including as to all legal and factual matters material
to the estimates set forth therein), (b) as of the date delivered, updated
or supplemented are consistent in all material respects with the provisions of
the Project Documents executed on or prior to such date, (c) as of the
date delivered, updated or supplemented indicate that the estimated aggregate
Project Costs will not exceed Available Construction Funds; and (d) disclose
all material assumptions made in the preparation thereof, including assumptions
with respect to general economic, financial and market conditions.


 


4.19                        FINANCIAL
STATEMENTS.


 


4.19.1              In the case of
each financial statement of Borrower and accompanying information delivered by
Borrower under the Credit Documents, each such financial statement and
information has been prepared in conformity with GAAP applied consistently
throughout the relevant periods (except as otherwise approved and disclosed
therein) and fairly presents, in all material respects, the financial position
(on a consolidated and, where applicable, consolidating basis) of Borrower,
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated and, where
applicable, consolidating basis) of Borrower described therein for each of the
periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments and
the absence of footnote disclosure.


 


4.19.2              Except for the
obligations under the Operative Documents to which it is a party, Borrower does
not (and will not following the funding of the initial Loans) have any
contingent obligations, undisclosed liabilities, unmatured liabilities,
contingent liability or liability for taxes, long-term lease or forward or
long-term commitment (including any interest rate or foreign currency swap or
exchange transaction or other financial derivative) required to be shown under
GAAP that are not reflected in the foregoing financial statements or the notes
thereto and which in any such case are material in relation to the business,
results of operations, 


 


39

















 


properties or financial condition of Borrower, nor
has a Material Adverse Effect occurred during such period.


 


4.19.3              There has been
no sale, transfer or other disposition by Borrower of any material part of its
business or property, including the Project, and no purchase or other
acquisition of any business or property (including capital stock of any
Person).


 


4.20                        NO
DEFAULT.  No Default
or Event of Default which has not been disclosed to Administrative Agent in
writing has occurred and is continuing.


 


4.21                        ORGANIZATIONAL
ID NUMBER; LOCATION OF TANGIBLE COLLATERAL.


 


4.21.1              Borrower’s
organizational identification number is 4244523.


 


4.21.2              All of the
tangible Collateral is, or when installed pursuant to the Project Documents
will be, located on the Site, the Easements or at Borrower’s address set forth
in Section 13.1.1; provided, that equipment may be temporarily
removed from the Site and/or the Easements from time to time in the ordinary
course of business.


 


4.22                        TITLE
AND LIENS.Borrower has (a) good, marketable and insurable
(i) fee or leasehold interest in the Site (other than the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line),
the Site Common Facilities, the Circle Four Easements and the SITLA Right of
Way), (ii) interests in the BLM Right
of Way (Phase II) and Circle Four Easements, and (iii) an undivided tenant
in common interest in the Easements, the BLM Right of Way (Generator Lead Line), the SITLA Right of Way and the Site Common Facilities, in each case free of all
Liens other than the Title Exceptions, and (iv) interest in any other Real
Property, and (b) good, legal and valid title to all other Collateral,
free of all Liens other than Permitted Liens.


 


4.23                        INTELLECTUAL
PROPERTY.


 


4.23.1              Borrower owns
or has the right to use all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that are necessary for the operation of its business, without known conflict
with the rights of others.  No product of
Borrower infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right owned by any other Person;


 


4.23.3              To the knowledge
of Borrower, there is no violation by any Person of any right of Borrower with
respect to any patent, copyright, service mark, trademark, trade name or other
right owned or used by Borrower; and


 


4.23.4              There exists no
pending or threatened in writing claim or litigation against or affecting
Borrower contesting its right to sell or use any such product, process, method,
substance, part or other material.


 


4.23.5              Borrower owns
no registered patents, copyrights or trademarks, or applications therefor.


 


40

















 


4.24                        COLLATERAL.  The respective liens and security interests
granted to Collateral Agent pursuant to the Collateral Documents
(a) constitute as to personal property included in the Collateral a valid
security interest under the applicable UCC and (b) constitute as to the
Mortgaged Property included in the Collateral a valid lien and security
interest in the Mortgaged Property under the laws of the State of Utah.  The security interest granted to Collateral
Agent pursuant to the Collateral Documents in the Collateral consisting of
personal property has been perfected (i) with respect to any property that
can be perfected by filing, upon the filing of financing statements in the
filing offices identified in Exhibit D-5 (provided that the
recording of the Trust Deed shall fulfill this requirement with respect to
fixtures described therein), (ii) with respect to any property that can be
perfected by control, upon execution of the Depositary Agreement, and (iii) with
respect to any property (if any) that can be perfected by possession, upon
Collateral Agent receiving possession thereof, and in each case such security
interest will be, as to Collateral perfected under the UCC or otherwise as
aforesaid, superior and prior to the rights of all third Persons now existing
or hereafter arising whether by way of Lien of any type, assignment or
otherwise, except (I) Title Exceptions and Permitted Liens described in
clauses (a) and (e) of the definition of “Permitted Liens” and
(II) to the extent required by Governmental Rule, Permitted Liens
described in the other clauses of the definition of “Permitted Liens.”  All such action as is necessary to establish
and perfect Collateral Agent’s rights in and to existing Collateral has been
taken to the extent Collateral Agent’s security interest can be perfected by
filing, including any recording, filing, registration, giving of notice or
other similar action.  As of the Closing
Date, no filing, recordation, re-filing or re-recording other than those listed
on Exhibit D-5 is necessary to perfect and maintain the perfection
of the interest, title or Liens on the Collateral comprising personal property,
and on the Closing Date all such filings or recordings will have been made to
the extent Collateral Agent’s security interest can be perfected by
filing.  Borrower has properly delivered
or caused to be delivered, or provided control, to Collateral Agent or
Depositary all Collateral that permits perfection of the Lien and security
interest described above by possession or control.


 


4.25                        SUFFICIENCY OF PROJECT DOCUMENTS.


 


4.25.1              Other than
those that can be reasonably expected to be commercially available when and as
required, the services to be performed, the materials to be supplied and the
real property interests, the Easements and other rights granted, or to be
granted, pursuant to the Project Documents in effect as of such date:


 


(a)                                  comprise all of
the property interests necessary to secure any right material to the
acquisition, leasing, development, construction, installation, completion,
operation and maintenance of the Project in material accordance with all Legal
Requirements and in material accordance with the Project Schedule, all without
reference to any proprietary information not owned by or available to Borrower;


 


(b)                                 are sufficient
to enable the Project to be located, constructed, developed, owned, occupied,
operated, maintained and used on the Site and the Easements; and


 


(c)                                  provide
adequate ingress and egress from the Site for any reasonable purpose in
connection with the construction and operation of the Project.


 


41

















 


4.25.2              There are no
services, materials or rights required for the construction or operation of the
Project in accordance with the Construction Contract, the other Major Project
Documents and the assumptions that form the basis of the Base Case Projections,
other than those (a) to be provided under the Project Documents or
(b) that can reasonably be expected to be commercially available at or for
delivery to the Site on commercially reasonable terms consistent with the
then-current Project Budget and the then-current Annual Operating Budget and
the Base Case Projections.


 


4.26                        UTILITIES.  All utility services necessary for the
construction and the operation of the Project for its intended purposes are
available at the Project or can reasonably be expected to be so available as
and when required upon commercially reasonable terms substantially consistent
with the then-current Project Budget, the Project Schedule and the then-current
Annual Operating Budget and the Base Case Projections.


 


4.27                        OTHER
FACILITIES.


 


4.27.1              All roads
necessary for the construction and full utilization of the Project for its
intended purposes have either been completed or Borrower possesses the
necessary rights of way therefor, other than rights of way that can reasonably
be expected to be available on commercially reasonable terms as and when
needed.


 


4.27.2              Borrower possesses, or to Borrower’s
knowledge the counterparties to the Major Project Documents pursuant to which
interconnection facilities will be constructed and, if applicable, operated for
the benefit of the Project, possess and are obligated, except for restrictions
or limitations contained in the applicable Project Documents, to provide or
make available to Borrower, all necessary easements, rights of way, licenses,
agreements and other rights for the construction, interconnection and
utilization of the interconnection facilities (including water, wastewater and
electrical).


 


4.28                        FLOOD
ZONE DISCLOSURE.  The Site and
Easements do not and will not include improvements located in an area that has
been identified by the Federal Emergency Management Agency as an area having
special flood or mudslide hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968, as amended.


 


4.29                        INSURANCE.  All insurance policies then required to be
maintained by Borrower and, to Borrower’s knowledge, each other Major Project
Participant pursuant to the terms of any Operative Document are in full force
and effect, and all premiums then due and payable have been paid.


 


4.30                        ANTI-TERRORISM
LAW.


 


(a)                                  Neither
Borrower nor, to the knowledge of Borrower, any other Credit Party or any
Affiliate is in violation of (i) any of the foreign assets control
regulations of the United States Treasury Department (31 C.F.R.,
Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, (ii) Executive Order No. 13,224, 66
Fed. Reg. 49,079 (2001), issued by the President of the United States
(Executive Order Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit or Support Terrorism) (the “Executive Order”)
or (iii) the anti-money laundering provisions of the


 


42














 


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) (the “Patriot
Act”), amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et
seq., and any other laws relating to terrorism or money laundering
(collectively, “Anti-Terrorism Laws”).


 


(b)                                 None of the
Affiliates, brokers or other agents of any Credit Party acting or benefiting in
any capacity in connection with the Loans is any of the following:  (i) a Person that is listed in the annex
to, or is otherwise subject to the provisions of, the Executive Order;
(ii) a Person owned or controlled by, or acting for or on behalf of, any
person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order; (iii) a Person with which any Lender
is prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to
commit or supports “terrorism” as defined in the Executive Order; or (v) a
Person that is named as a “specially designated national and blocked person” on
the most current list published by OFAC at its official website or any
replacement website or other replacement official publication of such list.


 


(c)                                  No broker or
other agent of any Borrower Entity acting in any capacity in connection with
the Loans (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any person
described in paragraph (b) above, (ii) deals in, or otherwise
engages in any transaction relating to, any property or interests in property
blocked pursuant to the Executive Order, or (iii) engages in or conspires
to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth
in any Anti-Terrorism Law.


 


4.31                        INVESTMENTS.  Other than Permitted Investments, Borrower
has not acquired an equity interest in, acquired all or substantially all of
the assets of, loaned money, extended credit or made advances to, or made
deposits with (other than deposits or advances in relation to the payment for
goods and equipment in the ordinary course of business the making of which is
expressly contemplated pursuant to the Operative Documents), any Person.


 


4.32                        NO
RECORDATION, ETC.  Each
Operative Document is in proper legal form under the respective governing laws
selected in such Operative Document for the enforcement thereof in such
jurisdictions against Borrower and each other party thereto without any further
action on the part of Administrative Agent or other Secured Parties.  To ensure the legality, validity,
enforceability, priority or admissibility in evidence of any such document it
is not necessary that such document or any other document be filed, registered
or recorded with, or executed or notarized before, any court or other authority
in such jurisdiction or that any registration charge or stamp or similar tax be
paid on or in respect of any such document, except for the recordation of
Collateral Documents and filing and recordation of such other documents as
specifically contemplated pursuant to this Agreement.


 


4.33                        ENTITLEMENT
TO GRANT.  The
Borrower and the Project meet the standards for applicant and property
eligibility set forth in the Treasury Guidance. 
The risk of recapture liability in respect of the Grant proceeds is
limited to those circumstances described in the Treasury Guidance as of the
Closing Date.  As of the Closing Date,
the Borrower’s commercially reasonable estimate is that the proceeds of the
Grant will be approximately $78,139,544. 
Such estimate (a) is, as of the Closing Date, based on reasonable
assumptions as to 


 


43

















 


all legal and factual matters material to the
estimates set forth therein, (b) as of the Closing Date, is consistent
with the provisions of the Credit Documents, (c) has been calculated in
good faith and with due care, (d) fairly represents the Borrower’s
reasonable expectations as to the matters covered thereby as of their date and (e) is
consistent with the Cost Segregation Report delivered hereunder.  There are no taxes, assessments or other
governmental charges or levies imposed or payable on or with respect to the
Grant.  As of the date upon which the
Project is placed into service, Borrower is not a Disqualified Person and will
have made every election that is necessary to claim and apply for the Grant in
accordance with the Treasury Guidance and applicable law.


 


4.34                        NO
OWNERSHIP BY DISQUALIFIED PERSONS.  None of Borrower, Pledgor or Parent is a
Disqualified Person.  Parent is a
corporation for tax purposes.


 


4.35                        SOLVENCY.  Borrower is Solvent both before and after taking
into account the transactions contemplated by the Credit Documents.


 


4.36                        PPA.


 


4.36.1              Borrower has
not requested early termination of the PPA.


 


4.36.2              Borrower is a “Special
Purpose Entity” as such term is defined in the PPA.


 


4.36.3              Each of the
Leases, the SITLA Right of Way, the BLM Right of Way (Phase II) and the BLM
Right of Way (Generator Lead Line) have been approved by SCPPA.


 


4.36.4              Borrower has
provided SCPPA each of the reports required under Section 3.3 of the PPA.


 


4.36.5              Borrower has
enforced the Leases and the other Major Project Documents to which it is a
party in accordance with their terms.


 


ARTICLE 5

AFFIRMATIVE COVENANTS


 


5.1                               USE OF
PROCEEDS, EQUITY CONTRIBUTIONS AND PROJECT REVENUES.


 


5.1.1                     Proceeds
and Equity Contributions.


 


(a)                                 Unless
otherwise applied by Administrative Agent pursuant to any Credit Document,
Borrower shall (i) deposit the proceeds of the Loans and any cash equity
contributions in the Construction Account, (ii) hold such proceeds in
trust until deposited in the Construction Account and (iii) subject to
Section 5.1.1(b), use them solely to pay Project Costs.


 


(b)                                 Notwithstanding
anything to the contrary herein, Borrower shall be permitted to: (i) use
the proceeds of Loans made available on the initial borrowing date to reimburse
Sponsor or its Affiliates for Project Costs previously incurred and paid by
such Person; provided that (A) such Project Costs are verified by
Independent Engineer and (B) such reimbursement does not exceed the
difference between the aggregate amount of such Project 


 


44

















 


Costs and the Base Equity Requirement; and (ii) use
the Proceeds of the Loan to make the Performance LC Distribution.


 


5.1.2                     Revenues.  Unless otherwise applied by Administrative Agent
or Collateral Agent pursuant to any Credit Document, Borrower shall apply any
Project Revenues, equity contributions, Loan proceeds, Insurance Proceeds
and damage payments solely for the purpose, and in the order and manner,
provided for in Article 7.


 


5.1.3                     Misapplication
of Funds. 
Notwithstanding anything to the contrary herein, in the event that funds
required to be deposited in one Account are erroneously deposited into another
Account, it shall not be an Event of Default so long as Borrower issues an
Account Withdrawal Request requesting Administrative Agent to issue Account
Withdrawal Instructions correcting such misapplication within three Business
Days after Borrower has actual knowledge of such misapplication.


 


5.2                               PAYMENT.


 


5.2.1                     Credit
Documents.  Borrower
shall pay all sums due under the Credit Documents to which it is a party
according to the terms hereof and thereof.


 


5.2.2                     Other
Obligations.  Borrower
shall pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all of its obligations under  the Project Documents and all of its other obligations of
whatever nature and howsoever arising, except (a) such as may be contested
in good faith or as to which a bona fide dispute may exist, provided,
that adequate cash reserves have been established in conformity with GAAP, or
Administrative Agent is satisfied in its reasonable discretion that non-payment
of such obligation pending the resolution of such contest or dispute will not
in any way endanger the Project or result in a Material Adverse Effect or that
provision is made to the satisfaction of Administrative Agent in its reasonable
discretion for the posting of security (other than the Collateral) for or the
bonding of such obligations or the prompt payment thereof in the event that
such obligation is payable and (b) Borrower’s trade payables which shall
be paid in the ordinary course of business.


 


5.3                               MAINTENANCE
OF PROPERTY.  Other than
property disposed of in accordance with Section 6.4, Borrower shall
maintain (a) a good, marketable and insurable (i) fee or leasehold
interest in the Site (other than the BLM Right of Way (Phase II), the BLM Right
of Way (Generator Lead Line), the Site Common Facilities, the Circle Four
Easements and the SITLA Right of Way), (ii) interest in the BLM Right of
Way (Phase II) and the Circle Four Easements, (iii) undivided tenant in
common easement interest in the Easements, the BLM Right of Way (Generator Lead
Line), the Site Common Facilities and the SITLA Right of Way, and (iv) interest
in any other Real Property, and (b) good, legal and valid title to all of
its other material properties and assets, in each case free and clear of all
Liens other than Permitted Liens. 
Borrower shall generally keep all property useful and necessary in its
business in good working order and condition.


 


5.4                               NOTICES.  Borrower shall upon acquiring notice or
giving notice (except as otherwise specified below), as the case may be, or
obtaining knowledge thereof, promptly (and in any event, within 10 Business
Days unless otherwise noted below) give notice (with copies of 


 


45

















 


any underlying notices, papers, files or related
documentation) to Administrative Agent, accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Borrower proposes to take with respect thereto, of:


 


5.4.1                     any litigation
pending or, to Borrower’s knowledge, threatened in writing against Borrower
involving claims against Borrower or the Project in excess of $1,000,000
individually or in the aggregate per calendar year or involving any injunctive,
declaratory or other equitable relief, such notice to include, if requested in
writing by Administrative Agent, copies of all papers filed in such litigation
and to be given monthly if any such papers have been filed since the last
notice given;


 


5.4.2                     any dispute or
disputes for which written notice has been received by Borrower which may exist
between Borrower or any holder of an Applicable Third Party Permit and any
Governmental Authority and which involve (a) claims against Borrower which
exceed $500,000 individually or in the aggregate per calendar year,
(b) injunctive or declaratory relief, or (c) revocation,
modification, failure to renew or the like of any Applicable Permit or
Applicable Third Party Permit;


 


5.4.3                     within five
days after a Responsible Officer having knowledge thereof, any Default or Event
of Default;


 


5.4.4                     any casualty,
damage or loss, whether or not insured, through fire, theft, other hazard or
casualty, or any act or omission of (a) Borrower, its employees, agents,
contractors or representatives in excess of $500,000 for any one event or in
the aggregate in any calendar year, or (b) to Borrower’s knowledge, any
other Material Project Participant if such casualty, damage or loss could
reasonably be expected to have a material adverse effect on the business, costs
or property of such Person or the ability of such Person to perform its
obligations under the Operative Documents;


 


5.4.5                     within five
Business Days, any cancellation, suspension or material change in the terms,
coverage or amounts of any insurance described in Exhibit K;


 


5.4.6                     any contractual
obligations incurred by Borrower exceeding $250,000 per year in the aggregate
for the Project, not including any obligations incurred pursuant to the Credit
Documents or the Project Documents or any obligation contemplated in the
then-current Project Budget or the then-current Annual Operating Budget;


 


5.4.7                     any intentional
withholding of compensation to, or any right to withhold compensation claimed
by, any Major Project Participant or pursuant to any Major Project Document,
other than retention provided by the express terms of any such contracts;


 


5.4.8                     any
(a) termination (other than expiration in accordance with its terms and
any applicable Consent) of, or material default of which Borrower has knowledge
or written notice thereof under, any Major Project Document, (b) material
Project Document Modification (with copies of all such Project Document
Modifications whether or not requiring approval of Administrative Agent or the
Required Lenders pursuant to Section 6.12) and (c) without
duplication, any material dispute, relating to the Project, between Borrower
and any Major Project Participant;


 


46

















 


5.4.9                     any written
claim of events of force majeure, change orders in excess of $250,000, or
Borrower caused delay under any Major Project Document (including claims
therefor regardless of whether Borrower believes such claim has merit) and, to
the extent requested by Administrative Agent, copies of invoices or statements
which are reasonably available to Borrower under any Major Project Document,
certified by an authorized representative of Borrower, together with a copy of
any supporting documentation, schedule, data or affidavit delivered under such
Major Project Document; provided, however, Borrower shall provide
copies of any notices received under the PPA as promptly as practicable after
the date of such receipt (and in any event within three Business Days after the
date of such receipt);


 


5.4.10              any
(a) material noncompliance with any Hazardous Substance Law or any
material Release, or material threat of Release, of Hazardous Substances on or
from the Real Property that has resulted or could reasonably be expected to
result in personal injury or material property damage or to have a Material
Adverse Effect or is required to be reported to any Governmental Authority
under any Hazardous Substance Law, (b) pending or, to Borrower’s
knowledge, threatened in writing, Environmental Claim against Borrower or, to
Borrower’s knowledge, any of its Affiliates, contractors, lessees or any other
Persons, arising in connection with their occupying or conducting operations on
or at the Real Property which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect, (c) any condition,
circumstance, occurrence or event that could reasonably be expected to result
in a material liability under Hazardous Substance Laws or in the imposition of
any Lien or any other restriction on the title, ownership or transferability of
any Real Property, (d) any proposed action to be taken by Borrower that
could reasonably be expected to subject it to any material additional or
different requirements or liabilities under Hazardous Substance Laws, or
(e) existence of any underground tank, whether operative or temporarily or
permanently closed, located on the Real Property;


 


5.4.11              promptly, but
in no event later than 15 days prior to the time any Person will become a
member of Borrower or the occurrence of any other change in or transfer of
ownership interests in Borrower or the Project, notice thereof, which notice
shall identify such Person and such Person’s interest in Borrower or shall
describe, in reasonable detail, such other change or transfer;


 


5.4.12              any material
written notices, reports or information (including any notice that the Project
has achieved mechanical completion, substantial completion and final completion
(or any similar concepts) under the Construction Contract) delivered to or
received by Borrower or any Operator from the parties to the Major Project
Documents;


 


5.4.13              any proceeding
or legislation by any Governmental Authority to confiscate, condemn,
expropriate, nationalize or otherwise acquire compulsorily Borrower, all or any
portion of the Collateral, or all or any portion of Borrower’s business or
assets (whether or not constituting an Event of Default);


 


5.4.14              promptly, but
in no event later than 30 days after the receipt thereof by Borrower,
copies of (a) all Applicable Permits obtained by Borrower after the
Closing Date, (b) any amendment, supplement or other modification to any
Applicable Permit received by 


 


47

















 


Borrower after the Closing Date and (c) all
material notices relating to the Project received by Borrower from, or
delivered by Borrower to, any Governmental Authority;


 


5.4.15              promptly, but
in no event later than five days after occurrence thereof, (a) the
scheduling of any substantial outage with an anticipated duration in excess of
five days and (b) any substantial outage (scheduled or otherwise) with a
duration in excess of five days;


 


5.4.16              within five
Business Days of receipt thereof, copies of any recovery plan proposed by any
Construction Contractor for review by Administrative Agent and the Independent
Engineer;


 


5.4.17              any default or
event of default under any contractual obligations of Borrower, which if not
cured would have a Material Adverse Effect;


 


5.4.18              any Lien (other
than a Permitted Lien) being granted or established or becoming enforceable
over any portion of Collateral;


 


5.4.19              the occurrence
of any event, condition, circumstance or change that has caused or evidences,
individually or in the aggregate, the occurrence of any event having, a
Material Adverse Effect;


 


5.4.20              (a) within
10 days prior to the occurrence of a Reportable Event with respect to any
ERISA Plan; (b) promptly, but in no event later than 15 days, after
the complete or partial withdrawal of any Credit Party or any ERISA Affiliate
from a Multiemployer Plan or receipt by any Credit Party of notification that a
Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA); (c) promptly, but in no event later than five days, after any
Credit Party has knowledge that the PBGC has instituted any proceedings to
terminate any ERISA Plan or Multiemployer Plan or has taken action to appoint a
trustee of any ERISA Plan under Section 4042 of ERISA; (d) promptly,
but in no event later than 10 days, after the occurrence of any event
which could reasonably be expected to give rise to a lien in favor of the IRS
or the PBGC under any ERISA Plan; (e) promptly, but in no event later than
30 days, after any Credit Party has knowledge that a Multiemployer Plan is
in “critical” or “endangered” status within the meaning of Section 305 of
ERISA, is insolvent or intends to terminate an ERISA Plan under
Section 4041A of ERISA and (f) promptly, but in no event later than
10 days prior to the date any Credit Party or any ERISA Affiliate shall
apply for a minimum funding waiver under Section 412 of the Code with
respect to an ERISA Plan, a description thereof and copies of documents and
materials related thereto;


 


5.4.21              any Change of
Control or Recapture Event;


 


5.4.22              At least 90
days prior to Commercial Operation, Borrower shall notify Administrative Agent
of the earliest possible expected date upon which Commercial Operation may be
achieved;


 


5.4.23              within 15 days
after the filing or certification thereof, copies of any and all reports filed
with, or certifications made to, the U.S. Treasury Department with respect to
the Grant and, promptly upon the receipt thereof, a copy of any acknowledgement
or notice from the 


 


48

















 


U.S. Treasury Department (including any notice
acknowledging receipt of the application of the Grant);


 


5.4.24              within 10 days
of the receipt thereof, any assertion, claim, demand, or request by the United
States for repayment of any or all amounts received by Borrower as Grant,
whether with respect to an alleged overpayment of such amount, as a result of
an event resulting in any recapture, or any other reason;


 


5.4.25              promptly any
information Borrower obtains related to the STS Upgrade (as such term is
defined in the PPA); and


 


5.4.26              any other
information relating to Borrower or the Project that Administrative Agent or
any Lender may reasonably request.


 


5.5                               FINANCIAL
REPORTING.


 


5.5.1                     Financial
Statements.  Borrower
shall deliver to Administrative Agent, in form and detail reasonably
satisfactory to Administrative Agent, the following:


 


(a)                                 As soon as
practicable and in any event within 120 days after the close of each
applicable fiscal year, audited financial statements of Borrower, SCPPA,
Turbine Supplier and RMT Parent (it being acknowledged that such financial
statements shall be deemed to be delivered if a Form 10-K or equivalent
filed with the SEC for such Person is publicly available); provided,
that the foregoing financial statements with respect to (i) Turbine
Supplier shall only be required with respect to fiscal years prior to
expiration of the applicable warranty periods under the applicable Turbine
Supply Agreement and (ii) RMT Parent shall only be required prior to the
expiration of the RMT Guaranty and to expiration of the applicable warranty
periods under the Construction Contract. 
Such financial statements shall include a statement of equity, a balance
sheet as of the close of such year, an income and expense statement,
reconciliation of capital accounts (where applicable), a statement of cash flow
and summary results of hedging and trading activities (in the case of Borrower
only), all prepared in accordance with GAAP consistently applied reported on
without a “going concern” or like qualification or exception, or qualification
arising out of the scope of the audit, and certified by an independent
certified public accountant of nationally recognized standing reasonably
acceptable to Administrative Agent.  Such
certificate shall not be qualified or limited because of restricted or limited
examination by such accountant.  The
relevant accountants shall also certify that in making the examination
necessary for reporting on the foregoing financial statements no knowledge was
obtained of any Default or Event of Default, except as disclosed in such
certificate;


 


(b)                                 As soon as
practicable and in any event within 60 days after the end of the first,
second and third quarterly accounting periods of its fiscal year (commencing
with the fiscal quarter ending September 30, 2010), unaudited quarterly
financial statements of Borrower, SCPPA, Turbine Supplier and RMT Parent (it being
acknowledged that such financial statements shall be deemed to be delivered if
a Form 10-Q or equivalent filed with the SEC for such Person is publicly
available) as of the last day of such quarterly period and the related
statements of income, cash flow, and shareholders’ or members’ equity (as
applicable) for such quarterly period and (in the case of second and third
quarterly periods) for the portion of the fiscal year 


 


49

















 


ending with the last day of such quarterly period,
setting forth in each case in comparative form corresponding unaudited figures
from the preceding fiscal year (it being acknowledged that such financial
statements shall be deemed to be delivered if a Form 10-K or equivalent
filed with the SEC for such Person is publicly available), all prepared in
accordance with GAAP consistently applied (subject to changes resulting from
audit and normal year-end adjustments and the absence of footnote disclosure); provided,
that the foregoing financial statements with respect to Turbine Supplier and
RMT Parent shall be limited as to time as set forth in Section 5.5.1(a);
and


 


5.5.2                     Certification.  Borrower shall cause to be delivered, along
with any financial statements of Borrower delivered pursuant to Section 5.5.1,
a certificate signed by a Responsible Officer of Borrower, certifying that
(a) such Responsible Officer has made or caused to be made a review of the
transactions and financial condition of Borrower during the relevant fiscal
period and that such review has not disclosed the existence of any event or
condition which constitutes a Default or Event of Default, or if any such event
or condition existed or exists, the nature thereof and the corrective actions
that Borrower has taken or proposes to take with respect thereto,
(b) Borrower is in compliance with all applicable material provisions of
each Operative Document to which Borrower is a party or, if such is not the
case, stating the nature of such non-compliance and the corrective actions
which such Person has taken or proposes to take with respect thereto, and
(c) such financial statements are true and correct in all material
respects and that no material adverse change in the consolidated assets,
liabilities, operations, or financial condition of Borrower has occurred since
the date of the immediately preceding financial statements provided to
Administrative Agent or, if a material adverse change has occurred, the nature
of such change.


 


5.6                               BOOKS,
RECORDS, ACCESS.  Borrower
shall (a) maintain, or cause to be maintained, adequate books, accounts
and records with respect to Borrower and the Project, in which full and correct
entries shall be made of all financial transactions and the assets and business
of Borrower, and prepare all financial statements required hereunder, in each
case in accordance with GAAP (subject, in the case of unaudited financial
statements, to changes resulting from audit and normal year-end adjustments and
the absence of footnote disclosure) and in compliance with the regulations of
any Governmental Authority having jurisdiction thereof; and, (b) subject
to requirements of Governmental Rules, safety requirements and existing
confidentiality restrictions imposed upon Borrower by any other Person, permit
employees or agents of Administrative Agent and Independent Engineer at any
reasonable times and upon reasonable prior notice to Borrower, Construction
Contractor or Operators, as applicable, (i) to inspect all of Borrower’s
properties, including the Site, (ii) to examine or audit all of Borrower’s
books, accounts and records and make copies and memoranda thereof,
(iii) to communicate with Borrower’s auditors outside the presence of
Borrower, (iv) to discuss the business, operations, properties and
financial and other conditions of Borrower with officers and employees of
Borrower and with its independent certified public accountants, and (v) to
witness any Performance Tests; provided however, that Borrower shall
bear the costs of only one such inspection annually, unless an Event of Default
has occurred and is continuing or Borrower has failed to deliver the report
required pursuant Section 5.8.1(b) on a timely basis (without
amending any cure period in 8.1.8(b)), in which case Borrower shall bear the
cost all such inspections as Administrative Agent may require in its sole
discretion.


 


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5.7                               COMPLIANCE
WITH LAWS, INSTRUMENTS, APPLICABLE PERMITS, ETC.  Borrower shall promptly comply, or cause
compliance, in all material respects with all Legal Requirements (including
Legal Requirements and Applicable Permits relating to pollution control,
environmental protection, employment practices, terms and conditions of
employment, wages and hours, equal employment opportunity or employee benefit
plans, ERISA Plans and employee safety, with respect to Borrower or the
Project), and make such alterations to the Project and the Site as may be
required for such compliance.


 


5.8                               REPORTS.


 


5.8.1                     Construction
Progress Reports.  Borrower
shall:


 


(a)                                 promptly after
receipt thereof, deliver to Administrative Agent and the Independent Engineer
copies of all progress reports of the construction of the Project issued by
Construction Contractor and received by Borrower, supplementing such reports in
reasonable detail with material information not already included therein or in
the last prior report delivered by Borrower pursuant to Section 5.8.1(b),
detailing the progress of the development and construction of the Project since
the last prior report delivered by Construction Contractor (including any
change orders then requested by Borrower or Construction Contractor); and


 


(b)                                 deliver to
Administrative Agent and the Independent Engineer as soon as available, but in
no event later than the 10th Business Day of each month prior to Completion, a
summary of construction on the Project during such month, describing, to the
extent not included in the reports described in Section 5.8.1(a),
(i) physical progress and expenditures, (ii) cumulative expenditures to
date, (iii) any material variations from the then-current Project Budget
or Project Schedule, (iv) any fact, event or occurrence of which Borrower
is aware that (A) may increase the total capital costs of the Project
above those provided in the Project Budget, delay Completion or Commercial
Operation beyond the then-estimated dates therefor or otherwise have a Material
Adverse Effect, or (B) may render unreasonable or inappropriate any
material assumption on which the Project Budget was based, and the anticipated
manner and timing of actions proposed to be taken by Borrower in reaction to
any such fact, event or occurrence, together with an estimate (if available) of
the costs associated with the taking of such actions, (v) delivery status
of major equipment and the effect, if any, that the anticipated delivery dates
of such equipment may have on the Project Schedule and (vi) compliance
with Sections 6.2 and 6.3 or the PPA.


 


5.8.2                     Operating
Report.  Deliver to Administrative Agent
within 26 days of the end of each month after Commercial Operation, a
summary operating report with respect to the Project, which shall include, with
respect to the period most recently ended, (i) a monthly and year-to-date
numerical and brief narrative assessment of (A) the Project’s compliance
with each material category in the then-current Annual Operating Budget,
(B) electrical production, capacity, availability and delivery,
(C) plant and unit availability, including trips and scheduled and
unscheduled outages, (D) maintenance activity, (E) replacement of
material equipment, (F) transactions involving the provision of electrical
products from sources other than the Project, if any, and (G) material
unresolved disputes with contractors, materialmen, suppliers or others and any
related claims against Borrower, if any; and (ii) to the extent
applicable, a comparison of year-to-date figures to corresponding figures
provided in the prior year.


 


51

















 


5.8.3                     Insurance.  (i) As soon as practicable and in any
event by the last day of each calendar year, a report in form and substance
reasonably satisfactory to Administrative Agent outlining all material
insurance coverage maintained as of the date of such report by Borrower and all
material insurance coverage planned to be maintained by Borrower in the
immediately succeeding calendar year, and (ii) together with the delivery
of the insurance report required pursuant to this Section, Borrower shall
furnish to Administrative Agent a certificate executed by Borrower’s insurance
broker substantially in the form of Exhibit L, detailing the
insurance then maintained by or on behalf of Borrower pursuant to Exhibit K
and stating that such insurance is in full force and effect and complies in all
material respects with the terms hereof, together with evidence of payment of
the premiums then due thereon and a schedule of policy expiration dates.


 


5.8.4                     New
Documents.  Promptly,
but in no event later than five Business Days after execution and delivery thereof,
a copy of each Additional Project Document.


 


5.8.5                     Performance
Tests.  Within five Business Days
after Borrower receives notice pursuant to any Major Project Document of the
proposed conduct of Performance Tests for the Project or material portion thereof
and promptly prior to the proposed conduct of any subsequent Performance Tests,
deliver to Administrative Agent notice of such proposed Performance Tests.


 


5.8.6                     Management
Letters.  Promptly after the receipt
thereof by Borrower, deliver to Administrative Agent a copy of any “management
letter” received by it from its certified public accountants and the management’s
responses thereto.


 


5.8.7                     Governing
Documents.  Promptly
provide Administrative Agent copies of any Governing Documents (delivered pursuant
to Section 3.1.3) that have been amended or modified in accordance with
the terms hereof and deliver a copy of any notice of default given or received
by any Credit Party under any Governing Document within 10 days after such
Person gives or receives such notice.


 


5.8.8                     Turbine
Reports.  Promptly after receipt
thereof, deliver to Administrative Agent and Independent Engineer a copy of
each report (if any) pertaining to the turbines for the Project or the
equipment and machinery relating to such turbines.


 


5.8.9                     As-Built
ALTA Survey.  On or
before the date that is 45 Business Days after the Completion Date, Borrower
shall provide an ALTA as-built survey of the Project which (i) depicts all
of the Real Property, (ii) certified to Borrower, Administrative Agent and
the Title Insurer by Demille Engineering, Inc., Westwood Professional
Services, or such other licensed surveyor reasonably satisfactory to
Administrative Agent, (iii) discloses no title defects, encroachments or
encumbrances affecting the Real Property other than Permitted Liens, and (iv) is
otherwise in a form reasonably acceptable to Administrative Agent.


 


5.8.10              Additional
Information.  Provide to
Administrative Agent promptly upon request such reports, statements, lists of
property, accounts, budgets, forecasts and other information concerning
Borrower and the Project and, to the extent reasonably available, the Major
Project Participants reasonably requested by Administrative Agent and at such
times as


 


52






 










 


Administrative Agent shall reasonably require,
including such reports and information as are reasonably required by the
Independent Consultants.


 


5.9                             EXISTENCE,
CONDUCT OF BUSINESS, PROPERTIES, ETC.  Except as otherwise expressly permitted under
this Agreement, Borrower shall (a) maintain and preserve its existence as
a Delaware limited liability company and all material rights, privileges and
franchises necessary in the conduct of its business, (b) subject to
Section 5.2.2, perform (to the extent not excused by force majeure events
or the nonperformance of the other party and not subject to a good faith
dispute) all of its material contractual obligations under the Major Project
Documents, (c) maintain all Applicable Permits and use all reasonable efforts
to cause all Major Project Participants to maintain all Applicable Third Party
Permits, except to the extent that any such failure to maintain could not
reasonably be expected to have a Material Adverse Effect, (d) at or before
the time that any Permit becomes an Applicable Permit, obtain such Permit and (e) otherwise
continue to engage in business of the same general type as now conducted by it.


 


5.10                        INDEMNIFICATION.


 


5.10.1              Borrower shall
indemnify, defend and hold harmless the Secured Parties, in their respective
capacities, and their respective Related Parties (collectively, the “Indemnitees”)
from and against, and indemnify and reimburse the Indemnitees for:


 


(a)                                 any and all
claims, obligations, liabilities, losses, damages, injuries (to Person, property,
or natural resources), penalties, stamp or other similar taxes, actions, suits,
judgments, costs and expenses (including reasonable attorney’s fees) of
whatever kind or nature, whether or not well founded, meritorious or
unmeritorious, payable to third parties, that have been incurred by, or
demanded, asserted, claimed or awarded against any such Indemnitee
(collectively, “Subject Claims”) in any way relating to, or arising out
of or in connection with (i) any Operative Documents to which it is a
party, (ii) the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby or thereby, and (iii) any Loan  or the use of
the proceeds therefrom;


 


(b)                                 any and all
Subject Claims arising in connection with any Environmental Claims, whether
foreseeable or unforeseeable, including all costs of removal, investigation,
remediation and disposal of any Hazardous Substances, together with all
reasonable costs required to be incurred in (i) determining whether the
Project or any Person is in compliance and (ii) causing the Project or any
Person to be in compliance, with all applicable Legal Requirements, all
reasonable costs associated with claims for damages to Persons or property,
reasonable attorneys’ and consultants’ fees, investigation and laboratory fees,
response costs and court costs; and


 


(c)                                  any and all
Subject Claims in any way relating to, or arising out of or in connection with
any claims, suits or liabilities against Borrower  or
any of its Affiliates to the extent related to the Project or the transactions
contemplated by the Operative Documents.


 


5.10.2              The foregoing
indemnities shall not apply with respect to an Indemnitee, to the extent
determined by final and non-appealable judgment of a court of competent 


 


53

















 


jurisdiction to have arisen as a result of the gross
negligence or willful misconduct of such Indemnitee, but shall continue to
apply to other Indemnitees.


 


5.10.3              The provisions
of this Section 5.10 shall survive the termination of this Agreement, the
foreclosure of the Collateral Documents and satisfaction or discharge of
Borrower’s Obligations under the Credit Documents to which it is a party, and
shall be in addition to any other rights and remedies of any Indemnitee.


 


5.10.4              In case any
action, suit or proceeding shall be brought against any Indemnitee, such
Indemnitee shall notify Borrower of the commencement thereof, and Borrower
shall be entitled, at its expense, acting through counsel reasonably acceptable
to such Indemnitee, to participate in, and, to the extent that Borrower
desires, to assume and control the defense thereof.  Such Indemnitee shall be entitled, at its
expense, to participate in any action, suit or proceeding the defense of which
has been assumed by Borrower. 
Notwithstanding the foregoing, Borrower shall not be entitled to assume
and control the defenses of any such action, suit or proceedings if and to the
extent that, in the reasonable opinion of such Indemnitee and its counsel, such
action, suit or proceeding involves the potential imposition of criminal
liability upon such Indemnitee or a conflict of interest between such
Indemnitee and Borrower or between such Indemnitee and another Indemnitee (unless
such conflict of interest is waived by the affected Indemnitees), and in such
event (other than with respect to disputes between such Indemnitee and another
Indemnitee) Borrower shall pay the reasonable expenses of such Indemnitee in
such defense.


 


5.10.5              If Borrower has
assumed the defense of any action, suit or proceeding pursuant to
Section 5.10.4, Borrower shall promptly report to such Indemnitee on the
status of such action, suit or proceeding as material developments shall occur
and from time to time as requested by such Indemnitee (but not more than every
60 days).  Borrower shall deliver to such
Indemnitee a copy of each document filed or served on any party in such action,
suit or proceeding, and each material document which Borrower possesses relating
to such action, suit or proceeding.


 


5.10.6              Notwithstanding
Borrower’s rights hereunder to control certain actions, suits or proceedings:


 


(a)                                 if any
Indemnitee reasonably determines that failure to compromise or settle any
Subject Claim made against such Indemnitee is reasonably likely to subject such
Indemnitee to civil, criminal or administrative penalties, to result in the
loss, suspension or impairment of a license or Permit held by such Indemnitee
or to cause material damage to such Indemnitee’s reputation, such Indemnitee
shall be entitled to compromise or settle such Subject Claim; and


 


(b)                                 if the Required
Lenders reasonably determine that failure to compromise or settle any Subject
Claim made against such Indemnitee is reasonably likely to have a Material
Adverse Effect, Administrative Agent shall provide Borrower with notice of a
proposed compromise or settlement of such claim specifying in detail the nature
and amount of such proposed settlement or compromise.  Borrower (or any other relevant Borrower
Entity shall be deemed to have approved such proposed compromise or settlement
unless, within 30 days after 


 


54

















 


the date Borrower receives such notice of intended
compromise or settlement, Borrower provides the Lenders with a written legal
analysis from counsel reasonably acceptable to Administrative Agent reasonably
concluding that, based on the magnitude of the Subject Claim, the legal basis
for such Subject Claim, the cost of defending such Subject Claim or the amount
of such proposed settlement or compromise is not within a reasonable range of
settlements or compromises for such Subject Claim, and indicating, based on
such factors, such counsel’s view as to the appropriate amount of a reasonable
settlement or compromise for such Subject Claim (the “Settlement Amount”).  If the Lenders receive such legal analysis
required by this Section 5.10.6 within such 30-day period, then
(i) the Required Lenders may elect to settle or compromise such Subject
Claim and Borrower shall be responsible for the payment of all amounts of such
compromise or settlement up to 125% of the Settlement Amount, (ii) such
Indemnitee shall be responsible for payment of all amounts of such compromise
or settlement in excess of such 125% limit and (iii) such compromise or
settlement shall be binding upon Borrower. 
If Borrower does not provide such legal analysis within such period, or
if such legal analysis is not reasonable, in the determination of the Required
Lenders, then such Indemnitee may settle or compromise such Subject Claim (and
Borrower shall cause any other relevant Borrower Entity to agree to the same)
and shall be fully indemnified by Borrower therefor.  The Lenders shall not otherwise settle or
compromise any such Subject Claim other than at their own expense.


 


5.10.7              Upon payment of
any Subject Claim by Borrower pursuant to this Section 5.10 or other
similar indemnity provisions contained herein to or on behalf of an Indemnitee,
Borrower, without any further action, shall be subrogated to any and all claims
that such Indemnitee may have relating thereto, and such Indemnitee shall
cooperate with Borrower and Borrower’s insurance carrier and give such further
assurances as are necessary or advisable to enable Borrower vigorously to
pursue such claims.


 


5.10.8              Any amounts
payable by Borrower pursuant to this Section 5.10 shall be regularly
payable within 30 days after Borrower receives an invoice for such amounts
from any applicable Indemnitee, and if not paid within such 30-day period shall
bear interest at the Default Rate.


 


5.10.9              Notwithstanding
anything to the contrary set forth herein, Borrower shall not, in connection
with any one legal proceeding or claim, or separate but related proceedings or
claims arising out of the same general allegations or circumstances, in which
the interests of the Indemnitees do not materially differ, be liable to the
Indemnitees (or any of them) under any of the provisions set forth in this
Section 5.10 for the fees and expenses of more than one separate firm of
lead attorneys and a number of firms of “local counsel” equal to the number of
jurisdictions involved (which firms shall be selected by the affected
Indemnitees, or upon failure to so select, by Administrative Agent).


 


5.10.10                   Subject to the
provisions of this Section 5.10, any of Borrower’s indemnification
obligations pursuant to Section 5.10.1 that arise out of or in connection
with or by reason of, or in connection with a preparation of a defense of, any
investigation, litigation or proceeding shall be, in each case, binding upon
Borrower regardless of whether such investigation, litigation or proceeding is
brought by any Borrower Entity or its respective 


 


55

















 


directors, officers, shareholders or creditors or
any Indemnitee or whether any Indemnitee or any other Person is otherwise a
party thereto.


 


5.10.11                   If, for any
reason whatsoever, the indemnification provided under this Section 5.10 is
unavailable to any Indemnitee or is insufficient to hold it harmless to the
extent provided in this Section 5.10, then provided such payment is not
prohibited by or contrary to any applicable Legal Requirement or public policy,
Borrower shall contribute to the amount paid or payable by such Indemnitee as a
result of the Subject Claim in such proportion as is appropriate to reflect the
relative economic interests of Borrower and its Affiliates on the one hand, and
such Indemnitee on the other hand, in the matters contemplated by this Agreement
as well as the relative fault of Borrower (and its Affiliates) and such
Indemnitee with respect to such Subject Claim, and any other relevant equitable
considerations.


 


5.10.12                   Nothing in this
Section 5.10 shall constitute a release by Borrower of any claims that it
has as a result of a breach or a default by any of the Secured Parties of their
respective obligations under any Credit Document.


 


5.11                        REGULATION.


 


5.11.1              Borrower shall
take or cause to be taken all necessary or appropriate actions so that (a) (i) Borrower
will be an Exempt Wholesale Generator, and (ii) the Project will be an
Eligible Facility at all times hereunder or (b) Borrower and the Project
shall not be subject to, or shall be exempt from, (i) financial or organizational
regulation as a “electric utility company,” “public
utility,” “public-utility company” or “holding company” under PUHCA, or
(ii) rate regulation or financial regulation as a “public utility” or “electrical
corporation” under the laws of Utah except as otherwise provided in the orders
of the Utah Public Service Commission itemized in the Permit Schedule,
and (c) Borrower will be authorized to sell wholesale electricity at
market-based rates.


 


5.11.2              At least 75
days prior to Commercial Operation, Borrower shall deliver to Administrative
Agent certified true and correct copies of validly filed notices of
self-certification or validly issued final orders from FERC under the FPA, as
applicable, not subject to any pending rehearing, challenge, appeal,
investigation, or proceeding (a) confirming that the Project is an
Eligible Facility and that Borrower is an Exempt Wholesale Generator,
(b) authorizing Borrower to sell electricity at market-based rates and
granting such waivers and blanket authorizations (including blanket authorizations
to issue securities and to assume liabilities under Section 204 of the FPA
and 18. C.F.R. Part 34), as customarily are granted to entities with
market-based rate authority, and (c) all necessary approvals from any
Governmental Authority in respect of the Interconnection Agreement and the PPA,
to the extent applicable.


 


5.12                  CONSTRUCTION
OF THE PROJECT.  Borrower
shall cause the Project to be designed, engineered, constructed, developed,
installed, equipped, maintained and operated in a good and workmanlike manner
with due diligence, and substantially in accordance with (a) the Plans and
Specifications, (b) the then-current Project Budget, (c) the Project
Schedule, (d) the Construction Contract and the other Major Project Documents,
as any of the same may be amended from time to time in accordance with
Sections 6.12 and 6.19.2, and in compliance with all applicable Legal
Requirements, Permits and good industry practices.


 


56

















 


5.13                        COMPLETION
AND COMMERCIAL OPERATION.


 


5.13.1              Borrower shall
achieve Completion and Commercial Operation in a timely and diligent manner
substantially in accordance with the Project Schedule, the then-current Project
Budget, the Plans and Specifications, the Major Project Documents, as any of
the same may be amended from time to time pursuant to Sections 6.12 and
6.19.2 and, in the case of Completion, in no event later than 30 days after
Commercial Operation.


 


5.13.2              If at any time
after the Closing Date, Independent Engineer determines that construction
of the Project is unlikely to achieve Commercial Operation by the Date Certain,
Borrower shall, within 10 Business Days from the date of receipt of notice from
Administrative Agent of Independent Engineer’s determination, submit to
Administrative Agent and Independent Engineer a remedial plan for achieving
Commercial Operation by the Date Certain (the “Remedial Plan”), which
Remedial Plan shall be subject to the approval of Administrative Agent in
consultation with Independent Engineer, and shall diligently implement such
Remedial Plan.  Borrower shall have 10
Business Days to adequately address Administrative Agent’s and Independent
Engineer’s objections to the Remedial Plan and shall submit a new Remedial Plan
addressing those objections.


 


5.13.3              On or prior to December 31,
2010, Borrower shall have commenced construction of the Project to the extent
necessary to ensure that the Project is Grant Eligible.


 


5.14                        OPERATION
AND MAINTENANCE OF PROJECT; OPERATING BUDGET.


 


5.14.1              Borrower shall
keep the Project, or cause the same to be kept, in good operating condition
consistent with the standard of care set forth in the O&M Agreements, all
Applicable Permits and Applicable Third Party Permits, Legal Requirements and
the Operative Documents, and make or cause to be made all repairs (structural
and non-structural, extraordinary or ordinary) necessary to keep the Project in
such condition.


 


5.14.2              Borrower shall
operate the Project, or cause the same to be operated, in a manner consistent with
Prudent Industry Practices and in compliance with the terms of the PPA.


 


5.14.3              On or before
the date that is 60 days prior to the anticipated date of commencement of
Commercial Operations and thereafter 60 days prior to the beginning of
each subsequent calendar year, Borrower shall submit an operating plan and a
budget, detailed by month, of anticipated revenues and anticipated
expenditures, such budget to include Debt Service and all anticipated O&M
Costs (including reasonable allowance for contingencies) applicable to the
Project for the ensuing calendar year (or, in the case of the initial Annual
Operating Budget, partial calendar year) (each such annual operating plan and
budget, including the initial Annual Operating Budget, an “Annual Operating
Budget”).  Each Annual Operating
Budget shall be subject to the approval of Administrative Agent acting in
consultation with the Independent Engineer, such approval not to be
unreasonably withheld.  Borrower shall
prepare a final Annual Operating Budget no less than 30 days in advance of
the anticipated date of Commercial Operation and each subsequent calendar
year.  The O&M Costs in each Annual
Operating Budget which are subject to escalation limitations in the Project
Documents shall not, absent 


 


57

















 


extraordinary circumstances, be increased by more
than the amounts provided in such Project Documents.


 


5.14.4              Borrower shall
operate and maintain the Project, or cause the Project to be operated and
maintained, within amounts for (a) any Operating Budget Category of an
amount greater than $50,000 not to exceed 110% (on a year-to-date basis) and
(b) for all Operating Budget Categories not to exceed 105% (on a
year-to-date basis), in each case of the amounts budgeted therefor as set forth
in the then-current Annual Operating Budget as approved or deemed approved by
Administrative Agent; provided, however,  that subject to Section 6.12, Borrower
may propose an amendment to the Annual Operating Budget for Administrative
Agent’s approval if at any time Borrower cannot comply with this requirement
(and Administrative Agent shall consider each such amendment in good faith and
shall not unreasonably withhold its consent to the approval of any such
amendment).  Pending approval of any
Annual Operating Budget or amendment thereto in accordance with the terms of
this Section 5.14.4, Borrower shall use all reasonable efforts to operate
and maintain the Project, or cause the Project to be operated and maintained,
within the then-current Annual Operating Budget (it being acknowledged that if
a particular calendar year’s Annual Operating Budget has not been approved by
the time periods provided in Section 5.14.3, then the then-current Annual
Operating Budget shall be deemed to be the Annual Operating Budget in effect
prior to the delivery of the proposed final Annual Operating Budget pursuant to
Section 5.14.3); provided, that the amounts specified therein shall
be increased to the extent specified in the Project Documents.


 


5.14.5              Commencing with
the first possible date for commissioning of the turbines, Borrower shall make
available at the Project site one or more qualified personnel to meet the
obligations under Section 5 of the Construction Contract.


 


5.15                        PRESERVATION
OF RIGHTS; FURTHER ASSURANCES.


 


5.15.1              Major
Project Documents.  Borrower
shall maintain in full force and effect, perform (subject to
Section 5.2.2) the material obligations of Borrower under, preserve,
protect and defend the material rights of Borrower under and take all
reasonable action necessary to prevent termination (except by expiration in
accordance with its terms) of each and every Major Project Document, including
prosecution of suits to enforce any material right of Borrower thereunder and
enforcement of any material claims with respect thereto; provided, that
upon the occurrence and during the continuance of an Event of Default or, with
respect to any Project Document between Borrower and any Affiliate, when such
Affiliate has acted or failed to act in a manner that with the giving of notice
by Borrower or the passage of time, an event of default will occur under such
Project Document, if Administrative Agent requests that certain actions be
taken and Borrower fails to take the requested actions within five Business
Days, Administrative Agent or Collateral Agent may enforce in its own name or
in Borrower’s name, such rights of Borrower (if and to the extent not
prohibited by Governmental Rule), in addition to such rights as may be more
particularly provided in the Security Agreement and the other Credit Documents.


 


5.15.2              Preservation
of Collateral.  From time
to time promptly, upon the reasonable request of Administrative Agent,
Collateral Agent or any Lender, Borrower shall 


 


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execute, acknowledge or deliver, or cause the
execution, acknowledgment and delivery of, and thereafter register, file or
record, or cause to be registered, filed or recorded in an appropriate
governmental office, all such notices, statements, instruments and other
documents (including any memorandum of lease or other agreement, financing
statement, continuation statement, certificate of title or estoppel
certificate) supplemental to or confirmatory of the Collateral Documents,
relating to the Loans, stating the interest and charges then due and any known
Defaults or Events of Default, and take such other steps as may be deemed by
Administrative Agent necessary or advisable to render fully valid and
enforceable (subject, in the case of the BLM Right of Way (Phase II), the BLM
Right of Way (Generator Lead Line), the SITLA Lease, and the SITLA Right of
Way, to applicable Governmental Rules limiting the enforceability of Liens
therein) under all applicable laws the rights, liens and priorities of the
Secured Parties with respect to all Collateral and other security from time to
time furnished under the Credit Documents or intended to be so furnished, or
for the continued validity, perfection and priority of the Liens on the
Collateral covered thereby subject to no other Liens except as permitted by the
applicable Collateral Document, or obtain any consents or waivers as may be
necessary or appropriate in connection therewith, in each case in such form and
at such times as shall be reasonably requested by Administrative Agent or
Collateral Agent, and pay all reasonable fees and expenses (including
reasonable attorneys’ fees) incident to compliance with this
Section 5.15.2.  Upon the exercise
by Administrative Agent, Collateral Agent or any Lender of any power, right,
privilege or remedy pursuant to any Credit Document which requires any consent,
approval, registration, qualification or authorization of any Governmental
Authority execute and deliver all applications, certifications, instruments and
other documents and papers that Administrative Agent, Collateral Agent or such
Lender may require.  If Administrative
Agent, Collateral Agent or the Required Lenders determine that they are
required by law or regulation to have appraisals prepared in respect of the
Real Property, Borrower shall provide to Administrative Agent appraisals that
satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of FIRREA and are otherwise in form and substance satisfactory to
Administrative Agent.


 


5.15.3              Additional
Collateral.  If Borrower
shall at any time acquire any real property or leasehold or other interest in
real property not covered by the Trust Deed, then promptly upon such
acquisition, Borrower shall execute, deliver and record a supplement to the
Trust Deed, reasonably satisfactory in form and substance to Administrative
Agent, subjecting the real property or leasehold or other interests to the Lien
and security interest created by the Trust Deed.  If reasonably requested by Administrative
Agent, Borrower shall obtain an appropriate endorsement or supplement to, as
applicable, the Title Policy, insuring the Lien of the Secured Parties in such
additional property, subject only to Liens and other exception to title
reasonably agreed by Collateral Agent of a type similar to Title Exceptions.


 


5.15.4              Further
Assurances.  Upon the
request of Administrative Agent or Collateral Agent, Borrower shall execute and
deliver all documents as shall be necessary or that Administrative Agent or
Collateral Agent (as the case may be) shall reasonably request in connection
with the rights and remedies of Administrative Agent or Collateral Agent (as
the case may be) and the Lenders under the Operative Documents, and perform,
such other reasonable acts as may be necessary to carry out the intent of the
Credit Documents.


 


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5.15.5              Proper
Legal Form.  Borrower
shall diligently take all such further action within its control required to
ensure that each of the Operative Documents is in proper legal form under the
laws of the respective governing laws selected in such Operative Document for
the enforcement thereof in such jurisdictions without any further action on the
part of Administrative Agent or other Secured Parties.


 


5.16                  ADDITIONAL
CONSENTS.  With
respect to any Major Project Document entered into after the Closing Date,
Borrower shall cause the applicable counterparty to execute and deliver to
Administrative Agent a Consent in substantially the form of Exhibit E-1
or, if approved by Administrative Agent in advance, Exhibit E-2,
with such changes as are reasonably acceptable to Administrative Agent.


 


5.17                  MAINTENANCE
OF INSURANCE.  Without cost
to the Secured Parties, Borrower shall maintain or cause to be maintained on
its behalf in effect at all times the types of insurance required pursuant to Exhibit K,
in the amounts and on the terms and conditions specified therein, from the
quality of insurers specified in such Exhibit or other insurance companies
of recognized responsibility reasonably satisfactory to Administrative Agent.


 


5.18                  TAXES,
OTHER GOVERNMENT CHARGES AND UTILITY CHARGES.  Subject to the second sentence of this
Section 5.18, Borrower shall timely file all tax returns and pay, or cause
to be paid, as and when due and prior to delinquency, all taxes, assessments
and governmental charges of any kind that may at any time be lawfully assessed
or levied against or with respect to Borrower or the Project, including sales
and use taxes and real estate taxes, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the Project, and all
assessments and charges lawfully made by any Governmental Authority for public
improvements that may be secured by a Lien on the Project.  Borrower may contest in good faith any such
taxes, assessments and other charges and, in such event, may permit the taxes,
assessments or other charges so contested to remain unpaid during any period,
including appeals, when Borrower is in good faith contesting the same, so long
as (a) reserves to the extent required by GAAP have been established in an
amount sufficient to pay any such taxes, assessments or other charges, accrued
interest thereon and potential penalties or other costs relating thereto, or
other adequate provision for the payment thereof shall have been made and
maintained at all times during such contest, (b) enforcement of the
contested tax, assessment or other charge is effectively stayed for the entire
duration of such contest, and (c) any tax, assessment or other charge
determined to be due, together with any interest or penalties thereon, is
promptly paid after resolution of such contest, and (d) such proceedings
shall not involve any substantial danger of the sale, forfeiture or loss of the
Project, the Site or any Easements, as the case may be, title thereto or any
interest therein and shall not interfere in any material respect with the use
or disposition of the Project, the Site or any Easements.


 


5.19                  EVENT
OF EMINENT DOMAIN.  If an Event
of Eminent Domain shall occur with respect to any Collateral, Borrower shall
(a) diligently pursue all its rights to compensation against the relevant
Governmental Authority in respect of such Event of Eminent Domain,
(b) not, without the consent of the Required Lenders (which consent shall
not be unreasonably withheld or delayed), compromise or settle any claim
against such Governmental Authority, and (c) pay or apply all Eminent
Domain Proceeds in accordance with Section 7.5.  Borrower consents to, and agrees not to
object to or otherwise impede or impair, the participation of 


 


60

















 


Administrative Agent and/or Collateral Agent in any
Eminent Domain proceedings, and Borrower shall from time to time deliver to
Administrative Agent and Collateral Agent all documents and instruments
requested by it to permit such participation.


 


5.20                  ENVIRONMENTAL
LAWS.  Borrower shall (a) comply
in all material respects with, and ensure compliance by all tenants, licensees
and invitees, if any, in all material respects with all applicable Hazardous
Substance Laws and obtain and comply in all material respects with, and
maintain, and ensure that all tenants, licensees and invitees obtain and comply
in all material respects with, and maintain all Permits required by applicable
Hazardous Substance Laws; (b) conduct and complete, or cause to be
conducted and completed, all investigations, studies, sampling and testing, and
all clean-up, remedial, removal, recovery and other actions required pursuant
to Hazardous Substance Laws or otherwise as necessary to prevent itself, any
other Credit Party or any Secured Party from incurring any material liability;
(c) promptly comply in all material respects with all orders and directives
of all Governmental Authorities in respect of Hazardous Substance Laws, except
to the extent that the same are being contested in good faith by appropriate
proceedings; (d) exercise care, custody and control over the Site and the
Project in such manner as not to pose a material or unreasonable hazard to the
environment, health or safety in general; and (e) give (and shall cause
the Operators and Construction Contractor, to the extent applicable, to give)
due attention to the protection and conservation of the environment in the
implementation of each aspect of the Project, all in material accordance with
applicable Hazardous Substance Laws, Permits and Legal Requirements, and good
industry practices.


 


5.21                  INDEPENDENT
CONSULTANTS.  Borrower
shall (a) cooperate in all reasonable respects with the Independent
Consultants and (b) ensure that each Independent Consultant is provided
with all information reasonably requested by such consultant with respect to
the financing, construction or operation of the Project and will exercise due
care to ensure that any factual information which it may supply to such
consultant is materially accurate in all respects, and not, by omission of
information or otherwise, misleading in any material respect at the time such information
is provided, to the extent that such consultant relied on such information in
preparing its report.


 


5.22                  PPA.


 


5.22.1              Notices.  Borrower shall consult with Administrative
Agent prior to sending any notices or certifications pursuant to Section 3.2
of the PPA, and any such notices and certifications shall be in form and
substance satisfactory to Administrative Agent in its sole discretion.


 


5.22.2              Prepayment
Conditions.  As and when
each condition to the Prepayment (as defined in the PPA) in Section 7.2 of
the PPA is completed, Borrower will request and shall use commercially
reasonable efforts to obtain from SCPPA written confirmation that such closing
condition has been completed and shall provide a copy of such confirmation to
Administrative Agent.  Borrower shall use
its commercially reasonable efforts to cause each such condition to be
completed as expeditiously as possible.


 


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5.22.3              Reports.  Borrower shall provide Administrative Agent
copies of each report delivered to SCPPA under Section 3.3 the PPA.


 


5.23                        UPDATES
TO WIND REPORT, IE REPORT AND COST SEGREGATION REPORT.  If reasonably requested by the Administrative
Agent and the Required Lenders, Borrower shall obtain updates to the Wind Report,
the IE Report and the Cost Segregation Report; provided
that Administrative Agent and the Required Lenders shall not request an update
to the Cost Segregation Report unless there is a 5% or more reduction in the
Project Costs that were included in the “Total Eligible Property” amount set
forth in the table “Preliminary Grant Eligible Summary” within Exhibit IV
of the Cost Segregation Report (as determined by the Independent
Engineer).  In addition, the Cost
Segregation Report shall be updated as of (a) the Closing Date, (b) the
delivery to a tax equity investor who has committed to make a tax equity
contribution relating to the Borrower, and (c) the filing of the Grant
application.


 


5.24                        GRANT.  Borrower shall apply for the Grant within 60
days after the Commercial Operation Date (as such term is defined in the
PPA).  Unless the Tax Equity Contribution
Conditions have been satisfied, (a) the draft application for the Grant
shall be presented to Administrative Agent five Business Days prior to the
submission thereof, (b) the draft application shall be in form and
substance reasonably satisfactory to Administrative Agent prior to the
submission thereof and (c) Borrower shall cause the proceeds of the Grant
to be paid into the Repayment Account on or prior to the Maturity Date.


 


5.25                        TURBINE
PLACEMENT.  In the
event that any turbine located on the BLM Right of Way (Phase II) is planned to
be located in a position that would violate BLM Instruction Memorandum No. 2009-043
(the “BLM Memo”) and the affected adjacent landowner does not waive
application of such restrictions in a recordable document, Borrower shall
either (a) use commercially reasonable efforts to obtain a waiver of such
restrictions in a recordable document or (b) (i) designate an
alternative location for such turbine(s) on the BLM Right of Way (Phase
II) that does not violate the BLM Memo or on such other portion of the Site
that is encumbered by the Trust Deed, (ii) provide to Administrative Agent
an update to the Wind Report and IE Report with respect to such alternative
location, each in form and substance reasonably satisfactory to Administrative
Agent, and (iii) obtain all Permits necessary for the construction and
operation of such turbines in such new location.


 


5.26                        COBANK
EQUITY AND SECURITY.


 


5.26.1              So long as
CoBank is a Lender hereunder, Borrower will acquire equity in CoBank in such
amounts and at such times as CoBank may require in accordance with CoBank’s
Bylaws and Capital Plan (as each may be amended from time to time), except that
the maximum amount of equity that Borrower may be required to purchase in
CoBank in connection with the Loans made by CoBank may not exceed the maximum
amount permitted by such Bylaws and the Capital Plan as of the Closing Date.  Borrower acknowledges receipt of a copy of
(a) CoBank’s most recent annual report and, if more recent, CoBank’s
latest quarterly report, (b) CoBank’s Notice to Prospective Stockholders
and (c) CoBank’s Bylaws and Capital Plan, which describe the nature of all
of Borrower’s stock and other equities in CoBank acquired in connection with
its patronage loan from CoBank (the “CoBank Equities”) as well as
capitalization requirements, and agrees to be bound by the terms thereof.


 


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5.26.2              Each party
hereto acknowledges that CoBank’s Bylaws and Capital Plan (as each may be
amended from time to time) shall govern (a) the rights and obligations of
the parties with respect to the CoBank Equities and any patronage refunds or
other distributions made on account thereof or on account of Borrower’s
patronage with CoBank, (b) Borrower’s eligibility for patronage
distributions from CoBank (in the form of CoBank Equities and cash) and (c) patronage
distributions, if any, in the event of a sale of a participation interest.
CoBank reserves the right to assign or sell participations in all or any part
of its Commitments or outstanding Loans hereunder on a non-patronage basis.


 


5.26.3              Each party
hereto acknowledges that CoBank has a statutory first lien pursuant to the Farm
Credit Act of 1971 (as amended from time to time) on all CoBank Equities that
the Borrower may now own or hereafter acquire, which statutory lien shall be
for CoBank’s sole and exclusive benefit. 
The CoBank Equities shall not constitute security for the Obligations
due to any other Lender.  To the extent
that any of the Credit Documents create a Lien on the CoBank Equities or on
patronage accrued by CoBank for the account of Borrower (including, in each
case, proceeds thereof), such Lien shall be for CoBank’s sole and exclusive
benefit and shall not be subject to pro rata sharing hereunder.  Neither the CoBank Equities nor any accrued
patronage shall be offset against the Obligations except that, in the event of
an Event of Default, CoBank may elect to apply the cash portion of any
patronage distribution or retirement of equity to amounts due under this
Agreement.  Borrower acknowledges that
any corresponding tax liability associated with such application is the sole
responsibility of Borrower.  CoBank shall
have no obligation to retire the CoBank Equities upon any Event of Default,
Default or any other default by Borrower or any other Credit Party, or at any
other time, either for application to the Obligations or otherwise.


 


ARTICLE 6

NEGATIVE COVENANTS


 


6.1                               CONTINGENT
OBLIGATIONS.  Except as
provided in the Credit Documents, Borrower shall not become liable as a surety,
guarantor, accommodation endorser or otherwise, for or upon the obligation of
any other Person or incur any Contingent Obligations; provided, however,
that this Section 6.1 shall not be deemed to prohibit or otherwise limit
the occurrence of Permitted Debt.


 


6.2                               LIMITATIONS
ON LIENS.  Borrower
shall not create, assume or suffer to exist any Lien, except Permitted Liens,
securing a charge or obligation on the Project or on or with respect to any of
the Collateral, whether now owned or hereafter acquired or assign any right to
receive income.


 


6.3                               DEBT.  Borrower shall not incur, create, assume or
permit to exist, directly or indirectly, any Debt except Permitted Debt and
current accounts incurred in the ordinary course of business with respect to
O&M Costs.


 


6.4                               SALE OR
LEASE OF ASSETS.  Borrower
shall not sell, lease, assign, transfer or otherwise dispose of assets, whether
now owned or hereafter acquired, except (a) prior to Commercial Operation,
to the extent that such asset is unnecessary, worn out or no longer useful or
usable in connection with the operation or maintenance of the Project, at fair
market value, 


 


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(b) prior to Commercial Operation, the sale,
transfer or release, with or without consideration, of real property or
interests in real property related to the Project to the extent that such real
property or interests in real property is only incidental to the development,
construction, leasing, ownership or operation of the Project, (c) the
granting of easements or other interests in real property related to the
Project to other Persons if Administrative Agent has determined that such sale,
transfer or release could not reasonably be expected to have a Material Adverse
Effect and (d) as expressly contemplated by the Operative Documents.  Upon any such sale, lease, assignment,
transfer or other disposition of any such assets, all Liens in favor of any
Secured Party relating to such transferred asset shall be released.  Borrower shall not enter into any sale and
leaseback transactions.


 


6.5                               CHANGES.  Borrower shall not (a) change the nature
of its business or expand its business beyond the business contemplated in the
Operative Documents or activities incidental thereto or take any action,
whether by acquisition or otherwise, which would constitute or result in any
material alteration to the nature of such business; (b) establish, create
or acquire any Subsidiaries; or (c) directly or indirectly, change its
legal form or any of its Governing Documents (including by the filing or
modification of any certificate of designation) or otherwise terminate, amend
or modify any such Governing Document, other than any such amendments,
modifications or changes to which the prior consent of Administrative Agent and
Collateral Agent (if appropriate) has been obtained or which are not adverse in
any material respect to the interests of the Lenders.


 


6.6                               RESTRICTED
PAYMENTS.  Except as
set forth in Section 5.1.1(b) and in this Section 6.6, Borrower
shall not (a) directly or indirectly, make or declare any dividend payment
or other distribution (in cash, assets, property, rights, obligations or
securities) on, or other payment on account of, any interest in Borrower, (b) make
any payment on account of Permitted Debt prior to the due date thereof or (c) make
any payment of management fees or similar payments to Pledgor or any of its
Affiliates.  Borrower shall be permitted
to (i) so long as no Event of Default has occurred and is continuing at
the time of such distribution, make a one-time distribution of $5,000,000 to
its direct and indirect owners after the Commercial Operation Date and after
providing Administrative Agent with evidence, in form and substance reasonably
satisfactory to Administrative Agent in consultation with the Lenders, that the
Performance Security (as defined in the PPA) has been established by Sponsor or
an Affiliate of Sponsor other than Borrower or Pledgor (the “Performance LC
Distribution”), and (ii) so long as the Tax Equity Contribution
Conditions have been met, distribute the proceeds of the Grant to the tax
equity contributor or as otherwise agreed between Borrower and the tax equity
contributor.


 


6.7                               INVESTMENTS.  Borrower shall not (a) make any
investments (whether by purchase of stocks, bonds, notes, obligations or other
securities, loan, extension of credit, advance or otherwise) other than Permitted
Investments or make any capital contribution to any Person; or (b) own any
equity interest in, lend money, extend credit or make advances to, or any
deposits with (other than deposits or advances in relation to the payment for
services in the ordinary course of business), any Person other than Depositary.


 


6.8                               TRANSACTIONS
WITH AFFILIATES.  Borrower
shall not directly or indirectly enter into any transaction or series of
transactions relating to the Project with or for the benefit of an Affiliate
without the prior approval of Administrative Agent, except for (a) the 


 


64

















 


Project Documents in effect on the Closing Date, and
the transactions permitted thereby, (b) transactions that contain terms
that are fair and reasonable and no less favorable to Borrower than would be
included in an arm’s-length transaction entered into by a prudent Person with a
non-Affiliated third party, (c) any employment, non-competition or
confidentiality agreement entered into by Borrower with any of its employees,
officers or directors in the ordinary course of business, (d) leases to
Affiliates of the Borrower for access to the operation and maintenance building
so long as such leases do not interfere with the operation and maintenance of
the Project, and (e) as otherwise expressly permitted or contemplated by
the Credit Documents.


 


6.9                               MARGIN
LOAN REGULATIONS.  Borrower
shall not directly or indirectly apply any part of the proceeds of any Loan,
any cash equity contributions received by Borrower or other funds or revenues
to the “buying,” “carrying” or “purchasing” of any margin stock within the
meaning of Regulations T, U or X of the Federal Reserve Board, or any
regulations, interpretations or rulings thereunder.


 


6.10                        PARTNERSHIPS, ETC.  Borrower shall not (a) become a general
or limited partner in any partnership or a joint venturer in any joint venture,
(b) create and hold stock in any Subsidiary or (c) engage in any
business other than owning and operating the Project and related activities.


 


6.11                        DISSOLUTION;
MERGER.  Borrower shall not
(a) wind up, liquidate or dissolve its affairs, (b) combine, merge or
consolidate with or into any other entity, or (c) purchase or otherwise
acquire all or substantially all of the assets of any Person.


 


6.12                        AMENDMENTS;
COMPLETION.  Borrower
shall not:


 


6.12.1              Directly
or indirectly, without the prior written consent of the Required Lenders, agree
to or acquiesce in (i) the cancellation, suspension or termination of any
Major Project Document (other than a Minor Project Document); (ii) the
assignment, release or relinquishment of the material rights of or material
obligations of any party to a Project Document (except as permitted by the
Security Documents or as permitted without the consent of Borrower by the terms
of the applicable Project Document); (iii) any amendment, supplement or
modification of, or any consent or waiver with respect to, any of the
provisions of the PPA, or (iv) any amendment, supplement or  modification of, or any consent or waiver of any material
provision of any other Project Document (each of the foregoing, being referred
to herein as a “Project Document Modification”).  Without limiting Section 6.19, change
orders under the Construction Contract shall not require the prior written
consent of the Required Lenders so long as such change orders and any costs
associated therewith are in an amount less than the available portion of the
contingency in the Project Budget so long as such change orders do not modify
the Project Schedule in any material respect (provided, it shall be deemed to
be a material modification to the Project Schedule if the date of Guaranteed
Project Substantial Completion Date (as defined in the Construction Contract)
is scheduled to occur later than June 16, 2011), but Borrower shall
provide Administrative Agent with advance written notice of any change
order.  Notwithstanding the foregoing,
Borrower shall not enter into any amendment, supplement or modification of any
Project Document that could reasonably be expected to cause the Project
not to comply with Legal Requirements or Borrower’s qualification for the
Grant.


 


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6.12.2              (a) Declare, with respect to the Project
or material portion thereof, or agree that substantial completion and final
completion (or any similar concepts) under the Construction Contract has
occurred; (b) approve the successful completion of any Performance Test;
(c) approve, modify or amend the testing protocols under the Construction
Contract; or (d) agree to accept any facilities being constructed under
any other Major Project Document as “commercially operational,” “substantially
complete” or “complete” (however defined therein), in each case without the
approval of Administrative Agent acting in consultation with the Independent
Engineer, or use the proceeds of any Loan to make any payment under any
Construction Contract all or any portion of which payment the Independent
Engineer has given Borrower notice (prior to the due date thereof) that it
disputes is then due, without the approval of Administrative Agent acting in
consultation with the Independent Engineer, which approval, if given, shall not
be unreasonably delayed or withheld, taking into account applicable time
limitations imposed by the terms of the applicable Project Document;


 


6.12.3              agree on any punchlist with respect to any Project
work without the approval of Administrative Agent acting in consultation with
the Independent Engineer, which approval, if given, shall not be unreasonably
delayed or withheld, taking into account applicable time limitations imposed by
the terms of the Construction Contract;


 


6.12.4              consent,
without Administrative Agent’s prior approval, to (a) any action taken by
the Construction Contractor to modify the equipment or services provided by
Construction Contractor to conform to the intellectual property rights of
others if such action could reasonably be expected to materially and adversely
affect Borrower’s continued use of the Project or (b) the settlement by
Construction Contractor of any claim or proceeding which could reasonably be
expected to materially adversely affect Borrower’s rights;


 


6.12.5              direct Construction Contractor to suspend any
construction activities being performed under the Construction Contract without
Administrative Agent’s prior consent, except to avoid immediate danger to
personnel or property;


 


6.12.6              except for the
Site Common Facilities, construct, install, or permit the construction or
installation of, shared or joint facilities between the Project and any plants,
facilities, generating stations or other improvements (including any such
plants, facilities, generating stations or other improvements owned by SCPPA);


 


6.12.7              accept any
letter of credit, bond or other form of credit support in lieu of retainage
under any Project Document not in form and substance reasonably satisfactory to
Administrative Agent; and


 


6.12.8              without the
prior consent of Administrative Agent, submit any notice or certificate to
SCPPA declaring or acknowledging the occurrence of the “Commercial Operation
Date” under the PPA (which consent may not be requested if the Project is not
capable of producing at least 102 MW).


 


The
Administrative Agent or Lenders, as applicable, shall use reasonable efforts to
respond to each request pursuant to this Section 6.12 as soon as possible
and in all events 


 


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within
10 days of its receipt of notification thereof.  Approval by the Administrative Agent or Lenders,
as applicable, hereunder shall be not be given unless until expressly approved.


 


6.13                        NAME
AND LOCATION; FISCAL YEAR.  Unless consented to by Administrative Agent,
Borrower shall not change its name, its jurisdiction of organization, the
location of its principal place of business, its organization identification
number, its fiscal year or, except as required by GAAP, its accounting policies
or reporting practices.


 


6.14                        USE OF
SITE.  Borrower shall not use,
maintain, operate or occupy, or allow the use, maintenance, operation or
occupancy of, any portion of the Project or the Site for any purpose
(a) which may (i) constitute a public or private nuisance or
(ii) make void, voidable, or cancelable, or materially increase the
premium of, any insurance policies then in force with respect to all or a
portion of the Project, or (b) other than for the construction, operation
and maintenance of the Project as contemplated by the Operative Documents that
could reasonably be expected to have a Material Adverse Effect.


 


6.15                        ASSIGNMENT.  Borrower shall not assign its rights or
obligations under any Credit Document or any Major Project Document to any
Person, except as specifically permitted by the Credit Documents.


 


6.16                        ACCOUNTS.  Borrower shall not maintain, establish or use
any account (other than the Accounts).


 


6.17                        HAZARDOUS
SUBSTANCES.  Borrower
shall not release into the environment any Hazardous Substances in violation of
any Hazardous Substance Laws, Legal Requirements or Applicable Permits, except
for (a) temporary unplanned exceedances not allowed under the Project’s
Permits, which temporary unplanned exceedances could not reasonably be expected
to have a Material Adverse Effect and which Borrower is diligently and in good
faith attempting to correct and (b) unintentional violations with respect
to which (i) the Release is not continuing or reasonably likely to
re-occur and is not reasonably susceptible to prevention or cure,
(ii) there are no unsatisfied reporting and/or remediation requirements
under applicable Hazardous Substance Laws, Legal Requirements or Applicable
Permits, (iii) no non-monetary penalties or sanctions have been imposed or
are reasonably likely to be imposed (except for the remediation of such
violation) under applicable Hazardous Substance Laws, Legal Requirements or
Applicable Permits, and (iv) the Release could not reasonably be expected
to materially impair the value of the Site or any other Collateral, and could
not otherwise reasonably be expected to have a Material Adverse Effect.


 


6.18                        PROJECT
DOCUMENTS..  Borrower
shall not enter into or become a party to any Additional Project Document
without obtaining (a) consent from Administrative Agent for Project
Documents of aggregate value less than $1,000,000 and consent from the Required
Lenders for all other Additional Project Documents, (b) obtaining from its
counterparty a consent in the form of Exhibit E-1 or, if approved
by Administrative Agent in advance, Exhibit E-2, and
(c) providing an executed copy thereof to Administrative Agent within five
Business Days after execution


 


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6.19                        PROJECT BUDGET AND SCHEDULE
AMENDMENTS.


 


6.19.1              Project Budget.  Without the prior consent of Administrative
Agent in consultation with the Required Lenders, Borrower shall not amend,
allocate, re-allocate or modify the Project Budget to increase the aggregate
amount payable thereunder, unless such amendment, allocation, re-allocation or
modification is (a) a necessary conforming change related to an amendment
to a Project Document permitted by Section 6.12 and (b) concurrent
and consistent with cash equity contributions made available to Borrower which
were not theretofore contemplated in the Project Budget; provided, that
the foregoing shall not prevent Borrower from applying identified cost savings
in a budget category (after completing each of the items to which such category
relates), as confirmed by the Independent Engineer, to cost overruns in another
budget category (as confirmed by the Independent Engineer) without increasing
the aggregate amount payable under the Project Budget; provided, that
Borrower shall not apply identified cost savings in any budget category to cost
overruns in any budget category relating to management expenses or development
fees payable to any Person or any other fees and costs payable to any Affiliate
of Sponsor.


 


6.19.2              Project Schedule.  Without the prior consent of Required
Lenders, amend, modify or otherwise change the Project Schedule, in any
material respect (provided, it shall be deemed to be a material
modification to the Project Schedule if the date of Commercial Operation is
scheduled to occur later than Date Certain and the date of Completion is
scheduled for no later than one month after Commercial Operation), as to the
scheduled date of Performance Test completion thereunder, unless such
amendment, modification or change occurs by operation of the various terms and
conditions of the applicable Project Documents and is therefore not subject to
Borrower’s pre-approval or agreement.


 


6.20                        ASSIGNMENT
BY THIRD PARTIES.  Unless
expressly permitted in the applicable Major Project Document, without prior
consent of the Required Lenders or unless provided in a Consent, Borrower shall
not consent to the assignment of any obligations under any Major Project
Document by any counterparty thereto.


 


6.21                        ACQUISITION
OF REAL PROPERTY.  Borrower
shall not acquire or lease any real property or other interest in real property
other than the Site, Easements and other interests in real property acquired on
or prior to the Closing Date.


 


6.22                        NO
MERCHANT SALES.  Borrower shall not consent to, or
permit, the provision of electrical products to any Person other than to SCPPA
under the PPA.


 


6.23                        LEASE
OBLIGATIONS.  Except as existing on the Closing Date and
operating leases the rent under which does not exceed $100,000 in the
aggregate, Borrower shall not create, incur, assume or suffer to exist any
obligations as lessee for the rent or hire of any property under leases or
agreements to lease.


 


6.24                        DISPUTES.  Borrower shall not agree, authorize or
otherwise consent to any proposed settlement, resolution or compromise of any
litigation, arbitration or other dispute with any Person without the prior
authorization of Administrative Agent and the Required Lenders if such proposed
settlement, resolution or compromise could reasonably be expected to result in
a Material Adverse Effect.


 


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6.25                        ANTI-TERRORISM
LAW; ANTI-MONEY LAUNDERING.


 


6.25.1              Borrower shall
not directly or indirectly, knowingly (a) conduct any business or engage
in making or receiving any contribution of funds, goods or services to or for
the benefit of any Person described in Section 4.30(b), (b) deal in,
or otherwise engage in any transaction relating to, any property or interests
in property blocked pursuant to the Executive Order or any other Anti-Terrorism
Law, or (c) engage in or conspire to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in any Anti-Terrorism Law (and Borrower shall
deliver to the Lenders any certification or other evidence requested from time
to time by any Lender in its reasonable discretion, confirming Borrower’s
compliance with this Section 6.25.1.


 


6.25.2              Borrower shall
not cause or permit any of the funds that are used to repay the Loans to be
derived from any unlawful activity with the result that the making of the Loans
would be in violation of law.


 


6.26                        EMBARGOED
PERSONS.


 


6.26.1              (a) Borrower
shall not become a Person whose property or interests in property are blocked
or subject to blocking pursuant to Section 1 of the Executive Order, or
(b) engage in any dealings or transactions prohibited by Section 2 of
the Executive Order, or be otherwise associated with any such Person in any
manner violative of such Section 2.


 


6.26.2              Borrower shall
not cause or permit (a) any of the funds or properties that are used to
repay the Loans to constitute property of, or be beneficially owned directly or
indirectly by, any Person subject to sanctions or trade restrictions under
United States law (each, an “Embargoed
Person”) that is identified on (1) the “List of Specially
Designated Nationals and Blocked Persons” maintained by OFAC or on any other
similar list maintained by OFAC pursuant to any authorizing statute including,
but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The Trading
with the Enemy Act, 50 U.S.C. App. 1 et seq.,
and any executive order or regulation promulgated thereunder, with the result
that the investment in the Borrower Entities (whether directly or indirectly)
is prohibited by law, or the Loans made by the Lenders would be in violation of
law, or (2) the Executive Order, any related enabling legislation or any
other similar executive orders, or (b) any Embargoed Person to have any
direct or indirect interest, of any nature whatsoever in the Project, Borrower
and the other Borrower Entities, with the result that the investment in the
Project or Borrower (whether directly or indirectly) is prohibited by law or
the Loans are in violation of law.


 


6.27                        REGULATORY
STATUS.  Without the consent of the
Lenders, cause or permit (a) the termination of the status of Borrower as
an Exempt Wholesale Generator so long as necessary to be eligible for the
exemptions from regulation available to Exempt Wholesale Generators and owners
of Exempt Wholesale Generators under PUHCA or (b) the loss or revocation
of its authorization to sell wholesale electric capacity, energy and ancillary
services at market-based rates.


 


6.28                        CAPITAL
EXPENDITURES.  Borrower
shall not make capital expenditures that are not in the then-current Project
Budget or Annual Operating Budget, as applicable.


 


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6.29                        SEPARATENESS.  The Borrower covenants that it shall not:


 


6.29.1                          commingle
assets with those of any other entity;


 


6.29.2                          hold its assets
in any other name than its own;


 


6.29.3                          conduct its business
in any name other than its own;


 


6.29.4                          maintain bank
accounts, books, records and financial statements that are not in accordance
with generally accepted accounting principles or combined with any other person
or entity;


 


6.29.5                          fail to observe
all company formalities;


 


6.29.6                          allow any other
Person to pay its liabilities (except payments made by or from capital
contributed by the Pledgor or the letters of credit issued by Affiliates of the
Borrower);


 


6.29.7                          fail to
maintain adequate capital in light of its contemplated business operations;


 


6.29.8                          fail to use
separate stationery, invoices and checks;


 


6.29.9                          fail maintain
an arm’s-length relationship with its Affiliates;


 


6.29.10                   fail to pay the
salaries of its own employees;


 


6.29.11                   guarantee or
become obligated for the debts of any other entity or hold out its credit as
being available to satisfy the obligations of others;


 


6.29.12                   make any loans
to any other Person;


 


6.29.13                   fail to
allocate fairly and reasonably any overhead for shared office space;


 


6.29.14                   pledge its
assets for the benefit of any other entity; and


 


6.29.15                   fail to hold
itself out as a separate entity, with the exception that Borrower shall not be
considered as a separate entity from the Sponsor or Pledgor for federal, and,
where applicable, state and local, tax purposes, and fail to correct any known
misunderstanding regarding its separate identity.


 


6.30                        INTERCONNECTION.  Borrower shall not send any request to
Interconnector to increase the Project interconnection capabilities of the
Transmission Line without the prior consent of Administrative Agent.


 


6.31                        GENERAL
ELECTRIC O&M AGREEMENT.  On or prior to December 31, 2010,
Borrower shall have: (a) entered into an Operations Support Agreement with
General Electric International Incorporated, a Delaware corporation, in form
and substance reasonably 


 


70

















 


satisfactory to Administrative Agent relating to the
operation and maintenance of the turbines on the Project; (b) obtained
from General Electric International Incorporated, a Delaware corporation,
relating to such Operations Support Agreement a consent in the form of Exhibit E-1
with such changes as may be approved by Administrative Agent; and
(c) delivered to Administrative Agent a good standing certificate for
General Electric International Incorporated, a Delaware corporation, in
Delaware and Utah.


 


ARTICLE 7

ACCOUNTS


 


7.1                               ACCOUNT
WITHDRAWALS, TRANSFERS AND PAYMENTS.


 


7.1.1                     General
Procedures.


 


(a)                                 For every
withdrawal, transfer or payment from any Account, Borrower shall execute and
deliver to Administrative Agent an Account Withdrawal Request and a proposed
Account Withdrawal Instruction related thereto. 
Borrower shall submit, together with each set of Account Withdrawal
Documents, a copy of all receipts in excess of $25,000, invoices in excess of
$25,000, purchase orders in excess of $25,000 and any other appropriate
documentation or materials reasonably requested by Administrative Agent to
enable it to substantiate the withdrawals and transfers specified in the
applicable Account Withdrawal Request and the other matters described therein.


 


(b)                                 Upon receipt of
such Account Withdrawal Documents, Administrative Agent shall promptly review
such Account Withdrawal Documents. 
Administrative Agent (after consulting with Borrower and Independent
Engineer) may elect not to approve part, and, accordingly, may reduce the
amount of, any individual withdrawal, transfer or payment requested in any
Account Withdrawal Request if Administrative Agent determines in its reasonable
discretion that Borrower has not provided all of the appropriate documentation
contemplated by 7.1.1(a) to properly document and support the making of
such part of the requested withdrawal, transfer or payment.  If Administrative Agent does not approve
(such approval not to be unreasonably withheld) any Account Withdrawal
Documents, Administrative Agent shall promptly so notify Borrower (such notice
to specify in reasonable detail the reasons for not approving such Account
Withdrawal Documents), and Borrower shall then be permitted to submit a revised
set of Account Withdrawal Documents to Administrative Agent.


 


(c)                                  If in
Administrative Agent’s reasonable judgment such Account Withdrawal Documents
are consistent with the terms hereof, subject to Administrative Agent’s
approval of the amounts and other details provided therein, Administrative
Agent shall execute and deliver the applicable Account Withdrawal Instruction
to Depositary.  Borrower agrees that
Administrative Agent may direct Depositary to transfer any or all sums on
deposit in or credited to any Account directly into the accounts identified by
Borrower in each Account Withdrawal Request without further authorization from
Borrower; provided that if Borrower has notified Administrative Agent
that it is contesting a claim for payment in accordance with Section 5.2.2
and the other applicable Operative Documents, Administrative Agent shall not be
entitled to directly pay any amount being contested, except (i) any
portion of such amount which is not 


 


71

















 


being contested by Borrower or (ii) payments
which Administrative Agent reasonably believes if not promptly made could
reasonably be expected to have a Material Adverse Effect.


 


7.1.2                     Account
Withdrawal Documents.  A set
of Account Withdrawal Documents shall be deemed properly delivered by Borrower
to Administrative Agent if such Account Withdrawal Documents have been properly
completed to the satisfaction of Administrative Agent and delivered in
accordance with the applicable time requirements set forth herein.  Unless specifically stated herein, all
Account Withdrawal Instructions are to be completed by Borrower and submitted
to Administrative Agent for approval and signature and then forwarded by
Administrative Agent to Depositary in accordance with the applicable time
requirements set forth herein.  To the
extent that any directions to Depositary require actions to be taken by Borrower
and Borrower fails to perform such actions, or if any Account Withdrawal
Documents submitted by Borrower are incorrect or if an Event of Default has
occurred and is continuing or would occur based on Borrower’s failure to
submit, or to submit accurate and necessary, Account Withdrawal Instructions,
Administrative Agent is entitled to perform such actions by completing and
executing an Account Withdrawal Instruction and delivering such Account
Withdrawal Instruction to Depositary.


 


7.1.3                     Repayment
of Loans in Full.  In
connection with any repayment in full of the Loans and termination of the
Commitments, Borrower may submit a set of Account Withdrawal Documents to
Administrative Agent requesting Administrative Agent to direct Depositary to
transfer or apply all remaining monies in the Accounts (other than the
Repayment Account) to the Repayment Account for repayment of the Loans on the
anticipated date thereof.  After
approving a set of Account Withdrawal Documents (or any revision thereof),
Administrative Agent shall execute and deliver to Depositary the applicable
Account Withdrawal Instruction within two Business Days of Administrative Agent’s
receipt of such Account Withdrawal Request.


 


7.2                               CONSTRUCTION
ACCOUNT.


 


7.2.1                     Establishment
of Construction Account.  The
Construction Account shall be established pursuant to Section 2.1 of the
Depositary Agreement.


 


7.2.2                     Deposits
into the Construction Account.  Borrower shall immediately deposit or cause
to be deposited into the Construction Account each of the following (it being
acknowledged and agreed that, to the extent any amounts referred to in this
Section 7.2.2 are received directly by Administrative Agent, Collateral
Agent or Depositary, (a) upon receipt of any such amounts, Administrative
Agent or Collateral Agent, as the case may be, shall deposit, or shall cause
Depositary to deposit, such amounts into the Construction Account as
contemplated by this Section 7.2.2, and (b) the obligation of
Borrower under this Section 7.2.2 to deposit any such amounts into the
Construction Account shall be deemed satisfied upon such deposit to the
Construction Account):


 


(i)                                     the proceeds of
all Loans, except SCPPA Cure Loans;


 


(ii)                                  all amounts
received by Borrower, Administrative Agent or Collateral Agent in respect of
any delay in start- up; and


 


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(iii)                               all amounts
received by Borrower in respect of any delay-related liquidated damages prior
to Commercial Operation.


 


7.2.3                     Disbursements
from the Construction Account.  Borrower shall submit a set of Account
Withdrawal Documents to Administrative Agent as and when, but no more
frequently than two times each month Borrower seeks to withdraw or transfer
funds from the Construction Account at least four Business Days prior to making
such withdrawal.  The applicable Account
Withdrawal Request shall request Administrative Agent to direct Depositary to
transfer or apply monies on deposit in the Construction Account only to Persons
specified by Borrower to Administrative Agent to (i) pay, to the extent
consistent with the then-current Project Budget or otherwise approved or
permitted hereunder, Project Costs due and owing or to become due and owing
within the next month by Borrower, (ii) reimburse Sponsor and its
Affiliates for Project Costs previously paid by them in accordance with, and
subject to, Section 5.1.1(b)(ii), in each case in accordance with a duly
completed Drawdown Certificate or (iii) to make the Performance LC
Distribution.  In addition, Borrower may
request pursuant to an Account Withdrawal Request that amounts on deposit in
the Construction Account (other than amounts necessary to reach Final
Completion, as confirmed by Independent Engineer) be transferred to the Revenue
Account.  Administrative Agent shall
execute and deliver to Depositary the applicable Account Withdrawal Instruction
within two Business Days of Administrative Agent’s receipt of such Account
Withdrawal Request.


 


7.3                               REVENUE
ACCOUNT.


 


7.3.1                     Establishment
of Revenue Account.  The Revenue
Account shall be established pursuant to Section 2.1(a) of the
Depositary Agreement.


 


7.3.2                     Deposits
into Revenue Account.  Borrower shall
deposit or cause to be deposited all Project Revenues into the Revenue Account
(it being acknowledged and agreed that, to the extent any all Project Revenues
are received directly by Administrative Agent, Collateral Agent or Depositary,
(a) upon receipt of any such amounts, Administrative Agent or Collateral
Agent, as the case may be, shall deposit, or shall cause the Depositary to
deposit, all Project Revenues into the Revenue Account, and (b) the obligation
of Borrower under this Section 7.3.2 to deposit all Project Revenues into
the Revenue Account shall be deemed satisfied upon such deposit to the Revenue
Account).


 


7.3.3                     Disbursements
from the Revenue Account.  Amounts on
deposit in the Revenue Account may only be withdrawn for purposes of paying
amounts due and payable under this Agreement, to make the Performance LC
Distribution (to the extent funds are not available in the Construction
Account) or to pay O&M Costs as follows:


 


(a)                                 To cause
withdrawal or transfer of amounts on deposit in the Revenue Account to pay
amounts due and payable under this Agreement, Borrower shall submit to
Administrative Agent a set of Account Withdrawal Documents at least four
Business Days prior to amounts becoming due and payable under this
Agreement.  The applicable Account
Withdrawal Request shall request Administrative Agent to direct Depositary to
transfer or apply monies on deposit in the Revenue Account only to the
Administrative Agent for payment of such amounts.  After approving a set of Account Withdrawal
Documents (or any revision thereof), 


 


73

















 


Administrative Agent shall execute and deliver to
Depositary the applicable Account Withdrawal Instruction within two Business
Days of Administrative Agent’s receipt of such Account Withdrawal Request; or


 


(b)                                 To cause
withdrawal or transfer of amounts on deposit in the Revenue Account to pay
O&M Costs or to make the Performance LC Distribution (each of which may
only occur if no Event of Default has occurred and is continuing), Borrower
shall submit to Administrative Agent a set of Account Withdrawal Documents
requesting Administrative Agent to direct Depositary to transfer or apply
monies on deposit in the Revenue Account only to Persons specified by Borrower
in respect of O&M Costs or the Performance LC Distribution.  After approving a set of Account Withdrawal
Documents (or any revision thereof), Administrative Agent shall execute and
deliver to Depositary the applicable Account Withdrawal Instruction within two
Business Days of Administrative Agent’s receipt of such Account Withdrawal
Request.


 


7.4                               APPLICATION
OF INSURANCE PROCEEDS.


 


7.4.1                     Establishment
of Insurance Proceeds Account.  The Insurance Proceeds Account shall be established
pursuant to Section 2.1(a) of the Depositary Agreement.


 


7.4.2                     Insurance
Proceeds.  Borrower
shall notify Administrative Agent of any casualty and keep Administrative Agent
timely apprised of insurance claim proceedings. 
All amounts and proceeds (including instruments) in respect of the Net
Cash Proceeds of any property insurance policy required to be maintained by
Borrower hereunder (“Insurance Proceeds”) shall be deposited into the
Insurance Proceeds Account and applied as provided in this Section, including
any amounts paid by the insurers directly to Administrative Agent (as loss
payee or additional insured, as the case may be) and Administrative Agent shall
deposit such Insurance Proceeds into the Insurance Proceeds Account to be
applied as provided in this Section.  If
paid to Borrower, such Insurance Proceeds shall be received in trust for
Administrative Agent, shall be segregated from other funds of Borrower, and
shall be forthwith deposited into the Insurance Proceeds Account in the same form
as received (with any necessary endorsement).


 


7.4.3                     Application
of Insurance Proceeds. 
Unless each of the following conditions is satisfied or waived by
Administrative Agent with respect to Insurance Proceeds relating to a Casualty
Event, all Insurance Proceeds shall be transferred to the Repayment Account and
applied to the prepayment of Loans:


 


(a)                                 such damage or
destruction does not constitute the destruction of all or substantially all of
the man-made portion of the Project;


 


(b)                                 no Event of
Default has occurred and is continuing and after giving effect to any proposed
repair and restoration, such damage or destruction or proposed repair and
restoration will not result in a Default or Event of Default;


 


(c)                                  Borrower and
the Independent Engineer certify, and Administrative Agent determines in its
reasonable judgment, that repair or restoration of the Project is technically
and economically feasible by no later than Date Certain and that a sufficient
amount of funds is or 


 


74

















 


will be available to Borrower to make such repairs
and restorations and, if during the construction period, to achieve Completion;


 


(d)                                 if such damage
or destruction occurs during construction, such repair or restoration will occur,
in the reasonable judgment of Administrative Agent after consultation with the
Independent Engineer, prior to the Date Certain;


 


(e)                                  Administrative
Agent determines that after repair and restoration the Project will be able to
repay the Loans and other amounts due the Lenders as and when due;


 


(f)                                   no material
Permit is necessary to proceed with the repair and restoration and no material
amendment to this Agreement or any of the Credit Documents and no other
instrument, is necessary for the purpose of effecting the repairs or
restorations or subjecting the repairs or restorations to the Liens of the
Collateral Documents or, if any such is necessary, Borrower will be able to
obtain such as and when required;


 


(g)                                  if requested by
Administrative Agent, the Lenders shall receive an opinion of counsel
acceptable to Administrative Agent opining as to the matters described in
paragraph (f) above, and such opinion shall also state that such
repairs or restoration will be subject to the Liens of the Collateral Documents
at the same level of priority as the other Collateral; and


 


(h)                                 Administrative
Agent shall receive such additional title insurance, title insurance
endorsements, mechanic’s lien waivers, certificates, opinions or other matters
as it may reasonably request as necessary or appropriate in connection with
such repairs or restoration or to preserve or protect the Lenders’ interests
hereunder and in the Collateral.


 


7.4.4                     Restoration.  If the conditions in Section 7.4.3 have
been met, then such Insurance Proceeds shall be applied by Borrower to the
prompt repair or restoration of the Project related to such Casualty Event in
accordance with the following procedures:


 


(a)                                 Borrower shall
submit a detailed report to Administrative Agent describing Borrower’s plan for
effectuating repairs or restoration, and such report shall be subject to the
review and approval of Administrative Agent.


 


(b)                                 From time to
time after Administrative Agent shall have duly approved the making of such
repairs or restoration, Administrative Agent’s release of Insurance Proceeds
for application toward such repairs or restoration shall be conditioned upon
Borrower’s request and the presentation to Administrative Agent of all
documents, certificates and information with respect to such Insurance Proceeds
which would be required in order to obtain a Loan under this Agreement,
including a certificate from Borrower (i) describing in reasonable detail
the nature of the repairs or restoration to be effected with such release,
(ii) stating the cost of such repairs or restoration and the specific
amount requested to be paid over to or upon the order of Borrower and that such
amount is requested to pay the cost thereof, (iii) stating that the
aggregate amount requested by Borrower in respect of such repairs or
restoration (when added to any other Insurance Proceeds received by Borrower in
respect of such damage of destruction) does not exceed the cost of such repairs
or restoration and that a sufficient amount of funds is or will be available to
Borrower to complete the Project, and (iv) stating that no Event of
Default has 


 


75

















 


occurred and is continuing other than an Event of
Default resulting solely from such damage or destruction.


 


7.4.5                     Certain
Casualty Events. 
Notwithstanding Sections 7.4.3 and 7.4.4, Borrower shall be permitted to
apply Insurance Proceeds relating to a single Casualty Event of less than or
equal to $500,000 (as determined by the replacement value thereof) to the
prompt repair or restoration of the Project related to such Casualty Event (or
Borrower may apply the available amount of the contingency in the Project
Budget to such repair or restoration prior to the receipt of such Insurance
Proceeds and, upon receipt of such Insurance Proceeds, restore the available
amount of the contingency in the Project Budget).  Borrower shall provide Administrative Agent
with notice of such Casualty Event and completion of the repair or restoration
the Project related such Casualty Event.


 


7.4.6                     Account
Withdrawal Documents.  To cause
withdrawal or transfer of amounts on deposit in the Insurance Proceeds Account,
Borrower shall submit to Administrative Agent a set of Account Withdrawal
Documents.  The applicable Account
Withdrawal Request shall request Administrative Agent to direct Depositary to
transfer or apply monies on deposit in the Insurance Proceeds Account in
compliance with Section 7.4.3 or 7.4.5. 
After approving a set of Account Withdrawal Documents (or any revision
thereof), Administrative Agent shall promptly execute and deliver to Depositary
the applicable Account Withdrawal Instruction.


 


7.4.7                     Surplus
Proceeds.  If, after
Insurance Proceeds have been applied to the repair or restoration of the
Project as provided in Section  7.4.4 or 7.4.5, Administrative Agent
determines that the Project will be able to operate at a level enabling
Borrower to pay and perform the Obligations as well as before the damage or
destruction, any excess Insurance Proceeds shall be transferred to the Repayment
Account and applied to the prepayment of Loans.


 


7.4.8                     Business
Interruption Insurance Proceeds.  Any business interruption Insurance Proceeds
received by Administrative Agent or Borrower shall be deposited into the
Revenue Account.


 


7.4.9                     Insurance
Proceeds in an Event of Default.  If a Default or Event of Default shall have
occurred and be continuing, then any provisions of this Section 7.4 to the
contrary notwithstanding, the Insurance Proceeds (including any Permitted
Investments made with such proceeds, which shall be liquidated in such manner
as Administrative Agent shall deem reasonable and prudent under the
circumstances) may be applied by Administrative Agent (a) to curing such
Default or Event of Default, and any Insurance Proceeds remaining thereafter
shall be applied as provided in this Section 7.4 or (b) toward
payment of the Obligations, in connection with exercise of Administrative Agent’s
remedies pursuant to Article 8.


 


7.5                               APPLICATION
OF EMINENT DOMAIN PROCEEDS.  All Net Cash Proceeds received in respect of
any Eminent Domain (“Eminent Domain Proceeds”) shall be transferred to
the Repayment Account and applied to the prepayment of Loans.


 


7.6                               ASSET
SALE ACCOUNT.


 


7.6.1                     Establishment
of Asset Sale Account.  The
Asset Sale Account shall be established pursuant to Section 2.1(a) of
the Depositary Agreement.


 


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7.6.2                     Deposits
into Asset Sale Account. 
Borrower shall deposit or cause to be deposited the Net Cash Proceeds of
any sale of assets of the Borrower (other than sales that generate Project
Revenues) (“Sale Proceeds”) into the Asset Sale Account.  Nothing in this Section shall be deemed
approval of any assets sales except in accordance with Section 6.4.


 


7.6.3                     Disbursements
from the Asset Sale Account.


 


(a)                                 Sale Proceeds
with respect to any asset sale where the consideration is less than $50,000
shall be deposited in the Construction Account, if such sale occurs prior to
Commercial Operation, or in the Revenue Account, if such sale occurs after
Commercial Operation.


 


(b)                                 Sale Proceeds
with respect to any asset sale where the consideration is equal to or greater
than $50,000 shall be transferred to the Repayment Account and applied to the
prepayment of Loans.


 


7.6.4                     Account
Withdrawal Documents.  To cause
withdrawal or transfer of amounts on deposit in the Asset Sale Account,
Borrower shall submit to Administrative Agent a set of Account Withdrawal
Documents.  The applicable Account
Withdrawal Request shall request Administrative Agent to direct Depositary to
transfer or apply monies on deposit in the Asset Sale Account in compliance
with Section 7.6.3.  After approving
a set of Account Withdrawal Documents (or any revision thereof), Administrative
Agent shall promptly execute and deliver to Depositary the applicable Account
Withdrawal Instruction.


 


7.7                               SCPPA
CURE RESERVE ACCOUNT.


 


7.7.1                     Establishment
of SCPPA Cure Reserve Account.  The SCPPA Cure Reserve Account shall be
established pursuant to Section 2.1(a) of the Depositary Agreement.


 


7.7.2                     Deposits
into SCPPA Cure Reserve Account.  Borrower shall immediately deposit or cause
to be deposited into the SCPPA Cure Reserve Account the proceeds of all SCPPA
Cure Loans.


 


7.8                               REPAYMENT
ACCOUNT


 


7.8.1                     Establishment
of Repayment Account.  The
Repayment Account shall be established pursuant to Section 2.1(a) of
the Depositary Agreement.


 


7.8.2                     Deposits
into Repayment Account. 
Borrower shall immediately deposit into the Repayment Account the amount
of any Mandatory Prepayment.


 


7.8.3                     Disbursements
from the Repayment Account.  Administrative Agent will be the only Person
that is permitted to direct disbursements from the Repayment Account.  Administrative Agent shall execute and
deliver to Depositary the applicable Account Withdrawal Instruction directing
that amounts in the Repayment Account be transferred to the Administrative
Agent for repayment of the Loans.  Except
as otherwise notified to Depositary Agent in respect of amounts to be held in
the Repayment Account pursuant to Sections 2.1.7(a)(ii) and 2.7.1, amounts
in the Repayment Account shall be transferred to Administrative Agent on a
daily basis.


 


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7.9                               PROCEEDS
AND ACCOUNTS.  Borrower
shall not have any rights or powers with respect to any monies or Accounts
except to have funds on deposit therein applied in accordance with this
Agreement and as set forth in the Depositary Agreement.  Administrative Agent is hereby authorized to
reduce to cash any Permitted Investment (without regard to maturity) in order
to make any application required by any section of this Article 7 or
otherwise pursuant to the Credit Documents. 
Upon the occurrence of an Event of Default, Collateral Agent shall have
all rights and powers with respect to Proceeds and Accounts as it has with
respect to any other Collateral and may apply Proceeds and Accounts to the
payment of interest, principal, fees, costs, charges or other amounts due or
payable to the Secured Parties in such order as Administrative Agent may elect
in its sole discretion.


 


7.10                        PERMITTED
INVESTMENTS. 
Administrative Agent shall invest all amounts held in the Accounts or as
Insurance Proceeds only in Permitted Investments as directed by and at the
expense and risk of Borrower.


 


ARTICLE 8

EVENTS OF DEFAULT; REMEDIES


 


8.1                               EVENTS
OF DEFAULT.  The
occurrence of any of the following events shall constitute an event of default
(each, an “Event of Default”) hereunder:


 


8.1.1                     Failure
to Make Payments.  Borrower
shall fail to pay, in accordance with the terms of this Agreement (a) any
principal on any Loan, (b) any interest on any Loan within three days
after the date such sum is due, (c) any scheduled fee, cost, charge or sum
due hereunder or under any Credit Document within three days of the date that
such sum is due, or (d) any amount due for Mandatory Prepayment, within
three days of the date that such payment is due.


 


8.1.2                     Bankruptcy;
Insolvency.  Any
Bankruptcy Event shall occur with respect to (i) any Minor Project
Participant and such Bankruptcy Event could reasonably be expected to have a
Material Adverse Effect or (ii) any other Major Project Participant, in
each case so long as such Person shall have outstanding or unperformed
obligations under any Operative Document to which it is a party.


 


8.1.3                     Defaults
Under Other Debt.  Borrower
shall default for a period beyond any applicable grace period (not to exceed
30 days) (a) in the payment of any principal, interest or other
amount due under any agreement or instrument involving Debt (other than the
Debt hereunder) and the outstanding amount or amounts payable under any such
agreement or instrument equals or exceeds $500,000 in the aggregate,
(b) in the observance or performance of any other agreement or condition
relating to such Debt or contained in any agreement or instrument evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default, event or condition is to cause, or to
permit any holder of such Debt (or a trustee or agent of such holder or
beneficiary) to cause, such Debt to become or be declared due and payable prior
to its stated maturity or the stated maturity of any underlying obligation, as
the case may be (upon the giving or receiving of notice, lapse of time, both,
or otherwise), or (c) any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), 


 


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purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof and the outstanding amount or amounts payable in
respect of such Debt by Borrower equals or exceeds $500,000 in the aggregate.


 


8.1.4                     Judgments.  A final judgment or order for the payment of
money shall be entered against Borrower in the amount of $1,500,000 or more
individually or in the aggregate, other  than, in each case, a
judgment or order, (a) which is fully covered by insurance and the insurer
has been notified of, and has not disputed the claim made for the payment of,
the amount of such judgment or order, (b) which is vacated, stayed,
discharged or, if required for appeal, bonded pending such appeal within
30 days after its entry or, in the case of a stayed and/or bonded
judgment, the judgment is affirmed on appeal, or (c) the execution of
which is effectively stayed within 60 days after its entry unless, after the
entry of such stay, there shall be a period of more than 60 consecutive days
during which the execution of such judgment is not effectively stayed.  Any non-monetary judgment or order shall be
entered against Borrower that could reasonably be expected to have a Material
Adverse Effect other  than a judgment or order, which is discharged
within 60 days after its entry, unless, after the entry of such stay,
there shall be a period of not more than 60 consecutive days during which the
execution of such judgment is not effectively stayed.


 


8.1.5                     ERISA.  If any Credit Party or any ERISA Affiliate
should establish, maintain, contribute to or become obligated to contribute to
any ERISA Plan and (a) a Reportable Event (under Section 4043(b) or
(c) of ERISA for which notice to the PBGC is not waived) shall have
occurred with respect to any ERISA Plan and, within 30 days after the
reporting of such Reportable Event to Administrative Agent by Borrower (or
Administrative Agent otherwise obtaining knowledge of such event) and the
furnishing of such information as Administrative Agent may reasonably request
with respect thereto, Administrative Agent shall have notified Borrower that
(i)  Required Lenders have made a determination that, on the basis of such
Reportable Event, there are reasonable grounds for the termination of such
ERISA Plan by the PBGC or for the PBGC to ask for the appointment by the
appropriate United States District Court of a trustee to administer such ERISA
Plan and (ii) as a result thereof, an Event of Default exists hereunder;
or (b) a trustee shall be appointed by a United States District Court to
administer any ERISA Plan; or (c) the PBGC shall institute proceedings to
terminate any ERISA Plan; or (d) a complete or partial withdrawal by
Borrower or any ERISA Affiliate from any Multiemployer Plan shall have occurred
that could reasonably be expected to result in a material liability and, within
30 days after the reporting of any such occurrence to Administrative Agent
by Borrower (or Administrative Agent otherwise obtaining knowledge of such
event) and the furnishing of such information as Administrative Agent or
Required Lenders may reasonably request with respect thereto, Administrative
Agent shall have notified Borrower that Required Lenders have made a
determination that, on the basis of such occurrence, an Event of Default exists
hereunder; provided, that any of the events described in this
Section 8.1.5 shall not result in a Default or Event of Default unless
they result in joint liability to Borrower and all ERISA Affiliates in an
aggregate amount in excess of $250,000.


 


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8.1.6                     Ownership
of Project.  Borrower
shall cease to be the sole owner of the Project.


 


8.1.7                     Pledgor.  Pledgor ceases to be a holding company whose
sole asset is its ownership interests in Borrower.


 


8.1.8                     Breach
of Terms of Agreement.


 


(a)                                 Defaults
Without Cure Periods.  Borrower
shall fail to perform or observe any of the covenants set forth in
Section 5.1, 5.4, 5.9(a), 5.15.5 or 5.17, or Article 6 of this Agreement.


 


(b)                                 Other Defaults.  Any Credit Party
shall fail to perform or observe any of the agreements set forth herein or in
any Credit Document not otherwise specifically provided for in Section 8.1.8(a) or
elsewhere in this Article 8, and such failure shall continue unremedied
for a period of 30 days after the earlier of Borrower becomes aware
thereof or receives notice thereof from Administrative Agent; provided,
that, if (i) such failure does not consist principally of the failure to
pay money and cannot be cured within such 30 day period, (ii) such
failure is susceptible of cure within 90 days, (iii) such Credit
Party is proceeding with diligence and in good faith to cure such failure,
(iv) the existence of such failure has not had and could not, after
considering the nature of the cure, be reasonably expected to have a Material
Adverse Effect, and (v) Administrative Agent shall have received an
officer’s certificate signed by a Responsible Officer to the effect of
clauses (i), (ii), (iii) and (iv) above and stating what action
such Credit Party is taking to cure such failure, then such 30-day cure period
shall be extended to such date, not to exceed a total of 90 days, as shall
be necessary for such Credit Party diligently to cure such failure.


 


(c)                                  Remedial Plan.  Borrower fails to deliver a Remedial
Plan within the required 10-day period following Independent Engineer’s
determination as set forth in Section 5.13.2, or Borrower fails to
adequately address Independent Engineer’s objections to such Remedial Plan
within the second 10-day period described in Section 5.13.2; or Borrower
fails at any time to diligently implement any Remedial Plan.


 


8.1.9                     Loss
of Collateral.  (a) All
or any material portion of the Collateral is damaged, seized or appropriated
without appropriate insurance proceeds (subject to the underlying deductible)
or without fair value being paid therefor so as to allow replacement of such
Collateral or prepayment of Loans and to allow Borrower to continue satisfying
its obligations hereunder and under the other Operative Documents, or
(b) any Person other than the Secured Parties attaches or institutes
proceedings to attach all or any material part of the Collateral (other than
Permitted Liens), and any such proceeding or attachment or any judgment Lien
against any such Collateral (i) remains unlifted, unstayed or undischarged
for a period of 30 days or (ii) is upheld in a final nonappealable
judgment of a court of competent jurisdiction.


 


8.1.10              Commercial
Operation.  Commercial
Operation shall not have occurred by the Date Certain.


 


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8.1.11              Regulatory
Status.


 


(a)                                 If loss of
Exempt Wholesale Generator status for Borrower or loss of Eligible Facility
status for the Project could reasonably be expected to have a Material Adverse
Effect, (i) Borrower shall have tendered notice to FERC that Borrower has
ceased to be an Exempt Wholesale Generator, or (ii) FERC shall have issued
an order determining that Borrower no longer meets the criteria of an Exempt
Wholesale Generator or takes other action revoking such Exempt Wholesale
Generator status.


 


(b)                                 An Adverse PUHCA Event shall occur.


 


(c)                                  If loss of
Borrower’s market-based rate authority could
reasonably be expected to have a Material Adverse Effect, (i) Borrower
shall have tendered notice to FERC that it seeks to cancel its market-based
rate authority or (ii) FERC shall have issued an order determining that
the Borrower does not have authorization to make wholesale sales of electric
energy, capacity, or ancillary services specified in the Borrower’s FERC
Electric Tariff at market-based rates, or taken any other action revoking
Borrower’s market-based rate authority.


 


(d)                                 If Borrower’s failure to
comply with any requirements under the FPA that are applicable to Borrower,
including the requirements applicable to a “public utility” with authority to
sell at wholesale electric power at market-based rates could reasonably be expected to have a Material Adverse Effect, FERC
shall have issued an order finding that Borrower has not complied with such
requirement under the FPA applicable to a “public utility” with
authority to sell at wholesale electric power at market-based rates.


 


8.1.12              Abandonment.


 


(a)                                 At any time
prior to Commercial Operation, Borrower shall announce that it is abandoning
the Project or the Project shall be abandoned or work thereon shall cease for a
period of more than 15 consecutive days for any reason, which period
(i) shall be measured from the first occurrence of a work stoppage and
continuing until work of a substantial nature is resumed and thereafter
diligently continued, and (ii) shall not include delays caused by any
event of force majeure or actions of any Governmental Authority.


 


(b)                                 At any time following Commercial Operation, Borrower shall announce that
(i) it is abandoning the Project or (ii) the Project shall be
abandoned or operation thereof shall be suspended for a period of more than 30
consecutive days for any reason (other than force majeure or actions of any
Governmental Authority); provided, that none of (A) scheduled
maintenance of the Project, (B) repairs to the Project, whether or not
scheduled, or (C) a forced outage or scheduled outage of the Project,
shall constitute abandonment or suspension of the Project, so long as Borrower
is diligently attempting to end such suspension.


 


8.1.13              Security.  Any of the Collateral Documents, once
executed and delivered, shall, except as the result of the acts or omissions of
any Secured Party, fail to provide to Collateral Agent the Liens, first
priority security interests (subject to Permitted Liens described in
clauses (a) and (e) of the definition thereof, to the extent
required by Governmental Rule, clauses (b), (c) and (g) of the
definition thereof and CoBank’s Lien on the CoBank Equities), rights, titles,
interest, remedies permitted by law, powers or privileges intended to be
created 


 


81

















 


thereby (including the priority intended to be
created thereby) or, except in accordance with its terms, cease to be in full
force and effect, or the first priority or validity thereof or the
applicability thereof to the Loans or any other Obligations purported to be
secured or guaranteed thereby or any part thereof shall be disaffirmed by or on
behalf of Borrower.


 


8.1.14              Loss
of or Failure to Obtain Applicable Permits.


 


(a)                                 Borrower shall
fail to obtain any Permit on or before the date that such Permit becomes an
Applicable Permit with respect to the Project, and such failure could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Any Applicable
Permit or Applicable Third Party Permit shall be materially modified (other
than modifications contemplated in a Project Document requested by Borrower and
approved in advance of such modification by Administrative Agent acting at the
direction of the Required Lenders, which approval shall not be unreasonably
withheld), revoked, canceled or not renewed by the issuing agency or other
Governmental Authority having jurisdiction (or otherwise ceases to be in full
force and effect) and within 30 days thereafter Borrower is not able to
demonstrate to the reasonable satisfaction of the Required Lenders that such
modification of, revocation of, cancellation of, failure to renew, or failure
to maintain in full force and effect such Permit could not reasonably be
expected to have a Material Adverse Effect.


 


8.1.15              Credit
Document Matters.  At any time
after the execution and delivery thereof, (a) any Credit Document or any
material provision hereof or thereof (i) ceases to be in full force and
effect or to be valid and binding on any party thereto other than a Secured
Party (other than by reason of the satisfaction in full of the Obligations or
any termination of a Credit Document in accordance with the terms hereof or
thereof), or is assigned or otherwise transferred (except as otherwise required
or expressly permitted hereunder or thereunder) or is prematurely terminated by
any party thereto (other than a Secured Party), (ii) is or becomes
invalid, illegal or unenforceable, or any party hereto or thereto (other than a
Secured Party) repudiates or disavows or takes any action to challenge the
validity or enforceability of such agreement, (iii) is declared null and
void by a Governmental Authority of competent jurisdiction, or (iv) fails
to or ceases to provide the rights, powers and privileges purported to be
created thereby or hereby, or (b) any authorization or approval by any
Governmental Authority necessary to enable any Credit Party to comply with or
perform its Obligations or otherwise perform in accordance with the terms of
the Credit Documents shall be revoked, withdrawn or withheld, or shall
otherwise fail to be issued or remain in full force and effect; provided,
however, in the case of the BLM Right of Way (Phase II), the BLM Right
of Way (Generator Lead Line), the SITLA Lease and the SITLA Right of Way, the
foregoing is subject to applicable Governmental Rules limiting the
enforceability of Liens therein.


 


8.1.16              Misstatements;
Omissions.  Any representation or warranty made or deemed
made by any Credit Party in any Credit Document to which such Credit Party is a
party, or in any separate statement, certificate or document delivered to any
Secured Party under any Credit Document to which such Credit Party is a party,
proves to have been untrue, false or misleading in any material respect as of
the time made, deemed made, confirmed or furnished, and such material
misstatement, omission or other inaccuracy shall continue unremedied for a
period of 90 days after Borrower first obtained actual knowledge of such
misstatement,


 


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ommission, or inaccuracy or first
received notice from Administrative Agent specificying such misstatement,
ommission, or inaccuracy and requiring it to be cured, provided that such cure
is feasible.  For purposes of this
paragraph, “cure” means to cause the underlying facts and circumstances to be
such that the representation or warranty becomes true, and to remove any
adverse effect the material misstatment, omission or inaccuracy may have
caused.


 


8.1.17              Project
Document Problems.


 


(a)                                 Borrower
Defaults.  Borrower
shall be in breach of, or in default of, any material obligation under a Major
Project Document (other than the PPA) and is not otherwise waived by the
counterparty of such Major Project Document and such breach or default shall
not be remediable or, if remediable, shall continue unremedied for the lesser
of (i) a period of 30 days after Borrower receives notice thereof
from the counterparty to such Major Project Document or (ii) such period
of time (without giving effect to any extension given to Collateral Agent under
any applicable Consent with respect thereto) under such Major Project Document
which Borrower has available to it in which to remedy such breach or default; provided,
that if (A) such breach does not involve the payment of money and cannot
be cured within such 30 day period (or such lesser period of time, as the
case may be), (B) such breach is susceptible of cure within 90 days
after such breach or default, (C) Borrower is proceeding with diligence
and in good faith to cure such breach, (D) the existence of such breach or
default has not had and could not after considering the nature of the cure, be
reasonably expected to give rise to termination by the counterparty of the
Major Project Document which is subject to breach or to otherwise have a
Material Adverse Effect, and (E) Administrative Agent shall have received
an officer’s certificate signed by a Responsible Officer to the effect of
clauses (A), (B), (C) and (D) above and stating the action
Borrower is taking to cure such breach, then such 30 day cure period (or
such lesser period of time, as the case may be) shall be extended to such date,
not to exceed a total of 90 days, as shall be necessary for Borrower
diligently to cure such breach.


 


(b)                                 Third Party
Defaults.  Any Person
other than Borrower shall be in breach of, or in default of a material
obligation under, a Major Project Document (other than the PPA) and such breach
or default shall not be remediable or, if remediable, shall continue unremedied
for a period beyond the applicable grace period or, in the event no grace
period is specified in such Major Project Document and no remedy is specified
for such failure to perform, such failure shall remain unremedied for 30 days
after the date of receipt by such Person of written notice thereof from the
counterparty thereto; provided, that if (i) such breach cannot be
cured within such grace period, (ii) such breach or default is susceptible
of cure within 90 days, (iii) the breaching Person or Borrower is
proceeding with diligence and in good faith to cure such breach, and
(iv) the existence of such breach has not had and could not after
considering the nature of the cure, be reasonably expected to result in a
Material Adverse Effect, then such 30 day cure period shall be extended to
such date, not to exceed a total of 90 days, as shall be necessary for
such breaching Person diligently to cure such breach; provided, further,
that a breach or default of a Minor Project Document shall not be deemed an
Event of Default if such Minor Project Document is replaced by a replacement
Project Document with a Replacement Project Participant within 30 days after
such breach or default.


 


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(c)                                  PPA Defaults.  Any Person shall be in breach of, or in
default of, any obligation under the PPA and such breach or default shall not
be remediable or, if remediable, shall continue unremedied for a period beyond
any applicable grace period.


 


(d)                                 Third Party
Consents. 
(i) Any Person other than Borrower shall disaffirm or repudiate in
writing its material obligations under any Major Project Document or Consent,
(ii) any representation or warranty made by any Person other than Borrower
in a Consent shall be untrue or misleading in any material respect as of the
time made and such untrue or misleading representation or warranty could
reasonably be expected to materially adversely affect the rights of Collateral
Agent or the Secured Parties thereunder or to otherwise result in a Material
Adverse Effect, or (iii) a Person other than Borrower shall breach any
material covenant of a Consent and such breach or default shall not be
remediable or, if remediable, shall continue unremedied for a period of
30 days from the time Borrower obtains knowledge of such breach; provided,
that if (A) such breach cannot be cured within such 30 day period,
(B) such breach is susceptible of cure within 90 days, (C) the
breaching party or Borrower is proceeding with diligence and in good faith to
cure such breach, and (D) the existence of such breach has not had and
could not after considering the nature of the cure, be reasonably expected to
have a Material Adverse Effect, then such 30 day cure period shall be
extended to such date, not to exceed a total of 90 days, as shall be necessary
for such third party diligently to cure such breach; provided, that a
disaffirmation, repudiation, misrepresentation, breach or default in respect of
a Minor Project Document shall not be deemed an Event of Default if such Minor
Project Document is replaced by a replacement Project Document with a
Replacement Project Participant within 30 days after such Borrower has
knowledge of such disaffirmation, repudiation, misrepresentation, breach or
default.


 


(e)                                  Termination.  At any time after the execution and delivery
thereof, (a) any Major Project Document or any material provision thereof
(i) ceases to be in full force and effect or to be valid and binding on
any party thereto (other than by reason of the satisfaction of performance of
such agreement or provision or any other termination thereof in accordance with
the terms thereof), or is assigned or otherwise transferred (except as
otherwise required or expressly permitted hereunder or thereunder) or is
prematurely terminated by any party thereto, (ii) is or becomes invalid,
illegal or unenforceable, or any party hereto or thereto repudiates or disavows
or takes any action to challenge the validity or enforceability of such
agreement, (iii) is declared null and void by a Governmental Authority of competent
jurisdiction, or written notice is given by a Governmental Authority or
applicable counterparty contesting the validity or enforcement thereof, or
(iv) fails to or ceases to provide the rights, powers and privileges
purported to be created thereby; provided, that such event in respect of
a Minor Project Document shall not be deemed an Event of Default if such Minor
Project Document is replaced by a replacement Project Document with a
Replacement Project Participant within 30 days after such event.


 


8.1.18              Change
of Control.  There shall
be any Change of Control without the consent of the Required Lenders (which
shall not be unreasonably withheld or delayed).


 


8.1.19              Disqualified
Person.  Borrower, Pledgor or Parent
shall become a Disqualified Person, Parent shall cease to be a corporation for
tax purposes or there shall be a Recapture Event.


 


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8.1.20              Eminent
Domain.  There shall have occurred any
act or series of acts attributable to any Governmental Authority which
(a) in the reasonable judgment of Administrative Agent has the effect of
depriving the Secured Parties of their fundamental rights as creditors in
respect of the Credit Documents, (b) confiscates, expropriates,
nationalizes or otherwise acquires compulsorily the ownership or control of all
or any material part of the Project, or (c) in the reasonable judgment of
Administrative Agent has the effect of materially impairing the value of any
Major Project Document, and such act or series of acts continues uncured for
90 days or more.


 


8.1.21              Letters
of Credit Provided by Sponsor.  Any letter of credit required under any
Project Document which, as of the Closing Date, is provided by Sponsor or any
Affiliate thereof (other than the Borrower) shall fail to be maintained as
required under the respective Project Document.


 


8.2                         REMEDIES.  Subject to Article 9, upon the
occurrence and during the continuation of an Event of Default, the Secured
Parties may, at the direction of Administrative Agent, and shall, at the
election of the Required Lenders, without further notice of default,
presentment or demand for payment, protest or notice of non-payment or
dishonor, or other notices or demands of any kind, all such notices and demands
(other than notices required by the Credit Documents) being waived, exercise
any or all of the following rights and remedies, in any combination or order
that the Required Lenders may elect, in addition to such other rights or
remedies as the Secured Parties may have hereunder, under the Collateral
Documents or at law or in equity:


 


8.2.1                     No
Further Loans.  Declare all
Commitments cancelled, refuse, and Administrative Agent and the Lenders shall
not be obligated to continue any Loans, make any additional Loans or make any
payments, or permit the making of payments, from any Account or the
Construction Fund  or any Proceeds or other funds
held by Administrative Agent or Collateral Agent under the Credit Documents or
on behalf of Borrower; provided, that in the case of an Event of Default
occurring under Section 8.1.2 with respect to Borrower, all such
Commitments shall be cancelled and terminated without further act of any
Secured Party.


 


8.2.2                     Cure
by Agents.  Without any
obligation to do so, make disbursements or Loans to or on behalf of Borrower or
disburse amounts from the Construction Account or any other Account to cure
(a) any Default or Event of Default and (b) any default and render
any performance under any Project Document as the Required Lenders in their
sole discretion may consider necessary or appropriate, whether to preserve and
protect the Collateral or the Secured Parties’ interests therein or for any
other reason.  All sums so expended
through new Loans, together with interest on such total amount at the Default
Rate (but in no event shall the rate exceed the maximum lawful rate), shall be
repaid by Borrower to Administrative Agent or Collateral Agent, as the case may
be, on demand and shall be secured by the Credit Documents, notwithstanding
that such expenditures may, together with amounts advanced under this
Agreement, exceed the aggregate amount of the Total Loan Commitment.


 


8.2.3                     Acceleration.  Declare and make all or a portion of the sums
of accrued and outstanding principal and accrued but unpaid interest remaining
under this Agreement, together with all unpaid fees, costs (including
Eurodollar Breakage Costs) and charges due under 


 


85

















 


any Credit Document, immediately due and payable and
require Borrower immediately, without presentment, demand, protest or other
notice of any kind, all of which Borrower hereby expressly waives, to pay
Administrative Agent or the Secured Parties an amount in immediately available
funds equal to the aggregate amount of any outstanding Obligations; provided,
that, in the event of an Event of Default occurring under Section 8.1.2
with respect to Borrower, all such amounts shall become immediately due and
payable without further act of any Secured Party.


 


8.2.4                     Cash
Collateral.  Apply or execute
upon any amounts on deposit in any Account or any Proceeds, cash collateral,
proceeds of foreclosing or otherwise realizing upon Collateral, or any other
moneys of Borrower on deposit with any Secured Party in the manner provided in
the UCC and other relevant statutes and decisions and interpretations
thereunder with respect to cash collateral. 
Without limiting the foregoing, each of Administrative Agent and
Collateral Agent shall have all rights and powers with respect to Proceeds,
cash collateral, the Accounts and the contents of the Accounts as it has with
respect to any other Collateral and may apply, or cause the application of,
such amounts to the payment of interest, principal, fees, costs, charges or
other amounts due or payable to any Secured Party with respect to the Loans in
such order as the Required Lenders may elect in their sole discretion.


 


8.2.5                     Possession
of Project.  Enter into
possession of the Project and perform any and all work and labor necessary to
complete the Project substantially according to the Plans and Specifications or
to operate and maintain the Project, and all sums expended by Administrative
Agent, Collateral Agent or Depositary in so doing, together with interest on
such total amount at the Default Rate, shall be repaid by Borrower to
Administrative Agent, Collateral Agent or Depositary, as the case may be, upon
demand and shall be secured by the Credit Documents, notwithstanding that such
expenditures may, together with amounts advanced under this Agreement, exceed the
aggregate amount of the Total Loan Commitment.


 


8.2.6                     Remedies
Under Credit Documents. 
Exercise, and direct Administrative Agent Depositary or Collateral Agent
(as the case may be) to exercise, any and all rights and remedies available to
it under any of the Credit Documents, including judicial or non-judicial
foreclosure or public or private sale of any of the Collateral pursuant to the
Collateral Documents.


 


ARTICLE 9

SCPPA AND PPA PROVISIONS


 


9.1                               SCPPA
CURE RIGHTS. 
Notwithstanding anything to the contrary in this Agreement or any other
Credit Document, upon Administrative Agent learning of an Event of Default,
Administrative Agent and Collateral Agent shall provide written notice to SCPPA
of such Event of Default.  Prior to any
Secured Party exercising any remedies with respect to such Event of Default,
SCPPA shall have the right, but not the obligation, to cure such Event of
Default so long as such cure is completed within the SCPPA Cure Period and as
provided in this Article 9.  Any
such cure by SCPPA shall be treated as if Borrower had cured the applicable
default within the cure period afforded Borrower for such Event of Default
under this Agreement.


 


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9.2                               SCPPA
CURE LOANS.


 


9.2.1                     Borrowing
of SCPPA Cure Loans.  In the
event that the cure of an Event of Default as set forth in Section 9.1
would reduce the purchase price of the Project under the PPA pursuant to Section 15.21
thereof, then Borrower shall be deemed to have requested the Borrowing of Loans
in the amount of such reduction on the date of such cure (each a “SCPPA Cure
Loan”) and Lenders shall make such SCPPA Cure Loan at any time on or after
the date of such cure notwithstanding any failure to meet the conditions in Section 3.2.  The proceeds of such SCPPA Cure Loans shall
be deposited in the SCPPA Cure Reserve Account.


 


9.2.2                     SCPPA
Holdback. 
Notwithstanding anything to the contrary in this Agreement and the other
Credit Documents, there shall be a reserve against the borrowing of Loans (other
than SCPPA Cure Loans) in the amount of (a) the Maximum SCPPA Cure Amount less (b) the aggregate amount of SCPPA Cure Loans
outstanding.


 


9.3                               POWER
OF ATTORNEY.  Borrower
hereby grants to each of Administrative Agent and Collateral Agent a power of
attorney to send any and all notices under the PPA, and take any actions under
the PPA, in its name and on its behalf; and such power of attorney shall be
deemed coupled with an interest. 
Notwithstanding anything to the contrary contained herein, such power of
attorney shall terminate upon the termination of this Agreement.


 


9.4                               SCPPA
AS THIRD PARTY BENEFICIARY.  Notwithstanding anything to the contrary in
this Agreement or any other Credit Document, SCPPA is an express third party
beneficiary of the provisions of Section 9.1 and definitions related
thereto and shall be entitled to exercise and enforce its rights thereunder,
and such section and related definitions may not be amended or modified without
SCPPA’s written consent.


 


9.5                               ASSIGNMENT
OF THE LOANS TO SCPPA. 
Notwithstanding anything to the contrary in this Agreement or any other
Credit Document (other than the SCPPA Consent), if the conditions in Section 1.3(c) of
the SCPPA Consent have been met, each Lender agrees to assign to SCPPA all of
such Lender’s rights, title, interests and obligations under this Agreement
(including the Loans and Loan Commitments) and the other Credit Documents as
set forth in Section 1.3(c) of the SCPPA Consent.  Borrower’s consent to such assignment shall
not be required and the fee set forth in Section 13.17.2(d) shall not
be charged.  Upon the consummation of
such sale, the Administrative Agent, Collateral Agent, each Co-Syndication
Agent, each Joint Lead Arranger and each Joint Bookrunner shall each be deemed
to have resigned in their respective capacities, and SCPPA shall, without any
further action, be entitled to exercise the Lenders’ rights and assume the
Lenders’ obligations under this Agreement and the other Credit Documents and
shall become Administrative Agent and Collateral Agent hereunder and under the
other Credit Documents.  Borrower agrees
to enter into any documents reasonably requested by SCPPA to evidence such
resignation and such agency appointments, as well as such rights and
obligations assigned to SCPPA.


 


ARTICLE 10

SCOPE OF LIABILITY


 


Except
as set forth in this Article 10, notwithstanding anything in any Credit
Document to the contrary (excluding Section 8.22 of the Pledge Agreement),
the Secured Parties shall have no recourse or claims with respect to the
transactions contemplated by the Operative 


 


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Documents
against Pledgor, Sponsor or any of their respective Affiliates (other than
Borrower), shareholders, officers, directors or employees (collectively, the “Nonrecourse
Persons”) and the Secured Parties’ recourse against Borrower and the
Nonrecourse Persons shall be limited to the Collateral, the Project, all
Project Revenues, all Loan proceeds, Insurance Proceeds, Eminent Domain
Proceeds, and all income or revenues of the foregoing as and to the extent
provided herein and in the Collateral Documents (which, for the avoidance of
doubt, excludes the payments allowed to any Nonrecourse Person pursuant to the
terms of any Credit Document, including pursuant to Section 5.1.1(b) of
this Agreement); provided, that the foregoing provision of this
Article 10 shall not in any way (a) constitute a waiver, release or
discharge of any of the indebtedness, or of any of the terms, covenants,
conditions, or provisions of any Credit Document (and the same shall continue,
but without liability to the Nonrecourse Persons, until fully paid, discharged,
observed, or performed) or otherwise
relieve any such Person from its obligations under the Credit Documents to
which it is a party or shall preclude, restrict, reduce, limit or otherwise
affect the rights, powers and remedies of the Secured Parties to enforce (or
cause to be enforced) such obligations against such Person or such Person’s
properties to the extent permitted by any Credit Document;
(b) limit, reduce, restrict or otherwise affect the right of any Secured
Party (or any assignee, beneficiary or successor to any of them) to name
Borrower or any other Person as a defendant in any action or suit for a
judicial foreclosure or for the exercise of any other remedy under or with
respect to any Credit Document, or for injunction or specific performance, so
long as no judgment in the nature of a deficiency judgment shall be enforced
against any Nonrecourse Person, except as set forth in this Article 10;
(c) limit, reduce, restrict or otherwise affect any right or remedy of any
Secured Party (or any assignee or beneficiary thereof or successor thereto)
with respect to, and each of the Nonrecourse Persons shall remain fully liable
to the extent that it would otherwise be liable for its own actions with
respect to, any fraud, willful misrepresentation, or misappropriation of
Project Revenues, Loan proceeds, Insurance Proceeds, Eminent Domain
Proceeds or any other earnings, revenues, rents, issues, profits or proceeds
from or of the Collateral, that should or would have been paid as provided
herein or paid or delivered to any Secured Party (or any assignee or
beneficiary thereof or successor thereto) towards any payment required under
any other Credit Document; (d) affect or diminish or constitute a waiver,
release or discharge of any specific written obligation, covenant,
representation or agreement in respect of the transactions contemplated by the
Operative Documents made by any of the Nonrecourse Persons or any security
granted by the Nonrecourse Persons in support of the obligations of such
Persons under any Collateral Document (or as security for the obligations of
Borrower), including Pledgor’s obligations, covenants, representations and
agreements under the Pledge Agreement; and (e) limit the liability of any
Person who is a party to any Project Document or has issued any certificate or
other statement in connection therewith with respect to such liability as may
arise solely by reason of the terms and conditions of such Project Document
(but subject to any limitation of liability in such Project Document),
certificate or statement relating solely to such liability of such Person as
may arise under such referenced agreement or instrument.  The limitations on recourse set forth in this
Article 10 shall survive the termination of this Agreement, the
termination of all Commitments and the payment and performance in full of the
Obligations.


 


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ARTICLE 11

AGENTS; SUBSTITUTION


 


11.1                        APPOINTMENT
AND AUTHORITY


 


11.1.1              Each of the
Secured Parties hereby irrevocably appoints The Royal Bank of Scotland plc to
act on its behalf as Administrative Agent hereunder and under the other Credit
Documents and hereby irrevocably appoints The Royal Bank of Scotland plc to act
on its behalf as Collateral Agent hereunder and under the other Credit
Documents for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Credit Parties to secure any of the
Obligations and authorizes Administrative Agent and Collateral Agent to take
such actions on its behalf and to exercise such powers as are delegated to
Administrative Agent or Collateral Agent, as the case may be, by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.


 


11.1.2              Each of
Administrative Agent and Collateral Agent is hereby authorized by the Secured
Parties to execute, deliver and perform each of the Credit Documents to which
Administrative Agent or Collateral Agent (as the case may be) is or is intended
to be a party, and each Lender agrees to be bound by all of the agreements of
Administrative Agent and Collateral Agent contained in the Credit Documents.  Each of Administrative Agent and Collateral
Agent is further authorized by the Secured Parties to enter into agreements
supplemental hereto for the purpose of curing any formal defect, inconsistency,
omission or ambiguity in any Credit Document to which it is a party.


 


11.1.3              Each of the
Secured Parties hereby irrevocably appoints RBS Securities Inc. to act on its
behalf as Lead Arranger and Bookrunner hereunder and under the other Credit
Documents by the terms hereof or thereof, together with such actions and powers
as are reasonably incidental thereto.


 


11.1.4              The provisions
of this Article are solely for the benefit of the Secured Parties, and Borrower shall not have rights as a
third party beneficiary of any of such provisions.


 


11.2                        RIGHTS
AS A LENDER.  The Persons
serving as Administrative Agent and Collateral Agent shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not Administrative Agent or Collateral Agent and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as
Administrative Agent hereunder in its individual capacity.  Such Persons and their respective Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
Borrower or any Affiliate thereof as if such Person were not Administrative
Agent or Collateral Agent and without any duty to account therefor to the
Lenders.


 


11.3                        EXCULPATORY
PROVISIONS


 


11.3.1              Administrative
Agent and Collateral Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Credit Documents.  Without limiting the generality of the
foregoing, Administrative Agent and Collateral Agent:


 


(a)                                 shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default or Event of Default has occurred and is continuing;


 


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(b)                                 shall not 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 Credit Documents that Administrative Agent or Collateral Agent is
required to exercise as directed by the Required Lenders (or such other number
or percentage of the Lenders as shall be expressly provided for); provided,
that Administrative Agent and Collateral Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose
Administrative Agent or Collateral Agent to liability or that is contrary to
any Credit Document or applicable law; and


 


(c)                                  shall not,
except as expressly set forth herein and in the other Credit Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Borrower or any of its Affiliates that is communicated
to or obtained by the Person serving as Administrative Agent, Collateral Agent
or any of their respective Affiliates in any capacity.


 


11.3.2              Administrative
Agent and Collateral Agent shall not be liable for any action taken or not
taken by it (a) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
Administrative Agent or Collateral Agent, as the case may be, shall believe in
good faith shall be necessary, under the circumstances) or (b) in the
absence of its own gross negligence or willful misconduct as determined by the
non-appealable judgment of a court of competent jurisdiction.  Administrative Agent and Collateral Agent
shall be deemed not to have knowledge of any Default, Event of Default or Material
Adverse Effect unless and until notice describing such is given to
Administrative Agent or Collateral Agent, as the case may be, by Borrower or a
Lender.


 


11.3.3              Administrative
Agent and Collateral Agent shall not be responsible for or have any duty to
ascertain or inquire into (a) any statement, warranty or representation
made in or in connection with any Credit Document, (b) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (c) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default or Event of Default, (d) the
validity, enforceability, effectiveness or genuineness of any Credit Document
or any other agreement, instrument or document, or the creation, perfection or
priority of any Lien purported to be created by the Collateral Documents,
(e) the value or the sufficiency of any Collateral, or (f) the
satisfaction of any condition set forth in Article 3 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
Administrative Agent or Collateral Agent, as the case may be.


 


11.4                        RELIANCE.  Administrative Agent and Collateral 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 (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person.  Administrative Agent and Collateral Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon.  In determining
compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Lender, Administrative Agent and
Collateral 


 


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Agent may presume that such condition is
satisfactory to such Lender unless Administrative Agent or Collateral Agent, as
the case may be, shall have received notice to the contrary from such Lender
prior to the making of such Loan. 
Administrative Agent may consult with legal counsel (who may be counsel
for Borrower), 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.


 


11.5                        DELEGATION
OF DUTIES. 
Administrative Agent and Collateral Agent may perform any and all of
their respective duties and exercise their respective rights and powers under
the Credit Documents by or through Collateral Agent or Administrative Agent,
respectively, or any one or more sub-agents appointed by them, with or without
a written agency appointment. 
Administrative Agent and Collateral Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates.  The
exculpatory and indemnification provisions of this Agreement shall apply to any
such sub-agent and to the Affiliates of Administrative Agent and Collateral
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facility provided for herein as
well as activities as Administrative Agent and Collateral Agent.


 


11.6                        RESIGNATION.  Either Administrative Agent or Collateral Agent
may at any time give notice of its resignation to the Secured Parties and
Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with Borrower so long as no Event of Default has occurred and is
continuing, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent or
Collateral Agent gives notice of its resignation, then the retiring
Administrative Agent or Collateral Agent, as the case may be, may on behalf of
the Secured Parties, appoint a successor Administrative Agent or Collateral
Agent, as the case may be, meeting the qualifications set forth above; provided,
that if Administrative Agent or Collateral Agent shall notify Borrower and the
Secured Parties that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Administrative Agent or Collateral Agent, as
the case may be, shall be discharged from its duties and obligations under the
Credit Documents (except that in the
case of any collateral security held by Collateral Agent, the retiring
Collateral Agent shall continue to hold such collateral security until such
time as a successor Collateral Agent is appointed) and (b) all
payments, communications and determinations provided to be made by, to or
through Administrative Agent or Collateral Agent, as the case may be, shall
instead be made by or to each Lender directly, until such time as the Required
Lenders appoint a successor Administrative Agent or Collateral Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent or
Collateral Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent or Collateral Agent, and the retiring
Administrative Agent or Collateral Agent shall be discharged from all of its
duties and obligations hereunder or under the other Credit Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by Borrower to a successor
Administrative Agent or Collateral Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower 


 


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and such successor. 
After the retiring Administrative Agent’s or Collateral Agent’s
resignation under the Credit Documents, the provisions of the exculpatory and
indemnification provisions of this Agreement shall continue in effect for the
benefit of such retiring Administrative Agent or Collateral Agent, its
sub-agents and their respective Affiliates in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent or
Collateral Agent was acting as such.


 


11.7                        NON-RELIANCE.  Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, Collateral
Agent, Lead Arranger or Lender or any of their Affiliates and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon Administrative Agent, Collateral Agent,
Lead Arranger or any Lender or any of their Affiliates and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon any Credit Document or any related agreement or any document
furnished hereunder or thereunder.


 


11.8                        ADMINISTRATIVE
AGENT MAY FILE PROOFS OF CLAIM


 


11.8.1              In case of the
pendency of any proceeding under any Bankruptcy Law or any other judicial
proceeding relative to any Credit Party, Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether
Administrative Agent shall have made any demand on Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise:


 


(a)                                 to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to
have the claims of the Secured Parties (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Secured Parties and
their respective agents and counsel and all other amounts due the Secured
Parties hereunder) allowed in such judicial proceeding; and


 


(b)                                 to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Secured Party to make such payments to Administrative Agent and, if
Administrative Agent shall consent to the making of such payments directly to
the Secured Parties, to pay to Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of Administrative
Agent and its agents and counsel, and any other amounts due Administrative
Agent hereunder.


 


11.8.2              Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Secured Party any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of


 


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any Secured Party to authorize Administrative
Agent to vote in respect of the claim of any Secured Party or in any such
proceeding.


 


11.9                        COLLATERAL
MATTERS.  The Secured
Parties irrevocably authorize Collateral Agent, at its option and in its
discretion, to release any Lien on any property granted to or held by
Collateral Agent under any Collateral Document (a) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations), (b) that is sold or to be sold as part of or
in connection with any sale permitted hereunder or under any Credit Document,
or (c) if approved, authorized or ratified in accordance herewith.  In addition, the Secured Parties irrevocably
authorize Collateral Agent to release any Lien upon the proceeds of the Grant
if the Tax Equity Contribution Conditions have been satisfied.


 


11.10                 OTHER
HOLDERS OF TITLES.  None of the
Lead Arranger, the Bookrunner, the Joint Lead Arrangers, the Joint Bookrunners
and the Co-Syndication Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement.  Without limiting the foregoing, none of the
Lead Arranger, Bookrunner, Joint Lead Arrangers, the Joint Bookrunners and the
Co-Syndication Agents shall have or be deemed to have a fiduciary relationship
with any Secured Party.  Each Secured
Party hereby makes the same acknowledgments with respect to the Lead Arranger
and the Bookrunner as it makes with respect to Administrative Agent or
Collateral Agent in this Article 11. 
Notwithstanding the foregoing, the parties hereto acknowledge that the
Lead Arranger, Bookrunner, Joint Lead Arrangers, the Joint Bookrunners and the
Co-Syndication Agents hold such titles in name only, and that such titles
confer no additional rights or obligations relative to those conferred on any
Secured Party hereunder.


 


11.11                 INDEMNIFICATION.  Without limiting the Obligations of Borrower,
each Lender agrees to indemnify the Lead Arranger, Joint Lead Arrangers,
Collateral Agent and Administrative Agent and their respective officers,
directors, shareholders, controlling Persons, employees, agents and servants,
ratably in accordance with their Proportionate Shares for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against Administrative
Agent, the Lead Arranger, Joint Lead Arrangers, Collateral Agent or such Person
in any way relating to or arising out of this Agreement or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
thereof or of any such other documents in respect of actions taken by such
Persons in their respective capacities as Lead Arranger, Joint Lead Arrangers,
Collateral Agent and Administrative Agent or officers, directors, shareholders,
controlling Persons, employees, agents and servants thereof (to the extent
Borrower has not paid any such amounts pursuant to Section 5.10); provided,
however, that no Lender shall be liable for any of the foregoing to the
extent they arise from Administrative Agent’s, the Lead Arranger’s, such Joint
Lead Arranger’s, Collateral Agent’s or any such Person’s gross negligence or
willful misconduct as proven by the non-appealable judgment of a court of
competent jurisdiction.  Administrative
Agent or any such Person shall be fully justified in refusing to take or to
continue to take any action under any Credit Document unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such 


 


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action.  Without limitation of the foregoing, each
Lender agrees to reimburse Administrative Agent, the Lead Arranger, Joint Lead
Arrangers, Collateral Agent or any such Person promptly upon demand for its
Proportionate Share of any out-of-pocket expenses (including counsel fees)
incurred by Administrative Agent, the Lead Arranger, Joint Lead Arrangers,
Collateral Agent or any such Person in connection with the preparation,
execution, administration or enforcement of, or legal advice in respect of
rights or responsibilities under, the Operative Documents, to the extent that
Administrative Agent, the Lead Arranger, Joint Lead Arrangers, Collateral Agent
or any such Person is not reimbursed for such expenses by Borrower.  The agreements in this Section shall survive
the satisfaction or discharge of Borrower’s Obligations under the Credit
Documents.


 


11.12                 WITHHOLDING
TAX.  If the forms or other
documentation required by Section 2.4.6 are not delivered to
Administrative Agent, then Administrative Agent may withhold from any interest
payment to any Lender not providing such forms or other documentation, an
amount equivalent to the applicable withholding tax.


 


11.12.1                                     If the Internal
Revenue Service or any authority of the United States or other jurisdiction
asserts a claim that Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to
notify Administrative Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason other than the gross negligence or willful misconduct of Administrative
Agent), then such Lender shall indemnify Administrative Agent fully for all
amounts paid, directly or indirectly, by Administrative Agent as tax or
otherwise, including penalties and interest, together with all reasonable
expenses incurred, including reasonable legal expenses, allocated reasonable
staff costs, and any reasonable out of pocket expenses.  Borrower shall not be responsible for any
amounts paid or required to be paid by a Lender under this
Section 11.12.1.


 


11.12.2                               If any Lender
sells, assigns, grants participation in, or otherwise transfers its rights
under this Agreement, the purchaser, assignee, participant or transferee, as
applicable, shall comply and be bound by the terms of Section 2.4.6 and
this Section 11.12 as though it were such Lender.


 


11.13                 GENERAL
PROVISIONS AS TO PAYMENTS.  Administrative Agent shall promptly
distribute to each Lender its pro rata share
of each payment of principal and interest payable to the Lenders on the Loans
and of fees hereunder received by Administrative Agent for the account of the
Lenders and of any other amounts owing under the Loans.  The payments made for the account of each
Lender shall be made, and distributed to it, at its Lending Office for the
account of (a) its domestic lending office in the case of payments of principal
of, and interest on, its Base Rate Loans, (b) its domestic or foreign lending
office, as each Lender may designate in writing to Administrative Agent, in the
case of Eurodollar Loans, and (c) its domestic lending office, or such other lending
office as it may designate for the purpose from time to time, in the case of
payments of fees and other amounts payable hereunder.  Lenders shall have the right to alter their
Lending Offices upon five Business Days prior notice to Administrative Agent
and Borrower.


 


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11.14                 SUBSTITUTION
OF LENDER.  Should any
Lender fail to make a Loan (a “Non-Advancing Lender”), Administrative
Agent shall (a) in its sole discretion fund the Loan on behalf of the Non-Advancing
Lender or (b) if requested by Borrower, cooperate and consult with
Borrower or any other Lender to find another Person that shall be acceptable to
Administrative Agent and that shall be willing to assume the Non-Advancing
Lender’s obligations under this Agreement (including the obligation to make the
Loan which the Non-Advancing Lender failed to make but without assuming any
liability for damages for failing to have made such Loan or any previously
required Loan).  Subject to the
provisions of the next following sentence, such Person shall be substituted for
the Non-Advancing Lender hereunder upon execution and delivery to
Administrative Agent of an agreement acceptable to Administrative Agent by such
Person assuming the Non-Advancing Lender’s obligations (including its Loan
Commitments) under this Agreement, and all interest and fees which would
otherwise have been payable to the Non-Advancing Lender shall thereafter be
payable to such Person.  Nothing in (and
no action taken pursuant to) this Section 11.14 shall relieve the
Non-Advancing Lender from any liability it might have to Borrower or to the
other Lenders as a result of its failure to make any Loan.


 


11.15                 JOINDER
BY SECURED PARTIES.  Each Secured
Party which is not an Agent or Lender shall, by execution of a Credit Agreement
Joinder in the form of Exhibit N, agree to the terms of, benefit
from, and be bound by, Article 7, Article 11, Sections 2.5.2,
13.1 and 13.20, the defined terms referred to in such Article and Sections, and
such other provisions of the Credit Documents that bind and benefit the Secured
Parties.


 


11.16                 DELIVERY
OF COPIES TO LENDERS.  If
requested, Administrative Agent shall promptly deliver or make available to
each Lender copies of any financial statements, notices, reports, plans,
budgets or other documents received by Administrative Agent from or on behalf
of Borrower pursuant to Section 5.4 (Notices),
Section 5.5 (Financial Reports),
Section 5.8 (Reports), Section 5.13 (Completion; Commercial Operation) and Section 5.14 (Operation and Maintenance of Project; Operating Budget), as
applicable, and such other documents and other information available to
Administrative Agent as may be reasonably requested by any Secured Party.


 


ARTICLE 12

INDEPENDENT CONSULTANTS


 


12.1                        REMOVAL
AND FEES. 
Administrative Agent, in consultation with the Required Lenders, may
remove from time to time, any one or more of the Independent Consultants and,
after consulting with Borrower as to an appropriate Person, appoint
replacements as Administrative Agent, in consultation with the Required
Lenders, may choose.  Notice of any
replacement Independent Consultant shall be given by Administrative Agent to
Borrower, the Lenders and to the Independent Consultant being replaced.  All reasonable fees and expenses of the
Independent Consultants (whether the original ones or replacements) shall be
paid by Borrower pursuant to agreements reasonably acceptable to Borrower; provided,
that no such acceptance shall be required at any time an Event of Default shall
have occurred and be continuing.


 


12.2                        DUTIES.  Each Independent Consultant shall be
contractually obligated to (a) on or before the Closing Date, the Lead
Arranger and (b) thereafter, Administrative Agent to 


 


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carry out the activities
required of it in this Agreement and as otherwise requested by the Lead
Arranger or Administrative Agent (as the case may be) and shall be responsible
solely to the Lead Arranger or Administrative Agent (as the case may be).  Borrower acknowledges that it will not have
any cause of action or claim against any Independent Consultant resulting from
any decision made or not made, any action taken or not taken or any advice
given by such Independent Consultant in the due performance in good faith of
its duties to the Lead Arranger or Administrative Agent (as the case may be).


 


12.3                        INDEPENDENT
CONSULTANTS’ CERTIFICATES.


 


(a)                                  Until the
receipt by Administrative Agent of certificates satisfactory to Administrative
Agent from each Independent Consultant whom Administrative Agent considers
necessary or appropriate certifying Completion or Final Completion, Borrower
shall provide such documents and information to the Independent Consultants as
any of the Independent Consultants may reasonably consider necessary in order
for the Independent Consultants to deliver to Administrative Agent the
following certificates:


 


(i)                                     certificates of
the Insurance Consultant and Independent Engineer delivered on and dated as of
the Closing Date as described in Sections 3.1.9 and 3.1.11, respectively,
and containing the matters set out therein;


 


(ii)                                  after the
Closing Date, all certificates to be delivered thereafter pursuant to this
Agreement; and


 


(iii)                               in the case of
the Independent Engineer, monthly after the Closing Date, a report and status
of the progress of the Project to that date, a detailed assessment of Project
Costs to Final Completion and such other information and certification as
Administrative Agent may reasonably require from time to time.


 


(b)                                 Following
Completion, Borrower shall provide such documents and information to the
Independent Consultants as they may reasonably consider necessary in order for
the Independent Consultants to deliver annually to Administrative Agent a
certificate setting forth a full report on the status of the Project and such
other information and certification as Administrative Agent may reasonably
require from time to time.


 


12.4                        CERTIFICATION
OF DATES. 
Administrative Agent will request that the Independent Consultants act
diligently in the issuance of all certificates required to be delivered by the
Independent Consultants hereunder, if their issuance is appropriate.  Borrower shall provide the Independent
Consultants with reasonable notice of the expected occurrence of any such dates
or events.


 


ARTICLE 13

MISCELLANEOUS


 


13.1                        NOTICES;
SIGNATURES


 


13.1.1              Notice
Addresses.  Any
communications between the parties hereto or notices provided herein to be
given may be given to the following addresses:


 


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  If to Administrative Agent or Collateral Agent:

  	
   

  	
  The Royal Bank of Scotland plc

  600 Washington Boulevard

  Stamford, CT 06901

  Attn: Rana Khan

  Fax:  212 401-1494

  Phone: 203 897-4227

  Email: Agencyops@rbs.com

  
	
  With a copy to:

  	
   

  	
  The Royal Bank of Scotland plc

  600 Washington Boulevard

  Stamford, CT 06901

  Attn: Simon Mockford

  Fax: 203 873-3365

  Email: simon.mockford@rbs.com

  
	
  If to Borrower:

  	
   

  	
  Milford Wind Corridor Phase II, LLC

  179 Lincoln Street, Suite 500

  Boston, MA 02111

  Attn: General Counsel

  Fax:  617-960-2889

  Tel: 617-960-2888

  Email: 
  general.counsel@firstwind.com

  
	
  With a copy to:

  	
   

  	
  First Wind Energy, LLC

  179 Lincoln Street, Suite 500

  Boston, MA 02111

  Attn: General Counsel

  Fax:  617-960-2889

  



 


For the purposes hereof, the address of each party
hereto shall be (i) for Borrower and Administrative Agent, the address
specified in this Section and (ii) for each Lender, as set forth in its
Administrative Questionnaire; provided, that any party shall have the
right to change its address for notice hereunder to any other location within
the continental United States by giving of 30 days’ notice to the other
parties in the manner set forth above.


 


13.1.2              Means
of Transmittal.  Unless
otherwise specifically provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and shall be
considered as properly given (a) if delivered in person, (b) if sent
by overnight courier service (including Federal Express, UPS and other similar
overnight delivery services), (c) if mailed by first class United States
Mail, postage prepaid, registered or certified with return receipt requested,
(d) if sent by facsimile, with the original sent by other means set forth
in this Section 13.1.2, or (e) other electronic means complying with
Section 13.1.4.


 


13.1.3              Effectiveness
of Notices.  Notices
delivered in person or by overnight courier service, or mailed by registered or
certified mail, or sent by telecopier shall be deemed to have been given when
received (except that, if not received during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the
next business day for the recipient). 
Notices delivered through electronic communications to the extent
provided in Section 13.1.4, shall be effective as provided in said
section.


 


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13.1.4              Electronic
Communications.


 


(a)                                  Notices and
other communications hereunder may be delivered or furnished by electronic
communication (including email and Internet or intranet websites) pursuant to
procedures approved by Administrative Agent; provided, that the
foregoing shall not apply to notices pursuant to Article 2 if the party to
receive the notice has notified Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication.  The Secured Parties and Borrower may, in
their discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by them,
respectively; provided, that approval of such procedures may be limited
to particular notices or communications.


 


(b)                                 Unless
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an email address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return email or other
written acknowledgement); provided, that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its email address
as described in the foregoing clause (i) of notification that such notice
or communication is available and identifying the website address therefor.


 


13.2                        ADDITIONAL
SECURITY; RIGHT TO SET-OFF.


 


13.2.1              Any deposits (general or
special, time or demand, provisional or final, including indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including
trust accounts) or other sums at any time held or owing by any Secured Party or
any Affiliate thereof to or for the credit or the account of Borrower and any
Project Revenues, securities or other property of Borrower in the possession of
any Secured Party may at all times be treated as collateral security for the
payment of the Loans and all other obligations of Borrower to the Secured
Parties under the Credit Documents, and Borrower has pledged and granted to
Collateral Agent a security interest in and to all such deposits, sums,
securities or other property pursuant to the Collateral Documents.


 


13.2.2              In addition to any rights
and remedies (including other rights of set-off) now or hereafter granted to
the Secured Parties under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuation of any Event of
Default and with the prior consent of Collateral Agent, subject to
Section 2.5.2, regardless of the adequacy of any other collateral, each
Secured Party (only with the prior consent of the Administrative Agent) is
hereby authorized by Borrower at any time or from time to time, without notice
to Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits and
sums referred to in the previous paragraph against and on account of the
Obligations to such Secured Party or to any other Secured Party, including all
claims of any nature or description arising out of or connected with any Credit
Document, irrespective of whether or not (a) such Secured Party shall have
made any demand hereunder or (b) the principal of or the interest on the
Loans or any other amounts due hereunder 


 


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shall have become due and payable and
although said obligations and liabilities, or any of them, may be contingent or
unmatured.  Each Secured Party agrees to
notify Borrower promptly after any such set-off and application; provided,
that the failure to give such notice shall not affect the validity of such
set-off or application or the rights of such Secured Party under this
Section.  The rights of each Secured
Party under this Section are in addition to other rights and remedies
(including other rights of set-off) which such Secured Party may have.


 


13.3                        DELAY
AND WAIVER.


 


13.3.1              No delay, failure or
omission to exercise, and no course of dealing with respect to, any right,
power, privilege or remedy accruing to the Secured Parties upon the occurrence
of any Default, Event of Default, Material Adverse Effect or any breach or
default of any Credit Party or unsatisfied condition precedent under any Credit
Document shall impair any such right, power, privilege or remedy of the Secured
Parties, nor shall it be construed to be a waiver of any such breach or default
or unsatisfied condition precedent, or an acquiescence therein, or of any
similar breach or default or unsatisfied condition precedent thereafter
occurring; nor shall any single or partial exercise of any such right, power or
remedy, or any abandonment or discontinuance of steps to enforce such a right,
power or remedy, preclude any other or further exercise thereof or the exercise
of any other right or power.


 


13.3.2              Upon effectiveness of any
waiver of a Default or Event of Default, the parties shall be restored to their
former position and rights under the Credit Documents, and such Default or
Event of Default shall be deemed to be cured and not continuing; provided,
however, that any waiver of any single Default, Event of Default,
Material Adverse Effect or other breach or default or unsatisfied condition
precedent shall not be deemed a waiver of any other Default, Event of Default,
Material Adverse Effect or other breach or default or unsatisfied condition
precedent theretofore or thereafter occurring. 
Any waiver, permit, consent or approval of any kind or character on the
part of any Secured Party of any Default, Event of Default, Material Adverse
Effect or other breach or default or unsatisfied condition precedent under any
Credit Document, or any waiver on the part of any Secured Party of any
provision or condition of any Credit Document, must be in writing in accordance
with Section 13.1.2 and shall be effective only to the extent in such writing
specifically set forth and only in the specific instance and for the purpose
for which given.  All remedies, either
under any Credit Document or by law or otherwise afforded to the Secured
Parties, shall be cumulative and not alternative.


 


13.3.3              Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default, regardless of whether Administrative
Agent or any Lender may have had notice or knowledge of such Default or Event
of Default at the time.


 


13.4                        COSTS,
EXPENSES AND ATTORNEYS’ FEES.  Whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to promptly pay or reimburse each
of the Secured Parties, as applicable, promptly upon demand:


 


(a)                                  for (i) all
of actual/out-of-pocket and other reasonable costs and expenses in connection
with the preparation, negotiation and execution of this Agreement and the
documents contemplated hereby, any consents, amendments, waivers or other
modifications 


 


99

















 


hereof or thereof, and consummation and
administration of the transactions contemplated hereby or thereby, including
all reasonable fees, charges, expenses and disbursements of Latham &
Watkins LLP as counsel to Administrative Agent, together with other legal
counsel retained by Administrative Agent in the Project Jurisdiction, provided,
that Borrower shall not be required to pay the fees of the other Lenders’
attorneys; (ii) all costs and expenses of furnishing all opinions by
counsel for Borrower (including any opinions requested by Administrative Agent
or the Lenders as to any legal matters arising hereunder) and of Borrower’s
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under the Credit Documents including with respect
to confirming compliance with environmental, insurance and solvency
requirements; (iii) all costs and expenses incurred in connection with any
filing, recording, registration or perfection of any security interest
contemplated by any Collateral Document or any other document referred to
therein of creating, including filing and recording fees, expenses and taxes,
stamp or documentary taxes, search fees, title insurance premiums, and reasonable
fees, expenses and disbursements of counsel to Collateral Agent and of counsel
providing any opinions that Collateral Agent or the Lenders may request in
respect of the Collateral Documents or the Liens created pursuant thereto in
accordance with this Agreement or the Collateral Documents; (iv) all costs
and expenses (including the reasonable fees, expenses and disbursements of any
Advisors (as defined below) employed or retained by Administrative Agent or its
counsel) of obtaining and reviewing any appraisals provided for under this
Agreement and any environmental audits or reports provided for under this
Agreement; (v) all other reasonable costs and expenses incurred in
connection with the syndication of the Loan Commitments, the Loans or this
Agreement; and (vi) all reasonable costs and expenses, including
reasonable attorneys’ fees and fees, costs and expenses of Advisors, incurred
by Administrative Agent and its counsel relating to efforts to evaluate or
assess any Credit Party, its business or financial condition and protect,
evaluate, assess or dispose of any of the Collateral; and


 


(b)                                 for
(i) all costs and expenses incurred by Administrative Agent or Collateral
Agent, including the fees, charges and disbursements of Advisors, in connection
with any action, suit or other proceeding affecting the Collateral or any part
thereof, in which action, suit or proceeding Administrative Agent or Collateral
Agent is made a party or participates or in which the right to use the
Collateral or any part thereof is threatened, or in which it becomes necessary
in the judgment of Administrative Agent or Collateral Agent to defend or uphold
the Liens granted by the Collateral Documents (including any action, suit or
proceeding to establish or uphold the compliance of the Collateral with any
Legal Requirements); (ii) all costs and expenses incurred by the Lead
Arranger, Administrative Agent, Collateral Agent, or any Lender, including the
fees, charges and disbursements of Advisors and costs of settlement, incurred
in connection with the enforcement or protection of its rights under the Credit
Documents or the Obligations in connection with a Default or Event of Default,
in actions for declaratory relief in any way related to the Credit Documents or
in collecting any sum which becomes due under the Credit Documents (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral); and (iii) all costs and expenses incurred by the Lead
Arranger, Administrative Agent, Collateral Agent, or any Lender, including
fees, charges and disbursements of Advisors, in connection with any refinancing
or restructuring of the credit arrangements provided under this Agreement in
the nature of a “work-out” (whether or not consummated) or related negotiations
pursuant to any insolvency or bankruptcy proceedings, or otherwise relating to
the occurrence of any Default or Event of Default.


 


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For purposes of this Section, “Advisors” shall mean
legal counsel (including local counsel), auditors, accountants, consultants,
appraisers, experts or other advisors.


 


13.5                        ENTIRE
AGREEMENT.  This
Agreement and any agreement, document or instrument attached hereto or
expressly referred to herein integrate all the terms and conditions mentioned
herein or incidental hereto and supersede all oral negotiations and prior
writings in respect to the subject matter hereof.  In the event of any conflict between the
terms, conditions and provisions of this Agreement and any such agreement,
document or instrument, the terms, conditions and provisions of this Agreement
shall prevail.


 


13.6                        GOVERNING
LAW.  THE CREDIT
DOCUMENTS (UNLESS OTHERWISE EXPRESSLY PROVIDED FOR THEREIN), AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAW
OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT
WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


13.7                        SEVERABILITY.  Any provision of this Agreement that is
invalid, illegal, prohibited or unenforceable in any respect in any
jurisdiction, shall as to such jurisdiction be ineffective to the extent of
such invalidity, illegality, prohibition or unenforceability without affecting,
invalidating or impairing the validity, legality and enforceability of the
remaining provisions hereof; and any such invalidity, illegality, prohibition
or unenforceability in any jurisdiction shall not affect, invalidate or impair
such provision in any other jurisdiction.


 


13.8                        HEADINGS.  Article, Section and Paragraph headings have
been inserted in this Agreement as a matter of convenience for reference only
and it is agreed that such headings are not a part of this Agreement and shall
not be used in the interpretation of any provision of this Agreement or be
given any substantive effect.


 


13.9                        ACCOUNTING
TERMS.  All accounting terms not
specifically defined herein shall be construed in accordance with GAAP and
practices consistent with those applied in the preparation of the financial
statements submitted by Borrower to Administrative Agent, and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles and practices.


 


13.10                 ADDITIONAL
FINANCING, ETC.  The parties
hereto acknowledge that as of the Closing Date the Lenders have made no
agreement or commitment to provide any financing except as set forth
herein.  The obligations of the Lenders
hereunder are several and no Lender shall be responsible for the obligations or
Loan Commitments of any other Lender hereunder. 
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.


 


101

















 


13.11                 NO
PARTNERSHIP, ETC.  The Secured
Parties and Borrower intend that the relationship between them shall be solely
that of creditor and debtor.  Nothing
contained in any of the Credit Documents, and no action taken by the Lenders
pursuant hereto or thereto, shall be deemed or construed to create a
partnership, an association, tenancy-in-common, joint tenancy, joint venture or
co-ownership by or between the Secured Parties and Borrower or any other
Person.  No Secured Party shall be in any
way responsible or liable for the debts, losses, obligations or duties of
Borrower or any other Person with respect to the Project or otherwise.  All obligations to pay real property or other
taxes, assessments, insurance premiums, and all other fees and charges arising
from the ownership, operation or occupancy of the Project (if any) and to
perform all obligations and other agreements and contracts relating to the
Project shall be the sole responsibility of Borrower.


 


13.12                 TRUST
DEED/COLLATERAL DOCUMENTS.  The Obligations are secured in part by the
Trust Deed encumbering certain properties in Beaver and Millard Counties,
Utah.  Reference is hereby made to the
Trust Deed and the other Collateral Documents for the provisions, among others,
relating to the nature and extent of the security provided thereunder, the
rights, duties and obligations of Borrower and the rights of the Secured
Parties with respect to such security.


 


13.13                 LIMITATION
ON LIABILITY.  No claim shall
be made by any party or any of their respective Affiliates, directors,
employees, attorneys or agents for any loss of profits, business or anticipated
savings, special or punitive damages or any indirect or consequential loss
whatsoever in respect of any breach or wrongful conduct (whether or not the
claim therefor is based on contract, tort or duty imposed by law), in
connection with, arising out of or in any way related to the transactions
contemplated by this Agreement or the other Operative Documents or any act or
omission or event occurring in connection therewith, and each party hereby
waives, releases and agrees not to sue upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.  No party or any of their
respective Affiliates, directors, employees, attorneys or agents shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic
or other information transmission systems in connection with the Credit
Documents or the transactions contemplated thereby, except such damages that
result from the gross negligence or willful misconduct of such person as
determined by the non-appealable judgment of a court of competent jurisdiction.


 


13.14                 WAIVER
OF JURY TRIAL.  EACH OF THE SECURED PARTIES AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW,  ANY RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF SUCH SECURED
PARTIES, BORROWER, OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.  THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.


 


102














 


The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. 
Each party hereto acknowledges that (i) this waiver is a material
inducement to enter into a business relationship, (ii) it has already
relied on this waiver in entering into this Agreement, and (iii) it will
continue to rely on this waiver in their related future dealings.  Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel.  In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.  THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO
THIS SECTION 13.14 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.


 


13.15                 CONSENT
TO JURISDICTION.  Each Secured
Party and Borrower, for itself and in connection with its properties, hereby
irrevocably and unconditionally, to the fullest extent it may legally and
effectively do so:


 


(a)                                  agrees that (i) any
legal action or proceeding by or against Borrower or with respect to or arising
out of any Credit Document, or for recognition or enforcement of any related
judgment, may be brought in or removed to the courts of the State of New York,
in and for the County of New York, or of the United States of America for the
Southern District of New York, in any appellate court from any thereof, and
(ii) a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.  By
execution and delivery of this Agreement, the parties hereto accept, for
themselves and in respect of their property, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts.  Nothing herein shall affect the right of
Administrative Agent to bring any legal action or proceeding against Borrower
with respect to or arising out of any Credit Document, with respect to judicial
or non-judicial foreclosure of the Trust Deed, in the State of Utah.  The parties further agree that the aforesaid
courts of the State of New York and of the United States of America shall have
exclusive jurisdiction with respect to any claim or counterclaim of Borrower
based upon the assertion that the rate of interest charged by the Lenders on or
under the Credit Documents is usurious;


 


(b)                                 (i) waives, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding under or in connection with any or all of the
Project, or any Credit Document in any court referred to in paragraph (a) of
this Section, and (ii) waives any right to stay or dismiss any such action
or proceeding brought before the foregoing courts on the basis of forum non-conveniens;


 


(c)                                  agrees that the provisions
of this Section 13.15 relating to jurisdiction and venue shall be binding
and enforceable to the fullest extent permissible under New York General
Obligations Law Section 5-1402 or otherwise; and


 


103

















 


(d)                                 consents and agrees that in
the event that any claim, suit, action, arbitration or mediation proceedings or
any other proceedings arise under, or in connection with, any Credit Document
in any courts or other forum other than the courts described in paragraph (a) above,
Administrative Agent shall have full power and authority to remove such claim,
suit, action, proceedings, arbitration or mediation to one of the courts
described in paragraph (a) or to consolidate such claims, suits,
actions, proceedings, arbitration or mediation in one of such courts.  Each party hereto irrevocably designates,
appoints and empowers Administrative Agent hereby as its permitted designee,
appointee and agent to remove or consolidate such claims, suits, actions or
proceedings and waives, to the fullest extent permitted by law, any objection
to any such removal or consolidation.


 


13.16                 EFFECTIVENESS.  This Agreement shall become effective as of
the effective date hereof when it shall have been executed by all parties
hereto.


 


13.17                 SUCCESSORS
AND ASSIGNS


 


13.17.1                               Successors
and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior consent of Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(a) to an assignee in accordance with the provisions of
Section 13.17.2, (b) by way of participation in accordance with the
provisions of Section 13.17.3, (c) by way of pledge or assignment of
a security interest subject to the restrictions of Section 13.17.5, or (d) to an SPC in accordance with
the provisions of Section 13.17.7 (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in Section 13.17.3 and, to the extent expressly
contemplated hereby, the Affiliates of each of the Secured Parties) any legal
or equitable right, remedy or claim under or by reason of this Agreement.


 


13.17.2                               Assignments
by Lenders.  Any Lender
may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Loan
Commitment(s) and the Loans at the time owing to it); provided,
that any such assignment shall be subject to the following conditions:


 


(a)                                  Minimum Amounts.


 


(i)                                     In the case of
an assignment of the entire remaining amount of the assigning Lender’s Loan
Commitment hereunder and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned.


 


(ii)                                  In any case not
described in Section 13.17.2(a)(i), the aggregate amount of the Loan
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the Loan Commitment is not then in effect, the principal outstanding balance
of the Loans 


 


104

















 


of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $1,000,000, unless each of Administrative Agent and, so
long as no Event of Default has occurred and is continuing, Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.


 


(b)                                 Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Loan
Commitment assigned.


 


(c)                                  Required Consents.  No consent shall be required for any
assignment except to the extent required by Section 13.17.2(a)(ii) and,
in addition the consent of Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (A) an Event of Default has
occurred and is continuing at the time of such assignment (B) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or
(C) during the Initial Period.


 


(d)                                 Assignment and Assumption.  The parties to each assignment shall execute
and deliver to Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however,
that Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment.  The assignee, if it shall not be a Lender,
shall deliver to Administrative Agent an Administrative Questionnaire and any
tax forms required under Section 2.4.6.


 


(e)                                  No Assignment to Borrower.  No such assignment shall be made to Borrower
or any of Borrower’s Affiliates.


 


(f)                                    No Assignment to Natural
Persons.  No such assignment shall be
made to a natural person.


 


(g)                                 Effectiveness of Assignment.  Subject to acceptance and recording thereof
by Administrative Agent in the Register, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 13.4 and 13.13 with respect to
facts and circumstances occurring prior to the effective date of such
assignment).  Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this Section 13.17.2 shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with Section 13.17.3.


 


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13.17.3                               Participations.  Any Lender may at any time, without the
consent of, or notice to, Borrower or Administrative Agent, sell participations
to any Person (other than a natural person or Borrower or any of Borrower’s
Affiliates) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its Loan
Commitment and/or the Loans; provided, that (a) such Lender’s
obligations under this Agreement shall remain unchanged, (b) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (c) Borrower and the Secured Parties shall
continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided, that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 13.20.1 that affects such Participant.  Subject to Section 13.17.4, Borrower
agrees that each Participant shall be entitled to the benefits of
Sections 2.4.4, 2.6.3 and 2.7 to the same extent as if it were a Lender
(subject to the requirements of such sections) and had acquired its interest by
assignment pursuant to Section 13.17.2. 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 13.2.2  as though it
were a Lender, provided, such Participant agrees to be subject to
Section 2.5.2 as though it were a Lender.


 


13.17.4                               Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under
Section 2.4 or 2.6  than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with Borrower’s prior consent.  A Participant that is not organized under the
laws of the United States or any State thereof shall not be entitled to the
benefits of Section 2.4.4 unless Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of
Borrower, to comply with Section 2.4.5 as though it were a Lender.


 


13.17.5                               Certain
Pledges.  Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided,
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


13.17.6                               Electronic
Execution of Assignments.  The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.


 


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13.17.7                               Special Purpose Funding Vehicles.  Notwithstanding anything to the
contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such from time to time by the Granting Lender to
Administrative Agent and Borrower (an “SPC”) the option to provide all or any part of any Loan that
such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided, that (a) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (b) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to Administrative Agent
as is required under Section 2.1.4(d). 
Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of Borrower under this
Agreement, (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval
of any amendment, waiver or other modification of any provision of any Credit
Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder
shall utilize the Loan Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender.  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof.  Notwithstanding anything to the
contrary contained herein, any SPC may (A) with notice to, but without
prior consent of Borrower and Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Loan to the Granting Lender and
(B) disclose on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial paper dealer or
provider of any surety or guarantee or credit or liquidity enhancement to such
SPC.


 


13.17.8                               Provision
of Information.  Borrower authorizes each Lender to
disclose any information concerning any Credit Party in the possession of such
Lender from time to time to assignees and participants (including prospective
assignees and participants) in accordance with the provisions hereof.


 


13.17.9                               Cost to
Lenders.  Unless an Event of Default has
occurred and is continuing, any cost or expense incurred by a Lender in
connection with an assignment or participation permitted under this Agreement
shall be for the account of such Lender and not for the account of Borrower or
any of its Affiliates.


 


13.18                 COUNTERPARTS.  This Agreement and any amendments, waivers,
consents or supplements hereto or in connection herewith may be executed in one
or more duplicate counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.  Signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the
same document.


 


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13.19                 SURVIVAL.  All representations, warranties, covenants
and agreements made herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement and the other Credit
Documents shall be considered to have been relied upon by the parties hereto
and shall survive the execution and delivery of this Agreement, the other
Credit Documents and the making of the Loans. 
Notwithstanding anything in this Agreement or implied by law to the
contrary, and without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of Borrower set forth in
Sections 2.4.4, 2.6.3, 2.6.4, 2.7, 5.10, 11.3 and 13.4 and the agreements
of the Lenders set forth in Sections 11.1, 11.5 and 11.11 shall survive
the payment and performance of the Loans and the other Obligations and the
reimbursement of any amounts drawn hereunder, the termination of the
Commitments and the termination or expiration of this Agreement or any
provision hereof, and, in the case of any Lender that may assign any interest
in its Commitment(s) or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a “Lender”
hereunder.


 


13.20                 AMENDMENTS;
WAIVERS.


 


13.20.1                               Any provision
of the Credit Documents may be amended, modified, supplemented or waived, or
any consent thereunder granted, only by an instrument signed by the Required
Lenders and, where a provision requires consent from Administrative Agent or
Collateral Agent, signed by such Person, and the relevant Credit Party; provided,
that no amendment, modification, supplement, waiver or consent shall, without
the consent of all of the Lenders:


 


(a)                                  modify, in any respect
adverse to the Lenders, Section 2.1.1(d), 2.1.7(c) or 2.6;


 


(b)                                 increase the amount of the
Loan Commitment of any Lender hereunder;


 


(c)                                  amend the percentage
specified in the definition of “Required Lenders” or any other provision of the
Credit Documents specifying the number or percentage of the Secured Parties or
any subset thereof required to waive, amend or modify any rights hereunder,
make any determination or grant any consent hereunder,


 


(d)                                 amend Sections 2.1.4(b),
2.5.2 or 11.13 or the definition of “Proportionate Share” or any other
provisions relating to the pro rata
treatment of the Lenders;


 


(e)                                  permit Borrower to assign
its rights under this Agreement except as provided in Section 13.17.1;


 


(f)                                    amend this
Section 13.20.1;


 


(g)                                 amend any provision of any
Credit Document setting forth an order of payments to alter the relative
priority of payments set forth thereunder in a manner which disproportionately
and adversely effects a particular class of creditor (i.e.
Lender), in which case such amendment shall require the written consent of each
creditor within such directly affected class (i.e.
each Lender), or waive any condition set forth in Section 3.1;


 


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(h)                                 release any Collateral
(other than immaterial portions thereof or as permitted in Section 6.4)
from the Lien of any of the Collateral Documents or allow release of any funds
from any Account other than in accordance with the terms of the Credit
Documents;


 


(i)                                     extend the Maturity Date or
reduce the rate or amount or change the time of payment of interest due on any
Loan;


 


(j)                                     reduce the amount or extend
the payment date for any amount due hereunder, whether principal, interest,
fees or other amounts, provided that the Required Lenders may elect to
not impose the Default Rate when the Lenders are otherwise entitled to do so;


 


(k)                                  increase the maximum
duration of Interest Periods permitted hereunder;


 


(l)                                     subordinate the Obligations
to any other Debt; or


 


(m)                               amend Section 13.17.2(e) or
13.17.3.


 


13.20.2                               No amendment,
modification, termination or waiver of any provision of this Agreement affecting
the rights or obligations of Administrative Agent, Collateral Agent or the Lead
Arranger shall be effective without the consent of Administrative Agent,
Collateral Agent or the Lead Arranger, as the case may be.


 


13.20.3                               Any amendment,
supplement, waiver or modification hereunder shall apply equally to each Lender
and be binding upon Borrower and the Secured Parties and each Lender that
becomes a party hereto.


 


13.20.4                               No Lender shall
be deemed to have waived, by reason of making any extension of credit
hereunder, any Default or Event of Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or Administrative Agent may have had notice or
knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.


 


13.20.5                               Lender
Confirmation.


 


(a)                                  By executing and delivering
an Assignment and Assumption, each Lender assignee party thereto confirms to
each Lender assignor party thereto and the other parties hereto as
follows:  (i) such assignee is an
Eligible Assignee; (ii) such assignee has experience and expertise in the
making of or purchasing loans such as the Loans; (iii) such assignee will
make or purchase Loans for its own account in the ordinary course of its
business and without a view to distribution of such Loans within the meaning of
the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this Section, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control); (iv) such assignee agrees that it will
perform in accordance with their terms all the obligations that by terms of this
Agreement are required to be performed by it as a Lender; (v) such
assignee has received a copy of the Credit Documents, together with the copies
of the current financial statements that will have been delivered by Borrower
hereunder and such other documents and information as it has deemed appropriate
to make its own credit analysis and 


 


109

















 


decision to enter into such Assignment and
Assumption; (vi) such assignee will, independently and without reliance
upon Administrative Agent, such assigning Lender or any other Secured Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; and (vii) such assignee appoints and authorizes each
of Administrative Agent and Collateral Agent to take such action on its behalf
and to exercise such powers and discretion under the Credit Documents as are
delegated to each such agent respectively by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.


 


(b)                                 By executing and delivering
an Assignment and Assumption, each Lender assignor party thereto confirms to
each Lender assignee party thereto and the other parties hereto as
follows:  (i) other than as provided
in the Assignment and Assumption, such assigning Lender makes no representation
and warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, the
Credit Documents and any other document or instrument furnished hereunder or
thereunder; and (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of Borrower or the other Borrower Entities, or the performance or observance by
any such Person of its obligations under the Credit Documents.


 


13.21                 LAWS.  Notwithstanding the foregoing provisions of
this Agreement, no sale, assignment, transfer, negotiation or other disposition
of the interests of any Lender hereunder or under the other Credit Documents
shall be allowed if it would require registration under the Securities Act, any
other federal securities laws or regulations or the securities laws or
regulations of any applicable jurisdiction. 
Borrower shall, from time to time at the request of Administrative
Agent, execute and deliver to Administrative Agent, or to such party or parties
as Administrative Agent may designate, any and all further instruments as may
in the opinion of Administrative Agent be reasonably necessary or advisable to
give full force and effect to such sale, assignment, transfer, negotiation or
disposition which would not require any such registration.


 


13.22                 ASSIGNABILITY
AS COLLATERAL.  Notwithstanding
any other provision contained in this Agreement or any other Credit Document to
the contrary, any Lender may (without notice to Borrower, Administrative Agent
or any other Lender and without payment of any fee) assign all or any portion
of the Loans held by it in favor of any Federal Reserve Bank or the United
States Treasury as collateral security; provided, that any payment in
respect of such assigned Loans made by Borrower to or for the account of the
assigning or pledging Lender in accordance with the terms of this Agreement
shall satisfy Borrower’s obligations hereunder in respect of such assigned
Loans to the extent of such payment.  No
such assignment shall release the assigning Lender from its obligations
hereunder.  In the case of any Lender
that is a Fund, such Lender may, without the consent of Borrower or
Administrative Agent, collaterally assign or pledge all or any portion of its
rights under this Agreement, including the Loans or any other instrument
evidencing its rights as a Lender under this Agreement, to any holder of,
trustee for, or any other representative of holders of, obligations owed or
securities issued, by such fund, as security for such obligations or
securities.


 


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13.23                 SERVICE
OF PROCESS.  The Secured
Parties and Borrower hereby consent to the service of process made by
registered or certified mail, return receipt requested, at its address provided
for notices in Section 13.1.1 and agrees that such service is sufficient
to confer personal jurisdiction over it in any relevant proceeding in any
relevant court, and otherwise constitutes effective and binding service in
every respect.  Nothing in this Agreement
or the other Operative Documents will affect the right of any party hereto to
serve process in any other manner permitted by law.


 


13.24                 INTEREST
RATE LIMITATION. 
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law
(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved by
the Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate for each day to the date of repayment, shall have been
received by such Lender.


 


13.25                 CONFIDENTIALITY.


 


13.25.1                               Each of the
Secured Parties agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its
Related Parties (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, (i) financial insurance providers or (ii) to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of
Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or
(ii) becomes available to any such Secured Party on a nonconfidential
basis from a source other than Borrower. 
For the purposes of this Section, “Information” means all
information received from Borrower relating to Borrower or its business, other
than any such information that is available to any such Secured Party on a
nonconfidential basis prior to disclosure by Borrower; provided, that,
in the case of information received from Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


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13.25.2                               In no event
shall any Lender be obligated or required to return any materials furnished by
any Credit Party.  In addition, the
Secured Parties may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to
the lending industry, and service providers to the Secured Parties, and the
Secured Parties or any of their respective Affiliates may place customary “tombstone”
advertisements (which may include any of Borrower’s and the other Borrower
Entities’ trade names or corporate logos) in publications of its choice
(including “e-tombstones” published or otherwise circulated in electronic form) at its own expense.


 


13.26                 MARSHALLING;
ASSETS SET ASIDE.  Neither
Administrative Agent, Collateral Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Borrower or any other party or
against or in payment of any or all of the Obligations.  To the extent that Borrower makes a payment
or payments to any Secured Party, or any Secured Party enforces any security
interests or exercises its rights of set-off, and such payment or payments or
the proceeds of such enforcement or set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause (and whether as a result of any demand, settlement, litigation or otherwise),
then, to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, rights and remedies therefor or
related thereto, shall be revived and continued in full force and effect as if
such payment or payments had not been made or such enforcement or set-off had
not occurred.


 


13.27                 INDEPENDENCE
OF COVENANTS.  All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
Event of Default if such action is taken or condition exists.


 


13.28                 CONSTRUCTION
OF THE DOCUMENTS.  Each of the
parties hereto acknowledges that (a) it has been represented by counsel in
the negotiation and documentation of the terms of the Credit Documents,
(b) it has had full and fair opportunity to review and revise the terms of
the Credit Documents, (c) the Credit Documents have been negotiated and
drafted jointly by all of the parties hereto, and (d) neither
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to Borrower arising out of or in connection with any of the Credit Documents,
and the relationship between Administrative Agent and the Lenders, on one hand,
and Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor. 
Accordingly, each of the parties hereto acknowledges and agrees that
(i) the Credit Documents shall be deemed to be the work product of all
parties hereto and thereto, (ii) the terms hereof and thereof shall not be
construed against or in favor of any party, and (iii) no ambiguity in any
Credit Document shall be construed in favor of or against any party solely as a
result of such party having drafted or proposed the ambiguous provision.


 


13.29                 SYNDICATION.  In connection with syndication of the Loans
and Loan Commitments, an information package containing certain relevant
information concerning Borrower, the Project and the other Project participants
(including a computer model prepared by


 


112














 


Borrower containing the Base Case Projections) has
been or will be prepared on behalf of Borrower and provided to potential
Lenders and participants.


 


13.30                 THE
PLATFORM.  Borrower
hereby acknowledges that Administrative Agent and/or the Lead Arranger will
make available to the Secured Parties materials and/or information provided by
or on behalf of Borrower hereunder (collectively, “Borrower Materials”)
by posting Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”).  THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  ADMINISTRATIVE AGENT DOES NOT WARRANT THE
ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM,
AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER
MATERIALS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ADMINISTRATIVE AGENT IN
CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM.  In no event shall Administrative Agent or any
of its Related Parties have any liability to Borrower or any other Secured
Party or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of Borrower’s
or Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of Administrative Agent; provided, that in no event shall
Administrative Agent or any Related Parties have any liability to Borrower, any
other Secured Party or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


13.31                 PATRIOT
ACT.  Each Lender that is subject to
the Patriot Act and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Borrower, which information includes the name and address of
Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify Borrower in accordance with
the Act.


 


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IN
WITNESS WHEREOF, the parties hereto, by their officers duly authorized,
intending to be legally bound, have caused this Agreement to be duly executed
and delivered as of the day and year first above written.


 


	
   

  	
  MILFORD
  WIND CORRIDOR PHASE II, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  MILFORD
  II HOLDINGS, LLC,

  
	
   

  	
   

  	
   

  	
  its
  member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


114

















 


	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as
  Administrative Agent, Collateral Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Jonathan Kim

  
	
   

  	
   

  	
  Title:   Senior Vice President

  



 


115

















 


	
   

  	
  BANCO
  ESPÍRITO SANTO DE INVESTIMENTO S.A., NEW YORK BRANCH,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


116

















 


	
   

  	
  COBANK,
  ACB,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


117

















 


	
   

  	
  SOCIÉTE
  GÉNÉRALE,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
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[CREDIT
AGREEMENT SIGNATURE PAGE]


 














 


EXHIBIT A

to Credit Agreement


 


DEFINITIONS


 


Section, Article and Exhibit
references used herein refer to sections and articles

of and exhibits to this Agreement, unless otherwise specified.


 


“Account Withdrawal Documents” means,
collectively, any Account Withdrawal Request and the Account Withdrawal
Instruction related thereto, properly completed by Borrower and delivered to
Administrative Agent for approval and, in the case of the applicable Account
Withdrawal Instruction, signature, in accordance with the applicable provisions
of this Agreement and the Depositary Agreement.


 


“Account Withdrawal Instruction” has the
meaning given in the Depositary Agreement.


 


“Account Withdrawal Request” means a
certificate in the form of Exhibit J, signed by a duly authorized
representative of Borrower and delivered to Administrative Agent.


 


“Accounts” means the Construction Account,
the Revenue Account, the Insurance Proceeds Account, the Asset Sale Account,
the SCPPA Cure Reserve Account and each cash collateral account referred to in
the Credit Documents.


 


“Additional Project Documents” means any
material contracts or agreements related to the construction, testing,
maintenance, repair, operation or use of the Project entered into by Borrower
and any other Person, or assigned to Borrower, subsequent to the Closing Date; provided
that any such contracts and agreements providing for the payment by or to
Borrower of less than $250,000  in the aggregate  or the provision to Borrower of less than $250,000 per annum individually in value of
goods or services, shall be deemed not to constitute an Additional Project
Document.


 


“Adjusted
Eurodollar Rate” means, with respect to any Eurodollar Loan for any
Interest Period, (a) an interest rate per annum (rounded upward, if
necessary, to the next 1/100th of 1%) determined by Administrative Agent to be
equal to the Eurodollar Rate for such Eurodollar Loan in effect for such
Interest Period divided by (b) 1 minus the Reserve Requirement (if any) for
such Eurodollar Loan for such Interest Period.


 


“Administrative Agent” means The Royal Bank
of Scotland plc, acting in its capacity as administrative agent for the Secured
Parties under the Credit Documents.


 


“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by Administrative Agent.


 


“Adverse PUHCA Event” means that Borrower or
any of its “affiliates” of PUHCA becomes an “electric utility company,” “public
utility,” “public-utility company,” or “holding company,” as each of these
terms is defined in PUHCA, required to register as such pursuant to PUHCA at a
time at which applicable provisions of PUHCA, or any successor statute 


 


A-1

















 


thereof,
and the rules and regulations thereunder are in effect and such event or
occurrence has a Material Adverse Effect or a material and adverse effect on
Administrative Agent or the Lenders.


 


“Affiliate” of a specified Person means any
other Person that (a) directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such
Person, or (b) only with respect to matters relating to PUHCA, (i) is an “affiliate”
as defined in Section 1262(1) of PUHCA or (ii) directly or indirectly owns,
controls or holds with power to vote, 5% or more of the outstanding voting
securities of such Person.  When used
with respect to Borrower, “Affiliate” shall include Pledgor and any Affiliate
thereof (other than Borrower).  For
purposes of this definition, “control” means the possession, directly or
indirectly (either alone or pursuant to an arrangement or understanding with
one or more other Persons), of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “controlling” and “controlled”
shall have meanings correlative thereto.


 


“Agreement” has the meaning given in the
preamble.


 


“ALTA” means American Land Title Association.


 


“Annual Operating Budget” means the
certificate required pursuant to Section 5.14.3.


 


“Anti-Terrorism
Laws” has the meaning given in Section 4.30.


 


“Applicable Permit” means, at any time, any
Permit (a) that is necessary under applicable Legal Requirements or any of
the Operative Documents to have been obtained by or on behalf of Borrower at
such time in light of the stage of development, construction or operation of
the Project to construct, test, operate, maintain, repair, lease, own or use
the Project as contemplated by the Operative Documents, to sell electricity
from the Project, or for Borrower to enter into any Operative Document or to
consummate any transaction contemplated thereby, in each case in accordance
with all applicable Legal Requirements, or (b) that is necessary so that
none of Borrower or any Secured Party nor any Affiliate of any of them may be
deemed by any Governmental Authority to be subject to regulation under the FPA
or PUHCA (except as provided in Section 4.16) or treated as a public
utility under the Constitution and the laws of the Project Jurisdiction as
presently constituted and as construed by the courts of the Project
Jurisdiction with respect to the regulation of the rates of, or the financial
or organizational regulation of, electric utilities as a result of the
development and construction or operation of the Project or the sale of
electricity therefrom.


 


“Applicable Third Party Permit” means, at any
time, any Permit that is necessary to have been obtained by such time by any
Person (other than Borrower) that is a party to a Major Project Document or a
Credit Document in order to perform such Person’s obligations thereunder (other
than Permits necessary to conduct its business generally and maintain its
existence and good standing), or in order to consummate any transaction contemplated
thereby, in each case in accordance with all applicable Legal Requirements.


 


A-2

















 


“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.


 


“Asset Sale Account” has the meaning given in
Section 1.1 of the Depositary Agreement.


 


“Assignee Group” means two or more Eligible
Assignees that are Affiliates of one another or two or more Approved Funds
managed by the same investment advisor.


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 13.17.2),
and accepted by Administrative Agent, in substantially the form of Exhibit M
or any other form approved by Administrative Agent.


 


“Available Construction Funds” means, at any
time and without duplication, the sum of (a) amounts in the Construction
Account, (b) the Available Loan Commitment, (c) undisbursed Insurance
Proceeds or Eminent Domain Proceeds which are available for payment of Project
Costs, (d) any delay liquidated damages which Borrower has received under
the Construction Contract or any other contract for construction related to the
Project, and (e) any other liquidated damages which Borrower has received
under the other Project Documents and which, by the terms of the Credit
Documents, are available for the payment of Project Costs.


 


“Available Loan Commitment” means (a) at
any time and from time to time during the Loan Availability Period, the Total
Loan Commitment at such time minus
the sum of (i) the aggregate principal amount of all Loans outstanding at
such time and (ii) the aggregate principal amount of all Loans that have
been repaid at such time, and (b) at any time after the Loan Availability
Period, zero.


 


“Bailees” means (a)
Dansville Properties, LLC, a New York corporation, (b) the Town of Houlton (c)
AKTEM Business Park, LLC, and (d) the Individual Bailees.


 


“Bankruptcy Event” shall be deemed to occur,
with respect to any Person, if (a) that Person shall commence any case,
proceeding or other voluntary action seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it bankrupt or insolvent,
or seeking liquidation, arrangement, adjustment, winding-up, reorganization,
dissolution, composition under the Bankruptcy Law or other relief with respect
to it or its debts; (b) such Person shall apply for, or consent or
acquiesce to, the appointment of, a receiver, administrator, administrative
receiver, liquidator, sequestrator, trustee or other official with similar
powers for itself or any substantial part of its assets; (c) such Person
shall make a general assignment for the benefit of its creditors; (d) an
involuntary case shall be commenced seeking liquidation or reorganization of
such Person under the Bankruptcy Law, or seeking issuance of a warrant of
attachment, execution or distraint,  or
any similar proceedings shall be commenced against such Person under any other
applicable law and (i) such Person consents to the institution of the
involuntary case against it, (ii) the petition commencing the involuntary
case is not timely controverted, (iii) the petition commencing the
involuntary case is not dismissed within 45 days 


 


A-3

















 


of
its filing, (iv) an interim trustee is appointed to take possession of all
or a portion of the property, and/or to operate all or any part of the business
of such Person and such appointment is not vacated within 45 days, or
(v) an order for relief shall have been issued or entered therein; or
(e) a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, administrator, administrative receiver,
liquidator, sequestrator, trustee or other official having similar powers, over
such Person or all or a part of its property shall have been entered; or
(f) any other similar relief shall be granted against such Person under
any applicable Bankruptcy Law, or such Person shall file a petition or consent
or shall otherwise institute any similar proceeding under any other applicable
law, or shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in any of the acts set forth above in this
definition; or (g) such Person shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due.


 


“Bankruptcy Law” means Title 11, United
States Code, and any other existing or future law (or any successor law or
statute) of any jurisdiction, domestic (including state and federal) or
foreign, relating to bankruptcy, insolvency, reorganization, conservatorship,
moratorium or similar law for the relief of debtors.


 


“Base Case Projections” means a projection of
operating results, showing Borrower’s good faith estimates, as of the Closing
Date, of revenues, operating expenses and sources and uses over a forecast
period of 20 years beyond the projected date of Commercial Operation, which
shall be of a nature and in an amount satisfactory to the Lenders in
consultation with Independent Engineer and based upon the findings in the Wind
Report.


 


“Base Equity Requirement” means equity funds
equal to $65,000,000.00, which may be contributed by obtaining for Borrower and
maintaining on its behalf any letters of credit required under the Project
Documents.


 


“Base Rate” means the greatest of (a) the
prime commercial lending rate announced from time to time by Administrative
Agent (the “Prime Rate”), (b) the Federal Funds Rate plus 0.50%, and (c)
the one-month Eurodollar Rate plus 1.25%. 
The Prime Rate may not necessarily be the highest or lowest rate of
interest charged by Administrative Agent to its commercial borrowers. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Rate or the Federal Funds  Rate, respectively.


 


“Base Rate Loans” means a Loan that bears
interest based upon the Base Rate.


 


“BESI” has the meaning given in the preamble.


 


“BLM” means the United States Department of
Interior, Bureau of Land Management.


 


“BLM Memo” has the meaning given in Section 5.25.


 


“BLM Right of Way
(Generator Lead Line)” means Right-of-Way Grant/Temporary Use Permit Serial
Number UTU-82973 dated effective as of October 15, 2008.


 


A-4

















 


“BLM Right of Way
(Phase II)” means Right-of-Way Grant/Temporary Use Permit Serial Number
UTU-83073 dated effective as of February 9, 2010.


 


“Bookrunner” has the meaning given in the
preamble.


 


“Borrower” means Milford Wind Corridor Phase
II, LLC, a Delaware limited liability company.


 


“Borrower Materials” has the meaning given in
Section 13.30.


 


“Borrower Entity” has the meaning given in
Section 3.1.1.


 


“Borrowing” means a borrowing by Borrower of
any Loans of the same Type made on the same day by the Lenders.


 


“Business Day” means any day other than a
Saturday, Sunday or other day on which banks are or Administrative Agent is
authorized or required to be closed in the Project Jurisdiction or the State of
New York and, where such term is used in any respect relating to a Eurodollar
Loan, which is also a day on which dealings in Dollar deposits are carried out
in the London interbank market.


 


“Capital Adequacy Requirement” has the
meaning given in Section 2.6.4.


 


“Casualty Event” means the loss, damage or
destruction of any part of the Improvements or any personal property related to
the Project.


 


“Change of Control” means (a) Pledgor ceases
to directly own and control 100% of the economic and voting interest in
Borrower, (b) Parent ceases to directly own and control 100% of the economic
and voting interest in Pledgor, (c) except in connection with (i) exercise of
remedies under the Letter of Credit Facility, the Subordinated Loan Facility or
any other Debt facility entered into by First Wind Holdings Inc. or First Wind
Holdings, LLC (or their respective Subsidiaries) or (ii) any initial public
stock offering relating to First Wind Holdings, Inc., D.E. Shaw or Madison
Dearborn (or any of their respective Affiliates) shall cease to directly or
indirectly own and control an aggregate of 50.1% of the economic and voting
interests of Parent or (d) except in connection with a tax equity investment or
with exercise of remedies under the Letter of Credit Facility, the Subordinated
Loan Facility or any other Debt facility entered into by First Wind Holdings Inc.
or First Wind Holdings, LLC (or their respective Subsidiaries), First Wind
Holdings, LLC shall cease to directly or indirectly own and control an
aggregate of 80.0% of the economic and voting interests of Parent.


 


“Change of Law” has the meaning given in
Section 2.6.2.


 


“Charges” has the meaning given in
Section 13.24.


 


“Circle Four
Easements” means that certain Grant of Easements dated May 6, 2010, by and
between Murphy-Brown, LLC doing business as Circle Four Farms, as grantor, and
Borrower, as grantee.


 


A-5

















 


“Closing Date” has the meaning given in
Section 3.1.


 


“CoBank” has the meaning given in the
preamble.


 


“CoBank Equities” has the meaning given in
Section 5.26.1.


 


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


 


“Collateral” means all property which is
subject or is intended to become subject to the security interests or liens
granted by any of the Collateral Documents.


 


“Collateral Agent” means The Royal Bank of
Scotland plc, acting in its capacity as collateral agent for the Secured
Parties under the Credit Documents, and any successor.


 


“Collateral Documents” means the Trust Deed,
the Pledge Agreement, the Security Agreement, the Depositary Agreement, each
Consent, and any fixture filings, financing statements, or other similar
documents filed, recorded or delivered in connection with the foregoing.


 


“Commercial Operation” means the Commercial
Operation Date, as such term is defined in the PPA.


 


“Commitment Fee” means the fee payable pursuant
to Section 2.3.2.


 


“Commitments” means, (a) with respect to each
Lender, such Lender’s Loan Commitment and (b) with respect to all Lenders,
the Total Loan Commitment.


 


“Completion” means that (a) all work
under the Construction Contract (other than punchlist items) has been completed
substantially in accordance with the Plans and Specifications and the
requirements of all Applicable Permits, (b) Commercial Operation has been
achieved, (c) the Performance Tests, if applicable, either (i) have been
successfully completed or (ii) performance liquidated damages as provided
in Construction Contract have been paid in full, (d) necessary
interconnection facilities sufficient to transmit all power generated by the
Project have been completed in accordance with the Interconnection Agreement,
(e) all other aspects of the Project have been constructed, other than
items that could not reasonably be expected to materially affect the
performance, integrity, safety, or reliability of the Project or the status or
validity of any Applicable Permit (all as duly certified by the Independent
Engineer to Administrative Agent), (f) all real estate rights reasonably
necessary for completion of the foregoing and continued operations of the
Project have been obtained; and (g) receipt of all Applicable Permits.


 


“Completion Date” means the date on which
Completion occurs.


 


“Consents” means the consents specified on Exhibit E-3
and any other third party consents to the assignments or bailee waivers
contemplated by the Credit Documents.


 


“Construction Account” has the meaning given
in Section 1.1 of the Depositary Agreement.


 


A-6

















 


“Construction Contract” means the Balance of
Plant Construction Contract dated as of September 15, 2010 between Construction
Contractor and Borrower.


 


“Construction Contractor” means RMT, Inc., a
Wisconsin corporation.


 


“Contingent
Obligation” means, as to any Person, any obligation, agreement,
understanding or arrangement (including purchase or repurchase agreements,
reimbursement agreements with respect to letters of credit or acceptances,
indemnity arrangements, grants of collateral to support the obligations of
another Person, keep-well agreements and take-or-pay or through-put
arrangements) of such Person guaranteeing or intended to guarantee any
indebtedness, leases, dividends or other obligations of any other Person in any
manner, whether directly or indirectly; provided, that
the term “Contingent Obligation” shall not include endorsements of instruments
for deposit or collection in the ordinary course of business.


 


“Cost Segregation Consultant” means KPMG LLP.


 


“Cost Segregation Report” means the Cost
Segregation Report prepared by the Cost Segregation Consultant, as updated and
revised from time to time pursuant to Section 5.23.


 


“Co-Syndication Agent” has the meaning given
in the preamble.


 


“Credit Agreement Joinder” means a joinder to
this Agreement substantially in the form of Exhibit N.


 


“Credit Documents” means this Agreement, the
Depositary Agreement, the Collateral Documents, the Fee Letter and any other
loan or security agreements or letter agreement or similar document, entered
into by any Secured Party, on the one hand, and Borrower or one or more
Affiliates of any Borrower Entity, on the other hand, in connection with the
transactions contemplated by the Credit Documents.


 


“Credit Event” means the Closing Date, each
Borrowing and resulting Loan.


 


“Credit Parties” means Borrower and Pledgor.


 


“Date Certain” means July 31, 2011; provided,
however, if the date by which the Commercial Operation Date (as such
term is defined in the PPA) must be achieved is extended pursuant to the PPA,
then Date Certain shall be extended day-for-day with the extension of the
deadline for the Commercial Operation Date under the PPA.


 


“Debt” of any Person at any date means,
without duplication, (a) all obligations (including contingent
obligations) of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable and other accrued expenses
arising in the ordinary course of business which in accordance with GAAP would
be shown on the liability side of the balance sheet of such Person,
(d) all obligations of such Person under leases which are or should be, in
accordance with GAAP, recorded as capital leases in respect of which such
Person is liable, (e) all obligations of such Person to purchase
securities (or other property) which arise out of or in connection with 


 


A-7

















 


the
sale of the same or substantially similar securities (or property),
(f) all deferred obligations of such Person to reimburse any bank or other
Person in respect of amounts paid or advanced under a letter of credit or other
instrument, (g) all obligations, contingent or otherwise, of such Person
in respect of acceptances, letters of credit or similar extensions of credit,
(h) all Debt (as described in the preceding clauses) of others secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, (i) all Debt (as described in the
preceding clauses) of others guaranteed directly or indirectly by such Person
or as to which such Person has an obligation which is substantially the
economic equivalent of a guaranty and (j) all obligations of such Person in
respect of any “swap agreement”, as defined in Section 101 of the
Bankruptcy Law, that is intended to provide protection against fluctuations in
interest or currency exchange rates.


 


“Debt Service” means, for any period, the sum
of (a) all fees (other than fees paid on the Closing Date) payable during
such period to any Secured Party, and (b) interest on Loans.


 


“Default” means any occurrence, circumstance
or event, or any combination thereof, which, with the lapse of time or the
giving of notice or both, would constitute an Event of Default.


 


“Default Rate” has the meaning given in
Section 2.4.3.


 


“Defaulting Lender” means any Lender that (a)
has failed to, or has notified Administrative Agent of its intent to not, fund
any portion of the Loans required to be funded by it hereunder within three
Business Days of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has, or its
parent company has, been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.


 


“Depositary” means RBS Citizens N.A., not in
its individual capacity but solely as depositary, bank and securities
intermediary under the Depositary Agreement.


 


“Depositary Agreement” means the Depositary
Agreement, dated as of the Closing Date, in substantially the form of Exhibit D-4,
among Borrower, Administrative Agent, Collateral Agent and Depositary.


 


“Disqualified Person” means (a) any Federal,
state or local government, including any political subdivision, agency, or
instrumentality thereof; (b) any organization that is described in Section
501(c) of the Code and is exempt from tax under Section 501(a) of the Code; (c)
any entity referred to in paragraph (4) of section 54(j) of the Code; (d) any
foreign person or entity as defined in Section 168(h)(2)(C) of the Code unless
the exception under Section 168(h)(2)(B) of the Code applies to such person or
entity; and (e) any partnership or other pass-through entity (including a
single-member disregarded entity) other than a real estate investment trust as
defined in Section 856(a) of the Code or a cooperative organization described
in Section 1381(a) of the Code, any direct and indirect partner (or other
holder of an equity or profits interest) of which is described in clauses (a)
through (e); provided that a taxable C 


 


A-8

















 


corporation,
any of whose shareholders are ineligible to receive the Grant by virtue of
being described in clauses (a) through (e) above will not be considered a
Disqualified Person; provided further that a taxable C corporation’s direct or
indirect ownership of an interest in any partnership or other pass-through
entity described in clause (e) above shall not cause such partnership or
pass-through entity to be considered a Disqualified Person.  If and to the extent the types of
Disqualified Persons described in Sections 1603(f) and 1603(g) of Division B of
the American Recovery and Reinvestment Act of 2009 is amended after the date of
the Agreement, the definition of “Disqualified Person” under the Agreement
shall be interpreted to conform to such amendment and any Treasury guidance
with respect thereto.


 


“Dollars” and “$” means United States
dollars or such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts in
the United States of America.


 


“Drawdown Certificate” means a certificate
delivered to Administrative Agent substantially in the form of Exhibit C-3.


 


“Easements” has the meaning given in the
granting clause of the Trust Deed.


 


“Eligible Assignee” means any Person that
meets the requirements to be an assignee under Section 13.17.2(c), (e) and
(f) (subject to such consents, if any, as may be required under
Section 13.17.2(c)).


 


“Eligible Facility” means an “eligible
facility” within the meaning of PUHCA and FERC’s implementing regulations
pertaining thereto.


 


“Embargoed
Person” has the meaning given in Section 6.26.2.


 


“Eminent Domain” means any compulsory
transfer or taking by condemnation, eminent domain or exercise of a similar
power, or transfer under threat of such compulsory transfer or taking, of any
part of the Collateral, by any agency, department, authority, commission,
board, instrumentality or political subdivision of the Project Jurisdiction,
the United States or another Governmental Authority having jurisdiction.


 


“Eminent Domain Proceeds” has the meaning
given in Section 7.5.


 


“Environmental Claims” means any and all
liabilities, losses, administrative, regulatory or judicial actions, suits,
demands, decrees, claims, liens, judgments, warning notices, notices of
noncompliance or violation, investigations, proceedings, removal or remedial
actions or orders, or damages (foreseeable and unforeseeable, including
consequential and punitive damages), penalties, fees, out-of-pocket costs,
expenses, disbursements or attorneys’ or consultants’ fees, relating in any way
to (a) a violation or alleged violation of any Hazardous Substance Law or
Permit issued under any Hazardous Substance Law, (b) a Release or
threatened Release of Hazardous Substances, or (c) any legal or
administrative proceedings relating to any of the above.


 


“Environmental Consultant” means CH2M HILL,
Inc., a Florida corporation.


 


A-9














 


“Equity
Issuance” means any sale or issuance of any membership or other equity
interests by Borrower or any tax equity contribution related to the Project.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” means any Person (whether or not incorporated) which is under
common control with Borrower within the meaning of Section 4001(a) of
ERISA or that is treated as a single employer together with Borrower under
Section 414(b) or (c) of the Code (and Section 414(m) and
(o) of the Code solely for purposes of provisions relating to Section 412
and 430 of the Code).


 


“ERISA
Plan” means any employee benefit plan (a) maintained by Borrower or
any ERISA Affiliate, or to which any of them contributed, contributes, or is
obligated to contribute, for its employees or former employees and
(b) covered by Title IV of ERISA or to which Section 412 of the Code
applies.


 


“Eurodollar
Breakage Costs” has the meaning given in Section 2.7.


 


“Eurodollar
Loan” means a Loan that bears interest based upon the Adjusted Eurodollar
Rate as provided herein.


 


“Eurodollar
Rate” means, with respect to any Eurodollar Loan for any Interest Period,
the rate per annum as calculated by the British Bankers’ Association and
obtained through a nationally recognized service such as the Dow Jones Market
Service (Telerate) or Reuters (the “Service”) (or on any successor or
substitute page of such Service, or any successor to or substitute for
such Service, providing rate quotations comparable to those currently provided
on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market), rounded upward,
if necessary, to the nearest 1/100 of 1%, equal to the offered rate for
deposits in Dollars in amounts greater than $1,000,000 for a period equal to
such Interest Period, commencing on the first day of such Interest Period, at
approximately 11:00 a.m. (London time) on the Interest Rate Determination
Date.  In the event that such rate is not
available at such time for any reason, then the “Eurodollar Rate” with respect
to such Borrowing for such Interest Period shall be the rate (rounded upwards,
if necessary, to the next 1/100th of 1%) at which dollar deposits of $1,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period.


 


“Event
of Default” has the meaning given in Section 8.1.


 


“Evergreen”
means Evergreen Wind Power II, LLC, a Delaware limited liability company.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time, and any successor statute.


 


A-10

















 


“Excluded
Lender Income Taxes” has the meaning given in Section 2.4.4(a).


 


“Executive Order” has the meaning
given in Section 4.30.


 


“Exempt
Wholesale Generator” means an “exempt wholesale generator” within the
meaning of PUHCA and FERC’s regulations implementing PUHCA.


 


“Federal
Funds Rate” means, for any day, the weighted average of the per annum rates
on overnight federal funds transactions with member banks of the Federal
Reserve System arranged by federal funds brokers as published by the Federal
Reserve Bank of New York for such day (or, if such rate is not so published for
any day, the average rate charged by Administrative Agent on such day on such
transactions as determined by Administrative Agent).


 


“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System.


 


“Fee
Letter” means the letter agreement regarding fees, dated as of February 1,
2010, among Administrative Agent, the Lead Arranger and Sponsor.


 


“FERC”
means the Federal Energy Regulatory Commission and its successors.


 


“Final
Completion” means that (a) Completion shall have occurred and the
Independent Engineer shall have confirmed that all of the conditions to “final
completion” under the Construction Contract (howsoever defined therein), and (b) all
other work under the Construction Contract shall have been completed (other
than amounts in dispute with respect to Construction Contractor or any other
Person, so long as amounts reasonably satisfactory to Administrative Agent
(acting in consultation with the Independent Engineer) have been reserved in
the Construction Account for payment of such amounts (and as to which any
associated Lien falls within the definition of clause (c) of Permitted
Liens)).


 


“FIRREA” means the Federal
Institutions Reform, Recovery and Enforcement Act of 1989.


 


“First Wind O&M” means First Wind O &
M, LLC, a Delaware limited liability company.


 


“FPA” means the Federal Power Act, as
amended, and FERC’s implementing regulations related thereto.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“GAAP”
means generally accepted accounting principles in the United States of America.


 


A-11

















 


“Gen
Lead Agreement” means the Tenant in Common Agreement (Generator Lead Line),
dated as of October 20, 2010, between Borrower and Milford I, as may be
joined by Affiliates of Borrower, SCPPA and the Secured Parties from time to
time.


 


“Gen
Lead O&M Agreement” means the Generator Lead Services and Maintenance
Agreement, dated as of October 20, 2010, among Borrower, First Wind
O&M and Milford I, as may be joined by Affiliates of Borrower, SCPPA and
the Secured Parties from time to time.


 


“Governing
Documents” means, with respect to any Person, the certificate or articles
of incorporation, bylaws, operating agreement or other organizational or
governing documents of such Person, and, in particular, (a) in the case of
any corporation, the certificate of incorporation and by-laws (or similar documents)
of such person, (b) in the case of any limited liability company, the
certificate of formation and operating agreement (or similar documents) of such
person, (c) in the case of any limited partnership, the certificate of
formation and limited partnership agreement (or similar documents) of such
person, (d) in the case of any general partnership, the partnership
agreement (or similar document) of such person and (e) in any other case,
the functional equivalent of the foregoing.


 


“Governmental
Authority” means (a) any nation or government (whether domestic or
foreign), (b) any federal, state, provincial, regional, municipal, local,
territorial, or other political, governmental or quasi-governmental subdivision
thereof, including any central bank thereof and any comparable authority,
(c) any other judicial, public, statutory or administrative agency,
authority, board, body, bureau, commission, department, entity or
instrumentality (including any zoning authority, FERC, the SEC, the Comptroller
of the Currency or the Federal Reserve Board) or any subdivision thereof,
(d) any other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government
or (e) any arbitrator with authority to bind a party at law.


 


“Governmental
Rule” means any constitution, code, statute, law, regulation, ordinance,
rule, judgment, order, decree, permit, concession, grant, franchise, license,
agreement, directive, guideline, treaty, judgment, policy or requirement of, or
other governmental restriction or any similar form of decision of or
determination by, or any interpretation or administration of any of the
foregoing by, any Governmental Authority.


 


“Grant”
means the cash grant offered in lieu of electricity production credits under Section 45
of the Code and energy credits under Section 48 of the Code from the U.S.
Department of Treasury under Section 1603 of Division B of the American
Recovery and Reinvestment Act of 2009.


 


“Grant
Eligible” means that (a) the Project qualifies for the Grant, (b) the
risk of recapture liability is limited to those circumstances described in the
Treasury Guidance; and (c) the Grant application procedures are no more
restrictive than those described in the Treasury Guidance.


 


“Granting
Lender” has the meaning given in Section 13.17.7.


 


A-12

















 


“Hazardous
Substances” means (statutory acronyms and abbreviations having the meaning
given them in the definition of “Hazardous Substances Laws”) substances defined
as “hazardous substances,” “pollutants” or “contaminants” in Section 101
of the CERCLA; those substances defined as “hazardous waste,” “hazardous
materials” or “regulated substances” by the RCRA; those substances designated
as a “hazardous substance” pursuant to Section 311 of the CWA; those
substances defined as “hazardous materials” in Section 103 of the HMTA;
those substances regulated as a hazardous chemical substance or mixture or as
an imminently hazardous chemical substance or mixture pursuant to Section 6
or 7 of the TSCA; those substances defined as “contaminants” by Section 1401
of the SDWA, if present in excess of permissible levels; those substances
regulated by the Oil Pollution Act; those substances defined as a pesticide
pursuant to Section 2(u) of the FIFRA; those substances defined as a
source, special nuclear or by-product material by Section 11 of the AEA;
those substances defined as “residual radioactive material” by Section 101
of the UMTRCA; those substances defined as “toxic materials” or “harmful
physical agents” pursuant to Section 6 of the OSHA); those substances
defined as hazardous wastes in 40 C.F.R. Part 261.3; those substances
defined as hazardous waste constituents in 40 C.F.R.  Part 260.10, specifically including
Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those substances
designated as hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those
substances defined as hazardous substances or hazardous materials in 49 C.F.R. Part 171.8;
those substances regulated as hazardous materials or wastes, hazardous
substances, or toxic substances in 40 C.F.R. Part 1910; those substances
regulated as hazardous materials or wastes, hazardous substances, or toxic
substances in any other Hazardous Substances Laws; and those substances
regulated as hazardous materials or wastes, hazardous substances, or toxic
substances in the regulations adopted and publications promulgated pursuant to
said laws, whether or not such regulations or publications are specifically
referenced herein.


 


“Hazardous
Substances Law” means any of:


 


(a)           the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.) (“CERCLA”);


 


(b)           the Federal Water Pollution Control
Act (33 U.S.C. Section 1251 et seq.) (“Clean
Water Act” or “CWA”);


 


(c)           the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”);


 


(d)           the Atomic Energy Act of 1954 (42
U.S.C. Section 2011 et seq.) (“AEA”);


 


(e)           the Clean Air Act (42 U.S.C. Section 7401
et seq.) (“CAA”);


 


(f)            the Emergency Planning and Community
Right to Know Act (42 U.S.C. Section 11001 et seq.)
(“EPCRA”);


 


(g)           the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Section 136 et seq.)
(“FIFRA”);


 


(h)           the Oil Pollution Act of 1990 (P.L.
101-380, 104 Stat. 486);


 


A-13

















 


(i)            the Safe Drinking Water Act (42
U.S.C.  Section 300f et seq.) (“SDWA”);


 


(j)            the Surface Mining Control and
Reclamation Act of 1974 (30 U.S.C. Section 1201 et seq.)
(“SMCRA”);


 


(k)           the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.) (“TSCA”);


 


(l)            the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.)
(“HMTA”);


 


(m)          the Uranium Mill Tailings Radiation
Control Act of 1978 (42 U.S.C. Section 7901 et seq.)
(“UMTRCA”);


 


(n)           the Occupational Safety and Health
Act (29 U.S.C. Section 651 et seq.) (“OSHA”);


 


(o)           applicable Project Jurisdiction
statutes related to the release of Hazardous Substances;


 


(p)           Project Jurisdiction ordinances and
regulations related to the release of Hazardous Substances; and


 


(q)           all other federal, state, local and
municipal Governmental Rules, any and all Legal Requirements, and any and all
common law requirements, rules and bases of liability regulating, relating
to, or imposing liability or standards of conduct concerning pollution or
protection of human health or the environment or which otherwise govern
Hazardous Substances, as are now or may at any time hereafter be in effect,
together with the regulations adopted and publications promulgated pursuant to
all foregoing.


 


“IE
Report” has the meaning given in Section 3.1.11.


 


“Improvements”
has the meaning given in the granting clause of the Trust Deed.


 


“Indemnitees”
has the meaning given in Section 5.10.1.


 


“Independent
Consultants” means, collectively, the Insurance Consultant, the Wind
Consultant and the Independent Engineer.


 


“Independent
Engineer” means Garrad Hassan and Partners, Inc.


 


“Independent
Engineer’s Drawdown Certificate” has the meaning given in
Section 3.2.5(b).


 


“Individual
Bailees” means Abdur Rahmann Sharper and Aneesa B. Sharper.


 


“Information”
has the meaning given in Section 13.25.1.


 


A-14

















 


“Initial
Period” means the period from the Closing Date to the earlier of (a) 90
days after the Closing Date, and (b) the date that Administrative Agent
notifies Borrower that syndications have been completed.


 


“Insurance
Consultant” means Moore-McNeil LLC.


 


“Insurance
Proceeds” has the meaning given in Section 7.4.2.


 


“Insurance
Proceeds Account” has the meaning given in Section 1.1 of the
Depositary Agreement.


 


“Interconnection
Agreement” means the Generator Interconnection Agreement, dated as of October 12,
2010, between Interconnector and Borrower.


 


“Interconnector”
means Intermountain Power Agency, a political subdivision of the State of Utah.


 


“Interest
Payment Dates” shall be the dates described in Section 2.1.2(c).


 


“Interest
Period” means, with respect to any Eurodollar Loan comprising part of the
same Borrowing, initially, the time period selected by Borrower under
Section 2.1.2(d) or otherwise provided for pursuant to this Agreement
which commences on the first day of such Loan, or the effective date of any
conversion (as the case may be) and ends on the last day of such time period,
and thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by Borrower or provided for pursuant to this Agreement; provided
that no single day shall be deemed to be a part of two Interest Periods.


 


“Interest
Rate” means the Base Rate or the Adjusted
Eurodollar Rate, as the case may be.


 


“Interest
Rate Determination Date” means, with respect to any Interest Period, two
Business Days prior to the first day of such Interest Period.


 


“Joint
Bookrunner” has the meaning given in the preamble.


 


“Joint
Lead Arranger” has the meaning given in the preamble.


 


“Lead
Arranger” has the meaning given in the preamble.


 


“Leases”
means “Ground Leases” as such term is defined in the Trust Deed.


 


“Legal
Requirements” means, as to any Person, the Governing Documents of such
Person, any requirement under a Permit, and any Governmental Rule in each
case applicable to or binding upon such Person or any of its properties or to
which such Person or any of its property is subject.


 


A-15

















 


“Lender”
or “Lenders” means the banks and other financial institutions (including
any insurance company or other financial institution (whether a corporation,
partnership, trust or other entity) that are or become parties to this
Agreement and their successors and assigns.


 


“Lending
Office” means, with respect to any Lender, the office designated as such to
Administrative Agent and Borrower from time to time.


 


“Letter
of Credit Facility” means the letter of credit facility in favor of First
Wind Utah Holdings, LLC, a Delaware limited liability company, by The Royal
Bank of Scotland plc, as administrative agent and fronting bank, and various
financial institutions, pursuant to that certain Reimbursement Agreement, dated
as of March 23, 2010, and documents related thereto.


 


“Lien”
means, with respect to any property or asset, any mortgage, trust deed, deed of
trust, lien, pledge, charge, security interest, or encumbrance of any kind,
whether or not filed, recorded or otherwise perfected or effective under
applicable law, as well as the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.


 


“Loan”
has the meaning given in Section 2.1.1(a).


 


“Loan
Availability Period” means the period from the Closing Date to the Maturity
Date.


 


“Loan
Commitment” means, at any time with respect to each Lender, such Lender’s
Proportionate Share of the Total Loan Commitment at such time.


 


“Major
Project Documents” means the Construction Contract, the Shared Facilities
Agreement, the Gen Lead Agreement the PPA, the O&M Agreements, the Transportation
Agreement, the Interconnection Agreement, the Leases, the Storage Agreements
(until the turbines are removed from the applicable location), Turbine Supply
Agreement, any guaranty agreements related to the foregoing executed by Persons
in favor of Borrower (including the RMT Guaranty), the Administrative Services
Agreement, dated as of Closing Date, between Borrower and First Wind Energy,
LLC, the Easements, the BLM Right of Way (Phase II), the BLM Right of Way
(Generator Lead Line), the SITLA Right of Way and, unless otherwise agreed by
Administrative Agent prior to its execution and delivery, any Additional
Project Documents.


 


“Major
Project Participants” means, without duplication, Borrower, Pledgor,
Operators, SCPPA, Interconnector, Milford I, Construction Contractor
(until the expiration of the warranty period under the Construction Contract
and complete performance by the Construction Contractor), the Bailees (until
the turbines are removed from the applicable location), the Turbine Supplier (until
expiration of the warranty period under the Turbine Supply Agreement and
complete performance by the Turbine Supplier), E.W. Wylie Corporation, a North
Dakota corporation (until complete performance under the Transportation
Agreement), First Wind Energy, LLC, any other Person which provides any
guaranty agreement which is a Major Project Document (including RMT Parent),
and to the extent not already included in this list, any counterparty to a
Major Project Document (until expiration of any warranty period thereunder and
complete performance by such counterparty).


 


A-16

















 


“Mandatory
Prepayment” has the meaning given in Section 2.1.7(c).


 


“Material
Adverse Effect” means an event, circumstance, condition or occurrence of
whatever nature that materially and adversely affects (a) the business,
assets (including the Project), property, results of operation or financial
condition of Borrower, (b) Borrower’s rights to the Project and the
Project assets, (c) Borrower’s or any other Major Project Participant’s
ability to perform its obligations under the Operative Documents, (d) the
value, validity or priority of the Secured Parties’ security interests in the
Collateral, or (e) the validity or enforceability of any Operative
Document (including the ability of the Secured Parties to enforce any of their
remedies thereunder).


 


“Maturity”
or “maturity” means, with respect to any Loan, Borrowing, interest, fee
or other amount payable by Borrower under the Credit Documents, the date such
Loan, Borrowing, interest, fee or other amount becomes due, whether upon the
stated maturity or due date, upon acceleration or otherwise.


 


“Maturity
Date” means December 13, 2011.


 


“Maximum
Rate” has the meaning given in Section 13.24.


 


“Maximum
SCPPA Cure Amount” means $2,500,000.


 


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


 


“Minimum
Notice Period” means (a) prior to 11:00 a.m. at least three
Business Days before the date of any Borrowing, continuation or conversion of a
Type of Loan resulting in whole or in part in one or more Eurodollar Loans and
(b) prior to 10:00 a.m. on the Business Day of any Borrowing or
conversion of a Type of Loan resulting in only Base Rate Loans.


 


“Minor
Project Documents” means each of the Major Project Documents with the
exception of (a) the PPA, (b) the Turbine Supply Agreement, (c) the
Construction Contract, (d) the RMT Guaranty, (e) the Operations
Support Agreement, to be entered into after the Closing Date, between Borrower
and General Electric International Incorporated, a Delaware corporation, and (f) the
Interconnection Agreement.


 


“Minor
Project Participants” means each of the Major Project Participants with the
exception of (a) SCPPA, (b) the Turbine Supplier, (c) Construction
Contractor, (d) RMT Parent, (e) General Electric International, Inc.,
a Delaware corporation, and (f) Interconnector.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgaged
Property” has the meaning given in the granting clause of the Trust Deed.


 


“Multiemployer
Plan” means a “multiemployer plan” (as such term is defined in
Section 3(37) or 4001(a)(3) of ERISA) to which any Borrower or any
ERISA Affiliate 


 


A-17

















 


contributes
or is obligated to contribute for its employees or under which Borrower or any
ERISA Affiliate has any material obligations.


 


“Net Cash Proceeds” means:


 


(a)           with
respect to any sale of assets, the excess, if any, of (i) the sum of cash or instruments received by or for the account of
Borrower in connection with such sale of assets (including any cash or
instruments received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) minus (ii) the sum of any bona
fide costs incurred in connection with such sale of assets, including (A) the
principal amount of, premium or penalty (if any) and interest on any Debt
(other than Loans) that is required to be repaid in connection with such sale
of assets to the extent such amounts were not deducted in determining the
amount referred to in clause (i), (B) the reasonable and customary out of
pocket costs, fees, commissions, premiums and expenses (including attorneys’
fees, investment banking fees, survey costs, title insurance premiums and
related search and recording charges and other customary expenses, and
brokerage, consultant and other customary fees) incurred by Borrower in
connection with such sale of assets to the extent such amounts were not deducted
in determining the amount referred to in clause (i), (C) federal, state,
foreign and local sales taxes payable in connection with such sale of assets,
and (D) any reserve for adjustment in respect of (i) the sale price
of such asset or assets established in accordance with GAAP and (ii) any
liabilities associated with such asset or assets and retained by Borrower after
the sale of assets thereof, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction; provided
that any portion of the reserves or liabilities contemplated by this clause (D) that
are later reversed or cancelled will become Net Cash Proceeds at the time of
such reversal or cancellation;


 


(b)           with
respect to the incurrence or issuance of any Debt by Borrower, the excess if
any, of (i) the sum of the cash
or instruments received by or for the account of such Person in connection with
such incurrence or issuance, minus (ii) the
underwriting discounts and commissions or other similar payments, and other
reasonable and customary out of pocket costs, fees, commissions, premiums and
expenses incurred by Borrower in connection with such incurrence or issuance to
the extent such amounts were not deducted in determining the amount referred to
in clause (i);


 


(c)           with
respect to any Equity Issuance, the excess of (i) the sum of
the cash or instruments received by or for the account of Borrower in
connection with such sale or issuance, minus (ii) the
underwriting discounts and commissions or similar payments, and other
reasonable and customary out of pocket costs, fees, commissions, premiums and
expenses, incurred by Borrower in connection with such sale or issuance to the
extent such amounts were not deducted in determining the amount referred to in
clause (i); and


 


(d)           with
respect to any proceeds of or under any insurance, indemnity, condemnation
awards, warranty or guaranty in connection with the occurrence of any Eminent
Domain or property insurance policy, the excess, if any, of (i) the sum of cash or instruments received by or for the account of
Borrower in connection with such Eminent Domain or insurance, minus (ii) the reasonable and customary out of pocket
costs and expenses incurred by 


 


A-18

















 


Borrower in connection with the collection,
enforcement, negotiation, consummation, settlement, proceedings, administration
or other activity related to the receipt or collection of the relevant proceeds
to the extent such amounts were not deducted in determining the amount referred
to in clause (i).


 


“Non-Advancing
Lender” has the meaning given in Section 11.14.


 


“Nonrecourse
Persons” has the meaning given in Article 10.


 


“Notice
of Borrowing” means a notice in the form of Exhibit C-1,
appropriately completed in accordance with the instructions contained in such
form.


 


“Notice
of Commencement” shall have the meaning given in Utah Code Ann.
§ 38-1-31.


 


“Notice
of Interest Terms” means a notice from Borrower to Administrative Agent, in
substantially the form of Exhibit C-2, appropriately completed in
accordance with the instructions contained in such form.


 


“O&M
Agreements” means the (a) Project O&M Agreement, (b) the
Shared Facilities O&M Agreement, (c) the Gen Lead O&M Agreement,
and (d) the Operations Support Agreement, to be entered into after the
Closing Date, between Borrower and General Electric International Incorporated,
a Delaware corporation.


 


“O&M
Costs” means, for any period, cash amounts incurred and paid by Borrower
(or paid by an Affiliate of Borrower; provided that satisfactory
evidence of such payment is provided to Administrative Agent) for the operation
and maintenance of the Project or any portion thereof and for the purchase of
goods and services in connection therewith, including (a) premiums for
insurance policies, (b) the cost of consumables, (c) costs of
obtaining any other materials, supplies, utilities or services for the Project,
(d) costs of maintaining, renewing and amending Permits,
(e) franchise, licensing, property, real estate, sales and excise taxes,
(f) general and administrative expenses, (g) employee salaries, wages
and other employment-related costs, (h) business management and administrative
service fees, (i) costs required to be paid by the Project under any
Project Document or Credit Document (other than scheduled Debt Service and
Project Costs but including scheduled interest or lease payments in respect of
other Permitted Debt) or to satisfy any Legal Requirement or obtain or maintain
any Permit, (j) legal, accounting and consulting fees and other
transaction costs and all other fees payable to the Lenders (other than amounts
constituting scheduled Debt Service), (k) necessary capital expenditures (other
than capital expenditures made in connection with the repair or restoration of
any casualty suffered by the Project to the extent funded with insurance or
similar proceeds applied pursuant to Section 7.4 or infusions of equity
pursuant to the Credit Documents), and (l) all other fees and expenses
necessary for the continued operation and maintenance of the Project and the
conduct of the business of the Project, but exclusive in all cases of non-cash
charges and also exclusive of all interest charges, Commitment Fee and charges
for the payment or amortization of principal of Loans.  O&M Costs shall not include
(i) depreciation, (ii) payments for restoration or repair of the
Project from the Insurance Proceeds Account or (iii) income taxes.


 


A-19














 


“Obligations” means and includes all
loans, advances, debts, liabilities, and obligations, howsoever arising, owed
by Borrower (or, if such term is used by reference to any other Person, by such
Person) to any of the Secured Parties of every kind and description (whether or
not evidenced by any note or instrument and whether or not for the payment of
money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, pursuant to the terms of the Credit Documents, including
(a) all interest  (including
interest which, but for the filing of a petition in bankruptcy, would have
accrued on any Obligation, whether or not a claim is allowed for such interest
in the related bankruptcy proceeding), fees, charges, expenses, attorneys’ fees
and accountants fees  chargeable to
Borrower (or such Person) and  payable by
Borrower (or such Person) hereunder or thereunder,  and
(b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of Borrower (or such Person) to such parties under
or pursuant to the Credit Documents.


 


“OFAC” means the U.S. Treasury
Department Office of Foreign Assets Control.


 


“Operating
Budget Category” means (a) individually, any line item category set
forth in that portion of the then-current Annual Operating Budget showing
sources and uses of Project funds, and (b) collectively, all line item
categories set forth in that portion of the then-current Annual Operating
Budget showing sources and uses of Project funds.


 


“Operative
Documents” means, collectively, the Credit Documents and the Project
Documents.


 


“Operators”
means (a) General Electric International Incorporated, a Delaware
corporation, and (b) First Wind O&M.


 


“Other
Taxes” has the meaning given in Section 2.4.4(a).


 


“Parent”
means Milford II Utah Holdings, LLC, a Delaware limited liability company.


 


“Participant”
has the meaning given in Section 13.17.3.


 


“Patriot
Act” has the meaning given in Section 4.30(a).


 


“PBGC” means the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV of ERISA.


 


“Performance LC Distribution” has the meaning
given in Section 6.6.


 


“Performance Tests” means the conduct of any “Performance
Tests” or “acceptance tests” (however defined) required under the Construction
Contract, and any other similar tests, of the Project or any material portion
thereof, excluding the power curve tests.


 


“Permit”
means any action, approval, consent, waiver, exemption, variance, franchise,
order, permit, authorization, right or license of or from a Governmental
Authority or any other Person.


 


A-20

















 


“Permit
Schedule” has the meaning given in Section 3.1.14(a).


 


“Permitted
Debt” means (a) Debt incurred under the Credit Documents,
(b) Debt pursuant to the terms of a Project Document (but not for borrowed
money), either not more than 90 days past due or being contested in good
faith, (c) trade or other similar Debt incurred in the ordinary course of
business (but not for borrowed money), either not more than 90 days past
due or being contested in good faith, (d) Contingent Obligations, to the
extent otherwise constituting Debt, including those related to (i) the
endorsement of negotiable instruments received in the normal course of its
business, and (ii) Contingent Obligations incurred with respect to any
Applicable Permit or Operative Document, (e) prior to Commercial
Operation, Contingent Obligations, to the extent otherwise constituting Debt,
including those related to the acquisition of goods, supplies or merchandise in
the normal course of business or normal trade credit, (f) prior to
Commercial Operation, purchase money obligations incurred to finance the
purchase price of discrete items of equipment not comprising an integral part
of the Project that extend only to the equipment being financed in an aggregate
amount of secured principal and capital lease obligations not exceeding
$250,000 at any one time outstanding, and (g) prior to Commercial
Operation, obligations in respect of surety bonds or similar instruments in an
aggregate amount not exceeding $125,000 at any one time outstanding.


 


“Permitted
Investments” means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof) having a maturity not exceeding one year
from the date of issuance, (b) interest-bearing deposit accounts,
including time deposits and certificates of deposit, of any Lender or any
domestic or foreign commercial bank whose outstanding long-term debt is rated
at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody’s having capital and surplus in excess of
$500,000,000 having a maturity not exceeding 90 days from the date of
acquisition, (c) commercial paper issued by any domestic corporation rated
at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody’s and, in each case, having a maturity not
exceeding 90 days from the date of acquisition, (d) fully secured
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (a) above entered into
with any bank meeting the qualifications established in clause (b) above,
(e) high-grade corporate bonds rated at least AA or the equivalent thereof
by S&P or at least Aa2 or the equivalent thereof by Moody’s having a
maturity not exceeding 90 days from the date of acquisition,
(f) banker’s acceptances drawn on and accepted by any domestic or foreign
commercial bank whose long-term senior unsecured debt is rated at least A or
the equivalent thereof by S&P or at least A2 or the equivalent thereof by
Moody’s, (g) money market mutual funds whose investment criteria are
substantially similar to items (a) through (f) of this
definition, (h) instruments issued by an investment company rated at least
A or the equivalent thereof by S&P or at least A2 or the equivalent thereof
by Moody’s having a portfolio consisting of 95% or more of the securities
described in items (a) through (g) of this definition,
(i) investment contracts pursuant to which moneys are deposited (to bear
interest at an agreed rate) with a bank, insurance company or other financial
institution whose long-term senior unsecured debt is rated at least A or the
equivalent thereof by S&P or at least A2 or the equivalent thereof by Moody’s,
(j) tax exempt short-term securities having at least a credit rating A or
greater by S&P or Prime or greater by Moody’s maturing or being due or
payable in full not more than one hundred and eighty days after acquisition
thereof; (k) money 


 


A-21

















 


market
funds for which the Depositary or any of its Affiliates is investment manager
or advisor; (l) any other investments approved by Collateral Agent (acting
with the consent of the Required Lenders) in a writing delivered to the
Depositary; and (m) the CoBank Equities and any other stock or securities
of, or Investments in, CoBank or its investment services or programs.


 


“Permitted
Liens” means (a) Liens granted in favor of the Secured Parties under
the Collateral Documents and the rights and interests of any Secured Party as
provided therein; (b) statutory Liens for any current tax, assessment or
other governmental charge not yet due and payable, and liens for taxes,
assessments or governmental charges being contested in accordance with the
requirements of Section 5.18, (c) materialmen’s, mechanics’, workers’,
repairmen’s, employees’ or other like Liens, arising in the ordinary course of
business or in connection with the construction of the Project, either for
amounts not yet delinquent or for amounts being contested in good faith and by
appropriate proceedings, so long as (i) such proceedings shall not involve
any substantial danger of the sale, forfeiture or loss of the Project, the Site
or any Easements, as the case may be, title thereto or any interest therein and
shall not interfere in any material respect with the use or disposition of the
Project, the Site or any Easements, (ii) a bond or other security
reasonably acceptable to Administrative Agent has been posted or provided in
such manner and amount as to assure Administrative Agent that any amounts
determined to be due will be promptly paid in full when such contest is
determined, or (iii) adequate cash reserves have been provided therefor;
(d) Liens arising out of judgments or awards so long as an appeal or
proceeding for review is being prosecuted in good faith and for the payment of
which adequate reserves, bonds or other security reasonably acceptable to
Administrative Agent have been provided or are fully covered by insurance;
(e) Title Exceptions; (f) Liens, deposits or pledges to secure
statutory obligations or performance of bids, tenders, contracts (other than
for the repayment of borrowed money) or leases, or for purposes of like general
nature in the ordinary course of its business, not to exceed $500,000  in the aggregate at any time, and with any
such Lien to be released as promptly as practicable; (g) other Liens
incident to the ordinary course of business that are not incurred in connection
with the obtaining of any loan, advance or credit and that do not in the aggregate
materially impair the use of the property or assets of Borrower or the value of
such property or assets for the purposes of such business; (h) involuntary
Liens as contemplated by the Operative Documents (including a lien of an
attachment, judgment or execution) securing a charge or obligation, on any of
Borrower’s property, either real or personal, whether now or hereafter owned in
the aggregate sum of less than $500,000; (i) pledges and deposits made in
the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations; (j) any
zoning, building or similar laws or rights reserved to or vested in any
Governmental Authority; and (k) CoBank’s statutory Lien on the Borrower’s
CoBank Equities.


 


“Person”
means any natural person, corporation, partnership, limited liability company,
firm, association, Governmental Authority or any other entity whether acting in
an individual, fiduciary or other capacity.


 


“Phase
I Environmental Report” means the Phase I Environmental Site Assessment,
dated as of January 2009, the Phase I Environmental Site Assessment
Update, dated as of March 2010, and a second Phase I Environmental Site
Assessment Update, dated as of September 1, 2010, each prepared by the
Environmental Consultant.


 


A-22

















 


“Plans
and Specifications” means the plans and specifications for the construction
and design of the Project as set forth in the Construction Contract, as updated
from time to time, and any other similar design, engineering or technical
documents referred to in the Construction Contract.


 


“Platform”
has the meaning given in Section 13.30.


 


“Pledge
Agreement” means, the Pledge and Security Agreement, dated as of the
Closing Date, in substantially the form of Exhibit D-3, among
Pledgor, Borrower and Collateral Agent.


 


“Pledgor”
means Milford II Holdings, LLC, a Delaware limited liability company.


 


“PPA”
means the Power Purchase Agreement, dated as of March 1, 2010, between SCPPA
and Borrower.


 


“Preliminary
Notice” shall have the meaning given in Utah Code Ann. § 38-1-32.


 


“Prepayment
Amount” means the “Prepayment Amount” as such term is defined in the PPA.


 


“Project”
means the approximately 102 MW wind power generation plant and an
undivided ownership interest in the 345 kV generator lead line, operation and
maintenance building, roads and substation to be located on the Site and the
Easements.


 


“Project
Budget” has the meaning given in Section 3.1.19.


 


“Project
Budget Category” means any line item category set forth in that portion of
the Project Budget showing sources and uses of Project funds, as in effect on
the Closing Date.


 


“Project
Costs” means all costs associated with the development, design,
engineering, construction, testing, installation, equipping, assembly,
inspection, completion, and start-up of the Project and preparation of the
Site, including: (a) all amounts payable under the Project Documents,
including liquidated damages payable thereunder, any state taxes on equipment,
costs incurred for design, site acquisition and preparation, permitting,
manufacturing construction, project management, installation, and testing, any
utility interconnection costs payable by Borrower pursuant to the
Interconnection Agreement and all water and wastewater disposal interconnection
and pumping station or water well costs and all project development expenses
and fees incurred by Pledgor and Borrower; (b) financing, advisory, legal
and other fees; (c) all other Project-related costs and other development
costs (including all Site related costs payable to any Person, including
landowners or any Governmental Authority), insurance costs, management services
fees and expenses and expenses to complete the development, design, construction
and financing of the Project; (d) contingency funds, start-up costs and
initial working capital costs; (e) O&M Costs; (f) interest and
fees incurred on or in respect of any Loan or the Loan Commitment pursuant to
this Agreement; (g) costs associated with insurance and taxes; (h) fees
and expenses associated with arranging the credit facility under the Credit 


 


A-23

















 


Documents;
(i) deposits made in connection with the Project Documents to the
applicable counterparties; (j) the purchase price and other payments made
in connection with the purchase, scope, modification, remediation, storage and
transportation of the turbines; (k) any deposit into the SCPPA Cure
Reserve Account as provided in Section 9.2; (l) any owner-furnished
equipment and spare parts; and (m) any support for Borrower’s contractual
and regulatory obligations which are deposited in to escrow account in form and
substance reasonably satisfactory to Administrative Agent so long as such
contractual or regulatory obligations require the drawing of such support to be
applied to such obligation.


 


“Project
Document Modification” has the meaning given in Section 6.12.1.


 


“Project
Documents” means, without duplication, the Major Project Documents and any
other agreement or document relating to the development, construction or
operation of the Project to which Borrower is a party.


 


“Project
Jurisdiction” means the State of Utah.


 


“Project
O&M Agreement” means the Project O&M Agreement, dated as
October 20, 2010, between Borrower and First Wind O&M.


 


“Project
Revenues” means, without duplication, all income and cash receipts of
Borrower derived from the ownership or operation of the Project, including
payments received by Borrower under the PPA, the Construction Contract, the
Turbine Supply Agreement and the O&M Agreements, proceeds of any delay in
start up or business interruption or liability insurance (to the extent such
liability insurance proceeds represent reimbursement of third party claims
previously paid by Borrower), income derived from the sale or use of electric
capacity or energy transmitted or distributed or ancillary services produced by
the Project, payments for transmission rights and investment income on amounts
in the Accounts (solely to the extent deposited in the applicable Account); provided,
however, “Project Revenues” shall not include liquidated damages
received prior to Commercial Operation.


 


“Project
Schedule” means the schedule for construction and completion of the Project
as set forth in the schedule attached as Exhibit G-3.


 


“Proportionate Share” means the percentage
interest of each Lender in the Total Loan Commitment as set forth on Exhibit H.


 


“Prudent
Industry Practices” means those practices, methods, equipment,
specifications and standards of safety and performance, as the same may change
from time to time, as are commonly used by wind powered electric generation
stations in the region and of a type and size similar to the Project as good,
safe and prudent engineering practices in connection with the design,
construction, operation, maintenance, repair and use of electrical and other
equipment, facilities and improvements of such electrical station, with
commensurate standards of safety, performance, dependability, efficiency and
economy.  “Prudent Industry Practices”
does not necessarily mean one particular practice, method, equipment
specification or standard in all cases, but is instead intended to encompass a
broad range of acceptable practices, methods, equipment specifications and
standards.


 


A-24

















 


“PUHCA”
means the Public Utility Holding Company Act of 2005, as it may be amended (42
U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18
C.F.R. Part 366).


 


“Rate
Margin” means for all Eurodollar Loans 3.00%, and for all Base Rate Loans
2.00%.


 


“Real
Property” means the real property, including the Site and the Improvements,
which is the subject of the Trust Deed.


 


“Recapture
Event” means any event that could lead to a required repayment of all or
any portion of the Grant as a result of a disallowance claim or a recapture as
set forth in Section 1603 of the American Recovery and Reinvestment Act of
2009 and the Treasury Guidance.


 


“Register”
has the meaning given in Section 2.9.


 


“Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve
System (or any successor).


 


“Regulatory
Change” means any change after the Closing Date in federal, state, local or
foreign laws, regulations, Legal Requirements or requirements under Applicable
Permits, or the adoption or making after such date of any interpretations,
directives or requests of or under any federal, state, local or foreign laws,
regulations, Legal Requirements or requirements under Applicable Permits
(whether or not having the force of law) by any Governmental Authority charged
with the interpretation or administration thereof.


 


“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.


 


“Release”
means disposing, discharging, injecting, spilling, leaking, leaching, dumping,
pumping, pouring, emitting, escaping, emptying, seeping, placing or the like,
into or upon any land or water or air, or otherwise entering into the
environment.


 


“Remedial
Plan” has the meaning given in Section 5.13.2.


 


“Repayment
Account” has the meaning given in Section 1.1 of the Depositary
Agreement.


 


“Replacement
Project Participant” means, with respect to any Minor Project Participant,
any Person having credit, or acceptable credit support, and/or experience, as
applicable, equal to or greater than that of the replaced Minor Project
Participant on the date that the applicable Minor Project Document was entered
into (as reasonably determined by Administrative Agent) who, pursuant to a
definitive agreement, assumes the remaining obligations of the replaced Minor
Project Participant under the applicable Minor Project Document on terms and
conditions (taken as a whole) substantially similar to or more favorable 


 


A-25

















 


to
Borrower than those applicable to the replaced Minor Project Participant
pursuant to the applicable Minor Project Document (as reasonably determined by
Administrative Agent).


 


“Reportable
Event” means any of the events set forth in Section 4043(b) or (c) of
ERISA for which notice to the PBGC has not been waived.


 


“Required
Lenders” means, at any time, Lenders having Proportionate Shares which in
the aggregate exceed 50%.  Notwithstanding the foregoing, the Loan
Commitment of, and the portion of the Loans held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Reserve
Requirement” means, for any Interest Period for any Eurodollar Loans, the
average maximum rate (expressed as a percentage) at which reserves (including
any marginal, supplemental or emergency reserves) are required to be maintained
during the Interest Period therefor under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding $1,000,000,000
against “Eurocurrency liabilities” (as such term is used in
Regulation D).  Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks by reason of any
Regulatory Change against (a) any category of liabilities which includes
deposits by reference to which the Eurodollar Rate or Eurodollar Loans is to be
determined, (b) any category of liabilities or extensions of credit or
other assets which include Eurodollar Loans or (c) any category of
liabilities or extensions of credit which are considered irrevocable commitments
to lend.  Eurodollar Loans shall be
deemed to constitute Eurocurrency liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.


 


“Responsible
Officer” means, as to any Person, its president, chief executive officer,
any vice president, treasurer, or secretary or any natural Person who is a
managing general partner or manager or managing member of a limited liability
company (or any of the preceding with regard to any such managing general
partner, manager or managing member).


 


“Revenue
Account” has the meaning given in Section 1.1 of the Depositary
Agreement.


 


“Rights
of Way” has the meaning given in Section 3.1.24(g).


 


“RMT
Guaranty” means the Parent Company Guaranty dated as of September 15,
2010 between RMT Parent and Borrower.


 


“RMT
Parent” means Alliant Energy Corporation, a Wisconsin corporation.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.


 


“Sale
Proceeds” has the meaning given in Section 7.6.2.


 


“Santander”
has the meaning given in the preamble.


 


A-26

















 


“SCPPA”
means the Southern California Public Power Authority.


 


“SCPPA
Consent” means that certain Consent and Agreement dated as of the date
hereof between Collateral Agent/Administrative Agent and SCPPA.


 


“SCPPA
Cure Loan” has the meaning given in Section 9.2


 


“SCPPA
Cure Period” means (a) with respect to monetary Events of Default, 30
days from SCPPA’s receipt of notice of such Event of Default, and (b) with
respect to non-monetary Events of Default, 60 days from SCPPA’s receipt of
notice of such Event of Default (provided, that such 60 day period shall
be extended to 90 days if SCPPA is diligently pursuing appropriate action to
cure and has made progress toward curing such non-monetary Event of Default
during such 60 day period).


 


“SCPPA
Cure Reserve Account” has the meaning given in Section 1.1 of the
Depositary Agreement.


 


“SEC”
means the United States Securities and Exchange Commission.


 


“Secured
Parties” means Administrative Agent, Collateral Agent, the Lenders, and
each of their respective successors, transferees and permitted assigns and
shall include, without limitation, all former Administrative Agents, Collateral
Agents and Lenders to the extent that the Obligations owing to such Persons
were incurred while such Persons were in such capacities and such Obligations
have not been paid or satisfied in full; provided, that no Affiliate of
Sponsor shall be a “Secured Party” under any Credit Document.


 


“Securities
Act” means the Securities Act of 1933, as amended from time to time, and
any successor statute.


 


“Security
Agreement” means the Security Agreement, dated as of the Closing Date, in
substantially the form of Exhibit D-2, between Borrower and
Collateral Agent.


 


“Settlement
Amount” has the meaning given in Section 5.10.6(b).


 


“SGAS”
has the meaning given in the preamble.


 


“Shared
Facilities Agreement” means the Tenant in Common Agreement (Site Common
Facilities), dated as of October 20, 2010, between Borrower and Milford I.


 


“Shared
Facilities Agreement O&M Agreement” means the Site Common Facilities
Services and Maintenance Agreement, dated as of October 20, 2010, among
Borrower, Milford I and First Wind O&M.


 


“Site”
has the meaning given in the Trust Deed (as they may be amended from time to
time).


 


“Site
Common Facilities” has the meaning given in the PPA.


 


A-27

















 


“SITLA”
means the State of Utah, Institution of Trust Lands Administration.


 


“SITLA
Lease” means the Amended and Restated Special Use Lease Agreement No. 1599B, with an effective date of April 22, 2009, between SITLA
and Borrower.


 


“SITLA
Right of Way” means the Easement No. 1280 between SITLA and Milford I.


 


“Solvent”
means, with respect to any Person on a particular date, that, at fair
valuations, the sum of such Person’s assets is greater than all of such Person’s
debts.


 


“SPC”
has the meaning given in Section 13.17.7.


 


“Sponsor”
means First Wind Holdings, LLC, a Delaware limited liability company.


 


“Storage
Agreements” means (a) the Lease Agreement, dated as of August 16,
2010, by and between Danville Properties, LLC, a New York corporation, and
Windfarm Prattsburgh, LLC, a Delaware limited liability company, as subleased
to Borrower pursuant to the Storage Sublease, dated as of October 20,
2010, by and between Windfarm Prattsburgh, LLC, a Delaware limited liability
company, and Borrower, (b) the Storage Sublease, dated as of September 1,
2010, by and between Evergreen and AKTEM Business Park, LLC, as subleased to
Borrower pursuant to the Storage Sub-Sublease Houlton, Maine: Evergreen to
Milford, dated as of October 20, 2010, by and between Evergreen and Borrower,
and (c) the Storage Lease, dated as of July 6, 2010, by and among the
Individual Bailees and Evergreen, as subleased to Borrower pursuant to the
Storage Sublease Oakfield, Maine: Evergreen to Milford, dated as of October 20,
2010, by and between Evergreen and Borrower.


 


“Subject
Claims” has the meaning given in Section 5.10.1(a).


 


“Subordinated
Loan Facility” means the term loan in favor of First Wind Holdings, LLC, a
Delaware limited liability company, by Credit Suisse AG, Cayman Islands Branch,
as administrative agent, and various financial institutions, pursuant to that
certain Term Loan Agreement, dated as of March 23, 2010, and documents
related thereto.


 


“Subsidiary”
means, as to any Person, a corporation, partnership, limited liability company
or other entity of which such Person: (a) owns 10% or more of the shares
of stock or other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity and/or
(b) controls the management, directly or indirectly through one or more
intermediaries.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of a Person.


 


“Tax
Equity Contribution Conditions” means (a) a tax equity contribution
has been made to the Borrower (or an Affiliate of the Borrower and such
proceeds have been contributed to the Borrower) and (b) the Net Cash
Proceeds of such tax equity contribution have 


 


A-28

















 


been
applied to prepay the Loans pursuant to Section 2.1.7(c) in an amount
at least equal to the expected proceeds of the Grant as of the Closing Date.


 


“Taxes”
has the meaning given in Section 2.4.4(a).


 


“Title
Exception” means the exceptions to title set forth in the Title Policy.


 


“Title
Insurer” means the First American Title Insurance Company.


 


“Title
Policy” means that certain policy of the title insurance issued by the
Title Insurer dated as of the Closing Date, as provided in Section 3.1.23,
including all amendments thereto, endorsements thereof and substitutions or
replacements therefor.


 


“Total
Loan Commitment” has the meaning given in Section 2.2.1.


 


“Transmission
Line” has the meaning given in the PPA.


 


“Transportation
Agreement” means Transportation Facilitation Agreement, dated as of September 15,
2010, by and between Borrower (as assignee from First Wind Energy, LLC) and
E.W. Wylie Corporation, a North Dakota corporation.


 


“Treasury
Guidance” means the U.S. Treasury Department’s program guidance publication
entitled “Payments for Specific Energy Property in Lieu of Tax Credits under
the American Recovery and Reinvestment Act of 2009,” dated July 2009 as
revised in March 2010, and any other guidance, instructions or terms and
conditions published or issued by the U.S. Treasury Department in respect of
the ITC Cash Grant or any application therefor.


 


“Trust
Deed” means the Fee and Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing, dated as of the Closing Date, in substantially
the form of Exhibit D-1, by Borrower, to First American Title
Insurance Company for the benefit of Collateral Agent.


 


“Turbine
Supplier” means General Electric Company, a New York corporation, acting
through its GE Energy business.


 


“Turbine
Supply Agreement” means the Contract for the Sale of (68 by 1.5sle Wind
Turbine Generators) Power Generation Equipment and Related Services, dated as
of April 9, 2010, between Turbine Supplier and Borrower, as successor in
interest to First Wind Acquisition, LLC, a Delaware limited liability company.


 


“Turbine
Supply Financing” means the financing for the purchase of the turbines for
use in connection the Project.


 


“Type”
means the type of Loan, whether a Base Rate Loan or Eurodollar Loan.


 


“UCC”
means the Uniform Commercial Code as the same may, from time to time, be in
effect in the State of New York; provided, in the event that, by reason
of mandatory provisions of law, any or all of the perfection or priority of the
security interest in any Collateral 


 


A-29

















 


is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York the term “UCC” shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions of
the Credit Documents relating to such perfection or priority and for purposes
of definitions related to such provisions.


 


“Unsatisfied
Condition” means a condition in a Permit that has not been satisfied and
that either (a) must be satisfied before such Permit can become effective,
(b) must be satisfied as of the date on which a representation is made or
a condition precedent must be satisfied under this Agreement, or (c) must
be satisfied as of a future date but with respect to which facts or
circumstances exist which, to Borrower’s knowledge, could reasonably be
expected to result in a failure to satisfy such Permit condition.


 


“Wind
Consultant” means AWS Truewind, LLC.


 


“Wind
Report” means that certain Estimation of the Wind Resource and Energy
Production of the Proposed Milford Phase II Wind Project, dated November 22,
2009, prepared for First Wind by the Wind Consultant.


 


A-30

















 


RULES OF INTERPRETATION


 


The
following rules of interpretation shall apply to all Credit Documents:


 


1.             The singular includes the plural
and the plural includes the singular. 
The definitions of terms apply equally to the singular and plural forms
of the terms defined.


 


2.             The word “or” is not exclusive.


 


3.             A reference to a Governmental Rule includes
any amendment or modification to such Governmental Rule (including any
successor Governmental Rules and section references to such Governmental Rule shall
be construed to refer to any successor sections), and all regulations, rulings
and other Governmental Rules promulgated under such Governmental Rule.


 


4.             A reference to a Person includes
its permitted successors, permitted replacements and permitted assigns.


 


5.             The words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


6.             The words “include,” “includes” and
“including” are not limiting.


 


7.             A reference in a document to an
Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article,
Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise
indicated.  Exhibits, Schedules, Annexes
or Appendices to any document shall be deemed incorporated by reference in such
document.  In the event of any conflict
between the provisions of the Credit Agreement (exclusive of the Exhibits,
Schedules, Annexes and Appendices thereto) and any Exhibit, Schedule, Annex or
Appendix thereto, the provisions of the Credit Agreement shall control.


 


8.             References to any document, instrument
or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, and (c) shall mean
such document, instrument or agreement, or replacement or predecessor thereto,
as amended, amended and restated, modified and supplemented from time to time
and in effect at any given time.


 


9.             The words “hereof,” “herein” and “hereunder”
and words of similar import when used in any document shall refer to such
document as a whole and not to any particular provision of such document.


 


10.           References to “days” shall mean
calendar days, unless the term “Business Days” shall be used.


 


11.           Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms.  The word “will” has the same
meaning and effect as the word “shall.”


 


A-31

















 


12.           In the computation of periods of time
from a specified date to a later specified date, the word “from” means “from
and including” and the words “to” and “until” each mean “to but excluding.”


 


13.           A reference to a time of day refers
to the prevailing time in New York City.


 


14.           If, at any time after the Closing
Date, Moody’s or S&P shall change its respective system of classifications,
then any Moody’s or S&P “rating” referred to herein shall be considered to
be at or above a specified level if it is at or above the new rating which most
closely corresponds to the specified level under the old rating system.


 


A-32














 


Exhibit B

to the Credit Agreement


 


[RESERVED]


 


B

















 


Exhibit C-1

to the Credit Agreement


 


FORM OF NOTICE OF BORROWING


 


[INSERT
LETTERHEAD OF BORROWER]


 


Date:                        ,             


 


The
Royal Bank of Scotland plc,


as Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Re:  Milford Wind Corridor Phase II, LLC —
Notice of Borrowing


 


Ladies
and Gentlemen:


 


This
Notice of Borrowing is delivered to you pursuant to Section 2.1.1(b) of
the Credit Agreement, dated as of October 20, 2010 (the “Credit Agreement”), among Milford
Wind Corridor Phase II, LLC, as borrower, The Royal Bank of Scotland plc, as administrative
agent, collateral agent and a lender, and the financial institutions party
thereto from time to time.  Unless
otherwise defined herein, capitalized terms used herein have the meanings
provided in the Credit Agreement.


 


Borrower
hereby gives you notice in accordance with Section 2.1.1(b) of the
Credit Agreement that Borrower requests the Lenders to advance to Borrower
certain Loans as described below (the “Proposed Borrowing”):


 


The requested date of the
Proposed Borrowing is
                    
    ,         ,
which is a Business Day.


 


The Proposed Borrowing
shall consist of an aggregate principal amount of Loans equal to
$                .


 


The Proposed Borrowing
shall consist of [$                
in Base Rate
Loans][and][$                
in Eurodollar Loans with an initial Interest Period as set forth below].


 


C-1-1

















 


	
  Amount Requested

  	
   

  	
  Initial Interest Period

  
	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
                   month(s)

  
	
  $

  	
   

  	
   

  	
                   month(s)

  
	
  $

  	
   

  	
   

  	
                   month(s)

  



 


The Project Costs to be paid with the Proposed Borrowing are set forth
below.


 


	
  Project Cost

  	
   

  	
  Amount to be Allocated

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
  $

  	
   

  



 


Borrower
hereby certifies to Administrative Agent and the Lenders that the following
statements are accurate, true and complete as of the date hereof, and will be
accurate, true and complete as of the date of the Proposed Borrowing:


 


A.            Each statement
certified to by Borrower in the Drawdown Certificate, dated as of
                    
    ,         , with
respect to the Proposed Borrowing is accurate, true and complete.


 


B.            The amount of the
Proposed Borrowing (i) does not exceed the Available Loan Commitment
determined as of the date of the Proposed Borrowing, and (ii) when
aggregated with all other Loans made under the Credit Agreement, does not
exceed the Total Loan Commitment.


 


C.            Each of the
conditions precedent set forth in Section 3.2 of the Credit Agreement has
been satisfied or waived with respect to the Proposed Borrowing in accordance
with the terms thereof.


 


[Signature page follows]


 


C-1-2

















 


IN
WITNESS WHEREOF, Borrower has caused this Notice of Borrowing to be duly
executed and delivered by an authorized officer of Borrower as of the date
first above written.


 


	
   

  	
  MILFORD WIND CORRIDOR
  PHASE II, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Notice of Borrowing – Signature Page


 


C-1-3

















 


Exhibit C-2


to the Credit Agreement


 


FORM OF NOTICE OF INTEREST TERMS


 


[LETTERHEAD
OF BORROWER]


 


Date:                                 ,          


 


The
Royal Bank of Scotland plc,


as Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Re:  Milford Wind Corridor Phase II, LLC —
Notice of Interest Terms


 


Ladies
and Gentlemen:


 


This
Notice of Interest Terms is delivered to you pursuant to the requirements of
the Credit Agreement, dated as of October 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among Milford
Wind Corridor Phase II, LLC, a Delaware limited liability company, as borrower,
The Royal Bank of Scotland plc, as administrative agent, collateral agent and a
lender, and the financial institutions party thereto from time to time.  Unless otherwise defined herein, capitalized
terms used herein have the meanings provided in the Credit Agreement.


 


(Borrower to check the appropriate box)


 


o                                                            This Notice of
Interest Terms, delivered pursuant to Section 2.1.6 of the Credit
Agreement, confirms our [telephonic/electronic]
notice of even date herewith relating to the following Eurodollar
Loans:


 


	
  Amount

  	
   

  	
  Last Rollover Date or Initial

  Funding Date (as applicable)

  	
   

  	
  Last Date of Current Interest

  Period

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
   

  



 


C-2-1

















 


This
Notice of Interest Terms constitutes a confirmation that effective
                  
    ,        (which date is
the last day of the applicable Interest Period), the requested Interest Period
for each of the above referenced Eurodollar Loans (which Eurodollar Loans, to
the extent that they each have the same rollover date and the same Interest
Period selection, shall hereafter be considered a single Eurodollar Loan for
all purposes under the Credit Agreement) shall be
       month(s) (the “Interest Period
Selection”) [Borrower
to modify as necessary if more than one
Interest Period is being selected for such Eurodollar Loans].


 


o            Borrower  hereby
requests in accordance with Section 2.1.5 of the Credit Agreement that
certain Loans be converted from one Type of Loan to another Type of Loan, as
more particularly described below (the “Proposed Loan Conversion”):


 


(a)           Borrower
hereby requests that
$        ,    00,000
of Loans be converted from [Base Rate Loans]
[Eurodollar Loans] to [Base Rate Loans] [Eurodollar Loans].


 


(b)           [If such Loans are to be converted from Base Rate
Loans into Eurodollar Loans, then insert the following:  Borrower hereby requests that such Base Rate Loans be converted to
Eurodollar Loans with an initial Interest Period of
       month(s).] [Borrower to modify as
necessary if more than one Interest Period is selected]


 


(c)           The proposed date of the Proposed Loan
Conversion is
                  
      ,
           (which date is a
Business Day [If converting from
Eurodollar Loans into Base Rate Loans, then insert the following: and is the first day after the last day of an
Interest Period for such Eurodollar Loans]).


 


Borrower hereby certifies to
Administrative Agent and the Lenders that the following statements are
accurate, true and complete as of the date hereof, and will be accurate, true
and complete as of the date of the Proposed Loan Conversion or Interest Period
Selection, as applicable:


 


1.             This Notice of
Interest Terms is being delivered to Administrative Agent pursuant to, and in
accordance with, Section 2.1.6 of the Credit Agreement.


 


2.             [If there will be
no Eurodollar Loans outstanding after effectuation of this Notice of Interest
Terms, Borrower may delete the following:  No Event of Default under Section 8.1.2
of the Credit Agreement has occurred and is continuing.  If an Event of Default has occurred and is
continuing under Article 8 of the Credit Agreement other than Section 8.1.2,
Borrower has not received a notice from Administrative Agent or the Required
Lenders pursuant to Section 2.1.5(d) of the Credit Agreement with
respect to the Proposed Loan Conversion.]


 


3.             [If there will be
no Eurodollar Loans outstanding after effectuation of this Notice of Interest
Terms, Borrower may delete the following:  The Interest Period(s) selected by
Borrower comply with, and are in accordance with, Section 2.1.2(d)(i) of
the Credit Agreement.]


 


C-2-2

















 


IN
WITNESS WHEREOF, Borrower  has caused
this Notice of Interest Terms to be duly executed and delivered by an
authorized officer of Borrower  as of the date
first above written.


 


 


	
   

  	
  MILFORD WIND CORRIDOR
  PHASE II, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Notice of
Interest Terms — Signature Page


 


C-2-3














 


Exhibit C-3

to the Credit Agreement


 


FORM OF DRAWDOWN
CERTIFICATE


 


[LETTERHEAD
OF BORROWER]


 


Date:                  
    ,
        (1)


 


Funding Date: 
                
    ,


 


The
Royal Bank of Scotland plc,


as Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Garrad Hassan America, Inc.


as Independent Engineer


9665
Chesapeake Drive, Suite 435


San
Diego, CA 92123


Attention:  Bridget McEwen


Facsimile:  (858) 866-4069


Email:  Bridget.McEwen@garradhassan.com


 


Re:          Milford Wind
Corridor Phase II, LLC — Drawdown Certificate


 


Ladies
and Gentlemen:


 


This
Drawdown Certificate is delivered to you pursuant to Section 3.2.5(a) of
the Credit Agreement, dated as of October 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Milford Wind Corridor Phase II, LLC, a Delaware limited liability
company, as borrower, The Royal Bank of Scotland plc, as administrative agent,
collateral agent and a lender, and the financial institutions party thereto
from time to time.  Capitalized terms
used herein and not otherwise defined have the meanings provided in the Credit
Agreement.


 


I,
[                              ],
am a Responsible Officer of Borrower.  I
have reviewed the provisions of the Credit Documents which are relevant to the
furnishing of this Drawdown Certificate. 
To the extent that this Drawdown Certificate evidences, attests or
confirms 


 






(1)  Certificate must be submitted to
Administrative Agent and Independent Engineer at least three Business Days
prior to the submission of each Notice of Borrowing for each Credit Event.


 


C-3-1

















 


compliance
with any covenants, representations, warranties or conditions precedent
provided for in the Credit Documents, I have made such examination or
investigation as was, in my opinion, reasonably necessary to enable me to
express an informed opinion as to whether such covenants, representations,
warranties or conditions have been complied with.  This Drawdown Certificate relates to a Credit
Event to take place on the date specified above as the “Funding Date” (the “Funding
Date”).


 


I,
on behalf of Borrower, in my capacity as the
[                  ]
thereof, and not in my individual capacity, do hereby certify to the Secured
Parties that the following statements [are accurate, true and complete on the
date hereof, and ](2) will be accurate, true and complete on and as of the
Funding Date, except as waived in writing by Administrative Agent (with the
consent of the Required Lenders if required under the terms of the Credit
Agreement):


 


(1)           The aggregate Project Costs incurred,
but not yet paid, through the date of the requested Credit Event are anticipated
to be $                        .


 


(2)           All proceeds of all Loans and other
amounts deposited into, or credited to, the Construction Account on or prior to
the date hereof[, except for funds remaining in the Construction Account since
the last Funding Date,](3) have been expended and have been applied to (a) Project
Costs or (b) to reimburse Affiliates of Borrower for prior Project Costs
paid by them in accordance with the applicable Drawdown Certificate, the
applicable Project Documents, the Credit Agreement and the Depositary
Agreement.


 


(3)           The Project Costs to be paid with the
funds requested in connection with this Drawdown Certificate are to be paid
with proceeds of the Loans in the amounts shown on Appendix I
hereto.


 


(4)           The currently estimated aggregate
Project Costs are as described and segregated in Appendix I
hereto.  Such amount is consistent with
the current Project Budget or has otherwise been approved or permitted pursuant
to the Credit Agreement.


 


(5)           [Appendix I hereto indicates
the actual amount of Project Costs that were estimated on the previous Drawdown
Certificate.](4)


 


(6)           [The variances in estimated Project
Costs (from the Closing Date to the proposed Funding Date) are summarized in Appendix I
hereto and such variances are described in the current or past construction
progress reports delivered pursuant to Section 5.8.1 of the Credit
Agreement.](5)


 


(7)           Attached in Appendix II hereto
are the previously paid or due and payable invoices, purchase orders or other
documents evidencing the Project Costs that are to be


 






(2)  Delete for first Credit Event.


 


(3)  Delete for first Credit Event.


 


(4)  Delete for first Credit Event.


 


(5)  Delete for first Credit Event.


 


C-3-2

















 


reimbursed or paid with the
funds requested in connection with this Drawdown Certificate.


 


(8)           After taking into consideration the
making of the Credit Event hereby requested, Available Construction Funds are not less than the
aggregate unpaid amount required to achieve Commercial Operation by the Date
Certain in accordance with all Legal Requirements, the Construction Contracts,
each other Project Document pursuant to which construction work with respect to
the Project is being performed and the Credit Documents and to pay or provide
for all anticipated non-construction Project Costs, all as set forth in the
current Project Budget.


 


(9)           The estimated (a) Commercial
Operation Date, under and as defined in the PPA, and (b) Completion Date,
under and as defined in the Credit Agreement, are each set forth on Appendix III
hereto.


 


(10)         Each representation and warranty of
each Borrower Entity in any of the Operative Documents is true and correct in
all material respects (except that any representation and warranty that is qualified
as to “materiality” or “Material Adverse Effect” is true and correct in all
respects) on and as of the date of the Funding Date, before and after giving
effect to the Credit Event requested hereby, with the same effect as though
made on and as of such date, unless such representation or warranty expressly
relates solely to an earlier date.


 


(11)         To
Borrower’s knowledge, each representation and warranty of each Major Project
Participant (other than the Borrower Entities) contained in the Operative Documents
is true and correct in all material respects (except that any representation
and warranty that is qualified as to “materiality” or “Material Adverse Effect”
or the like is true and correct in all respects) on and as of the Funding Date,
before and after giving effect to the Credit Event requested hereby, with the
same effect as though made on and as of such date, unless such representation
and warranty expressly relates solely to an earlier date, and except to the
extent that the failure of such representations and warranties to be true and
correct in all material respects could not reasonably be expected to have a
Material Adverse Effect.


 


(12)         No Default or Event of Default has
occurred and is continuing or will result from the funding of the Credit Event
hereby requested.


 


(13)         All work that has been done on the
Project to date has been done in a good and workmanlike manner and in
accordance with the Construction Contracts, and in accordance with the standard
of care set forth in the Construction Contracts, and there has not been filed
against any of the Collateral or otherwise filed with or served upon Borrower
with respect to the Project or any part thereof, notice of any Lien, claim of
Lien or attachment upon or claim (except any Notice of Commencement filed by
the Construction Contractors and any Preliminary Notices filed by Suppliers, or
similar filings by the Construction Contractors’ respective subcontractors)
affecting the right to receive payment of any of the moneys payable to any of
the Persons named on such request which has not been released by payment or
bonding or otherwise or which will


 


C-3-3

















 


not be released with the
payment of such obligation out of the Loan or non-Loan proceeds hereby
requested, other than Permitted Liens.


 


(14)         Subject
to Borrower’s right to contest Liens as described in the definition of “Permitted
Liens,” attached in Appendix IV are duly executed Lien waivers relating
to mechanics’ and materialmen’s Liens from each Supplier and Construction
Contractor that has a statutory right to file a mechanics’ and/or materialmen’s
Lien for all work, services and materials (including equipment and fixtures of
all kinds, done, previously performed or furnished for the construction of the
Project), for which the related Project Costs have been or will, from the
proceeds of the requested Borrowing, be paid.


 


(15)         All Permits required for the stage of
construction and development of the Project have been obtained (and if the
applicable statute, rule or regulation provides for a fixed period for
judicial or administrative review thereof, such period has expired), and
Borrower has no reason to expect that any other Permits customarily obtained at
a later stage of construction, development or operation will not be obtained as
and when required.


 


[The Remainder of this Page is
Intentionally Left Blank]


 


C-3-4

















 


IN WITNESS WHEREOF, the undersigned, the
[                ]
of Borrower, has caused this Drawdown Certificate to be duly executed and
delivered on behalf of Borrower as of the date first above written.


 


	
   

  	
  MILFORD WIND CORRIDOR
  PHASE II, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Drawdown
Certificate — Signature Page


 


C-3-5

















 


APPENDIX I to Drawdown Certificate


Milford Wind Corridor Phase II, LLC


 


Currently Estimated Aggregate Project Costs


 


	
   

  	
  Project Cost

  	
   

  	
  Amount

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Total: $

  	
   

  	
   

  



 


Actual Amount of Project Costs Estimate in Prior Drawdown Certificate


 


	
   

  	
  Project Cost

  	
   

  	
  Estimate Amount

  	
   

  	
  Actual Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  



 


Summary of Variances in Estimated Project Costs (from the Closing Date
to the Proposed Funding Date)


 


C-3-6

















 


APPENDIX II


to Drawdown Certificate


 


Invoices


 


C-3-7

















 


APPENDIX III


to Drawdown Certificate


 


Estimated Dates


 


Expected Commercial Operation Date:
                    ,
201 


 


Expected Completion Date:
                    ,
201 


 


C-3-8

















 


APPENDIX IV


to Drawdown Certificate


 


Lien Waivers


 


C-3-9














 


Exhibit C-4


to the Credit Agreement


 


FORM OF INDEPENDENT ENGINEER’S DRAWDOWN
CERTIFICATE


 


[LETTERHEAD OF INDEPENDENT
ENGINEER]


 


Date:                  
    ,


 


The
Royal Bank of Scotland plc,


     as
Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


	
  Milford
  Wind Corridor Phase II, LLC

  	
   

  	
  with
  a copy to: 

  
	
  179
  Lincoln Street, Suite 500

  Boston,
  Massachusetts 02111

  Attn:
  Secretary

  Fax:
  (617) 960-2888

  Tel:
  (617) 960-2889

  Email:
  general.counsel@firstwind.com

  	
   

  	
   

  	
   

  First
  Wind Energy, LLC

  179
  Lincoln Street, Suite 500

  Boston,
  Massachusetts 02111

  Attn:
  General Counsel

  Fax:
  (617) 960-2888

  Tel:
  (617) 960-2889

  



 


Re:          Milford Wind
Corridor Phase II — Independent Engineer’s Drawdown Certificate


 


Ladies
and Gentlemen:


 


This
Independent Engineer’s Drawdown Certificate is delivered to you pursuant to
Section 3.2.5(b) of the Credit Agreement, dated as of October 20,
2010 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Milford Wind Corridor Phase II, a Delaware limited
liability company, as borrower, The Royal Bank of Scotland plc, as
administrative agent, collateral agent and a lender, and the financial
institutions party thereto from time to time. 
Capitalized terms used herein and not otherwise defined have the
meanings provided in the Credit Agreement.


 


[                          ] (“Independent
Engineer”) hereby makes the following statements in favor of the Secured
Parties with respect to the Project as of the date hereof:


 


C-4-1

















 


(1)           We have reviewed the
material and data made available to us by the parties to the Construction
Contracts and the relevant Borrower Entities [since the [date of the most recent Credit Event]](6), which information consists of:
the executed Drawdown Certificate and the Appendices thereto, dated                 
    ,          (the “Current
Drawdown Certificate”) and on which the specified “Funding Date” is                 
    ,          (the “Funding Date”), and
drawings, specifications and other data made available to us by the
Construction Contractors and Borrower with respect to the Project.  We have also observed the status of
construction progress and startup activities at the Site.  Our review and observations were performed in
accordance with generally accepted consulting practices consisting of a
walk-through of such Site conducted on                 
    ,         ,
observation of installed equipment and material, observation of work
procedures, review of “Quality Assurance”, “Quality Control” and like reports
as made available by Borrower with respect to the Project and attendance at
monthly construction progress review meetings. 
We have reviewed the Current Drawdown Certificate[, and we have reviewed
all previous Drawdown Certificates delivered in connection with previous Credit
Events. We have also reviewed Borrower’s monthly progress report](7).


 


(2)           To the extent practical, we
have periodically reviewed the progress of the engineering, procurement and
construction for the Project and in the course of this review we have not
discovered any errors or omissions in the claims for materials that have been
procured and work performed in respect of the Project.


 


(3)           Based on our review of the
aforementioned information, and of data provided to us by others, which we have
not independently verified, we are of the opinion that, as of the Funding Date:


 


(a)           The estimated Project Costs
necessary to achieve Completion [are/are not]
as set forth in the Current Drawdown Certificate.  [If not,
continue as follows: In our opinion, the estimated Project Costs
necessary to achieve Completion vary from the estimated Project Costs set forth
in the Current Drawdown Certificate because: [Insert
description of reasons and approximate amount of variance, if possible];


 


(b)           The amount of the currently
estimated aggregate Project Costs [is/is not]
consistent with the Project Budget, as amended or otherwise modified as permitted under the Credit Agreement [Note: If not
consistent with the Project Budget, describe variance];


 


(c)           The work accomplished with
respect to the Project [is/is not] in
accordance with the Project Schedule [Note: If not
in accordance with schedule, specify reasons];


 


(d)           Our scope of review [has/has not] brought to our actual attention any errors in
the information contained in the Current Drawdown Certificate


 






(6)  Delete for first Credit Event.


 


(7)  Delete for first Credit Event.


 


C-4-2

















 


[Note: If any
provision or statement in the Current Drawdown Certificate, or any item
included as a “Project Cost” in the Current Drawdown Certificate, is incorrect
or improper, list and specify reasons and identify such improper costs];


 


(e)           Except as disclosed in the
Permit Schedule, to our knowledge, no other Permits or authorizations from any
Governmental Authority are required in connection with the construction and
operation of the Project;


 


(f)            The quality of construction
performed with respect to the Project [is/is not] in
accordance with generally accepted engineering, construction and project management practices and [appears to
have been/does not appear to have been] performed in a good and
workmanlike manner and in conformance with the applicable Major Project
Documents [Note: If unsatisfactory,
specify reasons];


 


(g)           After taking into
consideration the funding of the Credit Event requested in the Current Drawdown
Certificate, Available Construction Funds are not less than the aggregate unpaid
amount required to achieve Commercial Operation by the Date Certain in
accordance with all Legal Requirements, the Construction Contracts, each other
Project Document pursuant to which construction work with respect to the Project
is being performed and the Credit Documents and to pay or provide for all
anticipated non-construction Project Costs, all as set forth in the current
Project Budget, as amended or otherwise modified as permitted
under the Credit Agreement;


 


(h)           [The aggregate amount of
Project Costs previously paid by [Sponsor/Pledgor]
is
$                  ;](8) [and]


 


(i)            [In an
aggregate amount of not less than the Base Equity Requirement, Borrower has
(a)  applied the proceeds of cash equity contributions made by Sponsor to
the payment of Project Costs, (b)  deposited into the Construction Account
the proceeds of cash equity contributions made by Sponsor and/or
(c) otherwise received in-kind equity contributed by Sponsor or its
Affiliates.](9)


 


Except
as specified above, the undersigned has not discovered any error in the matters
set forth in the Current Drawdown Certificate that are within its scope of
work.


 


[The Remainder of this Page is
Intentionally Left Blank]


 






(8) 
Only include if (i) the Credit Event requested in the Current Drawdown
Certificate is a Loan and (ii) the proceeds of such Loan are intended to
be used to reimburse Sponsor for certain equity contributions made by it as
contemplated under the Credit Agreement.


 


(9)  Only include for the first Credit Event.


 


C-4-3

















 


IN WITNESS WHEREOF, Independent Engineer has caused this
Independent Engineer’s Drawdown Certificate to be duly executed and delivered
by an authorized officer of Independent Engineer as of the date first above
written.


 


	
   

  	
  [                                  ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Independent Engineer’s Drawdown Certificate – Signature Page


 


C-4-4

















 


Exhibit D-1


to the Credit Agreement


 


FORM OF TRUST DEED


 


[see attached]


 


D-1-1

















 


Exhibit D-2


to the Credit Agreement


 


FORM OF SECURITY AGREEMENT


 


[see attached]


 


D-2-1

















 


Exhibit D-3


to the Credit Agreement


 


FORM OF PLEDGE AGREEMENT


 


[see attached]


 


D-3-1

















 


Exhibit D-4


to the Credit Agreement


 


FORM OF DEPOSITARY AGREEMENT


 


[see attached]


 


D-4-1

















 


Exhibit D-5


to the Credit Agreement


 


SCHEDULE OF SECURITY FILINGS


 


	
  Entity

  	
   

  	
  Filing Office

  	
   

  	
  Type of Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford
  Wind Corridor Phase II, LLC

  	
   

  	
  Delaware Secretary of State

  	
   

  	
  UCC-1 (Personalty)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford
  II Holdings, LLC

  	
   

  	
  Delaware Secretary of State

  	
   

  	
  UCC-1 (Personalty)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford
  Wind Corridor Phase II, LLC

  	
   

  	
  Utah Department of Commerce, Division of Corporations

  	
   

  	
  UCC-1 (Transmitting Utility)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford
  Wind Corridor Phase II, LLC

  	
   

  	
  Register of Deeds, Millard County, Utah

  	
   

  	
  Leasehold Deed of Trust, Assignment of Rents and Leases, Security
  Agreement and Fixture Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Milford
  Wind Corridor Phase II, LLC

  	
   

  	
  Register of Deeds, Beaver County, Utah

  	
   

  	
  Leasehold Deed of Trust, Assignment of Rents and Leases, Security
  Agreement and Fixture Filing

  



 


D-5-1

















 


Exhibit E-1


to the Credit Agreement


 


FORM OF CONSENT FOR CONTRACTING PARTY (LONG FORM)


 


[see attached]


 


E-1-1














 


Exhibit E-2


to the Credit Agreement


 


FORM OF CONSENT FOR CONTRACTING PARTY (SHORT FORM)


 


[see attached]


 


E-2-1

















 


Exhibit E-3


to the Credit Agreement


 


SCHEDULE OF CLOSING DATE CONSENTS AND OPINIONS


 


Consents


 


	
  Contracting Party

  	
   

  	
  Major Project Document

  	
   

  	
  Long Form/ Short Form/

  Customized Form

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCPPA

  	
   

  	
  PPA

  	
   

  	
  Customized

  
	
  Interconnector

  	
   

  	
  Interconnection
  Agreement

  	
   

  	
  Customized

  
	
  Construction
  Contractor

  	
   

  	
  Construction
  Contract

  	
   

  	
  Long

  
	
  RMT
  Parent

  	
   

  	
  RMT
  Guaranty

  	
   

  	
  Customized

  
	
  Turbine
  Supplier

  	
   

  	
  Turbine
  Supply Agreement

  	
   

  	
  Long

  
	
  First
  Wind O&M

  	
   

  	
  Project
  O&M Agreement

  	
   

  	
  Long

  
	
  First
  Wind Energy

  	
   

  	
  Administrative
  Services Agreement

  	
   

  	
  Long

  
	
  Milford
  I

  	
   

  	
  Gen
  Lead Agreement, Gen Lead O&M Agreement, Shared Facilities Agreement and
  Shared Facilities O&M Agreement

  	
   

  	
  Long

  
	
  E.W.
  Wylie

  	
   

  	
  Transportation
  Agreement

  	
   

  	
  Long

  
	
  Evergreen

  	
   

  	
  Bailee
  Agreement

  	
   

  	
  Customized

  
	
  Town
  of Houlton

  	
   

  	
  Bailee
  Agreement

  	
   

  	
  Customized

  
	
  Dansville
  Properties, LLC

  	
   

  	
  Bailee
  Agreement

  	
   

  	
  Customized

  
	
  Rahmann/Sharper

  	
   

  	
  Bailee
  Agreement

  	
   

  	
  Customized

  



 


Opinions


 


None


 


E-3-1

















 


Exhibit F-1


to the Credit Agreement


 


FORM OF BORROWER’S CLOSING CERTIFICATE


 


MILFORD WIND CORRIDOR PHASE II, LLC,

a Delaware limited liability company


 


[            ]
[    ], 2010


 


CLOSING CERTIFICATE


 


I
hereby certify that I am the duly elected and qualified
[        ] of Milford Wind Corridor
Phase II, LLC, a Delaware limited liability company (“Borrower”), and
that, as such, I am authorized to execute this certificate on behalf of
Borrower.  This certificate is being
delivered pursuant to Section 3.1.7 of the Credit Agreement, dated as of October 20,
2010 (the “Credit Agreement”), among Borrower, The Royal Bank of
Scotland plc, as administrative agent, collateral agent and a lender, and the
financial institutions party thereto from time to time.  Capitalized terms used herein and not
otherwise defined have the meanings provided in the Credit Agreement.


 


I
hereby certify, on behalf of Borrower, in my capacity as the
[            ]
thereof, and not in my individual capacity, to the Secured Parties as follows:


 


1.             Each Credit Document delivered to
Administrative Agent on or prior to the date hereof has been duly authorized,
executed and delivered by the parties thereto and is in full force and effect.


 


2.             The agreements listed in Appendix
I hereto constitute all of the Project Documents in effect as of the
Closing Date (other than any Project Document which is only incidental to the
development, construction, leasing, ownership or operation of the Project), and
a true, complete and correct copy of each such Project Document has been
delivered to Administrative Agent on or prior to the date hereof pursuant to Section 3.1.6(b) of
the Credit Agreement.  Each Project
Document has been duly authorized, executed and delivered by the parties
thereto and is in full force and effect.


 


3.             Borrower has (a) applied the
proceeds of cash equity contributions made by Sponsor to the payment of Project
Costs, (b) deposited into the Construction Account the proceeds of cash
equity contributions made by Sponsor which collectively are in an aggregate
amount not less than the Base Equity Requirement, and/or (c) otherwise
received in-kind equity contributed by Sponsor of its Affiliates.


 


4.             To the knowledge of Borrower, since
the date of the most recent audited financial statements of each of RMT Parent,
SCPPA and Turbine Supplier delivered pursuant to Section 3.1.17 of the
Credit Agreement, no event, circumstance or condition has occurred and is continuing
that constitutes or could reasonably be expected to result in a Material
Adverse


 


F-1-1

















 


Effect.


 


5.             Each of Borrower’s and Pledgor’s
representations and warranties contained in each of the Credit Documents is
true and correct as of the date hereof (unless such representation and warranty
refers to an earlier date, in which case such representation and warranty was
true and correct as of such earlier date).


 


6.             Each of the conditions precedent
set forth in Section 3.1 of the Credit Agreement has been satisfied or
waived in accordance with the terms and conditions of the Credit Agreement as
of the date hereof.


 


7.             As of the date hereof, no event has
occurred and is continuing that constitutes a Default or an Event of Default
under any of the Credit Documents.


 


8.             All potable water, sewer,
telephone, electric and all other utility services necessary for the
development, construction, ownership and operation of the Project are either
contracted for, or readily available on commercially reasonable terms, at the
Project.


 


[The Remainder of this Page is Intentionally Left Blank]


 


F-1-2

















 


IN WITNESS WHEREOF, I, the
[            ] of
Borrower, have signed my name to this Closing Certificate as of the date first
set forth above.


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
  Milford
  Wind Corridor Phase II, LLC

  



 


Borrower’s Closing Certificate — Signature Page


 


F-1-3

















 


Appendix I


to Borrower’s Closing Certificate


 


Project Documents


 


[First Wind
to provide complete list using specific document names]


 


F-1-4

















 


Exhibit F-2


to the Credit Agreement


 


FORM OF PLEDGOR CLOSING CERTIFICATE


 


MILFORD II HOLDINGS, LLC,


a Delaware limited liability company


 


[            ]
[    ], 2010


 


CLOSING CERTIFICATE


 


I
hereby certify that I am the duly elected and qualified
[        ] of Milford II Holdings, LLC,
a Delaware limited liability company (“Pledgor”), and that, as such, I
am authorized to execute this certificate on behalf of Pledgor.  This certificate is being delivered pursuant
to Section 3.1.7 of the Credit Agreement, dated as of October 20,
2010 (the “Credit Agreement”), among Milford Wind Corridor Phase II, LLC,
as borrower, The Royal Bank of Scotland plc, as administrative agent,
collateral agent and a lender, and the financial institutions party thereto
from time to time.  Capitalized terms
used herein and not otherwise defined have the meanings provided in the Credit
Agreement.


 


I
hereby certify, on behalf of Pledgor, in my capacity as the
[              ]
thereof, and not in my individual capacity, to the Secured Parties as follows:


 


1.             Each of Pledgor’s representations
and warranties contained in each of the Credit Documents to which Pledgor is a
party is true and correct as of the date hereof (unless such representation and
warranty refers to an earlier date, in which case such representation and
warranty was true and correct as of such earlier date).


 


2.             As of the date hereof, no event has
occurred and is continuing that constitutes a Default or an Event of Default
under any of the Credit Documents to which Pledgor is a party.


 


[The
Remainder of this Page is Intentionally Left Blank]


 


F-2-1

















 


IN WITNESS WHEREOF, I, the
[            ] of
Pledgor, have signed my name to this Closing Certificate as of the date first
set forth above.


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
  [    ]

  



 


Pledgor’s Closing Certificate – Signature
Page


 


F-2-2

















 


Exhibit F-3


to the Credit Agreement


 


FORM OF BORROWER ENTITY’S CLOSING CERTIFICATE


 


[                          ]

a
[                          ]


 


[            ]
[    ], 2010


 


 


CLOSING CERTIFICATE


 


I
hereby certify that I am the duly elected and qualified
[        ] of
[                    ],
a [                          ]
(“[X]”), and that, as such, I am authorized to execute this
certificate on behalf of [X].  This
certificate is being delivered pursuant to Section 3.1.7 of the Credit
Agreement, dated as of October 20, 2010 (the “Credit Agreement”),
among Milford Wind Corridor Phase II, LLC, a Delaware limited liability
company, as borrower, The Royal Bank of Scotland plc, as administrative agent,
collateral agent and a lender, and the financial institutions party thereto
from time to time.  Capitalized terms
used herein and not otherwise defined have the meanings provided in the Credit
Agreement.


 


I
hereby certify, on behalf of [X], in my capacity as the [              ]
thereof, and not in my individual capacity, to the Secured Parties as follows:


 


1.             Each of [X]’s representations and
warranties contained in each of the Credit Documents to which [X] is a party is
true and correct as of the date hereof (unless such representation and warranty
refers to an earlier date, in which case such representation and warranty was
true and correct as of such earlier date).


 


2.             As
of the date hereof, no event has occurred and is continuing that constitutes a
Default or an Event of Default under any of the Credit Documents to which [X]
is a party.


 


[The
Remainder of this Page is Intentionally Left Blank]


 


F-3-1

















 


IN WITNESS WHEREOF, I, the
[            ] of
[X], have signed my name to this Closing Certificate as of the date first set
forth above.


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
  [X]

  



 


Borrower Entity’s Closing
Certificate – Signature Page


 


F-3-2














 


Exhibit F-4


to the Credit Agreement


 


FORM OF INSURANCE CONSULTANT’S CERTIFICATE


 


[LETTERHEAD OF MOORE-MCNEIL, LLC]


 


,
2010


 


The
Royal Bank of Scotland plc,


as
Administrative Agent, Collateral Agent and Lender


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email: Agencyops@rbs.com


 


Re:                               Milford Wind
Corridor Phase II, LLC — Insurance Consultant’s Certificate


 


Ladies
and Gentlemen:


 


The undersigned, a duly authorized representative of Moore-McNeil, LLC,
a Tennessee limited liability company (the “Insurance Consultant”),
hereby delivers this Insurance Consultant’s Certificate to you in accordance
with Section 3.1.9 of that
certain  Credit Agreement, dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Milford Wind Corridor Phase II, LLC, a Delaware limited
liability company, as borrower, The Royal Bank of Scotland plc, as
administrative agent, collateral agent and a lender, and the financial
institutions party thereto from time to time. 
Capitalized terms used herein and not otherwise defined have the
meanings provided in the Credit Agreement.


 


The
Insurance Consultant hereby makes the following statements in favor of the
Secured Parties with respect to Borrower and the Project as of the date hereof:


 


1.                                       The Insurance
Consultant acknowledges that pursuant to the Credit Agreement, the Lenders are
providing financing to Borrower for, among other things, the construction and development of the Project and in so doing are relying on
this Insurance Consultant’s Certificate and the Insurance Consultant’s report
dated [        ],
2010  (the “Insurance Consultant’s
Report”), with respect to the Project.


 


2.                                       Attached hereto
as Annex I is an accurate and complete copy of the Insurance Consultant’s
Report.


 


F-4-1

















 


3.                                       The Insurance
Consultant’s Report was prepared in good faith by the Insurance Consultant
pursuant to the scope of services in accordance with generally accepted
consulting practices.


 


4.                                       Nothing has
come to the attention of the Insurance Consultant that causes the Insurance
Consultant to believe that the Insurance Consultant’s Report, as of the date
hereof, contains any untrue statement of material fact or omits to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.


 


5.                                       The Insurance
Consultant hereby confirms, as of the date hereof, based on the legal notice
provided in the Insurance Consultant’s report, that the evaluation, conclusions
and recommendations contained in the Insurance Consultant’s Report are accurate
and complete in all material respects.


 


6.                                       In connection
with the preparation of the Insurance Consultant’s Report, personnel of the
Insurance Consultant have participated in telephonic or electronic discussions
with representatives of Borrower and its Affiliates, Borrower’s insurance
broker, Administrative Agent, Collateral Agent and counsel to Administrative
Agent and Collateral Agent in respect of the Project.


 


7.                                       Attached hereto
as Annex II is an accurate and complete list of the coverages which have
been obtained to date in connection with the Project as evidenced by certificates of insurance and other materials supplied by
Borrower.


 


8.                                       Upon delivery
of the certificate from Borrower’s insurance broker and the original
certificates of insurance, copies of which are attached hereto as Annex II,
Borrower will have provided satisfactory evidence of compliance with the terms
and conditions of Section 3.1.10 of the Credit Agreement and Section 5.17
of the Credit Agreement.


 


The
undersigned, on behalf of the Insurance Consultant, hereby confirms that the
Secured Parties shall be permitted to rely on the Insurance Consultant’s Report
as if the Insurance Consultant’s Report was specifically addressed to each of
them.


 


[the
remainder of this page is intentionally left blank]


 


F-4-2

















 


IN
WITNESS WHEREOF, the Insurance Consultant has caused this Insurance Consultant’s
Certificate to be duly executed and delivered by an authorized officer of the
Insurance Consultant as of the date first above written.


 


 


	
   

  	
  MOORE
  MCNEIL, LLC,

  
	
   

  	
  a
  Tennessee limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Insurance
Consultant’s Certificate — Signature Page


 


F-4-3

















 


Annex I

to Insurance Consultant’s Certificate


 


Insurance Consultant’s
Report


 


[see attached]


 


F-4-4

















 


Annex II

to Insurance Consultant’s Certificate


 


Insurance Coverages and
Certificates


 


[see attached]


 


F-4-5

















 


Exhibit F-5


to the Credit Agreement


 


FORM OF INDEPENDENT ENGINEER’S CERTIFICATE


 


[LETTERHEAD OF GARRAD HASSAN
AMERICA, INC.]


 


, 2010


 


The Royal Bank of Scotland plc,

as Administrative Agent, Collateral Agent and Lender


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Re:                               Milford Wind Corridor Phase
II, LLC — Independent Engineer’s Certificate


 


Ladies
and Gentlemen:


 


The
undersigned, a duly authorized representative of Garrad Hassan America, Inc.,
a California corporation (“Independent Engineer”), hereby provides this
letter in accordance with Section 3.1.11 of that certain Credit Agreement,
dated as of October 20, 2010 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Milford Wind
Corridor Phase II, LLC, a Delaware limited liability company, as borrower, The
Royal Bank of Scotland plc, as administrative agent, collateral agent and a
lender, and the financial institutions party thereto from time to time.  Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the Credit
Agreement.


 


Independent
Engineer was retained by Administrative Agent to act under the direction of
Administrative Agent as the Independent Engineer, and Independent Engineer has
prepared an Independent Engineer’s Report, dated [                      ],
2010 (the “Report”), a complete copy of which is attached hereto
as Annex I.  The Report was
prepared pursuant to the scope of services under our Agreement for Independent
Engineering Services, dated [    ], 2010 (the “Services
Agreement”), entered into with Administrative Agent, and those services
were provided in accordance with generally accepted engineering practices.  Further, since the date of the Report,
nothing has come to our attention that would cause us to change that Report.


 


In
connection with the preparation of the Report, personnel of Independent
Engineer have participated in meetings or telephone discussions with
representatives of Borrower and its Affiliates, counsel to Borrower,
Administrative Agent, Collateral Agent and counsel to Administrative Agent and
Collateral Agent in respect of the Project.


 


This
letter is solely for the information of, and assistance to, the Secured
Parties, in conducting and documenting their investigation of the matters
covered by the Report in


 


F-5-1

















 


connection
with the Project, and it is not to be used, circulated, quoted, or otherwise
referred to within or without the lending group for any purpose, nor is it to
be referred to in whole or in part in any other document, except that reference
may be made to it in the above-mentioned Credit Agreement and the other Credit
Documents, the syndication materials provided to proposed Lenders or in any
list of closing documents pertaining to the Project.


 


Independent
Engineer disclaims any obligation to update this letter after the date
hereof.  This letter is not intended to
be, and may not be, relied upon by any parties other than the Secured Parties; provided that each such actual or proposed Secured Party by
its receipt of and reliance on this letter shall be deemed to have agreed to
the terms of the Services Agreement, including the limitations on Independent
Engineer’s liability set forth therein.


 


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  GARRAD
  HASSAN AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Independent
Engineer’s Certificate — Signature Page


 


F-5-2

















 


Annex I

to Independent Engineer’s Certificate


 


Report


 


[see attached]


 


F-5-3

















 


Exhibit F-6


to the Credit Agreement


 


FORM OF SOLVENCY CERTIFICATE


 


This certificate is furnished pursuant to Section 3.1.35 of the
Credit Agreement, dated as of October 20, 2010 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Milford Wind Corridor Phase II, LLC, a Delaware limited liability company, as
borrower, The Royal Bank of Scotland plc, as administrative agent, collateral
agent and a lender, and the financial institutions party thereto from time to
time.  Capitalized terms used but not
otherwise defined in this certificate shall have the meanings assigned to such
terms in the Credit Agreement.


 


The undersigned hereby certifies, on behalf of Borrower, in his
capacity as the [Chief Financial Officer][Treasurer] thereof, and not in his
individual capacity, as follows:


 


1.  I have reviewed the
provisions of the Credit Documents which are relevant to the furnishing of this
certificate, and, in my opinion, have made, or have caused to be made under my
supervision, such examination or investigation as is necessary to enable me to
express an informed opinion as to the matters referred to herein.


 


2.  Based upon my review and
examination described in paragraph 1 above, I certify that as of the date
hereof, immediately after giving effect to the transactions to occur on the
Closing Date and immediately following the occurrence of the first Credit
Event, (a) the fair value of the assets of Borrower, at a fair valuation,
will exceed the debts and liabilities, direct, subordinated, contingent or
otherwise, of Borrower, (b) the present fair saleable value of the
property of Borrower will be greater than the amount that will be required to
pay the probable liability of Borrower on its debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured, (c) Borrower will be able to pay
its debts and liabilities, direct, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured (after giving effect to
any guarantees and credit support) and (d) Borrower will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.  For purposes
of this certificate, (i) “able to pay its debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured (after giving effect to any guarantees and credit support)”
means that Borrower will be able to generate enough cash from operations, asset
dispositions or refinancings, or a combination thereof, to meet its obligations
as they become due, and (ii) the amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


F-6-1

















 


IN WITNESS WHEREOF, the undersigned, the [Chief Financial
Officer][Treasurer] of Borrower, has duly executed and delivered this
certificate as of the date first written above.


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:
  [Chief Financial

  Officer][Treasurer] of

  
	
   

  	
  Milford
  Wind Corridor Phase II, LLC

  



 


Solvency
Certificate — Signature Page


 


F-6-2














 


Exhibit G-1


to the Credit Agreement


 


PERMIT SCHEDULE


 


[See attached.]


 


G-1-1

















 


Exhibit G-2


to the Credit Agreement


 


PROJECT BUDGET


 


[See attached.]


 


G-2-1

















 


Exhibit G-3


to the Credit Agreement


 


PROJECT SCHEDULE


 


[See attached.]


 


G-3-1

















 


Exhibit G-4


to the Credit Agreement


 


LITIGATION


 


[See Attached]


 


G-4-1

















 


Exhibit G-5


to the Credit Agreement


 


HAZARDOUS SUBSTANCES DISCLOSURE


 


[See Attached]


 


G-5-1

















 


Exhibit G-6


to the Credit Agreement


 


BASE CASE PROJECTIONS


 


[See Attached]


 


G-5-1

















 


Exhibit H


to the Credit Agreement


 


LENDERS’ PROPORTIONATE SHARES


 


	
  Lenders

  	
   

  	
  Total Loan

  Commitment

  	
   

  	
  Percentage

  	
   

  
	
  The Royal Bank of Scotland
  plc

  	
   

  	
  $

  	
  49,400,000.00

  	
   

  	
  20.0

  	
  %

  
	
  Banco
  Espírito Santo SA New York Branch

  	
   

  	
  $

  	
  49,400,000.00

  	
   

  	
  20.0

  	
  %

  
	
  CoBank, ACB

  	
   

  	
  $

  	
  49,400,000.00

  	
   

  	
  20.0

  	
  %

  
	
  Société Générale

  	
   

  	
  $

  	
  49,400,000.00

  	
   

  	
  20.0

  	
  %

  
	
  Sovereign Bank

  	
   

  	
  $

  	
  49,400,000.00

  	
   

  	
  20.0

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  247,000,000.00

  	
   

  	
  100.0000

  	
  %

  



 


H-1

















 


Exhibit I


to the Credit Agreement


 


FORM OF NON-BANK CERTIFICATE


 


[LETTERHEAD OF NON-U.S. LENDER]


 


Date:                   ,       


 


The
Royal Bank of Scotland plc,


as
Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Milford
Wind Corridor Phase II, LLC


179
Lincoln Street, Suite 500


Boston,
Massachusetts 02111


Attn:
Secretary

Fax: (617) 960-2888


Tel:
(617) 960-2889


Email:  general.counsel@firstwind.com


 


with a copy to:


 


First
Wind Energy, LLC


179
Lincoln Street, Suite 500


Boston,
Massachusetts 02111


Attn: General Counsel

Fax: (617) 960-2888


Tel: (617) 960-2889


 


Re:                               Milford Wind
Corridor Phase II, LLC — Non-Bank Certificate


 


Ladies
and Gentlemen:


 


[Insert name of applicable Bank] (“Non-U.S.
Lender”) hereby delivers this Non-Bank Certificate to you pursuant to Section 2.4.6
of the Credit Agreement, dated as of October 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Milford Wind Corridor Phase II, LLC, a Delaware limited liability
company, as borrower, The Royal Bank of Scotland plc, as administrative agent,
collateral agent and a lender, and the financial institutions party thereto
from time to time.  Unless otherwise


 


I-1

















 


defined
herein, capitalized terms used herein have the meanings provided in the Credit
Agreement.


 


Non-U.S.
Lender hereby represents and warrants that:


 


1.                                       Non-U.S. Lender
is the sole record and beneficial owner of the Loans in respect of which it is
providing this Non-Bank Certificate. 
Non-U.S. Lender is not a “bank” for purposes of Section 881(c)(3)(A) of
the Internal Revenue Code of 1986, as amended (the “Code”).  In this regard, Non-U.S. Lender further
represents and warrants that Non-U.S. Lender is not subject to regulatory or
other Legal Requirements as a bank in any jurisdiction.


 


2.                                       Non-U.S. Lender
is not a 10-percent shareholder of Borrower within the meaning of Section 871(h) or
881(c)(3)(B) of the Code.


 


3.                                       Non-U.S. Lender
is not a controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code.


 


IN
WITNESS WHEREOF, the undersigned has duly executed this Non-Bank Certificate as
of the date first written above.


 


 


	
   

  	
  [INSERT NAME OF NON-U.S. LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-2














 


Exhibit J


to the Credit Agreement


 


FORM OF ACCOUNT WITHDRAWAL REQUEST


 


Date:
                
    ,  


 


The
Royal Bank of Scotland plc,


as Administrative Agent


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Re:                               Milford Wind Corridor Phase
II, LLC — Account Withdrawal Request


 


Ladies
and Gentlemen:


 


I,
                                      ,
am a Responsible Officer of Milford Wind Corridor Phase II, LLC, a Delaware
limited liability company (“Borrower”), and am delivering this Account
Withdrawal Request pursuant to the Credit Agreement, dated as of October 20,
2010 (the “Credit Agreement”), among Borrower, The Royal Bank of
Scotland plc, as administrative agent, collateral agent and a lender, and the
financial institutions party thereto from time to time.  Unless otherwise defined herein or unless the
context otherwise requires, capitalized terms used in this Account Withdrawal
Request have the meanings provided in the Credit Agreement and section
references are references to sections of the Credit Agreement.


 


In
this Account Withdrawal Request, Borrower requests Administrative Agent to
direct Depositary to withdraw funds from the following Accounts and apply such
funds as provided herein (check each Account that
applies and include only the pages applicable to the Account(s) which
have been checked and only the applicable Schedules and/or Exhibits):


 

















 


CONSTRUCTION ACCOUNT


 


Borrower
hereby requests that Administrative Agent instruct Depositary to withdraw from
the Construction Account the following amounts and to apply such amounts to the
following uses on
                  ,
20     (check each that applies):


 


o            Transfer  $                  
to the account and/or the designated payee(s) specified on Schedule I
hereto, using the account information, the address(es) and/or the wiring
instructions set forth therein, to pay the Project Costs specified on Schedule
I hereto.


 


o            [Only if
remaining amount is sufficient to reach Final Completion, as confirmed by the
Independent Engineer:]  Transfer
$                  
to the Revenue Account.


 


o            [Only on the
Closing Date:] 
Transfer
$                    
to the Affiliates as specified on Schedule I hereto, using the account
information, the address(es) and/or the wiring instructions set forth therein,
as reimbursement for Project Costs previously paid and specified on Schedule
I hereto.


 


o            [Only if the
Loans are repaid in full and Commitments terminated:]  Transfer
$                    
to the Repayment Account.


 

















 


REVENUE ACCOUNT


 


Borrower
hereby requests that Administrative Agent instruct Depositary to withdraw from
the Revenue Account the following amounts and to apply such amounts to the
following uses on
                  ,
20    :


 


o            Transfer
$                  
to Administrative Agent for payment of amounts becoming due and payable under
the Credit Agreement.


 


o            Transfer
$                  
to the account and/or the designated payee(s) specified on Schedule I
hereto, using the account information, the address(es) and/or the wiring
instructions set forth therein, to pay the O&M Costs specified on Schedule
I hereto.


 


o            Transfer $5,000,000 to Pledgor at
the account listed below:


 


[                        ]


 


o            [Only if the
Loans are repaid in full and Commitments terminated:]  Transfer
$                    
to the Repayment Account.


 

















 


INSURANCE PROCEEDS ACCOUNT


 


o            [Only if
related to a single Casualty Event of less than or equal to $500,000 (as
determined by the replacement value thereof):]  Transfer
$                  
to the account and/or the designated payee(s) specified on Schedule II
hereto, using the account information, the address(es) and/or the wiring
instructions set forth therein, to pay the repair or restoration costs
specified on Schedule II hereto.


 


o            [Only if
related to a single Casualty Event of less than or equal to $500,000 (as
determined by the replacement value thereof) and Borrower previously applied
the available amount of the contingency in the Project Budget to such repair or
restoration prior to the receipt of such Insurance Proceeds and Borrower now
seeks to transfer received Insurance Proceeds to the Construction Account (if
prior to Commercial Operation) or the Revenue Account (if after Commercial
Operation) and restore the available amount of the contingency in the Project
Budget:]


 


[If prior to Commercial Operation:]


 


o            Transfer
$                                  
to the Construction Account.


 


Such amount shall restore the available amount of
the contingency in the Project Budget.


 


[If after Commercial Operation:]


 


o            Transfer
$                                  
to the Revenue Account.


 


Such amount shall restore the available amount of
the contingency in the Project Budget.


 


o            [Only if the
conditions in Section 7.4.3 of the Credit Agreement have been met and
Administrative Agent has duly approved the making of repairs or restoration:]


 


Borrower hereby requests that Administrative Agent instruct Depositary
to withdraw from the Insurance Proceeds Account and transfer  $                  
to the designated payee(s) specified on Schedule II hereto, using
the account information, the address(es) and/or the wiring instructions set
forth therein, to pay or reimburse such Person(s) for the costs associated
with repairs or restoration of the Project related to the Casualty Event as
described on Schedule II hereto, on
                  ,
20    .


 


Borrower makes the following certifications with respect to the
transfer(s) requested above:


 


(a)           the repairs or restoration to be effected with such
withdrawal(s), payment(s) and transfer(s) are accurately described on
Schedule II hereto;


 

















 


(b)           the cost of such repairs or restoration and the specific
amount requested to be paid over to or upon Borrower’s order are accurately set
forth on Schedule II hereto and Borrower requests such amount to pay the
cost thereof;


 


(c)           the aggregate amount requested by Borrower in respect of
such repairs or restoration (when added to any other Insurance Proceeds
received by Borrower in respect of the damage or destruction) does not exceed
the cost of such repairs or restorations;


 


(d)           a sufficient amount of funds is or will be available to
Borrower to complete the Project;


 


(e)           no Event of Default has occurred and is continuing other
than an Event of Default resulting solely from the damage or destruction from
the Casualty Event to be repaired or restored;


 


(f)            the conditions precedent in Section 7.4.3 of the
Credit Agreement have been satisfied or waived pursuant to the terms of the
Credit Agreement and such documents required to be delivered in connection with
such conditions precedent are attached hereto as Exhibits A, B
and C; and


 


(g)           repair or restoration of the Project is technically and
economically feasible by no later than the [    ],
20[    ] and a sufficient amount of funds is or will be
available to Borrower to make such repairs and restorations and, if during the
construction period, to achieve Completion.


 


o            Transfer
$                    
to the Repayment Account.


 

















 


ASSET SALE ACCOUNT


 


Borrower
hereby requests that Administrative Agent instruct Depositary to withdraw from
the Asset Sale Account the following amounts and to apply such amounts to the
following uses on
                  ,
20     (check each that applies):


 


o            Transfer
$                    
to the Repayment Account.


 


[Only if Sale Proceeds are less than $50,000:]


 


[If such sale occurred prior to Commercial
Operation:]


 


o            Transfer
$                  
to the Construction Account.


 


[If such sale occurred after Commercial Operation:]


 


o            Transfer
$                  
to the Revenue Account.


 

















 


REPAYMENT ACCOUNT


 


Borrower
hereby requests that Administrative Agent instruct Depositary to withdraw from
the Repayment Account the following amounts and to apply such amounts to the
following uses on
                  ,
20    :


 


o            Transfer
$                  
to Administrative Agent for repayment of loans[; provided, however, that
Borrower requests Administrative Agent to hold such funds until the last day of
the following Interest Periods: 
[                  ]].


 

















 


[Include the following for all Account Withdrawal
Requests:]


 


I
have reviewed the provisions of the Credit Agreement and the Depositary
Agreement which are relevant to the furnishing of this Account Withdrawal
Request and hereby certify, on behalf of Borrower, in my capacity as
[                ]
thereof, and not in my individual capacity, that:


 


(i)            the withdrawals and transfers
requested herein comply with the terms and conditions of the Credit Agreement
(including but not limited to Article 7 of the Credit Agreement) and the
Depositary Agreement;


 


(ii)           to the extent that this Account
Withdrawal Request evidences, attests or requires compliance with any
covenants, representations, warranties or conditions precedent in the Credit
Agreement or the Depositary Agreement, I have made such examination or
investigation as was reasonably necessary to confirm that such covenants,
representations, warranties or conditions have been complied with; and


 


(iii)          no Default or Event of Default has
occurred and is continuing.


 


IN
WITNESS WHEREOF, I, the
[                ]
of Borrower, have caused this Account Withdrawal Request to be duly executed
and delivered as of the date first above written.


 


	
   

  	
  MILFORD
  WIND CORRIDOR PHASE II, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule I


 


Payees of Proceeds of Withdrawal from the Construction Account


 


	
  Amount:

  	
   

  	
  Cost/Purpose:

  	
   

  	
  Name and Address of Designated Payee or

  Affiliate; Account Name and Number/Wire

  Transfer Information:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Payees of Proceeds of Withdrawal from the Revenue Account


 


	
  Amount:

  	
   

  	
  Cost/Purpose:

  	
   

  	
  Name and Address of Designated Payee or

  Affiliate; Account Name and Number/Wire

  Transfer Information:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule II


 


Payees of Proceeds of Withdrawal from the Insurance Proceeds Account


 


	
  Amount:

  	
   

  	
  Cost/Purpose:

  	
   

  	
  Name and Address of Designated Payee;

  Account Name and Number/Wire Transfer

  Information:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Only if Insurance Proceeds relate to a Casualty Event of greater than
$500,000:]  Nature
of the repairs or restoration to be effected (categorized by each Person
performing such repairs or restoration):


 














 


Exhibit A


 


Independent Engineer’s Certificate


 


Based
on our review of the information provided to us by Milford Wind Corridor Phase
II, LLC, we hereby certify that the repair or restoration of the Project is
technically and economically feasible by no later than
[    ], 20[    ] and that a sufficient
amount of funds is or will be available to Borrower to make such repairs and
restorations and, if during the construction period, to achieve Completion.


 


 


	
  Date:
                ,
  20

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GARRAD
  HASSAN AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit B


 


Opinion of Counsel


(if requested)


 


[See Attached]


 

















 


Exhibit C


 


Title Insurance, Endorsements, Mechanic’s Lien Waivers, Certificates,


Opinions or Other Documents


(if requested)


 


[See Attached]


 

















 


Exhibit K


to the Credit Agreement


 


INSURANCE REQUIREMENTS


 


[to be provided]


 


K-1

















 


Exhibit L


to the Credit Agreement


 


FORM
OF ANNUAL INSURANCE CERTIFICATE


 


[LETTERHEAD OF BORROWER’S INSURANCE BROKER]


 


Date:


 


The Royal Bank of Scotland
plc,


as Administrative Agent,
Collateral Agent and Lender


600
Washington Boulevard


Stamford,
CT 06901


Attn:
Rana Khan


Fax:  212 401-1494


Phone:
203 897-4277


Email:
Agencyops@rbs.com


 


Re:  Milford Wind Corridor Phase II, LLC - Annual
Insurance Certificate


 


Ladies and Gentlemen:


 


The undersigned, a duly
authorized representative of [    ],  (“Insurance
Broker”), hereby delivers this Annual Insurance Certificate to you in
accordance with Section 5.8.3 of that certain Credit Agreement, dated as of
October 20, 2010 (as amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Milford Wind Corridor Phase II,
LLC, a Delaware limited liability company, as borrower, The Royal Bank of
Scotland plc, as administrative agent, collateral agent and lender, and the
financial institutions party thereto from time to time.  Except as provided herein, all terms used
herein that are defined in the Credit Agreement shall have the meanings given
therein.


 


Insurance Broker hereby
makes the following statements in favor of Administrative Agent, Collateral
Agent and the Lenders as of the date hereof:


 


(1)          Insurance
Broker acknowledges that pursuant to the Credit Agreement, the Lenders are
providing financing to Borrower for, among other things, the development and
construction of the Project and in so doing are relying on this Annual
Insurance Certificate and on Borrower’s continued compliance with Section 5.17
of the Credit Agreement and Exhibit K to the Credit Agreement.


 


(2)          Attached as
Annex I is a description of the insurance, including a schedule of policy
expiration dates, maintained by or on behalf of the Borrower pursuant to
Exhibit K to the Credit Agreement.  All
premiums, whether financed or not, due thereon have been paid and are not in
arrears.


 


(3)          Insurance
Broker hereby certifies that, as of the date hereof, the insurance policies 


 


L-1

















 


described
in Annex I hereto are in full force and effect and comply in all material
respects with the terms set forth in the Credit Agreement.


 


[the remainder of this page is intentionally left blank]


 


L-2

















 


IN WITNESS WHEREOF,
Insurance Broker has caused this Annual Insurance Certificate to be duly
executed and delivered by an authorized officer of Insurance Broker as of the
date first above written.


 


 


	
   

  	
  [    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  [    ]

  
	
   

  	
  Title:
  [    ]

  



 


L-3

















 


Exhibit M


to the Credit Agreement


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between the Assignor identified in item 1 below (the “Assignor”) and the
Assignee identified in item 2 below (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee.  The
Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard
Terms and Conditions”) are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations(10) in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified in Section 6 below of all of
such outstanding rights and obligations of the Assignor under the Credit
Agreement and the other Credit Documents and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, the other Credit Documents and any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above
being referred to herein collectively as the “Assigned Interest”).  Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  
	
   

  	
   

  
	
   

  	
  [indicate
  [Affiliate][Approved Fund] of [identify Lender]]

  
	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  Milford
  Wind Corridor Phase II, LLC

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  The
  Royal Bank of Scotland plc

  



 






(10)  The assignment under this Assignment and
Assumption is subject to the consent of Borrower pursuant to Section
13.17.2(c)(i) of the Credit Agreement.


 


M-1

















 


	
  5.

  	
  Credit
  Agreement:

  	
  The
  $250,000,000.00  Credit Agreement, dated as of
  October 20, 2010, among Borrower, The Royal Bank of Scotland plc, as
  Administrative Agent, Collateral Agent and Lender, and the financial
  institutions party thereto from time to time.

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest:

  	
   

  



 


Total Loan Commitment:


 


	
  Aggregate Principal

  Amount of Total Loan

  Commitment

  for all Lenders

  	
   

  	
  Aggregate Principal

  Amount of Total Loan

  Commitment

  Assigned

  	
   

  	
  Percentage of Aggregate

  Principal Amount of Total

  Loan Commitment

  Assigned(11)

  	
   

  
	
  $

  	
  [              ]

  	
   

  	
  $

  	
  [          ]

  	
   

  	
  [    ]

  	
  %

  
								



 


Effective
Date:  
                          
      , 20      .


 


[The Remainder of this Page is Intentionally Left
Blank]


 






(11) Must be equal to the percentage of Total LC
Commitment assigned in 6(a) above.


 


M-2

















 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:   

  
	
   

  	
  Title:

  



 


Assignment
and Assumption – Signature Pages


 


M-3














 


Acknowledged
and Approved:


 


	
  MILFORD
  WIND CORRIDOR PHASE II, LLC,

  	
   

  
	
  as Borrower(12)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 






(12)  If an Event of Default has occurred and
is continuing, do not include Borrower’s signature block.


 


Assignment and Assumption – Signature Pages


 


M-4

















 


Acknowledged
and Approved:


 


	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  	
   

  
	
  as Administrative Agent(13)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 






(13)  Include if Administrative Agent’s consent
is required under Section 13.17.2(a)(ii) of the Credit Agreement.


 


Assignment and Assumption –
Signature Pages


 


M-5

















 


ANNEX 1


To Assignment and Assumption


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


1.1  Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any collateral
thereunder, (iii) the financial condition of Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.


 


1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of a Lender under the Credit
Agreement, (iii) the representations and warranties set forth in Section 13.20.5
of the Credit Agreement are accurate in all material respects with respect to
it, (iv) from and after the Effective Date, it (x) shall be bound by
the provisions of the Credit Agreement(14) and the other Credit Documents,
in each case, to the extent of the Assigned Interest, and (y) shall have
the obligations of a Lender thereunder, (v) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned
Interest and either it, or the Person exercising discretion in making its
decision to acquire the Assigned Interest, is experienced in acquiring assets
of such type, (vi) it has received a copy of the Credit Agreement, and has
received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to the Credit Agreement and such
other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, (vii) it has, independently and without
reliance upon Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, and (viii) if it is a foreign Lender,
attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on Administrative Agent, the Assignor or any
other Lender, 


 






(14) 
One such provision is the requirement under Section 2.4.6 of the Credit
Agreement to deliver United States Internal Revenue Service Forms W-9, W-8BEN
or W-8ECI, as applicable, to Administrative Agent and Borrower.


 


M-6

















 


and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Documents
are required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date,
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for (i) amounts which have accrued to but excluding the
Effective Date and (ii) amounts which have accrued from and after the
Effective Date.


 


3.  General Provisions.  This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed, interpreted and enforced in accordance with, the
internal law of the State of New York (including Section 5-1401 and Section 5-1402
of the General Obligations Law of the State of New York), without regard to
conflicts of laws principles that would require application of the laws of
another jurisdiction.


 


4.  Cost to Lenders.  Section 13.17.9 of the Credit Agreement
is incorporated herein by this reference.


 


M-7

















 


Exhibit N


to the Credit Agreement


 


FORM OF CREDIT AGREEMENT JOINDER


 


[LETTERHEAD OF JOINING PARTY]


 


	
  Date:         
      ,   

  



 


	
  The
  Royal Bank of Scotland plc,

  
	
  as Administrative Agent

  
	
  600
  Washington Boulevard

  
	
  Stamford,
  CT 06901

  
	
  Attn:
  Rana Khan

  
	
  Fax:
  212 401-1494

  
	
  Phone:
  203 897-4277

  
	
  Email:
  Agencyops@rbs.com

  
	
   

  
	
  Milford
  Wind Corridor Phase II, LLC

  
	
  179
  Lincoln Street, Suite 500

  
	
  Boston,
  Massachusetts 02111

  
	
  Attn:
  Secretary

  
	
  Fax:
  (617) 960-2888

  
	
  Tel:
  (617) 960-2889

  
	
  Email:
  general.counsel@firstwind.com

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  First Wind Energy, LLC

  
	
  179 Lincoln Street, Suite 500

  
	
  Boston, Massachusetts 02111

  
	
  Attn: General Counsel

  
	
  Fax: (617) 960-2888

  
	
  Tel: (617) 960-2889

  
	
   

  
	
  Re:

  	
  Milford
  Wind Corridor Phase II, LLC — Credit Agreement Joinder

  



 


Ladies
and Gentlemen:


 


[Insert name of applicable Joining Party] (“Joining
Party”) hereby delivers this Credit Agreement Joinder to you pursuant to Section 11.15
of the Credit Agreement, dated as of October 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Milford Wind Corridor Phase II, LLC, a Delaware limited liability
company, as borrower, The Royal Bank of Scotland plc, as administrative agent,
collateral agent 


 


N-1

















 


and
a lender, and the financial institutions party thereto from time to time.  Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the Credit
Agreement.


 


Joining
Party hereby requests to be joined as a Secured Party under the Credit
Documents, and by its signature and the acknowledgement of Administrative Agent
below, shall become a Secured Party under the Credit Documents.


 


Joining
Party agrees to be, and hereby is, bound by the terms, conditions and
obligations of Article 7, Article 11 and Sections 2.5.2, 13.1 and
13.20 of the Credit Agreement,  the
defined terms referred to in such Article and Sections and such other
provisions of the Credit Documents that bind and benefit the Secured Parties,
and agrees to be, and hereby is, entitled to all of the rights and benefits
provided under such Article, Sections and other provisions.


 


[The Remainder of this Page is Intentionally
Left Blank]


 


N-2

















 


IN
WITNESS WHEREOF, the undersigned has duly executed this Credit Agreement
Joinder as of the date first written above.


 


 


	
   

  	
   

  	
  [INSERT NAME OF JOINING PARTY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and Agreed to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE ROYAL BANK OF SCOTLAND
  PLC,

  	
   

  	
   

  
	
  as Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


Credit Agreement Joinder – Signature Page


 


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